Published on:

June 2016 AILA Georgia-Alabama, Central Florida and South Florida Litigation Newsletter is now available

This is the latest issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals, District Court decisions from Georgia, Florida, and Alabama, OCAHO decisions, and published and unpublished BIA decisions The summarized cases are for April and May 2016 except for unpublished BIA decisions, which date back to March 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

11th Circuit Decisions

Abdallah v. U.S. Atty Gen., No. 15-12301 (11th Cir. Mar. 30, 2016) (unpublished) – The court dismissed in part and denied in part the petition for review of the BIA’s affirmance of the IJ’s denial of the petitioner’s application for asylum, withholding of removal, and relief under the CAT. The petitioner claimed he feared harm if returned to Egypt based on his religion, political opinion and membership in a PSG. Specifically, he feared persecution for refusing to serve in the Egyptian military, rejecting Islam, and marrying a Christian. The petitioner filed outside the one-year deadline based upon changed conditions. The IJ found the petitioner not credible, no past persecution or reasonable fear of future persecution, and no extraordinary circumstances to excuse the one-year filing deadline. In particular, forced conscription cannot serve as a basis for asylum, and the petitioner’s rejection of Islam would not be publicly noticeable. The BIA affirmed. The 11th Circuit lacked jurisdiction to consider whether the filing was timely or extraordinary circumstances excused an untimely filing. Regarding withholding, compulsory military service does not establish a well-founded fear of future persecution unless the applicant would be disproportionately punished for refusing to serve or would be forced to join an internationally condemned military. Neither condition was met here.

Shchupak v. U.S. Atty Gen., No. 15-14363 (11th Cir. Apr. 14, 2016) (unpublished) – The 11th Circuit affirmed the IJ and BIA’s denial of petitioner’s claim for a hardship waiver of inadmissibility under INA § 212(h). The court pointed out that the BIA’s current position allows use of the waiver only where an alien that has committed a deportable offense is either seeking admission or, if already in the U.S., has applied for adjustment of status. In this case, the petitioner was not eligible for the waiver because he was a deportable alien in the U.S., but had not concurrently filed for adjustment of status.

Gonzalez v. U.S. Atty Gen., No. 15-12878 (11th Cir. Apr. 19, 2016) (published) – The 11th Circuit denied petitioner’s appeal of the BIA’s denial of withholding of removal and relief under the CAT. The court agreed the petitioner did not show that he was a member of a particular social group under 8 U.S.C. § 1231(b)(3) and that he did not present sufficient evidence for relief under the CAT. Relying on Matter of E-A-G-, I. & N. Dec. 591 (BIA 2008), the BIA concluded that being a former member of the Mara 18 gang could not be a particular social group. It explained that Congress did not intend to include shared past experiences of violent organized crime when it created the “particular social group” basis for relief. In addition, the BIA held that the petitioner failed the particularity requirement basing itself on Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). In that case, the BIA reasoned that the group consisting of former members of the Mara 18 gang could include any person regardless of age or sex and was “not limited to those who have had a meaningful involvement with the gang and thus consider themselves – and be considered by others –as ‘former gang members.'” Id. at 221. In its decision, the BIA distinguished its position from the 4th, 6th and 7th Circuits, which reached different conclusions as to whether a former gang member is part of a particular social group. See Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014); Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010); Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009). Neither the 4th nor the 7th Circuits applied Chevron deference. The 6th Circuit did apply Chevron, however, it dealt with a different issue revolving around whether former membership in a gang is an immutable characteristic.

Shahla v. U.S. Atty Gen., No. 15-11734, 15-13444 (11th Cir. Apr. 19, 2016) (unpublished) – The court dismissed in part and denied in part the petition for review of the BIA’s affirmance of the IJ’s denial of petitioner’s applications for cancellation of removal and asylum. The IJ determined that petitioner was inadmissible for attempting to procure immigration documents by fraud, and for being an alien convicted of two or more CIMT’s. The BIA affirmed the IJ’s decision that petitioner was ineligible for cancellation of removal because petitioner’s convictions outweighed the positive equities of the case. The BIA affirmed the IJ’s decision that Petitioner was barred from asylum and withholding of removal because he was convicted of particularly serious crimes. The BIA affirmed the IJ’s finding that petitioner had not met his burden to establish that he was more likely than not to be tortured in Syria. The BIA denied petitioner’s motion to reconsider on the grounds that there was not sufficient evidence of bias on the part of the IJ. The 11th Circuit dismissed petitioner’s claim of abuse of discretion in the denial of cancellation of removal because it did not constitute a constitutional or legal challenge. The court dismissed the petition for review of the discretionary determination that petitioner’s crimes qualified as particularly serious crimes because it does not present a legal question. The court also held that the BIA did not abuse its discretion in denying petitioner’s motion to reconsider because it merely republished the reasons that had failed to convince the tribunal in the first place.

Zhu v. U.S. Atty Gen., No. 15-10007 (11th Cir. Apr. 27, 2016) (unpublished) – The court denied the petition for review of the BIA’s affirmance of the IJ’s finding that the petitioner abandoned his asylum application, and denial of the petitioner’s motion to remand. The IJ in Lumpkin continued the case three times to give the petitioner a chance to obtain an attorney and, when no attorney appeared, gave the petitioner an application for asylum and directed him to seek help from Catholic Charities. At the last of five hearings, the IJ ordered the petitioner removed when no attorney appeared and the petitioner had not filed the asylum application. The petitioner included a completed asylum application when he filed his appeal and requested a remand. The BIA dismissed the appeal and denied the motion for remand. The 11th Circuit found no abuse of discretion in finding abandonment based on the IJ’s continuous resets and clear communication of the need to file the asylum application. Likewise, the BIA did not abuse its discretion in denying the motion to remand because that decision was not arbitrary or capricious based on the facts. Nor did the IJ violate the petitioner’s right to due process, as the IJ repeatedly reset the case, and the petitioner did not have a constitutionally protected interest in filing an asylum application after the court-ordered deadline. The petitioner had constitutionally adequate notice of his opportunity to file for asylum and the deadline for doing so.

Manzanares-Saldana v. U.S. Atty Gen., No. 15-13839 (11th Cir. Apr. 28, 2016) (unpublished) – The court denied the petitioner’s appeal of the BIA’s affirmance of the IJ’s denial of his application for withholding. The 11th Circuit held that the BIA did not err in in ruling that the petitioner’s family did not constitute a PSG where family members and neighbors had been kidnapped, killed or extorted by a gang. The risk of persecution alone does not create a PSG. Further, the BIA determined that the petitioner failed to show a nexus between the harm he feared from the gangs and his membership in the alleged PSG. The evidence showed that the motivation for harm was financial and not a statutorily protected ground.

Jimenez-Morales v. U.S. Atty Gen.
, No. 14-15359 (11th Cir. May 2, 2016) (unpublished) – The petitioner attempted to reenter the U.S. after being deported. DHS administratively reinstated his order of removal pursuant to INA § 241(a)(5). The petitioner then expressed a fear of harm if removed, and he was placed in a reasonable fear proceeding pursuant to 8 CFR § 208.31. Prior to conclusion of those proceedings, he filed a petition for review. Prior to oral argument on the petition for review, an asylum officer found no reasonable fear of persecution. An IJ held a hearing and ratified the asylum officer’s finding. The 11th Circuit held that where reinstatement is followed by a reasonable fear proceeding, the reinstated order does not become final until the reasonable fear proceeding is completed. This is because the reinstated removal order cannot be executed prior to conclusion of the reasonable fear proceeding. Thus the 11th Circuit did not have jurisdiction when the petitioner filed his petition for review. But before oral argument before the 11th Circuit, an IJ affirmed the asylum officer’s determination. Siding with the Second and Third Circuits, the 11th Circuit ruled that the conclusion of the reasonable fear proceeding ripened the petition for review, i.e. the 11th Circuit had jurisdiction at that point. The court went on to rule that under INA § 241(a)(5), no relief (including asylum) is available after reinstatement. The court went on to state, though, that despite the absolute bar to relief found in INA § 241(a)(5), withholding is available under these circumstances pursuant to 8 CFR §§ 208.31, 241.8(e), citing Fernandez- Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006).

Birsa v. U.S. Atty Gen., No. 15-14479 (11th Cir. May 5, 2016) (unpublished) – The court dismissed in part and denied in part the petitioner’s appeal of the BIA’s affirmance of the IJ’s denial of his applications for asylum and withholding. The petitioner, a citizen of Moldova, claimed persecution on account of his political beliefs when he was attacked at a political demonstration, received threatening phone calls, and was fraudulently convicted of several offenses. The IJ and BIA found none of these, either alone or cumulatively, constituted persecution. Regarding future persecution, the 11th Circuit found that the petitioner could not show that a future detention upon return, based on the fraudulent convictions, would be based upon his political beliefs.

Ansari v. U.S. Atty Gen., No. 15-13171 (11th Cir. May 6, 2016) (unpublished) – The court dismissed in part and denied in part the petitioner’s appeal of the BIA’s affirmance of the IJ’s denial of the petitioner’s application for asylum, withholding of removal, and relief under the CAT. The petitioner claimed past persecution and a fear of future persecution on account of his political activity with the Bangladesh Nationalist Party (BNP). The 11th Circuit agreed with the BIA’s affirmance of the IJ’s adverse credibility finding based upon the petitioner’s testimony that was inconsistent with his credible fear interview, asylum application and several documents submitted. The BIA rejected the petitioner’s explanations for the inconsistencies.

Santiago-Jimenez v. U.S. Atty Gen., No. 15-13840 (11th Cir. May 6, 2016) (unpublished) – The 11th Circuit denied the petition for review of the BIA’s order denying petitioner’s application for withholding of removal. The court concluded that the petitioner did not prove that being a hard- working person and a recently returned expatriate to Mexico were characteristics of membership in a particular social group. The record did not establish that gangs in Mexico target either hard- working individuals or those returning from the United States. Instead, evidence showed that gangs went after vulnerable people with money. In addition, petitioner did not show that hard-working people or those returning from the U.S. were a distinct enough group to meet the “social visibility” requirement to constitute a particular social group.

Fyneah v. U.S. Atty Gen., No. 15-15161 (11th Cir. May 9, 2016) (unpublished) – The 11th Circuit denied petitioner’s claim that the BIA erred in concluding that he had not been previously granted asylum in 2004. The court noted that evidence in the record, including a USCIS memorandum by an asylum officer and a letter to petitioner from USCIS, showed that a preliminary determination regarding his status was made. However, he was never actually granted asylum. The court also dismissed petitioner’s claim that the USCIS violated established procedures when it interviewed him in 2009. The argument presented was not raised before the BIA, and therefore, the court lacked jurisdiction to consider it.

Sorto-Lopez v. U.S. Atty Gen., No. 15-13773 (11th Cir. May 11, 2016) (unpublished) – The 11th Circuit agreed with the BIA’s decision to affirm the IJ’s denial of petitioner’s application for asylum and withholding of removal and denied the petition for review. Petitioner failed to establish past and future persecution based on his religion and association with the prosecutor’s office, which he claimed was a particular social group. The court found that having gang members and other students tell him that God did not exist was “mere harassment.” In addition, a one-time extortion of $1,000 when he worked at the prosecutor’s office along with various threats were only “isolated incidents … of intimidation.” The petitioner also failed to demonstrate detailed facts showing that he would be singled out for persecution if he were to return to El Salvador.

Alonzo-Rivera v. U.S. Atty Gen., No. 15-12382 (11th Cir. May 20, 2016) (unpublished) – The court granted in part and denied in part the petition for review of the BIA’s affirmance of the IJ’s finding that petitioner failed to meet the threshold burden of proof on her asylum application. Petitioner asserted she was a member of the particular social group, “formerly married Honduran women who are unable to leave their relationship.” The IJ did not issue a finding of adverse- credibility regarding petitioner’s testimony. The IJ and the BIA found that petitioner failed to provide sufficient corroborating evidence and found some of petitioner’s testimony implausible. The IJ and the BIA found that petitioner failed to show that the Honduran government would not or could not protect her, citing her failure to report the abuse to the police. The 11th Circuit found that the BIA and IJ did not give reasoned consideration to the evidence and failed to consider important evidence. The court remanded the case to allow the BIA to consider the entire record. The court found that petitioner’s due process rights were not violated when the IJ scheduled a merits hearing 35 days after the filing of petitioner’s I-589 because petitioner did not show substantial prejudice.

You can reach John at John@slgattorneys.com
Follow John on Twitter: https://twitter.com/JohnGihon
Follow my blog: https://www.floridaimmigrationlawyerblog.com