Criminal Defense Counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when consequences are clear

Posted on March 31, 2010 by Mike Baker

The first step has been taken to equate deportation with “punishment”. If “deportation is an integral part—indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” then, doesn’t the Constitution protect a person facing deportation? And in what ways? And does it matter whether the Respondent is an LPR with criminal convictions or an EWI with no crimes, but also no legal right to be here. In other words, is deportation a “penalty” for everyone? Has deportation moved from being a “collateral” (civil) consequence like loss of state license eligibility to a more integral consequence? If deportation is a penalty, are indigent noncitizens now entitled to appointed counsel in immigration proceedings?

Note: The Board of Immigration Appeals (BIA) has previously held that where a conviction is vacated based solely on rehabilitation or hardship rather than due to a substantive or procedural defect in the underlying criminal proceeding, the alien remains convicted for purposes of immigration law. It further found that a conviction vacated for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. Thus, convictions overturned under this holding in Padilla will likely not count as a conviction for immigration purposes in most jurisdictions. The 5th Circuit has amended its position with regards to its treatment of vacated convictions and follow the BIA’s Matter of Pickering. A conviction vacated on the merits is no longer a conviction for immigration purposes. Decision can be read here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-60842-CV0.wpd.pdf

Padilla v. Kentucky, 130 S. Ct. 1473 (2010): “Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6”.

(“[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen‟s criminal conviction . . . [and] confirm our view that, as a matter of federal law, deportation is an integral part – indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”) (internal punctuation and citation omitted); see also id. at 1481-82 (because deportation, although civil in nature, is a “particularly severe penalty,” is “intimately related to the criminal process,” and is automatic for a broad class of offenders, it is “uniquely difficult to classify as either a direct or a collateral consequence of conviction); see also id. at 1486 (“[C]ounsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”).

“Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9”.

“Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18”.

Justice John Paul Stevens delivered the opinion of the Court in which Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined. The majority opinion noted:

“In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U. S., at 57; see also Richardson, 397 U. S., at 770-771. The severity of deportation–“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390-391 (1947)–only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”

The Court noted in a footnote to this paragraph that “we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences.”

The majority opinion concluded that, “[t]o satisfy [our responsibility under the Constitution to ensure that no criminal defendant-whether a citizen or not–is left to the “mercies of incompetent counsel”], we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

Justice Samuel A. Alito, Jr. filed an opinion concurring in the judgment in which Chief Justice John G. Roberts, Jr. joined. In the concurring opinion, Justice Alito wrote.

In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client’s determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel’s duty to assist the client. Instead, an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.

Justice Antonin Scalia filed a dissenting opinion in which Justice Clarence Thomas joined. He asserted that the Sixth Amendment does not guarantee sound advice on collateral consequences of a conviction. He further contended that affirmative misadvice about those consequences does not render an attorney’s assistance in defending against the prosecution constitutionally inadequate.

“The Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area.”

PADILLA v. KENTUCKY CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010 http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The petitioner, a native of Honduras who has lived in the U.S. for 40 years as a legal permanent resident, was arrested in Kentucky after it was discovered that he was transporting nearly 1,000 pounds of marijuana in his freight truck. He was indicted on various misdemeanor and felony charges, including trafficking in marijuana. The petitioner pled guilty to the drug charges reportedly after he questioned his defense attorney about immigration consequences and was told that he did not need to worry about immigration consequences since he had been in the U.S. for so long. He was sentenced to five years of incarceration followed by five years of probation.


After an immigration detainer was lodged against him, the petitioner moved to vacate the plea, asserting ineffective assistance of counsel because counsel misadvised him regarding the immigration consequences of the plea. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective assistance-of counsel-guarantee does not protect defendants from erroneous deportation advice.The Hardin Circuit Court denied the motion, but, on appeal to the Kentucky Court of Appeals, the motion was granted, and the matter was remanded to the circuit court for an evidentiary hearing. The court of appeals distinguished Com. v. Fuartado, 170 S.W.3d 384 (Ky. 2005), in which the Kentucky Supreme Court determined that collateral consequences are outside the scope of effective representation of counsel under the Sixth Amendment on the ground that the petitioner sought advice from counsel and was given “gross misadvice” and such an affirmative act by counsel could constitute ineffective assistance.
Posted in ineffective assistance of counsel, Padilla, Padilla v. Kentucky | 2 Comments

Supreme Court Holds that Florida Battery Conviction Was Not “Violent Felony”

Posted on March 30, 2010 by Mike Baker

In a case with implications for aliens facing domestic violence deportation charges or with aggravated-felony crime of violence convictions, the U.S. Supreme Court in Johnson v. U.S., 2010 WL 693687, held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use … of physical force against the person of another” and thus does not constitute a “violent felony” under 18 USCA § 924(e).

JOHNSON v. UNITED STATES ( No. 08-6925 )
528 F. 3d 1318, reversed and remanded.

Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony, in violation of 18 U. S. C.§922(g)(1). The Government sought an enhanced penalty under §924(e), which provides that a person who violates §922(g) and who “has three previous convictions” for “a violent felony” “committed on occasions different from one another” shall be imprisoned for a minimum of 15 years and a maximum of life. A “violent felony” is defined as “any crime by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B).

Johnson’s indictment specified five prior felony convictions. The Government contended that three of those convictions—for aggravated battery and for burglary of a dwelling in October 1986, and for battery in May 2003—rendered Johnson eligible for sentencing under §924(e)(1). At the sentencing hearing, Johnson did not dispute that the two 1986 convictions were for “violent felon[ies],” but he objected to counting his 2003 battery conviction. That conviction was for simple battery murder Florida law, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before, §784.03(2).

Under §784.03(1)(a), a battery occurs when a person either “1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to
another person.” Because the elements of the offense are disjunctive,the prosecution can prove a battery in one of three ways. State v. Hearns , 961 So. 2d 211, 218 (Fla. 2007). It can prove that the
defendant “[i]ntentionally caus[ed] bodily harm,” that he “intentionally str[uck]” the victim, or that he merely “[a]ctually and intentionally touche[d]” the victim.

Since nothing in the record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts, see Shepard v. United States , 544 U.S. 13, 26 (2005) (plurality opinion), his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another person constitutes the use of “physical force” within the meaning of m§924(e)(2)(B)(i). The District Court concluded that it does, and accordingly sentenced Johnson under §924(e)(1) to a prison term of 15 years and 5 months.

The Eleventh Circuit affirmed. 528 F. 3d 1318 (2008).

In a 7-2 decision authored by Justice Antonin Scalia and joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, the Court first rejected the petitioner’s argument that, in deciding whether any unwanted physical touching constitutes “physical force”m under 18 USCA § 924(e)(2)(B)(i), it was bound by the decision of the Florida Supreme Court in State v. Hearns, 961 So. 2d 211 (Fla. 2007), am case involving a Florida statute similar to the ACCA that held that, since § 784.03(1)(a) requires proof of only the slightest unwanted physical touch, “the use … of physical force” was not an element of the offense. Rather, the Court said, the meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law, and in answering that question the Court is not bound by a state court’s interpretation of a similar or even identical state statute. However, in determining whether a felony conviction for battery under Fla. Stat. Ann. § 784.03(2) meets the definition of “violent felony” in 18 USCA §     924(e)(2)(B)(i), the Court said, it was bound by the Florida Supreme Court’s interpretation of state law, including its determination of the elements of Fla. Stat. Ann. § 784.03(2).

Because § 924(e)(2)(B)(i) does not define “physical force,” the Court, in accord with its past precedent decisions, gave it its ordinary meaning. In this regard, the Court referred to Black’s Law Dictionary,
which defines “force” as “[p]ower, violence, or pressure directed against a person or thing” and defines “physical force” as “[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim,” and found that these definitions suggested a degree of power that would not be satisfied by the merest touching. The Court rejected the government’s contention that “force” as used in § 924(e)(2)(B)(i) has the more specialized legal meaning that the common law gave it when it defined the crime of battery as consisting of the intentional application of unlawful force against the person of another and defined “force” as meaning even the slightest offensive touching. In reaching this conclusion, the Court relied upon its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), where it interpreted the statutory definition of “crime of violence” in 18 USCA § 16, a provision very similar to § 924(e)(2)(B)(i) in that it includes any felony offense which“has as an element the use … of physical force against the person or property of another,” § 16(a). The Court there stated:

In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes…. 543 U.S. at 11, 125 S.Ct. 377.

The Court found it “clear that in the context of statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force–that is, force capable of causing physical pain or
injury to another person.” (Emphasis by the Court.)

The Court also found it significant that the meaning of “physical force” that the government sought to import into the meaning of “violent felony” is a meaning derived from a common-law misdemeanor and concluded that it is unlikely that Congress would select as a term of art defining “violent felony” a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.

The majority found no merit to the dissent’s contention that the term “force” in § 924(e)(2)(B)(i) cannot be read to require violent force because Congress specifically named “burglary” and “extortion” as “violent felon[ies]” in § 924(e)(2)(B)(ii), notwithstanding that those offenses can be committed without violence, noting that burglary and extortion are listed in § 924(e)(2)(B)(ii) as examples of felonies that “presen[t] a serious potential risk of physical injury to another,” not in § 924(e)(2)(B)(i) as felonies that have “as an element the use, attempted use, or threatened use of physical force.” Similarily, the court found no merit to the government’s contention that, because Congress used the phrase “bodily injury” in connection with the phrase m“physical force” in § 922(f)(8)(C)((ii) (a provision forbidding the possession of firearms by a person subject to a court order explicitly
prohibiting the “use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury”), the absence of such language in §
924(e)(2)(B)(i) proves that the merest touch suffices. Rather, the Court found that specifying that “physical force” must rise to the level of bodily injury does not suggest that without the qualification “physical force” would consist of the merest touch. The Court also pointed out mthat this is not a case where Congress “include[d] particular language min one section of a statute but omit[ted] it in another section of the same Act” as § 922(g)(8)(C)(ii) was enacted in 1994–eight years after
enactment of the language in § 924(e)(2)(B)(i).

The Court also dismissed the government’s contention that interpreting § 924(e)(2)(B)(i) to require violent force will undermine its ability to enforce the firearm disability in § 922(g)(9) for persons who previously have been convicted of a “misdemeanor crime of domestic violence,” which is defined to include certain misdemeanor offenses that have “as an element, the use or attempted use of physical force … ,” §921(a)(33)(A)(ii), stating that it was interpreting the phrase “physical force” only in the context of a statutory definition of “violent felony” and was not deciding that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue was not
before the Court, and the Court explicitly did not decide it.

Similarly the Court dismissed both (1) the government’s concern that the Court’s interpretation would make it more difficult to remove, pursuant to INA § 237(a)(2)(E) [8 USCA § 1227(a)(2)(E)], an alien convicted of a “crime of domestic violence,” which is defined to mean “any crime of violence (as defined in [18 USCA § 16])” committed by certain persons, including spouses, former spouses, and parents, where the alien is convicted of a battery under a statute, like Florida’s, that does not require the use of violent physical force, and (2) the dissent’s concern that, in states that have generic felony-battery statutes that cover both violent force and unwanted physical force, the Court’s interpretation will render convictions under those statutes outside the scope of the ACCA. The majority found these arguments to exaggerate the effect of its decision since, when the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the Court’s modified categorical approach, Nijhawan v. Holder, 129 S. Ct. 2294 (2009),  permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record–including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. In this regard, the Court pointed out, the government has in the past obtained convictions under the ACCA in precisely this manner.

Finally, the Court declined to remand to the Eleventh Circuit for it to consider whether the petitioner’s 2003 battery conviction is a “violent felony” within the meaning of the so-called “residual clause” in 18 USCA § 924(e)(2)(B)(ii). The Court found that (1) the government did not keep this option alive because it disclaimed at sentencing any reliance upon the residual clause, and (2) the parties briefed this issue to the Eleventh Circuit, which nonetheless reasoned that, if the petitioner’s conviction under Fla. Stat. Ann. § 784.03(2) satisfied § 924(e)(2)(B)(i), then it was a predicate “violent felony” under § 924(e)(1), but “if not, then not.”

Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, dissented, arguing that the ACCA defines a “violent felony” to mean, among other things, “any crime punishable by imprisonment for a term exceeding one year … that … has as an element the use, attempted use, or threatened use of physical force against the person of another” and the classic definition of the crime of battery is the “intentional application of unlawful force against the person of another,” so that the crime of battery, as traditionally defined, falls squarely within the plain language of the ACCA. Justice Alito opined that the ACCA was meant to incorporate this traditional definition and that therefore the decision of the court of appeals should have been affirmed.

Posted in Aggravated felony, crime of violence, Domestic battery | Leave a comment

9th Cir. overturns Matter of Lettman: felony convictions before November 18, 1988 are not Aggravated Felonies

Posted on March 29, 2010 by Mike Baker
“We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and (2) neither Congress’s overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.”
Ledezma-Galicia entered the United States in 1979 and became a lawful permanent resident on February 12, 1985. In June 1987, Ledezma-Galicia molested a ten-year-old girl. He was subsequently charged with sodomy in the first degree, in violation of Or. Rev. Stat. § 163.405, and rape in the first degree, in violation of Or. Rev. Stat. § 163.375. In exchange for dismissal of the rape charge, Ledezma-Galicia pleaded guilty to the sodomy count and admitted in his guilty plea that he had sexual intercourse with a minor.  On September 16, 1988, he was sentenced to eight months in custody. 

In April of 2003, the Bureau of Immigration and Customs Enforcement charged Ledezma-Galicia with removability because of his 1988 conviction. See Ledezma-Galicia v. Unless otherwise stated, all references to the United States Code are to the 2000 edition. Ledezma-Galicia v. Holder 4995 Crawford, 294 F. Supp. 2d 1191, 1193 (D. Or. 2003) (summarizing the factual background). Under current law, sexual abuse of a minor is an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and a conviction for an aggravated felony renders an alien removable,2 8 U.S.C. § 1227(a)(2)(A)(iii).  But that was not the case when Ledezma-Galicia was convicted. See 8 U.S.C. § 1251(a) (1982) (listing grounds for deportation). To determine whether Ledezma-Galicia can now be deported because of his 1988 conviction requires a journey through the last twenty years of immigration law reform.

Posted in Aggravated felony | Leave a comment

2009 Country Reports on Human Rights Practices

Posted on March 27, 2010 by Mike Baker

The Department of State’s (DOS’) Bureau of Democracy, Human Rights, and Labor has released the Country Reports on Human Rights Practices for 2009. As with 2008, there are a total of 194 country reports.

Human Rights Abuses in Countries in Conflict

According to the information reported, “there still are an alarming number of reports of torture, extrajudicial killings, and other violations of universal human rights” occurring primarily in countries in which conflicts are occurring. The governments of Afghanistan, Burma, the Democratic Republic of the Congo (DRC), Iraq, Israel, Nigeria, Pakistan, Russia, Sri Lanka, and Sudan were all cited has having committed such acts. For example, in Nigeria, the report noted that, “[b]etween July 26 and July 29, police and militant members of Boko Haram, an extremist Islamic group, clashed violently in four northern states, resulting in the displacement of approximately 4,000 people and more than 700 deaths, although this figure is not definitive because quick burials in mass graves precluded an accurate count.” Also, although Pakistan’s civilian authorities took some positive steps, significant human-rights challenges remain. Major problems included extrajudicial killings, torture, and disappearances as some 825 civilians were killed by militant forces, security operations to repel the militants from Malakand Division and parts of the FATA displaced almost three million persons at the peak of the crisis (although by year’s end, approximately 1.66 million had returned to their home areas), and security forces allegedly committed 300 to 400 extrajudicial killings during counterinsurgency operations.

Restrictions on Freedom of Expression, Assembly, and Association (including nongovernmental organizations (NGOs))

Many governments continued to exert control over information that came into and was produced within their countries. This was accomplished by hindering the ability to organize in public, online, or through use of new technologies, by restricting the dissemination of information on the Internet, radio, or television or through print media, and constructing legal barriers that made it difficult for NGOs to establish themselves. According to the National Endowment for Democracy, 26 laws in 25 countries have been introduced or adopted since January 2008 that impede civil society.

The governments of Belarus, China, Colombia, Cuba, Iran, North Korea, Russia, Venezuela, Vietnam, and Uzbekistan were all mentioned in this category. China, for example, increased its efforts to monitor Internet use, control content, restrict information, block access to foreign and domestic Web sites, encourage self-censorship, and punish those who violated regulations. Further, in Colombia, while independent media were active and expressed a wide variety of views without restriction and all privately owned radio and television stations broadcast freely, members of illegal armed groups intimidated, threatened, kidnapped, or killed journalists, which, according to national and international NGOs, caused many to practice self-censorship; others, 171 to be specific, received protection from the government. In Venezuela, the government’s harassment of Globovision, the largest private television network, included raiding the home of the company’s president and publicly calling for the company’s closure. At year’s end, 32 radio stations and two television stations had been closed, and 29 other radio stations remained under threat of closure.

Discrimination Against and Harassment of Vulnerable Groups

Vulnerable groups, including racial, ethnic, and religious minorities, the disabled, women and children, migrant workers, and lesbian, gay, bisexual, and transgender individuals, were marginalized and targets of societal and/or government-sanctioned abuse. Italy, Hungary, Romania, Slovakia, and the Czech Republic were cited as seeing a rise in killings and incidents of violence against Roma, the largest and most vulnerable minority in Europe. Other countries noted for violations included China, Egypt, Iran, Malaysia, Saudi Arabia, Switzerland, and Uganda. Anti-Semitism continued to arise, and a spike in such activity followed the Gaza conflict in the winter of 2008-2009. Attacks on Christians rose in Egypt, and, in Uganda, a bill providing the death penalty for “aggravated homosexuality” and for homosexual “serial offenders” resulted in increased harassment and intimidation of lesbian, gay, bisexual, and transgendered persons during the year.

Posted in 2009 Country Reports on Human Rights Practices, Department of State's Human Rights Practices | Leave a comment

Well-founded fear of persecution that respondents would be subject to forced sterilization

Posted on March 26, 2010 by Mike Baker

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010)  U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Decided March 26, 2010

  1. Whether an alien has presented sufficient evidence to establish a well-founded fear of persecution is a legal determination that is reviewed de novo by the Board of Immigration Appeals.
  2. In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge.
  3. State Department reports on country conditions are highly probative evidence and are usually the best source of information on conditions in foreign nations.
  4. The evidence presented by the respondents, considered in light of State Department country reports specific to Fujian Province, failed to establish a reasonable possibility that either respondent would be subject to forced sterilization due to having two children born in the United States or would face penalties or sanctions so severe that they would rise to the level of persecution.
Posted in BIA, Board of Immigration Appeals | Leave a comment