Gurung v. Holder (unpub)
Credibility
Before the IJ, Gurung testified that: (1) he never voiced his opposition to or opinion of the Nepalese government, directly contradicting an affidavit he submitted in support of his application in which his friend described him as an “avid critic” of the police and army who would raise his concerns at social and religious gatherings; and (2) he did not know whether his brother-in-law’s brother Hari Prasad Bhattarai was involved in politics or anything other than a transport business, directly contradicting his own earlier declaration in which he described Prasad’s membership in a non-governmental organization that tracks government and army misconduct. These inconsistencies are nontrivial because Gurung claims persecution by the government based on his political beliefs and on the imputed political beliefs of Prasad. Given only speculative and unconvincing explanations from Gurung for the inconsistencies, substantial evidence supports the IJ’s adverse credibility determination.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/21/08-70201.pdf
Singh v. Holder (unpub)
CAT, credibility; AOS; due process
In 2004, the BIA remanded Singh’s case for a new hearing to ensure it complied with Kamalthas. At the hearing, Singh presented extensive witness testimony. The IJ’s finding that much of that evidence was inconsistent, and overall insufficient, to establish the grounds for relief under CAT is supported by substantial evidence. The BIA affirmed the IJ’s finding that Singh’s testimony, the principal evidence advanced in favor of his claims, was not credible. The inconsistencies in Singh’s account provided a substantial basis in the record for the IJ to make that determination, and the BIA’s decision should not be overturned. In addition, Singh is inadmissible and the BIA did not err in affirming the IJ’s finding that he could not adjust status. Finally, regarding his due process claim, Singh has failed to allege that he was wrongfully prevented, in the lengthy course of his removal proceedings, from calling any witness, presenting any testimony, or admitting any piece of evidence. He also fails to show bias against him by any IJ who reviewed his case or the BIA.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/21/07-72100.pdf
Matter of Islam (PUB)
CIMT/”single scheme of criminal misconduct”/ forgery, possession of stolen propery
In determining whether an alien’s convictions for two or more crimes involving moral turpitude arose out of a “single scheme of criminal misconduct” within the meaning of INA section 237(a)(2)(A)(ii), the Board will uniformly apply its interpretation of that phrase in all circuits. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), followed. The phrase “single scheme of criminal misconduct” is a quintessentially ambiguous term. It is therefore within the Board’s province to provide a reasonable interpretation of the phrase. In light of Chevron and Brand X, as well as the majority of Federal appellate court decisions that have given deference to Matter of Adetiba, the Board respectfully concludes that its analysis is controlling and should now be uniformly applied in all circuits throughout the country.
Where the respondent was convicted in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to obtain items of value from several retail outlets on five separate occasions over the course of a day, his crimes did not arise out of a “single scheme of criminal misconduct.” The fact that the respondent traveled to different venues to obtain additional items of value with the stolen credit cards supports the Immigration Judge’s determination that the respondent’s crimes, while occurring in a single day, did not arise from a “single scheme” of criminal misconduct.
Zhao v. Holder (unpub)
Persecution/derivative harm
Substantial evidence supports the IJ’s factual finding that the hardships Zhao faced did not rise to the level of persecution. This Court has declined to extend automatic asylum eligibility to the child of a parent who was forcibly sterilized, and instead requires that the child show that s/he suffered hardships that rise to the level of persecution. On remand, the IJ properly considered the “individual and cumulative effects of the hardships suffered by Zhao, including economic deprivation and harm to her family.” The record shows that economic effects on the Zhao family were limited to a period less than a year between 1982 to 1983, after which both of Zhao’s parents were employed, recovered their full salary, and did not face any fines. Similarly, her parents’ decision to give birth to her brother at a private hospital instead of the government-run hospital for fear of reprisal did not lead to significant economic effects on Zhao. As to harm to Zhao’s brother, the record does not compel the conclusion that his disability, arising from complications at birth, or subsequent harassment on account of his disability were caused by China’s one child policy. Finally, evidence in the record shows that Zhao’s parents were not singled out and punished for their violation.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/18/08-70262.pdf
Singh v. Holder (unpub)
Credibility
The IJ’s decision is supported by substantial evidence. The IJ based her adverse credibility determination on several valid factors. Particularly, she focused on the fact that Singh claimed that he had failed to inquire of any witnesses regarding his father’s disappearance and presumed kidnapping. She relied also on conflicting evidence and testimony that Singh presented, including the fact that he claimed to have joined the All India Sikh Student Federation, which was the same day that a letter certifying his membership in that group states that he ended his membership. Finally, the IJ found that Singh’s testimony regarding the back and knee injuries he had allegedly suffered while imprisoned by the Punjab police conflicted with the injuries noted in the letter he had provided from his doctor. This letter stated only that he had suffered bruises.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/18/07-73557.pdf
Yovivi v. Holder (unpub)
Asy/one year bar; past persecution
Yovivi’s unsubstantiated testimony and unauthenticated letter from an immigration consultant attempting to show that she timely filed her asylum application does not compel the conclusion that she established changed or extraordinary circumstances sufficient to excuse the delay in filing her asylum application. Substantial evidence also supports the agency’s finding that the harm Yovivi suffered did not rise to the level of persecution.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/18/07-72822.pdf
Grigoryan v. Holder (unpub)
Credibility
Substantial evidence does not support the IJ’s adverse credibility finding. The IJ incorrectly states that Grigoryan failed to mention in his declaration that he was a shareholder at a factory. While Grigoryan’s asylum application does not mention the government’s audits of the factory or the payments the factory was forced to make, the application does state that “the government began its illegal activities against our [factory],” that “the government is illegally harassing us and stepping over the rights of the private sector,” and that “Internal Affairs continued to come after us and an endless chain of court proceeding[s] began.” The fact that the government was conducting audits, and that those audits resulted in what amounted to fines or extortion on the factory, are both details that help to flesh out Grigoryan’s story, and are not inconsistent with it. The IJ also noted that Grigoryan did not mention in his application that, after he left Armenia, police approached his parents and asked about Grigoryan’s whereabouts. In the hearing, Grigoryan’s attorney pointed out that the supplemental statement mentions that “[o]nce in the United States, through contacts with [his] acquaintances, [Grigoryan] was advised not to return as the situation has only gotten more serious, and that the authorities continue to look for [him].” The IJ, however, responded that he “wouldn’t consider [Grigoryan’s] parents to be acquaintances.” But the fact that Grigoryan neglected to say “acquaintances and parents” cannot serve as the basis for an adverse credibility determination. The IJ also failed to give a cogent reason for dismissing as inconsistent Grigoryan’s testimony that government officials asked him to sign a statement indicating that he was forced to give false information to the crowd. The BIA’s adverse credibility determination is also not supported by substantial evidence.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/18/06-74835.pdf
Lopez-Cordona v. Holder (PUB)
Residential burglary/PSC; CAT
A conviction for residential burglary under CPC § 459 constitutes a crime of violence because it is a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Thus, a conviction under CPC § 459 is a “particularly serious crime.” The Court’s recent en banc decision in Aguila-Montes does not change anything because it holds only that a conviction under CPC § 459 does not categorically constitute a conviction for generic burglary. It does not address the previously decided question of whether a conviction under CPC § 459 for residential burglary is an offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Lopez claims CAT relief based on one incident in 2005 in which a group of gang members beat Lopez and his cousin as they were exiting a store. Lopez himself testified that these gang members stopped the beating after they saw police in the area. That the police were willing and able to protect people from this gang is evidence Lopez would not be tortured upon his return. Although gang members beat up Lopez and his cousin in 2005, there is no evidence those gang members knew Lopez or his cousin, nor that the gang members had any reason to hurt them. It could be that Lopez and his cousin were just unfortunate bystanders who were in the wrong place at the wrong time. Further, there is no evidence the gang members are looking for Lopez today. Therefore, Lopez has failed to prove it is more likely than not he will be tortured upon his return to El Salvador.
Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges
http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf
Zuniga-Perez v. Holder (unpub)
Due process; gov BOP/attorney admissions
Zuniga-Perez raises two due process claims. First, Zuniga-Perez contends that the IJ should have determined whether an appeal was pending on Zuniga Perez’s state court drug conviction. An IJ may consider a criminal conviction when the trial court enters a formal judgment of guilt. There is no requirement that all direct appeals be exhausted or waived. Accordingly, the IJ’s failure to inquire as to the status of Zuniga-Perez’s state court conviction does not violate Zuniga-Perez’s due process rights. Second, Zuniga-Perez asserts that the IJ failed to address his effort to qualify his admission to the “illicit trafficker” charge. On appeal, Zuniga-Perez asserts that he “was attempting to articulate that his conviction qualified under the exception of the Federal First Offender Act (“FFOA”).” The FFOA, however, is
not available as a qualified exception to those respondents who are eligible for, but have not yet received, expungement of the conviction. Here, the record and the briefs are silent as to whether Zuniga-Perez is actually eligible for or received expungement of his state criminal conviction for possession of marijuana for sale. Accordingly, Zuniga-Perez failed to meet his burden in demonstrating a due process violation. Zuniga-Perez also asserts that the government failed to meet its burden of proof. Yet, at the May 27, 2009 hearing, Zuniga-Perez admitted to the state drug conviction charge alleged in the NTA during the pleading stage. Accordingly, the government met its burden when Zuniga-Perez admitted to the aggravated felony charge alleged in the NTA during the pleading stage of the hearing.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/17/09-72887.pdf
Nand v. Holder (unpub)
Asy
Substantial evidence supports the BIA’s conclusion that the lead petitioner did not meet her burden of establishing past persecution. Substantial evidence also supports the BIA’s conclusion that the lead petitioner failed to meet her burden of establishing an independent well-founded fear of persecution on statutorily protected grounds. The record does not compel the conclusion that she will be targeted individually for future persecution. The record also does not compel the conclusion that the Fijian government has a systematic pattern and practice of persecuting Indo-Fijians.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/14/07-73209.pdf
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