Tuesday, September 29, 2009

Semenov (not precedential): Indiscernable Parts of Transcript Undermine BIA's Overturning IJ's Decision

Semenov v. Holder
Not Precedential
September 28, 2009

Judges Barry, Fisher, and Jordan. Opinion by Judge Fisher.

Overturning the BIA and questioning how the BIA reversed the decision by IJ Walter A. Durling.

IJ Durling noted the expert's testimony in granting withholding of removal under CAT. The transcript is full of indiscernible portions. Amazingly, though, the BIA felt it had enough of a grasp of the transcript despite over 100 notations of indiscernible moments, to overturn IJ Durling's decision. It might have violated the requirement to give a complete transcript of the proceedings under 8 CFR 1240.9.

The Third Circuit lists a large number of cases where there have been problems with indiscernible portions of the transcript. The Third Circuit calls this case yet another occasion of the government breaching its duty to provide a complete and accurate transcript. In this case, there were more than 130 indiscernible notations. Even the parts the Third Circuit could decipher suggest the BIA made a mistake -- it seems like the expert did have the necessary knowledge about how criminal deportees were being treated by the country in question.

There are so many cases about bad transcripts, it raises questions about whether the government is treating individuals in immigration court fairly.

Monday, September 28, 2009

Yan (not precedential): BIA Erred By Not Considering Asylum Evidence Of Political Activites In The US

Yan v. Holder
September 25, 2009
Not Precedential

Judges Sloviter, Stapleton, and Cowen. Per Curiam.

Overturning BIA and IJ Eugene Pugliese.

Someone can seek asylum based on political activities in the United States. For example, the home country's government may be aware of the person's activities and seek to persecute them on account of their political opinion, even though the person mainly expressed those opinions while in the United States. In this case, IJ Pugliese and the BIA did not seem to consider the danger the man might face in China due to their persecution of people with political opinions similar to what he expressed while he was in the United States and which he can try to prove the Chinese government is aware of.

Thursday, September 10, 2009

Xie (not precedential): BIA Used Wrong Standard To Overturn IJ's Factual Findings That Favored The Asylum-Seeker

Xie v. Holder
August 24, 2009
Not Precedential

Judges Chagares and Hardiman with District Judge Garbis. Opinion by Judge Chagares.

Alan M. Strauss of the law office of Stanley H. Wallenstein in New York, NY for Ms. Xie. James A. Hunolt, Sada Manickam, and David Schor (argued) of the Justice Department's OIL for the government.

Where an IJ makes a finding, the BIA should review those factual determinations under the clearly erroneous standard. 8 CFR 1003.1(d)(3). The BIA overturned some of the IJ's factual findings through an improper de novo review rather than under the proper standard. Same with overturning the IJ's factual finding that Ms. Xie was credible.

Wednesday, September 09, 2009

US v. Saint-Preux (not precedential): Upholding Sentence of Immigration Lawyer Who Committed Immigration Fraud

United States v. Jonathan Saint Preux
August 24, 2009
Not Precedential

A criminal law case that touches on an immigration lawyer in New Jersey. Jonathan Saint Preux pled guilty and was sentenced to 57 months of imprisonment for submitting false information documents in violation of 18 USC 1546(a). At one point, Mr. Saint Preux claimed that a co-defendant had forged his signature on over 400 applications, suggesting he did not sign those fraudulent applications.

The case deals with Mr. Saint Preux's failed argument that he deserved a three level reduction for acceptance of responsibility.

Tuesday, September 08, 2009

Iriani (not precedential): IJ Must Address The Issue Of Past Persecution And BIA Cannot Refer To Non-Existing Ruling

Iriani v. Holder
August 25, 2009
Not Precedential

Judges Barry, Smith, Hardiman. Per Curiam decision. Overturning BIA and IJ Rosalind K. Malloy.

IJ Malloy mistakenly failed to rule on whether the asylum-seeker has a fear of future persecution (regardless of whether the person had a fear of past persecution). IJ Malloy did rule that there was no past persecution, but the issue of future persecution is a separate question. The BIA incorrectly ruled that IJ Malloy had addressed the issue of future persecution and the BIA said it agreed with what it imagined IJ Malloy had said without the BIA itself providing any reasoning about future persecution.

The Third Circuit overturned the BIA because IJ Malloy had not ruled on future persecution so the BIA acted improperly by affirming something that IJ Malloy had not ruled on. The Third Circuit noted that it might be possible to prove future persecution based on how the asylum-seeker had received death threats from Muslims in Indonesia and the police were not willing to help them. There is also supporting evidence in an International Religious Freedom Report.

Excellent victory even if the Third Circuit in footnote called the asylum-seeker's brief disorganized and far from a model of clarity.

Monday, September 07, 2009

Ghaziaskar (not precedential): IJ and BIA Erred By Ignoring Country Conditions in Iran for CAT Relief

Ghaziaskar v. Holder
September 3, 2009
Not Precedential

Judges McKee, Smith, Van Antwerpen. Opinion by Judge McKee. Overturning the BIA's denial of deferral of removal under CAT, the Convention Against Torture. Doesn't list which IJ made the initial decision.

CAT prohibits removal if it is more likely than not someone will be tortured by or at the instigation of the government of the home country. The IJ concluded there were enormous gaps by the man who discussed how he feared torture in Iran due to participating in a political radio program or due to his religion.

The IJ and BIA erred by not adequately considering the conditions in Iran. The Third Circuit felt it appropriate to take judicial notice of the fact that current tensions in Iran would exacerbate the record about Iran's human rights. Also, the discrepancies the IJ and BIA focused on improperly ignored the seriousness of his claim. The IJ did not believe the explanation of why the man had two passports, but the Third Circuit concluded that had little to do with the harm he might face if he returns. The IJ and BIA also improperly assumed that every Catholic church in Iran would have the same policy about not offering communion to newcomers who had not yet become a church member that the IJ often sees in Catholic churches in the United States. Also, even if it were against the rules to give communion to a non-Catholic in Catholic Church, it is possible the priest did not realize the newcomer was not Catholic.

Sunday, September 06, 2009

Santhalingam (not precedential): Motion To Reopen For Country Conditions Only Needs Showing "Reasonable Likelihood" Of Success; BIA Ignored Evidence

Santhalingam v. Holder
Not Precedential
September 3, 2009

Judges Ambro, Fisher, and Jordan. Per Curiam. Overturning the BIA in a case initially decided by IJ Annie S. Garcy.

A woman from Sri Lanka applied for asylum and IJ Garcy denied it. The BIA also denied it and the Third Circuit affirmed the denial in 2003.

In 2007, she filed a motion to reopen with the BIA based on changed country conditions, which also requires showing prima facie eligibility for or entitlement to relief. That standard requires showing simply a "reasonable likelihood" of prevailing. The BIA erred by applying a higher standard than appropriate to the motion to reopen or by not adequately considering the evidence.

Briefly, the BIA apparently ignored articles about a surge of persecution from late 2006 onward in Sri Lanka. Even though some level of problems existed before 2006, the BIA ignored evidence that it became much worse after 2006. As far as protection under CAT, the Convention Against Torture, although she ultimately must prove it is more likely than not she would be tortured, to obtain reopening she only needs to show a reasonable likelihood that she will be able to make that proof. The BIA incorrectly required her to show it is more likely than not she will be tortured, rather than that there is a reasonable likelihood she can make that showing.

Saturday, September 05, 2009

Camara: BIA Erred Again -- Threats With Abducting A Family Member Proves Past Persecution

Camara v. Holder
September 4, 2009
Judges Sloviter and Hardiman with District Court Judge Pollak. Opinion by Judge Pollak.

For Ms. Camara, Camille J. Mackler of the Law Office of Theresa Napolitano in New York, NY. For the government, Jeffrey S. Buckholtz, Emily Anne Radford, Patrick J. Glen, and Craig Alan Newell, Jr. (argued).

The BIA erred by ruling that Ms. Camara did not suffer past persecution in a way that was not supported by substantial evidence. The case involves someone who had a family member that was part of the Rally of the Republicans party (the RDR) in the Ivory Coast. Stopped at JFK Airport, Ms. Camara was given a court date in the Elizabeth, New Jersey detention center. The IJ denied her asylum request. The BIA agreed with the IJ and denied asylum.

The focus for obtaining asylum is a well-founded fear of future persecution. Although not the focus, showing past persecution raises a presumption that you have a well-founded fear of future persecution, so it is an important issue to prove.

The BIA erred by ruling that Ms. Camara did not experience past persecution in the Ivory Coast. The BIA wrongly stated that if government officials came to her family's home once, falsely arrested her father, and threatened her family, that mistreatment did not amount to past persecution. Those threats were worse than the mere harassment in Matter of A-E-M, 21 I&N Dec. 1157 (BIA 1998) (phrase that man would be "the next one" where no proof which group painted it was not persecution); Li v. Att'y Gen., 400 F.3d 157 (3d Cir. 2005) (threats without any imprisonment, beating, sterilization, or physical harm might not be past persecution). In contrast, here Ms. Camara's father was abducted and she personally saw it happen.

The Third Circuit said the BIA's mistake is similar to the facts of Konan v. Att'y Gen., 432 F.3d 497 (3d Cir. 2005), a case where the BIA made a different type of mistake. In Konan, the asylum-seeker saw rebels shoot his house and cause a fire in his house, killing his brother and father. Although not the focus of that case, the Third Circuit noted that the attack on the house, killing two relatives, compels a conclusion of past persecution. The government in the Camara appeal made an irrelevant argument -- noting the REAL ID Act changed the wording of the proof needed about the motive of the attacker. In footnote 13, the Third Circuit points out the government's argument is irrelevant -- the point is whether the threats were past persecution, not about the motive of the attackers.