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Summaries of December, 2015 11th Circuit Opinions related to Immigration

This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vicolas, et al. v. U.S. Attorney General, 14-15174 (11th Cir. Nov. 30, 2015) (unpublished)
The 11th Circuit Court of Appeals (11th Circuit) found that the record did not compel reversal of the BIA’s and IJ’s determination that the petitioner failed to credibly and persuasively establish a nexus between alleged persecution and his political beliefs in his asylum claim. Under Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007), the Court must be compelled to find that the alien will be persecuted because of his political opinion in order to reverse a finding of lack of sufficient nexus. Though an applicant’s testimony alone may be sufficient to meet his burden of proof, the Court found petitioner’s testimony of alleged incidents of police beatings due to his political beliefs was inconsistent, vague and implausible. The Court noted that in all organized protests or meetings, the petitioner was the only one to be harmed even though he had only just been involved in politics in Moldova for a few months. Other individuals, who had opposed the Communist Party for years, were not hurt. For every arrest, there was another plausible reason for his detention that was unrelated to his political views. Furthermore, his wife, who was present at one of the incidents, did not testify to corroborate his testimony. Lastly, the petitioner’s evidence was mostly based on second-hand information as it originated directly from the petitioner without independent confirmation.

Kaminskaya v. U.S. Attorney General, No. 14-14343 (11th Cir. Dec. 7, 2015) (unpublished) The 11th Circuit upheld the BIA’s affirmance of the IJ’s denial of asylum based on an adverse credibility finding and a failure to corroborate the petitioner’s testimony. The BIA and IJ cited a number of inconsistencies in the petitioner’s testimony and rejected as unconvincing her attempts to explain the inconsistencies. Because the petitioner lacked credibility, adequate corroboration was required. The corroborating evidence consisted of unauthenticated documents, unauthenticated medical record, subpoenas, a letter from the ministry of education and letters from friends and family that were not notarized or sworn to, that was given little weight. Finally, the country report corroborated general conditions but did not corroborate the petitioner’s individual claim of past persecution.

Jin v. U.S. Attorney General, No. 15-11972 (11th Cir. Dec. 9, 2015) (unpublished)
The 11th Circuit denied the petition for review of the BIA’s denial of the petitioner’s motion to reopen proceedings. The petitioner filed a motion to reopen 10 years after the BIA had affirmed the IJ’s denial of her asylum claim. The petitioner filed the motion, along with a new asylum application, on the basis of changed country conditions after her father-in-law’s arrest in China for attending church. The BIA concluded the evidence did not demonstrate changed country conditions and denied the motion to reopen as untimely. The Court ruled that the BIA did not abuse its discretion in finding the letters from the petitioner’s father-in-law, a fellow church member, unreliable. Moreover, country reports from the time of the petitioner’s original hearing showed punishment of church groups, so the petitioner did not establish materially changed conditions at the time of filing the motion to reopen.

United States of America v. Yanes-Cruz, No. 15-11173 (11th Cir. Dec. 11, 2015) (unpublished) The Court upheld the District Court’s determination that the petitioner’s Georgia battery conviction qualified as an aggravated felony for purposes of sentence enhancement. The petitioner was convicted of battery under O.C.G.A. § 16-5-23.1(a) and later pled guilty to illegal reentry. Using the categorical approach, the District Court concluded that the statutory language at issue, “intentionally causing substantial physical harm or visible bodily harm,” qualified the statute as a crime of violence and therefore an aggravated felony. The Court cited U.S. v. Griffith, 455 F.3d 1339 (11th Cir. 2006) in which the Court held that a person cannot make “physical contact of an insulting or provoking nature…without exerting some level of physical force.” Thus the higher level of contact at issue in the instant case necessarily involved the use of physical force and was thus a crime of violence.

Hernandez v. U.S. Attorney General, No. 14-12762 (11th Cir. Dec. 14, 2015) (unpublished)
The Court granted the petition for review, vacated the IJ’s and BIA’s decisions and remanded for additional investigation or explanation. The petitioner testified that he had been contacted by the FARC several times, even after fleeing his hometown to relocate for the purpose of evading the FARC, prior to being kidnapped and held for 14 days. During that period he was forced to march almost continuously with little rest, food or water. He eventually fell unconscious and was left by his captors on the side of a road. Neither the petitioner nor his wife reported the kidnapping to the police because they did not trust them. Shortly after the petitioner’s release, he and his wife came to the U.S. and applied for asylum. The IJ held the petitioner credible but denied the case based on the absence of sufficiently corroborating evidence to show a nexus for one of the five protected grounds. The IJ found it “difficult to understand” why the FARC targeted and kidnapped the petitioner and then left him on the side of the road if they, as they had stated to the petitioner, intended to kill him. The BIA dismissed the appeal because the IJ had the authority to request further corroboration. On appeal, the petitioner argued that the IJ could not require corroborating evidence without first finding that such evidence was available. After first citing the REAL ID Act, which “expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony,” the Court concluded that the IJ’s and BIA’s decisions were insufficient to permit meaningful appellate review for four reasons: a) some of the corroborating evidence cited by the IJ and BIA was not available; b) the IJ’s credibility determination was ambiguous in that the Court found the petitioner credible but also found portions of his testimony implausible in concluding that he failed to carry his burden of proof; c) in narrowly focusing on the nexus requirement, the IJ unreasonably required the petitioner to present certain corroborating evidence that was impossible to obtain; and d) the BIA did not address the petitioner’s argument that his credible testimony, in addition to the corroborating evidence that he did submit, was sufficiently detailed to establish past persecution.

Pirela v. U.S. Attorney General, 14-13767 (11th Cir. Dec. 22, 2015) (unpublished) Petitioner’s conviction under 18 U.S.C. §1546(a) for fraud and misuse of a visa was supported by sufficient evidence, the 11th Circuit held. The Court rejected petitioner’s argument that the meaning of the phrase “procured by means of any false claim or statement,” as it is used in the first paragraph of §1546(a), should be construed to include a heightened materiality standard. It agreed that the government had met its burden of proof that the false statement had a natural tendency to influence or was capable of influencing agency action. The Court pointed out that the application of a heightened standard, which would put on the government the burden of proving what would have happened absent the false statement, would encourage lying. Pirela also stated that he had not been arrested or convicted for any offense in his DS-160 application, whereas, he had in fact been convicted of a crime. At the Miami International Airport, CBP officers found his criminal history and he was arrested. Since having prior arrests and convictions are relevant to admissibility, the Court agreed that Pirela’s lie was significant tohis visa application as it averted further inquiry into his criminal history prior to issuing the visa.

Martinez, et al. v. U.S. Attorney General, 15-10702 (11th Cir. Dec. 23, 2015) (unpublished)
The 11th Circuit upheld the BIA and IJ’s adverse credibility determination and finding of lack of sufficient corroborating evidence to meet petitioners’ burden of proof for their asylum application. Under the substantial evidence test, the BIA and IJ’s decisions were supported by “reasonable, substantial, and probative evidence on the record as a whole.”

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).
Martinez claimed that he had worked as a police officer in a specialized police force in Venezuela which arrested President Hugo Chavez in 1992. As a result of this association, he alleged he was attacked numerous times, causing him to move his family constantly. The BIA and the IJ’s reasons for their decisions included: (1) inconsistencies in testimony and the asylum application; (2) omissions from the application regarding alleged attacks; (3) lack of evidence that he participated in Chavez’s arrest or that he was politically involved at all; and (4) lack of explanation as to why some documentary evidence, such as diplomas and awards, were available, while the alleged police reports of the attacks were not.

John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or need a crimmigration consultation, no matter where you live in the world. http://www.floridacrimmigration.com

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