It has been said “Where you stand depends on where you sit.” The requirements in the Lozada case have been upheld as reasonable. I submit to you, Mr. Attorney General, that if any of the Board members or Circuit Judges who have upheld the requirements of Lozada as “reasonable” had ever practiced in the private sector and been confronted with the situation where the only way to help an alien deprived of a fair hearing was by reporting a colleague to the State Bar for discipline, this requirement would not have been upheld as “reasonable.” To the contrary, it would have been stricken.
According to an official for the California State Bar, Rule of Professional Conduct 3-110A is controlling when determining whether negligence leads to disciplinary action. According to this rule, “a member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” The official added “if the facts indicate mere negligence by an attorney but not an intentional reckless repeated failure to perform legal services with competence, then we would not have grounds for investigation.”
The codes of Professional Responsibility in most states suggest that this approach is typical. Mere negligence by an attorney, as opposed to willful misconduct, does not subject him or her to discipline. Therefore, the “complaint” requirement has not only encouraged the filing of state bar complaints that would otherwise have not been filed. But it has also caused complaints to be submitted that are routinely dismissed. The conclusion is inescapable that the drafters of the “complaint” requirement set forth in Lozada and 8 C.FR. 208.4(a)(5)(iii) have overstepped their authority and gone into an area well beyond their domain.
VII ARE THERE BETTER WAYS FOR DEALING WITH INEFFECTIVE ASSISTANCE OF COUNSEL?
Below are three scenarios in which ineffective assistance of counsel comes into play in immigration law. They are followed first by a look at the applicable Lozada requirements, and then by a proposed alternative to those requirements. SCENARIO #1: CLERICAL ERROR. Attorney is negligent and he does not dispute this.
Suppose a case is set in Immigration Court for next January 15th at 1:00 P.M. The Immigration Court sends the attorney of record a new hearing notice indicating that the case has been reset and moved up to January 15th at 8:30 A.M. The attorney (and/or his staff) fails to properly convey this information to the respondent. As a result, the alien is “deported in absentia.”
Under current rules, the only way for the damage to be undone is by the alien filing a Motion To Reopen based on Ineffective Assistance of Counsel pursuant to Lozada, including evidence that a complaint was filed to the state bar about the “ineffective” attorney, or an explanation of why a complaint was not filed. Lozada alternative for Scenario #1: Motion To Reopen Based on Mistake
In civil law, a procedure exists which allows judgments taken as a result of a party’s “mistake” to be corrected. According to California Code of Civil Procedure §473(b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.
For situations involving administrative errors, a similar procedure should be implemented in immigration law. An attorney should be allowed to present a motion to reopen and provide a detailed explanation of the mistake that led to a deportation order. If the explanation appears concocted, the adjudicator could deny it. The fact that the only system in play to correct a clerical error or honest mistake in immigration law requires a complaint to the disciplinary authorities (that will most likely be disregarded) provides compelling evidence of the urgent need to modify the approach set forth in Lozada. SCENARIO #2: LEGAL ERROR: Attorney #1 is negligent and it is clear from the administrative record. Suppose an inexperienced immigration attorney (or an attorney who does not specialize in immigration law) undertakes a complicated removal case with sophisticated criminal/immigration issues. The respondent is ordered removed. Some time afterward, an experienced practitioner reviews the file and sees several motions that should have been made and various forms of possible relief that were overlooked. It appears from the record that the prior attorney was not aware of these possible remedies.
What should be required in the motion to reopen? According to Lozada, we first need an affidavit setting forth the arrangement between the client and the attorney. Next, the attorney whose integrity has been impugned must be informed of the allegations and given an opportunity to respond. Any response should be included in the motion. Lastly, the bar complaint or an explanation of why not? Lozada alternative for Scenario #2: Motion To Reopen Based on Ineffective Assistance of Counsel As Demonstrated in the Record. If the ineffective assistance is clear from the record, this should be sufficient evidence to warrant reopening. As noted above, the 9th Circuit has already held that the Lozada requirements do not need to be strictly enforced when the ineffective conduct is clear in the record. This precedent should be the basis of a new approach.
If the handling attorney was simply confused about the law and there was no willful wrongdoing, what purpose is served by imposing a bar complaint that the disciplinary authorities will likely ignore? Will such a requirement really deter this situation from repeating itself with another attorney? Would not the threat of a civil action for malpractice be enough to deter such conduct from being repeated with the practitioner in the example above? SCENARIO #3: Questionable Motion To Reopen.Prior attorney vehemently disputes every allegation against him.
The BIA affirms the IJ’s decision deporting or removing an alien. Years later, the alien receives a “bag and baggage letter” asking him to report for deportation. A motion to reopen is brought alleging that the prior attorney failed to inform his client that he could file a motion to reconsider with the Board of Immigration Appeals within 30 days or file a petition for judicial review in circuit court.
The true facts are that the respondent was fully apprised of all his appeal options by his prior attorney. Nevertheless, the current attorney has informed the respondent that if he wishes to remain in America with his family, he only has one option: he must blame his prior lawyer and file a motion to reopen based on ineffective assistance of counsel.
Under Lozada, a declaration is required from the alien setting forth the contractual agreement. It is also necessary to inform the prior attorney of the allegations against him and give him or her an opportunity to respond. It should be noted that pursuant to Lozada, it is the attorney bringing the motion who is responsible for informing the prior attorney of these allegations. It is also the new attorney who is responsible for providing the prior attorney’s his (understandably indignant) response to the IJ or BIA.
This situation illustrates another deficiency in Lozada. In this scenario, the attorney bringing the motion is clearly the last person who should be responsible for including the prior attorney’s response with the motion. Like the “complaint” requirement, the requirement of informing the “ineffective” attorney of the allegations against him and including his response in the motion, is a requirement likely to be defied. Lozada alternative for Scenario #3: Motion To Reopen Based on Ineffective Assistance of Counsel Involving Facts In Dispute (Attorney Response should be obtained by someone other than the attorney bringing the motion.)
In this scenario, the attorney filing the motion has a strong incentive for not informing the prior attorney of the allegations against him. Therefore, a party other than the attorney bringing the motion should be responsible for seeing to it that the attorney whose integrity has been impugned is really informed of the allegations against him and that the response is actually presented to the adjudicator. CONCLUSION
There is a reason one law student chooses to become a prosecutor and another a defense attorney. Many factors go into this choice. What has been labeled “deportation defense” often involves helping families stay together in America. Indeed, the practice of “deportation defense” could be characterized as helping people in trouble. This is distinguishable from getting people into trouble. Some of the practitioners best suited for “deportation defense” are the most ill suited for reporting their colleagues to the state bar—an action more associated with a prosecutorial temperament. Yet Lozada has the effect of forcing defenders to be prosecutors.
As seen from the foregoing, the requirement of reporting one’s colleague to disciplinary authorities is not only repugnant, but also “ineffective.” It does not deter collusion; it encourages it. It does not deter frivolous motions to reopen, rather it encourages frivolous bar complaints which are routinely disregarded when they deal with mere negligence as opposed to willful misconduct. The complaint requirement provides no assistance whatsoever determining the crucial issue of whether there has been a violation of due process (caused by ineffective assistance of counsel) as to warrant reopening the underlying case. For all these reason, the complaint requirement should be eliminated.
Dated: October 6, 2008 __________________
Curtis F. Pierce
Attorney for Petitioners
523 West Sixth Street, Suite 348
Los Angeles, CA 90014
Tel. (213) 327-0044 __________________________________________________________________
STATEMENT OF JURISDICTION
Petitioner seeks review of the decision of the Board of Immigration Appeals ("BIA" or “the Board”) entered on June 17, 2003. Jurisdiction of the Board arose under 8 C.F.R. section 3.1 (b)(2) granting it appellate jurisdiction over decisions of Immigration Judges in deportations matters.
The jurisdiction of this Court is pursuant to the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See IIRIRA § 3009(c). See also Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), which stated that deportation cases that were pending as of April 1, 1997 and had final deportation orders issued after October 30, 1996 fall under transitional rules.
Under the transitional rules, this Court has jurisdiction to hear Mr. CARLOS’ petition for review of the denial of his motion to reopen. Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998). This court also has jurisdiction over due process challenges to immigration decisions. Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir. 1998). The basis of the petitioner’s appeal is that the BIA erred and abused its discretion in refusing to reopen this matter. It is also contended that the BIA deprived the petitioner of due process in failing to provide a thoughtful analysis of the law and facts.
STATEMENT OF THE ISSUES
1. Did the BIA abuse its discretion in refusing to reopen these proceedings?
2. Did the Board of Immigration Appeals improperly apply the applicable regulation?
3. Did the Board of Immigration Appeals improperly interpret the phrase “was not available” in refusing to reopen these proceedings?
4. Are there instances in which evidence may be considered “not available” even if it is accessible and in existence?
5. May testimony be considered “not available” when an individual is incapable of providing it because of shame and fear?
6. May evidence be considered “not available” when an individual in incapable of providing it because of shame and fear?
7. Did the BIA deprive the petitioner of due process in failing to give a reasoned and thoughtful analysis of when evidence may be considered “not available?”
STANDARD OF REVIEW
The Court of Appeals reviews the BIA’s denial of a motion to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed. 2d 823 (1992). The BIA abuses its discretion in denying a motion to reopen when it fails to take into account all the relevant factors, fails to give reasoned explanation for its conclusion, or disregards important aspects of the petitioner’s claim. Arrozal v. INS, 159 F.3d 429, 432-33 (9th Cir. 1998); see also Watkins v. INS, 63 F.3d 844, 848 (9th Cir. 1995). If the BIA abuses its discretion in any of these ways, “[w]ithout prescribing any final result, we must remand such cases for proper consideration.” Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir. 1995).
Claims of due process violations in removal proceedings are reviewed de novo. Castillo-Perez v. INS, 212 F3d. 518, 523 (9th Cir. 2000).
STATEMENT REGARDING ATTORNEY'S FEES
Petitioner states that if he prevails on this appeal, he intends to seek recovery of attorney's fees. See 28 U.S.C. section 2412 (d)(1)(A).
STATEMENT OF CASE
This case involves the denial of a motion to reopen by a native and citizen of Mexico who is suffering from HIV, the virus associated with AIDS. The petitioner GOMEZ CARLOS appeared at a deportation hearing which took place on in October 15, 1999. At this time, the petitioner applied for suspension of deportation pursuant to Section 244(a)(1) of the former Immigration and Nationality Act. 8 U.S.C.1254(a)(1).
Although the petitioner was HIV positive at this time, he was incapable of discussing his condition. He eventually sought to reopen his case based on new evidence. The Board of Immigration Appeals refused to reopen based on its conclusion that the evidence regarding petitioner’s medical condition was available at the time of his hearing. The petitioner is asking this Court to find that the Board should have reopened his case. Mr. CARLOS’ inability to provide testimony about his medical condition at his hearing rendered such testimony in effect “not available.”
STATEMENT OF FACTS
The petitioner GOMEZ CARLOS is a native and citizen of Mexico. He first entered the United States on February 24, 1987 without inspection. On or about February 26, 1997, the petitioner was placed in deportation proceedings. The petitioner filed for relief from deportation and form of application for suspension of deportation pursuant to section 244(a) of the formal INA.
In May 3, 1999, the petitioner Mr. CARLOS was diagnosed as HIV positive. On October 15, 1999, petitioner’s individual hearing took place. The petitioner testified that he had two children who were born in the United States in 1993 and 1995. Administrative Record (or “AR”) 189. At this hearing, the petitioner further testified as to how his departure from the United States would cause extreme hardship to himself and to his two United States children. The petitioner explained that he suffered from diabetes and that his son Alan suffered from a congenital heart defect. AR 172. There was no testimony or evidence regarding HIV.
The Immigration Judge denied Mr. CARLOS’s request for suspension of deportation because it was found that Mr. CARLOS had failed to establish that his departure would cause “extreme hardship” to himself or his children. May 16, 2004 On November 12, 1999, the petitioner submitted a Notice of Appeal to the Board of Immigration Appeals. On appeal, the petitioner argued once again that his deportation would cause extreme hardship to himself and to his two children. In a two to one decision of a three-member panel, the Board dismissed the petitioner’s case on May 9, 2002.
On or about August 5, 2002, petitioner filed a motion to reopen based on new evidence. In his motion, supported by the declarations of the petitioner and his physician, it was argued that the petitioner was not capable of discussing his condition at the time of his hearing because of fear and shame. AR 42.
On or about June 17, 2003, the Board of Immigration Appeals denied the petitioner’s motion to reopen, stating that the “evidence of the respondent’s medical condition could have presented during the deportation proceeding.” AR 2.
SUMMARY OF ARGUMENT
Petitioner maintains that the Board of Immigration Appeals erred in concluding that evidence of his medical condition was “available” at his formal hearing. Petitioner urges this court to find that the Board of Immigration Appeals abused its discretion and deprived the petitioner of due process in failing to provide a thoughtful analysis of when evidence may be considered “not available.”
THE REGULATION IN QUESTION: 8 C.F.R. 1003.2(c)(1)
(c) Motion to reopen.
(1) A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.
I. THE BOARD APPLIED THE REGULATION IN AN OVERLY STRICT MANNER. THE BOARD ABUSED ITS DISCRETION IN FAILING TO PROVIDE A REASONED ANALYSIS CONCERNING WHEN EVIDENCE IS “NOT AVAILABLE.”
In denying the Motion To Reopen, the Board stated that the petitioner “had the opportunity to have his medical condition considered during the deportation hearing.” While the Board expressed that it was “not unmindful” of the petitioner’s “situation,” its ruling and decision suggest otherwise. AR 2.
The matter under consideration raises the following question: When is material evidence not “available?” Is it only when it is nowhere in existence? Is it also when it is not reasonably accessible? Are there other instances in which evidence but may be considered “unavailable” under the law?
The petitioner in this case is maintaining that evidence may also be considered to be “unavailable” in circumstances such as that of the petitioner. Here the petitioner was incapable of discussing his medical condition because of shame and fear. AR 42.
The Board simply concluded with very little discussion or analysis that the evidence was not unavailable. The Board failed to consider whether in certain circumstances evidence may be considered “not available” although it is technically accessible and in existence. The Board failed to provide a meaningful discussion regarding Mr. CARLOS’ reasons for not coming forward with the evidence in the first instance.
In the instant case, the petitioner Mr. CARLOS suffered from HIV. Due to shame and fear, he did not disclose this fact to the court. Had he disclosed it, this would have enhanced his case in which he needed to show that his deportation would cause him (or a close family member who is citizen or lawful permanent resident) “extreme hardship.” See Former INA §244.
Included with the Motion To Reopen was a declaration from Mr. CARLOS. In this declaration, Mr. CARLOS stated:
In October 1999, which was only five months after I learned of my fate, I still could not deal with admitting my illness to anyone other than my wife. Through months of counseling provided by the AIDS Clinic, I finally was able to fact this severe illness. .....I was finally able to tell my present immigration lawyer about my medical condition in May, 2002. AR 42.
The Board failed to provide a reasoned analysis on the issue of when evidence may be considered “not available.” In its half page decision, the Board simply concluded that the evidence of the respondent’s medical condition “could have been presented during the deportation proceeding, yet he failed to introduce this available evidence.” AR 2. Nowhere in the decision is there a thoughtful analysis of the petitioner’s reasons for not coming forward with this information. The Board simply stated that it was not “unmindful” of the petitioner’s situation. AR 2. Nowhere does the Board consider if evidence may considered “not available” if the reason it is not provided is because of the respondent’s fear and shame. Nowhere does the Board consider whether the phrase “was not available” has any exceptions or limitations.
The record shows that the petitioner was traumatized, ashamed and fearful because of his condition and therefore incapable of testifying about it. AR 42. The evidence regarding this condition was therefore in effect “not available.” If the Board had given a thoughtful analysis of the circumstances, it would have reached the conclusion that the evidence was effectively “unavailable.” In failing to provide anything but a superficial and perfunctory analysis of the facts and law, the Board abused its discretion.
II. THE BOARD’S USE OF SUPREME COURT PRECEDENTWAS MISPLACED AND TAKEN OUT OF CONTEXT.
In support of its decision, the Board cited the Supreme Court cases INS v. Abudu, 485, U.S. 94 (1988) and INS v. Doherty, 502 U.S. 314, 23 (1992). The Board’s reliance on these cases was misplaced for several reasons. In Abudu, the alien sought to reopen his case in order to apply for asylum. The alien in that case already had a complete hearing in which he did not apply for asylum although he had been afforded an opportunity.
Furthermore, the Supreme Court noted that the applicant did not adequately explain his failure to have filed for asylum at the first opportunity. The Supreme Court also agreed with the Board of Immigration Appeals that the applicant had not made out a prima facie case for asylum. The Court also stressed that an alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen. Abudu at 911.
In the instant case, the petitioner Mr. CARLOS applied for the relief sought, suspension of deportation, at his first opportunity. Unlike the petitioner in Abudu, Mr. CARLOS was not bringing a Motion To Reopen to apply for suspension for the first time. It should also be noted that Mr. Abudu was placed in deportation proceedings after pleading guilty to charges of attempting to obtain narcotic drugs. These type of negative discretionary factors were not present in the instant case of Mr. GOMEZ CARLOS.
The Board’s reliance on Doherty was also misplaced. 502 U.S. 314 (1992). In that case, the respondent was a native of Northern Ireland who was involved with the Provisional Irish Republican Army. He “ ambushed a car containing members of the British Army, and killed British Army Captain Herbert Richard Westmacott. He was tried for the murder of Westmacott in Northern Ireland. Before the court returned a verdict, he escaped from the maximum security prison where he was held; the court found him guilty in absentia of murder and related charges, and sentenced him to life imprisonment.” Id. at 317, 318.
The respondent in Doherty sought reopening based on new claims for asylum based on the Irish Extradition Act. Id at 320. Like the respondent in Abudu, the respondent in Doherty did not apply for asylum at the first opportunity. Like the respondent in Abudu, the respondent in Doherty had serious adverse criminal factors that cannot be ignored.
Therefore, the Supreme Court cases cited by the Board offer minimal guidance and precedent value for the matter currently under consideration. Somewhat more on point would have been the case INS v. Rios-Pineda, 471 U.S. 444 (1985). In that case, the petitioners had sought reopening of a case to apply for suspension of deportation under former INA 244(a)(1). In overturning the Circuit Court, the Supreme Court noted that the petitioners only became statutorily eligible for the relief sought during the appellate process, in which time the petitioners accrued the requisite seven years of continuous presence . Id. at 449, 450. Again, the matter before this court is distinguishable. The petitioner Mr. CARLOS was statutorily eligible for suspension of deportation at the time of his hearing. Unfortunately, he was incapable of presenting all of the evidence in his favor because of fear and shame.
III. THE BOARD VIOLATED PETITIONER’S RIGHT TO DUE
PROCESS IN FAILING TO PROVIDE A THOUGHTFUL AND REASONED ANALYSIS CONCERNING WHEN EVIDENCE MAY BE CONSIDERED “NOT AVAILABLE.”
It should be noted that in deportation proceedings, the stakes are high. It has been held that deportation can deprive one of “life, or of all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). In view of Mr. CARLOS’ medical condition, this language is particularly relevant. In addition, a long line of cases have held that aliens in deportation hearings are entitled to due process of law. “It is well established that the fifth amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993); “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2500 (2001).
To reiterate, the Board’s opinion was short and conclusionary. AR2. The Board failed to discuss if evidence may be considered “not available” when a respondent is incapable of providing it because of shame and fear. In the half page decision, there was no thoughtful analysis or reasoning in applying the pertinent regulation. In rendering such a decision, the Board abused its discretion and deprived the petitioner of due process.
In view of the foregoing, it is respectfully requested that this court overturn the decision of the BIA and order these proceedings reopened.
Dated: May 14, 2004 Respectfully submitted,
Curtis F. Pierce Attorney for Petitioner
STATEMENT OF RELATED CASES
I, CURTIS PIERCE, attorney for Petitioner, hereby certify that to the best of
my knowledge and belief, there are no other cases in this court raising the same issues as are present in this case.
DATED: May 17, 2004
STATEMENT OF NO OTHER INTERESTED PARTIES
I, CURTIS PIERCE, attorney for Petitioner, hereby certify that to the best of my knowledge there are on other interested parties in this matter.
DATED: May 17, 2004 _________________
CERTIFICATE OF SERVICE
I hereby certify that on May 17, 2004, two (2) copies of PETITIONER'S
BRIEF was served on Respondent by placing it in the United States mail at Los
Angeles, California, pre-paid first class mailing to:
OFFICE OF THE IMMIGRATION LITIGATION
P.O. BOX 878, BEN FRANKLIN STATION
WASHINGTON, D.C. 20044
Attorney For Petitioner
523 West Sixth St. Suite 348
Los Angeles, CA 90014
Curtis F. Pierce
Attorney for Petitioners
523 West Sixth Street, Suite 348
Los Angeles, CA 90014
Tel. (213) 327-0044 ______________________________________________________________________
STATEMENT OF JURISDICTION
Petitioner seeks review of the decision of the Board of Immigration Appeals ("BIA" or “the Board”) entered on July 10, 2006. Jurisdiction of the Board arose under 8 C.F.R. section 3.1 (b)(2), granting it appellate jurisdiction over decisions of Immigration Judges in deportation matters.
The jurisdiction of this Court arises pursuant to Section 242(b)(4)(D) of the Immigration & Nationality Act (“INA”). This Court also has jurisdiction to review whether a petitioner qualifies for withholding of removal under 8 U.S.C. § 1252(a). The basis of the Petitioners’ appeal is that the decision of the BIA was contrary to law.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(c) to review “mixed questions of law and fact” including the Board of Immigration Appeals’ determination that a petitioner failed to demonstrate sufficient changed circumstances to excuse the late filing of an asylum application. Ramadan v. Gonzales, 479 F.3d 646, 655-58 (9th Cir. 2007).
The Board of Immigration Appeal’s denial of a Motion to Remand is reviewed for abuse of discretion. INS v. Dougherty, 502 U.S. 314, 324 (1992).
STATEMENT OF THE ISSUES
1. Whether credible testimony of beatings, attacks, stonings, and acts of intimidation targeted against the Petitioners because of the lead Petitioner’s status as Christian church
elder and the family’s Chinese ethnicity and Christian religion establishes past persecution?
2. Whether Petitioners should be excused from filing for asylum within one year of their arrival in the United States when, subsequent to their arrival, Indonesia (because of a rise in Islamic fundamentalism and anti-Western sentiment attributed to U.S. military involvement in Iraq) became increasingly more dangerous for Chinese Christians?
3. Whether the Board of Immigration Appeals erred in denying the Petitioners’ Motion to Remand in light of new evidence in the form of TravelWarnings issued by the U.S. State Department detailing deteriorating country conditions for Christians in Indonesia due to the increased presence of Muslim extremist groups following the U.S. led invasion of Iraq?
STANDARD OF REVIEW
When this court reviews a denial of asylum, it must first determine whether substantial evidence supports the Board of Immigration Appeals’ determination that an alien has failed to prove a well-founded fear of persecution. Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986). Factual findings of the Immigration Judge and the Board of Immigration Appeals are reviewed under the “substantial evidence” standard. Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995). Factual findings must be affirmed if supported by reasonable, substantial, and probative evidence in the record. Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) citingINS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). If refugee status has been established, the Ninth Circuit reviews the Board of Immigration Appeals’ denial of asylum for abuse of discretion. Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986) citingGarcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir. 1985); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir. 1984).
Questions of law in an asylum case receive de novo review. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988). De novo review has been exercised over all legal questions in immigration cases before the Ninth Circuit. The Court has stated that it reviews legal questions regarding the requirements for establishing eligibility for asylum de novo and that the substantial evidence standard applicable to factual findings "does not . . . preclude a court from a vacating the Board of Immigration Appeals’ asylum determination and remanding a case for further consideration where the Board of Immigration Appeals’ denial of asylum was based upon an error of law." Kotasz v. INS, 331 F.3d 847 (9th Cir. 1994).
STATEMENT REGARDING ATTORNEY'S FEES
Petitioners state that if they prevail on this appeal, they intend to seek recovery of attorney's fees. See 28 U.S.C. section 2412 (d)(1)(A).
STATEMENT OF DETENTION
Petitioners are not currently in detention.
STATEMENT OF THE CASE
This case involves an application for asylum and withholding of removal by a Chinese Christian family from Indonesia. In Indonesia, the Petitioners were subjected to beatings, stonings, threats, and intimidation, but they failed to apply for asylum within one year of their arrival in the United States. The Immigration Judge found the Petitioners to be credible. Nevertheless, she determined that that the threats, beatings, stonings, and intimidation to which they were subjected did not rise to the level of past persecution. She also found that Petitioners did not establish a clear probability of future persecution. Finally, the Immigration Judge determined that the Petitioners were ineligible for asylum because, despite changed country conditions in Indonesia, they did not have a legally adequate explanation for having to failed to apply for asylum within the first year of their arrival in the U.S.; The Board of Immigration Appeals affirmed. The Petitioners now seek relief in this Court.
STATEMENT OF FACTS
Brian Wilson Moore, his wife, and their two children are natives and citizens of Indonesia. AR 185. Mr. Moore last entered the United States on June 17, 1998, as a non-immigrant temporary visitor for business. AR 185-86. His wife and children joined him in the United States on August 5, 2000, as non-immigrant temporary visitors for pleasure. AR 186.
During their time in Indonesia, Mr. Moore and his family were victims of multiple violent incidents on account of their status as Chinese Christians. In November, 1997, Mrs. Moore received a phone call from an unidentified caller threatening to rape her daughter because she was Chinese. AR 189. Mrs. Moore reported this incident to the police, who were unable to make any arrests. AR 189. Several times during 1998, the Moores’ house was stoned while Christian prayer services were being conducted there. AR 190. However, the most violent confrontations occurred in May, 1998, during the anti-Chinese riots that plagued the city of Jakarta.
Specifically, on May 14th and 15th, 1998, Mr. Moore was repeatedly attacked by Indonesian Muslims. AR 187-189. On the evening of May 14, 1998, a group of 40-50 Indonesian Muslims taking part in widespread anti-Chinese rioting rampaged throughout Mr. Moore’s neighborhood. AR 187. Believing the Muslims intended to burn down his neighbor’s house, Mr. Moore went outside to confront them. AR 187. As he stood behind his fence, Mr. Moore asked the rioters what they were doing. AR 187. The rioters then jumped over the fence onto Mr. Moore’s property. AR 187. Several of them started to punch and kick Mr. Moore. As they beat him, the rioters chided, “You are a Chinese son of a gun trying to build a church here, are you?” AR 187.
The reference to building a church establishes that the attackers were aware of Mr. Moore’s position as an Elder in the Seventh Day Adventist church, which was located one mile from his home. AR 188. In his position as Elder, Mr. Moore took part in refurbishing a home over a three month period so that it could be used as a church. AR 188. He would also gather congregants for prayer. AR 188. Further, Mr. Moore’s was a spiritual leader with the role of guiding members to “develop belief” so that the members will “always remain and believe in God”. AR 239.
Shortly after the beating began, Indonesian military personnel came into the neighborhood and fired shots into the air, at which point Mr. Moore’s attackers fled. AR 187. Out of fear for his family’s safety, Mr. Moore asked the military to evacuate his family to his brother’s house. AR 188. The military agreed to do so, for a fee. AR 188. Later that evening, Mr. Moore returned to his house under the protection of the military. AR 188.
The following day, Mr. Moore was again the victim of hostilities from Indonesian Muslims. A crowd of between fifteen to eighteen Muslim men came to his home and demanded money. AR 189. Before Mr. Moore could respond, the crowd burst into his home and burned religious materials, including a Bible and other religious books and magazines. AR 189. The attackers gathered the religious materials and placed them on a table before setting them on fire. AR 189. While setting the Christian objects ablaze, the attackers shouted, “You are a Chinese and have a lot of money! Why are you trying to Christianize people in this area?” AR 189. The men then beat Mr. Moore, took his wallet and fled. AR 189.
Mr. Moore immediately called the police for help. AR 189. However, the police informed Mr. Moore that they would not respond to his call, because they were too busy attempting to control the rioting still taking place throughout the city.
Following these two violent days, Mr. Moore decided temporarily to leave Indonesia and come to the United States. AR 190. He moved his family out of Jakarta to Manado. AR 190. He hoped to eventually return to Indonesia and to rejoin his family. AR 190. However, in 2000, his wife told him not to return to Indonesia, because conditions for Christians in Indonesia were getting even worse. AR 190. Rather than returning to Indonesia, Mr. Moore arranged for his family to join him in the United States in August, 2000. AR 190.
After being told that it was too late to file an application for asylum by various individuals, Mr. Moore did not immediately file an application for asylum after his wife and children joined him in the United States. Rather, Mr. Moore filed his application on April 15, 2003, more than one year after his entry to the United States. This filing came shortly after the U.S. attacked Iraq, and the U.S. Department of State issued the first of eight TravelWarnings due to the dangerous anti-Western and anti-Christian conditions present in Indonesia.
Mr. Moore and his family were found to be subject to removal pursuant to INA § 237(a)(1)(B). The Moores conceded removability at a Master Calendar hearing on August 25, 2003, and requested relief in the forms of political asylum, withholding of removal, relief under the Convention Against Torture, and, in the alternative, voluntary departure.
Although she concluded that the Moores “testified in a credible manner,” AR 196, the Immigration Judge denied the Moores’ application for asylum on the grounds that they failed to file it within one year of entry and did not demonstrate sufficient changed circumstances to excuse the late filing. AR 195-96. The Immigration Judge also denied withholding of removal and relief under the Convention Against Torture, holding that the Moores had not established that they suffered past persecution and had not demonstrated that they would more likely than not be harmed or tortured if they were removed to Indonesia. AR 198-99.
The Petitioners appealed the Immigration Judge’s decision to the Board of Immigration Appeals. The Board of Immigration Appeals dismissed the Petitioners’ appeal on July 10, 2006.
SUMMARY OF ARGUMENT
The Board of Immigration Appeals erred in affirming the decision of the Immigration Judge that the Petitioners were ineligible for withholding of removal. The multiple beatings, house stonings, vandalism, and threats suffered by Mr. Moore and his family on account of Mr. Moore’s position as an Elder in the Christian church and the family’s status as Chinese Christians cumulatively establish past persecution. The demonstration of past persecution, in turn, gives rise to a presumption of future persecution for withholding of removal purposes. Unlike the petitioner in Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc), the Petitioners demonstrated that they were individually targeted on account of a protected ground and did not rely on generalized fears pertaining to all Chinese Christians in Indonesia. Accordingly, a presumption that the Petitioners were eligible for withholding of removal was created when the Petitioners successfully demonstrated that they had been subjected to past persecution. In addition, the evidence demonstrated that there is a clear probability that the Petitioners would be persecuted if they returned to Indonesia.
The Board of Immigration Appeals also erred in affirming the decision of the Immigration Judge holding that the Petitioners failed to demonstrate changed circumstances to excuse the filing of their application for asylum more than one year after their date of entry. Muslim fundamentalist sentiment and anti-Christian violence in Indonesia increased dramatically following the United States invasion of Iraq in March, 2003, approximately one month before the Petitioners filed their application for asylum. This increased anti-Christian sentiment posed a new danger for Chinese Christians, who were now vulnerable due to their religion as well as their race.
THE BIA ERRED IN AFFIRMING THE IMMIGRATION JUDGE’S DENIAL OF WITHHOLDING OF REMOVAL IN VIEW OF THE PETITIONERS’ CREDIBLE TESTIMONY ESTABLISHING PAST PERSECUTION.
“To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds.” Al-Harbi v. I.N.S., 242 F.3d 882, 888 (9th Cir. 2001) (internal quotation omitted). The “specified grounds” include “race, religion, nationality, membership in a particular social group, or political opinion.” Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006) (internal quotation omitted). “The source of the persecution must be the government or forces that the government is unwilling or unable to control.” Id. A showing of past persecution creates a presumption that the petitioner is entitled to withholding of removal. Kataria v. I.N.S., 232 F.3d 1107, 1115 (9th Cir. 2001) (citing 8 C.F.R. § 208.16(b)(2) (2000)). In order to rebut that presumption, the government must prove, by a preponderance of the evidence, that the petitioner can safely relocate, and that it would be reasonable to expect him to do so. Mashiriv. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004).
A. The Petitioners’ Credible Testimony Established Past Persecution
1. The Petitioners’ Testimony Must Be Taken As True
As a preliminary matter, the testimony of the Petitioners must be accepted by this Court as true. Where the Immigration Judge finds that a petitioner testified credibly, this Court must accept that finding and treat the petitioner’s testimony as true. Sagaydak v. Gonzales, 405 F.3d 1035, 1038 (9th Cir. 2005). Here, the Immigration Judge specifically found that the Petitioners “testified in a credible manner.” AR 196. Thus, this Court must accept the Petitioners’ testimony as true.
2. The Petitioners Were Subjected to Incidents Which Cumulatively Rise to Past Persecution on Account of Specified Grounds.
Through credible testimony, the Petitioners alleged facts sufficient to establish that they suffered from past persecution in Indonesia. As this Court has noted repeatedly, there is a long-standing history of violence against Chinese Christians in Indonesia. See, e.g., Lolong v. Gonzales, supra at 1180. As Chinese Christians residing in Indonesia, the Petitioners suffered from violence in 1998 during what this Court has termed “the worst anti-Chinese rioting in [Indonesia’s] history.” Lolong v. Gonzales, supra at1175. Finally, as members of a ‘disfavored group,’ the Petitioners have a lowered burden to establish persecution. Sael v. Ashcroft, 386 F. 3d 922 (9th Cir. 2004).
According to the Petitioners’ credible testimony before the Immigration Judge, Mr. Moore was repeatedly attacked by Indonesian Muslims during the 1998 riots on account of his ethnicity and Church leadership position as Elder. AR 187-189. On the evening of May 14, 1998, a group of 40-50 Indonesian Muslims taking part in widespread anti-Chinese rioting rampaged throughout Mr. Moore’s neighborhood. AR 187. Believing the Muslims intended to burn down his neighbor’s house, Mr. Moore went outside his home to confront the attackers. AR 187. As he stood behind his fence, Mr. Moore asked the rioters what they were doing. AR 187. The rioters then jumped over the fence onto Mr. Moore’s property. AR 187. Several of them began to punch and kick Mr. Moore. As they beat him, the rioters chided, “You are a Chinese son of a gun trying to build a church here, are you?” AR 187.
This reference to building a church substantiates that the attackers were aware of Mr. Moore’s position as an Elder in the Seventh Day Adventist church, which was located one mile from his home. AR 188. As an Elder, Mr. Moore took part in refurbishing a home over a three month period so that it could be used as a church. AR 188 He also would gather congregants for prayer. AR 188. By their statements, it was clear that the attackers were aware of Mr. Moore’s activities on behalf of his church and were attacking him on account of those activities and his race.
Shortly after the beating began, Indonesian military personnel came into the neighborhood and fired shots into the air, at which point Mr. Moore’s attackers finally fled. AR 187. Mr. Moore asked the military to evacuate his family to his brother’s house. AR 188. The military agreed to do so, for a fee. AR 188. Later that evening, Mr. Moore returned to his house under the protection of the military. AR 188.
The following day, Mr. Moore was again the victim of hostilities from Indonesian Muslims. A crowd of 15-18 men came to his home and demanded money. AR 189. The crowd burst into his home and burned religious materials including a Bible and other religious books and magazines. AR 189. The attackers gathered the religious materials and placed them on a table before setting them on fire. AR 189. While setting the Christian objects ablaze, the attackers shouted, “You are a Chinese and have a lot of money! Why are you trying to Christianize people in this area?” AR 189. The men then began to beat Mr. Moore. They took his wallet and fled. AR 189.
Mr. Moore immediately called the police for help. AR 189. However, this time the police informed Mr. Moore that they would not respond to his call because they were too busy attempting to control the rioting still taking place throughout the city.
As this credible testimony demonstrates, the Indonesian authorities were unwilling to assist the Petitioners without first receiving payment, and were generally unable to prevent attacks or to respond to hostilities against the Petitioners. First, the Indonesian military would only agree to help the Petitioners evacuate to safety for a fee. Even then, the police were unable to come to Petitioners’ aid due to the rampant violence in other parts of the city.
This testimony also demonstrates that the Petitioners were identified for attack by Muslim extremists based on their race and religion. Mr. Moore was specifically targeted due to his leadership position and activities in his Christian church, as evidenced by the statements of his attackers and previous episodes of violence, including the stoning of his house during Christian prayer meetings. AR 190. Before 1998, Mr. Moore’s home was attacked because it was used for prayer by a Christian group, and his daughter was previously threatened with rape because of her Chinese appearance. AR 189.
It is the specific targeting of the Petitioners that places this case outside the ruling of this Court’s en banc decision in Lolong v. Gonzales, supra. In Lolong, the petitioner argued that her fear of future persecution was objectively reasonable due to the widespread rioting in 1998, even though she had already relocated to the U.S. before the 1998 riots and was never herself the target of any violence. This Court held that Lolong’s fear of future persecution was unreasonable because she had provided “no evidence that she has been, or is likely to be, specifically targeted by any individual or group in Indonesia.” Lolong v. Gonzales, supra at 1181.
By contrast, the Petitioners here have provided evidence that they were specifically targeted on account of their race and religion. In addition to the violence directed towards the Petitioners during the widespread rioting in 1998, the Petitioners were previously subjected to violence or the threat of violence due to Mr. Moore’s position as an Elder at his church and the family’s Chinese race. Most specifically, Mr. Moore’s prominent involvement as a leader in his Christian church, which religion is highly disfavored in predominantly Muslim Indonesia, led to attacks targeting him.
Rather than rely on general fears “shared by millions of ethnic Chinese Christians in Indonesia . . .” as did the petitioner in Lolong, the Petitioners here demonstrate fears “distinct from those felt by all other Chinese Christians in Indonesia.” Mr. Moore is distinguished from the “millions” of ethnic Chinese Christians in Indonesia by virtue of the attacks he endured due to his leadership position as church Elder and his responsibility for organizing prayer meetings and establishing new churches. It is this elevated, and thus more visible, leadership status in the Christian religion that made Mr. Moore the specific target of persecution on account of his race and religion.
The Immigration Judge’s decision, affirmed by the Board of Immigration Appeals, discussed the mob attack which occurred on May 15, 1998. The mob forcibly entered Mr. Moore’s home, stole his money and burned a Bible and other Christian books, magazines, and church newsletters in Mr. Moore’s living room. They accused him of trying to Christianize people in the area and beat him again. AR 245-246. In addressing the mob attack of May 15, 1998, the Immigration Judge found that the attackers “did harm respondent on that occasion and may have harmed him on account of the fact that his grandparents were Chinese and they may have though he was part Chinese and they were angry because he helped build a church. That incident does not rise to past persecution. It was a time of great unrest in Jakarta. It was an attack by a mob and it was a one-time incident.” AR 197. The Immigration Judge concluded that: “While that incident is indeed offensive and frightening, it does not rise to the level of past persecution….” AR 197.
In discussing the beating that Mr. Moore suffered on the previous day, the Immigration Judge dismissed the severity of the attack by noting that Mr. Moore did not require medical care. AR 197. This analysis suggests that the Immigration Judge applied an overly high standard in determining the factors constituting past persecution.
Here, the Immigration Judge misconstrued the evidence. She did not properly evaluate the context of the attack. She attributed the mob attack on Mr. Moore to “civil unrest” and “social chaos.” This conclusion ignores the personal nature of the attack. Mr. Moore was not randomly attacked. A crowd of Muslim rioters jumped over the fence of his property, called him a racial slur, accused him of trying to build a church, and then beat him. AR 230-233. The mob beat Mr. Moore not only because of his Chinese race, but because he was actively involved in building a Christian church in Indonesia. Mr. Moore was specifically targeted because of race and religion, and the attack against him cannot be generalized as “civil unrest” or “social chaos”.
Furthermore, the Immigration Judge applied an overly rigid standard for past persecution. As several cases decided by this Court have held, discrimination, harassment, and violence can constitute persecution. Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998); Vallecillo-Castillo v. INS, 121 F.3d 1237 (9th Cir. 1996); Singh v. INS, 94 F.3d 1353 (9th Cir. 1996). Physical beatings incurred because of a petitioner’s religious beliefs are often held to rise to the level of persecution. See, e.g., Matter of O-Z & I-Z, 22 I&N Dec. 23 (BIA 1998); Korablina v. I.N.S., 158 F.3d 1038 (9th Cir. 1998). Also, it is well established that threats of harm, particularly when combined with confrontation or other mistreatment, may constitute persecution. Mashiriv. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004). This Court’s prior decisions make clear that the harm suffered by the Petitioners rises to the level of persecution.
Here, Mr. Moore was repeatedly beaten because of his race, his position as a church Elder, and his activities as Elder. Moreover, religious articles were burned inside his house and multiple threats were made against Mr. Moore and his family. Therefore, a proper application of controlling precedent leads to the conclusion that the Petitioners were the victims of past persecution. Although there have been cases holding that threats alone are not sufficient to establish persecution, the combination of threats, beatings, and stonings to which the Moores were subjected cumulatively rises to the level of persecution.
For instance, in Canales-Vargas v. Gonzales, 441 F.3d 739 (9th Cir. 2006), the petitioner alleged she received written notes and phone calls threatening increasingly severe harm following a speech she made denouncing a terrorist group at a political rally. There, the Immigration Judge concluded, and this Court affirmed, that “mere threats” of harm, without more, were insufficient to demonstrate past persecution. Id. at 744. In this case, however, in contrast to Canales-Vargas, the Petitioners suffered actual physical harm in the form of beatings. Thus, the harm suffered by the Petitioners goes beyond “mere threats” and constitutes persecution.
Likewise, this Court has held that minor harm is insufficient to establish persecution. In Singh v. I.N.S., 134 F.3d 962, 968-69 (9th Cir. 1998), this Court held that rock throwing, damage to property, burglary of a home, and stolen laundry and other personal items did not amount to persecution. However, Mr. Moore suffered much more violent acts at the hands of their persecutors- namely, physical beatings. The Immigration Judge’s conclusion, upheld by the Board of Immigration Appeals, that these beatings and related incidents of violence did not constitute past persecution misapplied the law and should be overturned.
The Petitioners’ Credible Testimony Establishing Past Persecution Creates a Presumption of Eligibility for Withholding of Removal.
A showing of past persecution creates a presumption that the petitioner is entitled to withholding of removal. Kataria v. I.N.S., 232 F.3d 1107, 1115 (9th Cir. 2001) (citing 8 C.F.R. § 208.16(b)(2) (2000)). In order to rebut that presumption, the government must prove, by a preponderance of the evidence, that the petitioner can safely relocate, and that it would be reasonable to expect him to do so. Mashiri, v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004).
Because the Petitioners alleged facts sufficient to establish past persecution, the burden shifts to the government to rebut the presumption that the Petitioners are eligible for withholding of removal. As the record indicates, the Department of Homeland Security did not carry its burden of rebutting the presumption of future persecution.
In view of all the incidents of mistreatment set forth above which the Immigration Judge found credible, this Court should find that Petitioners qualify for withholding of removal. It cannot be overemphasized that the Petitioners were targeted not only because of their race, but also because of Mr. Moore’s status as an Elder of a Christian church. Notwithstanding the past persecution endured by the Petitioners, the documentary evidence depicting increased anti-Christian sentiment by Indonesia’s radicalized Muslims demonstrates the likelihood that the Petitioners would be subjected to future persecution if they returned to Indonesia.
Material Changes IN Country Conditions in Indonesia Excuse the Late-Filing of THE Petitioners’ Application for asylum.
Generally, a petitioner who does not file an application for asylum within one year of entry is barred from later filing such an application. 8 U.S.C. § 1158(a)(2)(B). However, an exception exists allowing an application for asylum to be considered even when filed more than one year after entry where changed circumstances that materially affect the applicant’s eligibility for asylum arise and excuse the late filing. 8 U.S.C. § 1158(a)(2)(D).
Changed circumstances materially affecting the applicant’s eligibility for asylum include: “(A) Changes in conditions in the applicant’s country
of nationality . . . .” 8 C.F.R. § 208.4(a)(4)(i). Here, changed conditions in Indonesia, namely the rise of a growing fundamentalist, anti-Christian sentiment following the U.S. attack on Iraq in 2003, excuse the Petitioners’ late filing of their application for asylum.
The Petitioners filed their application for asylum on April 15, 2003, less than one month after the U.S. Department of State issued the first of at least eight TravelWarnings pertaining to Indonesia. These TravelWarnings demonstrate a dramatic increase in Muslim fundamentalist sentiment in Indonesia following the U.S. attack on Iraq. While the TravelWarnings are directed toward United States citizens and other Westerners, they evidence the dramatically increased anti-Western and anti-Christian sentiment on the part of Muslim extremists throughout Indonesia, which led to violence that the Indonesian government was unable to control.
The TravelWarnings advise of cells operated by the radical JemaahIslamiyah organization operating throughout Indonesia, along with an increased presence of “extremist elements.” AR 118-145. This rise of Muslim fundamentalism and anti-Christian fervor creates a particularly dangerous climate for Indonesia’s Chinese Christian minority. As the Petitioners were previously harmed by Muslim extremists, they were understandably alarmed to discover that the danger posed by these radicals had reached such a level as to require the U.S. Department of State repeatedly to issue TravelWarnings.
The Petitioners reasonably viewed this anti-Western, anti Christian sentiment as a new threat to the Chinese Christian minority in Indonesia and as a direct danger to their safety. This development constitutes material changed circumstances sufficient to excuse the Petitioners’ late filing of their application for asylum. Because the late-filing of Petitioners’ application for asylum should have been excused due to changed circumstances, the Board of Immigration Appeals erred by not remanding this to the Immigration Judge for a determination of whether the Petitioners qualify for asylum.
The BOARD OF IMMIGRATION APPEALS Erred by Denying THE Petitioners’ Motion to Remand for Consideration of New Evidence.
A Motion to Remand must satisfy the same requirements as a Motion to Reopen. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir. 2003). Like a Motion to Reopen, a Motion to Remand must “state the new facts that will be proven at a hearing to be held if the motion is granted . . . .” 8 C.F.R. 1003.2(c)(1).The new facts “must be material,” and the applicant must show that the evidence could not have been discovered or presented at the former hearing.” Id. (internal quotation admitted) (emphasis in original) citing 8 C.F.R. § 1003.2(c)(1).
Here, the Petitioners offered new evidence in the form TravelWarnings issued by the U.S. State Department (AR 118-45) during the period from March 22, 2003, to November 18, 2005, and an affidavit from Jeffrey A. Winters, Ph.D. AR 165-75. This evidence was offered to support the Petitioners’ contention that the late-filing of their application for asylum was justified by changed country conditions.
The BIA erroneously concluded that the TravelWarnings issued after the Petitioners’ removal hearing were “irrelevant” to the Petitioners’ argument. Petitioners’ removal hearing was conducted on March 18, 2005. The State Department issued four (4) separate TravelWarnings for Indonesia after that date which were included in Petitioners’ Motion to Remand. AR 132-45. These TravelWarnings each caution against travel to Indonesia based on the increased presence of radical Muslim groups and the Indonesian government’s inability to control these groups. Because the Petitioners were violently attacked by radical Muslims, these TravelWarnings are directly relevant to the Petitioners’ claim that changed country conditions justify the late filing of their application for asylum.
Additionally, the Board of Immigration Appeals erred in refusing to consider Professor Jeffrey Winters’ affidavit on the grounds that it contained “testimony based on information that was available before the removal hearing.” AR 14. While admittedly some of the testimony in the affidavit concerned events that occurred prior to the removal hearing, the affidavit was also based on events occurring in October of 2005, including, most significantly, the Bali nightclub bombings. AR 60 (see paragraph 21).
Like the TravelWarnings, Professor Winters’ affidavit is directly relevant to the deteriorating country conditions in Indonesia that excuse the Petitioners’ late-filing of their asylum application. Professor Winters set forth his expert opinion regarding the dangers facing Chinese Christians in Indonesia following the Bali nightclub bombings. As such, his affidavit goes directly to the point that deteriorating conditions for Chinese Christians in Indonesia should excuse the late filing of Petitioners’ application for asylum. This Court should reverse the Board of Immigration Appeals’ denial of Petitioners’ Motion to Remand and allow the Immigration Judge to consider this new evidence.
As demonstrated above, the Immigration Judge found the Petitioners’ testimony credible. This testimony included descriptions of repeated acts of violence, including beatings, vandalism, stonings, and acts of intimidation. The Petitioners were repeatedly singled out and physically harmed due to their status as Chinese Christians and Mr. Moore’s position as an Elder in a Christian church. In failing to find that these actions constituted past persecution, thereby giving rise to a presumption of future persecution for withholding of removal purposes, the Board of Immigration Appeals gave insufficient weight to the gravity of the Petitioners’ harm and misapplied controlling case law.
In addition, the Board of Immigration Appeals erred in affirming the Immigration Judge’s holding that the Petitioners’ late filing of their asylum application was not excused due to deteriorating country conditions in Indonesia following the U.S. invasion of Iraq in March, 2003.
In view of the foregoing, it is respectfully requested that the Ninth Circuit Court of Appeals overturn the decision of the Board of Immigration Appeals and remand this case to the Board of Immigration Appeals with instructions to issue a new decision in accordance with the ruling of this Court.
Dated: Respectfully submitted,
Attorney for Petitioners
Petitioners seeks review of the decision of the Board of Immigration Appeals ("BIA" or “the Board”) entered on September 12, 2005. Jurisdiction of the Board arose under 8 C.F.R. § 3.1 (b)(2) granting it appellate jurisdiction over decisions of Immigration Judges in deportation matters.
The jurisdiction of this Court is pursuant to Section 242(b)(4)(D) of the Immigration & Nationality Act (“INA”). The basis of the petitioners’ appeal is that the decision of the BIA was contrary to law.
STATEMENT OF THE ISSUES
Was the finding of the Immigration Judge (or “IJ”), affirmed by the BIA, that the petitioners’ testimony was not credible, supported by the evidence?
Was the IJ’s determination, affirmed by the BIA, that the petitioners were not eligible for asylum, withholding of removal or relief under the Convention of Torture, supported by the evidence?
Were the petitioners prejudiced and deprived of due process because the IJ improperly excluded documentary evidence from the record?
STANDARD OF REVIEW
When this court reviews a denial of asylum, it must first determine whether substantial evidence supports the BIA's determination that an alien has failed to prove a well-founded fear of persecution. Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986). Factual findings of the IJ and the BIA are reviewed under the “substantial evidence” standard. Singh v. Ilchert (Singh I), 63 F.3d 1501 (9th Cir. 1995) Factual findings must be supported if supported by reasonable, substantial, and probative evidence in the record. Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). If refugee status has been established, the Ninth Circuit reviews the BIA's denial of asylum for abuse of discretion. Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986) citing Garcia-Ramos v. INS, 775 F.2d 1370, 1373, (9th Cir. 1985); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir. 1984).
Questions of law in an asylum case receive a de novo review. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988). De novo review has been exercised over all legal questions in immigration cases before the Ninth Circuit. The Court has stated that it reviews legal questions regarding the requirements for establishing eligibility for asylum de novo and that the substantial evidence standard applicable to factual findings "does not . . . preclude a court from a vacating the BIA's asylum determination and remanding a case for further consideration where the BIA's denial of asylum was based upon an error of law." Kotasz v. INS, 331 F.3d 847 (9th Cir. 1994).
STATEMENT REGARDING ATTORNEY'S FEES Petitioners state that if they prevail on this appeal, they intend to seek recovery of attorney's fees. See 28 U.S.C. § 2412 (d)(1)(A).
STATEMENT REGARDING DETENTION
It should be noted that the petitioners are not currently in detention.
STATEMENT OF CASE
This case involves the application for asylum, withholding of removal, and relief under The Convention Against Torture by three natives and citizens of Armenia; a father, mother and their daughter. The petitioners contend that they would be subject to religious and political persecution on return to Armenia. The IJ denied the applications for asylum, withholding and relief under the Convention of Torture for all three petitioners, but allowed the two female petitioners the option of voluntary departure. The lead male petitioner was ordered to be removed to Armenia. The Board of Immigration Appeals affirmed the IJ’s decision, but remanded the case of Elizabeth to apply for adjustment of status. The petitioners now seek relief in this court.
STATEMENT OF FACTS
The petitioners, SAMUEL GARVAZIAN, CATHERINE Garvazian, and Elizabeth GARVAZIAN are citizens of Armenia. SAMUEL and CATHERINE are a married couple and the parents of two children, Shushanik and Elizabeth. Prior to arriving in the United States in 1997, the petitioners testified that they suffered numerous problems resulting from their treatment by the Armenian government and the state sanctioned Armenian Aposotolic Church. Administrative Record (or “AR”) 352.
The lead female petitioner, CATHERINE, was a teacher in Armenia and also
acted as a school superintendent. AR 351. She graduated from the University of Yerevan and from the Institute of Education. AR 351.
CATHERINE came to the United States from Armenia in November of 1997 to save her life and that of her daughter, Elizabeth GARVAZIAN. AR 352. CATHERINE was afraid to return to Armenia because of persecution sponsored by both the Armenian State and the Armenian Apostolic Church. AR 352.
The petitioners are Pentecostal Christians and are not members of the state-acknowledged Armenian Apostolic Church. AR 352-353. The female petitioner, CATHERINE, testified that if one is an Armenian and not a follower of the Armenian Apostolic faith, one is considered a traitor to Armenia. AR 367. Non-members of the Armenian Apostolic faith, such as Pentecostal Christians, are subject to persecution and harassment in Armenia, due to nationalistic ties between the state and its namesake church. AR 367.
Petitioner CATHERINE became exposed to Pentecostal Christianity in 1990 through her sister. AR 354. CATHERINE’s sister, who was suffering from severe depression because of the death of her husband, found solace and spiritual satisfaction from attending Pentecostal religious services. AR 354. After she witnessed the positive effect this religion had on her sister, the petitioner began attending services. AR 355. During a service at which the pastor preached a sermon about the parable of the Prodigal Son, CATHERINE testified that she wept, experienced great happiness, and believed that God spoke to her. AR 355-356. Because of this experience, she became an active member and decided to dedicate herself to the Pentecostal faith. AR 356.
She currently attends a Foursquare Pentecostal church in Burbank, California. AR 356.
After petitioner CATHERINE became a member of the Pentecostal church, she began having problems in Armenia. AR 357.
On January 4, 1995, the female petitioner was hospitalized for three weeks after being beaten on the back of the head by a hard resin baton wielded by the uniformed members of the military Yergrabah, also known a as the Armenian Homeland Guard. AR 363. The beating was so severe that it caused CATHERINE to lose consciousness. The aim of the Yergrabah is to disperse and punish those who preach and proselytize any faith other than that of Armenian Apostolic Church. AR 366, 367.
This attack by the Yergrabah took place at the conclusion of a home service attended by members of the Pentecostal faith to commemorate Armenian Christmas Day. AR 362, 403. The military attacked a group of ten to twelve parishioners including the petitioner. AR 365, 366. This attack resulted in the death of two individuals. AR 365, 366.
Petitioner CATHERINE recognized the Yergrabah by their distinct uniform. AR 404. As a result of this attack, the petitioner was hospitalized. CATHERINE’s sight was adversely affected. In addition, the petitioner suffered memory loss and became prone to strong headaches during her subsequent hospitalization. AR 405.
The mission of the Yerkrapah was to disperse and to punish those who were trying to proselytize. AR 367. Because CATHERINE and her family were not members of the Armenian Apostolic Church, they were considered traitors of the Armenian nation. AR 367. Athough CATHERINE became a member of the Pentecostal church; she never imposed her faith on others. AR 404. The tenants of her faith preclude using duress or force to bring others to the group. AR 357
Upon petitioner’s return to work in February 1996 after her hospitalization and treatment, her director fired her. This was because the female petitioner was accused of preaching among the students. AR 367.
Petitioner’s husband, SAMUEL GARVAZIAN, was also fired in August of 1996. AR 368.
Because her husband refused to join the ruling party, the All-Armenian National Movement, the family was threatened. AR 359. The first threat took place in the spring of 1995. The family was having supper when they received a telephone call. The lead female petitioner noticed her husband’s mood change, but he did not say anything about the phone call in the presence of their daughter. Later than evening, the male petitioner informed his wife that he had been threatened over the phone. AR 360.
According to CATHERINE, her husband refused to join and cooperate with the ruling party because of his faith and honesty. AR 359. She described the ruling party as a party of criminals and bribe taking Mafiosos. AR 359. The family received a number of threatening phone calls, vandalism of their home and the breaking of household items. The petitioners called the police three times to report such acts, but their efforts were fruitless. AR 362.
In the spring of 1995, CATHERINE also began to receive threatening telephone calls. During these calls, she was intimidated and asked if she had “brainwashed” her husband, SAMUEL. AR 399.
The lead male petitioner, SAMUEL, was employed in Armenia as both a jeweler and as the assistant director of the Nor Nork electrical grid. AR 306, 309. In his position as the assistant director of the Nor Nork grid, SAMUEL was responsible for control of the electrical output for three districts in Armenia. Also, he supervised twenty-eight employees and all of the cash income generated by the plant. AR 309 - 310. This attracted the attention of the ruling party in Armenia, the All-Armenian National Movement. AR 359. Furthermore, SAMUEL’s reputation for integrity made him a target. AR 359. According to petitioners, the party was notorious for its association with petty criminals. The notion that most of its members were bribed by the mafia was generally accepted. AR 359.
SAMUEL was a non-political person and did not want to be associated with the ruling party. AR 359. SAMUEL believed the party wanted to use his expertise and knowledge of the electrical grid in order to abuse it for the party’s financial gain. AR 406. The party reacted to his refusal to associate with them by phoning his home and making threats. AR 406.
In response to these threats, the male petitioner began to gather written evidence against the ruling party which would have exposed their corruption. SAMUEL planned to present this evidence to the opposition party, the Dashnak, which was growing in popularity in Armenia. AR 406. However, due to the All-Armenian National Movement’s attempts to link SAMUEL to the Dashnak, he fled to Russia in fear for his life in 1996. He left CATHERINE and Elizabeth in Armenia. AR 406.
After SAMUEL left Armenia, the threats escalated and were accompanied by acts of violence. AR 369
In March of 1977, the petitioners’ daughter, Elizabeth, was abducted off the street and questioned by plain clothes agents of the Armenian government. These agents threatened and questioned her about her father’s whereabouts before releasing her. AR 369.
CATHERINE’s daughter usually returned home about 7:00 p.m. On the day of the abduction, the female petitioner felt spiritual unrest and called the daughter’s teacher. AR 369. The teacher reported that Elizabeth should have come home by then.
When the petitioner’s daughter, the second female petitioner in the case, finally returned home late, her mother testified that she looked scared and changed. AR 369-380. Elizabeth denied that anything was wrong. However, at night, she woke up shouting and screaming for help.
Finally, the petitioner’s daughter informed CATHERINE that she was abducted by plain clothes officers who forced her into a vehicle and took her beyond the city limits. AR 370. Elizabeth was questioned about the whereabouts of her father. She was ordered to find out where her father was and to report it back to the agents. AR 370.
In July of 1997, Elizabeth was abducted a second time. AR 373. CATHERINE’s daughter was scheduled to play in a piano concert at the main opera house in Armenia in the Armam Khachartyan Hall.
After Elizabeth finished performing, the lead female petitioner exited the building and waited for her daughter out the concert hall. AR 373.
Soon CATHERINE realized that Elizabeth did not exit the building. She began walking around the building hoping to find her daughter. By that time, the crowd attending the concert had dispersed. AR 373. CATHERINE was then confronted by a man who drove up in a van. AR 373. He told her if she wished to know her daughter’s whereabouts, she needed to come with him. AR 373. He would not tell her where they were going or where Elizabeth was being held. They drove for fifteen minutes which felt like an “eternity” to CATHERINE. AR 374. The van stopped next to a two story building. AR 375. The female petitioner was taken inside of that building and pushed into a room. Inside that room, the petitioner observed her daughter and three men whom the petitioner identified as government agents standing by Elizabeth. AR 378. Elizabeth was sobbing, wanting to know why she was being questioned regarding her father’s whereabouts. AR 377. When she noticed her mother, she attempted to stand up; she was pushed down by the agent standing next to her, according to CATHERINE’s testimony. AR 377.
The government agents tried to get information from the petitioner by falsely saying that her daughter had revealed to them that her father was in Armenia. At that moment, the daughter Elizabeth shouted to her mother that this was a lie. AR 387.
The female petitioner and daughter were interrogated as to whereabouts of the male petitioner, SAMUEL GARVAZIAN. CATHERINE revealed that her husband was in Russia, but she told the questioner that she did not know in which part of Russia SAMUEL was residing. AR 378.
The men then forced Elizabeth to place her hands on the table, strongly implying they would break her fingers with their batons if the women did not reveal SAMUEL’s location. AR 378. CATHERINE believes that these men were with the All-Armenian National Movement and they kidnapped Elizabeth, thinking CATHERINE and SAMUEL were working with the Dashnak. AR 382.
While hitting Elizabeth’s hands with the rubber baton, the agent commented that the since the daughter used her fingers to play the piano, she would be forced to tell the truth. AR 378.
Seeing her daughter tortured and hit on her fingers, CATHERINE rushed to help her. When she tried to intervene, one of the agents stopped her by hitting her with the baton on the head. AR 378 and AR 381.
CATHERINE knelt down and cried. She begged the guards to spare her daughter and to do everything to her. AR 381. After this incident, both female petitioners were escorted to a van, dropped off, and released. AR 381.
The stress and physical shock of the abduction and attack caused Elizabeth to suffer a nervous breakdown in August of 1997, which led to a two week long hospitalization. AR 393.
On August 1, 1997, CATHERINE’s daughter was hospitalized for the second time. She was in the hospital for one month because of her hand trauma and her mental stress. AR 392-393.
The female petitioner believes that the 1997 abduction and questioning were because the ruling party wanted the male petitioner to divert income from the electric grid to their private accounts and not to the treasury of the country. The plan was to embezzle money and then share the profits among certain party members. AR 384-385. Following this incident, petitioners arrived in the United States.
SUMMARY OF ARGUMENT
Thepetitioners contend that they qualify for asylum, withholding of removal pursuant to INA § 241, as well as relief pursuant to Article 3 of the Convention Against Torture. The IJ erred in determining that the testimony of the petitioners, which was supported by several witnesses, was not credible. It is also contended that the IJ improperly excluded important documentary evidence which would have enhanced petitioners’ claim and supported their credibility.
The Refugee Act of 1980 added Section 208 to the INA. This section provides that "the alien may be granted asylum in the discretion of the Attorney General if he determines that such alien is a refugee within the meaning of Section 101(a)(42)(A)." The term "refugee" is defined in the aforementioned section as:
Any person who is outside any country of such
person's nationality or, in the case of a person
having no nationality, is outside any country in
which such person last habitually resided, and is
unable or unwilling to avail himself or herself
of the protection of that country because of
persecution or a well-founded fear of persecution
on account of race, religion, nationality,
membership in a particular social group, or
In addition to applying for asylum under Section 208, an alien who is in removal proceedings and who fears a return to his or her home country may apply for Withholding of Removal under Section 241(b)(3) of the Immigration and Nationality Act ("INA"). That Section states:
The Attorney General may not remove an alien...
to a country if the Attorney General decides that the
alien's life or freedom would be threatened in that
country because of the alien’s race, religion,
nationality, membership in a particular social
group or political opinion.
To be granted withholding of deportation, an alien must show that there is a clear probability that he would be persecuted upon return to this home country. Arteaga v. INS, 836 F.2d 1227 (9th Cir. 1988). " Under this standard, the proper inquiry is 'whether it is more likely than not that the alien [will] be subject to persecution.'" Singh v. Ilchert, 801 F.Supp. 313 (N.D.Cal. 1992) quoting INS v. Stevic, 467 U.S. 407, 424 (1984).
An applicant may be granted refugee status and be eligible for asylum in one of two ways. First, the applicant can show past persecution. The Ninth Circuit has defined persecution as "the infliction of suffering or harm upon those who differ...in a way regarded as offensive". Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1995)(citations omitted). Once past persecution is demonstrated, then fear of future persecution is presumed and the burden shifts to the Immigration and Naturalization Service to show by a preponderance of the evidence that since the time the persecution occurred conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return...8 C.F.R. § 208.13(b)(1)(i) Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995).
An applicant may also qualify for asylum by showing a "well-founded" fear of future persecution. This includes both subjective and objective components. Shirazi-Paisa v. INS, 4 F.3d 1424 (9th Cir. 1994). The subjective element may be satisfied by an applicant's credible testimony that he fears persecution. The objective element requires the applicant to show "by credible, direct, and specific evidence in the record...that persecution is a reasonable possibility." Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986).
In INS v. Cardoza-Fonseca, the Supreme Court explained that, "one can certainly have a well-founded fear of an event happening when there is less than fifty (50%) percent chance of the occurrence taking place." 480 U.S. 421 (1987).
A. THE IJ’S FINDING THAT THE PETITIONERS’ TESTIMONY WAS NOT CREDIBLE WAS IN ERROR AND WAS NOT SUPPORTED BY THE EVIDENCE. The IJ’s determination of credibility is generally given deference because the IJ is traditionally in the best position to assess the trustworthiness of the applicant’s testimony. See Manimbao v. Ashcroft, 329
F.3d 655 (9th Cir. 2003); Canjura-Flores v. INS, 784 F.2d 885, 888 (9th Cir. 1985).
Nevertheless, “the Court should examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.” Gui v INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (internal quotations omitted).
An IJ must have must have a legitimate basis to question the applicant’s credibility and must offer specific and cogent reasons for any stated disbelief. Id. “Any such reason must be substantial and bear a legitimate nexus to the finding. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000). “Generalized statements that do not identify specific examples of evasiveness or contradiction in the petitioner’s testimony” are insufficient. Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1997). Additionally, “[m]inor inconsistencies in the record that do not relate to the basis of an applicant’s alleged fear of persecution, go to the heart of the asylum claim, or reveal anything about an asylum applicant’s fear for his safety are insufficient to support an adverse credibility finding.” See MendozaManimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003).
Here, the IJ erred in making a credibility finding adverse to the petitioners. The IJ stated that CATHERINE’s testimony regarding her husband’s employment and position of importance were not credible due to the fact that SAMUEL’s application for adjustment of status failed to mention his employment at the electric grid. However, when Petitioner SAMUEL’s application was being prepared, the individual responsible for preparing the application apparently neglected to include his complete employment history. The employment at the electric grid was not relevant to the application for labor certification. In addition, immigration applications often contain errors and inaccuracies. The IJ and the BIA evidently failed to take this fact into consideration.
Any perceived inconsistency is further resolved in light of SAMUEL’s testimony and that of his witness. They both testified that due to the irregular flow of electricity in the region, the electrical grid was not operational for most of the week and the bulk of his employment from 1976 to 1996 as assistant director of the electrical grid was part time on the weekends on Saturday and Sunday. AR 314. As such, it was common for workers at the
electrical grid to have more than one job to support themselves in Armenia. AR 342.
Mr. Oslo, a witness for the petitioner, stated that jewelry making could have been a more profitable endeavor for SAMUEL than his job with the electrical company. AR 341, 342. Mr. Oslo’s testimony corroborated that SAMUEL was involved in both the jewelry business and the electrical concern at the same time as the schedule between the two did not conflict. AR 341. This statement is consistent with the forty hours a week schedule SAMUEL maintained at the jewelry trade as stated on his labor certification form. Petitioner also mentioned the devalued condition of Armenian currency as a reason he and many others worked two jobs, which was also corroborated by Mr. Oslo. AR 341.
The devalued currency was also a key factor in the rampant graft and corruption in Armenia. The jewelry company therefore had an incentive to remove SAMUEL’s name off payroll to avoid taxes. AR 319. CATHERINE’s testimony
also points out that SAMUEL worked in both the jewelry and electrical companies and mentions the graft present in both the electrical company and the All-Armenian National Movement. AR 383.
The IJ completely ignored the consistent testimony of three witnesses who pointed out that it was common for workers to have multiple jobs in Armenia due to currency deflation.
The adverse credibility finding cast on CATHERINE failed to consider SAMUEL’s unawareness of the importance of providing complete information of all his prior employment on his application.
The petitioners’ testimony was corroborated by several witnesses who provided coherent and plausible testimony that supported the male petitioner’s employment history in Armenia. All of the accounts regarding this were internally consistent, credible and not contradicted by the government. Moreover, any misperceived minor inconsistencies were not of a material nature. Rather, they were more likely the result of a communication problem between the petitioner SAMUEL and the individual assisting him in preparing his immigration application.
The IJ drew negative inferences from minor discrepancies concerning the length of time petitioners’ daughter was in the hospital. The IJ noted that the female petitioner stated that her “daughter was hospitalized for trauma to her hand as well as for shock after being interrogated and hit.” AR 130. Yet, the declaration only indicated “that the purpose of the hospitalization was for the shock and emotional trauma, not injury to the hand.” AR 130. Clearly, the IJ was stretching to find an inconsistency.
Furthermore, there were no discrepancies or inconsistencies in the testimony of the three witnesses. The evidence compels a finding that the testimony of the petitioners and other witnesses was credible.
THE IJ’S FINDING THAT THE PETITIONERS WERE NOT ELIGIBLE FOR ASYLUM WAS IN ERROR AND NOT SUPPORTED BY THE EVIDENCE.
As indicated by the testimony, the lead male petitioner SAMUEL was sought after by the ruling All-Armenian National Movement even after leaving Armenia for Russia. AR 370. Petitioner CATHERINE testified that the Armenian government had targeted SAMUEL because of his refusal to take part in a graft scheme involving the money which SAMUEL managed as assistant director of the electrical grid that employed him in Armenia. AR 359. Petitioners testified that because of the lead male petitioner SAMUEL’s refusal to participate in this scheme, he was forced to flee Armenia in fear of
his safety after threatening phone calls were made to his home. AR 360.
Subsequent to his departure, there were threatening incidents. The petitioners’ daughter, Elizabeth, was kidnapped twice. Both times she was questioned as to her father’s whereabouts and location in Russia. AR 370, 377. This shows the All-Armenian National Movement had been tracking his movements after he left Armenia and employed violence in order to determine his precise location.
The second time Elizabeth was kidnapped, she was tortured by being forced to place her hands on a table and having her fingers struck with a resin baton. During this attack, her mother was restrained and forced to watch. AR 378.
In view of petitioner SAMUEL’s failure to cooperate with the government’s graft, and the history of past violence to elicit information from his family, there is a clear probability that all the petitioners would be persecuted if they were to return to Armenia.
Moreover, as the record demonstrates, the petitioners have also been targeted for harassment in the past based on their religious affiliation. They are members of the Pentecostal Christian faith, which has been officially viewed as competing with and eroding the membership of the state sponsored Armenian Apostolic Church. AR 367. It was insinuated that CATHERINE “brainwashed” her husband with her Pentecostal Christian influence into not complying with the ruling party’s graft scheme. AR 399.
Given the pattern of harassment, threats and violence experienced by the petitioners and their family, there can be no doubt that it was motivated by their political and religious views. This state-sponsored religious persecution suffered by the female petitioner based on her faith would only resume were she to return to Armenia.
The petitioners were victims of the corrupt All-Armenian National Movement, which was part of the Armenian government. After the lead male petitioner refused to participate in their graft, the threats by the movement caused him to compile evidence to take to the opposition party, the Dashnak. Thus, the pattern of threats, harassment and violence was targeted at petitioners’ due to their refusal to cooperate and because of petitioner SAMUEL’s political opinion. See Grava vs. INS, 205 F.3d 1177, 1181-82 (9th Cir. 2000).
This targeting was persecution based on religious and political opinion. The persecutors were government agents and the Yerkrapah Homeland Guard. The fact that these are part of the government and that the government is unwilling or unable to control them, makes a showing for an asylum claim. See Avetovvo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). Various forms of physical violence, including torture, assault, and beatings, amount to persecution. See e.g., Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002).
Similarly, the law is clear that threats can give rise to a well founded fear of future persecution. See Lim v. INS, 224 F.3d 1029 (9th Cir. 1999). (Lim held that an Armenian woman who was threatened and harassed, but never physically harmed had a well founded fear of future persecution in Armenia Id.). The pattern of threats and harassment faced by the petitioners certainly gives rise to a fear of future persecution.
The pattern of incidents and their systematic escalation from threats to physical violence and psychological torture warrant a claim of asylum based on past persecution alone. The BIA held that “past persecution, without more, satisfies the requirement of 8 U.S.C. § 1101 (a) (42) (a), even independent of establishing a well-founded fear of future persecution.” Matter of Chen, Int. Dec. 3104, at p.3 (BIA 1999). The incidents the petitioners and their family suffered were severe and warrant asylum based on past persecution alone.
Moreover, once an applicant establishes past persecution, a presumption arises that he or she has a well-rounded fear of future persecution. Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001); Singh v. Illchert, 63 F.3d 1501, 1510 (9th Cir. 1995). Nothing in the record supports the IJ’s finding that the petitioner has no well-founded fear of future persecution. This includes both subjective and objective components. Shirazi-Paisa v. INS, 4 F.3d 1424 (9th Cir. 1994). The subjective element may be satisfied by an applicant’s credible testimony that he fears persecution. The objective element requires the applicant to show “by credible, direct, and specific evidence in the record … that persecution is a reasonable possibility.” Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986). The record indicates that the threats made against the petitioners escalated to kidnappings and physical violence as time went on, becoming more intense. In INS v. Cardoza-Fonseca, the Supreme Court explained that, “one can certainly have a well-founded fear of an event happening when there is less than fifty (50%) percent chance of the occurrence taking place.”
480 U.S. 421 (1987).
The IJ erred by failing to find that the petitioners were not eligible for the protection of asylum.
THE IJ’S FINDING THAT THE PETITIONERS WERE NOT ELIGIBLE FOR WITHHOLDING OF REMOVAL WAS IN ERROR AND NOT SUPPORTED BY THE EVIDENCE.
It is difficult to see how the BIA concluded that the petitioners did not qualify for ithholding of removal. The standard applied by the BIA for withholding of removal was too high. To be granted withholding of removal, an alien must show that there is a clear probability that he would be persecuted upon return to their home country. Arteaga v. INS, 836 F.2d 1227 (9th Cir. 1988). “Under this standard, the proper inquiry is ‘whether it is more likely than not that the alien [will] be subject to persecution.’” Singh v. Ilchert, 801 F.Supp 313 (N.D.Cal. 1992) quoting INS v. Stevic, 467 U.S. 407, 424 (1984). While the standard for withholding is higher than that for asylum, it does not require proof beyond a reasonable doubt. It requires a clear probability or a showing of more likely than not. A Bulgarian doctor threatened regularly by police and anonymous callers because of religious and political views was entitled to withholding of removal. Leiva-Montalvo v. INS, 173 F.3d 749 (9th Cir. 1999).
In view of the testimony presented, petitioners also qualify for withholding of removal.
D.THE IJ’S FINDING THAT THE PETITIONERS WERE NOT ELIGIBLE FOR RELIEF PURSUANT TO THE CONVENTION AGAINST TORTURE WAS IN ERROR AND NOT SUPPORTED BY THE EVIDENCE.
For the same reasons discussed above, there is no substantial evidence supporting the IJ’s and BIA’s conclusion that the petitioners were not eligible for withholding of removal under CAT.
E.THE IJ IMPROPERLY EXCLUDED DOCUMENTARY EVIDENCE FROM THE RECORD. IN SO DOING, HE VIOLATED PETITIONERS’ RIGHT TO PROCEDURAL DUE PROCESS.
The IJ excluded several documents from evidence, finding that they were only admitted for “identification.” AR 116-117. To begin with, the IJ determined that a medical document issued by a hospital in Yerevan, Exhibit 5-A, was inadmissible because it did not comply with 8 C.F.R. § 287.6. Id. This regulation provides two regimes for authenticating foreign official documents: chain authentication, and authentication under the 1961 Hague Convention.
Petitioners would first argue that the document in question should not be considered as an “official document” or “public record.” Therefore, this piece of evidence should not be subject to the requirements of 8 C.F.R. § 287.6. And even if it could be properly considered an “official record” or “public document,” the IJ placed an unreasonable burden on the petitioner by finding that she “did not lay a foundation for this document nor did she properly certify it by some other means.” AR 116. See also Khan v. INS, 237 F.3d 1143 (9th Cir. 2001). The IJ neglects to state by what other means within petitioner’s ability could she have satisfied this requirement. Clearly, it would not be reasonable to demand that witnesses from the hospital in Yerevan with knowledge of the document come forth and testify about its authentication.
Also noteworthy is the IJ’s ruling that a document which would have established that the male petitioner resigned from his position was not admitted into evidence. AR 117. According to the IJ, “[a] foundation was not laid for this document. It will not be considered.” AR 117. Again, what could the petitioner have reasonably done to lay a foundation for this foreign document that would have met with the IJ’s satisfaction?
Immigration proceedings are not bound by the strict rules of evidence. Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983). The general rule with respect to evidence in immigration proceedings favors admissibility as long as the evidence is shown to be probative of relevant matters and its use is fundamentally fair so as not to deprive the alien of due process of law. Id. Furthermore, according to 8 C.F.R. § 1003.42 (c) “The Immigration Judge may receive into evidence any oral or written statement which is material and relevant to any issue in the review.”
The IJ in this case imposed an unreasonably strict standard in determining what documents could be admitted into evidence. In so doing, he disregarded the controlling case law as well as the regulations. The petitioners were clearly prejudiced by the IJ’s finding and in fact were deprived of due process. A long line of cases has held that aliens in deportation proceedings are entitled to due process. Magallanes-Damian v. I.N.S, 783 F.2d 931, 933 (9th Cir. 1986). Zadvydas v. Davis, 533 U.S. 678, 693 121 S.Ct. 2491, 2500 (2001).
If the excluded documents had been admitted into evidence, they would have strengthened the petitioners’ claim. In addition, these excluded documents would have supported the testimony that the IJ did not find credible.
F. PETITIONERS DO NOT WISH TO CONTEST THE DENIAL OF VOLUNTARY DEPARTURE TO THE MALE PETITIONER.
Although the IJ erred in finding that the male petitioner did not qualify for voluntary departure, the petitioners do not wish to challenge this finding. This is because of the statute’s harsh provisions that apply to individuals who seek voluntary departure and then fail to actually depart. See INA § 240B(d), 8 U.S.C. 1229c(d).
In view of the foregoing, it is urged the 9th Circuit Court of Appeals overturn the decision of the BIA and remand this case to the BIA with instructions to issue a new decision in accordance with the ruling of this court.
Dated: 09-29-06 Respectfully Submitted,
Attorney For Petitioners
“Both of these methods are inappropriate in the asylum context, as they rely on the government institutions of the refugee producing country to verify signatures and seals on documents.” Wiebe and Parker, “Asking for a Note From Your Torturer: Corroboration and Authentication Requirements.” Immigration & Nationality Law Handbook 414 (2001-01 ed.) AILA (American Immigration Lawyer’s Association)
CURTIS F. PIERCE
ATTORNEY AT LAW
523 West Sixth St., Suite 348
Los Angeles, CA 90014
Attorney for Respondent
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
In The Matter of:
CERVANTEZ-SANTIAGO, Carlos Roberto
Case No.: A xx xxx xxx
STATEMENT OF FACTS
The respondent Carlos CERVANTEZ-SANTIAGO (“CERVANTEZ-SANTIAGO”) is a 33 year-old native and citizen of Mexico. He became a lawful permanent resident of the United States in 2002.
On November 27, 2004, after a visit to Mexico, Mr. CERVANTEZ-SANTIAGO attempted to reenter the United States in an automobile at the San Ysidro port of entry. Riding as a passenger in his vehicle was an individual by the name of Rubi Garcia-Rosales. Mr. CERVANTEZ-SANTIAGO and his passenger were stopped at the port of entry for questioning.
The officers indicated that they had doubts as to whether Ms. Garcia was permitted to enter the United States. Ms. Garcia presented documentation, which turned out to be falsified, that indicated that she was an American Citizen. Both Mr. CERVANTEZ-SANTIAGO and Ms. Garcia were taken inside the Customs Enforcement Facility at approximately 1:00 p.m. on November 27, 2004, and separated for questioning.
At first, Mr. CERVANTEZ-SANTIAGO was detained in a room where he remained for thirty minutes. Then, his belongings were confiscated and he was taken to another room. At this juncture, [nothing had been said to him]. In the second room, on the afternoon of November 27, the respondent asked his interrogators if he could make a telephone call. Tr. 44. He was informed that he could not. Tr. 44. It was not explained to him why he could not make the phone call. Tr. 44. He also requested an attorney four times. Tr. 45. Each of his requests were denied.
At approximately 8:00 p.m., Mr. CERVANTEZ-SANTIAGO was taken to a place that “had bars.” Tr. 45. In this room, the respondent was permitted to sleep. Tr. 46. At approximately 5 o’clock in the morning the respondent was woken up and “called to testify in front of the desk”. Tr. 46. At this juncture Mr. CERVANTEZ-SANTIAGO repeated his request that he be allowed to make a telephone call. Tr. 46. The purpose of this request to make a call was to contact an attorney. Tr. 46. Customs Enforcement officials also denied this request.
An officer informed Mr. CERVANTEZ-SANTIAGO that he needed to cooperate with them. Tr. 46. Customs Enforcement officers yelled at Mr. Cervantez, telling him that if he did not cooperate, he would not be able to leave. Tr. 46. After approximately 15 minutes, Mr. Cervantez finally relented to the Customs Enforcement officers’ demands and agreed to make a tape-recorded statement. Tr. 47. He was not informed at any time before making the statement that the statement could be used against him. Tr. 47.
Mr. CERVANTEZ-SANTIAGO again renewed his request for an attorney shortly after Customs Enforcement officers began recording his statement. Tr. 48. A Customs Enforcement official appeared to stop the camera from recording. Tr. 48. Mr. CERVANTEZ-SANTIAGO was reminded that he needed to cooperate with the officers, and was told that he did not need an attorney until he appeared in court. Tr. 49. The official who appeared to stop after Mr. CERVANTEZ-SANTIAGO renewed his request for an attorney stated that Customs Enforcement officers needed to “process it again.” Tr. 48. Mr. CERVANTEZ-SANTIAGO testified that he was “really scared and nervous” because he thought Customs Enforcement officials were not going to release him. Tr. 49. At the urging of Customs Enforcement officers, Mr. CERVANTEZ-SANTIAGO gave a statement which essentially admitted that he was unlawfully transporting an alien into the United States. After Mr. CERVANTEZ-SANTIAGO finished his statement, he was informed that it could be used against him in future proceedings. Tr. 47.
On November 8, 2005, the respondent filed a Motion to Suppress in this matter. In this motion, it was requested that all the evidence garnered against the respondent be suppressed because the detention, arrest, and interrogation were conducted in violation of the fourth and fifth amendment of the United States constitution, and were contrary to and in violation of 8 CFR 287.3.
On or about April 28, 2006, an individual hearing was held in Los Angeles. In this hearing, the immigration judge denied the Motion to Suppress on the grounds that it did not include a sworn affidavit and was therefore insufficient. The immigration judge also found that because immigration proceedings are civil in nature, most constitutional safeguards are not applicable. The immigration judge further determined that the violations in this case did not constitute in court “egregious violation[s] of the constitution” as to warrant excluding the evidence.
From this decision, the respondent appeals.
STATEMENT OF THE ISSUES
Did the Immigration Judge err in his application of the case Matter of Barcenas 19 I & N Dec. 609 (BIA 1988) by holding that respondent’s Motion to Suppress was insufficient because it did not include a sworn affidavit?
Did the Immigration Judge err in not suppressing the evidence given the fact that the respondent requested an attorney six times and was not provided one?
Did the Immigration Judge err in not suppressing the evidence in view of the fact that the officers violated their regulation 8 CFR § 287.3?
Did the Immigration Judge err in ruling that the immigration officers’ procedures were not egregious when the officers in question shut off the recording device when respondent requested counsel?
Did the Immigration Judge err in not suppressing respondent’s statement when the facts and circumstances clearly demonstrate that it was not voluntarily given?
SUMMARY OF THE ARGUMENT
Customs Enforcement officials violated 8 C.F.R. § 287.3 by refusing his repeated requests to speak with counsel. 8 C.F.R. § 287.3 explicitly requires that Customs Enforcement officials advise an alien arrested without a warrant and placed in formal proceedings under section 238 or 240 of the right to counsel. Mr. CERVANTEZ-SANTIAGO was an alien arrested without a warrant and placed in formal proceedings under section 240, yet Customs Enforcement officials not only failed to affirmatively advise him of his right to counsel as required by 8 C.F.R. § 287.3, but also refused to allow him access to counsel despite his repeated requests.
The immigration judge erred by denying Mr. CERVANTEZ-SANTIAGO’s Motion to Suppress his video-taped statement due to these violations on the ground that no signed affidavit was included with the motion. Controlling case law holds only that a sworn affidavit alone is insufficient to carry the respondent’s burden on a Motion to Suppress. It does not require, as the immigration judge erroneously held, that a respondent must include a sworn affidavit to carry his burden of proof. Rather, it requires that live testimony be presented by the respondent offering the facts necessary to carry the respondent’s burden of proof. Here, Mr. CERVANTEZ-SANTIAGO testified at length to his multiple requests to speak with counsel and the subsequent denials of those requests by Customs Enforcement officials, establishing a prima facie case for suppression of his video-taped statement based on repeated violations of 8 C.F.R. § 283.7, and thus satisfying his burden of proof.
Further, Customs Enforcement officials’ repeated denials of Mr. CERVANTEZ-SANTIAGO’s requests to speak with counsel violated Mr. CERVANTEZ-SANTIAGO’s 4th and 5th Amendment rights. In denying six separate and distinct requests to speak with counsel, instructing Mr. CERVANTEZ-SANTIAGO that he did not need counsel until trial, and failing to advise him that his statements could be used against him, Customs Enforcement officials committed “egregious violations” of Mr. CERVANTEZ-SANTIAGO’s liberties that warrant application of the exclusionary rule to all the evidence derived from Mr. CERVANTEZ-SANTIAGO’s statement.
The respondent’s video-taped statement should be suppressed because Customs Enforcement officials violated 8 C.F.R. § 283.7
Customs Enforcement officials were bound to comply with 8 C.F.R. § 283.7
Because Mr. CERVANTEZ-SANTIAGO was an alien arrested without a warrant and placed in formal removal proceedings under 8 C.F.R. § 240, he was entitled to receive the protections listed in 8 C.F.R. § 287.3. See 8 C.F.R. § 287.3 (“an alien arrested without a warrant and placed in formal proceedings under section 238 or 240 of the Act will be advised of . . . the right to be represented at no expense to the Government . . .”). The immigration judge erroneously held that Mr. CERVANTEZ-SANTIAGO was not entitled to the protections afforded by 8 C.F.R. § 287.3 because “[t]here is no regulation that requires that the officers conducting an inspection of an applicant for admission, during the inspection process, advise the applicant of his right . . . to consult with an attorney.” Immigration Judge’s Decision at 8. However, where it is foreseeable that a deportation hearing will result in the future, even if arguably during the “inspection” phase, Customs Enforcement officials must advise aliens of their rights under 8 C.F.R. § 287.3. See Navia-Duran v. I.N.S., 568 F.2d 803 (1st Cir. 1977) (“Navia-Duran”).
In Navia-Duran, an alien signed a declaration admitting she overstayed her visa and was illegally present in the United States after four hours of interrogation. Id. at 804. I.N.S. officials did not advise her of her right to counsel or that any statement she made could be used against her prior to taking her statement. Id. at 805. The court held that I.N.S. officials had a duty to advise the alien of her rights under 8 C.F.R. § 287.3 prior to taking her statement, even though it was arguably during the “examination” phase, because it was foreseeable that the alien would be placed in a deportation hearing. Id. at 810. The protections of 8 C.F.R. § 287.3 are “applicable where only a deportation hearing is foreseen.” Id.
The court recognized that 8 C.F.R § 287.3 required that an alien arrested without a warrant be advised of her right to counsel at a deportation hearing and also that any statement she made could be used against her a subsequent proceeding. Because such warnings were not given to the alien, the court ruled that her statement was inadmissible and remanded the matter to the INS for a new hearing without the use of the statement. Id.
See also Matter of Garcia-Flores, 17 I&N Dec. 325(BIA 1980); Matter of Toro, 17 I&N Dec. 340 (BIA 1980); Ali v. INS, 661 F. Supp 1234, 1244 (D. Mass. 1986), which held that the use of involuntary statements in deportation proceedings is an impermissible violation of procedural due process rights, and the “absence of [Miranda] warnings [is] a relevant factor in assessing the question of voluntariness,” quoting Navia-Duran, 568 F.2d 803, 809 (1st Cir. 1977)
While respondent is not aware of any 9th Circuit cases that issue the same holding as explicitly as Navia-Duran, there are 9th Circuit decisions recognizing that the 8 C.F.R. § 287.3 protections apply prior to taking the statement of an alien. See, e.g., Trias Hernandez v. I.N.S., 528 F.2d 366, 369 (9th Cir. 1975) (acknowledging that 8 C.F.R. § 287.3 applies before taking the statement of an alien, but holding that it does not require the issuance of a full Miranda warning). Thus, because it was plainly foreseeable that a deportation hearing would result based on the fact that the passenger in Mr. CERVANTEZ-SANTIAGO’s vehicle used false identification to attempt to illegally enter the United States, the immigration judge erred in holding that Customs Enforcement officials were not required to advise Mr. CERVANTEZ-SANTIAGO of his rights under 8 C.F.R. 287.3.
Customs Enforcement officials failed to comply with 8 C.F.R. § 283.7
Under 8 C.F.R. § 283.7, Customs Enforcement officials are required to advise an alien that 1) he has a right to an attorney; and 2) any statement made may be used against him. Mr. CERVANTEZ-SANTIAGO’s uncontroverted testimony established that he requested an attorney at least six times. Each time, his request was denied. The government does not allege that Mr. CERVANTEZ-SANTIAGO was informed of his right to counsel before giving his statement. The government’s failure to advise Mr. CERVANTEZ-SANTIAGO of his right to an attorney clearly violates 8 C.F.R. § 283.7.
Further, Mr. CERVANTEZ-SANTIAGO’s uncontroverted testimony established that he was not informed that any statements he made could be used against him until after he had given his statement. The government does not allege that Mr. CERVANTEZ-SANTIAGO was advised of that right prior to making his statement. The government’s failure to advise Mr. CERVANTEZ-SANTIAGO that his statement could be used against him also violates 8 C.F.R. § 283.7.
Respondent filed a timely and sufficient motion to suppress his prior statement to Customs Enforcement officials
Mr. CERVANTEZ-SANTIAGO filed a Motion to Suppress his statement and all evidence based on that statement, including forms I-213, G-166, I-831, on the ground that Customs Enforcement officials failed to advise Mr. CERVANTEZ-SANTIAGO of his rights under 8 C.F.R. § 283.7. Violation of a regulation renders a deportation order unlawful where the violation prejudiced interests of the alien which were protected by the regulation. United States v. Calderon-Medina, 521 F.2d 529, 531 (9th Cir. 1979). Here, Mr. CERVANTEZ-SANTIAGO was prejudiced by Customs Enforcement officials’ failure to advise him of his right to counsel and of the fact that his statements could be used against him. Mr. CERVANTEZ-SANTIAGO testified that he would not have made the statement if he had known it could be used against him. Likewise, if his request for counsel had been granted, as required under 8 C.F.R. § 283.7, a competent attorney would have advised him not to make such a statement. Thus, because any deportation order issued on the basis of the statement would be unlawful, Calderon-Medina, 521 F.2d at 531, the statement and all evidence based on the statement, including forms I-213, G-166, I-831, should not be admissible against Mr. CERVANTEZ-SANTIAGO.
However, the immigration judge found that the Motion to Suppress did not comply with the standards set forth in Matter of Barcenas, 19 I & N Dec. 609 (BIA 1988). Specifically, the immigration judge found that Mr. CERVANTEZ-SANTIAGO had not established a prima facie case to support suppressing the evidence because he had not submitted a sworn affidavit to accompany the Motion to Suppress, as required by Matter of Barcenas, stating “[T]he respondent didn’t even submit an affidavit or sworn statement accompanying his motion to suppress. Therefor [sic], the Court found, and reiterates that finding, that his objections were insufficient, and the motion to suppress is denied.” Immigration Judge’s Decision at 4.
The immigration judge’s reading of Matter of Barcenas to require the submission of a sworn affidavit is incorrect. Matter of Barcenas simply held that the alien must establish a prima facie case before the Service will be called to justify the manner in which it obtained evidence. It further held that the mere offering of an affidavit was not enough to sustain this burden. The Board did not state that an affidavit was required, but only that if an affidavit was submitted, it must also be supported by testimony. In the Motion to Suppress, the respondent specified that he was not informed of his right to counsel. He also alleged in his Motion to Suppress that he was not advised that statements he made could be used against him. Rather than support these statements with an affidavit held to be insufficient, Mr. CERVANTEZ-SANTIAGO instead provided substantial live testimony supporting each allegation contained in his Motion to Suppress, as required by Matter ofBarcenas.
The respondent’s video-taped statement should be suppressed because Customs Enforcement officials violated Mr. CERVANTEZ-SANTIAGO’s 4th and 5th Amendment rights
As set forth above, the respondent’s custody and interrogation lasted from November 27th at approximately 1:00 p.m. until the following morning of November 28. During this detention, the respondent made a total of six requests to contact an attorney, all of which were denied by Customs Enforcement officials. He also made several requests to make a telephone call, which likewise were denied. Following Customs Enforcement officials’ denials of his requests, Mr. Camerana-SANTIAGO, unaware that his statements could be used against him, relented to the demands of Customs Enforcement officials and made a self-incriminating statement.
While generally 4th amendment violations are insufficient to require exclusion of evidence in civil immigration proceedings, the exclusionary rule does apply in the immigration context where “egregious violations of the 4th Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative body of the evidence obtained.” I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (“Lopez-Mendoza”).
In Lopez-Mendoza, an alien challenged evidence of his illegal status obtained by an I.N.S. agent who, with the approval of the alien’s employer, approached the alien at work without a warrant. Id. at 1036. The I.N.S. agent thought that the alien’s conduct was “evasive,” and so detained him briefly at the alien’s work before taking him to jail. Id. at 1037. The alien was subsequently interrogated, and admitted his unlawful entry into the United States. Id. The alien moved to suppress on the ground that the evidence was obtained by virtue of an unlawful arrest. Id. The court held that the unlawful interrogation and arrest was not so egregious as to warrant application of the exclusionary rule. Id. at 1050-51.
On the other hand, the conduct by Customs Enforcement officials in this case was far more egregious. As opposed to entering the alien’s workplace with the permission of the alien’s employer but without a warrant, Customs Enforcement officials here took affirmative steps to deny Mr. CERVANTEZ-SANTIAGO his right to counsel. In addition to denying six separate requests for counsel, Customs Enforcement officials also attempted to mislead Mr. CERVANTEZ-SANTIAGO by telling him he did not need an attorney until his hearing. They also denied his requests to make a telephone call during the course of his more than 16 hour detention. Additionally, they refrained from advising Mr. CERVANTEZ-SANTIAGO that his statements could be used against him until after they had convinced Mr. Camrena-SANTIAGO to give a self-incriminating statement.
The immigration judge implied that for this interrogation to have been construed as egregious, Mr. CERVANTEZ-SANTIAGO would have had to have actually been “deprived of sleep, food or water” or suffer physical harm by the agents. Immigration Judge’s Decision page 7. Such a narrow interpretation offers no protection for aliens who are duped and frightened into making incriminating statements without the benefit of counsel.
Because the motion to suppress was not sustained, the Customs Enforcement officers were not required to testify. Therefore, Mr. CERVANTEZ-SANTIAGO, a lawful permanent resident of the United States, was ordered removed based purely on the information contained in the charging document. No live testimony of any officers was offered. Hence, the immigration judge ordered Mr. CERVANTEZ-SANTIAGO deported and removed based solely on the documentary evidence of the same officers who denied Mr. CERVANTEZ-SANTIAGO his right to counsel and refrained from informing him his statements could be used against him until after the incriminating statement was made.
As such, it is clear that this hearing did not comply with due process of law. Furthermore, as indicated above the officers did not even follow their own regulations.
It is therefore respectfully requested that the immigration judge’s decision be reversed and that the evidence in this case be suppressed. It is further requested that the Board of Immigration Appeals order these proceedings terminated due to the dearth of admissible evidence. In the alternative, it is requested that the Board remand this case for a new hearing in which Customs Enforcement officers are required to be present and testify so that they may be cross-examined regarding Mr. CERVANTEZ-SANTIAGO’s detention, requests for counsel and their instructions to him regarding whether his statements could be used against him.
DATED: December 4, 2006 Respectfully submitted,
Attorney for Respondent,
The Motion to Suppress was also made on the grounds that Mr. CERVANTEZ-SANTIAGO’s 4th and 5th Amendment rights were violated, as addressed in Section II of this brief.