Lin Jiang, Seventh Circuit: Asylum/Motion to Reopen/Ineffective Assistance of Counsel/Changed Country Conditions

Lin Jiang v. Eric Holder, Jr., 09-3179
Court of Appeals for the Seventh Circuit. Friday, March 18th, 2011
Status: Published/Precedential
Lin_Jiang_v._Eric_Holder_Jr..pdf 
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In Lin Xing Jiang v. Holder, 2011 WL 923279 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of China who had unsuccessfully endeavored to reopen her completed removal proceeding in order to advance new claims for asylum based on her contention that her previous attorney had neglected to present a claim of religious persecution to the immigration court and on her alleged fear of persecution due to having giving birth to two children in the U.S. The circuit court ruled that the Board's decision did not constitute an abuse of discretion inasmuch as the petitioner had not complied with the procedural requirements pertaining to ineffective assistance of counsel (IAC) claims and she had not established changed country conditions in her native China in order to excuse her belated motion to reopen (MTR).

The petitioner came to the U. S. Virgin Islands in 2000 and was subsequently placed into removal proceedings for being present in the U.S. without having been admitted or paroled. She filed for asylum, claiming that she had been forced to abort a pregnancy by the Chinese government. The IJ concluded that her story was not credible and thus denied her applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief. She appealed the IJ's decision to the BIA, which affirmed the decision without an accompanying opinion. Over four years later, well-beyond the 90-day statutory period, she filed her MTR seeking an exemption based on changed country conditions, citing 8 CFR § 1003.2(c)(3)(i). She asserted, for the first time, that she feared persecution based on her Catholic religion. She also cited, as new evidence, the fact that, since the time of her immigration court hearing, she had given birth to two children in the U.S. in violation of China's family planning policies. In addition, she averred that circumstances had worsened for practicing Catholics in China and that, should the U.S. remove her to her country, she would return to her former underground church and risk persecution. She also related that, although she had told her immigration lawyer that she had grown up as a Catholic in China, he did not include a claim for religious persecution in her initial petition for asylum.

In rejecting this MTR, the Board concluded that the petitioner had not submitted adequate evidence that members of underground churches were in more danger than they had been at the time of her hearing in 2002. The Board noted that the petitioner neither specifically claimed that her former attorney had been ineffective nor complied with the requisite procedural formalities for an IAC claim. In a footnote, the Board identified an additional procedural deformity by virtue of the petitioner's failure to submit a new application as part of the MTR.

Before the circuit court, the petitioner conceded that the evidence presented with her motion was not technically “new” evidence. She asserted, however, that it was not available at the initial hearing before the IJ because her attorney failed to present it, thus depriving her of the opportunity to present all of her persecution claims. Citing to Toure v. Holder, 624 F.3d 422 (7th Cir. 2010), the court pointed out that asylum seekers hold no Sixth Amendment right to counsel, but that it has recognized that the denial of effective assistance of counsel may, under certain circumstances, violate the due process guarantee of the Fifth Amendment. It noted that the Board has historically acknowledged this potential for a due process violation and has formulated explicit requirements for a litigant to advance an IAC claim in a precedent decision, Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). Explaining that the court has previously upheld the Lozada protocol (including the necessity to provide an affidavit establishing the agreement with counsel, provision of notice to counsel with an opportunity to respond to the allegations, and filing of a complaint with the governing disciplinary authorities or explaining why this was not accomplished), the court observed that the petitioner failed to satisfy any of the Lozada requirements or to even articulate a specific claim of IAC.

The court also concluded that the petitioner failed to demonstrate that there were material changes in the relevant circumstances in China, declaring that cumulative evidence that the conditions asserted in the original application persisted fails to meet this burden. The court took judicial notice of the State Department's 2009 Country Report, which actually offers a glimmer of hope for practicing Catholics as it suggests a relaxation of controls over their unregistered churches. In regard to the petitioner's expression of concern for having two children in the U.S. in contravention of China's one-child policy, the court cited to its prior decision in Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007), which held that an asylum applicant cannot claim changed country conditions based on her own actions in the U.S. when the conditions in the country of origin have not materially changed. In light of the failure of the petitioner to have timely petitioned the court following the BIA's initial decision against her, the court declined to address her arguments regarding the merits of her original asylum claim.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or CAT), was opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp No. 51 at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the U.S. Apr. 18, 1988).

Matter of Sesay: K-1 Fiancé(e) Who Timely Married Petitioner May Adjust Status Even If Marriage Has Ended, BIA Holds

The Board of Immigration Appeals held in Matter of Sesay, 25 I & N Dec. 431 (Mar. 17, 2011) that (1) under INA § 245(d) [8 USCA § 1255(d)] (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner (Matter of Zampetis, 14 I. & N. Dec. 125 (Reg. Comm'r 1972), superseded), (2) a fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than two years old at the time when the adjustment application is adjudicated is not subject to the provisions for conditional resident status under INA § 216 [ 8 USCA § 1186a] (2006), (3) a fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of INA § 245(a) [8 USCA § 1255(a)] on the date when he or she is admitted to U.S. as a K-1 nonimmigrant provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days, (4) a fiancé(e) visa holder may be granted adjustment of status under INA § 245(a) and (d) even if the marriage to the fiancé(e) visa petitioner does not exist at the time when the adjustment application is adjudicated if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petition.

The BIA held that an alien who enters on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) AILA Doc. No. 11032262.

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The respondent, a native and citizen of Sierra Leone, met his future United States citizen wife in 1997 when they were both studying in Addis Ababa, Ethiopia. She filed a Petition for Alien Fiancé(e) (Form I-129F) on the respondent’s behalf, which was approved by the former Immigration and Naturalization Service (“INS”)1 on October 27, 1999. The respondent was issued a K-1 nonimmigrant fiancé visa pursuant to section 101(a)(15)(K)(i) of the Act, 8 U.S.C. § 1101(a)(15)(K)(i) (2000), on February 4, 2000. On April 18, 2000, the respondent was admitted to the United States as a fiancé for a 90-day period. He married the fiancée petitioner on April 28, 2000. The couple had a son, born March 29, 2001. On June 20, 2001, the respondent filed an adjustment of status application with the INS.

On November 8, 2002, the INS mistakenly denied the respondent’s adjustment application because it had not adjudicated the application within 2 years of his April 28, 2000, marriage. The couple divorced on June 5, 2003. In a Notice to Appear dated October 29, 2003, the Department of Homeland Security (“DHS”) alleged that the respondent was in the United States in violation of law pursuant to section 237(a)(1)(B) of the Act, 8 U.S.C. § 1227(a)(1)(B) (2000). On November 24, 2004, the respondent married his current United States citizen spouse. She filed a family-based immigrant visa petition, Form I-130 (Petition for Alien Relative), on the respondent’s behalf, which the United States Citizenship and Immigration Services (“USCIS”) approved on July 26, 2005.

In removal proceedings, the respondent conceded removability and sought to renew his adjustment application based on the approved fiancé petition filed by his first wife. He also filed an adjustment application based on the approved I-130 filed by his current wife. In a decision dated April 24, 2007, the Immigration Judge denied both adjustment applications. He denied adjustment based on the approved I-130 filed by the second wife because the respondent, having been admitted on a fiancé visa, could only adjust status as a result of the marriage to the fiancée petitioner. The Immigration Judge denied the adjustment application based on the first marriage for lack of jurisdiction because the respondent was no longer married to the fiancée petitioner. The respondent has appealed from the Immigration Judge’s decision.

ISSUES

Fiancé(e) Adjustment Based on a Second Marriage

The respondent now concedes that he cannot adjust status based on the I-130 visa petition filed by his second wife. We agree, because the language of section 245(d) of the Act clearly precludes fiancé(e)s from adjusting status on any basis other than marriage to the fiancé(e) petitioner. See Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007) (stating that the language of section 245(d) of the Act is clear insofar as it bars K-1 visa holders from adjusting status on any basis other than marriage to the fiancé(e) petitioner); see also Kalal v. Gonzales, 402 F.3d 948, 951 (9th Cir. 2005) (same).

Jurisdiction Over Fiancé(e) Adjustment

On appeal, the DHS acknowledges that the INS improperly denied the respondent’s adjustment application in 2002, because there is no requirement that a fiancé(e) adjust status within 2 years of the marriage. We agree with the parties that the Immigration Judge has jurisdiction to adjudicate the renewal of the respondent’s fiancé adjustment application under section 245(a) of the Act in removal proceedings. See 8 C.F.R. §§ 245.2(c), 1245.2(c) (2010).

Dissolution of a Fiancé(e)’s Marriage

The remaining issue is whether a fiancé(e) visa holder who timely marries the fiancé(e) petitioner remains eligible to adjust status outside the conditional residence period after dissolution of their bona fide marriage

K-1/AOS- marriage terminated at time of adjustment of status.
A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements ofsection 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.  Therefore, a fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that s/he entered into bona fide a marriage within the 90-day period to the fiancé visa petitioner.  Consistent with Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008).

Here, the respondent completed the required steps in the fiancé adjustment process.  He was not subject to the  provisions of section 216 because his marriage was more than 2 years old when his adjustment application was adjudicated.  He established his prima-facie eligibility for adjustment of status based on his marriage to the fiancé(e) petitioner.  The respondent seeks to renew his adjustment application premised on his first marriage, which the INS improperly denied.  Thee respondent’s divorce from the fiancé(e) petitioner does not render him ineligible for adjustment of status under sections 245(a) and (d) of the Act.

http://www.justice.gov/eoir/vll/intdec/vol25/3707.pdf

United States Supreme Court created a entirely new exception to the hearsay rule. Michigan v. Bryant

Holding: A statement given to police by a wounded crime victim identifying the person who shot him may be admitted as evidence at the trial if the victim dies before trial and thus does not appear. The Court concluded that because the primary purpose of the interrogation was to enable police to deal with an ongoing emergency, the statements resulting from that interrogation were not testimonial and could be admitted without violating the Confrontation Clause. 
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Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant’s house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment’s Confrontation Clause, as explained in Crawford and Davis, rendered Covington’s statements inadmissible testimonial hearsay.

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 532.

(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands . . . unavailability and a prior opportunity for cross-examination.” 541 U. S., at
68. Crawford did not “spell out a comprehensive definition of ‘testimonial,’ ” but it noted that testimonial evidence includes, among other things, “police interrogations.” Ibid. Thus, Sylvia Crawford’s statements during a station-house interrogation about a stabbing were testimonial, and their admission when her husband, the accused, had “no opportunity” for cross-examination due to spousal privilege made out a Sixth Amendment violation. In Davis and Hammon, both domestic violence cases, the Court explained that“[s]tatements are non testimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation’s] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U. S., at 822. Thus, a recording of a 911 call describing an ongoing domestic disturbance was non testimonial in Davis, where the victim’s “elicited statements were necessary to be able to resolve [the ongoing] emergency,” and the statements were not formal. Id., at 827. But the statements in Hammon were testimonial, where the victim was interviewed after the event in a room separate from her husband and “deliberately recounted, in response to police question-ing” the past events. Id., at 830. Here, the context is a non domestic dispute, with the “ongoing emergency” extending beyond an initial victim to a potential threat to the responding police and the public.This context requires additional clarification of what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.

(b) To make the “primary purpose” determination, the Court must objectively evaluate the circumstances in which the encounter be-tween the individual and the police occurs and the parties’ statements and actions. Pp. 12–23.
(1) The primary purpose inquiry is objective. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred.
(2) The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828–
830. An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” id., at 822, but on “end[ing] a threatening situation,” id., at 832. The Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. An assessment of whether an emergency threatening the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. The State Supreme Court also did not appreciate that an emergency’s duration and scope may depend in part on the type of weapon involved; the court below relied on Davis and Hammon, where the assailants used their fists, as controlling the scope of an emergency involving a gun. A victim’s medical condition is important to the primary purpose inquiry to the extent that it sheds light on the victim’s ability to have any purpose at all in responding to police questions and on the likelihood that any such purpose would be a testimonial one.   It also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. This does not mean that an emergency lasts the entire time that a perpetrator is on the loose, but trial courts can determine in the first instance when an interrogation transitions from non testimonial to testimonial. Finally, whether an ongoing emergency exists is simply one factor informing the ultimate inquiry regarding an interrogation’s “primary purpose.” Another is the encounter’s informality. Formality suggests the absence of an emergency, but informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. The facts here— the questioning occurred in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion— distinguish this case from Crawford’s formal station-house interrogtion. Pp. 14–20.
(3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, since both interrogators and declarants may have mixed motives. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an ongoing emergency, victims may want the threat to end, but may not envision prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also consistent with this Court’s prior holdings. E.g., Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23.


(c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the interrogation’s “primary purpose” was “to enable police assistance to meet an ongoing emergency,” 547 U. S., at 822. The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute’s potential scope and thus the emergency encompassed a potential threat to the police and the public. And since this case involved a gun, the physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining the “primary purpose of the interrogation” as evidenced by the statements and actions of Covington and the police. The circumstances of the encounter provide important context for understanding Covington’s statements to the police. When he responded to their questions, he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Ibid. For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime. They asked exactly the type of questions necessary to enable them “to meet an ongoing emergency.” Ibid. Nothing in Covington’s responses indicated to the police that here was no emergency or that the emergency had ended. Finally,this situation is more similar to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. The officers all arrived at different times; asked, upon arrival, wha had happened; and generally did not conduct a structured interrogation. The informality suggests that their primary purpose was to ad-dress what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Pp. 23–32. 483 Mich. 132, 768 N. W. 2d 65, vacated and remanded. 09-150 Michigan v. Bryant (02/28/2011