Thursday, August 26, 2010


Matter of Hugo Heredia PEDROZA 25 I&N Dec. 312 (BIA 2010)

An alien’s conviction for a crime involving moral turpitude does not render him ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), if his crime is punishable by imprisonment for a period of less than a year and qualifies for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), followed.

 Matter of Jose CASILLAS-TOPETE 25 I&N Dec. 317 (BIA 2010)

An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C) (2006), where an appropriate immigration official knows or has reason to believe that the alien is a trafficker in controlled substances at the time of admission to the United States. Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.

Matter of Maria De Jesus CORTEZ Canales 25 I&N Dec. 301 (BIA 2010)
(1) An alien who has been convicted of a crime involving moral turpitude for which a sentence of a year or longer may be imposed has been convicted of an offense “described under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien’s eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003), explained.

(2) In determining which offenses are “described under” sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act for purposes of section 240A(b)(1)(C) of the Act, only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.

(3) The respondent’s misdemeanor conviction for welfare fraud in violation of section 10980(c)(2) of the California Welfare and Institutions Code rendered her ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, because it was for a crime involving moral turpitude for which she could have been sentenced to a year in county jail and was therefore for an offense “described under” section 237(a)(2) of the Act.

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Padilla & prosecutors duty

Defense counsel should be aware that prosecutors also have a responsibility to consider deportation and other so-called “collateral” consequences in plea negotiations. Prosecutors are not charged merely with the obligation to seek the maximum punishment in all cases, but with the broader obligation to “see that justice is accomplished.” National District Attorneys Association, National Prosecution Standards § 1.1 (2d ed. 1991). Prosecutors are thus trained to take these collateral consequences into account during the course of plea bargaining. E.g. U.S. Dep’t of Justice, United States Attorneys Manual, Principles of Federal Prosecution, § 9- 27.420(A) (1997) (in determining whether to enter into a plea agreement, “the attorney for the government should weigh all relevant considerations, including . . . [t]he probable sentence or other consequences if the defendant is convicted”) (emphasis added). These prosecutor responsibilities can be cited whenever a prosecutor claims that he or she cannot consider immigration consequences because to do so would give an unfair advantage to noncitizen defendants.

Courts have stated that immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, e.g. the handbook for trial attorneys states that "the respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness." Handbook for Trial Attorneys §  1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992) (finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that "might sometimes trump the desire to pound an opponent into submission"); see also Reid v. INS, 949 F.2d 287 (9th Cir. 1991) (noting that government counsel has an interest only in the law being observed, not in victory or defeat). 

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Tuesday, August 24, 2010

ISSAQ v. HOLDER No. 09-2288 "particularly serious" felony, Withholding of Removal, Iraqi Assyrian Christian

An Iraqi citizen's petition for review of of BIA's denial of petitioner's application for withholding of removal and other findings is denied where: 1) a Report is not enough on its own to support a finding that any persecution petitioner, as an Assyrian Christian, would face would occur at the hands of government agents, or would otherwise be condoned by the government; 2) petitioner's residential burglary crime led to an aggregate of more than five years' imprisonment and was a "particularly serious" felony for purposes of section 1231(b)(3)(B); and 3) although the IJ erred in overlooking certain evidence in the Report, petitioner has not shown he was prejudiced by the error, and nothing in the record suggests that he was seeking a deferral of removal under the CAT.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.
August 17, 2010

In 1997, Adnan Issaq, a citizen of Iraq, moved with his parents and three siblings from Syria to the United States, where they were admitted as refugees. Issaq and his family are Christians of Assyrian descent. His father, a native of Iraq, and his mother, a Syrian, were married in Syria but settled in Baghdad, Iraq, where Issaq was born in 1978. Fearing religious persecution, Issaq's parents took the family to Syria in 1991. There they remained through late 1997, until their application for refugee status was approved and they came to the United States. Once here, the family settled in DuPage County, Illinois, just west of Chicago. Issaq became a permanent resident of the United States in 2001.
Unfortunately, Issaq developed a drug habit, which led to other crimes and ultimately to the removal proceedings now before us. Issaq was charged with committing a number of residential burglaries near his home in late 2005. He pleaded guilty to one count, and in March 2007 an Illinois court sentenced him to 180 days in prison and two years of probation, including inpatient substance-abuse treatment. In May 2007, after Issaq had served his prison term, the DuPage County Jail released him to a rehabilitation program called the Treatment Alternatives for Safe Communities. Issaq soon blew the chance he had been given. Two months into the program, Treatment Alternatives expelled him for using drugs and for arranging with others to bring drugs into the treatment facility. Issaq's expulsion violated the terms of his probation, and a warrant issued for his arrest. He remained on the loose until December 2007, when a local police officer pulled his car over after a traffic violation. Issaq gave the officer his brother's driver's license and attempted to flee when he was asked to follow the officer to the police station. This led to new charges, to which Issaq pleaded guilty. The court sentenced him to five years' imprisonment as the penalty for violating his probation for the residential burglary, and it imposed an additional year, to run concurrently, for obstruction of justice in connection with the new conviction for the traffic violation.
When Issaq's problems with the law came to the attention of the Department of Homeland Security (“DHS”), it initiated proceedings in which it charged that Issaq was removable as an alien convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008 hearing before an Immigration Judge (“IJ”), Issaq conceded that residential burglary, a Class 1 felony in Illinois, 720 ILCS 5/19-3(b), is an “aggravated felony” within the meaning of the Immigration and Nationality Act (“INA”), see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A month later, Issaq applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In his application, Issaq asserted that because of his identity as an Assyrian Christian, he faced life-threatening persecution and torture at the hands of Muslim extremists if he were returned to Iraq.

The IJ held a hearing on Issaq's case on December 17, 2008. The judge began by confirming that Issaq was ineligible for asylum because his residential burglary offense was an aggravated felony. Next, the judge found that Issaq's crime was “particularly serious” (another term of art under the INA), and thus he was barred from withholding of removal by 8 U.S.C. § 1231(b)(3)(B)(ii). This left just one question: whether Issaq was entitled to relief in the form of withholding of removal under the CAT.
Issaq testified that he believed that he would be tortured in Iraq on account of his religion. His belief was based solely on his membership in the group of Assyrian Christians; he offered no reason why he in particular would be singled out. Cross-examination revealed that he was unaware of the fact that there are approximately a million Christians currently living in Iraq. Issaq's father, Isho Shamoon, testified that the entire extended family has now left Iraq. Shamoon shared the opinion that his son would be killed if he were returned. Radicals, he stated, had been asking about the family, and a former neighbor warned him that “they” were looking for Shamoon. This was enough to endanger the son as well, Shamoon thought. Issaq's mother, Leila Youkhana, also testified. She mentioned pressure on Christian women in Iraq to adopt Muslim dress, and she too predicted that Issaq would be killed if he were sent back.

The IJ found all of this testimony credible but insufficient to warrant relief under the CAT. Iraq, the judge observed, has undergone “vast changes” since 1991, when Issaq's family left the country. Given the number of Christians, and even Christians of Assyrian ethnicity, the court found no basis for the family's dire predictions of death or torture. Indeed, the court found no evidence apart from these opinions about the likelihood of torture. He acknowledged the fact that there is social friction and violence in Iraq today, but that alone was not enough to show that Issaq would be tortured by a public official, or that the government would condone his torture by others. Notably, however, the IJ had nothing to say about an International Religious Freedom Report that Issaq had tendered in support of his petition on the day of the hearing. See (last visited August 13, 2010). That Report catalogued several incidents in Iraq of abuse against Assyrian Christians. It also noted, under the heading “Abuses by Rebel or Foreign Forces or Terrorist Organizations” that [m]any individuals from various religious groups were targeted because of their religious identity or secular leanings. Acts committed against them included not only harassment and intimidation but also kidnapping and murder. The general lawlessness that permitted criminal gangs, terrorists, and insurgents to victimize citizens with impunity affected persons of all ethnicities and religious groups. The magnitude of sectarian attacks, while difficult to track, appeared to decline during the reporting period. While such incidents were progressively fewer, Shi‘a in Sunni-dominated neighborhoods, Sunnis in Shi‘a-dominated neighborhoods, and religious minorities in both Sunni- and Shi‘a-dominated neighborhoods reported receiving death threat letters demanding that they leave their homes, and in many cases individuals either complied or were killed. The IJ concluded by denying Issaq's request for relief under the CAT and ordering him removed to Iraq.

The Board of Immigration Appeals (“Board”) found that the IJ had “adequately and correctly addressed the issues presented.” In response to Issaq's objection to the finding that he was ineligible for withholding of removal, the Board noted that once a crime is determined to be particularly serious, there is no need for an additional finding that the person is a danger to the community. Even if he were not ineligible for withholding, the Board continued, he could not prevail on the merits because the record did not establish that his life or freedom would be threatened in Iraq on the ground of his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). Nor did Issaq prove that it was more likely than not that he would be tortured for any cognizable reason if removed to Iraq. See 8 C.F.R. § 1208.16(c). Finally, the Board rejected without explanation Issaq's complaint that the IJ erred by failing to consider the International Religious Freedom Report in his analysis. Overall, it thought, he had received a fair hearing and an acceptable explanation. Acting through a single member, the Board thus dismissed his appeal.

In his petition for review in this court, Issaq raises two arguments: first, that the Board erred when it characterized his crime as “particularly serious” and for that reason decided that he was ineligible for withholding of removal, and second, that it committed legal error when it determined that he could not qualify for relief under the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government responds that this court lacks jurisdiction to adjudicate the petition. It acknowledges that we would be authorized to review the Board's decision if Issaq's petition raised a constitutional or other question of law, see 8 U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails to do so.


We consider first Issaq's effort to qualify for withholding of removal. His initial problem arises because of the provision of the INA depriving the courts of jurisdiction to review any part of a removal order based on a finding that the alien is an aggravated felon:
Notwithstanding any other provision of law (statutory or nonstatutory) ․ and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ․ 1227(a)(2)(A)(iii) [which includes aggravated felonies] ․ of this title․
§ 1252(a)(2)(C). Notwithstanding the superficially absolute nature of this language (apart from the exception for subparagraph (D)), we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony. E.g., Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir.2001).
More importantly for Issaq's petition, subparagraph (D) carves out an exception to the jurisdictional bar for “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). In applying this part of the statute, it is important to distinguish between legal claims that may be unlikely to prevail from claims that are so lacking in substance that they should not be adjudicated at all. In our view, Issaq's arguments fall in the former category, not the latter.

The first problem we must address, however, is whether Issaq's legal arguments are beside the point, because the Board offered an alternative, fact-based reason for denying relief. In its order, the Board said:

We further find that the respondent has not established his eligibility for withholding of removal even if he was not barred from consideration. He has not established that his life or freedom would be threatened in Iraq, a country he left 18 years ago, because of his race, religion, nationality, membership in a particular social group, or political opinion. Issaq's only argument about this part of the case is that the Board's decision rested on a flawed hearing before the IJ. He phrases this as a due process argument, although it would be better cast as an argument that he did not receive the fair hearing to which he is entitled under the statute. See Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir.2008). The key problem, as he sees it, was the IJ's failure to consider the International Religious Freedom Report.

Issaq has continued in his petition for review to pursue this argument. Although his brief does not make it clear whether he wishes to make this point with respect to both withholding and the CAT, or just the CAT, the Report is pertinent to both (setting aside the issue whether his crime was “particularly serious”), and so we will give him the benefit of the doubt and consider it for both theories. In our view, his contention that the record on which the IJ and Board relied was deficient is enough to support a legal argument with respect to the Board's alternate holding. It is troublesome that the IJ made no mention of the Report. The Board seems to have relied on a presumption of procedural regularity and to have assumed that the IJ read and took account of the Report, but we have no idea whether this is so. Normally, we require the Board to discuss the key evidence that the parties have presented. See, e .g., Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir.2007) (citing Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir.2004), and Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000)). But Issaq cannot obtain a remand on this ground unless he can show prejudice from any violation that occurred. See Bayo v. Napolitano, 593 F .3d 495, 506 (7th Cir.2010) (en banc ). The excerpt of the Report that we set out above indicates that the problem of violence is pervasive throughout Iraq; nothing suggests that every Assyrian Christian faces a better than even chance of being tortured or killed, nor is there anything in it to suggest that Issaq faces a particular risk. Although the question seems close to us, we conclude that the Report is not enough on its own to support a finding that any persecution Issaq would face would occur at the hands of government agents, or would otherwise be condoned by the government.
In case we are wrong about that, and the evidence including the Report would have supported withholding, we think it prudent to turn to Issaq's other argument for this relief. The INA states that “an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B), final paragraph. It adds that the Attorney General is also entitled to determine that, “notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” Id. The question Issaq is raising is how to interpret the phrase “aggregate term of imprisonment.” Whether an agency correctly interprets a statute is a question of law. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008). Issaq argues that the term refers only to the sentence that appears in the court's initial judgment. With that in mind, he points out that his initial sentence for the residential burglary was 180 days' imprisonment plus two years' probation; it was not until he violated the terms of his probation that the sentence was extended by another five years. Focusing exclusively on the initial sentence, he draws the conclusion that his crime was not a “particularly serious” one.

Issaq's position, however, disregards the use of the word “aggregate” in § 1231(b)(3)(B)'s final paragraph. If Congress had meant to look solely to the initial term of imprisonment, it would have used different language. Instead, it said “aggregate term,” a phrase that rules out such a narrow reading. We conclude that all periods of imprisonment associated with a particular conviction must be counted toward the five years specified in the statute. Issaq's residential burglary crime thus led to an aggregate of more than five years' imprisonment and was a “particularly serious” felony for purposes of § 1231(b)(3)(B). This makes it unnecessary for us to decide whether the Attorney General abused his discretion in characterizing the crime as “particularly serious” notwithstanding the length of the sentence.

The government complains that Issaq did not present his argument about the meaning of the statute to the Board, and thus (it says) our jurisdiction is barred on a different ground-failure to exhaust. It is true that an alien must exhaust “all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), and that this includes the obligation first to present to the Board any arguments that lie within its power to address. Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir.2008). This is not, however, a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow. See Marin-Rodriguez v. Holder, 2010 WL 2757321 (7th Cir. July 14, 2010) (No. 09-3105) (discussing Morrison v. Nat'l Austl. Bank Ltd., 130 S.Ct. 2869 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010); and Union Pac. R.R. v. Bhd. of Locomotive Eng'rs, 130 S.Ct. 584 (2009). It is a case-processing rule that limits the arguments available to an alien in this court when those arguments have not been raised properly at the agency level. Korsunskiy v. Gonzales, 461 F.3d 847, 849-50 (7th Cir.2006).
Before the IJ and the Board, Issaq stressed his argument that disentitlement to withholding of removal should be conditioned on two findings, not just one: both the commission of a particularly serious crime and a finding that the person was a danger to the community. See § 1231(b)(3)(B)(ii) (no withholding when “the alien, having been convicted by final judgment of a particularly serious crime is a danger to the community of the United States”). In addition, however, he did raise the point about his initial term of imprisonment. We are not inclined to find failure to exhaust, particularly as there is some value in clarifying the scope of the statute.

Issaq also argued that he was entitled to relief under the CAT. Once again, the government argues that we have no jurisdiction to consider his argument, this time because Issaq was convicted of a “particularly serious” crime and also because of the Board's finding that his case fails on the facts. In the end, we agree with the government that his case has no merit, but we reach that conclusion by a somewhat different path.

Although petitions for withholding of removal and petitions for relief under the CAT are treated very similarly, the regulations governing the CAT add one additional form of relief for a petitioner:
Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal.
8 C.F.R. § 1208.16(c)(4) (emphasis added). Section 1208.17 provides more details about the deferral of removal process:

An alien who: has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3) [which include commission of a particularly serious crime], shall be granted deferral of removal to the country where he or she is more likely than not to be tortured. 8 C.F.R. § 1208.17(a). Additional provisions of the regulation make it clear that deferral of removal is at least potentially a more restricted form of relief than withholding. For example, deferral does not confer on the alien any lawful or permanent immigration status; deferral will not necessarily result in the alien being released from the custody if the alien is subject to such custody; and deferral does not protect against removal to a different country from the one in which the alien is likely to be tortured. § 1208.17(b).

This court has struggled with the question whether judicial review of orders denying relief under the CAT based on the commission of an aggravated felony is jurisdictionally barred. Compare Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir.2006) (stating that an aggravated felony bars review except under the CAT), with Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006) (holding that even a CAT claim is barred from review if it results in a final order of removal that rests on a finding that an aggravated felony was committed). In Petrov, we pointed out that Tunis addressed only the effect of § 1252(a)(2)(B), which prohibits review of decisions committed to the discretion of the Attorney General or the Secretary of Homeland Security, but that it was necessary also to take into account the effect of § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens.
The Supreme Court's decision in Negusie v. Holder, 129 S.Ct. 1159 (2009), underscores the need for precision in evaluating the many different kinds of claims that can arise under the immigration laws. There the Court was concerned with the so-called “persecutor bar” that applies to aliens who have persecuted others on a prohibited basis. See 8 U.S.C. § 1101(a)(42). The persecutor bar applies to those seeking asylum or withholding of removal, but “[i]t does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture․” 129 S.Ct. at 1162; see also id. at 1178 n.1 (Thomas, J., dissenting) (discussing the remedy of deferral of removal).

This raises the question whether a decision under the CAT to deny even deferral of removal falls within the jurisdiction-stripping provisions of either § 1252(a)(2)(B) or § 1252(a)(2)(C). In our view, the answer is no. Once an alien succeeds in proving the factual prerequisites for relief under the CAT, we understand Negusie to hold that some kind of remedy (complete with judicial review) is available, even for persons such as persecutors, whose claims for asylum or withholding of removal are barred and unreviewable. Consistently with Tunis, then, relief under the CAT is not barred by the ban on reviewing discretionary decisions imposed by § 1252(a)(2)(B). No one argued in Petrov that the remedy of deferral of removal requires a distinct analysis, and so we cannot take Petrov as the last word on that point. And indeed, if an alien is attempting to challenge only a final order of removal, as opposed to a deferral of removal, then there is nothing to criticize in the holding of Petrov. If, however, the alien also sought and might have been entitled to the inherently non-final remedy of deferral of removal, then § 1252(a)(2)(C) (which speaks only of a final order) appears to be inapplicable.

This possibility appears to be of little help for Issaq, because nothing in the record suggests that he was seeking a deferral of removal. He relied instead on the argument that his due process rights were violated by the IJ's failure to read and take into account the facts in the International Religious Freedom Report. As we noted earlier, to the extent that the IJ indeed overlooked this evidence, there is a potential problem. But it is not one that allows Issaq to prevail in the end, because he cannot show how he was prejudiced by the IJ's error. Even taking the Report into account, the link to governmental action is too weak, and the evidence showing that Issaq would be tortured or killed is too conclusory.
For these reasons, the petition for review is Denied.

I join in the judgment of the court, and its fine opinion with the exception of its jurisdictional discussion pertaining to claims for deferral of removal under the Convention Against Torture. I understand the court to take the view that, in spite of 8 U.S.C. § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens, this court does have jurisdiction to review claims regarding the denial of deferral of removal made by such aliens. Our jurisdiction extends, according to the majority opinion, not only to those petitions raising constitutional claims and questions of law, see id. § 1252(a)(2)(D), but also to claims by a covered alien that the Board's determination regarding the likelihood of torture upon repatriation is not supported by substantial evidence, see Maj. op. at 14-15.

As the court acknowledges, id. at 15, this question is not squarely presented in the case before us and, therefore, need not be decided at this time. Furthermore, I find the court's reliance on Negusie v. Holder, 129 S.Ct. 1159 (2009), Petrov v. Gonzales, 464 F.3d 800 (7th Cir.2006), and Tunis v. Gonzales, 447 F.3d 547 (7th Cir.2006), to be a relatively thin reed upon which to base the conclusion regarding our jurisdiction that the court reaches today.

Moreover, although one of our sister circuits has indeed reached the same result on an entirely different basis, see Lemus-Galvan v.. Mukasey, 518 F.3d 1081, 1083 (9th Cir.2008), the court neither discusses nor criticizes that approach. Nor does it discuss the opposing view. See Saintha v. Mukasey, 516 F.3d 243, 248-49 (4th Cir.2008) (dismissing, for lack of jurisdiction, a petition seeking review of a decision denying deferral of removal after concluding that § 1252(a)(2)(C) applied to the deferral claim and that the exception for constitutional claims or questions of law did not apply).
I think the better course is to follow the approach of some of our other sister circuits and reserve judgment until the issue is squarely presented and fully briefed and argued before us. See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir.2010) (noting the Ninth Circuit position but expressly declining to decide the issue because the petition only presented a question of law concerning eligibility for deferral); Cherichel v. Holder, 591 F.3d 1002, 1009, 1017 (8th Cir.2010) (noting that the jurisdiction-stripping provision generally applies to CAT claims, but deciding the case under the question of law exception without any discussion of further exemptions to the criminal alien jurisdiction-stripping provision that would preserve review of such aliens' deferral claims).

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Monday, August 23, 2010

Gutierrez-Berdin v. Holder 09-1465. Motion to suppress Form I-213; IJ bias and irreverence. 7th Circuit

Gutierrez-Berdin v. Holder  (Flaum)
Oral Argument | Full Text

A Mexican citizen's petition for review of a removal order is denied in
part and dismissed in part where: 1) the IJ did not err in denying
petitioner's motion to suppress Form I-213; 2) petitioner's claim that
the IJ demonstrated bias and irreverence of a degree sufficient to
deprive him of due process guaranteed by the Fifth Amendment is without merit; 3) because petitioner did not provide any evidence of legal status, the IJ appropriately found petitioner to be a removable alien; and 4) the BIA did not err in denying petitioner's motion to reopen and reconsider his case.

Download Case (Argued: May 25, 2010 -- August 19, 2010)

Before FLAUM, ROVNER, and WOOD, Circuit Judges.
FLAUM, Circuit Judge. Petitioner is an alien who has been apprehended by agents of Immigration and Customs Enforcement (“ICE”) for illegal entry into the United States and placed in removal proceedings. He seeks to characterize certain aspects of these proceedings as constitutional defects that deprive him of his right to due process of law. We deny in part and dismiss in part his petition for review.
I. Background
On May 22, 2006, ICE agents arrested petitioner Cecilio Gutierrez-Berdin at his parents’ home in Aurora, Illinois, and served him with a Notice to Appear (“NTA”) in Immigration Court to commence removal proceedings. The NTA charged that petitioner was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because he was an alien present in the United States without being admitted or paroled. The NTA bore the heading “U.S. Department of Justice, Immigration and Naturalization Service.” It was signed by Robin Buckley as the issuing officer in Chicago, Illinois. The NTA ordered the recipient to appear before an Immigration Judge at a time and date to be set in the future.
Following the arrest, ICE agents filled out a U.S. Department of Justice Record of Deportable/Inadmissible Alien, known as Form I-213, which explained that appellant, an associate member of the Aurora faction of the Surenos 13 gang, was rounded up as part of Operation Dismantle. Form I-213 further specified that Gutierrez-Berdin, a native and citizen of Mexico, entered the United States on foot on February 1, 1998, twenty miles west of El Paso, Texas. He had previously been apprehended on the border and voluntarily removed to Mexico on January 11, 1998. Form I-213 also stated that after agents arrested Gutierrez-Berdin at midnight on May 22, 2006, he resisted arrest and “was hostile and uncooperative with all officers . . . regarding the whereabout of” his uncle, Jose Verdin.
Petitioner requested a bond hearing before an Immigration Judge (“IJ”). As part of its response, on June 12, 2006, the government submitted a copy of the NTA to Immigration Judge George Katsivalas. Gutierrez-Berdin submitted his high school diploma and transcript; a picture of himself in a cap and gown; a letter from the pastor of Saint Nicholas Catholic Church stating that Gutierrez-Berdin attends mass every Sunday with his parents; a Certificate of Achievement dated October 20, 1999; and a certificate for completion of middle school at Simmons Middle School, dated June 7, 1999.
The IJ ordered Gutierrez-Berdin released upon posting an $8,000 bond. Per petitioner’s request, IJ Katsivalas also continued the case for additional attorney preparation. On November 17, 2006, Gutierrez-Berdin appeared before Immigration Judge O. John Brahos, represented by his current counsel. Petitioner advised the court that he would not be admitting any of the allegations against him and moved to suppress and exclude Form I-213, the NTA, and their contents on the ground that the government procured the evidence in violation of GutierrezBerdin’s Fourth and Fifth Amendment rights. Along with the motion, petitioner presented an affidavit where he swore that ICE agents lacked a warrant for his arrest. Petitioner also stated that during the arrest, the agents “mistreated me. They yelled at me and handcuffed my hands behind my back, and lifted them up, and pushed me out the door, it felt like my arms were going to break. I was very afraid. They had guns. They did not advise me of my rights.” The affidavit went on to state:
    1. When they [the ICE agents] took me to Broadview [Staging Area and Detention Center], two officers demanded that I sign some papers, but I refused. A
    2. man yelled at me and said “Sign the fucking papers. You don’t have any rights.” A woman yelled at me, and also swore at me and told me to sign the papers.
  1. I was not charged with committing a crime.
  2. I have never been arrested before the arrest I have described.
  3. I am married to a United States citizen, and I am the father of a United States citizen child. I believe that my rights were violated. I was treated like an animal.
On petitioner’s motion, the IJ continued the case and held a substantive hearing on April 19, 2007. The government planned to present only the NTA, Form I-213, and testimony by Gutierrez-Berdin to make their case, but petitioner moved to suppress the form on the grounds that it was filed in violation of local timing rules and was procured through unconstitutional means. Immigration Judge Brahos denied petitioner’s motion to suppress, explaining that even if taken at face value, GutierrezBerdin’s self-serving affidavit “fails to describe misconduct egregious enough to justify suppression.” The IJ then went to find petitioner, who refused to answer any questions for fear of self-incrimination, a removable alien on the basis of the combination of a negative inference drawn from his silence with the uncontroverted contents of the presumptively reliable Form I-213.
1 Brahos determined that the level of detail in the I-213 permitted the inference that Gutierrez-Berdin himself provided the information relating to his alienage, and that petitioner did not present enough evidence to show that the government obtained the information in the I-213 through coercion or duress.
The IJ then dismissed as meritless Gutierrez-Berdin’s objection that the form bears the heading of INS, which no longer exists, explaining that in 6 U.S.C. §§ 552(d) and 557, the statute transferring INS removal functions to the Department of Homeland Security (“DHS”) specifically provided that any reference to INS in regulations and delegations of authority should be read to mean DHS. Finally, although the IJ drew an adverse inference from Gutierrez-Berdin’s refusal to testify, he acknowledged that silence alone is not sufficient to establish a prima facie case of removability under Matter of Guevara, 20 I. & N. Dec. 238 (1991). 

1 In a subsequent written order, dated May 3, 2007, IJ Brahos summarized the form as stating that the respondent is a native and citizen of Mexico; he was first apprehended by Border Patrol agents on January 11, 1988 and was voluntarily removed to Mexico; he re-entered the United States at or near El Paso, Texas on or about Feb. 1, 1998 without inspection; he was arrested at his residence by ICE agents on May 22, 2006; and at that time, he admitted that he was present in the United States illegally and lacked any “immigration papers.”
Petitioner was three years old in 1988, but the IJ’s reference to that year was a simple typographical error that does not affect the outcome of this case.
Finding that the government satisfied its burden of proof, the IJ then considered whether respondent could show that he was in the United States lawfully. Since Gutierrez-Berdin stayed silent and his affidavit said nothing about lawful admission, IJ Brahos found him removable as charged. He then went on to deny petitioner’s request for voluntary departure.
Petitioner filed a timely appeal from the order to the Board of Immigration Appeals (“BIA”). He requested that a three-member panel rule on the issues, but on February 6, 2009, the BIA issued a one-member decision wholly adopting and affirming the IJ’s decision. It denied Gutierrez-Berdin’s request for three-member review because petitioner’s arguments did not fall into any of the categories entitled to such a procedure under 8 C.F.R. § 1003.1(e)(6). The BIA found no evidence of bias or partiality in the IJ, concluded that he did not abuse his discretion in denying voluntary departure, and rejected petitioner’s attempts to portray the NTA as defective. Finally, the BIA held that removal to Mexico did not amount to cruel and unusual punishment prohibited by the Eighth Amendment. Subsequently, the BIA denied Gutierrez-Berdin’s timely motions to reconsider and reopen the matter. He now appeals from both orders.
II. Discussion
Where, as here, the Board of Immigration Appeals adopts the decision of the Immigration Judge as a whole, we review the original IJ decision. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 535-36 (7th Cir. 2005). This case implicates four separate standards of review. First, we scrutinize de novo the IJ’s determination that admission of Form I-213 did not violate petitioner’s due process rights because it is a question of law. Boci v. Gonzales, 473 F.3d 762, 768 (7th Cir. 2007). Second, we give great deference to the IJ’s factual findings, deeming them “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). That is, we reverse the agency’s decision “only if the record compels a different result, and not simply because we are convinced that we would have decided the case differently.” Hassan v. Holder, 571 F.3d 631, 641 (7th Cir. 2009). Third, we review the Board’s denial of a motion to reopen or reconsider for abuse of discretion. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007). In doing so, we take into account the “strong public interest in bringing litigation to a close,” INS v. Abudu, 485 U.S. 94, 107 (1988), and thus disfavor reopening. See Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004). Accordingly, we uphold the decision of the BIA unless it was “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). Finally, we lack jurisdiction to review discretionary decisions by the Department of Justice with respect to requests for voluntary departure. See 8 U.S.C. § 1229c(f); Sofinet v. INS, 196 F.3d 742, 748 (7th Cir. 1999).
Petitioner sets forth a litany of complains about the IJ’s decision, but these can be condensed into four main contentions: that the IJ erred in denying petitioner’s motion to suppress Form I-213; that the government did not adequately prove petitioner’s alienage; that some aspect of petitioner’s arrest and subsequent deportation hearings violated his right to due process of law; and that the BIA’s denial of petitioner’s motion to reopen violated his “right to due process as well as his right to equal protection.” The rest of his arguments are either redundant or not properly presented in this appeal.
A. Motion to Suppress
The IJ did not err in denying Gutierrez-Berdin’s motion to suppress Form I-213. Since the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but does not specify an enforcement mechanism for its violations, the Supreme Court has articulated the so-called exclusionary rule. Said rule, “when applicable, forbids the use of improperly obtained evidence at trial” and seeks “to safeguard Fourth Amendment rights generally through its deterrent effect.” Herring v. United States, 129 S. Ct. 695, 699 (2009) (citations omitted). Exclusion is a relatively narrow remedy, however. It “is used in only a subset of all constitutional violationsand excessive force in making an arrest or seizure is not a basis for the exclusion of evidence.” Evans v. Poskon, 603 F.3d 362, 364 (7th Cir. 2010).
More importantly, removal proceedings are civil, not criminal, and the exclusionary rule does not generally apply to them. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Krasilych v. Holder, 583 F.3d 962, 967 (7th Cir. 2009). In Lopez-Mendoza, the Supreme Court left open the possibility that the exclusionary rule may apply where there have been “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 468 U.S. at 1050-51; see also Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). Gutierrez-Berdin’s claims do not reach this level. Even taken at face value, petitioner’s self-serving affidavit alleges what can best be characterized as very minor physical abuse coupled with aggressive questioning. Questions and verbal demands that a person sign documents are not themselves searches and seizures that could violate the Fourth Amendment, Muehler v. Mena, 544 U.S. 93, 101 (2005); Martinez-Camargo, 282 F.3d at 493; United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc). This observation is especially true here, where such entreaties proved unsuccessful because petitioner refused to comply. As for potential physical misconduct, handcuffing an alien who resisted arrest is certainly not the “egregious” behavior contemplated by Lopez-Mendoza.
Form I-213 is a presumptively reliable administrative document. Since petitioner did not demonstrate any inaccuracy in its contents, the IJ acted appropriately in considering it as evidence of alienage. See Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009) (“Absent any indication that a Form I-213 contains information that is manifestly incorrect or was obtained by duress, the BIA has found the Form to be inherently trustworthy and admissible as evidence. We have agreed with that position.”) (citing In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999)); Rosendo-Ramirez v. INS, 32 F.3d 1085, 1089 (7th Cir. 1994).
Gutierrez-Berdin also argues that he was arrested without a warrant, but the record does not support this contention. Petitioner then claims that the NTA and accompanying warrant were issued by the now-defunct Immigration and Naturalization Service (“INS”), which was part of the Department of Justice, and thus could not authorize action by ICE agents, who fall under the umbrella of the Department of Homeland Security and actually carried out the arrest. The IJ correctly found this assertion to be vacuous based on both explicit statutory transfer of authority from the INS to the DHS, 6 U.S.C. §§ 552, 557, and our own caselaw. Sosnovskaia v. Gonzales, 421 F.3d 589, 591 n.2 (7th Cir. 2005); Diallo v. Ashcroft, 381 F.3d 687, 690 n.1 (7th Cir. 2004). In any event, warrantless arrests of suspected illegal aliens are permissible in some situations, see 8
C.F.R. § 287.3 (2010), and there is no evidence that the government violated procedures associated with such an arrest in a way prejudicial to the petitioner in this case. See Martinez-Camargo, 282 F.3d at 492 (“[T]he Supreme Court has held that where an administrative regulatory violation does not adversely affect a petitioner’s substantive rights an exclusionary remedy is not available.”). The fact that the NTA left the time and date of a deportation hearing to be determined at a future date did not render it defective because subsequent documents set out the requisite information. Dababneh
v. Gonzales, 471 F.3d 806, 809 (7th Cir. 2006).
Finally, to the extent that Gutierrez-Berdin’s affidavit could be read to mean that ICE agents did not adequately notify him of his rights, such an error would not make otherwise voluntary statements inadmissible. See Lopez-Mendoza, 468 U.S. at 1039. There is no evidence of coercion in the record or the motion to suppress, so the IJ did not offend the constitution by admitting Form I-213 into evidence. Appellant concludes by arguing that the IJ erred in admitting the form because it was part of the record during the bond hearing, but the relevant regulations do not prevent the IJ from considering the same pieces of evidence during both stages of adjudication. A breach of the applicable procedures would be harmless here anyway, because petitioner’s counsel had months to review the 2-page Form I-213.
B. Due Process Right to a Hearing
Gutierrez-Berdin next argues that IJ Brahos demonstrated bias and irreverence of a degree sufficient to deprive him of due process guaranteed by the Fifth Amendment. See Plyer v. Doe, 457 U.S. 202 (1982). We have long held that “if an applicant in an immigration court has not received a meaningful opportunity to be heard, she has been denied due process, and we must grant her petition and remand for further proceedings.” Floroiu v. Gonzales, 481 F.3d 970, 974 (7th Cir. 2007).
“To obtain relief, the petitioner must produce some evidence indicating that the denial of due process ‘actually had the potential for affecting the outcome’ of the proceedings.” Id.
Petitioner’s claim that the IJ was impermissibly partial to the government, essentially amounts to an ad hominem attack on the judge. That is, Gutierrez-Berdin cites two cases where we criticized IJ Brahos for his conduct in immigration proceedings and argues that his behavior in the present case was similarly problematic. Our review of the record shows this contention to be baseless.
Petitioner states that the fact that the IJ overruled all of petitioner’s objections demonstrates a disregard for the evidence on behalf of the judge. Petitioner also points to the following “offensive” comment by the IJ as an indicator of his pro-government bias:
But as as you recall, alienage is not suppressible. All right. So we have an alien before the Court and as you recall weusing as a euphemism, not tending at all to insult the respondent [sic]. Once the INS or the Department of Homeland Security, in the stream, locates a alien [sic] and they pick him out of the stream, they don’t throw him back into the stream.
Unsurprisingly, Gutierrez-Berdin does not attempt to explain which aspect of the remark he considers to be inappropriate. When the BIA reviewed this argument, it determined that IJ Brahos did not intentionally characterize Gutierrez-Berdin as a fish and that any unintentional connotation was not enough to render the hearing ineffective. We agree.
The two cases where we found the IJ’s behavior to be so inappropriate as to violate the Due Process Clause stand in stark contrast to the matter before us today. First, in Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008), IJ Brahos gave short shrift to arguments made by an HIV-positive petitioner that if he was deported to Nigeria, he would be imprisoned pursuant to a decree requiring all Nigerian citizens convicted of drug crimes abroad to serve five-year sentences (“Decree 33”). Bosede also introduced evidence that the death rate of HIV-positive individuals in Nigerian custody is high because of poor nutrition, bad living conditions, and trivial access to medical care; State Department reports in the record showed that these circumstances have led to the death of at least one HIV-positive person in prison and that all prisoners in Nigeria are severely mistreated. Finally, Bosede testified that when he independently traveled to Nigeria in 2003, the government discovered his infection status, detained him on arrival, and released him only on the condition that he stay in a hotel they specified. Fearing for his life, he ended up bribing an official to get out of the country undetected.
The predicate offenses for Bosede’s deportation were two instances of possession of sub-gram quantities of cocaine and one retail-theft conviction for drinking liquor at a grocery store prior to paying for it. Nonetheless, the IJ issued a removal order finding, without elaboration, that Bosede’s convictions were “particularly serious crimes” that rendered petitioner, a married father of two, ineligible for cancellation of removal. The IJ then went on to deny petitioner’s Convention Against Torture claim and state that he would order removal even without a statutory bar to contest. The IJ found irrelevant evidence showing that Nigerian prisons were “decrepit” to the point that an HIV-positive prisoner could face the possibility of death and the decree requiring imprisonment would likely lead to Bosede’s arrest upon arrival because petitioner did not prove he would “automatically be detained” following deportation. The IJ also relied on Bosede’s testimony that he was able to bribe his way out of Nigeria in 2003 to conclude that petitioner may have “other options available to avoid detention.”
We reversed, citing the IJ’s “cavalier attitude towards” petitioner’s claims and failure to adequately explain why he considered the two drug offenses to be particularly serious crimes. We also criticized IJ Brahos for disregarding undisputed evidence that Decree 33 would land petitioner in prison. Finally, we were “appalled that the IJ would rest his decision on the absurd proposition that Bosede could evade imprisonment, mistreatment, and possibly death by approaching his jailers and trying to buy his way out.” 512 F.3d at 951. Our shock stemmed from the fact that our prior decisions expressly labeled such logic inappropriate. See, e.g., Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir. 2007).
Immigration Judge Brahos’s conduct in the administrative phase of Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009), also featured substantial shortcomings. There, the IJ considered an asylum application from a 20-year-old Brazilian man whose father was assassinated before he could become a whistle-blower about a political fundraising scheme. Following his father’s murder, Castilho de Oliveira spent most of his childhood in hiding, moving from place to place. A few years later, petitioner’s mother and younger sister escaped to the United States on a tourist visa and stayed illegally, leaving Castilho de Oliveira behind in the care of an aunt. As petitioner testified at his removal hearing, however, the men seeking to punish his father’s intransigence eventually located his aunt and warned her that Castilho de Oliveira would meet the same fate as his father. At that point, petitioner fled to America and requested asylum.
The IJ denied this relief on the grounds that Castilho de Oliveira’s account was not credible. Though petitioner submitted State Department reports that described the Brazilian criminal justice system as dysfunctional and the country’s criminal investigators as unwilling to pursue charges against powerful individuals, the IJ found that if petitioner’s father was actually murdered for political reasons, prosecutors would have put the perpetrators behind bars. The IJ also determined that because Castilho de Oliveira never reported the threats he received to the police, his testimony was not credible even though petitioner explained that he feared police would do nothing to help and could actually aggravate the situation.
The IJ’s ruling in Castilho de Oliveira suffered from other serious flaws. For example, IJ Brahos refused to accept copies of newspaper articles about the murder of petitioner’s father and the subsequent investigation into evidence on the grounds that these documents were not properly authenticated. We explained that “[t]here is no justification for such a requirement. Under the Federal Rules of Evidence, documents purporting to be newspaper articles are self-authenticating, and in immigration proceedingswhere the rules of evidence do not applyevidentiary standards are generally more lax. Absent evidence of forgery, alteration, or some other reason to doubt their authenticity, the IJ was not entitled to completely disregard the newspaper articles.” 564 F.3d at 897. Finally, we expressed shock at the IJ’s behavior during questioning:
Judge Brahos repeatedly stopped both Castilho de Oliveira and his expert witness to ask irrelevantand in some cases entirely inappropriatequestions. For example, the IJ demanded to know the witnesses’ religious beliefsand pursued this line of questioning at some length with each witnesseven though Castilho de Oliveira’s claims were not based on religious persecution. The IJ questioned Castilho de Oliveira about whether his half-sister was “born out of wedlock,” an utterly irrelevant inquiry. The IJ derailed the expert’s testimony to discuss the totally inappropriate and irrelevant topic of whether Castilho de Oliveira might be infertileor, as the judge indelicately put it, whether Castilho de Oliveira might “shoot blanks.”
564 F.3d at 899.
While we described comments of this nature as “wholly inappropriate,” we determined that they “did not ultimately have the effect of preventing Castilho de Oliveira from putting on his case.” Rather, they suggested “a larger problem of apparent bias on the part of the IJ,” which, combined with “the IJ’s ultimate failure to engage with the evidence in the record while resting his decision on speculation and irrelevanciesleaves the impression that the IJ entered the hearing with his mind already made up.” Id. at 899-900.
By contrast, in the present case, Immigration Judge Brahos conducted an orderly hearing bereft of any legal mistakes. He properly examined evidence and gave due credence to petitioner’s points of view. IJ Brahos’s metaphor about the flow of illegal immigration into this country does not come anywhere near the conduct that we deemed sufficient to cast doubt on the fairness of the hearing in either Bosede or Castilho de Oliveira. We thus conclude that the government did not violate petitioner’s due process rights.
C. Proof of Alienage
We have repeatedly held that there is no presumption of innocence in immigration proceedings. Chavez-Raya v. INS, 519 F.2d 397 (7th Cir. 1975). Moreover, since the “purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws,” “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” Lopez-Mendoza, 468 U.Sat 1039. Accordingly, we have long found permissible negative inferences drawn by immigration judges from a person’s refusal to answer questions about their origin during a hearing. Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir. 2006); see also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 157 (1923) (holding that there is no “presumption of citizenship comparable to the presumption of innocence in a criminal case. . . . To defeat deportation it is not always enough for the person arrested to stand mute at the hearing and put the Government upon its proof.”).
In light of this precedent, the somewhat sparse record before the IJ was nonetheless sufficient for the government to meet its burden of making a prima facie showing of alienage. Form I-213 explains that Gutierrez-Berdin is a citizen of Mexico, establishing foreign origin. Petitioner does not dispute this fact, or argue that any other part of the document is factually wrong. If Gutierrez-Berdin was present in the United States legally, he could have certainly stated as much without being concerned about self-incrimination, so his silence on the matter reasonably should lead to a negative inference. After the government presented evidence of alienage, the burden of proving lawful presence in the

Denial of Motion to Reopen and Reconsider
In a last-ditch effort to change the outcome of the appeal, Gutierrez-Berdin contends that the BIA erred when it denied his motion to reopen and reconsider his case. In this respect, we again find his arguments unpersuasive. His claim that the Board’s use of “we” in a single-member decision prejudiced him has no merit or support from legal authority. Petitioner’s argument that the agency erred by failing to consider Mexico’s problem with drug violence fares no better because he did not demonstrate that there was a reasonable possibility or clear probability that he personally would be persecuted on account of a protected characteristic. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B); Pelinkovic v. Ashcroft, 366 F.3d 532, 539 (7th Cir. 2004) (“We note, as we have many times before, that crisis conditions common to all citizens of the affected country do not present a prima facie case warranting reopening of an asylum claim.”). The Board did not abuse its discretion in denying petitioner’s motion.
III. Conclusion
For the foregoing reasons, we DENY in part and DISMISS in part this petition for review.

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Thursday, August 12, 2010

HHS Updates Poverty Income Guidelines 2010

The Department of Health and Human Services (HHS) has published poverty guidelines for the remainder of 2010, which are effective August 3, 2010, unless an office administering a program using the guidelines specifies a different effective date for that particular program. The 2010 guidelines will remain in effect until the HHS publishes the 2011 poverty guidelines. Since the publication of the 2010 poverty guidelines was delayed, the HHS based its update on the percentage change in the average CPI-U from calendar year 2008 to the period beginning with January 2009 and ending on May 31, 2010. The percentage increase in the CPI-U for this period was so small that, after the rounding procedure used in the calculations, the guidelines remained unchanged from the 2009 guidelines.

The poverty guidelines are broken down into three categories: (1) poverty guidelines for the 48 contiguous states and the District of Columbia, (2) poverty guidelines for Alaska, and (3) poverty guidelines for Hawaii. The 2010 guidelines (like the 2009 guidelines) set the poverty level for the 48 contiguous states and the District of Columbia at $10,830 for one person with $3,740 for each additional person in the household. For Alaska, the poverty level remains at $13,530 for one person with $4,680 for each additional person in the household, and, for Hawaii, it remains at $12,460 for one person with $4,300 for each additional person.

In the immigration context, the guidelines are relevant for “public charge” issues, among others, and may also be useful in obtaining waivers of some application fees for certain indigent aliens, such as applicants for temporary protected status.   They are particularly important, however, in complying with the affidavit of support requirements imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

The IIRIRA created INA § 213A [8 USCA § 1183a], which provides that sponsors of all family-based and some employment-based immigrants must provide a legally enforceable affidavit (Form I-864) illustrating that they are capable of maintaining an annual income equal to at least 125% of the HHS poverty guidelines. The sponsor must meet the 125% requirement at the time when the immigrant visa or adjustment of status application is made. This calculation takes into account the total “family unit” for which the sponsor will be responsible, defined by INA § 213A(f)(6)(A)(iii) as “members of the sponsor's household (including family and non-family dependents) plus the total number of other dependents and aliens sponsored by that sponsor.”  Thus, according to the 2010 poverty guidelines, as with the 2009 guidelines, an individual in one of the 48 contiguous states or the District of Columbia would need an income of $13,537.50 for one person and $4,675 for each additional household member so that an individual who has four family members and wishes to sponsor an immigrant parent would be required to show an annual income of $36,912.50--a figure equal to 125% of the $29,530 poverty income level for a family of six. Consular officers and U.S. Citizenship and Immigration Services (USCIS) adjudicators, however, may still take into account an alien's ability to provide for himself or herself and any special circumstances, such as the need for medical treatment or other financial obligations, in determining whether the alien is likely to become a public charge.

The 2010 guidelines, while otherwise effective on the date of publication, do not become effective as to affidavits of support until October 1, 2010, pursuant to a USCIS regulation that provides that USCIS and the Department of State will not apply the new guidelines until “the first day of the second month after the date the guidelines are published in the Federal Register.” However, this has no practical effect since the 2010 guidelines are the same as the 2009 guidelines.

NOTE: The poverty guideline figures below are NOT the figures the Census Bureau uses to calculate the number of poor persons.
The figures that the Census Bureau uses are the poverty thresholds.

The 2010 Poverty Guidelines for the 48 Contiguous States and the District of Columbia
Persons in family Poverty guideline
1 $10,830
2 14,570
3 18,310
4 22,050
5 25,790
6 29,530
7 33,270
8 37,010
For families with more than 8 persons, add $3,740 for each additional person.

2010 Poverty Guidelines for Alaska
Persons in family Poverty guideline
1 $13,530
2 18,210
3 22,890
4 27,570
5 32,250
6 36,930
7 41,610
8 46,290
For families with more than 8 persons, add $4,680 for each additional person.

2010 Poverty Guidelines for Hawaii
Persons in family Poverty guideline
1 $12,460
2 16,760
3 21,060
4 25,360
5 29,660
6 33,960
7 38,260
8 42,560
For families with more than 8 persons, add $4,300 for each additional person.

SOURCE:  Federal Register, Vol. 75, No. 148, August 3, 2010, pp. 45628–45629

The separate poverty guidelines for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period.  Note that the poverty thresholds — the original version of the poverty measure — have never had separate figures for Alaska and Hawaii.  The poverty guidelines are not defined for Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, the Republic of the Marshall Islands, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and Palau.  In cases in which a Federal program using the poverty guidelines serves any of those jurisdictions, the Federal office which administers the program is responsible for deciding whether to use the contiguous-states-and-D.C. guidelines for those jurisdictions or to follow some other procedure.

The poverty guidelines apply to both aged and non-aged units.  The guidelines have never had an aged/non-aged distinction; only the Census Bureau (statistical) poverty thresholds have separate figures for aged and non-aged one-person and two-person units.

Programs using the guidelines (or percentage multiples of the guidelines — for instance, 125 percent or 185 percent of the guidelines) in determining eligibility include Head Start, the Food Stamp Program, the National School Lunch Program, the Low-Income Home Energy Assistance Program, and the Children’s Health Insurance Program.  Note that in general, cash public assistance programs (Temporary Assistance for Needy Families and Supplemental Security Income) do NOT use the poverty guidelines in determining eligibility.  The Earned Income Tax Credit program also does NOT use the poverty guidelines to determine eligibility.  For a more detailed list of programs that do and don’t use the guidelines, see the Frequently Asked Questions (FAQs).

The computations for the poverty guidelines for the remainder of 2010 are available.
The poverty guidelines may be formally referenced as “the poverty guidelines updated periodically in the Federal Register by the U.S. Department of Health and

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Wednesday, August 4, 2010

BIA generally extends full faith and credit to state-court decisions which vacate or modify, nunc pro tunc, criminal convictions.

BIA decision extending full faith and credit to a Georgia vacatur.

Decision of the Board of Immigration Appeals

File:    A044 512 066 - Atlanta, GA   
In re: MOBUTO KIZUNGAa.k.a. Joseph Mobuto Kizunga


Notice:    Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. §
1227(a)(2)(A)(iii)] - Convicted of aggravated felony

APPLICATION:    Termination of proceedings JUL 292010
Decision of the Board of Immigration Appeals IN REMOVAL PROCEEDINGS APPEAL
File:    A044 512 066 - Atlanta, GA In re: MOBUTO KIZUNGA a.k.a. Joseph Mobuto Kizunga

Notice:    Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony

APPLICA TION:    Termination of proceedings JUL 29, 2010

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's September 17,2008, decision, terminating proceedings. The respondent, a native and citizen of the Democratic Republic of the Congo and a lawful permanent resident of the United States, opposes the appeal.    The appeal will be dismissed.

We review findings of fact, including the determination of credibility, under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008).

We adopt and affirm the Immigration Judge's decision. Matter of Burbano, 20 I&N Dec. 872, (BIA 1994).    The Immigration Judge terminated proceedings, reasoning that the respondent had presented sufficient evidence that his state court criminal convictions for domestic violence and interfering with a 911 call had been vacated and were no longer convictions for immigration purposes. The DHS argues that the Georgia state court, in vacating the convictions, acted ultra vires, and that the respondent is removable as an alien who has been convicted of an aggravated felony.

This Board generally extends full faith and credit to state-court decisions which vacate or modify, nunc pro tunc, criminal convictions. Matter of Cota- Vargas, 23 I&N Dec 849 (BIA 2005) (a court's decision to reduce or modify an alien's criminal sentence nunc pro tunc); Matter of Song, 23 I&N Dec. 173 (BIA 2001) (order changing the length of imprisonment such that the crime no longer qualified as an aggravated felony); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (conviction vacated pursuant to section 440 of the New York criminal procedure law). In this case, the state court action is entitled to full faith and credit. According to the document, a judge of the A044 512 066 state court of Carroll County and an assistant solicitor of that county agreed with the respondent that his conviction had been obtained after his Sixth Amendment right to counsel was violated and that his plea had not been entered into in a knowing and voluntary fashion. We are not convinced by the DHS arguments that the judge and the assistant solicitor were acting ultra vires. We do not dispute the possibility that the document was not fully compliant with particular details of Georgia procedure, but we cannot conclude that any such irregularities were so significant as to preclude us from extending full faith and credit.

The following order shall be issued. ORDER: The DHS's appeal is dismissed.
Case Link download

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