LaGuerre v. Mukasey No. 06-4164 (per curiam)
Oral Argument | Full Text (5/20/08). CAT, domestic violence
Bd. did not err in denying alien's CAT claim and finding that alien's Illinois conviction for domestic violence qualified as "crime of violence" and "aggravated felony" that rendered him deportable under 8 USC sec. 1101(a)(43)(F) and 18 USC sec. 16. Elements of crime supported Bd.'s finding that domestic violence charge involved use of physical force by alien. Moreover, alien failed to show in CAT claim that it was more likely than not that he would be tortured if removed to Haiti.
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Soumare v. Mukasey No. 07-2502 Asylum (May 8, 2008)
Petition for review of a final order of removal is denied where: 1) the
IJ properly found that petitioner's testimony was not credible to
support his claim for asylum; and 2) the petitioner failed to
corroborate his story with any evidence.
Before an IJ may deny a claim for insufficient corroboration, the IJ
must (1) make an explicit credibility finding; (2) explain why it is
reasonable to expect additional corroboration; and (3) explain why the
alien’s explanation for not producing that corroboration is inadequate.
See Tandia v. Gonzales, 487 F.3d 1048, 1054- 55 (7th Cir. 2007);
Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006). “[T]he
importance of corroboration depends in part on the degree of specificity
and detail in a petitioner’s story.” Gontcharova v. Ashcroft, 384 F.3d
873, 877 (7th Cir. 2004).
Where the testimony of an asylum applicant contradicted his asylum application, it was not error to deny asylum.
"Based on the record, we believe that substantial evidence supports the IJ's finding that Soumare did not testify credibly. Soumare's testimony was not detailed, and it contradicted his asylum applications. See Capric, 355 F.3d at 1085 ('A credibility analysis assesses the applicant's claim only for internal consistency, detail, and plausibility, . . . .'). Soumare testified that he worked for RPG for six years, but could not recall what the letters RPG stood for, nor could he provide an approximation of how many people he recruited for RPG or the names of any individuals he recruited into the organization. Soumare could not definitively state when his father's store was vandalized or whether he or his brother managed the store at the time of the vandalism-even though Soumare claimed that he and his family were targeted by the Guinean regime because of suspicions that the income from the family business was being redirected to the rebels."
Soumare v.Mukasey (Kanne)
Oral Argument|Full TextSoumare v. Mukasey
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Huang v. Mukasey, No. 07-2074 (May 8, 2008) CAT; credibility
Huang v. Mukasey (Flaum)
Oral Argument|Full Text Huang v. Mukasey
Petition for review of an order of removal is denied where: 1)
petitioners' asylum applications were untimely filed; 2) the court
cannot consider the asylum claim since petitioners failed to exhaust
their administrative remedies; and 3) petitioners did not present
credible evidence as to their claim under the Convection Against
Torture.
Where the testimony of aliens seeking withholding of removal under the Convention against Torture was incredible, withholding was properly denied.
"We are satisfied that there was a substantial basis for the IJ to conclude that the petitioners were not credible. For instance, Huang and Dong were not fully able to explain why they would each pay $50,000 to get smuggled into the U.S., but why they could not afford (or find resources to pay) the $370 fine. Some support for this inconsistency can be found in Huang's testimony, where she stated that greater economic opportunity was part of her motivation for coming to the U.S. But there are other, more telling inconsistencies as well. The abortion certificate that Huang presented as evidence for her claim, for example, is generally only given to individuals who undergo a voluntary abortion, so that they may give it to their employer to get leave to rest. COUNTRY REPORT at 22-23.
Huang did not claim to have a voluntary abortion, and, perhaps more significantly, she was self-employed. The fine associated with this procedure stated that it was for 'early birth without marriage,' but there was no birth. In general, petitioners have not presented an adequate explanation for why they would be required to pay a social compensation fee when no child was born. Also, it was unclear why Dong would be summoned to the Public Security Bureau when Huang was the one who became pregnant and who was specifically named in the notice of the fine. With respect to Dong's time in prison, it was curious that he omitted any claims of torture in his initial asylum application, and offered as his reason that he was not asked about it. And the detention notice that he claims he kept with him in jail for the entire year is, according to evidence in the record, never given to the individual who is detained. The timing of certain events also raised suspicion with respect to the veracity of petitioners' story. Huang's pregnancy and the couple's cultural marriage were discovered by Family Planning officials-in a different village-rather swiftly.
This was in spite of the fact that Huang saw a private doctor, not a government doctor. Additionally, while it may be entirely plausible, it is a little difficult to imagine that Dong would be arrested only thirty minutes after having returned to town from ten days of hiding.
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Chatta v. Mukasey, No. 07-2179 (4/21/08). Asylum
Chatta v. Mukasey (EVANS)
Oral Argument|Full Text Chatta v. Mukasey
Chatta v. Mukasey, No. 07-2179 (4/21/08). Petition for Review, Order of Bd. of Immigration Appeals. Petition denied. (Evans)
Petition for review of a denial of an application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) substantial evidence supported the IJ's determination that petition was not credible; 2) petitioner did not show that the government perpetuated or condoned the alleged persecution; and 3) petitioner did not show that he would be subject to torture.
Record contained sufficient evidence to support IJ's denial of asylum request by alien (native of Pakistan) where alien alleged that he feared persecution based on his religion. Alien's allegations of persecution were not credible given his contrary statements in his airport interview that he had no reservations about returning to Pakistan. Moreover, alien failed to show that Pakistani govt. was unable or unwilling to protect him from acts of private citizen who, according to alien, had harmed him in past
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Ali v. Mukasey, No. 07-1970 April 4, 2008 'Moral turpitude' offense
Ali v. Mukasey (EASTERBROOK)
Oral Argument|Full Text Ali v. Mukasey
Petition for review of a finding that a resident alien's criminal offense was one of moral turpitude such that a waiver of ineligibility for admission was unavailable is denied where: 1) when deciding how to classify convictions under criteria that go beyond the criminal charge, such as the amount of the victim's loss, or whether the crime is one of moral turpitude, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction; and 2) substantial evidence supports the IJ's decision (which the BIA joined) that petitioner's crime entailed concealment and deceit, thus was a crime of moral turpitude.
Where a permanent resident alien is convicted for conspiracy "to commit any offense against the United States, or to defraud the United States," which he did by selling firearms without a license or required paperwork to people not authorized to own them, the IJ correctly classified the offense as "involving moral turpitude;" and, the agency did not err when it used his presentence report to make the moral turpitude classification.
"The Board was on stronger ground, however, in treating Ali's offense as a species of fraud, which has long been seen as a crime of moral turpitude. See Jordan, 341 U.S. at 227-28, 232; Palmer v. INS, 4 F.3d 482, 485 n.6 (7th Cir. 1993); Matter of Kochlani, 24 I.&N. Dec. 128, 130-31 (2007) (reaffirming the Board's precedents on this issue). Ali does not deny that, if his conviction is for fraud, then he is ineligible for discretionary relief. But he insists that unlicensed dealing in firearms does not entail fraud. If his conviction were under 18 U.S.C. §924(a)(1)(D), as he supposes, Ali might have a point-Bryan v. United States, 524 U.S. 184 (1998), on which the agency's brief relies, has nothing to do with moral turpitude-but the actual offense of conviction is 18 U.S.C. §371. That crime may be committed in either of two ways: conspiracy to commit some other federal crime, or conspiracy to defraud the United States. The IJ and Board concluded that Ali's violation of §371 entailed fraud (implying that the subsection of §924 underlying the crime was §924(a)(1)(A)). And with good reason. The judgment of conviction describes the crime as '[c]onspiracy to defraud the United States.' The presentence report adds: 'it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy'. The presentence report also stated that Ali and his confederates sold the guns to someone who, they believed, would resell them to known thugs (members of the Latin Kings street gang) in exchange for cocaine. ... "...[W]e now conclude that when deciding how to classify convictions under criteria that go beyond the criminal charge-such as the amount of the victim's loss, or whether the crime is one of 'moral turpitude', the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction. Because it resolves a disagreement within the circuit, this opinion has been circulated to all active judges under Circuit Rule 40(e). No judge favored a hearing en banc.
"Section 1229a(c)(3)(B) does not include presentence reports among the documents that the agency may use to determine what crime Ali committed. See Conteh, 461 F.3d at 58-59. That is not, however, how the agency used the report. The judgment of conviction itself contains what is required to that end (the crime is conspiracy to defraud the United States, in violation of §371). The agency used the presentence report to ensure that the judgment was not a mistake (in other words, to ensure that there really was deceit, rather than just a conspiracy to violate a record-keeping law) and to make the moral turpitude classification, a matter that stands apart from the elements of the offense."
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Irasoc v. Mukasey; April 3, 2008 (Asylum, religious persecution)
Irasoc v. Mukasey No. 07-2406 (EVANS)
Oral Argument|Full Text Irasoc v. Mukasey
Petition for review of a denial of withholding of removal is granted where the IJ employed an incorrect legal standard because he required a showing of serious injuries when denying petitioner's claim of past persecution.
The IJ also held that Irasoc failed to meet his burden of proof with respect to withholding of removal. He reasoned that Irasoc had openly practiced his religion for most of his adult life and proselytized throughout Romania without “great difficulty.” Further, he said that religious freedom has “flourished” in Romania since the overthrow of the Communist government; the Romanian Pentecostal Church itself has over 30,000 members. The IJ concluded that the July 2002 incident was not past persecution because it was a single episode of mistreatment during which Irasoc was not “serious harmed.” Separately, the IJ determined that Irasoc had failed to establish a “more likely than not” fear of future persecution.
To establish eligibility for withholding of removal, an applicant must show a “clear probability” of persecution on account of his religion, race, or nationality. 8 U.S.C. § 1231(b)(3)(A); Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007). The applicant must demonstrate either that he suffered past persecution (which creates a presumption of future persecution) or, in the absence of such evidence, that it is more likely than not that he would face future persecution in the country to which he would be returned. Binrashed, 502 F.3d at 670-71; Tariq, 505 F.3d at 656-57. If the applicant demonstrates past persecution,the burden shifts to the government to rebut the presumption that the applicant would endure future persecution if removed. Binrashed, 502 F.3d at 670-71.
Here, the IJ applied an incorrect legal standard in determining that Irasoc did not suffer past persecution from the genital beatings. In particular, the IJ found that Irasoc had failed to establish that he was “seriously harmed.” Yet we have reversed the BIA for requiring that a petitioner suffer “serious injuries” as a prerequisite to a finding of past persecution. Asani, 154 F.3d at 722-24. We have, instead, held that past persecution is defined only as “punishment” or “the infliction of harm” adminis- tered on account of nationality, religion, race, group membership, or political opinion. Id. at 723, 724. And we have, on multiple occasions, determined that past persecution “need not necessarily threaten the petitioner’s life or freedom.” Id. at 723; see Tarraf v. Gonzales, 495 F.3d 525, 534-35 (7th Cir. 2007) (“Physical abuse causing serious injuries is not the sine qua non of perse- cution.”). In determining whether an incident constitutes past persecution, we do not simply evaluate the applicant’s claim “against a generic checklist.” Tarraf, 495 F.3d at 535. While the frequency and intensity of the episode(s) are variables in the analysis, even a single incident can reflect past persecution as long as the specifics reveal the severity of the particular situation. Id.; Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006) (injury must be considered alongside specific details of incident); Dandan, 339 F.3d at 573 (number of times applicant subjected to detention or abuse, and details of abuse, is relevant to analysis of claim).
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Desai v. Mukasey No. 07-1831 March 28, 2008. (FLAUM, Circuit Judge)
Argument | Full Text No. 07-1831 Desai v. Mukasey
Petition for review of a finding of removability is denied where a state conviction for the delivery of a look-alike drug was a crime with a relation to a federal controlled substance sufficient to render petitioner a removable alien.
"On March 6, 2002, Desai was charged with Unlawful Delivery of a Look-Alike Substance in violation of Illinois law, 720 ILCS 570/404(b). He pled guilty to this class 3 felony and received probation.
The BIA correctly determined that the phrase “relating to” is intended to have a broadening effect. Given this understanding of what the phrase “relating to” means, we must apply it to the Illinois Controlled Substances Act, 720 ILL. COMP. STAT. 570/102(y), which defines a “Look-Alike Substance” as follows: a substance, other than a controlled substance which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristics of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance.
This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did—by distributing something that would lead one to believe it contained Psilocybin—brings it into association with a federal controlled substance.
We have recently held that possessing “a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used.” Escobar Barraza v. Mukasey, ___ F.3d ___, No. 07-2502, slip op. at 6 (7th Cir. Mar. 13, 2008) (emphasis added). It is the fact that there is a relation between the pipe and the controlled substance that justifies making the possession of the pipe illegal. So too here, it is the fact that there is a relation between the Look-Alike and the controlled substance that justifies making the distribution of the Look-Alike illegal. To put it more bluntly, the idea of distributing a “Psilocybin Look- Alike” would not even exist as a legal (or linguistic) concept without its connection to, or relationship with, Psilocybin. The simulacrum and the thing itself are always connected.
So our task is simply to examine whether the state law is one relating to a federal controlled substance. This of course does not give states free rein to define their criminal laws in a manner that would allow them to effectively usurp the federal government’s authority to determine who is permitted to enter and live in this country. If a state decides to outlaw the distribution of jelly beans, then it would have no effect on one’s immigration status to deal jelly beans, because it is not related to a controlled substance listed in the federal CSA. But if a state, like Illinois, decides to outlaw the distribution of a substance that is purported to be and would lead a reasonable person to believe it to be “shrooms,” we have explained why there is enough of a relation to the federal controlled substance to warrant removal from the United States for violating the law."
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07-1097 Haxhui v. Mukasey: Asylum; persecution
Haxhui v. Mukasey No. 07-1097 March 19, 2008 (Flaum, J.)
Opinion | Full Text Haxhui v. Mukasey
Where an asylum seeker suffered persecution for anti-corruption activities in Albania, it was error to deny him asylum.
"Haxhiu's military duties are no obstacle to his asylum claim because his anti-corruption activities persisted beyond his employment with the Albanian Army. See Musabelliu, 442 F.3d at 996; Pavlyk, 469 F.3d at 1089. He approached the press after his termination-and suffered persecution for doing so. The threats to his family, realized at least with respect to his son (the cause of his daughter's harm is unknown), came about because of his attempt to engage in 'classic political activit[y].' See Pavlyk, 469 F.3d at 1089; see also Musabelliu, 442 F.3d at 995 (providing as an example of political speech that may attract persecution 'someone who writes an op-ed piece or otherwise urges the people to rid themselves of corrupt officials'). Indeed, this round of threats specifically cited Haxhiu's public speech as the impetus for harm to him and his family. Thus, it was premature for the IJ to conclude his analysis at this stage. And it is not decisive that the corruption of which Haxhiu complained did not pervade every level of the Albanian government; a political opinion in opposition to corruption carries no such requirement. See generally Pavlyk, 469 F.3d at 1089; Musabelliu, 442 F.3d at 995-96; Marquez, 105 F.3d at 381."
Petition Granted.
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Escobar-Barraza v. Mukasey No. 07-2502 March 13, 2008 (EASTERBROOK)
Oral Argument | Full Text Escobar-Barraza v. Mukasey, No. 07-2502
Petition for review of a determination of inadmissibility is granted where, although the petitioner was inadmissible, he qualified for a waiver under 8 U.S.C. section 1182(h) since his conviction for possession of drug paraphernalia related to a single offense of simple possession of 30 grams or less of marijuana.
"Possessing a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used, and that statute speaks of a crime "relating to a controlled substance (as defined in section 802 of title 21)". If possession of drug paraphernalia relates to the controlled substance for the purpose of § 1182(a), why not for the purpose of § 1182(h)? The Board's observation that a conviction for possessing paraphernalia differs from a conviction for possessing marijuana is true, but § 1182(h) is not limited to a conviction for possessing less than 30 grams of marijuana. The phrase is: "such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana" (emphasis added). The Board's understanding deprives the italicized phrase of any function, treating "relates to" as if it were "is". Neither the Board's opinion nor the brief and argument by the Department of Justice has suggested what "relates to" means, or how that phrase can bring a paraphernalia conviction within § 1182(a)(2)(A)(i)(II) but not § 1182(h). Consider someone who is arrested while smoking marijuana from a pot pipe at a concert. In most states, that's three crimes: possessing marijuana, possessing drug paraphernalia, and using drugs in a public place. If the state obtains a conviction for possessing marijuana, then § 1182(h) applies if the alien had 30 grams or less. (A 6-ounce (170 gram) can of loose tobacco, see Top Tobacco, L.P. v. North Atlantic Operating Co., 509 F.3d 380 (7th Cir. 2007), is sold as enough for 200 cigarettes; this implies that 30 grams of marijuana is considerably more than one person could smoke at a concert.) Likewise, we should suppose, if the prosecutor charges the alien with smoking pot in public, that conviction "relates to" the marijuana being smoked. Section 1182(h) speaks of a conviction that relates to an "offense" of possessing marijuana; an "offense" may or may not lead to a "conviction" for that possession. That's how a conviction for smoking pot in public relates to the offense of possessing marijuana. And it is hard to see why things should be different if the prosecutor charges the alien with possessing paraphernalia to smoke the weed. Not even Thomas Reed Powell--who famously defined the legal mind as one that can think of something that is inextricably connected to something else without thinking about what it is connected to--could miss the fact that a pot pipe is related to the pot that it is used to smoke.
So there is no logical problem in treating a pot pipe as related to marijuana, whether or not the pipe and the marijuana are found together in a pouch.
Pipes, roach clips, and other paraphernalia designed for use with personal-possession quantities of marijuana come within § 1182(h) because the paraphernalia relates to the drug, and the implied quantity is under 30 grams. Scales, bagging gear, trays and lamps for growing whole plants, and other apparatus for use with larger quantities or distribution do not relate to "simple possession" and so fall outside the waiver. Drawing the line will be difficult in some cases but is easy in Escobar's. His conviction for possessing one pot pipe "relates to a single offense of simple possession of 30 grams or less of marijuana". He is therefore eligible for consideration under § 1182(h)."
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US v. De Horta Garcia, No. 07-2060 Removal; discretionary waiver
US v. De Horta Garcia No. 07-2502 No. 07-2060 March 13, 2008. (BAUER)
Oral Argument | Full Text No. 07-2060: US v. De Horta Garcia
Conviction for illegal re-entry is affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where: 1) defendant is barred from a collateral attack on his deportation order since the alleged violation did not make the deportation order fundamentally unfair; and 2) relief under INA section 212(c) is not available to any alien whose removal proceeding began after repeal except those who affirmatively abandoned rights or admitted guilt in reliance on section 212(c) relief, and defendant did not demonstrate such affirmative reliance.
The AEDPA's bar against discretionary waivers applies retroactively to aliens who offended before its passage, but were convicted after its passage.
"De Horta Garcia notes, however, that other circuits have taken alternative approaches to the reliance question. First, some circuits have applied St. Cyr to aliens who did not plead guilty or concede deportability before enactment, but did take some affirmative action in their prosecution that evidenced reliance on § 212(c) before enactment. E.g., Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004); Ponnapula v. Ashcroft, 373 F.3d 480, 494-96 (3d. Cir. 2004). Second, two circuits, the Third and the Tenth have criticized the majority of circuits for requiring a showing of actual detrimental reliance and have only required objectively reasonable reliance. Id. at 489-90; Hem v. Maurer, 458 F.3d 1185, 1197 (10th Cir. 2006). The Fourth Circuit has gone further and not required a showing of reliance at all, reasoning, in part, that it is always reasonable to rely on governing law.
Olatunji v. Ashcroft, 387 F.3d 383, 389-96 (4th Cir. 2004). De Horta Garcia attempts to rely on these alternative approaches, but his arguments are far too cursory to reach the compelling reason we require before revisiting circuit precedent. See Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)."
Affirmed.
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Gao v. Mukasey, Immigration Asylum; motion to reopen; equitable
tolling March 11, 2008
Gao v. Mukasey No. 06-4431 March 11, 2008 (POSNER)
Oral Argument | Full Text No. 06-1931: Gao v. Mukasey
Where an asylum applicant waited 75 days to file an untimely motion to reopen, equitable tolling does not excuse the lengthy delay.
"The petition was filed on the 106th day, which was the 75th or 76th day after the petitioner discovered that he had a ground for filing a petition to reopen. The preparation of such a petition does not require an elaborate investigation. All that is required is that the petitioner submit an affidavit explaining (1)(a) what his former counsel was hired to do and (b) how he failed, (2) affirming that the petitioner has notified the former counsel of his allegations of ineffective assistance and given counsel an opportunity to respond, (3) attaching the lawyer's response, if any, and (4) indicating whether the petitioner has filed his complaint about his former counsel with the appropriate disciplinary authorities.
In re Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Patel v. Gonzales, 496 F.3d 829, 830 (7th Cir. 2007); Benslimane v. Gonzales, 430 F.3d 828, 831 (7th Cir. 2005); Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007). Obtaining the necessary information should not take two and a half months-at least not normally; and the petitioner has failed to point to any circumstances that made this the abnormal case in which a diligent attempt to comply with the 90-day deadline would have failed, in which event an appeal to equitable tolling would lie."
Petition Denied.
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Hussain v. Mukasey No. 07-3688 & 07-3832 March 6, 2008 (POSNER)
Oral Argument | Full Text No. 07-3688 & 07-3832: Hussain v. Mukasey
Where an alien obtained entry by fraud, the government need not separately allege that the alien engaged in terrorism as grounds for denying asylum.
"Although Hussain was found removable for engaging in terrorist activity, it was not a ground stated in the charge that initiated the removal proceeding against him, and so, he argues, it cannot be the basis for barring him from seeking cancellation of removal. But all that the statutory bar requires is that the alien be removable on grounds of terrorism.
8 U.S.C. § 1229b(c)(4). That makes sense because one purpose of the terrorism statute is to bar forms of post-removal relief to aliens who have been ordered removed on a lesser ground, such as fraudulent entry. As held in such cases as Salviejo-Fernandez v. Gonza- les, 455 F.3d 1063, 1065-66 (9th Cir. 2006), and Brown v. Ashcroft, 360 F.3d 346, 352-53 (2d Cir. 2004), that purpose does not require that involvement in terrorism be the stated ground of removal."
Petitions Denied.
Viracacha v. Mukasey No. 07-1548 March 3, 2008 (EASTERBROOK)
Oral Argument | Full Text No. 07-1548: Viracacha v. Mukasey
Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s denial of alien's asylum application based on fact that said petition had been filed nearly three years after applicable one-year deadline for filing asylum claims. Under 8 USC sec. 1158(a)(3), Ct. of Appeals is generally precluded from considering Bd. denials of untimely asylum applications, and alien's appeal failed to contain either constitutional question or question of law where alien merely challenged IJ's determination that any change in Columbian conditions was not material.
Judicial review under 8 U.S.C. 1252 (a)(2)(D) is limited to questions of law.
“Provisions foreclosing judicial review of particular administrative decisions are common. The most famous such exclusion is in the Administrative Procedure Act of 1946, 5 U.S.C. §701(a)(2) (decisions ‘committed to agency discretion by law’ are not judicially reviewable), and to our knowledge no serious argument has ever been made that §701(a)(2) is unconstitutional. The Supreme Court has applied it repeatedly without a single Justice expressing doubt about its validity (though there is often debate about whether a given question has been so “committed”). See, e.g., Lincoln v. Vigil, 508 U.S. 182 (1993); Heckler v. Chaney, 470 U.S. 821 (1985). Given the preservation of legal and constitutional claims in §1252(a)(2)(D), the preclusive effect of §1158(a)(3) is less sweeping than that of the APA. The use that the panel in Ramadan was able to make of the “canon of avoiding constitutional questions” shows why many thoughtful people think the canon a bad one—for constitutional questions lurk everywhere, and judges who seek to avoid them can end up rewriting statutes that would be deemed perfectly valid if the question were faced and resolved. See Henry J. Friendly, Benchmarks 210 (1967); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831 (2001).”
Negrete-Rodriguez v. Mukasey No. 06-1931 March 3, 2008. (MANION)
Oral Argument | Full Text No. 06-1931: Nerete-Rodriguez v. Mukasey
Petition for review of a removal order involving a determination that petitioner was ineligible for cancellation of removal is denied where the BIA properly categorized petitioner's Illinois felon-in-possession conviction as an aggravated felony.
A state court conviction for felon in possession of a firearm is an aggravated felony.
“The Illinois statute under which Negrete was convicted, 720 ILCS 5/24-1.1(a), is clearly the state law counterpart to § 922(g)(1). Although not ‘mere surplusage,’ a jurisdictional element does little more than ensure that the conduct regulated in a federal criminal statute is within the federal government’s limited power to proscribe, thereby preventing the federal government from usurping power from the ‘States [who] possess primary authority for defining and enforcing the criminal law.’ Brecht v. Abrahamson, 507 U.S. 619, 635 (1993). The statutory scheme expressly includes the state equivalent of a § 922(g)(1) offense in the definition of ‘aggravated felony.’ The only purpose of the commerce element of § 922(g)(1) is to obtain federal jurisdiction over the crime. Clearly Congress did not intend an element not necessary in state law to be the factor determining whether the state offense can be considered the equivalent of a § 922(g)(1) offense. That would likely eliminate the intended inclusion of most state statutes, since states do not operate under the same jurisdictional constraints as the federal government.
Negrete does list several Illinois criminal statutes that he argues incorporate an element of affecting commerce.
See, e.g., 720 ILCS 5/24-3.5(c) (unlawful purchase of a firearm); 720 ILCS 5/24-3.4 (unlawful sale of firearms by liquor licensee); 720 ILCS 5/24-3 (unlawful sale of a firearm); 720 ILCS 5/24-1(a)(7) (prohibiting, among other things, the sale of a ‘machine gun,’ sawed-off shotgun, or explosive device); 720 ILCS 5/24-3.3 (prohibiting, among other things, the sale of firearms on school premises); 720 ILCS 5/24-2.1(a) (prohibiting, among other things, the sale of firearm projectiles). An examination of those statutes, however, only confirms the previous point. While some offenses committed under those statutes may involve commerce, none of those statutes contains an express element of affecting commerce, which is what Negrete is arguing that § 101(a)(43)(E)(ii) requires for his state felon-in-possession conviction to count as an aggravated felony. Furthermore, Negrete’s citation to those statutes misses the mark. The question is not whether a state could conceivably create a felon-in-possession offense that contains an element of affecting commerce. Rather, it is whether Congress meant to limit the phrase ‘offense described in section 922(g)(1)’ contained in § 101(a)(43)(E)(ii) only to state offenses that have such an element. Nothing in the text of the statute indicates that is what Congress intended. See Castillo, 244 F.3d at 1023.” Affirmed.
Khan v. Mukasey No. 07-1138 February 25, 2008. (KANNE)
Oral Argument | Full Text 07-1138: Khan v. Mukasey
Petition for review of a denial of a request for a discretionary waiver of inadmissibility and an application for an adjustment of status is dismissed for lack of jurisdiction where petitioner failed to raise any viable constitutional claim or question of law.
"Khan has has presented a 'flabby constitutional argument' in lieu of arguing that his statutory or regulatory right was violated. See Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006). While an alien has a Fifth Amendment right to due process in immigration proceedings, see Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir. 2006) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)), it is well-established that a party complaining of a dueprocess violation must assert a liberty interest in order to maintain his due-process claim, see Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). As a result, we have repeatedly held that "an alien's right to due process does not extend to proceedings that provide only such discretionary relief " because an appeal to discretion is not a substantive entitlement. Id. at 662; Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir. 2005); see also Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). Here, Khan was required to pursue discretionary relief-the waiver of inadmissibility-in order to remain in the country. Therefore, Khan has not asserted any liberty interest, and as a result, he cannot maintain his constitutional due-process claim." Dismissed.
Tchemkou v.Mukasey No. 06-2638 February 22, 2008 (WILLIAMS)
Oral Argument | Full Text 06-2638: Tchemkou v. Mukasey
After the grant of a petition for review of a BIA decision, petitioner's motion for attorney's fees and costs is granted where the government's position in the underlying action was not substantially justified.
Derezinski v. Mukasey No. 07-1221 February 20, 2008 (POSNER)
Oral Argument | Full Text Derezinski v. Mukasey No. 07-1221
Petition for review of a denial of a second motion to reopen removal proceedings conducted in absentia is denied where there were no changed circumstances that would justify a reopening and the petitioner could not prove that he did not receive notice of the original hearing.
Bd. did not err in denying alien's motion to reopen removal proceedings where motion was filed 11 years after Bd. had entered deportation order in absentia. While alien argued that he never received Bd.'s notice of deportation hearing, Bd. was entitled to find that alien had evaded receipt of Bd.'s notice where: (1) Bd. sent notice via certified mail that was returned "unclaimed"; (2) according to alien, he was told by postal officials that a parcel in his name had been returned to sender; and (3) plaintiff should have contacted immigration authorities at that time to learn whether any time or place of hearing had been set.
Gaberov v. Mukasey No. 07-1417, February 19, 2008 (EVANS)
Oral Argument | Full Text Gaberov v. Mukasey No. No. 07-1417
Petition for review of a denial of a motion to reopen immigration proceedings is granted where the evidence that petitioner presented of the BIA's failure to send him notice of an earlier denial of his application for asylum, coupled with his demonstration of due diligence, entitled him to equitable tolling of the 90 day time-limit to file a motion to reopen.
Wood v. Mukasey No. 06-2550 February 14, 2008. (SYKES)
Oral Argument | Full Text 06-2550: Wood, Lolita v. Mukasey
Petition for review of a denial of a continuance in removal hearings and a denial of a discretionary adjustment of status is denied where the court does not have jurisdiction over continuance and adjustment of status decisions, and the BIA properly exercised its appellate-review authority over discretionary issues when it determined petitioner did not merit a status adjustment.
The BIA does not exceed its authority by reaching and deciding an adjustment-of-status question, even though the IJ did not address it.
"Provided the BIA can do so without additional fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see no reason why it must avoid issues of discretion in an appeal because they were never reached by the IJ. Although this proviso is potentially important, in Wood's case the BIA did not stray from the administrative record; it premised the exercise of its discretion on the IJ's finding that Wood falsely portrayed herself as Bendikas's wife for purposes of asylum during the January 2003 hearing. We conclude the BIA acted within the scope of its appellate jurisdiction when it denied Wood the discretionary relief for which she unsuccessfully sought a continuance before the IJ."
Garcia-Meza v. Mukasey No. 07-2215 February 5, 2008. (WILLIAMS)
Oral Argument | Full Text 07-2215: Garcia-Meza, Carlos v. Mukasey
Petition for review of a final order of removal, arising from a conviction for petitioner's grabbing a police officer's fingers and twisting them, is granted and the matter remanded where the BIA's finding that petitioner's state crime of "aggravated battery of a peace officer" was a crime of moral turpitude, was based on a misapprehension of Illinois law.
Bd. erred in ordering removal of alien/lawful permanent resident under 8 USC sec. 1227(a)(2)(A)(i)(I) based on alien's Illinois conviction on charge of aggravated battery of peace officer that Bd. deemed to be 'crime of moral turpitude.' Alien's conviction concerned battery of police officer that did not result in bodily harm or violence, and thus remand was required since Bd. based its decision on mistaken belief that alien's conviction contained element of bodily harm.
Battery of a police officer is not a crime of moral turpitude absent bodily harm or intent to cause harm or use violence.
"Illinois follows the common law rule that any contact, however slight, may constitute a battery. See Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir. 2006). At oral argument, we posed the hypothetical that in Illinois, an individual angry at being given a parking ticket might crumple up the ticket and throw it on the ground and face charges of aggravated battery if the ticket hit the issuing officer's shoe. We would be surprised if the BIA concluded that such behavior is 'inherently base, vile, or depraved,' or that it would 'shock the public's conscience.' In the language of this court's decision in Mei, the magnitude of the loss it causes is small (there is no injury, although the officer might have hurt feelings), and it does not arouse great public indignation (everybody hates parking tickets). We also asked the parties for a citation of any decision in which battery or assault of a police officer without violence or bodily harm was found to be a crime of moral turpitude. The government pointed to Mei, in which we found that aggravated (meaning high-speed) fleeing from an officer is such a crime. But that case did not involve an assault or battery statute, and regardless, the difference between a 100+ mile-per-hour car chase and a little finger grabbing seems obvious enough."
"At the end of the day, it is the Board's prerogative to decide whether Garcia-Meza committed a crime of moral turpitude. For the reasons we have explained, its decision that his offense is such a crime is based on a misapprehension of Illinois law and must be vacated."
Eke v. MukaseyNo. 06-3391 January 7, 2008.
Pet. for Review, Order of Bd. of Immigration Appeals. Petition denied. Bd. did not err in finding that aliens' Illinois conviction on charge of conspiracy to violate Illinois identity fraud statute by attempting to purchase automobile constituted "aggravated felony" under 8 USC sec. 1101(a)(43)(M)(i) in govt. petition for summary removal. Value of vehicle was more than $10,000, and fact that alien never actually acquired vehicle was not material since Bd. could look to intended loss to satisfy requirements of sec. 1101(a)(43)(M)(i).
Petition for review of a denial of withholding of removal is denied over the petitioner's arguments that: 1) his convictions were not for crimes that fall within the definition of "aggravated felony"; 2) he should not have been required to provide corroborating evidence of his homosexuality; 3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and 4) his due process rights were violated when the IJ insisted on conducting the hearing on the merits by video conference.
Hussain v. MukaseyNo. 07-2448 December 18, 2007
Denial of a petition for habeas corpus alleging that petitioner's detention pending removal proceedings deprived him of liberty without due process of law is affirmed where: 1) the immigration code bars the court from ordering the release of an alien pending judicial review of the order of removal; and 2) the principle that an alien may be released if, six months after the beginning of the removal period there is no significant likelihood of removal in the reasonably foreseeable future, does not apply when judicial review of the removal order is pending.
Dist. Ct. did not err in denying alien's habeas petition, claiming that his 2.5-year detention pending resolution of his removal proceeding deprived him of liberty without due process. Alien's petition was rendered moot when IJ subsequently entered order directing that alien be removed contingent to govt. compliance with Convention Against Torture provisions. Moreover, Ct. of Appeals could not order alien's release pending its review of validity of contingent removal order.
Mekhael v. Mukasey11/16/07 No. 06-4285
Christian Lebanese citizen's petition for review of a denial of a motion to reopen asylum proceedings is granted and the matter remanded where BIA failed to give reasoned consideration to post-hearing evidence, including the 2006 war between Israel and Hezbollah, as well as increased violence against Christians in Lebanon following the publication in Denmark of cartoons caricaturing the Prophet Muhammad.
Zheng v. Mukasey11/09/07 Case Number: 07-3673
A motion seeking a stay of petitioner's removal to China pending review of the dismissal of his original asylum claim and a denial of his motion to reopen the asylum proceedings is denied as: 1) the motion was untimely as far as the original asylum claim was concerned; and 2) petitioner failed to establish that he was entitled to a stay as to the other claim.
Bolante v. Keisler10/31/07 Case Number: 07-2550
A motion for release on bail by an asylum applicant is denied where: 1) a grant of a bail would conflict with the Attorney General's non-reviewable discretion to deny parole to asylum-seekers; and 2) the petitioner's entry visa was revoked prior to his arrival in the U.S., thus he was not lawfully admitted to the U.S. for constitutional purposes, and had no right to be released.
Mohammad Hussain v. Keisler10/24/07 Case Number: 06-2932
Petition for review of an order of voluntary departure is denied where: 1) petitioner filed an asylum application but later withdrew it in exchange for a longer period of voluntary departure; and 2) the court lacks jurisdiction over petitioner's claim that his obligation to register pursuant to the National Security Entry-Exit Registration System led to the initiation of removal proceedings against him and violated his right to equal protection of the laws.
US v. Pacheco-Diaz10/23/07 Case Number: 05-2264
Sentence for illegal reentry is affirmed over defendant's arguments
that: 1) a prior Illinois conviction for simple possession of marijuana
was insufficient to trigger an eight-level enhancement; 2) the district
court misapprehended the scope of its discretion when it declined to
further reduce his sentence for acceptance of responsibility; and 3) his
sentence was unreasonable because the court failed to meaningfully
consider the unwarranted disparity between his sentence and the
sentences of similarly situated defendants in fast-track jurisdictions.
Potdar v. Kiesler, No. 06-2441 (10/10/07).
Petition for Review, order of Bd. of Immigration Appeals. Petition
denied. Petition for review of an order vacating an earlier order to
reopen removal proceedings is denied where the court did not have
jurisdiction to review the denial of petitioner's motion for a
continuance.
Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s
order denying alien's request to reopen and terminate exclusion hearing
in order to allow alien to proceed on his application for adjustment to
permanent resident status. Alien's motion to reopen was essentially
request for continuance of exclusion proceedings, which, under Ali,
precludes any review of denial by Ct. of Appeals.
Tariq v. Keisler, No. 06-2518 (10/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.
Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of Pakistan) where alien alleged that he and
his family were persecuted by creditor while in Pakistan, and that he
would be subject to future persecution based on his Western upbringing
if forced to return to native country. Alien's asylum petition, which
was filed more than 1 year after alien reached age of majority, was
untimely. Moreover, alien could not base application for withholding of
removal on acts of creditor where: (1) creditor was mere private
citizen; (2) alien could not demonstrate that harm done by creditor was
on account of alien's membership in particular social group; and (3)
alien failed to present evidence that his Western upbringing would cause
individuals in Pakistan to attribute any political opinion to him.
Ali v. Gonzales, No. 06-3240 Petition for review of a denial of a
request for a continuance and subsequent motion for reconsideration is
dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping
provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality
Act (INA) generally precludes judicial review of continuance decisions
of immigration judges; and 2) selective prosecution claims by aliens are
largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of
discrimination were insufficient to invoke the exception for outrageous
cases.
(9/14/07)
Moab v. Gonzales, No. 06-2710 (9/13/07). Petition for Review, Order of Bd. Of Immigration Appeals. Petition granted.
Record failed to support Bd.’s finding that alien was not credible in his asylum and withholding of removal applications where alien alleged that he endured beatings in his native country (Liberia) because he was homosexual. While Bd.’s credibility determination was based largely on fact that alien failed to mention his homosexuality in airport interview, airport interviews are not always reliable indicators of credibility, and alien’s alleged homosexuality was consistently mentioned in his asylum application.
Kadia v. Gonzalez No. 06-1299 (9/7/07). Petition for Review, Bd. of Immigration Appeals. Petition granted.
Record failed to support IJ's denial of asylum petition by alien (native of Cameroon) who alleged that he would be persecuted because of his political beliefs if forced to return to native country. While IJ found alien to be incredible based on perceived inconsistencies between his testimony and his statements made in asylum application, Ct. determined that said inconsistencies either pertained to trivial facts or were not in fact inconsistent statements. IJ also improperly questioned alien by failing to give alien full opportunity to explain events supporting his asylum claim.
Peralta-Cabrera v. Gonzalez, No. 06-2254 (9/7/07). Petition for Review, Order of Bd. of Immigration Appeals. Petition granted.
Bd. erred in denying alien's motion to reopen asylum proceedings based on contention that alien was entitled to new hearing because he never received notice of asylum hearing and because deportation order was entered in absentia. Record showed that notice was sent via certified mail to address given by alien, but that, pursuant to post office policy, post office never attempted to deliver said notice because it was not addressed to alien "in care of" actual home owner. Ct. further found that govt., which was aware that alien was staying temporarily with home owner, had responsibility to ensure that notice would be delivered in compliance with postal policy.
Labels: 7th Circuit Cases- Aliens, Aliens, Asylum, Chicago Immigration Court, Deportation, Immigration law, Removal, Removal hearing
