Tuesday, March 31, 2009

Ndayshimiye: Mixed Motive Can Be Valid Even If Subordinate To Other Motives

Ndayshimiye v. Holder
February 24, 2009
No. 07-3201

Judges Scirica, Fuentes, and Hardiman. Decision by Judge Fuentes.

IJ Mirlande Tadal. For Mr. Ndayshimiye, Kelly A. Carrero (argued), Matthew V. Barter, and William J. Hine of Jones Day (NY, NY). For amicus curiae, Richard D. Steel and Deborah E. Anker of the Harvard Immigration and Refugee Clinical Program (Cambridge, MA). For the government, Julie M. Iversen (argued), Allen W. Hausman, Margaret J. Perry, and Jeffrey S. Bucholt of OIL.

The BIA issued a precedential decision about analyzing mixed motives for persecution that qualifies for asylum protection. The Third Circuit held that the BIA made a legal mistake but that Mr. Ndayshimiye nevertheless loses.

The issue was whether he and his family were afraid of persecution that was motivated by their imputed nationality or social group. Under the REAL ID Act, there is a mixed-motives standard in INA 208(b)(1)(B)(i) that requires showing that the protected ground was or will be at least one central reason for persecution. The IJ denied asylum and the BIA affirmed that in Matter of J-B-N-, 24 I&N Dec. 208 (BIA 2007). The BIA reasoned that requiring one central reason to be the protected ground does not need to be the single dominant reason. Strangely, though, the BIA held that to be one central reason, it had to be more than incidental, tangential, superficial, or subordinate to another motive.

The Third Circuit concluded that the requirement that the motive be "subordinate" to other motives was not a valid construction of the statute. Unfortunately, the Third Circuit then held that the rest of the requirements were rational. It is possible, though, that lawyers should still challenge the BIA's controversial interpretation of the statute.

Ultimately, the Third Circuit held that the BIA surely used the wrong standard but then held that they would have lost anyone under the appropriate standard and therefore they should be deported.

Moran-Hernandez (Not Precedential): Cancellation of Removal Must Consider Unusual Tropical Storm Damage

Moran-Hernandez v. Mukasey
Nos. 07-2323 & 07-3560
Not Precedential
October 1, 2008

Judges Barry, Smith, and Hardiman. Per Curiam decision.

IJ Annie S. Garcy granted cancellation of removal for someone who had two children and lived with the father of the two children in New Jersey. Public education in Guatemala would be very difficult, especially in rural areas for children above sixth grade. The woman assumed the operation of a landscaping business after the government deported the two children's father.

Although the IJ granted cancellation of removal, ICE appealed and the BIA overturned IJ Garcy's grant. However, the BIA failed to review the entire record before deciding to overturn IJ Garcy's decision. It also did not consider all of the factor set forth in Matter of Recinas. The BIA failed to take account of how Guatemala was devastated by Tropical Storm Stan in 2005 so there would be no way to house or feed the two children there. The BIA also erred by ignoring how a severely lower standard of living caused by an extremely unusual event could affect the children.

The Third Circuit overturned the BIA's decision and reinstated IJ Garcy's grant of cancellation of removal. IJ Garcy was right all along, but the BIA erred in its decision.

For Ms. Moran-Hernandez was Maria I. Thomas of Thomas & Thomas in Princeton, NJ. For the government were Francis W. Fraser, Nancy E. Friedman, and Justin R. Markel of OIL in the Justice Department.

Monday, March 09, 2009


February 20, 2009

Judge Sloviter, Barry, and visiting Sixth Circuit Judge Siler, Jr. Decision by Judge Barry. For Mr. Ponta-Garcia, Michael P. DiRaimondo of DiRaimondo & Masi of Melville, NY. For the government, Andrew Oliveira of OIL.

Mr. Ponta-Garcia came to the United States as an LPR in 1978. In 1983, he came to the US as a visitor and then overstayed his visa. In 1987, an IJ entered a removal order. It is unclear whether that removal order was invalidated.

In 1995, the immigration authorities issued a warrant to arrest Mr. Ponta-Garcia for the stated purpose of starting new removal proceedings.

In April 2007, ICE informed Mr. Ponta-Garcia that it changed its mind and intended to reinstate the removal order from 1987. Under the IRRIRA law in 1996, the goverment can reinstate a removal order against anyone who reenters the U.S. illegally after being removed or after departing voluntarily under a removal order. In reinstatement, you are not entitled to see an immigration judge. The Third Circuit first ruled that the regulation for reinstating a removal order was valid.

But ICE made a different mistake -- it did not recognize that anyone facing reinstatement of removal has the right to prove that the original removal order was invalidated and the right to prove his most recent entry was with permission (not an illegal entry).

Because ICE did not develop the facts about whether the original removal order was invalidated and whether the most recent entry was with permission, the Third Circuit vacated ICE's order of reinstatement and remanded the case to ICE for further proceedings. The Third Circuit noted that there was some evidence that the original order had been invalidated and that the most recent entry was with permission.

Robinson: rehearing en banc denied

Robinson v. Napolitano is the Third Circuit case in which the court ruled that the surviving spouse of a United States citizen is no longer an immediate relative once the citizen-spouse dies (and therefore can only obtain legal permanent residence by meeting specific requirements for widows and widowers of United States citizens, which Ms. Robinson did not).

According to Surviving Spouses Against Deportation, which has information at www.ssad.org, on March 3, 2009, the Third Circuit denied Ms. Robinson's request for en banc review. The Third Circuit explained that none of the three judges who decided the case through a three-judge panel voted for en banc review. In addition, there was not a majority of judges of the overall Third Circuit who wanted en banc review.

The Surviving Spouses Against Deportation web site announces that they will file a petition for certiorari with the United States Supreme Court within the next 90 days. They say the odds that the Supreme Court will hear the case is 4% -- it doesn't exactly work like that, where someone can figure out the odds right at the start.

But let's just say that the vast majority of cases that seek Supreme Court review are denied. Because some other circuits have a different view, the odds of review might be higher in this case rather than the usual case seeking review, but the odds unfortunately might still be slim.

Monday, March 02, 2009

Hoxha: BIA Must Address All Issues In The Notice Of Appeal

Hoxha v. Holder
No. 07-2940
March 2, 2009

Judges Scirica, McKee, and Smith. Opinion by Judge Smith. Douglas A. Grannan of the Law Office of Greg Prosmushkin of Philadelphia for the Hoxhas. Monica G. Antoun and Paul F. Stone of OIL for the government.

The BIA is required to address all issues adequately mentioned in the Notice of Appeal to the BIA, even if the person filing the appeal does not provide additional explanation for those points in the full BIA appeal brief. The Third Circuit views the appeal brief as an optional filing. Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004). The regulation that demands a notice of appeal is 8 CFR 1003.3. Its wording sets forth a demand for a detailed notice of appeal and tends to indicate the full appeal brief is optional rather than mandatory. The EOIR-26 form suggests failing to file a brief does not trigger automatic forfeiture of the appeal, either.

Therefore, the BIA must analyze all issues fairly raised in the Notice of Appeal and in any full BIA appeal brief, even if an issue might appear in only one of those filings and not the other. This is a circuit split with the Sixth Circuit in Hassan v. Gonzales, 402 F.3d 429, 433 n.5 (6th Cir. 2005) and the Ninth Circuit in Abebe v. Mukasey, 2009 WL 50120 at *3 (9th Cir. 2009) (en banc).

The Third Circuit has the better argument because it focuses on the specific language in the unusual world of immigration administrative appeals. In this case, the BIA ignored an issue raised in the Notice of Appeal so the Third Circuit overturned the BIA and remanded for further proceedings on the issue the BIA failed to address the first time around.

Lin-Zheng: Stopping Presumed Persecution For Spouse or Partner of Coercive Family Planning Policies

Lin-Zheng v. Holder
No. 07-2135
En Banc
February 19, 2009

Judges Scirica, Sloviter, McKee, Rendell, Barry, Ambro, Fuentes, Smith Fisher, Chagares, Jordan, Hardiman, Weis, and Garth. Opinion by Judge McKee. David X. Feng of Feng & Associates of New York, NY for Mr. Lin-Zheng. Thomas H. Dupree, Jr. (DOJ), Paul Fiorino, Sada Manickam, and Song E. Park (OIL) for the government. Nancy Winkelman of Schnader Harrison Segal & Lewis of Philadelphia for amicus curiae.

The Third Circuit had held that the BIA's view in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc) was appropriate that a husband may qualify for asylum based on his wife's well-founded fear of persecution under a coercive population control policy. Here, the Third Circuit changes its mind and agrees with the Second Circuit's decision in Lin v. DOJ, 494 F.3d 296 (2d Cir. 2007) that there should not be automatic refugee status to spouses or unmarried partners of people forcibly subjected to coercive family planning measures.

The Third Circuit focused on the common meaning given to the word "person" when it is used in section 601(a) of IRRIRA. The BIA held that the failure to mention spouses did not preclude extending protection to spouses. The Third Circuit disagrees, believing that including spouses would violate the clear meaning of IRRIRA. The Third Circuit did not discuss international law principles regarding refugee status, which was likely the purpose of IRRIRA's definition of refugee protections. We'll have to see whether the Third Circuit revisits this to consider international law definitions and principles.

In the meantime, someone can still succeed through derivative asylum or by showing actual persecution for resisting a coercive family planning policy or a well-founded fear of future persection for doing so. So it is still possible to succeed with a few additional steps.

Liu: Late Motion To Reopen Allowed Only For Changed Country Conditions, Not Personal Circumstances

Liu v. Holder
February 4, 2009

Judges Slovier, Greenberg, and District Judge Irenas. Opinion by Judge Greenberg. Gary Yerman of Yerman & Associates in New York, NY repesented Ms. Liu. Jeffrey S. Bucholtz (DOJ Civil Division), Alison Marie Igoe, Edward J. Duffy, and Paul F. Stone (OIL) represented the government.

Ms. Liu lost her asylum claim before IJ Alberto J. Riefkohl. She also lost her BIA appeal. She then filed a motion to reopen that the BIA and the Third Circuit viewed as being based on changed personal circumstances because she focused on how she just had two children.

The Third Circuit noted that the statute that allows an additional asylum application does not make clear whether the changed circumstances can include changed personal circumstances. However, the Third Circuit's view is that it would be harmonious to other statutes to allow a motion to reopen more than 90 days after the original decision based only on changed country conditions. The Third Circuit therefore stands with the Second Circuit's decision in Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008) on this controversial issue.

Although the Third Circuit explains the desire to prohibit gaming of the system and deference to the BIA's construction of the immigration statutes, the Third Circuit did not discuss international law bases for the United States asylum law. We'll have to see how this controversial issue develops in other circuits.