New 9th Circuit and BIA Immigration Cases

**Cancellation of removal-burden of proof**

The BIA applied the wrong legal standard in determining whether Ramos met his burden to establish eligibility for cancellation of removal. The IJ and BIA incorrectly relied on Perez v. INS, 96 F.3d 390 (9th Cir. 1996) and Matter of Ige, 20 I. & N. Dec. 880 (BIA 1994) for the proposition that an alien must submit an affidavit stating that his family will be separated if he is deported in order to establish hardship based on family separation. However, these two cases were later limited by Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) which held that this per se evidentiary requirement is inapplicable where other evidence adequately shows that the family will be separated. Therefore, the BIA must reconsider whether Ramos has established “exceptional and extremely unusual hardship” under the correct standard.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/23/05-72786.pdf

**Terrorism bar and duress exception; CAT and changed circumstances**

The BIA did not err in determining that Singh engaged in terrorist activity by providing material support, in the form of food,shelter and funds, to Sikh militants who planned to plant bombs during an Indian Independence Day celebration. Singh argues that he acted under duress; however, the record shows that Singh acted voluntarily and therefore the question of whether there is an involuntariness statutory exception to the terrorist bar will not be addressed. In addition, there is substantial evidence in the record to support the BIA’s determination that it is not more likely than not that Singh would be tortured if he were to return to India. Singh testified that before entering the United States he resided in New Delhi and Haryana for months without facing persecution or arrest by the authorities. State Department reports also indicate that due to changed circumstances in India since the mid-1990s, Sikh militants from Punjab have also been able to return from overseas and safely reintegrate into Indian society.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/23/05-71823.pdf