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Summaries of Recent Immigration-Related Circuit Court Cases

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 We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.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 are the summaries 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 Cases:

Affainie v. U.S. Attorney General, 14-11367, 14-15545 (11th Cir. Oct. 2, 2015) (unpublished)

Petitioner filed two petitions for review of Board of Immigration Appeals (BIA) decisions. USCIS had denied his spouse’s I-130 petition finding that Petitioner had misrepresented a material fact by not disclosing a prior marriage. The Immigration Judge (IJ) found him removable for misrepresentation and added that his marriage to the U.S. citizen was null because he had not divorced his first wife. Although he had divorced in Ghana, the IJ found it did not dissolve their later marriage in Italy.

The BIA affirmed the IJ’s opinion. Petitioner then filed a motion to reopen claiming to have new evidence after filing for a divorce in Florida. The state judge dismissed the case stating that the parties had already divorced in Ghana. Petitioner presented this evidence to show the Ghanaian divorce also terminated the Italian marriage. The BIA disagreed, however, stating that the Florida case did not address the legality of the Italian marriage and found the new evidence immaterial. The second motion asked the BIA to reconsider sua sponte.

The 11th Circuit found that it lacked jurisdiction to review the BIA’s decision under Lenis v. U.S. Atty Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008). The Court explained under Lenis, it cannot review a BIA decision to deny a motion to reopen based on sua sponte authority because such decisions are within the agency’s discretionary realm.

William Talavera v. U.S. Attorney General, 14-12850 (11th Cir. Oct. 5 2015) (unpublished)

The 11th Circuit denied Talavera’s petition for review of denial of his application to adjust under NACARA and his motion to reopen. Talavera conceded that his conviction for Florida felony battery was a CIMT and a “violent or dangerous” offense that would require a showing of “exceptional and extremely unusual hardship” for a waiver under INA § 212(h). 8 C.F.R. § 1212.7(d).

The BIA upheld the IJ’s determination that Talavera failed to show the requisite level of hardship and additionally did not merit a favorable exercise of discretion based on his extensive criminal record involving 10 arrests involving alcohol and violence.

The Court upheld the BIA’s denial of Talavera’s motion to reopen, finding that the birth of a child, anxiety suffered by Talavera’s wife, and inferior medical and mental health services in Nicaragua failed to qualify as “exceptional and extremely unusual hardship.” The Court held it lacked jurisdiction to review the denial of discretionary relief as well as an order of removal based upon commission of a CIMT. The Court did, though, have jurisdiction to review constitutional issues or questions of law. Talavera argued the Attorney General exceeded his statutory authority by issuing 8 C.F.R. § 1212.7(d) because it imposed a heightened hardship standard for eligibility to adjust. The Court reasoned that the regulation did not affect Talavera’s eligibility for a discretionary waiver, and the Attorney General was authorized to provide guidance for weighing criminal behavior against hardship.

Ralph Hutchinson v. U.S. Attorney General, 14-12683 (11th Cir. Oct. 13, 2015) (unpublished)

The BIA affirmed the IJ’s order of removal and denial of asylum and relief under the Convention against Torture (CAT). The 11th Circuit dismissed the Petitioner’s claim that what the BIA concluded was mere harassment rose to the level of persecution. The Court denied Petitioner’s claims that: the IJ denied his right to due process by refusing his third request to continue proceedings to allow Petitioner to obtain an attorney; and the IJ was not impartial.

Regarding the issue of persecution, the Court ruled that it lacked jurisdiction to review a removal order based on commission of an aggravated felony. INA §§ 237(a)(2)(A)(iii); 242(a)(2)(C). In such a case, the only facts reviewable are whether the foreign national is: (1) an alien, (2) who is removable, (3) based on a disqualifying conviction. Concerning the due process claim, the Court conducted de novo review, and found, based upon multiple continuances and warnings, the IJ did not violate Petitioner’s 5th Amendment right to effective assistance of counsel in denying his last motion to continue. Last, the Court found that the BIA provided an adequate basis for finding that the IJ’s extensive questioning of Petitioner was not an adequate basis for finding the IJ to not be impartial.

Salinas v. U.S. Attorney General, 14-15573 (11th Cir. Oct. 23, 2015) (unpublished)

Petitioner sought review of the BIA’s denial of her motion to reopen the removal proceedings. The 11th Circuit denied the petition for review because Petitioner failed to exhaust the issues presented on appeal. The motion to reopen was filed untimely; therefore, the BIA could only grant the motion if she was to reapply for asylum, withholding of removal or CAT based on changed country conditions and the evidence was material and not previously available. The Court found that Petitioner had not previously put forth a changed country conditions argument to the BIA; rather an interest-of-justice theory. In addition, it stated that the proposed new evidence of her involvement as an informant for the State of Florida before her removal order should have been available and presented with her motion to reopen.

Twum v. U.S. Attorney General, 15-10876 (11th Cir. Oct. 26, 2015) (unpublished)

The 11th Circuit concluded that the BIA did not abuse its discretion in denying Petitioner’s motion to reconsider. In her motion, the Petitioner needed to specify errors of law or fact with support from relevant authority per INA § 240(c)(6)(C). Instead, the Court noted that she restated arguments previously presented to the BIA. The Court also noted that, under Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006), any new arguments related to the IJ’s alleged lack of jurisdiction that could have been raised earlier could not be a basis for a motion to reconsider.

Machado v. U.S. Attorney General, 15-10549 (11th Cir. Oct. 30, 2015) (unpublished)

The Court found that the BIA did not abuse its discretion in denying Petitioner’s pro se second motion to reopen and reconsider. The second motion to reconsider was untimely filed and, as a motion to reconsider denial of a previous motion to reconsider, barred by regulation. 8 CFR 1003.2(b)(2). Likewise, the second motion to reopen was untimely filed, INA 240(c)(7)(C), and also failed to present new facts/evidence that were unavailable and could not have been presented at the hearing. Although liberally construing pleadings in pro se cases, to the extent the arguments could be construed as challenging the BIA’s decision not to reopen or reconsider sua sponte, the Court lacked jurisdiction to review that determination.

Song v. U.S. Attorney General, 14-14744 (11th Cir. Nov. 2, 2015) (unpublished)

Petitioner’s application for asylum, withholding of removal and CAT were denied by the IJ and the BIA upheld the decision. The 11th Circuit denied the Petitioner’s appeal stating that he failed to establish past or future persecution.

Petitioner claimed he was being persecuted by the Chinese government as a result of his organization of a teacher’s strike and demonstration in front of a government building. However, the Court found that his arrest and detention for two days without any physical threat or harm, after which he was bailed out, did not give rise to a persecution claim. In addition, despite his arrest, he was able to travel to the United States on a business visitor visa and to later renew his Chinese passport. Petitioner did not present other evidence aside from his own statements and a country report to help establish that detention for his activities could be categorized as persecution. He also did not provide any evidence of past torture or specific threats or fears related to future torture by the Chinese government.

Richard, et al. v. U.S. Attorney General, 15-10097 (11th Cir. Nov. 12, 2015) (unpublished)

The 11th Circuit Court of Appeals vacated the BIA’s decision upholding the IJ’s denial of asylum, withholding and relief under CAT on the basis of finding Petitioner was not credible. The Court reviewed the adverse credibility finding under the “highly deferential substantial evidence test.” The Court discussed the test and the circumstances which may support an adverse credibility finding under the REAL ID Act. The Court stated that “minor perceived inconsistencies and omissions may be insufficient to support an adverse-credibility finding.” The Court then analyzed the testimony cited as the basis for the adverse-credibility finding below and determined that the record compelled reversal. The Court granted the appeal, vacated the BIA’s decision and remanded the case to the BIA for consideration of Petitioner’s alternative arguments concerning his eligibility for asylum, withholding and CAT relief.

Ramphal v. U.S. Attorney General, 15-10869 (11th Cir. Nov. 17, 2015) (unpublished)

The BIA did not err in denying Petitioner’s motion to reopen in order to present further evidence of a bona fide marriage. Petitioner had married his spouse during proceedings, so he faced a presumption that the marriage was not bona fide unless the marriage exception applied under INA §245(e)(3). Under the exception, the burden is on Petitioner to establish a bona fide marriage by clear and convincing evidence. The 11th Circuit found that the Petitioner did not support his motion to reopen with “clear and convincing evidence indicating a strong likelihood that the [Petitioner’s] marriage [was] bona fide,” Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002), as is required. He did not submit any documentation in support of a bona fide marriage and did not contend that he presented any such evidence on appeal.

The 11th Circuit also found that the BIA did not violate Petitioner’s due process rights in denying his motion to reopen. The 11th Circuit pointed out that both adjustment of status and reopening of removal proceedings are forms of discretionary relief, not constitutionally protected liberty interests. The Court also stated that he was not denied an opportunity to present evidence of a bona fide marriage and the BIA did not refuse to accept or review any documentation provided. Lastly, the Petitioner’s assertion of prejudice stemming from not having enough time to establish a bona fide marriage due to his marriage being five months old, was not acceptable.

Chen v. U.S. Attorney General, 14-15449 (11th Cir. Nov. 19, 2015) (unpublished)

The 11th Circuit upheld the BIA’s and IJ’s denial of Petitioner’s asylum claim based on his fear of persecution for his Falun Gong practices. While Petitioner demonstrated a subjective fear of future persecution, he did not show an objectively reasonable, well-founded fear of persecution. “‘Persecution’ is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and … mere harassment does not amount of persecution.” Kazemzadeh v. U.S. Atty Gen., 577 F.3d 1341, 1353. In this case, the Petitioner’s evidence that government officials in China interrogated his mother as to his Falun Gong activities and told her to urge him to return to China to accept punishment, did not constitute persecution. The Court pointed out that the threats were not specific as to the type and length of punishment. Moreover, the country reports submitted recognizing that Falun Gong practitioners have been targeted for arbitrary punishment, were insufficient because Petitioner was not a core leader, who may be subject to such treatment.

Cervantes Castro v. U.S. Attorney General, 14-13302 (11th Cir. Nov. 30, 2015) (unpublished)

The Court affirmed the IJ and BIA’s denial of withholding of removal. The Court upheld the BIA’s determination that the two incidents cited by Petitioner did not rise to the level of persecution either individually or in the aggregate. The IJ and BIA found Petitioner’s testimony unreliable and implausible that attackers assaulted him in a highly-travelled area but then let him go because they happened to be in a busy, highly-populated area. Petitioner’s “tenable” explanation for this did not compel reversal, particularly in the absence of corroborative evidence. Second, despite the detailed and consistent nature of the testimony of Petitioner and his wife regarding a second assault, the testimony was otherwise uncorroborated, and the IJ found the event unlikely. Further, Petitioner’s argument that the country report corroborated his claims was misplaced because the report did not corroborate any of the incidents Petitioner claimed to have personally experienced. In light of Court precedent, Petitioner’s brief kidnapping and beatings that did not result in serious physical injury, done in conjunction with verbal threats, did not individually or cumulatively rise to the level of past persecution.

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