Truong v. Holder (PUB)
**Asy, wh, persecution, gov’t control, firm resettlement**
The BIA reversed the IJ’s asylum favorable decision, holding that theTruongs were ineligible for asylum from Vietnam because they had firmly resettled in Italy. On its first petition for review, this court found that the facts supported a “persecution claim” in Italy, and remanded to the agency to consider in the first instance whether the Truongs had shown persecution or a well-founded fear of persecution in Italy. On remand to a different IJ, the IJ offered to grant the Truongs a continuance so that they could accumulate additional evidence supporting their persecution claims, but the Truongs’ counsel declined and requested an immediate decision. The IJ granted the Truongs’ application for withholding of removal to Vietnam, but found that the Truongs had failed to establish that the Italian government was unable or unwilling to protect them and, accordingly, denied their asylum application. The BIA affirmed. Substantial evidence supports the IJ and BIA’s conclusion that the harassment the Truongs faced in Italy was not committed either by the government or by forces that the government was unable or unwilling to control. Although the Truongs contend that their harassment came at the hands of communist forces, the record suggests that this contention is speculative. The Truongs do not know who their assailants were and what motivations they may have had. The Truongs’ professed belief that the Italian government was complicit in or unwilling to stop their harassment is undermined by the fact that the Truongs repeatedly sought assistance from the Italian police, who dutifully made reports after each incident and indicated that they would investigate. The few pieces of documentary evidence that the Truongs produced before the IJ are unavailing. At best, they show that ethnic minorities and immigrants living in Italy face sporadic violence and discrimination; they do not suggest that the Italian government is complicit in or unwilling to combat such discrimination.
Concurring, Reinhardt: “Under current Supreme Court law, we have no choice but to agree that the government has the legal authority to deport a young college student, who was brought to this country as a child by her parents and raised here in the same manner as all other law-abiding young people. . . Although we as judges do not have the authority to grant the Truongs’ petition for review, immigration officials retain considerable discretion to achieve a just result for the Truong family and others in their situation . . . .I would hope, and I’m sure that my colleagues would join me, that immigration officials will take into account the priorities essential to the orderly implementation of the law and the equitable considerations that fairness demands when determining how to proceed in the wake of the decision we are compelled to issue today.”
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/27/05-74666.pdf
Afriyie v. Holder (PUB)
**Asy/wh, gov’t control; internal relocation; persecution on account of religion; CAT**
The BIA made numerous factual errors in its “unable or unwilling” analysis, ignoring evidence favorable to Afriyie, misstating Afriyie’s testimony, and improperly treating as irrelevant police reports made by individuals other than Afriyie. A reasonable fact-finder would be compelled to conclude that the government was unable, or in the alternative unwilling, to protect Afriyie. While Afriyie’s ability to file a police report suggests the police were willing to protect Afriyie, it says little about its ability to do so– they may be able to take a crime report while still being powerless to stop the persecution. The BIA ignored portions of Afriyie’s testimony that specifically indicate the Ghanaian police forces lacked the resources necessary to protect him, and Afriyie testified that police expected individuals reporting crimes to track down and bring in the perpetrators. The BIA also erred by giving no weight to the government’s failure to solve other similar crimes against individuals associated with Afriyie or to provide protection when asked. Moreover, the British Home Office report, upon which the BIA heavily relied, does not support the conclusion that the Ghanaian government was willing and able to protect Afriyie. Regarding internal relocation, Afriyie argues that the BIA improperly placed the burden on him with respect to relocation. Because it is unclear from the record whether that is true or whether the BIA considered the factors set forth in 8 C.F.R. § 1208.13(b)(3), a remand is necessary with respect to this claim as well.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/26/08-72626.pdf
Rahimzadeh v. Holder (PUB)
**Withholding, gov’t control, use of country conditions evidence**
Dutch officials did not participate in or sponsor the attacks on Rahimzadeh, so Rahimzadeh must establish that the Dutch government was unable or unwilling to control his attackers. He has not done so. Rahimzadeh never reported the abuse to police; instead, his evidence of the government’s inability or unwillingness to stop the attacks consists solely of a private threat of harm and the presence of what he estimates to be 280,000 extremist Muslims in the Netherlands. The reporting of private persecution to authorities leaves a gap in proof about how the government would respond if asked. It is clear that the IJ treated the failure to report the persecution as merely one factor in the assessment of the Dutch government’s willingness and ability to control private extremists, not as a per se bar to asylum. The IJ found that the reasons Rahimzadeh gave for not reporting the abuse, namely the private threat of retaliation and his perception of the Netherlands as being home to thousands of fanatical Muslims, did not independently satisfy his burden to establish that the Dutch authorities would have been unable or unwilling to control his attackers, particularly in light of Rahimzadeh’s failure to provide other information about the record of the Dutch authorities in controlling private extremist. The IJ’s conclusion that the Dutch authorities in fact would have been willing and able to control Rahimzadeh’s attackers was supported by substantial evidence, which the IJ properly considered. The IJ accepted Rahimzadeh’s testimony regarding threats, incidents of abuse, and all the other factual circumstances as to which Rahimzadeh had direct knowledge. The IJ turned to the country reports only to assess the likelihood that government officials would control the persecution, as Rahimzadeh failed to provide any useful evidence on that point through his testimony.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/26/08-73985.pdf
Toj-Culpatan v. Holder (PUB- amended opinion)
**Amended opinion/denied rehearing; asy 1 yr deadline/extraordinary circumstances**
Petitioner’s petition for panel rehearing and suggestion for rehearing en banc are denied. Because Petitioner did not file an asylum application in English within the one year deadline and no “extraordinary circumstances” prevented him from filing on time, his petition for review of the BIA’s order affirming the IJ’s denial of asylum is denied.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/22/05-72179.pdf
Original opinion: http://newimmigrationcases.com/2009/12/01/toj-culpatan-v-holder/
Hernandez Velasquez v. Holder (PUB)
**Change of address form, notice/”presumption of mailing, MTR”**
The BIA abused its discretion in failing to discuss Hernandez’s declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the“weight and consequences” of that evidence in its denial of her motion to reopen. The BIA was required to undertake such an analysis before ruling on the veracity of both Hernandez’s claim that she mailed a Change of Address form and her claim that she did not receive notice from the BIA of its decision.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/14/06-75728.pdf
Banuelos-Ayon v. Holder (PUB)
**Crime of violence, domestic violence/CPC section 273.5(a)**
Jiang v. Holder (pub)
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/14/08-73186.pdf
Perdomo v. Holder (PUB)
**PSG**
Petitioner, a female Guatemalan, argues that she has a well-founded fear of persecution based on her membership in the particular social group of women in Guatemala who are at high risk of femicide. The BIA dismissed Perdomo’s appeal solely on the ground that “all women in Guatemala” could not constitute a cognizable social group, without reaching the question of whether Perdomo had demonstrated a nexus between her membership in that group and her fear of persecution. However, case law in the Ninth Circuit has clearly acknowledged that women in a particular country, regardless of ethnicity or clan membership, could form a particular social group. The BIA erred by failing to apply both prongs of the Hernandez-Montiel’s definition of a particular social group to Perdomo’s claim that women in Guatemala constitute a PSG. Its decision is also inconsistent with its own opinion in Matter of Acosta. Remanded for the BIA to determine in the first instance whether women in Guatemala constitute a particular social group.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/12/06-71652.pdf
Padilla-Romero v. Holder (pub)
Petitioner in removal proceedings who at one time was an LPR and held that status for at least five years but who has since lost that status is ineligible for cancellation of removal under § 1229b(a). Under the natural reading, the text requires that an applicant applying for cancellation of removal under § 1229b(a) have current LPR status. The definition of “lawfully admitted for permanent residence,” which requires that the petitioner’s status “not hav[e] changed,” provides strong support for this reading. An interpretation of § 1229b(a)(1) that allowed those who are no longer LPRs to obtain cancellation of removal would be counter to Congress’s intent, as expressed in § 1101(a)(20), that one may lose the benefits of LPR status. The caption to § 1229b(a), “Cancellation of removal for certain permanent residents” also suggests a requirement that the alien have current status as an LPR.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/09/07-72492.pdf
Cortez-Pineda v. Holder
**Entry date, NTA; credibility, special cancellation; asy**
Hakopian did not establish a blanket rule that facts alleged in a Notice to Appear, if admitted before the IJ, bind the court and the parties. We made explicitly clear in Hakopian that an entry date alleged in a Notice to Appear might not bind the IJ if the Notice to Appear is amended or if, as here, the entry date is subsequently contested. The government should not be held to have made a binding judicial admission about Cortez- Pineda’s entry date because the government vigorously disputed the entry date during the November 2006 evidentiary hearing after notice was given to Cortez-Pineda that the issue was in dispute, and Cortez-Pineda never expressly objected on the grounds of judicial admission, instead stipulating to an evidentiary hearing on the issue. Cortez-Pineda’s counsel never suggested that the NTA conclusively established Cortez-Pineda’s entry date, and his counsel’s passing reference to the entry-date allegation in the NTA cannot reasonably be construed as an objection to a contest of that issue. Moreover, although “admissions in the pleadings are generally binding,” Cortez- Pineda’s counsel did not raise the judicial admission argument to the IJ. Evaluating the evidence of Cortez-Pineda’s entry date, the IJ’s determination that the June 1990 entry date was not credible is supported by substantial evidence. The IJ also appropriately concluded that Cortez-Pineda was not eligible for special rule cancellation. The IJ’s adverse credibility with respect to the asylum and withholding is also supported by substantial evidence.
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