Haxhiu v. Mukasey, Asylum applicant anticorruption activities a form of political speech, whistleblower must expose corruption publicly 519 F.3d 685

Haxhiu v. Mukasey (7th Cir. 2008)(Flaum)
Oral Argument | Full Text

Whether asylum applicant’s anticorruption activities constituted an expression of a political opinion? To receive asylum protection on account of a political opinion, a whistleblower must have sought a political result by going outside of the scope of his official duties and the chain of command. A whistleblower must seek a political result by exposing corruption publicly. That conduct within the scope of one’s governmental duties–such as a prosecutor expressing his view within the chain of command and pursuing an investigation–cannot alone constitute political expression. Must establish that the government was either complicit in persecution or unwilling or unable to protect from private parties who persecuted.

The noncitizen, a native and citizen of Albania, applied for asylum and other relief, alleging that he had been persecuted on account of his political opposition to government corruption. The IJ found him credible but denied relief based on a finding that the alien’s persecution was not on account of his political opinion and that state actors were not responsible for the harm alleged. Here, the alien had worked for the government and was ultimately fired because of his efforts to resist government corruption. After he was fired, he pursued his opposition of government corruption in the press. His son was beaten badly and his daughter was the victim of an attempted kidnapping. He and his family fled to the United States. The primary issue before the court was whether the harm suffered by the alien was on account of his political opinion and whether the Albanian government was directly or indirectly responsible for his treatment. The court concluded that the alien’s anti-corruption efforts were an expression of a political opinion and there was ample evidence in the record that agents of the Albanian government persecuted him in tandem with private actors.

Followed by: Darwich v. Holder, 330 Fed. Appx. 596, 2009 U.S. App. LEXIS 11308 (7th Cir. 2009) LexisNexis Headnotes HN3

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Matter of MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) conviction for possession or use of drug paraphernalia

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia. (2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”

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Lawyer Michael D. Baker – Chicago, IL Attorney – Justia Lawyer Directory

Michael D. Baker – Chicago, IL Attorney – mike-baker.com

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Michael D. Baker (mikebakerlaw) on Twitter

Attorney Michael Baker, Immigration and Criminal defense lawyer based in Chicago.

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Attorneys’ fees and costs, Equal Access to Justice Act, EAJA

Potdar v. Holder, No. 06-2441 (10/21/09) Attorneys’ fees and costs, Equal Access to Justice Act, EAJA.

Potdar v. Holder (Ripple)
Oral Argument | Full Text

Petitioner’s motion for attorneys’ fees and costs, arising from exclusion proceedings, is denied as, under the Equal Access to Justice Act, 28 U.S.C. section 2412, the government’s position was justified in substance or in the main.

Petitioners in immigration cases are eligible for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). To be eligible for an award of fees, “a petitioner must show that: (1) he was a prevailing party; (2) the Government’s position was not substantially justified; (3) there existed no special circumstances that would make an award unjust; and (4) he filed a timely and complete application for fees.” Kholyavskiy v. Holder, 561 F.3d 689, 690 (7th Cir. 2009). To be substantially justified, the Government’s position must be “justified in substance or in the main” or “justified to a degree that could satisfy a reasonable person.” The Government meets this burden if: “(1) it had a reasonable basis in truth for the facts alleged, (2) it had a reasonable basis in law for the theory propounded, and (3) there was a reasonable connection between the facts alleged and the theory propounded.” Kholyavskiy, 561 F.3d at 691 (citing Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). The “EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government,” Zapon v. United States Dep’t of Justice, 53 F.3d 283, 284 (9th Cir. 1995); “[t]he outcome of a case is not conclusive evidence of the justification for the government’s position,” United States v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.2000). More specific to the immigration context, a determination that part of the BIA’s decision was not supported “by substantial evidence does not foreclose the possibility that the position was substantially justified.” Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Rather, we must consider “the factual and legal support for the government’s position throughout the entire proceeding.” Hallmark Constr. Co., 200 F.3d at 1080.

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