Monday, May 26, 2014

Not Erring on the Side of Caution: Court Uses Country-Conditions-Report Ambiguity to Shut Down a Popular Basis for Asylum Relief

by Anish Vashistha

In proceedings before any of the various immigration courts nationwide, asylum seekers may establish the requisite “well-founded” fear of return to their respective home countries by showing that they have been persecuted there in the past. Once past persecution has been proven, a presumption exists that the asylum seeker will be persecuted in the future, but such presumption is rebuttable, meaning the U.S. Department of Homeland Security (“DHS”) may persuade the relevant immigration judge that conditions in the asylum seeker’s home country have changed significantly enough that the s/he no longer has a well-founded fear of future persecution.

Oftentimes overcoming the presumption can be difficult for DHS if the asylum seeker reports that the threat(s) s/he fears still exist and the relevant published annual country-conditions reports are contradictory or otherwise unclear as to whether such is the case. This ambiguity frequently causes an immigration judge to err on the side of caution and find that the presumption of fear has not been rebutted by DHS. For example, Indian Sikhs, who comprise a religious minority within that country and who have had a history of being persecuted there on account of an independence movement that was popular in the 1980s and 1990s but not so much currently, continued to receive asylum in the U.S. for decades after the movement’s dying down because of their actual or perceived participation in such movement years earlier.

However, the reliance by immigration judges on ambiguity, at least in annual country-conditions reports relating to India’s Sikhs, to find that the presumption of future persecution has not been rebutted may no longer be acceptable. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, held last week in Singh v. Holder wherein the Ninth Circuit held that the presence of ambiguity in such reports does not automatically favor the asylum seeker. Instead, the Ninth Circuit clarified that a balancing of the contradictions must be completed in a manner that relates individually to the asylum seeker.

For the specific asylum seeker in the case, the Ninth Circuit found that the relevant immigration judge and thereafter the BIA conducted the necessary balancing in an appropriate way and upheld the denial of the application. The case may mark the end of asylum applications based on the Sikh independence movement in India, requiring a different approach to resolving the immigration matters of those effected.

Sunday, May 18, 2014

The Ninth Circuit Continues Issuing Decisions That Change How Asylum Applications are Adjudicated

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued a tremendously pro-foreign-national decision recently in Chandra v. Holder wherein the Ninth Circuit held that an otherwise untimely motion to reopen one's removal proceedings could nevertheless be considered on its merits based on the changed-country-conditions asylum-related exception even if the alleged change in country conditions is related to a change in the foreign national's personal circumstances.

The case concerned an Indonesian man who after being ordered removed in 2005 converted to Christianity and argued about four years later that his conversion combined with the increase in persecution of Christians in Indonesia rendered timely his 2009 motion to reopen. Such motions to reopen previously were routinely denied by the BIA on the basis that a change in a foreign national's personal circumstances, regardless of whatever changes that may have occurred in that foreign national's home country, may not render that foreign national eligible to apply for asylum if s/he has a final order of removal and did not raise the application within ninety days of such order. In issuing its decision though, the Ninth Circuit pointed out that such a motion to reopen will not be meritorious if it relies solely on a change in a foreign national's personal circumstances without showing any relevant changes within that foreign national's home country. It will be interesting to see whether this change results in more opportunities for legitimate claims to be raised or more chances for foreign nationals to prolong their stay in the U.S. based on orchestrated claims.

All of the Ninth Circuit's other immigration-related published decisions within the last couple of weeks also concerned asylum-related issues. For instance, in Zhi v. Holder, the Ninth Circuit clarified that the BIA may not rely on a reconciled discrepancy to make an adverse credibility determination regarding an asylum application.

Moreover, in Pirir-Boc v. Holder, yet another decision concerning social-group recognition of those who oppose gang recruitment in the Central-American countries of Guatemala, El Salvador, and Honduras, the Ninth Circuit remanded a case because the BIA did not conduct the necessary social-group-recognition analysis when it reversed a Guatemalan man's grant of asylum.

Finally, in Konou v. Holder, the Ninth Circuit held that a sentence enhancement could be taken into account in determining whether an asylum applicant's conviction that is otherwise found not to be for an "Aggravated Felony," which could bar him/her from asylum and withholding of removal, could be found to be for a "Particularly Serious Crime," which also would bar him/her from asylum and withholding of removal. The case, which concerned a homosexual man from the Marshall Islands, is also interesting because it upheld a denial of relief under the Convention Against Torture because although homosexuality is against the law in the Marshall Islands, country-conditions-related evidence showed that such law is not enforced there.

The immigration-related cases published by the Ninth Circuit during the last couple of weeks show once again that asylum-related issues in the U.S. are quite complex, and that skilled legal advice is oftentimes necessary to be successful with such an application.

Monday, May 5, 2014

Other than Denial, Few Options Left for Illegal Reentrants and Aggravated Felons

The shift in appropriation by the U.S. Department of Homeland Security ("DHS") of removal-related resources toward those who have severe criminal histories appears to have become reality. This shift as well as other nuances relating to U.S. Immigration Law was discussed yesterday by former Secretary of Homeland Security Janet Napolitano:

NBC News Conference, May 4, 2014

The federal courts have followed this shift as well, and three recent decisions show such a path. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within those same Western States, held in U.S. v. Ruiz-Lopez that a Mexican man could be federally convicted of the crime of illegal reentry, which requires that the defendant's alienage be proven, based on a previous sworn statement alleged to have been taken by an Immigration officer. While such statements are commonly used in removal proceedings before an immigration judge, it was unclear whether they could be used conclusively to prove alienage in federal criminal proceedings, which have more restrictive evidentiary rules.

Moreover, in U.S. v. Gomez, a case about which I have previously written, the Ninth Circuit threw out its previous decision but nevertheless held once again that a Mexican man's procedurally defective prior removal did not prejudice him, thereby permitting him to be convicted of illegal reentry. The decision shows that egregious errors in the conducting of removal proceedings may continue to take place without any recourse for the affected foreign national.

Finally, in Ragasa v. Holder, the Ninth Circuit rejected the claim of a Filipino man convicted of attempted promoting of a dangerous drug that he was a U.S. citizen by way of his adoption when he was a minor by two U.S. citizens. The claim was creative in that, for the most part, U.S. Immigration Law treats lawfully adopted children the same as biological children provided certain requirements are met and in that biological children of U.S. citizens are commonly legally U.S. citizens as well regardless of the location of birth. Despite denying the man's citizenship claim, the Ninth Circuit nonetheless granted his petition for review and threw out the man's removal order based on the man's conviction's not being for an aggravated felony.

Therefore, and in yet another example of what many perceive as the twisted nature of U.S. Immigration Law, it appears the best strategy for many individuals convicted of serious crimes is simply to argue that the alleged crimes really are not that serious.