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Collaboration between AILA Central Florida and AILA Georgia-Alabama brings you Federal Court Summaries Part 1.

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Decisions (June through August)

Qiu v. Attorney General, 14-13838 (11th Cir. June 2015) (non-precedential) This case involved the review of the Board of Immigration Appeals’ (BIA) denial of a Chinese national for withholding of removal and Convention Against Torture (CAT). Respondent claimed she will be forcibly sterilized if removed to China because she violated China’s family planning policy by having two children in the United States. The Court granted the Petition for withholding of removal, vacated the order and remanded to the BIA to determine whether the Immigration Judge’s (IJ) factual findings were clearly erroneous. Furthermore, the Court found the BIA erred when it made a factual finding that Respondent had not established the second prong of the asylum test, being persecuted on account of race, sex, religion, nationality or particular social group, because the IJ did not make any finding of fact as to the second prong. Instead, the IJ assumed Respondent had satisfied the first two prongs and evaluated only what sanctions she was likely to face and whether they rose to the level of persecution. The Court found that the IJ and BIA cannot substitute reliance on State Department reports for analysis of the unique facts of an applicant’s case, specifically that Respondent’s local family planning office had already determined that she must undergo sterilization.

Balam-Ruiz v. Attorney General, 14-15101 (11th Cir. June 2015) (non-precedential) The Court denied Respondent’s Petition for Review seeking to reverse the BIA’s and the IJ’s denial of withholding of removal. Respondent’s claim was based on his alleged past persecution in Guatemala by the Mara Salvatrucha gang because, as a catechist in his local Roman Catholic Church, he had refused to join the Maras; thus, he was a member of a particular social group (PSG). The Court held Respondent is not a member of a PSG because PSG’s members must be persecuted for a shared fundamental or immutable characteristic. Here, the Maras did not persecute religious teachers who oppose gang membership and deter others from joining such gangs any differently than the persecute others who oppose them. Therefore, Respondent had not distinguished his PSG from people who oppose criminal organizations generally, and the 11th Circuit and BIA have concluded that people who oppose criminal organizations generally do not constitute a PSG. See Castillo-Arias v. U.S. Attorney General, 446 F.3d 1190, 1198 (11th Cir. 2006); Matter of S-E-G-, 24 I&N Dec. 579, 581, 590 (BIA 2008). The defining attribute of Respondent’s proposed PSG was persecution, and the defining attribute of a PSG cannot be persecution. Castillo-Arias, 446 F.3d at 1198.

Gutierrez Castillo v. U.S. Attorney General, 14-14342 (11th Cir. July 2015) (non- precedential) The Court denied Respondent’s Petition seeking review of a BIA’s affirmation of IJ’s removal order because of an aggravated felony. Respondent, a military veteran, had a pending naturalization application, and he argued his case should have been continued or terminated pursuant to 8 U.S.C. §1440 (relating naturalization for certain veterans). IJ denied the continuance and found him removable, saying that all three of his convictions, manufacture of cannabis, burglary, and attempted second degree murder, were aggravated felonies. The BIA said that attempted second-degree murder was definitely an aggravated felony and so declined to decide whether the other charges were aggravated felonies. The BIA also decided that the IJ properly denied Respondent’s request for a continuance because USCIS had not provided an affirmative communication regarding his prima facie eligibility to naturalize and had indicated that Respondent was ineligible for naturalization. See Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007).
The Court stated the BIA found that attempted murder was an aggravated felony and Respondent did not contend that the BIA committed any error in reaching this conclusion; thus, Respondent abandoned any challenge to the substantive basis for his removal. Furthermore, the Court found the BIA’s interpretation of a regulation in Matter of Acosta Hidalgo, was reasonable and entitled to deference from the 11th Circuit. In Acosta Hidalgo, the BIA determined that an IJ may terminate proceedings based on an alien’s pending naturalization application only if the DHS has issued an affirmative communication indication that the alien is prima facie eligible for naturalization. The interpretation is reasonable because DHS has sole authority over naturalization decisions, not plainly erroneous or inconsistent with the regulation. The regulation was ambiguous because it left out who was to make the prima facie eligibility determination, and BIA was entitled to clarify.

Isufi v. U.S. Attorney General, 14-15753 (11th Cir. July 2015) (non-precedential) Respondent, an Albanian who resettled in Greece with his family in 1991, sought review of the BIA’s denial of his asylum, withholding of removal, and CAT claims. The Court denied the petition. The Court determined there was substantial evidence supporting the IJ’s conclusion that Respondent’s fear of future harm came from a family dispute and he resettled in Greece for economic reasons, not to flee persecution. Respondent argued Albanians were subject to persecution in Greece; however, he was not seeking asylum from Greece, and Respondent could relocate within Albania and avoid the actual or feared harm upon which he claimed asylum.

Ene v. U.S. Attorney General, 14-15305 (11th Cir. Aug. 2015) (unpublished) The Court upheld the BIA’s denial based on adverse credibility finding, consideration of fraud allegations, and application of REAL ID Act to applications for asylum, withholding, and relief under the CAT. Adverse credibility may be based on inconsistencies, inaccuracies or falsehoods regardless of whether they go the heart of the applicant’s claim. Here, the Petitioner had committed fraud in obtaining visa and had attempted to alter a Social Security card. The Court also ruled that the REAL ID Act applies to all applications for asylum or withholding filed after May 11, 2005.

Lawal v. U.S. Attorney General, 14-13234 (11th Cir. Aug. 2015) (unpublished) The Court affirmed the BIA’s application of Matter of Rivas, 26 I&N Dec. 130 (BIA 2013) to Petitioner’s case even though it was decided after Petitioner’s case had already commenced. The BIA did not retroactively apply a new rule of law to Petitioner’s case. Rivas was based on amendments to §212(h) that took effect in the 1990s before Petitioner was convicted of the relevant crimes, left and returned to the U.S., or filed waiver application. Rivas did not change the law; rather, it clarified what the law under §212(h) had been during the timeframe relevant to Petitioner’s case.

Zelaya v. Secretary, Florida Dept of Corrections, Warden, Okeechobee Correctional Institution, 12-16462, 13-10256 (11th Cir. Aug. 2015) (Published): The Court upheld the District Court’s dismissal of his pro se habeas petition. Petitioner filed a habeas petition to challenge his federal conviction for illegal reentry after deportation under INA § 276(a), (b)(2). Despite the fact that the IJ granted Petitioner’s motion to reopen, thus rescinding the 1996 deportation order, the proper procedural vehicle was a motion to vacate the sentence under 28 U.S.C. §2255, rather than a habeas petition under 28 U.S.C. §2241.

Marcelu v. U.S. Attorney General, 14-15229 (11th Cir. Aug. 2015) (unpublished) The Court upheld the BIA affirming the IJ’s denial of Petitioner’s application for asylum based on an adverse credibility finding. The basis for that finding was found to be supported by substantial evidence. Discrepancies between statements made in his asylum application and his testimony before the IJ included: Petitioner testified to living at a different address as the one stated in his asylum application; Petitioner testified that he was in hiding from 2005 to 2011 but stated in his asylum application that he worked as a bus driver during that time; a corroborating account failed to mention his sister’s murder, a key part of his claim; and Petitioner stated in his asylum application that he was a member of an anti-government group but did not testify to that fact at his hearing. Petitioner did not contend that the other evidence in the record, absent his discredited testimony, compelled a conclusion that he was or would likely be persecuted upon his return.

Gonzalez v. U.S. Attorney General, 14-14158 (11th Cir. Aug. 2015) (unpublished) The Court dismissed Respondent’s Petition for Review. After Respondent was convicted of possession of a controlled substance with intent to sell, ICE commenced removal proceedings. Respondent sought and was granted a continuance to pursue a collateral attack on his conviction. However, once the courts determined Padilla could not be retroactively applied, the IJ denied further continuances and ordered him removed due to his conviction. Respondent appealed, arguing ineffective assistance of counsel. The BIA found he did not comply with the procedural requirements of Lozada. On appeal to the 11th Circuit, Respondent asserts he did comply. However, the evidence showed otherwise. Since that was a factual finding by the BIA, the Court lacked jurisdiction to consider it; therefore it was dismissed.

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