Asylum Handbook

Judicial Law Clerk Library ❖ Seattle Immigration Court
















Asylum Precedent

in the Ninth Circuit


Country Index

















Kenneth Josephson

Immigration Judge

Seattle Immigration Court


D.Ray Mantle

Attorney Advisor (2004-2005)

Seattle Immigration Court


Revised and updated in part by:

Cara D. Cutler

Attorney Advisor (2005-2006)

Elizabeth G. Daily

Attorney Advisor (2006-2007)

Erica Zieschang

Attorney Advisor (2007-2008)

Sarah K. Barr

Attorney Advisor (2008-2010)






Notations indicating “Affirmed” or “Not Affirmed” refer to whether the Ninth Circuit panel agreed with the BIA or IJ on all forms of refugee relief (i.e., upholding a denial of asylum but reversing on CAT is considered “Not Affirmed”).

 

This manual is not intended to express the views or opinions of EOIR.

 

March 2010 edition.

 


Detailed Table of Contents

 

Case Index

REAL ID Act of 2005 – Commentary by D. Ray Mantle

Afghanistan

✔ Affirmed

✘ Not Affirmed

Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008)

Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006)

Abassi v. INS, 305 F.3d 1028 (9th Cir. 2002)

Mosa v. Rogers, 89 F.3d 601 (9th Cir. 1996)

Nasseri v. Moschorak, 34 F.3d 723 (9th Cir. 1994)

Albania

✔ Affirmed

✘ Not Affirmed

Belishta v. Ashcroft, 378 F.3d 1078 (9th Cir. 2004)

Algeria

✔ Affirmed

Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. 2004)

✘ Not Affirmed

Argentina

✔ Affirmed

✘ Not Affirmed

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004)

Armenia

✔ Affirmed

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000)

✘ Not Affirmed

Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010)

Karapetyan v. Mukasey, 543 F.3d 1118 (9th Cir. 2008)

Grigoryan v. Mukasey, 515 F.3d 999 (9th Cir. 2008), withdrawn, 527 F.3d 791 (9th Cir. 2008)

Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007)

Muradin v. Gonzales, 494 F.3d 1208 (9th Cir. 2007)

Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005)

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004)

Abovian v. INS, 219 F.3d 972 (9th Cir. 2000)

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Yazitchian v. INS, 207 F.3d 1164 (9th Cir. 2000)

Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999)

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)

Azerbaijan

✔ Affirmed

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000)

✘ Not Affirmed

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)

Bangladesh

✔ Affirmed

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005)

✘ Not Affirmed

Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007)

Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)

Hoque v. Ashcroft, 367 F.3d 1190 (9th Cir. 2004)

Khan v. INS, 237 F.3d 1143 (9th Cir. 2001)

Bosnia-Herzegovina

✔ Affirmed

✘ Not Affirmed

Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004)

Vukmirovic v. Ashcroft, 362 F.3d 1247 (9th Cir. 2004)

Bulgaria

✔ Affirmed

Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009)

✘ Not Affirmed

Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004)

Popova v. INS, 273 F.3d 1251 (9th Cir. 2001)

Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999)

Stoyanov v. INS, 172 F.3d 731 (9th Cir. 1999)

Stoyanov v. INS, 149 F.3d 1226 (9th Cir. 1998)

Burma

✔ Affirmed

✘ Not Affirmed

Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004)

Cambodia

✔ Affirmed

Kin v. Holder, _F.3d_, 2010 WL 547650 (9th Cir. 2010)

Cheo v. INS, 162 F.3d 1227 (9th Cir. 1998)

✘ Not Affirmed

Im v. Gonzales, 497 F.3d 990 (9th Cir. 2007)

China

✔ Affirmed

Lin v. Holder, 588 F.3d 981 (9th Cir. 2009)

Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008)

He v. Gonzalez, 501 F.3d 1128 (9th Cir. 2007)

Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006)

Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2004)

Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004)

Wang v. INS, 352 F.3d 1250 (9th Cir. 2003)

Li v. INS, 92 F.3d 985 (9th Cir. 1996)

✘ Not Affirmed

Li v. Holder, 559 F.3d 1096 (9th Cir. 2009)

Zhao v. Mukasey, 540 F.3d 1027 (9th Cir. 2008)

Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008)

Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008)

Huang v. Mukasey, 520 F.3d 1006 (9th Cir. 2008)

Tang v. Gonzales, 489 F.3d 987 (9th Cir. 2007)

Lin v. Gonzales, 472 F.3d 1131 (9th Cir. 2007)

Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)

Lin v. Gonzales, 434 F.3d 1158 (9th Cir. 2006)

Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006)

Quan v. Gonzales, 428 F.3d 883 (9th Cir. 2005)

Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005)

Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005)

Zheng v. Ashcroft, 397 F.3d 1139 (9th Cir. 2005)

Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004)

Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004)

Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004), amending and superceding 356 F.3d 1027 (9th Cir. 2004)

Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004)

Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004)

Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004)

Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004)

Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)

Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003)

Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003)

He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003)

Colombia

✔ Affirmed

✘ Not Affirmed

Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005)

Reyes-Guerrero v. INS, 192 F.3d 1241 (9th Cir. 1999)

Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999)

Congo (Democratic Republic of Congo)

✔ Affirmed

✘ Not Affirmed

Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004)

Cuba

✔ Affirmed

✘ Not Affirmed

Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996)

Egypt

✔ Affirmed

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), pet for rhrg en banc denied, 504 F.3d 973 (9th Cir. 2007)

Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004)

✘ Not Affirmed

Morgan v. Mukasey, 529 F.3d 1202 (9th Cir. 2008)

Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004)

Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004)

El Salvador

✔ Affirmed

Zetino v. Holder, _F.3d_, 2010 WL 555334 (9th Cir. 2010)

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008)

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161 (9th Cir. 2002)

Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001)

Rivera-Moreno v. INS, 213 F.3d 481 (9th Cir. 2000)

Aguilar-Escobar v. INS, 136 F.3d 1240 (9th Cir. 1998)

✘ Not Affirmed

Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010)

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004)

Rodas-Mendoza v. INS, 246 F.3d 1237 (9th Cir. 2001)

Ernesto Navas v. INS, 217 F.3d 646 (9th Cir. 2000)

Leiva-Montalvo v. INS, 173 F.3d 749 (9th Cir. 1999)

Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999)

Eritrea

✔ Affirmed

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)

✘ Not Affirmed

Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005)

Ethiopia

✔ Affirmed

Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004)

Belayneh v. INS, 213 F.3d 488 (9th Cir. 2000)

✘ Not Affirmed

Mengstu v. Holder, 560 F.3d 1055 (9th Cir. 2009)

Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008)

Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007)

Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005)

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005)

Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004)

Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004)

Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)

Fiji

✔ Affirmed

Kumar v. Gonzales, 439 F.3d 520 (9th Cir. 2006)

Lata v. INS, 204 F.3d 1241 (9th Cir. 2000)

Kumar v. INS, 204 F.3d 931 (9th Cir. 2000)

Pal v. INS, 204 F.3d 935 (9th Cir. 2000)

Singh v. INS, 134 F.3d 962 (9th Cir. 1998)

✘ Not Affirmed

Sinha v. Holder, 556 F.3d 774 (9th Cir. 2009)

Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006) (en banc)

Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir. 2004)

Faruk v. Ashcroft, 378 F.3d 940 (9th Cir. 2004)

Lal v. INS, 268 F.3d 1148 (9th Cir. 2001)

Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000)

Tagaga v. INS, 228 F.3d 1030 (9th Cir. 2000)

Chand v. INS, 222 F.3d 1066 (9th Cir. 2000)

Prasad v. INS, 101 F.3d 614 (9th Cir. 1996)

Surita v. INS, 95 F.3d 814 (9th Cir. 1996)

Singh v. INS, 94 F.3d 1353 (9th Cir. 1996)

France

✔ Affirmed

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998)

Yang v. INS, 79 F.3d 932 (9th Cir. 1996)

✘ Not Affirmed

Siong v. INS, 376 F.3d 1030 (9th Cir. 2004)

Georgia

✔ Affirmed

✘ Not Affirmed

Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003)

Germany

✔ Affirmed

Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005)

✘ Not Affirmed

Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004)

Guatemala

✔ Affirmed

Toj-Culpatan v. Holder, 588 F.3d 638 (9th Cir. 2009)

Barrios v. Holder, 567 F.3d 451 (9th Cir. 2009)

Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009)

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003)

Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003)

Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003)

Molina-Estrada v. INS, 293 F.3d 1089 (9th Cir. 2002)

Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000)

Tecun-Florian v. INS, 207 F.3d 1107 (9th Cir. 2000)

Sebastian-Sebastian v. INS, 195 F.3d 504 (9th Cir. 1999)

Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999)

✘ Not Affirmed

Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007)

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007)

Recinos de Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005)

Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th Cir. 2004)

Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004)

Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004)

Ventura v. INS, 317 F.3d 1003 (9th Cir. 2003)

Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002)

Ruano v. Ashcroft, 301 F.3d 1155 (9th Cir. 2002)

Rios v. Ashcroft, 287 F.3d 895 (9th Cir. 2002)

Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000)

Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000)

Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir. 2000)

Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000)

Cordon-Garcia v. INS, 204 F.3d 985 (9th Cir. 2000)

Duarte de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999)

Ordonez v. INS, 137 F.3d 1120 (9th Cir. 1998)

Haiti

✔ Affirmed

✘ Not Affirmed

Brezilien v. Holder, 565 F.3d 1163 (9th Cir. 2009)

Doissaint v. Mukasey, 538 F.3d 1167 (9th Cir. 2008)

Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988)

Honduras

✔ Affirmed

Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009)

Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005)

Lainez-Ortiz v. INS, 96 F.3d 393 (9th Cir. 1996)

✘ Not Affirmed

Ramos-Vasquez v. INS, 57 F.3d 857 (9th Cir. 1995)

India

✔ Affirmed

Khan v. Holder, 584 F.3d 773 (9th Cir. 2009)

Ahir v. Mukasey, 527 F.3d 912 (9th Cir. 2008)

Goel v. Gonzales, 490 F.3d 735 (9th Cir. 2007)

Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007)

Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005)

Singh v. Ashcroft, 367 F.3d 1139 (9th Cir. 2004)

Singh v. Ashcroft, 361 F.3d 1152 (9th Cir. 2004)

Padash v. INS, 358 F.3d 1161 (9th Cir. 2004)

Singh v. Ashcroft, 351 F.3d 435 (9th Cir. 2003)

Malhi v. INS, 336 F.3d 989 (9th Cir. 2003)

Singh-Kaur v. INS, 183 F.3d 1147 (9th Cir. 1999)

✘ Not Affirmed

Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009)

Singh v. Gonzales, 491 F.3d 1019 (9th Cir. 2007)

Kumar v. Gonzales, 444 F.3d 1043 (9th Cir. 2006)

Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006)

Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005)

Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005)

Singh v. Ashcroft, 393 F.3d 903 (9th Cir. 2004)

Kaur v. Ashcroft, 388 F.3d 734 (9th Cir. 2004)

Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004)

Kaur v. Ashcroft, 379 F.3d 876 (9th Cir. 2004)

Singh v. Ashcroft, 367 F.3d 1182 (9th Cir. 2004)

Singh v. Ashcroft, 362 F.3d 1164 (9th Cir. 2004)

Singh v. Ashcroft, 301 F.3d 1109 (9th Cir. 2002)

Singh v. INS, 292 F.3d 1017 (9th Cir. 2002)

Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001) (as amended by 249 F.3d 830 on denial of reh’g)

Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000)

Shah v. INS, 220 F.3d 1062 (9th Cir. 2000)

Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000)

Maini v. INS, 212 F.3d 1167 (9th Cir. 2000)

Indonesia

✔ Affirmed

Halim v. Holder, _F.3_, 2009 WL 5158237 (9th Cir. 2009)

Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008)

Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007)

✘ Not Affirmed

Tampubolon v. Holder, _F.3d_, 2010 WL 774310 (9th Cir. 2010)

Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009)

Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009)

Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004)

Iran

✔ Affirmed

Najmabadi v. Holder, _F.3d_, 2010 WL 774252 (9th Cir. 2010)

Toufighi v. Mukasey, 510 F.3d 1059 (9th Cir. 2007), amended, 538 F.3d 988 (9th Cir. 2008)

Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005)

Padash v. INS, 358 F.3d 1161 (9th Cir. 2004)

✘ Not Affirmed

Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2010)

Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009)

Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008)

Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008)

Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2007)

Jahed v. INS, 356 F.3d 991 (9th Cir. 2004)

Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000)

Zahedi v. INS, 222 F.3d 1157 (9th Cir. 2000)

Iraq

✔ Affirmed

Malkandi v. Mukasey, 544 F.3d 1029 (9th Cir. 2008)

✘ Not Affirmed

Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008)

Hanna v. Keisler, 506 F.3d 933 (9th Cir. 2007)

Gulla v. Gonzales, 498 F.3d 911 (9th Cir. 2007) (Real ID Act)

Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (as amended by 355 F.3d 1140 (9th Cir. 2004))

Al-Harbi v. INS, 242 F.3d 882 (9th Cir. 2001)

Israel

✔ Affirmed

Khourassany v. INS, 208 F.3d 1096 (9th Cir. 2000)

✘ Not Affirmed

Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir. 2004) (amending 336 F.3d 995 (9th Cir. 2003) on denial of reh’g)

Jamaica

✔ Affirmed

✘ Not Affirmed

Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008)

Kazakhstan

Affirmed

Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (amended opinion issued, denying motion for rehearing)

Not Affirmed

Kenya

✔ Affirmed

✘ Not Affirmed

Owino v. Holder, 575 F.3d 956 (9th Cir. 2009)

Li v. Keisler, 505 F.3d 913 (9th Cir. 2007)

Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir. 2004)

Kuwait

✔ Affirmed

✘ Not Affirmed

El Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004)

Laos

✔ Affirmed

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998)

Yang v. INS, 79 F.3d 932 (9th Cir. 1996)

✘ Not Affirmed

Siong v. INS, 376 F.3d 1030 (9th Cir. 2004)

Vongsakdy v. INS, 171 F.3d 1203 (9th Cir. 1999)

Lebanon

✔ Affirmed

✘ Not Affirmed

Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005)

Lithuania

✔ Affirmed

Kazlauskas v. INS, 46 F.3d 902 (9th Cir. 1995)

✘ Not Affirmed

Mexico

✔ Affirmed

Anaya-Ortiz v. Mukasey, 594 F.3d 673 (9th Cir. 2010)

Velasco-Cervantes v. Holder, 593 F.3d 975 (9th Cir. 2010)

Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008)

Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008)

Mendez-Gutierrez v. Gonzales, 444 F.3d 1168 (9th Cir. 2006)

✘ Not Affirmed

Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007)

Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006)

Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005)

Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003)

Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001) (opinion vacated on reh’g en banc, 273 F.3d 1220 (9th Cir. 2001) and remanded for a stipulated reopening)

Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)

Morocco

✔ Affirmed

Chebchoub v. INS, 257 F.3d 1038 (9th Cir. 2001)

✘ Not Affirmed

Nepal

Affirmed

Tamang v. Holder, _F.3d_ 2010 WL 917202 (9th Cir. 2010)

Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010)

Dhital v. Mukasey, 532 F.3d 1044 (9th Cir. 2008)

Not Affirmed

Nicaragua

✔ Affirmed

Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010)

Mejia-Paiz v. INS, 111 F.3d 720 (9th Cir. 1997)

Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996)

✘ Not Affirmed

Vallecillo-Castillo v. INS, 121 F.3d 1237 (9th Cir. 1997)

Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996)

Osorio v. INS, 99 F.3d 928 (9th Cir. 1996)

Rodriguez-Matamoros v. INS, 86 F.3d 158 (9th Cir. 1996)

Gonzalez v. INS, 82 F.3d 903 (9th Cir. 1996)

Nigeria

✔ Affirmed

Unuakhaulu v. Ashcroft, 398 F.3d 1085 (9th Cir. 2005)

✘ Not Affirmed

Tijani v. Holder, _F.3d_, 2010 WL 816973 (9th Cir. 2010)

Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)

Salaam v. INS, 229 F.3d 1234 (9th Cir. 2000)

Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999)

Pakistan

✔ Affirmed

Hakeem v. INS, 273 F.3d 812 (9th Cir. 2001)

✘ Not Affirmed

Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004)

Ladha v. INS, 215 F.3d 889 (9th Cir. 2000)

Peru

✔ Affirmed

Miranda v. Gonzales, 441 F.3d 750 (9th Cir. 2006)

Cruz-Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000)

✘ Not Affirmed

Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009)

Canales-Vargas v. Gonzales, 441 F.3d 739 (9th Cir. 2006)

Cardenas v. INS, 294 F.3d 1062 (9th Cir. 2002)

Salazar-Paucar v. INS, 281 F.3d 1069 (9th Cir. 2002)

Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1998) (withdrawing and superseding 123 F.3d 1302 (9th Cir. 1997) on reh’g)

Velarde v. INS, 140 F.3d 1305 (9th Cir. 1998)

Meza-Manay v. INS, 139 F.3d 759 (9th Cir. 1998)

Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir. 1997) (as amended by 133 F.3d 726 (9th Cir. 1998)

Philippines

✔ Affirmed

Soriano v. Holder, 569 F.3d 1162 (9th Cir. 2009)

Rivera v. Mukasey, 508 F.3d 1271 (9th Cir. 2007)

Valderrama v. INS, 260 F.3d 1083 (9th Cir. 2001)

Ochave v. INS, 254 F.3d 859 (9th Cir. 2001)

Pondoc Hernaez v. INS, 244 F.3d 752 (9th Cir. 2001)

✘ Not Affirmed

Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008)

Marcos v. Gonzales, 410 F.3d 1112 (9th Cir. 2005)

Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005)

Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003)

Mejia v. Ashcroft, 298 F.3d 873 (9th Cir. 2002)

Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001)

Lim v. INS, 224 F.3d 929 (9th Cir. 2000)

Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000)

Grava v. INS, 205 F.3d 1177 (9th Cir. 2000)

Tarubac v. INS, 182 F.3d 1114 (9th Cir. 1999)

Borja v. INS, 175 F.3d 732 (9th Cir. 1999)

Briones v. INS, 175 F.3d 727 (9th Cir. 1999)

Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998)

Romania

✔ Affirmed

Dinu v. Ashcroft, 372 F.3d 1041 (9th Cir. 2004)

Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc reh’g of 223 F.3d 1111 (9th Cir. 2001))

Marcu v. INS, 147 F.3d 1078 (9th Cir. 1998)

✘ Not Affirmed

Cosa v. Mukasey, 543 F.3d 1066 (9th Cir. 2008)

Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006) (en banc)

Gui v. Ashcroft, 280 F.3d 1217 (9th Cir. 2002)

Russia

Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000)

✔ Affirmed

Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000)

Bolshakov v. INS, 133 F.3d 1279 (9th Cir. 1998)

✘ Not Affirmed

Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005)

Krotova v. Gonzales, 416 F.3d 1080 (9th Cir. 2005)

Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005)

Gonzales v. Tchoukhrova, 127 S. Ct. 57 (2006), vacating and remanding 404 F.3d 1181 (9th Cir. 2005)

Chouchkov v. INS, 220 F.3d 1077 (9th Cir. 2000)

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997)

Senegal

✔ Affirmed

✘ Not Affirmed

Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008)

Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004)

Serbia and Montenegro

✔ Affirmed

Kasnecovic v. Gonzales, 400 F.3d 812 (9th Cir. 2005)

✘ Not Affirmed

Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003)

Sierra Leone

✔ Affirmed

Sillah v. Holder, 320 Fed.Appx. 503 (9th Cir. 2009)

✘ Not Affirmed

Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008)

Somalia

✔ Affirmed

Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009)

✘ Not Affirmed

Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005)

Ali v. Ashcroft, 421 F.3d 795 (9th Cir. 2005)

Mohamed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005)

Shire v. Ashcroft, 388 F.3d 1288 (9th Cir. 2004)

Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003)

South Africa

✔ Affirmed

Gonzales v. Thomas, 547 U.S. 183 (2006) (per CURIAM), rev’g 409 F.3d 1177 (9th Cir. 2005) (en banc reh’g of 359 F.3d 1169 (9th Cir. 2004))

Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. 2004)

✘ Not Affirmed

Sri Lanka

✔ Affirmed

Don v. Gonzales, 476 F.3d 738 (9th Cir. 2007)

✘ Not Affirmed

Suntharalinkam v. Gonzales, 506 F.3d 822 (9th Cir. 2007)

Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006)

Thangaraja v. Gonzales, 428 F.3d 870 (9th Cir. 2005)

Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir. 2003)

Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003)

Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir. 2002)

Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001)

Ratnam v. INS, 154 F.3d 990 (9th Cir. 1998)

Sudan

✔ Affirmed

✘ Not Affirmed

Al-Mousa v. Mukasey, 516 F.3d 738 (9th Cir. 2008), withdrawn, No. 06-70638, slip op (9th Cir. Sept. 22, 2008)

Kalouma v. Gonzales, 512 F.3d 1073 (9th Cir. 2008), modifying 499 F.3d 1090 (9th Cir. 2007) and denying any further motion for reconsideration

Taha v. Ashcroft, 389 F.3d 800 (9th Cir. 2004) (on reh’g of 362 F.3d 623)

Syria

✔ Affirmed

✘ Not Affirmed

Hamoui v. Ashcroft, 389 F.3d 821 (9th Cir. 2004)

Ukraine

✔ Affirmed

Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008)

Halaim v. INS, 358 F.3d 1128 (9th Cir. 2004)

Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003)

✘ Not Affirmed

Dzyuba v. Mukasey, 540 F.3d 955 (9th Cir. 2008)

Fedunyak v. Gonzales, 477 F.3d 1126 (9th Cir. 2007)

Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005)

Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998)

Yemen

✔ Affirmed

Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006)

✘ Not Affirmed

Topical Index



 


Case Index

 

Abassi v. INS, 305 F.3d 1028 (9th Cir. 2002)

Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005) (en banc)

Abovian v. INS, 219 F.3d 972 (9th Cir. 2000)

Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009)

Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006)

Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001)

Aguilar-Escobar v. INS, 136 F.3d 1240 (9th Cir. 1998)

Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010)

Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001) (opinion vacated on reh’g en banc, 273 F.3d 1220 (9th Cir. 2001) and remanded for a stipulated reopening)

Ahir v. Mukasey, 527 F.3d 912 (9th Cir. 2008)

Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007)

Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999)

Al-Mousa v. Mukasey, 516 F.3d 738 (9th Cir. 2008), withdrawn, No. 06-70638, slip op. (9th Cir. Sept. 22, 2008)

Al-Harbi v. INS, 242 F.3d 882 (9th Cir. 2001)

Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003)

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. Jan. 19, 2005)

Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006)

Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (as amended by 355 F.3d 1140 (9th Cir. 2004))

Alvarez Santos v. INS, 332 F.3d 1245 (9th Cir. 2003)

Anaya-Ortiz v. Mukasey, 594 F.3d 673 (9th Cir. 2010)

Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001)

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)

Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003)

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)

Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir. 2003)

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)

Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir. 2004) (amending 336 F.3d 995 (9th Cir. 2003) on denial of reh’g)

Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010)

Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000)

Barrios v. Holder, 567 F.3d 451 (9th Cir. 2009)

Belayneh v. INS, 213 F.3d 488 (9th Cir. 2000)

Belishta v. Ashcroft, 378 F.3d 1078 (9th Cir. 2004)

Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. 2004)

Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009)

Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005)

Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005)

Bolshakov v. INS, 133 F.3d 1279 (9th Cir. 1998)

Borja v. INS, 175 F.3d 732 (9th Cir. 1999)

Brezilien v. Holder, 565 F.3d 1163 (9th Cir. 2009)

Briones v. INS, 175 F.3d 727 (9th Cir. 1999)

Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008)

Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th Cir. 2004)

Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999)

Canales-Vargas v. Gonzales, 441 F.3d 739 (9th Cir. 2006)

Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002)

Cardenas v. INS, 294 F.3d 1062 (9th Cir. 2002)

Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005)

Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000)

Chand v. INS, 222 F.3d 1066 (9th Cir. 2000)

Chebchoub v. INS, 257 F.3d 1038 (9th Cir. 2001)

Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004)

Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004)

Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008)

Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008)

Cheo v. INS, 162 F.3d 1227 (9th Cir. 1998)

Chouchkov v. INS, 220 F.3d 1077 (9th Cir. 2000)

Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009)

Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006) (en banc)

Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000)

Cordon-Garcia v. INS, 204 F.3d 985 (9th Cir. 2000)

Cosa v. Mukasey, 543 F.3d 1066 (9th Cir. 2008)

Cruz-Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000)

Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999)

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005)

Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988)

Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004)

Dhital v. Mukasey, 532 F.3d 1044 (9th Cir. 2008)

Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004)

Dinu v. Ashcroft, 372 F.3d 1041 (9th Cir. 2004)

Doissaint v. Mukasey, 538 F.3d 1167 (9th Cir. 2008)

Don v. Gonzales, 476 F.3d 738 (9th Cir. 2007)

Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009)

Duarte de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999)

Dzyuba v. Mukasey, 540 F.3d 955 (9th Cir. 2008)

El Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004)

Ernesto Navas v. INS, 217 F.3d 646 (9th Cir. 2000)

Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir. 2000)

Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008)

Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003)

Faruk v. Ashcroft, 378 F.3d 940 (9th Cir. 2004)

Fedunyak v. Gonzales, 477 F.3d 1126 (9th Cir. 2007)

Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000)

Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004)

Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998)

Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004)

Goel v. Gonzales, 490 F.3d 735 (9th Cir. 2007)

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005)

Gonzales v. Tchoukhrova, 127 S. Ct. 57 (2006)

Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir. 1997) (as amended by 133 F.3d 726 (9th Cir. 1998)

Gonzalez v. INS, 82 F.3d 903 (9th Cir. 1996)

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003)

Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. 2004)

Grava v. INS, 205 F.3d 1177 (9th Cir. 2000)

Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006)

Gui v. Ashcroft, 280 F.3d 1217 (9th Cir. 2002)

Gulla v. Gonzales, 498 F.3d 911 (9th Cir. 2007)

Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004)

Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996)

Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007)

Hakeem v. INS, 273 F.3d 812 (9th Cir. 2001)

Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008)

Halaim v. INS, 358 F.3d 1128 (9th Cir. 2004)

Halim v. Holder, _F.3_, 2009 WL 5158237 (9th Cir. 2009)

Hamoui v. Ashcroft, 389 F.3d 821 (9th Cir. 2004)

Hanna v. Keisler, 506 F.3d 933 (9th Cir. 2007)

Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)

He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003)

Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007)

Hoque v. Ashcroft, 367 F.3d 1190 (9th Cir. 2004)

Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2007)

Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003)

Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2004)

Huang v. Mukasey, 520 F.3d 1006 (9th Cir. 2008)

Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008)

Im v. Gonzales, 497 F.3d 990 (9th Cir. 2007), withdrawn, 522 F.3d 966 (9th Cir. 2008)

Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000)

Jahed v. INS, 356 F.3d 991 (9th Cir. 2004)

Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005)

Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004)

Kalouma v. Gonzales, 512 F.3d 1073 (9th Cir. 2008), modifying 499 F.3d 1090 (9th Cir. 2007) and denying any further motion for reconsideration

Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004)

Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001)

Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003)

Karapetyan v. Mukasey, F.3d, 2008 WL 4210543 (9th Cir. 2008)

Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005)

Kasnecovic v. Gonzales, 400 F.3d 812 (9th Cir. Mar. 11, 2005)

Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000)

Kaur v. Ashcroft, 379 F.3d 876 (9th Cir. 2004)

Kaur v. Ashcroft, 388 F.3d 734 (9th Cir. 2004)

Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005)

Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009)

Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001)

Kazlauskas v. INS, 46 F.3d 902 (9th Cir. 1995)

Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004)

Khan v. Holder, 584 F.3d 773 (9th Cir. 2009)

Khan v. INS, 237 F.3d 1143 (9th Cir. 2001)

Khourassany v. INS, 208 F.3d 1096 (9th Cir. 2000)

Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008)

Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004)

Kin v. Holder, _F.3d_, 2010 WL 547650 (9th Cir. 2010)

Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004)

Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007)

Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999)

Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998)

Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000)

Krotova v. Gonzales, 416 F.3d 1080 (9th Cir. 2005)

Kumar v. Gonzales, 439 F.3d 520 (9th Cir. 2006)

Kumar v. Gonzales, 444 F.3d 1043 (9th Cir. 2006)

Kumar v. INS, 204 F.3d 931 (9th Cir. 2000)

Ladha v. INS, 215 F.3d 889 (9th Cir. 2000)

Lainez-Ortiz v. INS, 96 F.3d 393 (9th Cir. 1996)

Lal v. INS, 268 F.3d 1148 (9th Cir. 2001)

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004)

Lata v. INS, 204 F.3d 1241 (9th Cir. 2000)

Leiva-Montalvo v. INS, 173 F.3d 749 (9th Cir. 1999)

Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008)

Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)

Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004)

Li v. Holder, 559 F.3d 1096 (9th Cir. 2009)

Li v. INS, 92 F.3d 985 (9th Cir. 1996)

Li v. Keisler, 505 F.3d 913 (9th Cir. 2007)

Lim v. INS, 224 F.3d 929 (9th Cir. 2000)

Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004)

Lin v. Gonzales, 434 F.3d 1158 (9th Cir. 2006)

Lin v. Gonzales, 472 F.3d 1131 (9th Cir. 2007)

Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)

Lin v. Holder, 588 F.3d 981 (9th Cir. 2009)

Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008)

Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc)

Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004)

Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996)

Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004)

Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006) (en banc)

Maini v. INS, 212 F.3d 1167 (9th Cir. 2000)

Malhi v. INS, 336 F.3d 989 (9th Cir. 2003)

Malkandi v. Mukasey, 544 F.3d 1029 (9th Cir. 2008)

Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004)

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004)

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004)

Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004)

Marcos v. Gonzales, 410 F.3d 1112 (9th Cir. 2005)

Marcu v. INS, 147 F.3d 1078 (9th Cir. 1998)

Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009)

Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004)

Mejia v. Ashcroft, 298 F.3d 873 (9th Cir. 2002)

Mejia-Paiz v. INS, 111 F.3d 720 (9th Cir. 1997)

Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003)

Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003)

Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003)

Mengstu v. Holder, 560 F.3d 1055 (9th Cir. 2009)

Meza-Manay v. INS, 139 F.3d 759 (9th Cir. 1998)

Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999)

Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007)

Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004)

Miranda v. Gonzales, 441 F.3d 750 (9th Cir. 2006)

Mohamed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)

Molina-Estrada v. INS, 293 F.3d 1089 (9th Cir. 2002)

Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001)

Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007)

Morgan v. Mukasey, 529 F.3d 1202 (9th Cir. 2008)

Mosa v. Rogers, 89 F.3d 601 (9th Cir. 1996)

Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008)

Muradin v. Gonzales, 494 F.3d 1208 (9th Cir. 2007)

Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006)

Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003)

Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005)

Najmabadi v. Holder, _F.3d_, 2010 WL 774252 (9th Cir. 2010)

Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir. 2004)

Nasseri v. Moschorak, 34 F.3d 723 (9th Cir. 1994)

Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004)

Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008)

Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir. 2004)

Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005)

Ochave v. INS, 254 F.3d 859 (9th Cir. 2001)

Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005)

Ordonez v. INS, 137 F.3d 1120 (9th Cir. 1998)

Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006)

Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999)

Osorio v. INS, 99 F.3d 928 (9th Cir. 1996)

Owino v. Holder, 572 F.3d 780 (9th Cir. 2009)

Padash v. INS, 358 F.3d 1161 (9th Cir. 2004)

Pal v. INS, 204 F.3d 935 (9th Cir. 2000)

Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir. 2002)

Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (amended opinion issued, denying motion for rehearing)

Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000)

Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000)

Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997)

Pondoc Hernaez v. INS, 244 F.3d 752 (9th Cir. 2001)

Popova v. INS, 273 F.3d 1251 (9th Cir. 2001)

Prasad v. INS, 101 F.3d 614 (9th Cir. 1996)

Qu v. Gonzales, 399 F.3d 1195 (9th Cir. Mar. 8, 2005)

Quan v. Gonzales, 428 F.3d 883 (9th Cir. 2005)

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), pet for rhrg en banc denied, 504 F.3d 973 (9th Cir. 2007)

Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009)

Ramos-Vasquez v. INS, 57 F.3d 857 (9th Cir. 1995)

Ratnam v. INS, 154 F.3d 990 (9th Cir. 1998)

Recinos de Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005)

Reyes-Guerrero v. INS, 192 F.3d 1241 (9th Cir. 1999)

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004)

Rios v. Ashcroft, 287 F.3d 895 (9th Cir. 2002)

Rivera v. Mukasey, 508 F.3d 1271 (9th Cir. 2007)

Rivera-Moreno v. INS, 213 F.3d 481 (9th Cir. 2000)

Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010)

Rodas-Mendoza v. INS, 246 F.3d 1237 (9th Cir. 2001)

Rodriguez-Matamoros v. INS, 86 F.3d 158 (9th Cir. 1996)

Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996)

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000)

Ruano v. Ashcroft, 301 F.3d 1155 (9th Cir. 2002)

Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004)

Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005)

Salaam v. INS, 229 F.3d 1234 (9th Cir. 2000)

Salazar-Paucar v. INS, 281 F.3d 1069 (9th Cir. 2002) (amended on denial of reh’g by 290 F.3d 964 (9th Cir. 2002)

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008)

Sebastian-Sebastian v. INS, 195 F.3d 504 (9th Cir. 1999)

Shah v. INS, 220 F.3d 1062 (9th Cir. 2000)

Shire v. Ashcroft, 388 F.3d 1288 (9th Cir. 2004)

Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)

Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010)

Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000)

Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008)

Sillah v. Holder, 320 Fed.Appx. 503 (9th Cir. 2009)

Singh v. Ashcroft, 301 F.3d 1109 (9th Cir. 2002)

Singh v. Ashcroft, 351 F.3d 435 (9th Cir. 2003)

Singh v. Ashcroft, 361 F.3d 1152 (9th Cir. 2004)

Singh v. Ashcroft, 362 F.3d 1164 (9th Cir. 2004) (amending and superseding 340 F.3d 802 on denial of reh’g)

Singh v. Ashcroft, 367 F.3d 1139 (9th Cir. 2004)

Singh v. Ashcroft, 367 F.3d 1182 (9th Cir. 2004)

Singh v. Ashcroft, 393 F.3d 903 (9th Cir. 2004)

Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005)

Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006)

Singh v. Gonzales, 491 F.3d 1019 (9th Cir. 2007)

Singh v. INS, 94 F.3d 1353 (9th Cir. 1996)

Singh v. INS, 134 F.3d 962 (9th Cir. 1998)

Singh v. INS, 292 F.3d 1017 (9th Cir. 2002)

Singh-Kaur v. INS, 183 F.3d 1147 (9th Cir. 1999)

Sinha v. Holder, 556 F.3d 774 (9th Cir. 2009)

Siong v. INS, 376 F.3d 1030 (9th Cir. 2004)

Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005)

Soriano v. Holder, 569 F.3d 1162 (9th Cir. 2009)

Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009)

Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008)

Stoyanov v. INS, 149 F.3d 1226 (9th Cir. 1998)

Stoyanov v. INS, 172 F.3d 731 (9th Cir. 1999)

Suntharalinkam v. Gonzales, 506 F.3d 822 (9th Cir. 2007)

Surita v. INS, 95 F.3d 814 (9th Cir. 1996)

Tagaga v. INS, 228 F.3d 1030 (9th Cir. 2000)

Taha v. Ashcroft, 389 F.3d 800 (9th Cir. 2004)

Tamang v. Holder, _F.3d_ 2010 WL 917202 (9th Cir. 2010)

Tampubolon v. Holder, _F.3d_, 2010 WL 774310 (9th Cir. 2010)

Tang v. Gonzales, 489 F.3d 987 (9th Cir. 2007)

Tarubac v. INS, 182 F.3d 1114 (9th Cir. 1999)

Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2009)

Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004)

Tecun-Florian v. INS, 207 F.3d 1107 (9th Cir. 2000)

Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008)

Thangaraja v. Gonzales, 428 F.3d 870 (9th Cir. 2005)

Tijani v. Holder, _F.3d_, 2010 WL 816973 (9th Cir. 2010)

Toj-Culpatan v. Holder, 588 F.3d 638 (9th Cir. 2009)

Toufighi v. Mukasey, 510 F.3d 1059 (9th Cir. 2007), amended, 538 F.3d 988 (9th Cir. 2008)

Unuakhaulu v. Ashcroft, 398 F.3d 1085 (9th Cir. 2005) (amending and superseding 392 F.3d 1024)

Valderrama v. INS, 260 F.3d 1083 (9th Cir. 2001)

Vallecillo-Castillo v. INS, 121 F.3d 1237 (9th Cir. 1997)

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998)

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998)

Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007)

Velarde v. INS, 140 F.3d 1305 (9th Cir. 1998)

Velasco-Cervantes v. Holder, 593 F.3d 975 (9th Cir. 2010)

Ventura v. INS, 317 F.3d 1003 (9th Cir. 2003)

Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1998) (withdrawing and superseding 123 F.3d 1302 (9th Cir. 1997) on reh’g)

Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008)

Vongsakdy v. INS, 171 F.3d 1203 (9th Cir. 1999)

Vukmirovic v. Ashcroft, 362 F.3d 1247 (9th Cir. 2004)

Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009)

Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003)

Wang v. INS, 352 F.3d 1250 (9th Cir. 2003)

Yang v. INS, 79 F.3d 932 (9th Cir. 1996)

Yazitchian v. INS, 207 F.3d 1164 (9th Cir. 2000)

Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004)

Zahedi v. INS, 222 F.3d 1157 (9th Cir. 2000)

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)

Zetino v. Holder, _F.3d_, 2010 WL 555334 (9th Cir. 2010)

Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004)

Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005)

Zhao v. Mukasey, 540 F.3d 1027 (9th Cir. 2008)

Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003)

Zheng v. Ashcroft, 397 F.3d 1139 (9th Cir. 2005)

Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006)

Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008)

Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005)


 


REAL ID Act of 2005 – Commentary by D. Ray Mantle





Burden of Proof

INA § 208(b)(1)(B) BURDEN OF PROOF — (Applies to all applications filed on or after May 11, 2005)


(I) IN GENERAL. — The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A).

This is the same burden that has been codified at 8 C.F.R. § 1208.13(a).

To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

Ninth Circuit precedent had held “an applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.” Gafoor v. INS, 231 F.3d 645, 650–51 (9th Cir. 2000) (emphasis added, internal quotation marks omitted). The standard “at least one central reason” is not as restrictive as “the central reason,” which had been proposed earlier. At a minimum, the amendment abrogates Ratnam v. INS, 154 F.3d 990, 995 (9th Cir. 1998) (“[I]f there is no evidence of a legitimate prosecutorial purpose for a government’s harassment of a person ... there arises a presumption that the motive for harassment is political.”) (internal quotation marks omitted) and Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (“In some cases, the factual circumstances alone may provide sufficient reason to conclude that acts of persecution were committed on account of political opinion, or one of the other protected grounds. Indeed, this court has held persecution to be on account of political opinion where there appears to be no other logical reason for the persecution at issue.”) (internal citation omitted).

(ii) SUSTAINING BURDEN. —The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.

Critics argue that “requiring satisfaction of the ‘trier of fact’ threatens to eliminate review of such decisions by the BIA as well as by the courts.” Annigje J. Buwalda, An Analysis of the Asylum-Related Provisions of the REAL ID Act (H.R. 418), (available at http://www.aila.org/

fileViewer.aspx?docID=17960). It is unclear whether the Ninth Circuit will bifurcate its analysis to allow IJs to make findings regarding the sufficiency of specific facts separate and apart from a credibility determination, rather than rejecting the “sufficiency” grounds as improper speculation and conjecture. See, e.g., Shah v. INS, 220 F.3d 1062 (9th Cir. 2000).

In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record.


The Ninth Circuit is likely to continue to interpret “may” as “shall,” and find that the failure to weigh credible testimony and other evidence is an abuse of discretion.

INA § 242(b)(4)(D) has been amended to include: “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(c), unless the court finds, pursuant to section 242(b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”

Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

Cases such as Sidhu v. INS, 220 F.3d 1085, 1091–92 (9th Cir. 2000), Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir. 2004), and others appear to compel reasonable triers of fact to conclude that “corroborating affidavits from relatives or acquaintances living outside the United States . . . is almost never easily available.” The difference between “not easily available” evidence and “unavailable” evidence is yet to be decided.

(iii) CREDIBILITY DETERMINATION. — Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

Although the amendment provides that credibility determinations may be made “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor,” nevertheless, the IJ still must “consider[] the totality of the circumstances, and all relevant factors.” Inconsistencies, inaccuracies, and falsehoods which do not go to the heart of the claim must still be weighed against consistent statements at the heart of the claim.

There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

Unless the Ninth Circuit interprets this provision to mean “no valid adverse credibility determination,” panels which reverse an adverse credibility determination should remand without making their own finding of credibility. Absent a presumption of credibility, however, it is still possible for the court to address whether substantial evidence compels the conclusion that the applicant has sustained the burden of proof.





INA § 241(b)(3)(c) Sustaining Burden of Proof; Credibility Determinations.—(Applies to all applications filed on or after May 11, 2005)

In determining whether an alien has demonstrated that the alien’s life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien’s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B).

Again, the burden of proof and credibility determinations are distinguished in the statute.

 



Terrorist Bars


INA § 208(b)(2) Exceptions to Eligibility for Asylum.—(Applies to all applications filed on or after May 11, 2005)

(A) In general—Paragraph (1) shall not apply to an alien if the Attorney General determines that—

...

(v) the alien is described in subclause (I), (II), (III), (IV), or (V) of section 212(a)(3)(B)(I) or section 237(a)(4)(B) (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 212(a)(3)(B)(I), the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; ...

An alien need only be “described” in the relevant provisions and need not be actually charged as inadmissible or removable under the listed provisions. While the amendment to section 208(b)(2) applies only to applications filed on or after May 11, 2005, the changes to the terrorist-related inadmissibility and removal grounds at section 212(a)(3)(B) and 237(a)(4)(B), including what constitutes terrorist-related activity, apply to “removal proceedings instituted before, on, or after [May 11, 2005, and to] acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after [May 11, 2005].” REAL ID Act § 104(d).

It is unclear as to why the terrorist inadmissibility grounds are limited to subclauses (I)–(V) of INA § 212(a)(3)(B)(I), when INA § 237(a)(4)(B) includes all of the subclauses as grounds for removal, and therefore, bars to asylum.


 


Afghanistan




Chronology

 

Nehad v. Mukasey,535 F.3d 962 (9th Cir. 2008)

Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006)

Abassi v. INS, 305 F.3d 1028 (9th Cir. 2002)

Mosa v. Rogers, 89 F.3d 601 (9th Cir. 1996)

Nasseri v. Moschorak, 34 F.3d 723 (9th Cir. 1994)





✔ Affirmed





✘ Not Affirmed

 

        Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008) (A55-398-900); reversing and remanding a denial of a motion to reopen. Respondent asserted ineffective assistance from his lawyer in that he was confronted by him with the choice of either taking voluntary departure or having him withdraw as counsel. Counsel had opined that because of changes in Afghanistan, any asylum claim would be “weak.” The court found ineffective assistance and emphasized that Respondent had meritorious grounds to either pursue a claim for asylum and/or contest removability. POLLAK.


Well-Founded Fear/ Objectively Reasonable, Found. Notwithstanding Respondent’s fear being based on the activities of the Taliban and their long since having been removed from power, the court held that there was ample evidence to make a successful claim from “fear of persecution by persons the Afghan government is unable or unwilling to control.” (at *8)

Conviction/ Vacated. Respondent’s conviction, which served as the basis for removability, had been vacated. The basis of the court’s action was not set out. The government argued that the vacation was for rehabilitative or immigration reasons, not for any substantive or procedural defect in the conviction itself.” (at *9). Respondent’s “moving papers focused on the immigration consequences of the conviction.” Id. “We have required the government to prove by clear and convincing evidence that the court’s only reasons for vacating the conviction were unrelated to any substantive or procedural defect. Nath v. Gonzales, 467 F.3d 1185, 1188-89 (9th Cir. 2006) (emphasis in original).” Id.


 

        Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006) (A27-338-200); the panel’s finding that the respondent had been convicted of the aggravated felony of sexual abuse of a minor from his conviction for statutory rape was reversed by a unanimous en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008). The Court based its reversal on finding that the “conduct . . . is categorically broader than the generic definition of ‘sexual abuse of a minor.’”


Bars to Asylum/ Particularly Serious Crime, Factors to Consider. The panel found that the factors set forth in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) had not been properly applied. The panel found: “The BIA considered two of the Frentescu factors, the nature of the conviction, and the sentence imposed” as opposed to the “circumstances and underlying facts.” In particular the panel found it significant that there was no discussion as to “whether force was used.” The panel further emphasized that with regard to aggravated felonies where a sentence of less than five years of confinement was imposed, there can be no “per se” finding that such would be a particularly serious crime and that the Frentescu analysis must be followed.

CAT. The panel found that CAT relief had been properly denied in that it found that there were no “particular factors...to conclude that it is more likely than not that he would be tortured by the Afghan government or that it would acquiesce to his torture if he returns to his country.”



 

        Abassi v. INS, 305 F.3d 1028 (9th Cir. 2002) (A71-578-156); remanding for BIA to consider motion to reopen under CAT in light of the most recent country profile; W. FLETCHER.

Country Reports/ Involving Pro Se Applicant. Regulation at 8 C.F.R. § 208.16(c)(2), which places the burden of proof on the applicant, does not require an alien to attach a government report that is easily available. “We do not suggest that the BIA must take administrative notice of a country profile when it is not mentioned in the motion, or that the BIA must track down other documents.” (at 1031). But when a pro se applicant mentions “recent Country Reports,” the Board must “consider the most recent relevant profile at the time it makes its decision.” (at 1032).



 

Mosa v. Rogers, 89 F.3d 601 (9th Cir. 1996); remanding for IJ to consider asylum claim without reliance on the adverse credibility finding. BEEZER; superseded by statute, Hose v. INS, 180 F.3d 992 (9th Cir. 1999).

 

Credibility/ Corroboration Provided. Alien’s testimony regarding the spies at his school and his impressment into Afghan military service was found incredible simply because the IJ and BIA did not wish to believe him; there was no support for disbelieving that, as a suspected mujahidin sympathizer, Alien was given only one week of training before being made to parachute into mujahidin territory. Alien’s contention was supported by statements in the Country Report.

 


 

        Nasseri v. Moschorak, 34 F.3d 723 (9th Cir. 1994); remanding for AG to exercise [favorable] discretion; D.W. NELSON; overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996).

Protected Grounds/ Imputed Political Opinion, Found. Kidnappers questions regarding which group alien belonged to, how large the group was, and what their objective was, may have betrayed their ignorance of the details of her participation in the National Islamic Front for Afghanistan (NIFA), but also indicated that alien’s attackers believed she was a political enemy and that they were seeking to discover information about her political activities. Alien worked as a teacher, was an active member of the NIFA (a political group opposed to the government), and distributed leaflets.


 


Albania




Chronology

 

Belishta v. Ashcroft, 378 F.3d 1078 (9th Cir. 2004)





✔ Affirmed





✘ Not Affirmed

 

Belishta v. Ashcroft, 378 F.3d 1078 (9th Cir. 2004); staying mandate to allow BIA to reopen for consideration of atrocious past persecution. Alien sought relief under 8 C.F.R. § 1208.13(b)(1)(ii)(B) (effective January 5, 2001), providing relief for those who face “serious harm upon removal, even after conditions in the petitioner’s country have improved.” (at 679). The IJ found past persecution “but for the fact that the threats and attacks were not motivated by political opinion or any other protected ground,” but the Appeals Court did not rule on this finding. REAVLEY, W. FLETCHER, and TALLMAN.


Past Persecution/ Humanitarian Asylum, Standard. “We emphasize that in order to be eligible for asylum under [8 C.F.R. § 1208.13 (b)(1)(iii)(B)], an applicant must still establish past persecution on account of a protected ground .... The applicant must also establish a reasonable possibility of fear of future ‘serious harm,’ although this threat need not result from any particular animus.” (at 1080; citing Krastev v. INS, 292 F.3d 1268, 1271 (10th Cir. 2002)).





 


Algeria




Chronology

 

Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. 2004)





✔ Affirmed

 

Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. 2004); affirming IJ denials of relief; SILVERMAN.


Bars to Asylum/ Terrorist Bar. Alien who testified he was a member of the Armed Islamic Group (GIA), which is designated as a terrorist organization by the Department of State, and lived in their camps for three years, was therefore ineligible for asylum, statutory withholding and CAT withholding. Alien testified to one incident of abuse in 1994 at the hands of the government—a minimal showing of past persecution. Cheema v. INS, 350 F.3d 1035 (9th Cir. 2003), is distinguished because it was premised on the pre-IIRIRA statute’s two-pronged test. Alien failed to present evidence that members of militant groups who leave Algeria will be persecuted or tortured upon return and, therefore, did not qualify for CAT deferral. Compare Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004) (raising money that reached Sikh resistance organizations and having phone conversations with terrorists constitutes terrorist activities).




✘ Not Affirmed





 


Argentina




Chronology

 

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004)





✔ Affirmed





✘ Not Affirmed

 

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004); BIA’s denial of withholding and CAT relief affirmed, but case remanded to determine if denial of asylum was based on timeliness issue or the merits. Applicant’s testimony of persecution that occurred 10 years ago on account of UCR involvement was not credible, due to her deliberate flight through Mexico to the U.S. and waiting to file for asylum until she was placed in removal proceedings. Being blacklisted and on one occasion being pushed and threatened does not constitute persecution. Country Reports refuted her claim of a fear of torture. SILVER; (PAEZ, dissent: Asylum and withholding claims are factually interrelated and should both be remanded to avoid piecemeal resolution of claims.); distinguished by Kasnecovic v. Gonzales, 400 F.3d 812 (9th Cir. 2005).

 

Credibility/ Implausibility. Although petitioner claimed she fled Argentina because of an attack in her home, the facts she (1) had applied for a passport a few weeks before the alleged attack, (2) carried a smuggler’s contact information with her to Mexico, (3) left Mexico for the United States after only one week, and (4) didn’t apply for asylum until she was placed in removal proceedings almost ten years later, supported IJ’s determination the home invasion story was a post hoc justification. (at 934).

Persecution/ Not Rising to Level Of . Although being blacklisted by the Menem government, and on one occasion being pushed, punched, called names, and threatened with her life if she continued her political activities, are reprehensible actions, “they are not so overwhelming so as to necessarily constitute persecution ... on account of political opinion.” (at 934).

Well-Founded Fear/ Continued Family Presence. Continued presence of similarly-situated family members in the country of origin without incident mitigates a well-founded fear. Even greater emphasis may be placed on the Country Report’s lack of any mention of persecution of political party members or other political groups. (at 935).



 


Armenia




Chronology

 

        Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010)

Karapetyan v. Mukasey, 543 F.3d 1118 (9th Cir. 2008)

Grigoryan v. Mukasey, 515 F.3d 999 (9th Cir. 2008), withdrawn, 527 F.3d 791 (9th Cir. 2008)

Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007)

Muradin v. Gonzales, 494 F.3d 1208 (9th Cir. 2007)

Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005)

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004)

Abovian v. INS, 219 F.3d 972 (9th Cir. 2000)

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000)

Yazitchian v. INS, 207 F.3d 1164 (9th Cir. 2000)

Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999)

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)





✔ Affirmed

 

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000); upholding denial of asylum and withholding; distinguished by Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004).


Persecution / Generalized Violence; Civil Strife/ Claims Arising in Context Of. Petitioner failed to establish that an attack in which he sustained knife wounds was anything more than an act of random violence during a period of significant strife. An assertion that “old animosities between Azeris and Armenians still exist” is insufficient to establish a well-founded fear of persecution. (at 1089).




✘ Not Affirmed

 

        Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) (A77-993-598); reversing a denial of relief to a “whistleblower” who asserted a claim based on threats and physical violence with regard to his protesting illegal demands for money by family members “on behalf” of a powerful local political figure. Respondent was found to be credible. PREGERSON.


Protected Grounds/ Imputed Political Opinion, Found. The circuit noted that “the BIA found ‘very little indication’ that the Armenian government was imputing any political opinion to respondent and that he was merely the victim of criminal misconduct.” The circuit rejected this conclusion, holding that “opposition to government corruption is an expression of political opinion,” citing Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007). The circuit also rejected the Board’s finding that there was “no evidence of any basis for his mistreatment, other than his failure to pay the money requested,” citing Zhu v. Mukasey, 537 F.3d 1034, 1045 (9th Cir. 2008) (“a Chinese factory worker wrote a letter to the town government after her supervisor, who was also a government official, raped her”); Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004) (“finding political opinion where a journalist wrote a newspaper article criticizing a corrupt government official”). The circuit recognized that some of the “harm” respondent experienced was “motivated by personal greed” and that there was no showing of “systematic corruption,” but did not find that such changed the outcome.


Nexus/ Pre REAL ID. The circuit notes that because the application was filed before the effective date of the REAL-ID Act, nexus is evaluated according to the ‘on account of’ standard, rather than the ‘central reason’ standard.




 

Karapetyan v. Mukasey, 543 F.3d 1118 (9th Cir. 2008) (A 95 179 012); reversing and remanding a denial based on failure to corroborate a claim, inadequate demonstration of past persecution, and lack of compliance as to submission of fingerprints for security checks. Respondent was found to have testified credibly as to being detained, having received ethnic slurs, and physical mistreatment. The basis of the claim was ethnicity and political opinion. PREGERSON.


Credibility/ Corroboration Not Required. “When an applicant has been found to testify credibly . . . no further corroboration is required.”

Persecution/ Physical Harm Not Necessary. Past persecution has not been found “because Karapetyan did not seek medical attention.” The court cited to Surita v. INS, 95 F.3d 814 (9th Cir. 1996): “threats and attacks constitute past persecution even where an applicant has not been beaten or physically harmed. The court also cited Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004).

Persecution/ Cumulative Effect. Such may be established “because of the cumulative impact of several incidents even where no single incident would constitute persecution on its own.” The court cited Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004).


Fingerprints/ Failure to submit. It is error where respondent was not given additional time to submit his fingerprints for the required security checks as he had been directed. The court cited with approval what it termed the “similar” case of Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) where the personal circumstances of the applicant were found to have justified the same and “he did not receive adequate notice of the fingerprint requirement.



 

Grigoryan v. Mukasey, 515 F.3d 999 (9th Cir. 2008), withdrawn, 527 F.3d 791 (9th Cir. 2008).



 

Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) (A75-725-875); reversing and remanding a denial of asylum on the basis of the non-consideration of the purported documents from the government of Armenia, which had not been certified under 8 C.F.R. §287.6(c). The IJ denied the claim on credibility grounds. The IJ also read Khan v. INS, 237 F.3d 1143 (9th Cir. 2000), to require documents offered from a foreign government to be authenticated in some way other than by self-serving statements from the alien himself. FISHER. There was a dissent by CLIFTON, who notes: “The message to IJs from this decision is to admit all proffered evidence...” (at 1188).

 

Evidence/ Authentication, Weight. The court cited a number of decisions which excuse aliens from complying with this requirement. Ding v. Ashcroft, 387 F.3d 1131, 1135 (9th Cir. 2004); Liu v. Ashcroft, 372 F.3d 529 (3rd Cir. (2004); Yan v. Gonzales, 438 F.3d 1249 (10th Cir. 2006); Lin v. Dept. of Justice, 428 F.3d 391 (2nd Cir. 2005); Shtaro v. Gonzales, 435 F.3d 711 (7th Cir. 2006). In other words, the documents must have been considered and if found not to be authentic, it would go to the weight that may have been assigned to them.



 

Muradin v. Gonzales, 494 F.3d 1208 (9th Cir. 2007) (A78-754-318); reversing and remanding denials of CAT and asylum. The respondent had been a soldier in the Armenian army. He testified that he had been badly beaten, detained, and forced to work for the private benefit of any officer while in the army. An IJ denied asylum but granted protection under CAT. Both sides appealed. The Board upheld the asylum denial but reversed the grant under CAT. The court accepted the denial of asylum on the imputed political opinion theory, but remanded to consider respondent’s claim of being a member of a particular social group. The court also reversed the denial of CAT protection. BRIGHT (sitting by designation from the Eighth Circuit).


Administrative Proceedings/ IJ Failure to Address a Claim. The IJ’s failure to address a portion of the respondent’s claim compelled a remand. (at 1210) (citing Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005); Sagaydak v. Gonzales, 405 F.3d 1035, 1040-41 (9th Cir. 2005); Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000)). The proposed social group was “former soldiers.”

CAT/ Torture, Found; More Likely Than Not, Found; Country Reports/ To Support Claim, Sufficient. The Board’s finding that the respondent had not been tortured was reversed outright. So was the assessment by the Board that he had not shown that he “would likely be tortured upon return.” In making that assessment, the court relied on Department of State information from the period 1998 to 2001. “The report indicated that the number of conscript deaths from physical abuse decreased 18% between 1999 and 2001, the report also stated that there are between sixteen to twenty non-combat deaths per month.” (at 1211).



 

Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (A70-966-525); remanding for the BIA to state the grounds on which it was denying the motion to reopen; but affirming a finding that the alien had not established a well-founded fear of persecution on religious grounds; TASHIMA; (GOODWIN, concurring in part and dissenting in part on procedural grounds).


Protected Grounds/ Religion. Pentecostal Christian testified as to acts of harassment against his mother for her practicing of her religion and offered expert opinion testimony on problems of the free practice of the Pentecostal religion, expressing a fear that he “would be punished for his refusal to obey any orders that conflicted with his religious beliefs,” but presented no evidence that Armenian government would target him for conscription or punishment on account of his religion.

Persecution/ Forced Conscription. “[F]orced conscription or punishment for evasion of military duty generally does not constitute persecution on account of a protected ground. See Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir. 1991) (‘The fact that a nation forces a citizen to serve in the armed forces along with the rest of the country’s population does not amount to persecution.’)” Id. at 1097. See also Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992) (noting the “long-standing rule that it is not persecution for a country to ... require military service of its citizens”).

Nexus/ Motive Not Found. “[Alien] presented no evidence that the Armenian government would target him for conscription or punishment on account of his religion or other protected ground. See Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992) (holding that religious conscientious objectors did not establish religious persecution because they did not show that the government intended to persecute them for their beliefs).” (at 1097).



 

Mamouzian v. Ashcroft, 390 F.3d 1129 (9th Cir. 2004); affirming IJ denial of withholding and CAT, but remanding upon finding petitioner statutorily eligible for asylum; REINHARDT.


Persecution/ Physical Harm, Detention, Threats Alone. Three instances of beating and kicking by government officials, one of which caused petitioner to lose consciousness, two instances of incarceration for political expression, and threats to her life by government officials constitutes persecution, contrary to the IJ’s finding the abuse was too gentle to rise to the level of persecution. Death threats alone in conjunction with detention, attacks, “or even close confrontations,” justify a finding of past persecution. (at 1130–34).

Nexus/ Motive, Evidence Standard. “An applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground. Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc); see also Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir. 2001).” (at 1134).

Protected Grounds/ Political Opinion, Found. Arrests and beatings for expressing opposition to the economic policies of the ruling HeHeShe party, as implemented in a state-run factory, qualifies as persecution on account of political opinion and was not merely opposition to corrupt individuals. (at 1134).

Nexus/ Retribution, On Account of Protected Ground. Retaliation against an individual who opposes government corruption —corruption which is “inextricably intertwined with governmental operation,” as opposed to “individuals whose corruption was aberrational”—can constitute persecution on account of political opinion. (at 1134–35 (citing Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000); Hasan v. Ashcroft, 380 F.3d 1114, 1120–21 (9th Cir. 2004); Njuguna v. Ashcroft, 374 F.3d 765, 770–71 (9th Cir. 2004)).

Well-Founded Fear/ Objectively Reasonable, Found; Objective Evidence, Cultural Milieu ; Ten Percent Rule. Successful evasion of government authorities and flight from the country does not make a fear of future persecution any less objectively reasonable. (at 1137). “‘The reasonableness of the fear must be determined in the political, social and cultural milieu of the place where the petitioner lived[,] and even a ten percent chance of persecution may establish a well-founded fear.’ Khup [v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004)] (alteration in original) (internal citations and quotation marks omitted); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).” (at 1135–36).



 

Abovian v. INS, 219 F.3d 972 (9th Cir. 2000); remanding to allow petitioner reasonable opportunity to explain perceived deficiencies; includes a broad discussion on how adverse credibility findings must be crafted to show specific and cogent inconsistencies that go to the heart of the claim; PREGERSON; (WALLACE, order amending dissent at 234 F.3d 492 (9th Cir. 2001): Majority decided a constitutional issue not briefed by the parties; decision should be upheld simply because petitioner failed to present sufficient evidence.); reh’g en banc denied, 257 F.3d 971 (9th Cir. 2001). (KOZINSKI, SCANNLAIN, TROTT, T.G. NELSON, KLEINFELD, GRABER, TALLMAN and RAWLINSON, dissent: The majority effectively inverts the standard by saddling the BIA with the burden of proving that petitioner is not entitled to relief.)


Administrative Proceedings/ Judicial Review. “While today’s opinion is particularly egregious, this case is hardly atypical of our circuit’s immigration law jurisprudence. Rather, it is one more example of the nitpicking we engage in as part of a systematic effort to dismantle the reasons immigration judges give for their decisions. See, e.g., Martirosyan v. INS, 229 F.3d 903 (9th Cir. 2000), vacated and reh’g en banc granted, 242 F.3d 905 (9th Cir. 2001) (the IJ could not dismiss as ‘speculative’ a draft dodger’s claim that had he remained in Armenia he would have been forced to commit war crimes, despite the complete absence of evidence that any Armenian soldier had ever been compelled to commit such acts; Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000) (petitioner established her eligibility for asylum where she first testified to being raped for a nondiscriminatory reason and only after coaching by her counsel said that she was also raped because of her ethnicity); Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000) (the IJ may not doubt petitioner’s credibility after he made numerous inconsistent statements between his application and his testimony about how and when he was beaten by the police); Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000) (despite the admission of petitioner’s expert, the BIA lacked substantial evidence to conclude that Armenians in Russia were not subject to a pattern or practice of persecution). None of this has anything to do with administrative law, as that concept is known anywhere outside the Ninth Circuit. Nor has it anything to do with the laws Congress has passed and the Supreme Court has interpreted. I emphatically dissent.” (Dissent to order denying reh’g en banc, 257 F.3d at 980–81).



 

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000). See Russia (ethnic Armenian who was citizen of both Azerbaijan and Russia).



 

Yazitchian v. INS, 207 F.3d 1164 (9th Cir. 2000); granting withholding; THOMAS; distinguished by Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000).


Protected Grounds/ Political Opinion, Found; Persecution/ Extortion. “Extortion demanded or extracted by the government, in part because of the petitioner’s political opinion, can constitute persecution on the basis of a statutorily protected ground. See Desir v. Ilcherto, 840 F.2d 723, 727 (9th Cir. 1988).” (at 1168).

Nexus/ Motive, Evidence Standard. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992), “did not preclude claims where persecution took the form of extortion based on imputed political opinion: it merely required ‘direct or circumstantial’ evidence of a motive founded on one of the statutorily protected grounds.” (at 1168).



 

Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999); granting withholding and remanded for an exercise of discretion to grant asylum; applicant received threats and other family members experienced physical violence; BRIGHT; (RYNER, dissent: persecution was not based on a statutorily protected ground.

 

Well-Founded Fear/ Pattern or Practice. “[A] pattern of persecution targeting a given family that plays a prominent role in a minority group that is the object of widespread hostile treatment supports a well-founded fear of persecution by its surviving members.” (at 1036).

Protected Grounds/ Family. While the death of one family member does not automatically entitle the entire family to asylum, when all of petitioner’s principal family members are subjected to forms of violence, persecution and harassment as members of the Kurdish-Moslem intelligentsia, it is reasonable to infer that the family has become a specific target of those with a generalized hatred of Kurdish-Moslems in Armenia. (at 1036).

Nexus/ Motive Found. “There can be no basis for finding a well-founded fear of persecution unless the group (whatever it is) has been persecuted by the government or by forces beyond its control on account of a trait such as ethnicity, religion, or political beliefs that are common to the entire group.” (dissent at 1038).



 

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999). See Azerbaijan (ethnic Armenian who fled Azerbaijan).




 


Azerbaijan




Chronology

 

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000)

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999)





✔ Affirmed

 

Rostomian v. INS, 210 F.3d 1088 (9th Cir. 2000); See Armenia (violence on the Azeri-Armenian border).




✘ Not Affirmed

 

Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000); See Russia (ethnic Armenian who was citizen of both Azerbaijan and Russia).



 

Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999) (A73-909-884); remanding to grant asylum; REINHARDT.

 

Bars to Asylum/ Firm Resettlement, Not Found. Ethnic Armenian family fled ethnic cleansing in Azerbaijan and clearly established past persecution based on physical attacks and threats, only to face discrimination and persecution in Armenia based on their religion and accent. The family’s nomadic stay in Armenia was not “undisturbed,” and therefore did not qualify as firm resettlement. A discretionary denial of asylum based on firm resettlement is permitted only if the alien would not face harm or persecution in the third country; an alien need not demonstrate the likelihood of persecution—a lesser form of threatened injury is enough. The burden is on the government to demonstrate the alien would not be subject to harm in the third country. (at 1045). See 8 C.F.R. § 208.13(d). “Together, the mandatory and discretionary regulations set forth the minimum conditions under which a petitioner may be denied asylum because he has an opportunity to reside permanently in a third country. Under the regulations, the circumstances must show that he has established, or will be able to establish, residence in another nation, and that he will have a reasonable assurance that he will not suffer further harm or persecution there.” (at 1046).

Country of Removal/ Designation. Last-minute designation of Armenia as the country for removal violated due process by not allowing alien to present evidence of persecution in Armenia. (at 1041).

Persecution/ Threats Alone. “[T]he warning that the [petitioners] would be killed if they did not leave Azerbaijan immediately—which was made all the more credible by the fact that the Azeri thugs who issued the threat had just murdered [their] neighbor in cold blood—would by itself be sufficient to establish past persecution.” (at 1042).

Unable or Unwilling to Control/ Nationwide Basis. Widespread nature of persecution of ethnic Armenians, combined with police officer’s discriminatory refusal to assist, clearly establishes the government of Azerbaijan either could not or would not control Azeris who sought to threaten and harm ethnic Armenians. (at 1042–43).




 


Bangladesh




Chronology

 

Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007)

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005)

Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)

Hoque v. Ashcroft, 367 F.3d 1190 (9th Cir. 2004)

Khan v. INS, 237 F.3d 1143 (9th Cir. 2001)





✔ Affirmed

 

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005) (A70-64- 041, 042, and 043); upholding a denial of relief on the basis of a failure to demonstrate the objective component of the claim. The court relied on Department of State reports to support that assessment. The petitioners were a Catholic family who expressed the fear that they would be persecuted by “Muslim extremists” on account of their religion. The lead petitioner’s brother “who engaged in religious activism” had been killed by a “Muslim extremist.” The police had responded to “the extent it was able” but ineffectively. The court found that instances of “harassment” on the way to the church” would not constitute persecution. CALLAHAN.


Past Persecution/ Internal Relocation Possible. Respondents had lived in the capital city “without incident.” Other remaining family in Bangladesh had also moved to the capital city and “only experienced harassment...the respondents can safely relocate.”




✘ Not Affirmed

 

Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007) (A75-516-529); reversing and remanding a denial of relief. The respondent is an ethnic Bihari- a minority group within Bangladesh. He participated in political demonstrations protesting on behalf of rights for his ethnic group and had been “beaten.” His brother who had also been an activist “disappeared” at the hands of political opponents. The respondent and his family were found to be members of a “disfavored group.” Credibility was not at issue. PREGERSON. There was a dissent by RAWLINSON.


Well-Founded Fear/ Ten Percent Rule. The court repeated its long held position that: “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004) (quoting Knezevic v. Ashcroft 367 F.3d 1206, 1212). In making that determination, “[t]he key question is whether looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment [he or] she received rises to the level of persecution.” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998). Violence directed at a family member “provides additional support for a claim of persecution.” Baballah v. Ashcroft, 367 F.3d 1067, 1074-75 (9th Cir. 2004)

Protected Grounds/ Political Opinion, Found; Disfavored Group. Although respondent claimed no “political opinion” by virtue of his activities on behalf of members of his ethnic group, he was found to have a successful claim.

Unable or Unwilling to Control/ Private Agent. The fact that a family member was kidnapped by the opposing political party did not preclude the claim from being granted. Relying on Korablina, 158 F.3d 1038 at 1044, the court found that, “acts of harassment or violence perpetrated by an entity that the government fails to control can constitute evidence of persecution.” (at 1196).

CAT/ Torture, Not Found. The denial of CAT relief was upheld. With support from Hasan v. Ashcroft, 380 F.3d 1114, 1120-23 (9th Cir. 2004), the court concluded that “[t]he evidence in the record compels a finding that it is more likely than not that Ahmed will be persecuted if returned to Bangladesh...it is not clear that these actions [beatings, threats, and the disappearance of a relative] would rise to the level of torture.” (at 1201).



 

Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004); remanding to determine whether presumption of future persecution has been rebutted; denial of CAT relief sustained; D.W. NELSON. (Whistleblower case.)


Protected Grounds/ Political Opinion, Found. Female newspaper reporter’s articles criticizing the corruption of an important government leader in the region and describing “an institutionalized level of corruption that goes far beyond an individual, anomalous case,” lead to attacks on her husband and parents and a warrant poster calling for punishment for her journalism and anti-Islamic activities, which qualifies as persecution on account of political opinion. (at 1120). “When a powerful political leader uses his political office as a means to siphon public money for personal use, and uses political connections throughout a wide swath of government agencies, both to facilitate and to protect his illicit operations, exposure of his corruption is inherently political.” (at 1121).

CAT/ Internal Relocation. The IJ’s finding that internal relocation was available was not accepted under Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). The burden of proving the reasonableness of internal relocation in the asylum context is on the government. However, “In the CAT context, unlike asylum, the petitioners have the burden of presenting evidence to show that internal relocation is not a possibility.” (at 1123).



 

Hoque v. Ashcroft, 367 F.3d 1190 (9th Cir. 2004) (A74-814-465); reversing adverse credibility determination and remanding to allow the government to attempt to rebut the presumption of future persecution, as past persecution was found; BEEZER.


Persecution/ Physical Harm, Kidnaping, Threats, Prosecution. Member of the Bangladesh Nationalist Party (BNP) who took an active part in encouraging voting in the face of the opposition party’s boycott was kidnaped, beaten, and threatened. Alien was accused of inciting violence when demonstrations by rival parties on the same day turned violent, and entered into hiding. His fear of prosecution based on the false charge is a fear of persecution based on his political opinion, as supported by the Country Report’s statement that “the Awami League Government used the [Special Powers Act] primarily as a tool to harass and intimidate political opponents.” (at 1197).

Nexus/ Motive Found. Denial of relief based upon finding that alien’s fear was based on potential prosecution for criminal acts was not upheld because the court found that such would be politically motivated and thus constitute persecution. “Testimony that [alien] was popular and adept at recruiting members to the BNP, engendering the personal jealousy of Awami League members, does not detract from evidence that their motivation for harming him was political.” (at 1198).

Credibility/ Inconsistencies, Minor; Omission; Corroboration Not Required; Discrepancy, Dates. Inconsistencies between certain documents, dates, and failure to bring up certain events during testimony, as well as the failure to produce additional corroborative evidence, were found not to justify an adverse credibility finding.




 

Khan v. INS, 237 F.3d 1143 (9th Cir. 2001) (A70-088-748); remanding to allow alien to introduce excluded evidence; BROWNING, PREGERSON, and BEEZER.


Petitioner claimed past persecution on account of his own political activities in a Dhaka University student group, which included four arrests, seven-month confinement, and severe beatings. The IJ rejected his corroborating evidence for failure to authenticate it under 8 C.F.R. § 287.6(b).

Evidence/ Authentication, Procedure. Documents may be authenticated through any recognized procedure under the regulations or the Federal Rules of Civil Procedure. Requiring foreign official records to be certified by a foreign service officer stationed in the country of origin, under 8 C.F.R. § 287.6(b), is not the exclusive method of authentication.





 


Bosnia-Herzegovina




Chronology

 

Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004)

Vukmirovic v. Ashcroft, 362 F.3d 1247 (9th Cir. 2004)





✔ Affirmed





✘ Not Affirmed

 

Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004); remanding to determine the reasonableness of internal relocation and to reconsider asylum and withholding of removal. Aliens fled from a general attack by Croat forces against the Serb residents in their area and were found to have established past persecution and a well-founded fear of future persecution. Croat forces who bombed and invaded a Serbian area were motivated by ethnic hatred. Petitioners fled when they realized the threat of harm was imminent. Bombings destroyed their restaurant and home, and Croats stole all their personal property. BEA.


Well-founded Fear/ Pattern or Practice. The Croat pattern and practice of ethnically cleansing all Serbs in the region negates the need to prove individual targeting to establish a well-founded fear or future persecution. (at 1213). “While proof of particularized persecution is sometimes required to establish a well-founded fear of future persecution, such proof of particularized persecution is not required to establish past persecution. See 8 C.F.R. § 1208.13(b)(1) (not mentioning any such requirement for past persecution); 8 C.F.R. § 1208.13(b)(2)(i)(C)(iii)(A) (proof of particularized persecution to establish a well-founded fear not required only where the applicant proves a pattern or practice of persecution of a protected group to which the applicant belongs); Kotaz v. INS, 31 F.3d 847, 852 (9th Cir. 1994) ([Hungarian granted relief on basis of antipathy to gypsies]).” (at 1211). “Moreover, the Knezeviks need not demonstrate that they will be ‘singled out’ for persecution ... because they proved a practice of persecution against Serbs in the region.” (at 1213).

Persecution/ Ethnic Cleansing. There is a “critical distinction between persons displaced by the inevitable ravages of war (e.g., the bombing of London by the German Luftwaffe during World War II), and those fleeing from hostile forces motivated by a desire to kill each and every member of that group (e.g., the destruction of the Jewish neighborhoods on the Eastern front of Europe by the Einsatzgruppen, who followed the German Wehrmacht in WWII). In the first example, although the German armed forces intended to conquer and occupy London, they did not intend to kill every Londoner. In the latter example, the Nazi detachments did intend to kill every Jew, which made the persecution individual to each Jewish resident of an area invaded by the Nazis. The latter is persecution ‘on account of’ a protected status, while the former is not.” (at 1211–12).

Past Persecution/ Internal Relocation Not Possible. Although it may be safe for petitioners to relocate to the Serb-held parts of Bosnia-Herzegovina, relocation is unreasonable based on their age (75 and 66), the great difficulty in finding employment, the destruction of their business and loss of all their possessions, and the fact their family members no longer reside in the country.

Well-Founded Fear/ Ten Percent Rule. “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).” (at 1212–13).



 

Vukmirovic v. Ashcroft, 362 F.3d 1247 (9th Cir. 2004); remanding after finding petitioner was not a persecutor. Bosnian Serb did not become a “persecutor” by using force to defend his hometown against invading Croats. Although some of the skirmishes resulted in deaths and petitioner admitted breaking the noses and foreheads of Croats, he did not participate in the ethnic cleansing campaign launched by the Bosnian Serbs against the Muslims. “Vukmirovic admitted to physically harming the attacking Croats, beating them with sticks and pistols. He admitted to breaking the ‘nose and foreheads’ of Croats during the fights.” (at 1248). THOMAS.

 

Bars to Asylum/ Persecutor Bar, Not Found. “Mere acquiescence or membership in an organization is insufficient to trigger the deportability provision ... [A]ctive personal involvement in persecutorial acts needs to be demonstrated before deportability may be established.” (at 1252, citing Laipenieks v. INS, 750 F.2d 1427, 1431 (9th Cir. 1985)). Persecutor status is not established by mere membership in an ethnic category or group that has a pattern of persecution of others. A finding that the alien “ordered, incited, assisted or otherwise participated in the persecution of any person,” must be based on “‘a particularized evaluation in order to determine whether an individual’s behavior was culpable to such a degree that he could be fairly deemed to have assisted or participated in persecution.’ Hernandez v. Reno, 258 F.3d 806, 813 (8th Cir. 2001). Without such an individualized assessment, qualified asylum applicants could be denied relief purely on grounds that the immigration statutes were designed to avoid—bias based on ethnicity or national origin.” (at 1252).

Nexus/ Motive Not Found. Self-defense does not qualify as persecution of others, since such would not be “on account of” one of the protected grounds; active personal involvement in persecutorial acts needs to be demonstrated. “In this case, there was no affirmative evidence in the record showing that Vukmirovic had participated in physical attacks other than in the context of self-defense,” and the court rejected “ambiguous” statements to the contrary. (at 1252–53).



 


 


Bulgaria




Chronology

 

        Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009)

Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004)

Popova v. INS, 273 F.3d 1251 (9th Cir. 2001)

Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999)

Stoyanov v. INS, 172 F.3d 731 (9th Cir. 1999)

Stoyanov v. INS, 149 F.3d 1226 (9th Cir. 1998)





✔ Affirmed

 

        Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009) (A95-562-817); affirming a denial of relief to an ethnic Bulgarian who based his claim on having been “persecuted” for being a member of a particular social group deemed as “friend of Roma.” There were claims that the lead respondent had been raped as well as subjected to repeated acts of physical violence by both the Bulgarian police and “skinheads.” Other family members continued to live in peace in Bulgaria. The decision contains a lengthy discussion of the case law pertaining to relief based on claims of membership in a particular social group. Respondent was found to have been credible. KLEINFELD; dissent, B. FLETCHER.


Nexus/ Motive Not Found, Central Reason; Persecution/ Random Attack. “Although the skinheads assaulted, beat, and robbed Donchev after he left a Friends of the Roma meeting, the IJ found that there was no evidence that it was “on account of” his friendships with the Roma or membership in Friends of Roma. The skinheads who took Donchevs watch and money were not policemen. The Court found that these facts support the IJ’s finding that this was a crime, not persecution. The timing and location of the attacks (outside the Roma’s organization meeting) alone do not compel the conclusion that Donchev was attacked because of a protected ground.”


Protected Grounds/ Particular Social Group, Not Found; PSG/ Friend or Associate of Group. The majority emphasized the need for respondent to show an identifiable ethnic group and distinguished Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004) on the primary ground that Donchev, unlike Mihalev, was ethnically Bulgarian and not Roma. The majority found that Donchev’s asserted group did not have the requisite degree of “social visibility.” Members of a particular social group must ordinarily be expected not to “have chosen a course of conduct that led others to harm them.” The Court rejected the notion that “supporters of an ethnic, political, or religious group are themselves a particular social group, citing to Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) and Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005). The Court emphasized the principle from Ochoa that “the key to establishing a ‘PSG’ is ensure that the group is narrowly defined.”




✘ Not Affirmed

 

Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004) (A77-584-418); remanding upon finding alien suffered persecution in Bulgaria. Roma (Gypsy) alien was arrested (1) for hosting a birthday party at his apartment, jailed for 10 days, beaten with sandbags each day, and forced to do heavy labor; (2) for failure to carry his id, accused of robbery, and again beaten and forced to work for two weeks; and (3) during a periodic check-in at the police station, beaten and sexually assaulted by police guard at the forced-labor site. IJ ruled alien failed to establish persecution was on account of his Gypsy ethnicity, citing the Country Report for the proposition that all criminal suspects are mistreated. While the second and third arrests may have been void of any nexus to his ethnicity, the first arrest included statements from the police officers that alien was instigating gypsy gatherings. GRABER; (KOZINSKI, dissent: Disparaging remarks made by the officers while arresting alien at the party does not lead to the conclusion that the beatings which occurred after the arrest were on account of his ethnicity. Derogatory comments may be sufficient to establish motive for persecution only when they are made in the course of persecuting the alien).


Persecution/ Generalized Violence. A “significant risk” of abuse prevalent throughout a country does not mean it is “a certainty that erases any possible connection between abuse and a protected ground.... Moreover, there is no requirement of having been abused more than someone else.... Asylum seekers who have fled from generally repressive regimes have no higher a burden than those who have fled from generally benign countries.” (at 730).

Nexus/ Motive Found; Protected Grounds/ Ethnicity. Even though the police came to the residence after a report of excessive noise, it was found that ethnic slurs established the required nexus.



 

Popova v. INS, 273 F.3d 1251 (9th Cir. 2001) (A72-009-719); granting withholding and remanding after reversing BIA’s “on account of” finding; (1) alien demonstrated well founded fear of future persecution “on account of” her religion and political opinion; (2) INS failed to rebut the presumption of future persecution afforded alien on account of her past persecution; and (3) alien was entitled to withholding of deportation on basis that her life and freedom were threatened; PREGERSON.

 

Protected Grounds/ Religion; Political Opinion, Found. Alien demonstrated well founded fear of future persecution “on account of” her religion and political opinion, making her eligible for a discretionary grant of asylum; although alien received education and employment from her government, because of the religious connotation associated with her name and her adherence thereto, as well as her political opinions, her family suffered persecution in her youth, her education was conditioned upon her participation in a re-education process, she was harassed by supervisors and fellow employees, she was threatened by police officers, she was fired from her first job, and her salary was cut at her second job.

Past Persecution/ Changed Conditions Not Found; Individualized Analysis; Failure to Rebut. INS failed to rebut the presumption of future persecution afforded alien on account of her past persecution; although INS produced evidence illustrating that conditions in foreign country improved as general matter, it introduced no evidence to meet its burden of showing that there had been a change in conditions that would affect alien on an individual level.

Persecution/ Threats Alone; Physical Harm Not Necessary. Alien was entitled to withholding of deportation on basis that her life and freedom were threatened, although INS asserted that conditions in foreign country had changed; while she was in foreign country, police put a gun to alien’s head and repeatedly threatened her with prison and anonymous callers threatened her life and freedom, and two years after she had left foreign country for United States police were looking for alien and her colleagues continued to suffer persecution. This was done without a showing of physical violence to the alien.

Withholding of Deportation/ Granted. “Popova’s life and liberty were repeatedly threatened while she lived in Bulgaria. The police put a gun to Popova’s head and repeatedly threatened her with prison, and anonymous callers threatened her life and freedom. Police were looking for Popova two years after she had left Bulgaria for the United States. Based upon this undisputed evidence, it must be presumed that her life and freedom would be threatened should Popova return to Bulgaria. The evidence submitted by the INS is insufficient to rebut this presumption. Indeed, the 1992 Country Report describes the continued persecution of the leader of Podcrepa, and threats by the government to imprison him for his past activities. Accordingly, we conclude that Popova is entitled to a withholding of deportation.” (at 1261).



 

Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999)(A71-582-330 and A71-582-331); affirming BIA’s denial of alien’s motion to reopen asylum and withholding claims and remanding to adjudicate adjustment of status application and wave procedural defect; (1) BIA did not abuse its discretion in upholding decision not to allow reopening, but (2) BIA abused its discretion in denying motion to remand on basis of aliens’ failure to include completed application for permanent residence with motion; B. FLETCHER.


Motion to Reopen/ Changed Circumstances. BIA did not abuse its discretion in upholding decision of IJ not to allow reopening of asylum application of alien who had originally sought asylum based on alleged persecution of her husband in Bulgaria for anti-Communist views, had withdrawn application based on improved country conditions, and then had sought to reopen following tensions between communists and their opponents in Bulgaria; BIA offered reasonable explanation for its decision in stating she failed to demonstrate objective basis for fear that she would be personally persecuted.

Motion to Remand/ Unopposed. BIA abused its discretion in denying alien’s motion to remand deportation proceedings to allow her to pursue adjustment of status on basis of newly approved visa petition, on basis of her failure to include completed application for permanent residence with motion when INS did not oppose the motion.



 

Stoyanov v. INS, 172 F.3d 731 (9th Cir. 1999) (A70-535-039); remanding to allow alien a reasonable opportunity to explain perceived inconsistencies; (1) BIA violated alien’s due process rights by making adverse credibility finding without notice, and (2) BIA failed to set forth alternative basis for denial of asylum that would warrant affirmance of denial of asylum despite due process violation; B.FLETCHER.


Credibility/ Inconsistencies, No Attempt to Enhance Claim. Where asylum petitioner initially gives one account of persecution but then revises his or her story so as to lessen the degree of persecution he or she experienced, rather than to increase it, the discrepancy generally does not support an adverse credibility finding.

Credibility/ Opportunity to Explain. “Here, the BIA made an adverse credibility finding without affording Stoyanov any opportunity to explain the supposed inconsistencies in his written and oral testimony. Under Campos-Sanchez, if the adverse credibility finding ‘form[ed] the basis of [the BIA’s] denial of asylum,’ 164 F.3d at 450, then we must vacate the denial and remand to allow Stoyanov a reasonable opportunity to explain those inconsistencies.” (at 735).



 

Stoyanov v. INS, 149 F.3d 1226 (9th Cir. 1998) (A29-543-966); Remand for reconsideration based on finding that State Department report contained an erroneous statement that affected the BIA’s decision to deny asylum; TROTT.


Country Reports/ Erroneous Statement Therein. State Department report’s erroneous statement that alien obtained his passport before Bulgarian parliament passed law freeing up passport issuance affected decision of BIA to deny alien’s petition for asylum, warranting remand for reconsideration; BIA relied on report in concluding that alien obtained unusual privilege not available to persons in trouble with the authorities as he had claimed to be.




 


Burma




Chronology

 

Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004)





✔ Affirmed





✘ Not Affirmed

 

Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004) (A75-761-859); remanding after finding past persecution and at least a 51% chance of torture; Alien had obtained a bona fide passport from his government and made no claim that family members had been mistreated, nor did he apply for asylum in countries in which he lived and traveled before coming to the U.S.; TASHIMA.

 

Persecution/ Of Friends or Affiliates. Seventh Day Adventist minister suffered past persecution when a fellow minister, who was with him when the military warned them not to preach any more, was arrested, tortured and killed, then dragged through the streets as an example to others; the military was also looking for the alien, who was forced into hiding. The finding was heavily influenced by documentary materials supporting the objective component of the claim.

Persecution/ Not Rising to Level Of. Minister’s one day of forced porterage did not rise to the level of persecution because he did not suffer any ill effects and gave no indication he had been seriously abused. Although alien was made to perform hard labor in unpleasant circumstances, his main reaction was a feeling of injustice at having been made to work on the Sabbath. (at 903).



 


Cambodia




Chronology

 

        Kin v. Holder, _F.3d_, 2010 WL 547650 (9th Cir. 2010)

Im v. Gonzales, 497 F.3d 990 (9th Cir. 2007), withdrawn, 522 F.3d 966 (9th Cir. 2008)

Cheo v. INS, 162 F.3d 1227 (9th Cir. 1998)





✔ Affirmed

 

        Kin v. Holder, _F.3d_, 2010 WL 547650 (9th Cir. 2010) (A78-112-730); affirming a denial of relief over an adverse credibility finding. This case applied pre-REAL ID Act case law. The respondent had claimed significant physical violence inflicted because of his political opinion by the Sam Rainsy party. The adverse credibility determination was based primarily on inconsistencies between the claim as presented at hearing and that set forth in the I-589 as well as testimonial inconsistencies between different witness testimony. TALLMAN.


Credibility - Pre-REAL ID/ Omissions. The court found “significant” the omission from the I-589 of the “key political demonstration they later claimed was the basis for their arrests and subsequent persecution. . . . When confronted with the omission from the asylum hearing, Kin stated that he felt inclusion in the asylum applications was not necessary because the demonstration would be discussed at the hearing.” The circuit rejected this justification.


Credibility - Pre-REAL ID/ Inconsistencies, Material. “It is not improper for the BIA to consider such inconsistencies when making credibility determinations . . . the finder of fact shoulders the responsibility of examining all of the evidence presented and deciding which version of the events is true.”




 

Cheo v. INS, 162 F.3d 1227 (9th Cir. 1998) (A72-991-951); upholding IJ’s denial; aliens sought asylum because armed groups tried to recruit them, they were threatened and one was beaten; KLEINFELD. Distinguished by Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000); Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th Cir. 2004); Ali v. Ashcroft, 394 F.3d 780 (9th Cir. Jan. 19, 2005).


Bars to Asylum/ Firm Resettlement, Found. A three-year undisturbed stay in Malaysia was a sufficient basis for the IJ to presume that firm resettlement may apply. “A duration of residence in a third country sufficient to support an inference of permanent resettlement in the absence of evidence to the contrary shifts the burden of proving absence of firm resettlement to the applicant.” (at 1229).

Persecution/ Not Rising to Level Of; Nexus/ Motive Not Found; Protected Grounds/ Ethnicity. Ethnic Chinese brothers who were smuggled out of Cambodia to avoid military recruitment, beatings and extortion, were discriminated against based on their Chinese ethnicity, but such discrimination did not rise to the level of persecution, and the military recruitment was not motivated by an animus against any group.




✘ Not Affirmed

 

Im v. Gonzales, 497 F.3d 990 (9th Cir. 2007) (A79-267-088), withdrawn, 522 F.3d 966 (9th Cir. 2008); reversing and remanding a denial of asylum based on the persecutor bar; B. FLETCHER.




 


China




Chronology

 

        Lin v. Holder, 588 F.3d 981 (9th Cir. 2009)

        Li v. Holder, 559 F.3d 1096 (9th Cir. 2009)

        Zhao v. Mukasey, 540 F.3d 1027 (9th Cir. 2008)

        Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008)

        Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008)

        Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008)

        Huang v. Mukasey, 520 F.3d 1006 (9th Cir. 2008)

        He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007)

        Tang v. Gonzales, 489 F.3d 987 (9th Cir. 2007)

Lin v. Gonzales, 472 F.3d 1131 (9th Cir. 2007)

Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)

Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006)

Lin v. Gonzales, 434 F.3d 1158 (9th Cir. 2006)

Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006)

Quan v. Gonzales, 428 F.3d 997 (9th Cir. 2005)

Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005)

Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005)

Zheng v. Ashcroft, 397 F.3d 1139 (9th Cir. 2005)

Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2005)

Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004)

Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004)

Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004)

Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004)

Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004)

Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004)

Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004)

Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004)

Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)

Wang v. INS, 352 F.3d 1250 (9th Cir. 2003)

Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003)

Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003)

He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003)

Li v. INS, 92 F.3d 985 (9th Cir. 1996)

 



✔ Affirmed

 

        Lin v. Holder, 588 F.3d 981 (9th Cir. 2009) (A076-280-320); affirming a denial of a motion to reopen. The IJ had denied the original asylum claim and the Board dismissed the appeal. Respondent filed a motion to reopen asserting “changed country conditions.” She argued that because she now has children born in this country, she would be subjected to forced sterilization if she had to return to China. She submitted documentary evidence in support of her claim.


Motion to Reopen/ Changed Country Conditions, China. The court stated “we agree with [Liu v. Atty Gen., 555 F.3d 143 (3rd Cir. 2009)] that the Board’s precedent decision . . . that the ‘Chinese government does not have a national policy requiring forced sterilization of a parent who returns with a second child born outside of China.” In doing so, the court accepted Matter of J-W-S-, 24 I&N Dec. 184 (BIA 2007).


Motion to Reopen/ Changed Circumstances, China. The court explained: “we have previously concluded that ‘the birth of children outside the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin within the regulatory exception . . . .” He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007). The respondent sought unsuccessfully to denominate her motion as one having to do with changed country conditions, arguing that the coercive family practices had become “more stringent.”


Asylum Application/ Successive. The court would not permit the respondent to proceed on a “successive” asylum application under 8 U.S.C. § 1158(a)(2)(D), regarding “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” The court relied on Chen v. Mukasey, 524 F.3d 1028, 1030 (9th Cir. 2008), explaining “in Chen, we determined that it was reasonable for the BIA to conclude that to permit such an avoidance of the time and number limits on motions to reopen by allowing a free standing claim for asylum under § 1158(a)(2)(D) would make no sense of the more restrictive exception in § 1229a(c)(7).”




 

Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008); affirming the denial of a motion to reopen to pursue an asylum claim on “changed personal circumstances,” referring to the respondent having married and given birth to two children. The respondent expressed fear that if she had to return to China either she and/or her husband would be subject to a coercive family planning practice. CANBY.


Motion to Reopen/ Changed Circumstances. The court accepted and applied Matter of C-W-L, 24 I&N Dec. 346 (BIA 2007). The general requirements with regard to the timing and number of motions to reopen may be applied to asylum applicants notwithstanding the broader provisions of INA § 208(a)(2)(D) as they permit motions to reopen based on “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” (at 1030) (internal citations omitted). The court distinguished prior case law “suggesting that aliens in Chen’s position may seek asylum without a motion to reopen.” (at 1033). The court upheld the denial of a CAT claim as well. In characterizing the general requirements as to a motion to reopen as “reasonable,” the court noted its agreement with Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001) (rejecting a claim that CAT overcomes time limits for assertion of claims in deportation proceedings). (at 1033) (internal quotation marks omitted).



 

He v. Gonzalez, 501 F.3d 1128 (9th Cir. 2007) (A 70 700 920); affirming a denial of a motion to reopen to again pursue an asylum application based on the subsequent birth of two U.S. citizen children. Respondent argued that the birth of what would now be his third child would make him “subject to forced sterilization.” TALLMAN.


Motion to Reopen/ Changed Circumstances. The court cited to Zheng v. USDOJ, 416 F.3d 129 (2d Cir. 2005), Wang v. BIA, 437 F.3d 270 (2d Cir. 2006), and Zhao v. Gonzales, 440 F.3d 405 (7th Cir. 2005) in support of its conclusion that one cannot “establish changed circumstances sufficient to satisfy the exception to the time and number bars applicable to a motion to reopen based on the birth of children in the U.S. and the resulting threat of forced sterilization if returned to the country of origin.” The court also cited approvingly to an unpublished Sixth Circuit decision in which a citizen of Guinea was found not to have established “changed circumstances” with regard to the risk of FGM being imposed on a USC child if denied relief. Bah v. Attorney General, 2007 WL 1338540 . Although not cited, see further, In re A-K-, 24 I&N Dec. 275 (BIA 2007) (finding that an alien may not establish eligibility for asylum based solely on fear that a daughter will be harmed by being forced to undergo FGM upon the return to the alien’s home country). Citing Wang, supra, at page 270, the court agrees that where “a petitioner is seeking to reopen his asylum case due to circumstances of his own making after being ordered to leave the U.S.... it would be ironic indeed if [those] who remained in the United States illegally following an order of deportation, were permitted to have second and third bites at the asylum apple simply because they managed to marry and have children while evading the authorities.” This apparent “gaming of the system” is not to be permitted.

Distinguishing Shou Young Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). A motion to reopen was denied by the BIA but a petition for review was granted in a coercive family planning claim. There, the documentation was found to be “persuasive” and the birth of the U.S. child was before the entry of a final administrative order.



 

Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006) (A75-653-110); denying rehearing en banc, withdrawing and superceding previous opinion at 429 F.3d 1209 (9th Cir. 2005). Upholding a denial of asylum to a Chinese Christian who attended a “house” or unregistered church. He had “distributed Christian religious materials.” “He was arrested . . . and detained at the police station for three days . . . . [H]e was interrogated for two hours . . . . [T]he police hit his back with a rod approximately ten times.” Afterward, Gu was required to sign a document admitting his guilt and was required to periodically report to a local police station. Although he maintained his government job, he was warned that he would be fired if he engaged in any further illegal activities. After the applicant came to the U.S. , “[a] friend told him not to call his family any longer because the ‘public security people’ came to his house to look for him. Gu believes that Chinese authorities looked for him because he had sent religious materials from the U.S. to China.” There was no issue as to credibility. BEEZER; dissent by PREGERSON.


Persecution/ Not Rising to Level Of. The court, over a strong dissent, determined that Gu had not established past persecution because he was detained and beaten on only a single occasion, he did not require medical treatment, and he maintained his employment. Additionally, the court held that Gu did not establish any state-imposed limitation on his right to practice his religion, other than the prohibition on religious leafleting.

Evidence/ Hearsay. In the absence of an adverse credibility determination, the factfinder must accept the applicant’s contentions as true. However, where an asylum applicant's testimony consists of hearsay evidence, the statements by the out-of-court declarant may be accorded less weight by the trier of fact when weighed against non-hearsay evidence” because it is less persuasive than a first-hand account. Footnote



 

Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2004); (1) all motions to reopen any proceedings that resulted in entry of final order of removal prior to March 22, 1999, in order to seek protection under the CAT, are subject to time limitation imposed by regulation implementing the CAT, without regard to form of protection, withholding of removal or deferral of removal, to which alien would be entitled if successful; (2) as prudential matter, alien against whom final order of removal was entered prior to March 22, 1999 had to first exhaust his administrative remedies, by filing motion to reopen, as prerequisite to seeking such protection in habeas corpus petition filed with district court; affirming district court’s denial of habeas petition; RYMER.



 

Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004) (A70-011-792); reh’g en banc denied, 396 F.3d 1073 (9th Cir. 2005); upholding IJ’s adverse credibility determination; FARRIS; (NOONAN, dissenting: adverse credibility determination was based solely on speculation and was fraught with arbitrariness; nothing in the record rebuts petitioner’s claim that he will face persecution as the father of three sons).


Credibility/ Omissions; Inconsistencies, Material. Three prior asylum applications failed to mention that petitioner’s wife had been forcibly sterilized after he was detained and threatened with sterilization himself; petitioner denied ever being persecuted by the Chinese government when interviewed at the airport; and petitioner’s testimony regarding fine amounts he was ordered to pay for each additional child was inconsistent with his earlier applications. Petitioner’s continued presence in the country was in hiding and does not support a lack of credibility ruling; however, the fact his wife has traveled freely to their home town without any trouble may reasonably be considered inconsistent with petitioner’s claim that his family was so afraid of being arrested that it was forced to go deep into hiding. (at 964).

Credibility/ Documents To Impeach, Permitted. Prior asylum applications completed at a law firm by an assistant who reviewed the forms with the applicant in his native language and signed under penalty of perjury have impeachment value as prior inconsistent statements. (at 962).




 

Wang v. INS, 352 F.3d 1250 (9th Cir. 2003) (A72-693-706); upholding IJ’s adverse credibility determination and denying the petition; WALLACE.


Evidence/ Authentication, Inability To. INS forensics expert’s inability to determine authenticity of alien’s documents does not provide a reasonable basis for concluding that the documents are anything other than what they purport to be, even though the State Department reported widespread fabrication and fraud. (at 1254).

Credibility/ IJ Speculation. Minor discrepancies in birth certificates and hospital records may be suspicious, but cannot form a reasonable basis upon which to contest credibility. “While we understand the IJ’s suspicion, her basis for questioning these documents amounts to nothing more than a subjective view of what these documents would look like.” (at 1255). “Speculation and conjecture may not ‘substitute for substantial evidence,’ but an IJ need not ignore palpable inconsistencies in a petitioner’s testimonial and documentary evidence that directly undermine his allegations of persecution.” (at 1258).

Credibility/ Implausibility. Alien’s obvious evasiveness in explaining his contradictory testimony was sufficient to support an adverse credibility finding. “While he claimed he did not mention the stillbirth earlier due to a superstition, apparently this superstition did not prevent him from speaking of the stillbirth one week later. It strains credulity to believe that Wang would fail to mention in either his asylum applications or his previous sworn testimony the alleged death of a stillborn child—the very incident that supposedly formed the basis for the Chinese government’s alleged sterilization attempt.” (at 1257). In addition, notarial certificate issued in the same district alien claimed to have fled years earlier contradicts his claim that he was concealing himself from the district authorities during the period in question. (at 1257).




 

Li v. INS, 92 F.3d 985 (9th Cir. 1996) (A72-780-312); denying petition to review based on findings that (1) applicant did not establish he was eligible for asylum based on his membership in a social group of Chinese citizens with low economic status; his arrest after fight at restaurant was not persecution on account of political opinion; (3) presumption that he had well-founded fear of persecution on account of religion from arrest of family member at church was rebutted by his own testimony that he and other residents of his village continued to attend church regularly until he left; (4) his exclusion from high school did not provide basis for past persecution on account of political opinion; (5) his fear of punishment from unpaid smugglers did not amount to fear of persecution; and (6) he failed to demonstrate that punishment for illegal departure would be pretext for persecution on account of his political opinion; GOODWIN; distinguished by Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996).





✘ Not Affirmed

 

        Li v. Holder, 559 F.3d 1096 (9th Cir. 2009) (A 96 349 858); reversing and remanding a denial of relief. The IJ had denied relief based on an adverse credibility determination and a finding that the harm complained of were not “on account of” a protected criteria. The court rejected this determination with a lengthy discussion which found that the numerous reasons cited by the IJ were either “speculation” (such as reliance on the large sum of money paid by the respondent in his travel to China), “fabricated [by the IJ] inconsistencies,” or otherwise not “going to the heart of the claim” (such as misstatments as to dates), citing Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004). The petitioners claimed to be members of a “house church” of the “Christian” faith who assisted North Koreans who had illegally entered china and who were consequently persecuted for providing “humanitarian assistance” in violation of Chinese law. The mistreatment was from both Chinese police as well as other prisoners in a labor camp where they were sentenced. WARDLAW.


Due Process/ Translation. “We have held that an asylum applicant has a due process right to be given competent interpretation services if he does not speak English,” citing He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) and Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000). “Even where there is no due process violation, faulty or unreliable translation can undermine the evidence on which an adverse credibility determination is based. He v. Ashcroft, 328 F.3d at 598; Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004); Mendoza v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003).


Unable or Unwilling to Control/ Private Agent. The court held that “the police were either unable or unwilling to control the beatings of Li by his fellow inmates” after finding past persecution from the beatings by other inmates, citing Avetova v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). “Affirmative state action is not necessary to establish a well-founded fear of persecution if the government is unable or unwilling to control those elements of its society responsible for targeting a particular individual.”


Persecution/ Prosecution. In finding persecution, the court discussed how persecution arises where “the prosecution lacks legitimacy or proceeds without the process normally due” or is “disproportionately severed” or is directed at a “disfavored group.” The court cited Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000), which found that a prosecution related to “interfaith dating” was persecution because of the significant physical punishment, notwithstanding the violation of local criminal law.


Protected Grounds/ Imputed Political Opinion, Found; Political Opinion/ Actions not Words. “One who is persecuted for protesting with lawful deeds is just as worthy of asylum under our laws as one who protested with words.” Hence, the fact that there was no criticism of the government’s policy that “undocumented North Korean refugees should receive no aid” was found not to bar the claim based on imputed political opinion.


Credibility/ IJ Speculation. One of the IJ’s bases for making an adverse credibility determination was Li’s failure to know the “difference between the teachings of the Presbyterian church that he attends in Los Angeles and the teachings of the church in his hometown.” The court rejected this basis, stating that “what a new Christian convert would know (or even could know) about theological positions of various denominations is pure conjecture.”



 

Zhao v. Mukasey, 540 F.3d 1027 (9th Cir. 2008) (A 95 303 066); reversing and remanding a denial of relief to practitioners of Falun Gong. Respondents claimed both physical mistreatment and being subjected to threats. They were denied relief on the bases that they had not established sufficiently severe mistreatment to have demonstrated past persecution nor a well founded fear of future risk. Credibility was not at issue. They had been able to legally leave China on the basis of official government issued travel documents and fellow practitioners who had been arrested with them had been able to continue to live in China without any particular problem. REINHARDT.


Protected Grounds/ Religion, Falun Gong. The court cited to Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004) and Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006) for the principle that any Falun Gong practitioner who continues to maintain his participation and who has had problems in the past with authorities has a well-founded fear of future persecution on the basis of religious beliefs.



 

Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008) (A78-399-579); reversing and remanding on credibility grounds and whether the misconduct was “on account of” a protected criteria. Respondent has been raped at work by “the factory manager who also held a political position.” She sought to complain about this to local officials and she was then harassed and threatened with arrest by local officials. The IJ found her to be incredible because of inconsistencies in the record as well as a claim of being “implausible.” This last position was rejected as impermissible “speculation” by the IJ. POLLAK.


Credibility/ Airport Interview. The effort to justify the adverse credibility determination based on inconsistencies from an “airport interview” was rejected. This was so even with Respondent having omitted all of the information pertaining to the rape as well as the reported efforts to arrest her after she reportedly complained to local governmental officials. Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004) was cited for: “[S]tatements given during airport interviews [are not] valuable impeachment sources because of the conditions upon which they are taken and because a newly arriving alien cannot be expected to divulge every detail...” (at *5).

Nexus/ Retribution, On Account of Protected Ground; Protected Grounds/ Political Opinion, Found. The court cited to Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) for the proposition that, “A victim who is targeted for exposing government corruption is persecuted on account of political opinion because retaliation for investigating or publicizing corruption by political figures is by its very nature a political act.” (at *7) (internal quotation marks and citations omitted). The court found this was not a mere personal dispute between Respondent and the factory manager.



 

Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008) (A75-642-340); remanding on the basis of whether the BIA would choose to accept the panel’s determination that the withdrawal of a Form I-589, Application for Asylum and for Withholding of Removal, did not preclude the finding that the application was “frivolous.” TROTT.


Asylum Application/ Frivolous. “Chen admitted that the contents of her asylum application were false, that the information she provided to an asylum officer in an April 1999 interview was false, and that the marriage and birth certificates she provided to the asylum officer were false.” (at 936). Because she subsequently developed another form of relief in the form of an I-130, she withdrew the I-589 prior to any hearing thereon. The court found that because she had been explicitly warned of the consequences of filing a frivolous I-589, the fact that there was no evidentiary hearing thereon before the IJ did not preclude the finding. The court expressed its agreement with Lazar v. Gonzales, 500 F.3d 469 (6th Cir. 2007), which reached a similar result. However, it further noted Zheng v. Mukasey, 514 F.3d 176 (2d Cir. 2008), where there was a different result with regard to whether there was “ambiguity” at the pertinent provision of INA § 208(d)(6). (at 942). The majority, over the disagreement of CLIFTON, remanded the case to the Board notwithstanding it specifically finding no such “ambiguity.” This was done “to allow the agency itself to speak to this issue and to attempt to avoid making a decision later undercut by a different interpretation by the BIA in Zheng.” (at 943).



 

Huang v. Mukasey, 520 F.3d 1006 (9th Cir. 2008) (A95-875-283); reversing and remanding a denial for failure to “make a credible finding.” PER CURIAM.


Credibility/ Explicit Finding. The IJ found “numerous, significant inconsistencies” in the claim. (at 1007). “The IJ conflated what he may have intended as an adverse credibility finding...[with a further finding] that he has failed to discharge his burden” in terms of the relief he sought. Id. The court emphasized that the two principles had to be addressed separately.



 

Tang v. Gonzales, 489 F.3d 987 (9th Cir. 2007) (A71-565-867); reversing and remanding a denial of asylum. A woman became pregnant. Her claim was not before the court but that of her husband was. Her employer (as opposed to government officers), per its “policy,” took her to a clinic for a “forced abortion.” She “cried and screamed but it didn’t help,” nor did she “go into hiding” with regard to expressing any particular opposition; W. FLETCHER.



Persecution/ Forced Abortion. The court applied its holding in Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004), that “[a]n asylum applicant need not demonstrate that she was physically restrained during an abortion procedure to show that it was forced.” Tang, 490 at 990 (citing Ding, 387 F.3d at 1139). The court rejected the IJ’s reasons for finding that the abortion was not forced, including the fact that neither Tang nor his wife went into hiding to avoid the abortion, and that the procedure was by the private employer rather than pursuant to any official summons. Id. at 991.

Persecution/ Of Family/CPC. “In Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005), we held that victims of forced sterilization were ‘entitled, without more, to withholding of removal.” “We conclude that, like those who have undergone forced sterilization, victims of forced abortion are ‘entitled by virtue of that fact alone’ to withholding of removal .... [W]e hold that Tang, as the partner of a woman who had a forced abortion, is entitled to withholding of removal as a matter of law.” Tang, 489 F.3d at 992.




 

Lin v. Gonzales, 472 F.3d 1131 (9th Cir. 2007) (A76-868-356);reversing and remanding a denial of asylum. The court found that there had been “other resistance” under INA § 101(a)(42)(B) to a coercive population control program, as discussed by Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (en banc). The court had previously reversed and remanded to the BIA on an administrative denial for failure to provide corroborating evidence. Upon remand, the Board again denied relief. Mr. Lin claimed that he had been beaten because he interfered with birth control officials who were endeavoring to seize and destroy household furnishings belonging to respondent’s brother and his wife who had violated birth control policies; TROTT.


Protected Grounds/ Political Opinion/Resistance to CPC. The Board believed that “an applicant does not satisfy the resistance component unless the applicant can demonstrate that the resistance was motivated by a disapproval of birth control policies.” The Ninth Circuit found Mr. Lin’s position, that he met the resistance component “simply by physically interfering with birth control officials while the officials destroyed family property in accordance with birth control policies,” to be persuasive. The court held that the simple physical act of resistance, coupled with the respondent’s assertion that he disagreed with the birth control policies, was sufficient to grant relief.



 

Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (A75-011-071);reversing a denial of a motion to reopen with regard to an asylum claim; The respondent previously had an asylum application denied. In doing so, the IJ made a finding that the application was frivolous and that respondent “was therefore barred forever from seeking any type of immigration relief.” The respondent did not appeal this decision and was removed to China. He thereafter illegally returned. He filed a motion to reopen based on “changed circumstances.” In affirming the IJ’s denial of the motion to reopen, the BIA held that the respondent was “permanently ineligible for any benefits under the Act,” citing section 208(d)(6); SMITH.


Motion to Reopen/ Departure from the U.S. Interpreting 8 C.F.R. 1003.23(b)(1), which states that a motion to reopen “shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States,” the court held that this applies only to those who depart the U.S. during currently pending removal proceedings. The respondent by contrast, was removed to China after his removal proceedings were complete, and so the bar did not apply to him.

Regulations/ Construction Of; Ambiguity in Favor of Alien. “While the regulation may have been intended to preclude aliens in petitioner’s situation from filing motions to reopen their removal proceedings, the language of the regulation does not unambiguously support this result. Because ambiguity must be construed in favor of the petitioner, we decline to adopt the government’s construction of the regulation . . . .”

Removal Order/ Reinstatement Of. Both the BIA and the IJ found that they lacked jurisdiction because “the original deportation order had been automatically reinstated by operation of law upon the petitioner’s illegal reentry into the U.S.” The court held that the statute specified a number of steps that the government must take before the order can be reinstated. Therefore, the Board’s conclusion that it lacked jurisdiction was error.



 

Lin v. Gonzales, 434 F.3d 1158 (9th Cir. 2006) (A79-760-825); reversing an adverse credibility finding, finding past persecution, and remanding for a discretionary consideration of asylum; McKEOWN.


Persecution/ Forced Sterilization. “If Lin can prove that his wife was forcibly sterilized he is automatically eligible for asylum and withholding of removal.” Following: Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005) and He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003).

Credibility/ State Department Reports, Reliance On Rejected ; IJ Speculation. The respondent submitted a series of “official” documents from Chinese public authorities to support his claim. They had omissions and inconsistencies. There was in the record the Dept. of State Report which expresses “skepticism” as to the bona fides of these types of documents. The IJ relied on this to discount the probative value to be accorded to them. The court rejected this assessment. It held there rather need be “actual evidence rather than personal speculation by the IJ.” The references to the Dept. of State Report were explicitly held not to meet that standard.

Discretion/ Administrative Exercise Of, Not Upheld. “Asylum is rarely denied as a matter of discretion.”



 

Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006) (A79-602-200); reversing and remanding an adverse credibility finding on the basis of being an imputed supporter of a Falun Gong practitioner. The respondent did not make any claim that she had in fact been mistreated or arrested. Rather, she asserted that she had brought into China on a previous trip articles about Falun Gong that she gave a friend and that she knew it was not proper to do so. She asserted, and provided expert testimony as well as documents, that the police had searched her residence and that she had been advised by family members that the police were looking to arrest her. THOMPSON.


Credibility/ Implausibility, IJ Speculation. “Underpinning the IJ’s finding that Zhou was incredible was his opinion that it was ‘implausible’ that Zhou ‘would risk her privileged position in Chinese society, her excellent job as director of administration, her opportunity to work abroad in Singapore, and her freedom, all just to provide a mere acquaintance with the favor of illegal material.” This assertion was dismissed as unwarranted “speculation.” Other inconsistencies cited by the IJ in the documents were dismissed as unacceptable as was the failure to provide sufficient corroboration citing to Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir. 2000).

Protected Grounds/ Religion, Falun Gong. The court reiterated its holding in v. Ashcroft, 388 F.3d 713 (9th Cir. 2004) in terms of its view as to how easy it is for a citizen of China who fears persecution on the basis of an association with Falun Gong to establish the objective component of the claim. “Although there is no indication that the Chinese government believes that Zhou actually practices Falun Gong, there is no reason to believe that this will mitigate the harshness of her sanctions or detention for importing and distributing Falun Gong articles.” As it, “perceives Zhou’s actions as a threat to its political power.”

Withholding of Removal/ Granted. The court found that the “‘clear probability’ of these consequences compels the conclusion that Zhou is entitled to withholding of removal.” However, the court upheld a denial of relief under CAT. It again approvingly and consistently referred to Zhang: “Although the evidence in the record compels a finding that it is more likely than not that Zhang will be persecuted upon return to China, the likelihood of future harm amounting to torture is less pronounced. We cannot say on this record that the evidence compels us to find that Zhang meets the clear probability standard.”



 

Quan v. Gonzales, 428 F.3d 883 (9th Cir. 2005) (A75-684-401); reversing an adverse credibility finding, finding past persecution, and remanding for a discretionary determination of asylum. An individual claimed physical mistreatment, arrest for less than a day, and firing by employer due to participation in unregistered Christian “house church.” WHALEY (O’SCANNLAIN, dissenting).


Persecution/ Medical Attention. The fact that the respondent did not claim any need for medical attention did not defeat this finding. Contra Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir. 2004), as noted by the dissent; Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). 

Credibility/ Inconsistencies, Minor. The six inconsistencies cited by the Immigration Judge were found either in fact not to be present or otherwise not supported by “substantial evidence.”



 

Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005) (A77-297-144); upholding denial of withholding but remanding for discretionary consideration of asylum, even though there was no claim of any physical violence or threats to petitioner, holding that “a child of a forcibly sterilized parent is not automatically eligible for asylum;” W. FLETCHER.


Persecution/ Economic. Alien testified “her parents’s [sic] resistance to China’s coercive population control program caused a number of adverse economic consequences. ... As a result of the family’s inability to pay the fine, Ms. Zhang was barred from attending school. Denial of access to educational opportunities available to others on account of a protected ground can constitute persecution.” (at 1247–48, citing Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997)).

Persecution/ Of Family. Notwithstanding “the lack of specific threats against Ms. Zhang, ... ‘acts of violence committed against an applicant’s friends or family can establish well-founded fear of persecution.’” (at 1249, quoting Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003)).

Withholding of Removal/ Denied. Although the court remanded for a consideration of “whether the trauma Ms. Zhang suffered as a result of her father’s forcible removal and sterilization, the economic deprivation she experienced, and her inability to pursue an education, when taken together, constituted persecution,” (at 1249), by finding no basis for withholding of removal, the court was denying the alien suffered past persecution that would have given rise to a presumption of a well-founded fear of future persecution. Citing to Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001) for the rule that the standard for withholding of removal is “more stringent than the well-founded fear standard governing asylum” is irrelevant, and this panel misapplied the past-persecution analysis for withholding claims.



 

Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005) (A79-522-726); reversing BIA’s denial of withholding and remanding; REINHARDT.


Persecution/ Of Family/CPC. Just as a husband is statutorily eligible for asylum solely by virtue of the fact that his wife has been involuntarily sterilized pursuant to a coercive population control program, he is also entitled, without more, to withholding of removal. He need make no further showing or meet any further conditions nor requirements in order to obtain such relief.

Persecution/ Forced Sterilization. “[O]ne who has suffered involuntary sterilization, either directly or because of the sterilization of a spouse, is entitled, without more, to withholding of removal.” (at 1203).



 

Zheng v. Ashcroft, 397 F.3d 1139 (9th Cir. 2005) (A77-169-033) (amending 382 F.3d 993); reversing IJ’s credibility determination and remanding for a discretionary grant of asylum; FISHER; declined to extend by Qu v. Gonzales, 399 F.3d 1195 (9th Cir. Mar. 8, 2005).


Credibility/ Inconsistencies, Minor. A discrepancy of two hours between alien’s testimony and his wife’s written statement as to when birth control officials took his wife away cannot support an adverse credibility finding.

Protected Grounds/ Political Opinion/Resistance to CPC. China’s family planning policy is not uniform across the country, but varies from region to region based on local regulation. “[R]egardless of what the official policy may be in a particular township regarding the number of children a couple is allowed to have, it is possible that corrupt officials may deviate from that policy and force a couple to abort their child even if the couple has not surpassed the legally permissible number of children.”

Credibility/ State Department Reports, Reliance On Permitted. The State Department’s reports may be considered when evaluating an applicant’s credibility, but may only be used as supplemental evidence to discredit generalized statements made by the applicant, not to discredit specific testimony regarding individual experience. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir. 1999); Chebchoub v. INS, 257 F.3d 1038, 1043–44 (9th Cir. 2001). “The IJ, however, may not discredit a petitioner’s testimony based on a statement in a State Department report that is itself based on speculation or conjecture. See Shah v. INS, 220 F.3d 1062, 1069 (9th Cir. 2000).”



 

Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004) (A75-740-911); granting withholding and denying CAT; SCHROEDER, GOODWIN, and TASHIMA.


Persecution/ Of Family. Persecution of alien’s family in China for their involvement in Falun Gong activities is compelling evidence that alien would face similar mistreatment, where alien introduced his family to Falun Gong, his brother was arrested and sentenced to a reeducation-through-labor camp and his parents were arrested and forced to write self-criticism letters. (at 718).

Well-Founded Fear/ Individualized Risk. Evidence of continuing interest in alien and his family, including blaming him for distributing anti-government materials and warning his parents that he must report to the police upon his return to China, increases the likelihood of future persecution. (at 719).

Protected Grounds/ Religion, Falun Gong. Persecution of Falun Gong practitioners by the Chinese government constitutes persecution on account of religious beliefs and political opinions, despite the fact the Falun Gong movement adamantly denies being a religion or a political party. (at 720–21).



 

Ding v. Ashcroft, 387 F.3d 1131 (9th Cir. 2004) (A75-679-308); reversing IJ’s credibility determination and finding the alien necessarily eligible for asylum; WARDLAW.


Persecution/ Forced Abortion. The lack of physical restraints during the abortion procedure does not support a finding that the abortion was voluntary, when physical force was exercised to take the alien to the hospital and birth control unit supervisors forced her on to the operating table and stood at her side during the procedure. (at 1137–38). “[A]n applicant does not need to provide evidence of physical restraint to establish the forced nature of an abortion.” (at 1139). Subsequent to this decision, the Board of Immigration Appeals held that “[a]n abortion is not ‘forced’ within the meaning of the refugee definition ... unless the threatened harm for refusal would, if carried out, be sufficiently severe that it amounts to persecution.” Matter of T-Z-, 24 I&N Dec. 163, 169 (BIA 2007). The Board disagreed with Ding to the extent that it suggests that “threats of economic harm that do not rise to the level of persecution, if carried out, would suffice to demonstrate that an abortion was ‘forced’ within the meaning of the statute.” Id.

Evidence/ Authentication, Inability To. “The exclusion of documents because [they have not been authenticated] runs contrary to our long-standing principle excusing such authentication ....” (at 1135, n. 4).



 

Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004), amending and superceding 356 F.3d 1027 (9th Cir. 2004) (A77-340-590); denying a petition for further rehearing and rehearing en banc and reversing and remanding a denial of a motion to reopen to allow the respondent to further pursue an application for asylum. At the time of the hearing, the respondent was fourteen-years-old. He was represented by counsel. Lin’s mother bore a second child in violation of a coercive family planning practice. The mother was reportedly sterilized. The court found ineffective assistance of counsel and a prima facie meritorious claim. B.FLETCHER. Footnote


Ineffective Assistance/ Minors. In discussing standards for effective legal representation of asylum seekers, “our concern about their proper implementation is intensified when the petitioner is a minor.” 377 F.3d at 1025.


Protected Grounds/ Family. “We recognize that a family is a social group.” (at 1028). “The expanded record suggests that the Chinese government was inclined to go to extraordinary lengths to punish Lin’s family... Lin was separated from his parents as a result of government activity...that he was threatened personally when his mother’s house was ransacked...” (at 1029).


Matter of C-Y-Z- as a Basis for Relief. “Aside from Lin’s membership in his nuclear family, the particular basis of his family’s persecution may justify his refugee status. Congress has made plain that the forced sterilization of Zheng [the mother] constitutes persecution.” (at 1030). “Zheng’s forced sterilization...can be imputed to Lin’s father, whose reproductive opportunities the law considers bound up with his wife.” Id. (citing to He v. Ashcroft, 328 F.3d 593, 604. (9th Cir. 2003)). “His mother’s misfortune is seemed to be past persecution on account of political opinion; this is in turn imputed to Lin’s father as a matter of law, whether or not he had ever actually expressed such an opinion or experienced such persecution directly.” (at 1034).

Ineffective Assistance/ Standard. “[T]he presentation of a few bare facts, without documentation and without the factual context that gives them meaning or the analytical context that gives them their power, does not suffice to place the critical issues squarely before the tribunal that must consider them.” (at 1029).

Persecution/ Discrimination, Of Children/CPC. “The discrimination or abusive treatment of children in families with more than one child may qualify them for refugee status.” (at 1031).



 

Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004) (A75-667-318); reversing IJ’s adverse credibility determination and remanding for a discretionary grant of asylum based on petitioner’s wife’s forced abortion; BEEZER; declined to extend by Qu v. Gonzales, 399 F.3d 1195 (9th Cir. Mar. 8, 2005).


Credibility/ IJ Speculation. Conjecture regarding how the Chinese government should have taken action against petitioner and his wife for violating the one child policy cannot form the basis of an adverse credibility determination. Conjecture by the IJ included statements such as: “if the government was so concerned about the respondent’s violation of the one-child policy, they [sic] surely would have taken [employment] action against respondent at the time [of the first unauthorized pregnancy.]”

Evidence/ Authentication, Inability To; Credibility/ State Department Reports, Reliance On Rejected. Despite the State Department’s report that some asylum applicants fraudulently present abortion certificates, it cannot be presumed that a hospital record submitted to prove that the forced abortion occurred is fraudulent. (at 1126).



 

Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004) (A79-354-114); reversing IJ’s adverse credibility determination; ALARCON.


Credibility/ Opportunity to Explain. Although the IJ questioned petitioner as to why she never requested official permission for her first pregnancy and received unsatisfactory excuses, by moving on to another subject the IJ denied her a reasonable opportunity to explain, “leaving this court to speculate whether Mrs. Chen did not fully understand the nature of the question due to the difficulties of translation, or whether she had feared that a fine would be assessed immediately, or worse, that she would have been required to abort her child.” (at 618).

Credibility/ IJ Speculation. Speculation regarding the religious activities of petitioner’s husband cannot form the basis of an adverse credibility determination; even if the finding were not based on speculation, the issue is not central to a claim of persecution based on coercive population control. “Additionally, if [petitioner]’s alleged evasiveness with regard to her husband’s activities ‘cannot be viewed as attempts by the applicant to enhance [her] claims of persecution, [they] have no bearing on credibility.’ Shah v. INS, 220 F.3d 1062, 1068 (9th Cir. 2000).” (at 620).



 

Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004) (A75-735-229); reversing IJ’s adverse credibility determination, finding that prior detention constituted persecution on account of religion, and remanding for a discretionary grant of asylum; ALARCON.


Credibility/ Opportunity to Explain. Unclear testimony, such as the testimony here regarding whether petitioner became a Christian in China or after his arrival in the United States may not serve as substantial evidence for an adverse credibility finding when the applicant is not given the chance to attempt to clarify his testimony. (at 1200).

Credibility/ Inconsistencies, Minor. Petitioner’s inability to remember the name of the company he had written on his B-1 visa application was an inconsistency that does not go to the heart of his asylum claim and cannot justify an adverse credibility finding. (at 1201).

Credibility/ Misrepresentations. Making misrepresentations on an application to extend nonimmigrant status is consistent with a fear of deportation and cannot be a basis for refusing refugee status. (at 1202).

Persecution/ Detention, Protected Grounds/ Religion. Detention for a day and a half—during which alien was hit in the face, kicked in the stomach, and forced to sign a renouncement of Christianity—compels a finding that he was persecuted because of his religious beliefs. (at 1203). Alien’s attempt to stop Chinese police from taking down a cross from a tomb during a funeral was resistance to discriminatory government action, which led to being beaten and detained for fifteen days. This treatment rises to the level of persecution on account of his religion. (at 1203).



 

Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004) (A76-279-693); remanding based on finding that INA § 101(a)(42)(B) applies to husbands whose marriages would be legally recognized, but for China’s coercive family planning policies, and not only to husbands whose marriages are recognized by Chinese authorities; REINHARDT.


Persecution/ Of Family/CPC. Limiting asylum eligibility to spouses whose marriage was officially recognized, and excluding husbands who marry their spouses prior to the age authorized by the Chinese policy, contravenes the purpose and policies of the statutory amendment. (at 560).

“While ordinarily we respect the marriage rules and regulations of foreign nations, including the establishment of a minimum age, ... here the entire purpose of Congress’s amendment to the asylum statute is to give relief to victims of China’s oppressive population control policy.” (at 561).



 

Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (A77-169-374); en banc reh’g of 312 F.3d 1094 (2002); interpreting the phrase “other resistance to a coercive population control program” and remanding; HAWKINS; (KLEINFELD, dissenting, urged the court to defer to the BIA: “Our court is not in a position to change the ideology of the Communist Party of China, nor to afford a safe harbor to all those Chinese who chafe under it.”); declined to extend by Qu v. Gonzales, 399 F.3d 1195 (9th Cir. Mar. 8, 2005). Footnote


Persecution/ Forced Pregnancy Exam. Forced pregnancy examination, without any further claim of physical assault, by four birth control officials soon after alien expressed her defiance against China’s early marriage and pregnancy laws was for the purpose of intimidation, not legitimate medical practice, and rose to the level of persecution. (at 1158). This was so even without any claim of subsequent adverse health effects.

Protected Grounds/ Political Opinion/Resistance to CPC. China’s early marriage policy is an integral part of the population control policy; however, the court was “not presented with the question of whether resistance to the marriage-age aspect of the program alone would satisfy the statutory standard.” (at 1159). Alien demonstrated resistance to the coercive population control program by telling officials she wanted “freedom for being in love,” announcing her decision to marry even after a license was refused, telling officials she intended “to have many babies” and didn’t want them to interfere, and by kicking and struggling when forced to undergo a gynecological examination (at 1160).



 

Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003) (A73-827-084); (1) applicant established past persecution based upon force abortions and insertion of IUD; (2) INS failed to rebut such presumption; (3) adverse credibility determinations of BIA and IJ were not supported by substantial evidence; (4) applicant was eligible for withholding of removal; and (5) reversal, rather than remand for determination of eligibility by BIA, was appropriate. Petition granted; vacated and remanded; B.FLETCHER; distinguished by Chen v. Ashcroft, 362 F.3d 611 (9th Cir. 2004).


Persecution/ Forced Abortion. Asylum applicant established past persecution by providing evidence that both times that she became pregnant after having her first child, Chinese government, pursuant to its one-child policy, harassed her by deducting from her wages, threatening her job stability, or threatening to impose unreasonably high fines, thus forcing her to have two abortions and accept insertion of intrauterine contraceptive device (IUD). Subsequent to this decision, the Board of Immigration Appeals held that “[a]n abortion is not ‘forced’ within the meaning of the refugee definition ... unless the threatened harm for refusal would, if carried out, be sufficiently severe that it amounts to persecution.” Matter of T-Z-, 24 I&N Dec. 163, 169 (BIA 2007). The Board disagreed with Wang to the extent that it suggests that “threats of economic harm that do not rise to the level of persecution, if carried out, would suffice to demonstrate that an abortion was ‘forced’ within the meaning of the statute.” Id.

Credibility/ Inconsistencies, Minor. Adverse credibility determinations of BIA and IJ, based on inconsistencies in testimony between Chinese asylum applicant and her husband regarding such things as date of forced abortion and husband’s normal work hours at time of abortion, were not supported by substantial evidence, inasmuch as inconsistencies were not material to whether applicant was forced to have abortions.

Asylum Application/ Granted to Family Member. The court greeted with incredulity the argument made by the government that a reviewing court should not concern itself with administrative inconsistencies where the applicant was denied, but her husband’s case was granted on the basis of her experiences.



 

Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (A76-280-679); holding that in order for government official to “acquiesce” in acts of torture by private party, as required for the threat of such torture by individuals not themselves associated with foreign government to provide basis for grant of relief from removal under CAT, public official need not have actual knowledge of, or willfully accept, the torture. Petition granted; order vacated; case remanded; PREGERSON.


CAT/ Acquiescence. For government official to “acquiesce” in acts of torture by private party, public official need not have actual knowledge of, or willfully accept, the torture; rather, such “acquiescence” requires only that public official, prior to the activity constituting torture, have an awareness of such activity, whether that awareness takes form of actual knowledge or willful blindness, and thereafter breach his legal responsibility to intervene to prevent such activity.

The correct inquiry, in deciding whether illegal Chinese immigrant was entitled to CAT relief based on his reasonable fear of torture, not by government officials themselves, but by private individuals who had smuggled him out of country and against whom he had testified, was whether alien could show that public officials demonstrate “willful blindness” to the torture of their citizens by smugglers, i.e., whether they would turn blind eye to torture.



 

He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003) (A76-280-045); reversing IJ’s adverse credibility finding and remanding; W.FLETCHER; declined to extend by Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005); distinguished by Chen v. Ashcroft, 362 F.3d 611 (Mar. 30, 2004).


Credibility/ Translation. Adverse credibility determinations of IJ and BIA, who disbelieved a Chinese national’s claim that his wife had been subjected to forced sterilization for violating China’s strict birth control policy, was not supported by reasonable, substantial and probative evidence; alleged problems with alien’s testimony, including fact that he had indicated that sterilization procedure was performed “a little while” after his and his wife’s arrival at hospital, were satisfactorily explained, inter alia, by IJ’s decision not to wait for a translator who was fluent in the alien’s native Chinese dialect and to instead proceed with aid of translator who spoke Mandarin, a language that alien had studied in school.




 


Colombia




Chronology

 

Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005)

Reyes-Guerrero v. INS, 192 F.3d 1241 (9th Cir. 1999)

Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999)





✔ Affirmed





✘ Not Affirmed

 

Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005) Footnote A77-421-768); upholding denial of asylum and withholding of removal, but remanding based on BIA’s incorrect “acquiescence” standard for CAT; Colombian businessman who defaulted on his business loans was pressured by his lenders, who were narco-traffickers, to participate in a money laundering scheme. Alien’s offer to give his house, car and business to pay off the loan was rejected, and fearing death, he and his wife fled to the United States. The court upheld the denial of asylum and withholding, finding that “business owners in Colombia who rejected demands by narco-traffickers to participate in illegal activity” was too broad to qualify as a particularized social group, and that there was no evidence of imputed political belief; B. FLETCHER.



CAT/ Acquiescence. The court, citing to Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), again held that the standard set forth in Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), which required “government officials to be ‘willfully accepting’ of the feared torturous activities,” had been “overruled.” Under Ninth Circuit law, “a petitioner need only prove the government is aware of a third party’s tortuous activity and does nothing to intervene to prevent it.” (at 1172). Accord Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (homosexual from El Salvador granted CAT relief after being abused by private individuals).

Protected Grounds/ Particular Social Group, Not Found. “A social group of business persons in Ochoa’s circumstances is too broad to qualify as a particularized social group. There is neither a voluntary relationship nor an innate characteristic to bond its members. ... There is no unifying relationship or characteristic to narrow this diverse and disconnected group.” (at 1171, citing with approval, Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)).

Protected Grounds/ Imputed Political Opinion, Not Found. “Here the petitioners’ claim is based on a theory of political neutrality, i.e. rejecting the narco-traffickers extortionate demands was an act of political neutrality. ... [T]he record provides no evidence that the narco-traffickers imputed political beliefs to Ochoa.” (at 1172, citing Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997)).



 

Reyes-Guerrero v. INS, 192 F.3d 1241 (9th Cir. 1999) (A72-399-761); holding: (1) death threats against prosecutor were on account of his political opinion, supporting claim of well-founded fear of future persecution, and (2) INS failed to rebut presumption of well-founded fear of future persecution; petition granted; B. FLETCHER.


Persecution/Threats. Death threats against Colombian prosecutor on behalf of criminal defendants charged with scheme to embezzle funds from government pension plan and divert it to political party were on account of prosecutor’s political opinion, supporting his claim for asylum based on well-founded fear of future persecution, where defendants were high-ranking members of their party, prosecutor was member of opposition party, prosecutor was told he would pay for damage done to defendants’ party, and death threats continued long after defendants were convicted.

Past Persecution/ Failure to Rebut; Country Reports, Use Of Permitted. INS failed to rebut presumption that Colombian prosecutor had well-founded fear of future persecution, based on death threats on behalf of persons he had prosecuted, for purposes of asylum claim, inasmuch as 1994 State Department Country Profile for Colombia indicated that prosecutors had been assassinated and did not indicate any improvement, and letter from secretary-general of union of judicial employees included list of judges and judicial employees murdered since prosecutor fled.



 

Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999) (A72-667-220); reversed and remanded; REINHARDT; declined to extend by Pal v. INS, 204 F.3d 935 (9th Cir. 2000).

 

Credibility/ Opportunity to Explain. When BIA decides an asylum case based on an independent, adverse credibility determination, contrary to that reached by IJ, it must, in order to comply with due process clause, give alien an opportunity to explain any alleged inconsistencies that it raises for the first time.

Evidence/ Corroboration Not Required. Asylum applicant is encouraged but not required to provide corroborating documents in order to establish claim of well-founded fear of persecution.

Due Process/ Notice of Adverse Credibility. BIA violated due process clause when, after IJ had found alien’s testimony credible but had denied asylum on other grounds, BIA affirmed denial on credibility grounds;


 


Congo (Democratic Republic of Congo)




Chronology

 

Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004)





✔ Affirmed





✘ Not Affirmed

 

Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004) (A78-165-833); reversing and remanding based on conclusion that if an asylum applicant’s testimony on a particular issue is not found incredible for eligibility purposes, the testimony must be accepted as credible for exercises of discretion; Alien unsuccessfully applied for asylum in Canada; his application was denied because he was found to be a persecutor. RYMER.


Credibility/ As Applied to Discretion. “[I]f an applicant’s testimony on an issue is accepted for purposes of determining whether he is statutorily eligible for asylum, the same testimony must also be accepted for purposes of determining whether he is entitled to asylum as a discretionary matter.” (at 1142).

“The difficulty is that [petitioner] cannot both be a member of SNIP who provided no political information and a member of SNIP who provided information. The IJ and the BIA were obliged to accept [petitioner]’s testimony as true because there was no explicit adverse credibility finding. Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000). This means that for all purposes in the asylum proceeding, [petitioner] was a member of SNIP but never provided SNIP with political information.” (at 1138).

Discretion/ Administrative Exercise Of, Not Upheld. “Although merely being a member of an organization that persecutes others is insufficient to render an alien statutorily ineligible for asylum as a persecutor, ... a factor that falls short of the grounds of mandatory denial is not for that reason alone excluded from consideration as an adverse factor for the discretionary, entitlement prong.” (at 1139).

Discretion/ Relevant Factors. Relevant factors include separation from spouse, litigating in successive forums, “membership in a terrorist organization,” as well as the factors set forth in Matter of Pula, 19 I&N Dec. 473–74 (BIA 1987), which include: “whether the alien passed through any other countries or arrived in the United States directly from his country; whether orderly refugee procedures were available to help the alien in any country he passed through; whether he made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; his living conditions while in the third country; his safety while in the third country; the potential for long-term residency in the third country; whether the alien has relatives legally in the United States or other personal ties to this country which motivated him to seek asylum; the extent of the alien’s ties to any other countries where he does not fear persecution; and general humanitarian considerations, such as his age or health.” (at 1140, n.6).

Discretion/ Where Withholding Granted. In Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007), the Board also took a narrow view of the ability to justify a denial of asylum in the exercise of discretion where withholding of removal is granted. In that case, the IJ relied on the alien’s having “provided incomplete or inaccurate information in his asylum application and initial testimony regarding his employment and places of residence in this country, as well as his record of arrest and conviction.” Id. at 166. The Board remanded the case for the Immigration Judge to “reconsider the denial of asylum to take into account factors relevant to family unification.” Id. at 176.




 


Cuba




Chronology

 

Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996)





✔ Affirmed





✘ Not Affirmed

 

Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996); remanding upon finding petitioner would face severe punishment for illegal departure; REINHARDT; distinguished by Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000); Al-Harbi v. INS, 242 F.3d 882 (9th Cir. 2001).


Persecution/ Prosecution. Punishment for the crime of illegal departure qualifies as persecution for asylum eligibility purposes when the punishment would be severe. “A petitioner may establish persecution within the meaning of the statute if he can show that he left or remained away from his homeland for political reasons and that, if returned, he would be subject to severe punishment, whether as a result of criminal prosecution or otherwise.” (at 429). Three years imprisonment, the sentence for persons convicted of unlawful departure in Cuba identified in the State Department’s report, is undeniably a severe sentence and qualifies as persecution. (at 431).




 


Egypt




Chronology


        Morgan v. Mukasey, 529 F.3d 1202 (9th Cir. 2008)

        Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), pet for rhrg en banc denied, 504 F.3d 973 (9th Cir. 2007)

Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004)

Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004)

Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004)





✔ Affirmed

 

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), pet for rhrg en banc denied, 504 F.3d 973 (9th Cir. 2007); upholding the denial of relief to an Egyptian woman. Her view was: “a woman should have her own opinion and should have her own way of living.” (at 649). She also dressed in western attire, such as mini skirts, and did not wear a hajib. Due to her opinions and dress, she encountered problems with the men in her family and also other Islamic men. She testified that her father and brothers would beat her, and that members of a nearby mosque would call her names and talk to her in a vicious way. She also received phone threats from Muslim groups such as Jama Islamia whose members would intercept her while walking home. The police were not able to provide any effective response. After she had been in the U.S. and continued to set forth her opinions, in particular at a meeting in San Francisco, she “received a call...indicating that someone was looking for her and that they would ‘teach her a lesson’ if she returned.” HAWKINS.


Bars to Asylum/ One Year Bar, Found. In this decision on rehearing, the court held that it has jurisdiction to review denials of asylum on the basis of an untimely filed application. The respondent had entered the U.S. in September 1999, and she did not file her asylum application until June 2001. Her women’s rights activities in the U.S. and further threats received because of those activities were found not to be sufficient to upset the administrative finding regarding a lack of “changed circumstances.” Footnote

Withholding of Removal/ Denied. The court emphasized the much higher showing required for withholding of removal as opposed to asylum. The court did not find past persecution, and it held that the more severe threats made against Ramadan since her entry into the United States “at best support the inference” that she has a well-founded fear of future persecution for purposes of withholding, “they do not compel it.”



 

Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004) (A75-519-415); rejecting IJ’s implicit adverse credibility determination, but upholding the IJ’s finding of no past persecution and no well-founded fear of future persecution; petition denied and dismissed; BEEZER (PREGERSON, dissenting in part, argues that Coptic Christians are a significantly disfavored group in Egypt and that petitioners suffered past persecution).


Credibility/ Articulable Basis. The IJ made an impermissible implicit adverse credibility finding by stating he was troubled by certain inconsistencies in the record that made petitioner’s credibility suspect.

Protected Grounds/ Religion. “[Alien] testified that he feared persecution because as ‘a Coptic Christian I’ve been persecuted everyday [sic], mentally, maybe some physically’ ... he was struck by Arabic teachers ‘[w]ith a whip if he had it, if he doesn’t have a whip with his hands in my face.’ ... Christian children were often struck for no reason. ... [a] brother had to seek medical attention because [assailants] ‘opened his head with a rock.’ ... [A relative allegedly] was killed because he was an outspoken Coptic Christian.” (at 670–71).

Persecution/ Discrimination. Notwithstanding the court finding the aliens to be credible, they had not established the objective component of the claim because “‘[d]iscrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’ within the meaning of the Act.’” (at 672–73) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (“where private discrimination is neither condoned by the state nor the prevailing social norm, it clearly does not amount to ‘persecution’ within the meaning of the Act.”)). Petitioner’s evidence and testimony established that Coptic Christians are subject to discrimination within Egypt on account of their religion, but such discrimination does not rise to the level of persecution. (at 673).

Well-Founded Fear/ Continued Family Presence. Continued presence of family members in Egypt, who have been able to obtain university educations and employment after graduation, demonstrates that petitioner does not have an objectively reasonable fear of future persecution. (at 673).

Protected Grounds/ Disfavored Group. The majority did not accept the dissent’s assertion of disfavored group membership by noting that while there was certainly “discrimination” against Coptic Christians, it did not rise to the required level to establish the existence of a disfavored group.




✘ Not Affirmed

 

Morgan v. Mukasey, 529 F.3d 1202 (9th Cir. 2008) (A95-294-903); reversing a denial of relief primarily on credibility grounds. The respondents were Coptic Christians. They reported significant violence and threats made against them and family members by Muslim extremists. The IJ denied relief on the basis of eight material inconsistencies in the testimony. The court found that they were either not in fact inconsistent or were the product of impermissible speculation. NOONAN.


Evidence/ Testimony, Exclusion Of. The court found error in the IJ’s decision to exclude the testimony of the respondents’ children because they “were not on the pretrial witness list.” (at 1210). This “was not reason for their exclusion once their mother’s credibility was put in doubt and they were in a position to corroborate her.” Id.



 

Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (A72-441-899); reversing BIA’s denial of motion to reopen upon finding submitted evidence established changed circumstances in the treatment of Coptic Christians in Egypt and a prima facie basis for relief; remanded; REINHARDT.


Motion to Reopen/ Changed Circumstances. Evidence regarding changed circumstances will almost always relate to the initial claim, and the critical question is whether the new evidence is qualitatively different from the evidence presented at the hearing and that circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution. (at 945).

Motion to Reopen/ Corroborative Evidence. The court required nothing more than alien’s affidavit and a supportive report from a private human rights organization. Reports of events occurring after petitioner’s hearing, including mass arrests and torture of approximately 1,000 Egyptian Coptic Christians, murders of numerous Coptic Christians on account of religion, the arrest of the Secretary-General of the Egyptian Organization for Human Rights, and of a growth in the tax that Christians pay to be defended from Muslims, together with a declaration of six separate incidents of violence against petitioner’s family members in Egypt—all of which occurred after his asylum hearing—was sufficient to establish changed circumstances warranting the reopening of his case.

Well-Founded Fear/ Ten Percent Rule. “A well-founded fear does not require proof that persecution is more likely than not; even a ten percent chance of persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).” (at 948).



 

Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004) (A75-521-788); remand based on the absence of an effective waiver of counsel; HAWKINS.


 


El Salvador




Chronology

 

        Zetino v. Holder, _F.3d_, 2010 WL 555334 (9th Cir. 2010)

        Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010)

        Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008)

        Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004)

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161 (9th Cir. 2002)

Rodas-Mendoza v. INS, 246 F.3d 1237 (9th Cir. 2001)

Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001)

Ernesto Navas v. INS, 217 F.3d 646 (9th Cir. 2000)

Rivera-Moreno v. INS, 213 F.3d 481 (9th Cir. 2000)

Leiva-Montalvo v. INS, 173 F.3d 749 (9th Cir. 1999)

Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999)

Aguilar-Escobar v. INS, 136 F.3d 1240 (9th Cir. 1998)




✔ Affirmed

 

        Zetino v. Holder, _F.3d_, 2010 WL 555334 (9th Cir. 2010) (A94-175-859); affirming the denial of relief. The decision primarily discusses the discretionary basis of the BIA to refuse to consider an untimely brief. The claim was nonetheless considered on the merits. The basis of the claim was that “in 1993 six members of his family had been killed by gunfighters attempting to steal his grandfather’s land.” Some farmers who were supposedly his grandfather’s friends; they wanted more land so they could cultivate. Respondent also testified that he feared gang members would attempt to recruit or harm him and that he would face potential “revenge” if he were to return. He further expressed concern that he had “tattoos . . . and they would mistake him for being a rival gang member.” Credibility was not at issue. The case was decided under the REAL ID Act standards, but this was not significant in terms of the holding. TALLMAN.


Nexus/ Motive Not Found; Persecution/ Criminal Motivation. The court concurred that, with respect to the killing of his relatives, the incidents were “clearly a personal dispute.” The court affirmed that neither the killing of his relatives nor his fear of the gangs bears a nexus to a protected ground. The respondent implied that the only motivation for the murders was the lang itself. “An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”


Due Process/ Untimely Filing. The respondent “cannot point to anyone but himself to explain the untimeliness. . . . We cannot conclude that by missing the deadline he had successfully extended he somehow deprived himself of due process. The court found that Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) was no longer “good law,” where no jurisdiction permitted the review of a denial by the Board to sua sponte review an untimely motion to reopen.



 

Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008)(A 98-298-858); affirming a denial of asylum and related relief to an individual who, along with his family, had been mistreated and threatened by a criminal gang. Respondent’s brother had been robbed and beaten. The gang continued to pursue him for “revenge” even though there had been no contact with law enforcement authorities. An older brother was shot and killed and the “gang had sent many anonymous notes threatening the family.” A younger brother was robbed and harassed. The respondent himself was beaten, threatened, and robbed. WALLACE. Footnote


Protected Grounds/ Family. The court upheld the denial of relief on the basis of the “mother’s continued safety in his hometown.” This was so even with the recognition “she is a female and the Maras gang targeted young males in El Salvador and not older females” in that the testimony had been that the “entire family was targeted by the Maras.”


Protected Grounds/ Particular Social Group, Not Found; PSG/Gangs. The court found that the proposed PSG of “young men in El Salvador resisting gang violence” did not have the requisite degree of “social visibility” nor “well defined boundaries,” nor could the “group be defined with sufficient particularity to delimit its membership.” The court cited with approval Matters of A-M-E, 24 I&N Dec. 69 (BIA 2007) and Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008).


Protected Grounds/ Political Opinion, Not Found. Notwithstanding the assertion that respondent was “anti-gang and that he manifested this opinion in expressing resistance against the Mara,” this argument was not accepted. “Resistance to a gang’s recruitment efforts alone [does not] constitute political opinion.” Rather, respondent “was victimized for economic and personal reasons.” The court cited with approval from Ochave v. INS, 254 F.3d 859, 864 (9th Cir. 2001): “asylum generally is not available to victims of civil strife, unless they are singled out on accord of a protected ground. . . persecution on account of political opinion. . . cannot be inferred from acts of random violence by [people] who may have divergent political views.” “Without evidence of an actual political opinion or motive in Santos-Lemus’s or the gang’s actions, his claim fails.”


CAT/ More Likely Than Not, Not Found; Public Official. Again in denying this claim, the court emphasized that “his mother had remained unharmed.” The respondent’s “fears would be committed by private individuals, not the government, and the Salvadoran government was not even aware that [respondent and his brothers] had been targeted by the gang because the incidents were never reported. . . .”



 

Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (A92-085-513); affirming a denial of relief based on a claim of membership in a particular social group (PSG). The respondent came to the U.S. at age four as an LPR. He joined a gang at age fourteen. The gang engaged in violence. “Arteaga testified that while some members of his gang committed crimes, such as trading in drugs and stealing, he did not.” (at 943). Still, he was convicted of theft and possession of drugs. “Boiled down, his argument rests ultimately on his claim that his tattoos mark him for potential persecution.” (at 945). Credibility was not an issue. TROTT.


Protected Grounds/ Particular Social Group, Not Found; PSG/Gangs. Even assuming the tattoos to be “indelible,” the court agreed with Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), that “tattooed gang member” would be “overbroad” notwithstanding the social group being defined under different formulations. (at 945). This would be so even assuming he had left the gang by the time of his asylum application. “One who disassociates himself from a group may fall analytically into a definable category, but the category of non-associated or disaffiliated persons in this context is far too unspecific and amorphous to be called a social group, whether the person is tattooed or not.” Matter of A-M-E, 24 I&N Dec. 69 (BIA 2007) (at 946). With regard to the alternative argument of “his unique and shared experience as a gang member,” this would not be considered an “innate” characteristic. (at 945). The court distinguished other case law where such was held to constitute a PSC. Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000)(finding gay men with female sexual identities as a social group) or Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) (identifying members of a family as a social group).


Protected Grounds/ Family. Citing to Sanchez-Trujillo v. INS, 801 F.2d 1572, 1576 (9th Cir. 1986), the court stated that membership in a family is deemed as an “innate characteristic which is so fundamental to the identities or consciences of its members they cannot or should not be required to change it.” (at 944).


Refugee Law/ Purpose Of. “To do as Arteaga requests would be to pervert the manifest humanitarian purpose of the statute in question and to create a sanctuary for universal outlaws.”(at 946).

Aggravated Felony/ Theft. The court rejected the argument that in order for the theft conviction to be deemed an aggravated felony, “the intent to permanently deprive another of property” must be demonstrated. The court relied on Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (9th Cir. 2007), which holds that a theft conviction can be an aggravated felony, “even if such deprivation is less than total or permanent.” (at 947) (internal quotation marks omitted). The court distinguished U.S. v. Vidal, 504 F.3d 1072 (9th Cir. 2007), which held that such conviction under the California theft statute would not be an aggravated felony because one could have been convicted as an accomplice after the fact because the record of conviction established that the conviction was for “taking a vehicle with the intent to either permanently or temporarily deprive the owner of possession-a theft offense.” (at 947).

CAT/ More likely Than Not, Not Found. The court’s recognition of information in the record such as a statement from a “[m]agistrate” that “if [Arteaga were] deported, he will suffer indefinite detention and likely death or physical abuses at the hands of rival gangs and detention authorities will not provide him with adequate protection,” (at 940, 949), was not found to meet the requisite burden of proof that the risk of torture was more likely than not.



 

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161 (9th Cir. 2002) (A20-527-254); upholding IJ’s denial of special rule cancellation under NACARA based on alien’s failure to file an asylum application; decided on equal protection and due process grounds without addressing merits of asylum claim; petition denied; W.FLETCHER.



 

Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001) (A29-458-905); denying petition based on finding that persecution was not related to alien’s affirmative political beliefs; TASHIMA; (B.FLETCHER, dissenting, argued that the political component outweighed the personal in finding persecution on account of imputed political opinion, in that politician’s political status during his race for mayor would have been greatly affected by news of his commission of rape and that he was able to enlist the assistance of the local police to suppress the report.); distinguished by Ventura v. INS, 264 F.3d 1150 (9th Cir. 2001).


Protected Grounds/ Imputed Political Opinion, Not Found. Violence and threats against alien, for reporting to police that a local ARENA party leader had raped his aunt, were on account of a personal matter and not on account of any imputed political opinion. (at 1051).


Nexus/ Motive Not Found. Molina argues that his reporting of the rape of his daughter was construed “as an act against the ARENA party” and that the significant physical mistreatment he suffered “was on account of an imputed political opinion.” (at 1051). “Molina does not assert that he ever expressed views that may have been construed as political opposition ... Nor is Molina a member of a large, politically active family, many of whom may have already been persecuted for their political beliefs.” (at 1051–52).


Nexus/ Retribution, Not On Account of Protected Ground. Disappearance of alien’s aunt was due solely to her reporting of the rape, and there was no evidence that ARENA leader’s supporters presumed sympathy on her part or alien’s part for an opposing political view. “The mere fact that Salazar was a politician does not compel a conclusion that Molina was persecuted on account of any political opinion his persecutors imputed to him. Salazar’s part-time profession as a politician is merely incidental.” (at 1052).



 

Rivera-Moreno v. INS, 213 F.3d 481 (9th Cir. 2000); upholding IJ’s ruling that alien’s expression of political neutrality to guerrillas was not causally connected to bombing of her house, and she thus was not persecuted because of her neutrality; petition denied; ALDISERT.


Protected Grounds/ Political Opinion/Neutrality. Asylum applicant’s expression of political neutrality to guerrillas in Perquin, El Salvador in 1980, when they forced her to provide nursing services to wounded, was not causally connected to bombing of her house by guerrillas in San Miguel, El Salvador in 1989, which followed guerillas’ discovery that she was nurse and her refusal to join them, and she thus was not persecuted because of her neutrality; record contained no evidence that applicant expressed political neutrality in the eight years between the two incidents, and she expressed no political views to guerrillas in 1989.



 

Aguilar-Escobar v. INS, 136 F.3d 1240 (9th Cir. 1998) (A29-276-080); holding that any persecution suffered by alien because of her government job was not on account of race, religion, nationality, membership in particular social group, or political opinion; mandate stayed to allow application for NACARA relief; GOODWIN.


Nexus/ Motive Not Found. Any persecution suffered by alien in El Salvador because of her government job of bus dispatcher, her husband’s position as police officer, and another relative’s position as mayor of town, and because of armed conflict between police and government forces on the one hand and anti-government guerillas on the other, was not on account of a protected criteria that government could not control.




✘ Not Affirmed

 

        Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010) (A36-330-584); reversing and remanding a claim with regard to protection under the CAT. Respondent had been convicted of robbery in 1990 and “petty theft with priors” in 2003. He was a lawful permanent resident. Finding that review of the denials of asylum and withholding of removal had not been properly preserved to allow their consideration, the court considered only the respondent’s CAT claim. The respondent had “expressed fear that police and gangs will harass, persecute, and kill him because his multiple tattoos and status as a deportee from the U.S. will mark him as a gang member even though he is not.” The Department of State country report had been admitted to the record but had not been specifically mentioned by the Board. The respondent also presented the report and testimony of his expert that he would be at great risk if he was to return. Credibility was not at issue. PREGERSON.


REAL ID Act/ Reliance On Prior Case Law. As with Velasco-Cervantes v. Holder, (9th Cir. 2010), the court made no reference to the REAL ID Act and relied on pre-REAL ID Act case law, despite the fact that the application was filed after the effective date of the REAL AD Act.


CAT/ Country Conditions. “Even if the IJ correctly concluded that Aguilar’s testimony by itself was insufficient to meet his burden under CAT, this conclusion would not be dispositive because a CAT applicant may satisfy his burden with evidence of country conditions alone” (emphasis in orginal). Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (holding that a negative credibility finding for purposes of an asylum claim does not preclude relief under CAT where documented country conditions corroborate a claim of torture”).


CAT/ Acquiescence. “There is evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir. 2003) (there is no requirement to show “actual knowledge or willful acceptance of torture; awareness and blindness will suffice”). “We do not mean to suggest that a gang member can never be deported to El Salvador. On remand, we merely hold that the BIA and IJ must consider all the evidence presented by Aguilar and state those conclusions in the record.”


Waiver/ 212(c). Because respondent had been convicted of an aggravated felony “crime of violence,” he was found ineligible for a waiver under section 212(c), as it does not have a “statutory counterpart with a ground of inadmissibility.” The court cited Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc), upholding Matter of Brevia, 23 I&N Dec. 766 (BIA 2003).



 

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009) (A 78-461-226); granting a petition for rehearing and withdrawing the published decision of Delgado v. Mukasey, 546 F.3d 1017 (9th Cir. 2008) which had affirmed a denial of relief. The Court now remands the case on the basis that the respondent’s criminal record, which contained three felony convictions for drunk driving - “one involved an injury accident, and two resulted in prison terms of less than five years [sentences of 12, 16, and 24 months]” - did not amount to “particularly serious crimes” disqualifying the petitioner from asylum. CANBY; Dissent and concurrence by BERZON.


Bars to Asylum/ Particularly Serious Crime, Not Found. The court stated its disagreement with Alaka v. AG, 456 F.3D 88 (3rd Cir. 2006) that a “particularly serious crime” offense must be an aggravated felony. It accepted the holding in Matter of N-A-M-, 24 I&N Dec. 336, 338-39 (BIA 2007). The court found that it had jurisdiction to review the “particularly serious crime” determination with regard to asylum claims, citing Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007), and held that the Board’s finding of “particularly serious crime” in this case was an abuse of discretion under Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). The court briefly mentioned Anaya–Ortiz v. Mukasey, 553 F.3d 1266, 1275-76 (9th Cir. 2009), in which it upheld the administrative finding of ineligibility because of a conviction for a “particularly serious crime,” to note that the BIA is permitted “to consider all reliable information in making a PSC determination.” But see amended decision in Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010). In addition, the Court determined that it lacked jurisdiction to review the “particularly serious crime” determination with regard to withholding of removal.


CAT/ More Likely Than Not, Not Found; Country Reports/ To Rebut CAT claim. The denial of relief under CAT was affirmed. “Country reports indicate that conditions in El Salvador have improved significantly since Delgado left the country and there is no longer evidence of politically motivated violence, killings, or disappearance in El Salvador.” The court made such finding notwithstanding major problems which the respondent’s parents had previously experienced at the time of the civil war.



 

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (A77-973-761); remanding without addressing the merits of petitioner’s claim, based on the IJ’s use of an incorrect standard for CAT and withholding; Alien, a “homosexual male with a female sexual identity,” was brutalized by private individuals in El Salvador, and presented documentary materials to support the proposition that the government of El Salvador does not adequately provide protection, “detailing El Salvador’s hostile political and cultural climate towards male homosexuals with female identity.” (at 786); McKEOWN; (BYBEE, concurring, found the IJ had correctly stated the legal standard for acquiescence under CAT, but failed to address whether any public official might have been aware of the activity).


CAT/ Acquiescence. IJ’s inquiry as to whether petitioner feared torture by someone in the government or acting on behalf of the government, failed to address torture that may be inflicted with the consent or acquiescence of the government. (at 787). “If the torture is at the hands of private individuals, the [alien]’s burden is to show the government’s ‘consent or acquiescence,’ . . . [which] is not limited to ‘actual or willful acceptance’; the ‘willful blindness’ of government officials suffices. Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003).” (at 787).



 

Rodas-Mendoza v. INS, 246 F.3d 1237 (9th Cir. 2001) (A70-536-728); (1) determination that applicant’s fear of persecution was unreasonable in light of changed country conditions was supported by substantial evidence, and (2) finding that rape of applicant’s niece, after she came to the US, provided no reasonable basis for fear of persecution was supported by substantial evidence; additionally, fear expressed of a cousin was not found to be “on account of” one of the protected criteria because he was not under “government control” petition denied; SCHROEDER, WALLACE, and TALLMAN; distinguished by Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).


Well-founded Fear/ Continued Applicant Presence. Farabundo Marti National Liberation Front (FMLN) member who had been persecuted sporadically between 1978 and 1980, fled to the capital, San Salvador, and continued to participate in FMLN for 11 years without incident, demonstrating that she no longer had a well-founded fear of future persecution.

Persecution/ Random Attack. The rape of applicant’s niece, who was not an FMLN sympathizer, was isolated, random act of violence that was not motivated by animosity toward FMLN members and provided no reasonable basis for fear of persecution.



 

Ernesto Navas v. INS, 217 F.3d 646 (9th Cir. 2000); reversing and remanding upon finding (1) persecution of alien by members of El Salvador’s military was on account of political opinion, and (2) Court of Appeals would hold that applicant was statutorily eligible for asylum, rather than remanding to allow BIA to consider country conditions; REINHARDT; distinguished by Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000); Dinu v. Ashcroft, 372 F.3d 1041 (9th Cir. 2004); Molina-Morales v. INS, 237 F.3d 1048 (9th Cir. 2001); Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000).


Persecution/ Threats, Of Family. Applicant suffered “persecution” within meaning of asylum statute where he was threatened with death in El Salvador, two members of his family were murdered, he was shot at, and his mother was beaten.

Protected Grounds/ Political Opinion, Found. Persecution of alien by members of El Salvador’s military, including death threats, shooting at him, murdering his aunt and uncle, and beating his mother, was on account of his political opinion. The government conceded that the murder of his uncle was political; his aunt had been married to member of Frente Farabundo Marti para la Liberacion Nacional (FMLN), soldiers who murdered aunt were aware that alien had distributed political materials, and soldiers’ actions were not motivated solely by desire to avoid prosecution.



 

Leiva-Montalvo v. INS, 173 F.3d 749 (9th Cir. 1999) (A73-754-865); (1) substantial evidence did not support determination of BIA that alien did not suffer persecution in El Salvador on account of his political views; (2) Government failed to rebut presumption that alien had well-founded fear of future persecution; and (3) alien was entitled to withholding of deportation; petition granted; KRAVITCH.


Protected Grounds/ Political Opinion, Found. Substantial evidence did not support determination of BIA that asylum applicant did not suffer persecution in El Salvador on account of his political views; alien testified that “Recontras” harassed, detained, threatened, and shot at him, that they were interested in him because of his older brothers’ previous affiliation with El Salvador’s guerillas, and that all his discussions with “Recontras” centered on politics and ideology.

Past Persecution/ Changed Conditions Not Found; Country Reports/ To Rebut Past Persecution, Insufficient. Government failed to rebut presumption that the applicant had a well-founded fear of future persecution; the State Department report describing improvements in El Salvador’s human rights record following 1992 Peace Accords did not show that conditions in El Salvador changed significantly between early 1995 and date of hearing.

Past Persecution/ Failure to Rebut. Alien was entitled to withholding of deportation to El Salvador, inasmuch as he presented evidence that “Recontras” had specifically threatened his life at least twice, creating presumption that he was entitled to withholding of deportation, and government failed to introduce sufficient evidence of changed country conditions to rebut presumption.



 

Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999) (A70-994-883); remanding based on unsupported determinations of the BIA that the interest in the applicant shown by guerillas in El Salvador did not amount to persecution, and that any persecution was not “on account of” actual or imputed political opinion; PREGERSON; distinguished by Chand v. INS, 222 F.3d 1066 (9th Cir. 2000).


Protected Grounds/ Imputed Political Opinion, Found. In proceeding on an alien’s applications for asylum and withholding of deportation, determinations of the BIA that the interest in the alien shown by guerillas in El Salvador did not amount to persecution, but rather to an interest by the guerillas in recruiting her, and that any persecution was not “on account of” actual or imputed political opinion, were not supported by reasonable, substantial, and probative evidence; though the alien’s mother and two sisters still resided in El Salvador, there was uncontradicted testimony by the alien that her cousins and their families were killed because the cousins were in the military, that the guerillas had sent applicant threatening notes, and that she did not agree with the guerillas’ opinion.





 


Eritrea




Chronology

 

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)

Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005)





✔ Affirmed

 

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006) (A79-243-418); affirming a denial of relief. There was no issue as to credibility. The respondent was a Jehovah’s Witness. She did not participate in the 1993 referendum on Eritrean independence and otherwise would not perform military service. As a result, her father’s business was “confiscated” and the family lost their housing. There was no claim to any physical abuse. There was the threat, as mentioned in the dissent, that because she would not serve, “the police were planning to take her into custody the very night she fled Eritrea.” CALLAHAN. Dissent by BERZON, attacking the IJ ad hominem for being “intemperate.”


Country Reports/ To Rebut Past Persecution, Sufficient. The majority cited extensively from the Department of State reports to presumably find that the objective component of the claim had not been made out.

Persecution/ Economic. The loss of the home and the father’s livelihood were found insufficiently egregious (even taking into account the testimony that a sister died of pneumonia due to cramped living conditions) to come within the rule of Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004) “mere economic disadvantage alone does not rise to the level of persecution.”

Persecution/ Forced Conscription. The court relied on the Department of State report, which did not establish that Jehovah’s Witnesses were singled out because of their religious beliefs. While “conscientious objectors may establish a persecution claim if they can demonstrate that they were selected for mistreatment because of their religious beliefs,” Canas-Segovia v. INS, 970 F.2d 599 (9th Cir. 1992), forced conscription or punishment for evasion of military duty generally does not amount to persecution. Although the refusal to serve in the military may be a religious practice, “this alone cannot satisfy the requirement of demonstrating his persecutor’s motive or intent.” Here there was no evidence of serious or disproportionate punishment fo refusing to serve in the military.




✘ Not Affirmed

 

Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (A77-954-387); granting withholding and CAT, and remanding for a discretionary grant of asylum based on finding (1) previous punishment by military officials constituted torture, (2) alien would likely face similar treatment, and (3) military punishments were torture, not a lawful method of punishment; approvingly cited to by the Attorney General in Matter of J-F-F-, 23 I&N Dec. 912, 917 (A.G. 2006); Alien sought relief on the basis of having “voiced his political opposition to the war” to his military superiors during military conflict with the Sudan, for which he suffered significant physical mistreatment as a result thereof. (at 1213). The IJ in denying relief, found him to be a “common deserter” and a “coward,” characterizations that were found by the court to be “impermissible speculation” under Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000); REINHARDT.


CAT/ Torture, Found. “The severe form of cruel and inhuman treatment to which Nuru was subjected by the Eritrean army falls well within the definition of torture set forth in the Convention. See Al-Saher [v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)] (holding that actions that were ‘specifically intended by officials to inflict severe physical pain on [the petitioner]’ constituted torture).” (at 1218). “[P]ast torture is ordinarily the principle factor on which we rely when an applicant who has previously been tortured seeks relief under the Convention,” (at 1218). “[T]he punishment he would likely receive constitutes torture, [and] the fact that he may be punished for desertion rather than, or in addition to his opposition to the Sudanese war, is of no consequence. ... [T]orture is never a lawful means of punishment.” (at 1220, emphasis in original). Hence, while “pain or suffering arising ... from lawful sanctions” is excluded from CAT, “a government cannot exempt torturous acts from CAT’s prohibition merely by authorizing them as permissible forms of punishment in its domestic law.” (at 1221). “In finding that Nuru was tortured, we also necessarily determined that the acts committed by the military rose to the level of persecution.” (at 1224).

Nexus/ Mixed Motive. “Although Nuru’s flight from his country (and possibly the military) might provide a substantial part of the motivation for the persecutory actions in which his government would likely engage on his return, there is little doubt that the political opposition Nuru expressed to the Sudanese war while in the military would also play a part in the future retaliatory conduct.” (at 1229).

CAT/ Internal Relocation. “[I]t will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country.” (at 1219).

Protected Grounds/ Political Opinion, Found. Even though it was a violation of military discipline to have spoken against the war with Sudan, and all deserters from the army would be subject to punishment; the court still found past persecution and a well-founded fear of future persecution “on account of” actual and imputed political opinion. See also Barraza-Rivera v. I.N.S., 913 F.2d 1443 (9th Cir. 1990) (finding that harm to an applicant drafted into the army and given an order to commit an atrocious act at the pain of significant punishment constituted a well-founded fear of future persecution on account of a protected ground). Accord, Tagaga v. I.N.S., 228 F.3d 1030 (9th Cir. 2000) and Ramos-Vasquez v. I.N.S., 57 F.3d 857 (9th Cir. 1995).




 


Ethiopia




Chronology

 

        Mengstu v. Holder, 560 F.3d 1055 (9th Cir. 2009)

        Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008)

        Hadera v. Gonzales, 494 F.3d 1154, (9th Cir. 2007)

        Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005)

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005)

Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004)

Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004)

Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004)

Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000)

Belayneh v. INS, 213 F.3d 488 (9th Cir. 2000)





✔ Affirmed

 

Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004) (A74-802-759); upholding IJ’s denial of asylum based on an adverse credibility determination; W.FLETCHER; distinguished by Elian v. Ashcroft, 370 F.3d 897 (9th Cir. 2004).


Credibility/ Inconsistencies, Material; Documents To Impeach, Permitted. Substantial evidence supported IJ’s determination that alien’s documents relating to his membership in the AAPO were possibly fraudulent, and that their genuineness went to the heart of his claim. The adverse credibility determination was further supported by material inconsistencies in testimony concerning the extent of his injuries and the circumstances of his wife’s rape.



 

Belayneh v. INS, 213 F.3d 488 (9th Cir. 2000) (A70-776-777); upholding denial of asylum based on a determination alien did not have a well-founded fear of persecution and was not deserving of humanitarian asylum; petition denied; THOMAS.


Persecution/ Not Rising to Level Of; Protected Grounds/ Imputed Political Opinion, Not Found; Nexus/ Motive Not Found. Substantial evidence supported decision of BIA that Ethiopian asylum applicant did not have well-founded fear of persecution based on her political views or any views imputed to her because of her association with her former husband, who had been colonel under government of Haile Selassie; only persecution suffered by applicant was brief detention over 20 years ago, there was no evidence alleged persecutors imputed to applicant her former husband’s views, applicant and former husband had been divorced over 15 years, and government of Ethiopia had changed twice in the interim.

Past Persecution/ Humanitarian Asylum, Denied. BIA did not abuse its discretion in denying asylum sought on humanitarian grounds by Ethiopian applicant, inasmuch as she never claimed to have been raped while being detained by authorities, there was scant evidence of attempted rape, she testified to attempted rape only in passing, and, although her adult son had been granted asylum, his claim rested on different factual predicate from hers, and country conditions had changed since his application was granted.




✘ Not Affirmed

 

        Mengstu v. Holder, 560 F.3d 1055 (9th Cir. 2009) (A96 146 985); reversing and remanding a denial of asylum originally based on respondent’s failure to demonstrate a lack of “nexus” between a protected ground and the mistreatment complained of. The court found that the respondent, an Ethiopan of Eritrean descent, was in effect denaturalized and obligated to leave Ethiopia at a time of considerable conflict with Eritrea. There was no claim of any physical violence or threat. The IJ found that Mengstu was not subject to past persecution because she had been a “war refugee.” The respondent then lived in Sudan for two years before coming to the U.S. without any particular problem after having been legally admitted to the country. The IJ had in the alternative denied relief on the theory of “firm resettlement” in Sudan. NELSON.


Protected Ground/ Ethnicity/War Refugee. “The Ethiopian-Eritreatn civil war was ethnically tinged.” The court cited a number of decisions for the proposition that “persons fleeing or remaining outside of their country for reasons pertinent to refugee status qualify . . . regardless of whether those grounds have arisen during the conflict.” Ndom v. Ashcroft, 384 F.3d 743, 753 (9th Cir. 2004); Sinha v. Holder, 556 F.3d 774 (9th Cir, 2009); Ahmed v. Keisler, 504 F.3d 1183, 1195 (9th Cir. 2007); Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004). “Like the Seventh Circuit, we find it “arguable that such a program of denaturalization and deportation is in fact a particularly acute form of persecution,” citing Haile v. Gonzales, 421 F.3d 493, 496-97 (7th Cir. 2005).


Bars to Asylum/ Firm Resettlement, Not Found. “DHS bears the initial burden of showing that the government of the third country issued to the alien a formal offer of some type of official status permitting the alien to reside in that country indefinitely,” citing Majaraj v. Gonzales, 450 F.3d 961, 976 (9th Cir. 2006) (en banc); Ali v. Ashcroft, 394 F.3d 780, 789-90 (9th Cir. 2005); Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 820-21 (9th Cir. 2004) (finding periods of residence of five and sixteen years in a third country without an offer of permanent legal status could not justify a finding of firm resettlement). The IJ’s finding was reversed because “the government did not meet this burden.”



 

Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008) (A97-369-313); reversing and remanding a denial of relief. The respondent sought relief based on her activities with the Oromo Liberation Front for which she reported significant abuse. The IJ gave 8 reasons for finding her incredible in what he described as a “herculean” well over 75 minute oral decision. (at *10). He also made comments about the court’s credibility case law, which was disputed upon its review. FLETCHER, W.


Credibility/ Opportunity to Explain; Hesitant to Respond; Implausibility; Discrepancy, Dates. The court rejected several reasons cited by the IJ for disbelief that the application was filed close to the one year filing deadline. Those reasons included the respondent having “deferred, delayed, or hesitated before answering certain questions,” the respondent mixing up the dates between the western and Ethiopian calendars, and the IJ’s belief that certain events were inherently implausible. (at 10, no. 3). An inconsistency relied upon could not stand in that an opportunity was not extended to “explain” such. Similarly, the court did not find that an inability to accurately restate certain terms that may reasonably be interrelated in a lay person’s mind, such as “arrest” and “custody,” constituted a justifiable basis for an adverse credibility determination.




        Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007) (A28-419-736); reversing and remanding based on the designation of the country of removal. The respondent argued that he was stateless. He had been born in Italy to parents of Ethiopian nationality. His parents had listed him as a citizen of Ethiopia on documents submitted to the government, including his successful application for lawful permanent residence. He had never actually been to Ethiopia and had traveled to the U.S. from Italy. However, Italy does not accord citizenship to those simply born there. FERGUSON.


Country of Removal/ Designation. “[A]n IJ must assign a country of removal.” (at 1156). When the respondent declines to designate a country of removal (step 1), the IJ must designate a country of removal by designating the country under 8 U.S.C. § 1231(b)(2)(D) of which the Respondent was: “a subject, national, or citizen” of the country (step 2). (at 1156). Only in the event that no country meets that definition may the IJ designate a country where the respondent has a “lesser connection” under step 3. (at 1157). The court concluded that “the only country that would have met any of these descriptions [of a lesser connection] is Italy.” (at 1158). One cannot “presume the petitioner’s citizenship without making a factual finding on that issue.” (at 1159). Footnote

Step 4 of Designation. Under Jama v. ICE, 543 U.S. 335 (2005), the IJ may only reach step 4 if no country meets the requirements for a designation under steps 1 through 3. (at 1157). In that event, the IJ may designate “another country whose government will accept the alien into that country.” Id. (at 1157). The court noted that if Italy rejected Hadera or if removal to Italy proved to be impracticable, inadvisable, or impossible, “the IJ might re-designate Ethiopia under step 4.” (at 1159). “Under step 4, Ethiopia would have to agree in advance to accept Hadera prior to such designation.” (at 1159, no. 2).



 

Abebe v. Gonzales, Footnote 432 F.3d 1037 (9th Cir. 2005) (en banc) (A72-693-580), rev’g 379 F.3d 755 (9th Cir. 2004); reversing en banc a panel decision, which had upheld a denial of relief in a case based on the risk of infliction of female genital mutilation (FGM) to a United States citizen daughter. Notwithstanding the court’s holding on the FGM issue, it went out of its way to evaluate the “political persecution argument” and to find that the denial on that basis was “supported by substantial evidence.” The case was remanded and the court stated that “we do not reach the issue of whether Petitioners, parents of a U.S. citizen child likely to face persecution in her parents’ native country, may derivatively qualify for asylum.” CLIFTON.


Derivative Claims/Asylum. Although not explicitly discussed by the majority, this decision must be viewed as an extension of Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. Apr. 21, 2005), vacated and remanded by 127 S. Ct. 57 (2006). As pointed out by the dissent, the suggestion of the BIA doing anything under the present facts but granting asylum upon the remand is “illusory” in that “the majority implicitly assumes that the parents of a U.S. citizen child are nonetheless entitled to claim derivative asylum relief based on the possibility that their citizen child would be subjected to FGM... Although the practice of FGM is considered persecution under our law there is no threat here since a U.S. citizen child cannot be deported to the country of parents’ birth, and the parents cannot claim an unrecognized form of derivative relief when they themselves cannot establish entitlement to asylum.” This point of view is underscored by the majority’s rejection of the “political persecution argument” which formed the only other part of the request for asylum. Footnote

Protected Grounds/ Imputed Political Opinion, Not Found; Nexus/ Motive Not Found. The lead respondent’s parents were supporters of the Derg government of Ethiopia. After it was overthrown, they had been imprisoned by the present government for “two weeks and were denied their civil rights, including the right to vote.” With the exception of one sibling who was “an active Derg supporter,” other siblings have remained in Ethiopia largely without incident.” The lead petitioner had received a scholarship to study abroad under the Derg, but under the current government his “passport was renewed so that he could remain abroad and continue to take advantage of the scholarship.” The lead respondent after coming to the U.S. joined “a political organization that opposes the” present government and in doing so “attended meetings, helped recruit members, and attended a conference.” Because he had not received any specific threats as a result of the above, the court found that he failed to demonstrate that he “would be persecuted because of his actual or imputed political activities.”

Persecution/ FGM. Although the respondent had made it clear that they would not want their daughter to be subjected to FGM; the facts that the Department of State materials reflected a high proportion of women having FGM and that the family would be “rejected...if she opposed this ritual” more than met the 10% test of a future risk.



 

Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005) (A75-261-419). See Somalia (Somali refugees refuted resettlement in Ethiopia).



 

Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004) (A75-534-002); remanding to the IJ after reversing an adverse credibility determination based solely on the submission of a counterfeit hospital report; TASHIMA.


Credibility/ Documents to Impeach, Rejected. An adverse credibility determination cannot be made solely because the alien submitted a counterfeit document, when there is no evidence the alien knew the document was counterfeit. (at 912).

Persecution/ Detention; Rape; Physical Harm. Alien claimed past persecution based on her participation in the All-Amhara People’s Organization (AAPO). She was arrested with other demonstrators in 1993 and detained for a month under harsh conditions (fed only once a day and not permitted to use restrooms). In June 1994, soldiers disrupted an AAPO meeting, arrested her, and detained her for six months, during which time she was interrogated regarding her involvement and beaten four or five times, as well as raped. She was hospitalized after an attempted suicide and released on bond when a family friend signed a document. A warrant was subsequently issued for her arrest.

Credibility/ Documents to Impeach, Permitted. Applicant presented an outstanding warrant for having jumped bail and a certificate from the hospital. INS Forensics concluded the hospital certificate was counterfeit, but didn’t challenge the authenticity of the warrant for petitioner’s arrest. The court noted that in Akinmade v. INS, 196 F.3d 951, 955–56 (9th Cir. 1999), it was held that the use of fraudulent documents to gain entry into the United States could not serve as a basis for an adverse credibility determination because the documents were merely incidental to the claim. “It does not follow from this holding, however, that the converse is necessarily true—that is, that the use of one allegedly fraudulent document that may go to the heart of an asylum claim automatically is determinative of an adverse credibility finding, especially when there is no indication or finding by the IJ that the petitioner knew the document was fraudulent.” The use of a fraudulent document may lend support to an adverse credibility finding, but is insufficient alone. (at 911).



 

Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004) (A70-064-558); reversing IJ’s adverse credibility determination and remanding to determine if past persecution was so atrocious as to make alien eligible for asylum even though there was little likelihood of future persecution; petition granted and remanded; GOODWIN.


Credibility/ Shame. Unwillingness to discuss her rape or to report it in her asylum interview and application could not form the basis of an adverse credibility determination when she stated she was “embarrassed” to have done so. (at 809). This was so even with what was considered by the court to have been “minor memory lapses and inconsistencies on issues at the periphery of her asylum claim.” None of the proffered reasons seriously call into question the fact and nature of alien’s rape.

Nexus/ Motive Found. Soldier’s statement during the rape that alien was getting her due because “You had your time in the previous government,” combined with a regular program of searching the family, was sufficient evidence that the attack was at least in part motivated by alien’s family’s authority and position in the Selassie regime and that this was not an isolated incident.

Past Persecution/ Changed Conditions Not Found. “A petitioner may be eligible for asylum on the basis of past persecution alone, ‘even where there is little likelihood of future persecution.’ Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993).” (at 812). A finding of changed country conditions to justify denial was not accepted even though the regime that had engaged in the persecutory acts had long since been overthrown.



 

Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000) (A72-439-539); remanding after finding alien’s rape by government official was motivated at least in part by her ethnicity; PREGERSON; (WALLACE, dissenting, argued that circuit precedent allowed implicit adverse credibility findings, and that here the IJ made a partial adverse finding, going specifically to the basis for the rape).


Nexus/ Motive Found; Persecution/ Rape; Credibility/ Corroboration Provided; Protected Grounds/ Ethnicity. Rape of alien by government official of Tigrean ethnicity was motivated at least in part by applicant’s Amharic ethnicity, and applicant thus was persecuted “on account of” ethnicity; she gave uncontroverted and credible testimony that she was raped because she was Amharic, no evidence supported conclusion of IJ that her testimony was speculative, and her testimony was corroborated by her sister’s testimony and by documentary evidence.

Past Persecution/ Individualized Analysis. Presumption that asylum applicant was eligible for asylum, created by finding of past persecution, could be overcome only by individualized analysis of her situation which would demonstrate that changed conditions in her country of origin had eliminated the basis for her individual fear of future persecution.




 


Fiji




Chronology

 

        Sinha v. Holder, 556 F.3d 774 (9th Cir. 2009)

Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006)

Kumar v. Gonzales, 439 F.3d 520 (9th Cir. 2006)

✘Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir. 2004)

Faruk v. Ashcroft, 378 F.3d 940 (9th Cir. 2004)

Lal v. INS, 268 F.3d 1148 (9th Cir. 2001)

Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000)

Tagaga v. INS, 228 F.3d 1030 (9th Cir. 2000)

Chand v. INS, 222 F.3d 1066 (9th Cir. 2000)

Lata v. INS, 204 F.3d 1241 (9th Cir. 2000)

Kumar v. INS, 204 F.3d 931 (9th Cir. 2000)

Pal v. INS, 204 F.3d 935 (9th Cir. 2000)

Singh v. INS, 134 F.3d 962 (9th Cir. 1998)

Prasad v. INS, 101 F.3d 614 (9th Cir. 1996)

Surita v. INS, 95 F.3d 814 (9th Cir. 1996)

Singh v. INS, 94 F.3d 1353 (9th Cir. 1996)





✔ Affirmed

 

Kumar v. Gonzales, 439 F.3d 520 (9th Cir. 2006) (A73-419-830); affirming a denial of relief. The respondents consisted of a family who were ethnic Indian. Mr. Kumar testified that he had been active in the Labor Party. Around the time of the 1987 coup, he “was punched in the stomach and around his face and verbally abused. He testified that he still has scars from this incident. One of the soldiers grabbed and squeezed Mrs. Kumar.” In the 1991 incident, Mr. Kumar testified that he was insulted and could no longer practice his religion outside of his home. In a 1994 incident, Mr. Kumar testified that he felt that he was the subject of a deliberate automobile accident because of his race. The majority found that, even with the cumulative effect of all the incidents, neither past persecution nor a well founded fear of future persecution had been established. SILVERMAN. There was a dissent by WARDLAW which found the events to constitute past persecution.


Persecution/ Not Rising to Level Of; Protected Grounds/ Ethnicity. The court cited cases of the proposition that “persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). “While the ethnic slurs and physical confrontations the Kumars endured are regrettable, the evidence presented does not compel reversal.” The decision refers to other holdings denying Fijian claims: Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) and Singh v. INS, 134 F.3d 962 (9th Cir. 1998).



 

Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (A72-130-508); upholding denial of asylum based on findings that (1) alleged incident in which alien was accosted by native Fijians could not alone support her asylum claim, and (2) alien was not prejudiced by alleged ineffective assistance of paralegal; petition denied; O’SCANNLAIN.


Credibility/ Inconsistencies, Material. Adverse credibility finding with regard to alien seeking asylum was supported by significant and relevant discrepancies between her asylum application, in which she alleged a group of youths accosted her for money and threw rocks at her, and her later testimony at evidentiary hearing that two men prepared to assault her sexually, and that she fled without being chased or having rocks thrown at her. “The only explanation that Lata offers for the discrepancy in the testimony is the embarrassment she felt at revealing the sexual nature of the second version in front of her family. At the evidentiary hearing, Lata was able to testify outside the presence of her family members; presumably she could have filled out her asylum application privately also, or offered an explanation of why she could not. She was also interviewed by the INS pursuant to her written asylum application, which provided her with an opportunity to amend her written statement, again outside the presence of her family if she so wished. Even if we were to find Lata’s explanation for the discrepancy in her two stories plausible, the IJ was clearly justified in questioning her credibility based on these two very different narratives. Lata’s explanation can hardly be characterized as compelling the opposite result.” (at 1245).

Well-Founded Fear/ Continued Applicant Presence. Alleged incident in which Fijian of Indian descent was accosted by native Fijians could not alone support her asylum claim, where she did not leave Fiji until many months after alleged incident occurred, she was never again troubled by native Fijians, and her sister continued to live without difficulty in same town.

Persecution/ Generalized Violence; Not Rising to level Of. General claims by Fijian of Indian descent of broad ethnic tension across Fijian society did not establish the persecution required for asylum claim.




 

Kumar v. INS, 204 F.3d 931 (9th Cir. 2000) (A71-948-710); upholding denial of asylum based on findings that (1) changed country conditions rebutted any presumption that alien possessed well-founded fear of future persecution, and (2) alleged incidents of persecution were not so severe as to constitute atrocious persecution that would override changed country conditions; petition denied; O’SCANNLAIN; distinguished by Chand v. INS, 222 F.3d 1066 (9th Cir. 2000).


Past Persecution/ Humanitarian Asylum, Denied. Alleged incidents of persecution of Fijian based on her Indian descent and political beliefs, consisting of soldiers stripping her in front of her parents and fondling her, threatening to kill her, dragging her from Hindu temple and demanding at gunpoint that she change her religion, and knocking her unconscious, were not so severe as to constitute atrocious persecution that would override changed country conditions so as to warrant grant of asylum for humanitarian reasons.



 

Pal v. INS, 204 F.3d 935 (9th Cir. 2000); upholding denial of asylum based on (1) finding that alien did not credibly establish eligibility for asylum were supported by substantial evidence, and (2) BIA did not violate alien’s due process rights when it rested its decision on certain grounds not referenced by IJ; petition denied; O’SCANNLAIN; distinguished by Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003).


Credibility/ Documents To Impeach, Permitted. Finding of BIA, that alien did not credibly establish eligibility for asylum based on alleged persecution in Fiji on account of her Indian descent, Hindu religion, and support for Labor Party, was supported by substantial evidence, including contradictions between her testimony and doctor’s letter as to when alleged rape occurred, and fact that, although same doctor purportedly wrote letters for alien and her husband, the signatures were strikingly different.

Credibility/ Inconsistencies, Material. Finding of BIA, that alien did not credibly establish eligibility for asylum based on alleged persecution in Fiji on account of her Indian descent, was supported by substantial evidence, including contradictions in her testimony as to when her jaw was broken by native Fijians. “Mrs. Pal claimed that her attackers were members of the military based only on the fact that they were carrying weapons. But her attackers were not wearing uniforms and during the turmoil following the coup, many individuals other than members of the military were likely carrying weapons. Moreover, though Mrs. Pal stated that the reason the military men who attacked her were not wearing uniforms was fear of getting reported, she simultaneously insisted that members of the military would never get in trouble even if reported.” (at 938).



 

Singh v. INS, 134 F.3d 962 (9th Cir. 1998) (A72-400-174); upholding denial of asylum based on finding that alien did not suffer persecution on account of her Indian origin or Hindu faith; petition denied; RHOADES; distinguished by Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000).


Persecution/ Generalized Violence. “Mere generalized lawlessness and violence between diverse populations, of the sort which abounds in numerous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum to everyone who wishes to improve his or her life by moving to the United States without an immigration visa.” (at 967). Evidence did not compel finding that alien suffered persecution in Fiji on account of her Indian origin or Hindu faith that would entitle her to asylum; ethnic Fijians’ alleged acts of throwing rocks at her house and stealing her property were not severe, alien did not leave Fiji until five years after coup which established regime favoring ethnic Fijians, and alleged destruction of alien’s temple was not directed toward her individually.

Persecution/ Not Rising to Level Of; Discrimination. “Persecution” upon which asylum can be based does not require bodily harm or threat to life or liberty, but it is an extreme concept that does not include every sort of treatment our society regards as offensive. Discrimination on basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to “persecution” upon which asylum can be based.

Well-Founded Fear/ Continued Applicant Presence. “Moreover, the record indicates that Petitioner’s circumstances in Fiji were not so severe that she had to flee; indeed, she waited until five years after the coup to leave. In fact, Petitioner has admitted that when she left Fiji she intended to return, but when she arrived in the United States she liked it here and decided to stay. (A.R. at 49.) One would expect that if Petitioner truly had experienced persecution, she would have left the country earlier and would have not intended to return. Significantly, Petitioner has stated that she left Fiji not because of persecution, but primarily because of a lack of educational and employment opportunities for her daughter.” (at 969).




✘ Not Affirmed

 

        Sinha v. Holder, 556 F.3d 774 (9th Cir. 2009) (A 79 286 957); reversing and remanding a denial involving a claim by an Indo-Fijian who had reported acts of violence directed at him and his family by ethnic Fijians. Credibility was not at issue. The IJ denied relief on several bases, including the lack of a “nexus” to a protected ground. The Court rejected the IJ’s conclusion that the violence was “random” as unsupported. BERZON.


Nexus/ Motive Found. “The use of ethnic slurs in the course of an attack ‘ amply establishes the connection between the acts of persecution and ethnicity.” Citing Baballah v. Ashcroft, 367 F.3d 1067, 1077 (9th Cir. 2003).


Protected Grounds/ Disfavored Group; Well-Founded Fear/ Pattern or Practice. “Under 8 C.F.R. 208.13(b)(2)(iii), if an asylum applicant can show that there is a sufficiently systematic ‘pattern or practice’ of persecuting members of the protected group to which he belongs in his home country, he need not show evidence of a particularized threat to him to make out a well-founded fear of future persecution.” See Quan v. Gonzales, 428 F.3d 883, 889 (9th Cir. 1999); Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004); Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir. 1999) . . . Evidence of the pervasive mistreatment of an oppressed ethnic group makes it easier, not harder, for an individual member of that group to meet his burden of showing that there is at least a ten percent chance that he will be individually targeted in the future. Chand v. INS, 222 F.3d 1066, 1076 (9th Cir. 2000).”


Persecution/ Of Family; Of Friends or Affiliates. “Harm to a petitioner’s close family members or associates may be relevant to assessing whether the petitioner suffered past persecution. Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004), Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998).”


        Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006) (en banc) (A71-788-923 et al.); reversing a denial of relief by a panel, 416 F.3d 1088 (9th Cir. 2005), and remanding. The panel had found that a four-year period of legal residence in Canada constituted “firm resettlement.” The family had applied for asylum but left before their application was acted upon because “they believed the grass was greener on the other side of the border.” The parents had received significant physical trauma including breaking “two of his ribs” and the wife being raped because of their asserted political activities.; RYMER. Footnote Dissent by O’SCANNLAIN.


Dissent. O’Scannlain, the author of the panel decision, agreed that a remand to consider changed country conditions in Fiji was warranted with respect to the Maharajs’ request for withholding of removal. But he restated his former believe that there had been firm resettlement in Canada and that the majority’s decision “invites abusive country shopping.” He then went on to note the practical impossibility of the DHS ever meeting the evidentiary standard set forth by the majority to establish firm resettlement. “Simply, the majority’s construct will hamstring DHS to an intolerable and unreasonable degree in future asylum proceedings.”

Bars to Asylum/ Firm Resettlement, Not Found. The DHS has to make at least a prima facie showing “that the alien had an offer of some type of official status permitting him to reside in the third country indefinitely.” If that showing is made, the burden then shifts to the alien to show that he is not firmly resettled.

Past Persecution/ Individualized Analysis; Country Reports, Use Of Rejected; Country Reports/ To Rebut Past Persecution, Insufficient. The panel had upheld the finding that the claim should be denied on the basis of changed country conditions. As to the father, the panel noted that he “failed to show that his minor role in an election 18 years ago . . . would motivate similar persecution today and the Country Reports contain evidence of a significant lessening of political and racial tension since 2000.” Nevertheless, the en banc court held that the Board did not make “make an individualized determination as to the effect of country conditions.” The general reference to the Department of State country reports was not found to be adequate.



 

Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir. 2004) (A77-382-105); remanding after finding evidence compelled conclusion that acts against alien cumulatively amounted to persecution and BIA had failed to separately address alien’s motion to remand for consideration of newly available evidence of worsened country conditions; HAWKINS; distinguished by Circu v. Ashcroft, 389 F.3d 938 (9th Cir. 2004).


Persecution/ Cumulative Effect. Fijian of East Indian descent who was attacked, robbed, stabbed on two occasions, and “bashed” by ethnic Fijians, was refused help by the police or treatment at the hospital; such physical harm, suffered on more than one occasion, compels a finding that the acts against him cumulatively amounted to persecution. See Chand v. INS, 222 F.3d 1066 (9th Cir. 2000).



 

Faruk v. Ashcroft, 378 F.3d 940 (9th Cir. 2004) (A72-169-696); remanding for the IJ to consider harm inflicted by applicants’ relatives, whom the government was unwilling or unable to control; B.FLETCHER.


Unable or Unwilling to Control/ Family as Source. “There is no exception to the asylum statute for violence from family members; if the government is unable or unwilling to control persecution, it matters not who inflicts it. See Rodas-Mendoza v. INS, 246 F.3d 1237, 1239–40 (9th Cir. 2001).” (at 943).

Persecution/ Cumulative Effect. The cumulative effect of the threats and attacks on interracial couple— including being abducted, beaten, physically attacked, verbally assaulted, assailed with rocks, losing his job, denied a marriage certificate, and seriously and repeatedly threatened—is sufficient to establish past persecution.



 

Lal v. INS, 268 F.3d 1148 (9th Cir. 2001) (amending 255 F.3d 998 (9th Cir. 2001) on reh’g) (A72-399-030); remanding based on finding that mistreatment suffered by asylum applicant and his family rose to the level of severity required by Matter of Chen; and changed country conditions information in the record was insufficient to rebut the presumption of fear of future persecution that arose once asylum applicant, an Indo-Fijian, had demonstrated past persecution; B.FLETCHER; (O’SCANNLAIN, dissenting, urges deference to the BIA’s permissible construction of its own asylum regulation and that the BIA’s denial of asylum was supported by substantial evidence).


Persecution/ Detention; Sexual Assault; Physical Harm. Based on the severity of the persecution alien’s family faced in Fiji, asylum application was properly considered under the Matter of Chen rule, which waived the requirement that an individual who has suffered past persecution must also demonstrate a well-founded fear of future persecution; family members endured repeated arbitrary detentions, painful and humiliating torture, sexual assault, threats, and severe intimidation on the basis of their political opinion and religious beliefs, and suffered the horror of attempting to escape but finding their way barred by government blacklists.

Past Persecution/ Changed Conditions Not Found; Failure to Rebut. Changed country conditions information in the record was insufficient to rebut the presumption of fear of future persecution that arose once asylum applicant, an Indo-Fijian, had demonstrated past persecution; although abuses of Indo- Fijians in Fiji may not have been widespread or may not have formed a clear pattern, evidence indicated that applicant and his family were among the unlucky few who were most vulnerable to abuse.

Past Persecution/ Individualized Analysis. “In such a situation, the BIA must ask whether the INS has shown through record evidence that the individual who suffered past persecution is among the general population that is not suffering from a ‘sustained pattern’ of human rights violations, or whether the applicant is among the unlucky few who are most vulnerable to abuse. Such an assessment must take account of the specific attributes of the past persecution on record. See Chand, 222 F.3d at 1079. In this case, there is abundant evidence that Mr. Lal was well-known as a leader and organizer for the Labor Party because of his prominent organizing work during the 1987 elections. In addition, we know from the record that Mr. Lal is not among those Indo-Fijians who were attacked at random in the aftermath of the coup. Instead, he was specifically sought at his home by government representatives, taken into detention, and tortured. Members of his family were attacked and harassed. Nor did the abuse cease during Fiji’s peaceful periods. Instead, Mr. Lal was sought and detained several times, even though he was no longer working as an organizer. His renown was such that his name was placed on a government blacklist. Perhaps most importantly, these events spanned a four year period. Like the applicant in Chand, then, Mr. Lal ‘has shown that he has continued to face significant problems in the years after the coup, even after the general conditions improved substantially.’ Id.” (at 1011).



 

Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000) (A71-781-355); (1) persecution by ethnic Fijian soldiers was motivated, at least in part, by protected grounds of race and imputed political opinion; (2) case would be remanded for reconsideration of changed country conditions in light of events that occurred in Fiji in 2000; and (3) Court of Appeals would take judicial notice of such events; remanded with instructions; HAWKINS; (O’SCANNLAIN, dissenting, discussed Congressional intent regarding the required showing of causation in asylum cases, also arguing that there should be no “recent events” exception to the review of facts on the record).


Persecution/ Detention; Physical Harm. Actions by ethnic Fijian soldiers of assaulting Indo-Fijian policeman in front of his family, holding him captive for a week, and beating him on street until he was bleeding and unconscious were motivated, at least in part, by protected grounds of race and imputed political opinion, as required for asylum, notwithstanding that soldiers were activated by fact that policeman had arrested high-ranking army officer for rape, where soldiers told policeman as they were beating him that Fiji was their country and that he “should go back to India.”

Nexus/ Motive, Evidence Standard; Motive Found. “The evidence in this case is strikingly similar to the evidence we relied on in Surita and Prasad. In particular, the soldiers’ statement that Gafoor should ‘go back to India’ is nearly identical to the soldiers’ statement in Surita that she and her family should ‘go back home to India.’ Although the soldiers in Surita went one step further and said they were looting the house because her family was Indo-Fijian, that fact is insufficient to distinguish the two cases. The soldiers made clear to Gafoor that his race and imputed political opinion contributed to their hatred of him and provided them with additional motive for their actions. That they did not tell him specifically that they were motivated by these factors is unimportant. As noted above, an applicant need not present direct evidence of a persecutor’s motives if there is circumstantial evidence. See Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812; Chand v. INS, 222 F.3d 1066, 1078 (9th Cir.2000). And the soldiers’ statements to Gafoor are unmistakable circumstantial evidence that they were motivated by his race and imputed political opinion. See Yazitchian v. INS, 207 F.3d 1164, 1167-68 (9th Cir.2000) (evidence that government agents accused petitioner of providing weapons to opposition party, called him a ‘Dashnak,’ and told him to leave Armenia compelled conclusion that he was persecuted on account of an imputed political opinion).” (at 651–52).



 

Tagaga v. INS, 228 F.3d 1030 (9th Cir. 2000) (A71-789-570); reversing and remanding based on finding that ethnic Fijian who had supported political party dominated by ethnic Indians had established eligibility for withholding by offering evidence that, inter alia, military officials had stated he would face trial for treason were he to return to Fiji; REINHARDT.


Well-Founded Fear/ Objectively Reasonable, Found; Protected Grounds/ Ethnicity. Fijian asylum applicant established well-founded fear of future persecution required for asylum eligibility, as well as higher burden required for withholding of deportation, by offering evidence that he had supported political party dominated by ethnic Indians even though he was ethnic Fijian, that while serving as military officer he had served six-month sentence for refusing to arrest Indo-Fijians, and that military officials had stated specifically that he would face trial for treason and that his life and freedom would be placed in danger were he to return to Fiji.



 

Chand v. INS, 222 F.3d 1066 (9th Cir. 2000) (A72-135-003); remanding based on findings that (1) harm suffered by Hindu Indian, who had been physically attacked by soldiers from Fijian military on three occasions, had been told after being robbed repeatedly that police were not interested in dealing with problem, and was forced to flee after his house and furniture were taken from him, rose to level of persecution; (2) persecution was based on his status as member of minority population of Indian Fijians; (3) no change of circumstances in Fiji sufficient to rebut presumption of future persecution was shown; and (4) alien established that it was more likely than not that he would be subject to persecution if he returned to Fiji; REINHARDT; distinguished by Shoafera v. INS, 228 F.3d 1070 (9th Cir. 2000); Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000); Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003).


Persecution/ Physical Harm; Robbery. Harm suffered by asylum applicant who had been victim of violence in his native Fiji on three occasions when he was physically attacked by soldiers from Fijian military, had been robbed repeatedly and testified that police were not interested in dealing with problem, and who was forced to flee after his house and furniture were taken from him and his wife, rose to level of “persecution” which could potentially establish his eligibility for asylum based on past persecution.

Persecution/ Cumulative Effect. Where an asylum applicant suffered physical harm as result of government- sponsored attacks on more than one occasion, and was victimized at different times over a period of years, the harm is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of past persecution making applicant potentially eligible for asylum, particularly when incidents are considered along with other acts to which applicant was subjected.

Nexus/ Motive Found. At least one of attacks, and displacement from his home, were on account of applicant’s race and religion, second attack occurred after applicant’s father challenged discriminatory enforcement of laws, and Fijian authorities were sometimes unwilling or unable to control crimes committed by ethnic Fijians.

Past Persecution/ Changed Conditions Not Found; Failure to Rebut. No showing was made that conditions in Fiji had changed sufficiently to rebut presumption of future persecution which arose after asylum applicant established that he had been subject to past persecution on basis of a protected ground in his native Fiji, and thus, applicant was eligible for asylum based on past persecution; while evidence indicated that, in general, conditions had improved after 1987 coups, they did not improve enough to protect applicant, who was a Hindu Indian, from several attacks by Fijian soldiers and ethnic Fijians, or from his eviction from his land and the seizure of his home, and racially motivated crime of type applicant faced remains a problem for some Indians in Fiji.

“It is not surprising that while racial or religious conditions may have improved generally, a number of individuals may continue to be subjected to acts of persecution on a regular basis. It may be true that in some regions of the country conditions are better than in others, or even that there are some villages in which persecution reigns and others in which it is entirely absent. Conditions may also differ depending on the social class or the political views of particular Indians. The State Department’s Profile itself states that Indians are ‘sometimes’ subject to harassment and that police are ‘sometimes’ unable or unwilling to control it.” (at 1079).



 

Prasad v. INS, 101 F.3d 614 (9th Cir. 1996) (amending and superseding 83 F.3d 315 on denial of reh’g) (A70-136-468); reversing and remanding based on findings that (1) Ethnic Indian petitioner was victim of past persecution on account of his political activity, and (2) he was entitled to benefit of presumption that he had a well-founded fear of future persecution that was unrebutted; THOMPSON; distinguished by Singh v. INS, 134 F.3d 962 (9th Cir. 1998).


Persecution/ Detention; Physical Harm; Economic. Ethnic Indian established past persecution on account of his political activity, where he was jailed twice, beaten and subjected to sadistic and degrading treatment while in detention, beaten by agents of government on another occasion, and dismissed from his job because of his activities on behalf of ethnic Indians, all of which occurred in climate of official prejudice against ethnic Indians.



 

Surita v. INS, 95 F.3d 814 (9th Cir. 1996) (A28-806-577); remanding based on finding that ethnic Indian suffered past persecution by ethnic Fijians sufficient to trigger the presumption of a well-founded fear of future persecution; PREGERSON; distinguished by Singh v. INS, 134 F.3d 962 (9th Cir. 1998).


Persecution/ Robbery; Economic; Protected Grounds/ Ethnicity. Ethnic Indian suffered past persecution because of her race, triggering regulatory presumptions of eligibility; she was robbed 10-15 times on her way to and from work by ethnic Fijians because she was Indo-Fijian, she reported robberies to police, who said they could not do anything, she was compelled to quit her job of more than ten years and was afraid to leave her home, and ethnic Fijian soldiers looted her family’s home because her family was of Indian descent, with the looting soldiers telling her family members that they should “go back home” to India.



 

Singh v. INS, 94 F.3d 1353 (9th Cir. 1996) (A70-147-755); remanding based on findings that (1) applicant and his family were entitled to asylum based on past persecution; (2) lack of evidence that persecution was committed by organized or quasi-governmental group did not preclude asylum; and (3) threats to life and freedom of asylum applicant and his family triggered regulatory presumption that they are entitled to withholding of deportation; PREGERSON.


Persecution/ Threats; Economic. Ethnic Indian was told that if he did not quit his job as the only Indo-Fijian general manager of a shipping company, he would be killed and his wife and daughter “finished off,” and shortly thereafter, loaded cargo pallets were dropped nearly on top of him as he walked on the wharf, ethnic Fijians threatened him at knife point and threatened his wife and daughter with burning their house, and threats continued after he quit and moved to a nearby town.

Unable or Unwilling to Control/ No Police Response. Lack of evidence that persecution was committed by organized or quasi-governmental group did not prevent applicant from establishing that he and his family were eligible for asylum; he reported each assault and threat to police, and, although he identified his assailants by name, police failed to respond to any of his crime reports, clearly indicating that police either could not or would not control ethnic Fijians who threatened applicant and his family.




 


France




Chronology

 

Siong v. INS, 376 F.3d 1030 (9th Cir. 2004)

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998)

Yang v. INS, 79 F.3d 932 (9th Cir. 1996)





✔ Affirmed

 

Vang v. INS, 146 F.3d 1114 (9th Cir. 1998) (A71-950-994). See Laos (Laotian petitioner who feared persecution in Laos and not France had firmly resettled in France with his parents).



 

Yang v. INS, 79 F.3d 932 (9th Cir. 1996) (cert denied, 519 U.S. 824 (1996)); regulation categorically precluding asylum for refugees who have firmly resettled in another country was not ultra vires; petition denied; HALL; distinguished by Vang v. INS, 146 F.3d 1114 (9th Cir. 1998); superceded by statute, accord Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003).


Bars to Asylum/ Firm Resettlement, Found. Laotian family who fled Laos in 1975 to Thailand and then to France as refugees for 14 years were firmly resettled in France, even though it was unclear whether they had ever applied or became eligible for permanent residence in France. 8 C.F.R. § 298.14(c)(2).




✘ Not Affirmed

 

Siong v. INS, 376 F.3d 1030 (9th Cir. 2004) (A71-947-830); finding prejudice from ineffective assistance of counsel and remanding to the board to grant motion to reopen; TASHIMA.


Persecution/ Threats. Death threats and attacks in France on four friends of petitioner who, like him, served CIA in Laos qualifies as persecution based on his activity fighting the Laotian communists. (at 1039).

Bars to Asylum/ Firm Resettlement, Not Found. Although Laotian petitioner’s residence in France was not “substantially and consciously restricted by the authority of the country of refuge,” (8 C.F.R. § 208.15(b)) —he was in fact a citizen of France— nevertheless, the persecution he feared was from Laotian government agents conducting political violence against Hmong refugees living in France, and petitioner had thus not found a haven from persecution and could not be found to have firmly resettled in France. See Yang v. INS, 79 F.3d 932, 939 (9th Cir. 1996); Ali v. Reno, 237 F.3d 591, 595 (6th Cir. 2001). (at 1040).


 


Georgia




Chronology

 

Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003)





✔ Affirmed





✘ Not Affirmed

 

Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) (A73-133-099); finding asylum eligibility based on documentary evidence of ethnic cleansing; Affirmed in part, reversed in part, and remanded; Alien’s subjective fear of future persecution if he was returned to section of former Soviet Georgia from which he fled when Muslim separatists gained control of area was objectively reasonable, and made him eligible for grant of asylum, based on uncontradicted evidence in record that separatists were currently in control of area and had engaged in systematic campaign of ethnic cleansing to eliminate all non-Abkhaz, such as alien, and on evidence that separatists had specifically targeted alien before his departure—involving threats, harassment, stolen property, and a pattern of general violence—even without a claim of physical violence to the alien. The court was heavily influenced by documentary evidence. Furthermore, the IJ should not have denied asylum based solely upon finding alien could avoid persecution by relocating internally to another area of Georgia where he would be safe, without considering whether relocation was reasonable. W.FLETCHER.


Past Persecution/ Internal Relocation Not Possible. Once past persecution has been established, the burden of proof to defeat a claim based on internal relocation is upon the government because of the presumption that the threat exists nationwide. See also Singh v. Ilchert, 69 F.3d 375 (9th Cir. 1995). Fact that Muslim-controlled area of former Soviet Georgia from which alien fled became part of Georgia only in 1931, and had now reasserted its autonomy, so that any relocation by alien to other areas of Georgia would in fact be more akin to an international rather than to an internal relocation, was factor that IJ had to consider in deciding whether alien, who had otherwise established well-found fear of future persecution, could nevertheless be denied asylum on ground that he could reasonably be expected to relocate internally.

Bars to Asylum/ Firm Resettlement, Not Found. Refugee need not seek asylum in first place where he arrives, and mere fact that Armenian refugee from former Soviet Georgia, prior to arriving in the United States, had stayed for several weeks in Russia did not render him ineligible for asylum.





 


Germany




Chronology

 

Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005)

Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004)





✔ Affirmed

 

Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005) (A75-654-655); upholding IJ’s denial of asylum based on finding that alien had firmly resettled in Germany; Alien experienced clear persecution in Iran which prompted his flight therefrom and a grant of asylum in Germany; he asserted that after he formally went to the Iranian embassy to renounce his citizenship he became a target of the Iranian government’s persecution all over again. Alien provided an expert’s opinion as to the objective component of the claim having been met; notwithstanding “death threats” being made against him, the majority found such threats “were anonymous, vague, and did not create a sense of immediate physical violence,” (at 1153), and “too vague to constitute persecution.” (at 1157); RAWLINSON; (B.FLETCHER, dissenting, found that the Iranian government recommenced a campaign of persecution against alien and the German government was unwilling or unable to control).



Bars to Asylum/ Firm Resettlement, Found. Alien’s deep and significant ties to Germany during his 10-year residence in the country, after he fled from Iran, amounted to firm resettlement; alien was granted permanent residency in Germany and renounced his Iranian citizenship in an attempt to gain German citizenship, he married a German citizen, worked, and traveled freely throughout the country, and practiced Christianity openly.

Persecution/ Harassment; Threats; Property Damage. Although alien described several incidents in Germany of harassment, escalating threats—including those of death,—and property damage, he suffered only de minimis property damage and anonymous, ambiguous threats that did not create a sense of immediate physical violence, he suffered no physical harm, and he was never detained. This was so, notwithstanding an experts supportive report.

Unable or Unwilling to Control/ Police Response. German police took reports documenting alien’s various complaints, alien admitted that he did not give police names of any suspects because he did not know any specific names, and alien’s wife testified that police investigated complaints, but were ultimately unable to solve crimes.





✘ Not Affirmed

 

Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004) (A74-822-406); remanding based on finding that German officials were unwilling or unable to control anti-foreigner violence against native Afghan living in Germany; B.FLETCHER.


Persecution/ Threats; Property Damage; Emotional. A note left on petitioners’ car “invoked the terror of Germany’s Nazi past and threatened death if the family did not leave Germany,” and was followed by violent ransacking of their apartment one month later, and then by sightings of anti-foreigner mobs in the area, all of which is “strong evidence of persecution.” Past persecution can be established by infliction of emotional or psychological trauma, as well as physical acts. (at 1119–20).

Persecution/ Cumulative Effect. Petitioner’s evidence of a death threat, violent physical attacks against her husband and sons, a near-confrontation with a violent mob, vandalism, economic harm and emotional trauma compels a finding of past persecution. (at 1121).

Unable or Unwilling to Control/ No Police Response. Police’s limited investigation of anti-foreigner motivated attacks, combined with statements to petitioners that foreigners “better try to take care of [themselves],” demonstrated the government was unwilling to control anti-foreigner violence. (at 1121).

Unable or Unwilling to Control/ Nationwide Basis. An asylum applicant who has demonstrated past persecution is not required to prove that the government was unable or unwilling to control the violence on a countrywide basis, and need only show that the government was unable or unwilling to control the persecution in the applicant’s home city or area. (at 1122).

Past Persecution/ Internal Relocation Not Possible; Individualized Analysis. State Department Report’s general observations and descriptions of Germany as a functioning democracy do not rebut applicant’s testimony of violence in other areas, the difficulty of relocating, or the existence of family ties in the United States. (at 1123).





 


Guatemala




Chronology

 

        Toj-Culpatan v. Holder, 588 F.3d 638 (9th Cir. 2009)

        Barrios v. Holder, 567 F.3d 451 (9th Cir. 2009)

        Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009)

Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007)

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007)

        Recinos de Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005)

Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th Cir. 2004)

Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004)

Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004)

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003)

Alvarez Santos v. INS, 332 F.3d 1245 (9th Cir. 2003)

Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003)

Ventura v. INS, 317 F.3d 1003 (9th Cir. 2003)

Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002)

Ruano v. Ashcroft, 301 F.3d 1155 (9th Cir. 2002)

Rios v. Ashcroft, 287 F.3d 895 (9th Cir. 2002)

Molina-Estrada v. INS, 293 F.3d 1089 (9th Cir. 2002)

Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000)

Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000)

Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000)

Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir. 2000)

Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000)

Tecun-Florian v. INS, 207 F.3d 1107 (9th Cir. 2000)

Cordon-Garcia v. INS, 204 F.3d 985 (9th Cir. 2000)

Sebastian-Sebastian v. INS, 195 F.3d 504 (9th Cir. 1999)

Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999)

Duarte de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999)

Ordonez v. INS, 137 F.3d 1120 (9th Cir. 1998)





✔ Affirmed

 

        Toj-Culpatan v. Holder, 588 F.3d 638 (9th Cir. 2009) (A076-690-191); affirming the denial of relief because the I-589 had not been timely filed. The only issue decided in the holding involved the timing of the filing. Respondent came to the U.S. in February 1998. He was then detained and asserted a fear of returning to Guatemala. Respondent was told to submit the application at his hearing on April 16, 1998. At that time, respondent was represented by counsel. The offered I-589 was rejected because it had not been filled out in English. The hearing was continued until May. “Counsel specifically told petitioner that if petitioner sent counsel the application in Spanish, counsel would have it translated into English for him.” Respondent was then released and venue over his case transferred. Petitioner finally filed his asylum application in English at his first hearing in the new venue of on September 7, 1999, approximately 17 months after the one year deadline fo February 1999. There was no claim of ineffective assistance of counsel. PER CURIAM.


Bars to Asylum/ One Year Bar, Found. Under 8 C.F.R. § 208.4(a)(5), the bar can be waived on demonstration of “extraordinary circumstances.” Respondent argued that the following circumstances were extraordinary: (1) he does not speak English; (2) he was detained for two months in an immigration detention center; and (3) his case was transferred after he moved from Arizona to California. The circuit held that “none of these circumstances, either alone or in combination, constitute ‘extraordinary circumstances’ justifying the untimely filing.”


Extraordinary Circumstances/ English Non-Fluency. The court was unimpressed with Respondent’s non-fluency in English: “The inability to speak English constitutes an ordinary, not extraordinary, circumstance for immigrants.” Footnote


Extraordinary Circumstances/ Delay in Docketing. The circuit did not find the delay in docketing to be a justifiable basis for Respondent’s delay in filing: “He did not need to wait for a hearing to file his application.”




 

        Barrios v. Holder, 567 F.3d 451 (9th Cir. 2009) (A78 311 822); affirming a denial of relief. The respondent had also sought NACARA. His asylum claim was based on threats from gang members who “started to steal things from him . . . they cut his neck with a switchblade [and] told him it was a sign of what could happen to him” if he did not do their bidding. Since coming to the U.S. he had been advised that gang members had visited his residence “asking about and threatening him.” Credibility was not at issue. WARDLAW

Protected Grounds/ PSG/Gangs. The Court cited in particular to Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009), for the rejection of “young men in Guatemala who resist gang recruitment constitute a social group” as a particular social group. The Court also found that respondent was not justified in his political opinion claim where “being victimized [was due to] economic and personal problems,” citing Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).


Derivative Claims/ NACARA. The Court rejected respondent’s NACARA claim by holding that “a minor who seeks relief as a derivative must personally satisfy the Act’s requirement of seen years of continuous physical presence. Ramos’s father’s physical presence in the U.S. cannot be imputed to him to satisfy this requirement.”



 

        Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009) (A 70 217 803); affirming a denial of relief on credibility grounds. The respondent first put forth a claim based on asserted political activism. Relief was denied for lack of credibility. The Ninth Circuit found the basis of the administrative reasoning to be insufficient and remanded the case in an unpublished decision. The claim dramatically changed to the respondent being gay and consequently having had adverse experiences. The court extensively quotes from and relied on the Asylum Adjudicator’s assessment to refer which had found the respondent to be credible on the first and then withdrawn claim of having been a political activist. TROTT; Dissent by PREGERSON.


Credibility/ Oath. “The major check on the asylum seeker’s incentive to lie is an oath to thell the truth, and the asylum seeker’s belief that he or she will be held to that oath. It is fair to say that the asylum process is ultimately an honor system - it depends largely on the assumption that asylum seekers will take the oath seriously, and that they will be truthful in their testimony.


Credibility/ Inconsistencies, Attempt to Enhance Claim. The dissent emphasized that at the time of the application, “the INS had not yet recognized that persecution on account of sexual orientation provided a valid basis for an asylum claim” and that he amended his claim shortly thereafter.



 

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003) (A75-507-115); upholding BIA’s finding that INS rebutted presumption of well-founded fear; Use of a Department of State Country Report was upheld in denial of relief to demonstrate that because of changed conditions, applicant no longer had an objectively reasonable fear. “The fact that Gonzalez relocated to Guatemala city without receiving any threats is highly relevant,” even though he reported that individuals continued to look for him in his home village. This deference to the Department of State report was upheld, even though the report was characterized as “contradictory or ambiguous.” (at 999); petition denied; TALLMAN.



Past Persecution/ Country Reports, Use Of Permitted. “[W]here the BIA rationally construes an ambiguous or somewhat contradictory country report and provides an “individualized analysis of how changed conditions will affect the specific petitioner’s situation,” Borja v. INS, 175 F.3d 732, 738 (9th Cir. 1999) (en banc) (citation and internal quotation marks omitted), substantial evidence will support the agency determination.” (at 1000).




        Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003) (A72-137-814); affirming BIA denial of asylum upon finding that alien failed to show he had a well-founded fear of persecution if returned to Guatemala; BERZON.


Credibility/ Omissions. Standing alone, omissions from asylum applications are not a sufficient basis for discrediting later testimony, especially when the applications were prepared by someone else. (at 1254).

Credibility/ Implausibility. “Here, however, there were additional compelling reasons for discrediting [applicant]’s testimony concerning a dramatic, pivotal event that had been omitted from his asylum applications. It is simply not believable that an applicant for asylum would fail to remember, and thus to include in either of his two asylum applications or his principal testimony, a dramatic incident in which he was attacked, stabbed, and fled to the mountains—the very incident that precipitated his flight from Guatemala—only to be reminded of it at the conclusion of his testimony, after taking a break, and, assertedly, because of an itch in his shoulder.” (at 1254).



 

Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003) (A23-699-683); dismissing petition to review denial of asylum under fugitive disentitlement doctrine, where alien had been missing for over two years; KOZINSKI.



 

Molina-Estrada v. INS, 293 F.3d 1089 (9th Cir. 2002) (amending and superceding 281 F.3d 906 (9th Cir. 2002)) (A75-098-668); dismissing in part and denying in part; (1) Court of Appeals lacked jurisdiction to review BIA determination that no extraordinary circumstances excused alien’s untimely filing of his application for asylum, and to review BIA discretionary denial of alien’s application for cancellation of removal; (2) alien was ineligible for cancellation of removal on ground that his removal would cause exceptional hardship to his mother; and (3) evidence supported findings that alien was ineligible for withholding of removal; GRABER.


Protected Grounds/ Imputed Political Opinion, Not Found. Evidence of military position of alien’s father in Guatemala and that, in 1982, when alien was 13 years old, he was injured and his father and cousin were killed when guerillas bombed his family’s house in Guatemala, was insufficient to prove that he was targeted for persecution on account of an imputed political opinion of his father’s, as would support his application for withholding of removal, absent any evidence that his father held particular political beliefs.

Protected Grounds/ Particular Social Group, Found; Family. Assuming that alien’s family was a “particular social group” within the meaning of statute setting forth persecution on account of membership in a particular social group as a ground for withholding of removal, evidence in removal proceeding supported finding that alien, a citizen of Guatemala, was not persecuted in Guatemala on account of his family membership; although evidence showed he was a victim of violence directed against his father when, in 1982, when alien was 13 years old, he was injured and his father and cousin were killed when guerillas bombed his family’s house in Guatemala, there was no compelling evidence that alien was an intended victim.

Past Persecution/ Changed Conditions Found; Country Reports, Use Of Permitted. Evidence in removal proceeding supported finding that alien, a citizen of Guatemala, failed to demonstrate a reasonable fear of future persecution as would support his application for withholding of removal; alien did not establish past persecution, so there was no presumption to overcome, State Department report on country conditions showed that Guatemala’s civil conflict ended in 1996, that the guerillas whom alien contended posed a future threat were being successfully reintegrated into productive society, and that there was a marked improvement in the human rights situation, and alien failed to present credible, direct, and specific countervailing evidence in support of his fear of future persecution.

Nexus/ Motive Not Found. “Although Petitioner was injured in the bombing of his family’s house, there is no compelling evidence that the attackers knew that his father had a son or that they knew Petitioner was in the house at the time of the attack. That is, although he was a victim of the violence directed against his father, there is no compelling evidence that he was an intended victim. Petitioner did testify that threatening telephone calls were made to his grandmother’s and sister’s houses after the attack, but he did not testify about the specific content of the calls or the nature of the threats. There is no evidence that the guerillas ever threatened him.” (at 1095).



 

Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000) (A70-637-599); denying petition based on finding that alien’s kidnapings, first by government soldiers and then by guerillas, in effort to force him to join their respective military operations, was not on account of protected characteristic, and thus did not warrant asylum eligibility; WALLACE; (PREGERSON, concurring, argued that the panel had overreached in suggesting that Mayan Indians of Guatemala did not comprise a social group, and that the ruling should not foreclose relief to another asylum applicant relying on the same theory but making a different evidentiary showing).


Nexus/ Motive Not Found. Kidnapings of Kanjobal Indian in Guatemala, first by government soldiers and then by guerillas, in effort to force him to join their respective military operations, was not on account of his race, membership in a particular group, or political opinion, and thus did not warrant asylum eligibility; documentary evidence indicated that civilians were forcibly recruited by both sides in areas of conflict, not that Kanjobal Indians were recruited because of any protected ground, and indigenous people comprising large percentage of population in disputed area did not constitute social group.

Persecution/ Forced Conscription. Absent evidence of discriminatory purpose, a guerilla organization’s attempts to force a person to join them is insufficient to compel a finding of persecution on account of political belief warranting eligibility for asylum.



 

Tecun-Florian v. INS, 207 F.3d 1107 (9th Cir. 2000); denying petition upon finding alien did not have a fear of persecution on account of religious beliefs, political opinion, or imputed political opinion; REAVLEY; (FERGUSON, dissenting, argued that the holding in Elias-Zacarias was not as broad as interpreted by the majority, arguing that it does not stand for the general proposition that persecution following a refusal to assist can never constitute a basis for seeking asylum).


Nexus/ Motive Not Found. BIA reasonably determined that alien who refused to join Guatemalan guerillas because of his religious beliefs and was tortured by them for ten days did not have fear of persecution on account of religious beliefs, political opinion, or imputed political opinion, and thus was not eligible for asylum; although guerillas watched him going to church, he never told them his refusal was based on religious beliefs, he and his sister testified that torture was result of his refusal to join, and neither alien nor sister testified that his brothers’ government service motivated guerillas to torture him.

Nexus/ Retribution, Not On Account of Protected Ground. “Although the record demonstrates that Tecun-Florian refused to join the guerillas because the guerillas’ actions violated his religious beliefs, the BIA could reasonably determine that the guerillas tortured Tecun-Florian solely in retribution for refusing to join their group--and not because of his religious or political beliefs. Tecun-Florian testified that the guerrillas told him that they were persecuting him because he refused to join them, and he himself believed that the guerillas acted out of retribution for his refusal to join. Tecun-Florian’s sister also testified that she believed the guerillas kidnaped her brother because he refused to enlist with them. The only evidence suggesting that the guerillas were motivated by anything other than his refusal to join them was the fact that they watched him going into the church. Bound by the authority of Elias-Zacarias, we must hold that the evidence presented was not ‘so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’” (at 1109).



 

Sebastian-Sebastian v. INS, 195 F.3d 504 (9th Cir. 1999) (A73-915-724); denying petition based on deference to BIA’s implied adverse credibility finding; WIGGINS; (WIGGINS, concurring, and BRUNETTI, specially concurring: BIA made implied finding that alien’s testimony was not credible when it found that alien’s persecution by Guatemalan guerillas was not due to implied political opinion based on his brother’s military service, and, thus, Court of Appeals was required to defer to such decision and deny asylum); (PREGERSON, dissenting, found that the alien had established a well-founded fear of future persecution on account of imputed political opinion, and that neither the INS, IJ, or BIA had questioned his credibility).



 

Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999) (A73-996-367); petition denied; (1) unexhausted administrative remedies precluded remand to BIA so they could apply for suspension of deportation under NACARA and CAT; (2) aliens were not prejudiced as result of any ineffective assistance of counsel and thus were not denied due process; (3) alien’s admission supported factual finding that he had been convicted of drug trafficking; (4) BIA’s dismissal of appeal of denial of asylum was action triggering application of definition of aggravated felony found in IIRIRA; and (5) alien’s Guatemala conviction for drug trafficking was aggravated felony; BOOCHEVER.


Asylum Application/ Ability to Amend. Alien’s original asylum application had been prepared by a notary; IJ granted his new counsel opportunity to amend, since counsel had indicated some of it was untrue. Alien testified that his life would be threatened if returned because police had come to his house and beaten him on several occasions.

Administrative Proceedings/ Exhausting Admin Remedy. Aliens appealing denial of asylum were not entitled to remand to Board of Immigration of Appeals so they could apply for relief under CAT, inasmuch as they had unexhausted administrative remedy in form of motion to BIA to reopen their deportation proceedings.

Ineffective Assistance/ Prejudice Not Found. Aliens were not prejudiced by, and thus were not denied due process as result of, any ineffective assistance of counsel provided them in deportation proceedings; although aliens sought remand so they could explain why they were eligible for asylum, they failed to explain what evidence they would present on remand to support their claim.




✘ Not Affirmed

 

Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007); reversing and remanding a denial of asylum and withholding of removal. FISHER.


Bars to Asylum/ Particularly Serious Crime, Factors to Consider. Respondent had been convicted of the sale of a small amount of cocaine. The respondent had been found to have established a basis for withholding of removal. Applying Matter of Y-L, 23 I&N Dec. 270 (AG 2002), the respondent was found to have been convicted of a PSC and hence was denied relief. The court held that it was permissible for the AG to set forth the “strong presumption that a drug trafficking offense resulting in a sentence of less than 5 years is a PSC.” (at 943). However, the standard could not be applied to convictions prior to the AG’s decision.



 

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) (A76-346-033); reversing and remanding a denial of asylum to two indigenous Guatemalan brothers; NOONAN.


Past Persecution/ Claims by Children; Persecution/ Of Family. At the time in question, 1982, the two brothers were ages 9 and 7. They made no claim that they themselves had been the victims of any violence. They claimed that Guatemalan soldiers “beat the boys’ father in front of their mother and took him away.” (at 1044). In addition, their older brother was killed by government forces. The brothers feared that if they returned to Guatemala they would be viewed as guerrilla sympathizers and killed by the army. (at 1044). The court held that “injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claim were perceived when the petitioner was a child,” and the IJ must view the events “from the perspective of a small child.” (at 1045).

Credibility/ Misrepresentations. The court rejected the adverse credibility finding because the misstatements were not material to the claim. (at 1045).



 

Recinos de Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005) (A72-527-227); remanding based on inability to discern the grounds for the agency’s action; the BIA summarily affirmed an indecipherable decision of the IJ; BERZON.


Well-Founded Fear/ Ten Percent Rule. “A reasonable possibility [that the applicant will be persecuted upon return to the country in question] may be shown even where the applicant has only a ten percent chance of being persecuted.” (at 1190).

Past Persecution/ Humanitarian Asylum, Standard. “The ‘severity of the past persecution,’ 8 C.F.R. § 1208.13(b)(1)(iii)(A), is relevant only to whether an applicant is to be granted asylum in the exercise of an asylum officer’s discretion without showing a well-founded fear of future persecution. The degree of severity of past persecution is irrelevant to finding whether any past persecution occurred.” (at 1191–92, internal citations omitted).



 

Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th Cir. 2004) (A77-541-085); remanding based on finding that (1) IJ’s conclusion that alien received offer of permanent resettlement in Mexico, as would establish that alien was firmly resettled in Mexico, barring asylum, was not supported by substantial evidence, and (2) IJ’s finding that alien had 16 years of peaceful residence in Mexico was not supported by substantial evidence; TASHIMA. Accord Maharaj v. Gonzales, 453 F.3d 961 (9th Cir. 2006) (en banc).


Bars to Asylum/ Firm Resettlement, Not Found. Jacalteco Mayan Indian from Guatemala who had been issued an FM3 refugee document in Mexico had the right to renew his FM3 if deported to Mexico, and legally lived there for 16 years before coming illegally to the U.S., but continues to have no right to apply for permanent residency in Mexico and, accordingly, has not received an offer of permanent resettlement. (at 820). Applicant’s 16-year stay in Mexico may give rise to a presumption of resettlement only if it was not disrupted by threats of repatriation, travel restrictions, and other molestation or persecution and hence was not accepted. (at 820).



 

Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004) (A76-847-476); remanding based on finding past persecution on account of political opinion; Regardless of whether Guatemalan soldiers who raped petitioner knew of her brother’s forced conscription by insurgent guerillas ten years earlier, evidence that soldiers, as a result of widespread conscription of young men in village by these insurgents, had mistakenly inferred that village was attempting to aid guerillas and had retaliated on village-wide basis by systematically targeting villagers as whole was sufficient to compel conclusion that alien’s gang rape by soldiers was motivated, at least in part, by imputed political opinion; RAWLINSON.


Persecution/ Of Family; Rape; Past Persecution/ Evaluation of Context. Testimony of prolific military violence in applicant’s village demonstrated that her own attack was not an isolated incident. Although her brother’s kidnaping and forced conscription by guerilla forces occurred ten years prior to soldiers attacking and raping her, the events must be evaluated in the context of continuing brutality suffered by other villagers during that same decade. (at 1075).

Nexus/ Mixed Motive. Soldiers’ statements to rape victim that they wanted “to be with a woman” and satisfy their “unlawful, violent, carnal desire,” and not “that they were raping her on account of a protected ground is not highly relevant.” The soldiers attacked applicant because she belonged to a village they considered a guerilla stronghold, as demonstrated by their systematic targeting of everyone in the village. (at 1076).

Past Persecution/ Changed Conditions Not Found. “[R]ecent reports reflect that ‘seven years after the signing of peace accords, Guatemala has made little progress toward securing the protection of human rights and rule of law that are essential features of a functioning democracy.’” (at 1077).



 

Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004) (A70-187-523); remanding based on finding that (1) harm suffered by asylum applicant rose to the level of persecution; (2) persecution was on account of politically-based refusal to cooperate with guerillas; (3) BIA’s conclusory determination regarding changed country conditions was not sufficiently individualized; GOULD; distinguished by Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004).


Persecution/ Physical Harm; Threats; Medical Attention. “The credible testimony made plain that [applicant] had been placed in a burning warehouse by guerillas, bound so he could not escape absent help, and had suffered additional threats on his life from the same group. That [applicant] did not seek medical treatment for the burns he suffered is hardly the touchstone of whether his treatment by guerillas amounted to persecution.” (at 803).

Nexus/ Motive Found; Persecution/ Forced Conscription. While forced recruitment alone does not constitute a basis for asylum, applicant’s punishment by guerillas for his pro-establishment political opinions was persecution on account of political opinion. (at 804).

Past Persecution/ Individualized Analysis. “If past persecution is shown, the BIA cannot discount it merely on a say-so. Rather, our precedent establishes that in such a case the BIA must provide an individualized analysis of how changed conditions will affect the specific petitioner’s situation.” (at 805 (citation and internal quotation marks omitted)).



 

Ventura v. INS, 317 F.3d 1003 (9th Cir. 2003) (reh’g of 264 F.3d 1150 (9th Cir. 2001) on remand from the U.S. Supreme Court, 537 U.S. 12 (2002)) (A72-688-860); remanding and instructing that in the event BIA reopened record on remand to consider issue of whether changed circumstances in alien’s home country rebutted presumption that he had a well-founded fear of persecution on account of political opinion imputed to him, it was required to also consider allowing alien to present new evidence of family persecution which he sought to present by his motion to reopen, together with any other current evidence of such family circumstances. The decision in 2001 held that (1) alien had been subjected to past persecution by guerrillas in his native Guatemala; (2) persecution was on account of an imputed political opinion, so that presumption arose that alien had a well- founded fear of future prosecution; and (3) INS failed to present evidence of changed country conditions sufficient to rebut presumption of future persecution. SCHROEDER, LAY (8th Cir.) and THOMPSON.


Persecution/ Of Family. Alien was subjected to past persecution in his native Guatemala, as would potentially make him eligible for grant of asylum and withholding of deportation, where just prior to his departure from country guerrillas had spray-painted three “notes” on wall of his house, demanding that he join their forces and threatening harm to alien and his family if he did not, and relatives of alien, some of whom were in Guatemalan military, had been subjected to physical attacks by, and threats from, guerrillas. (2001 decision).

Persecution/ Forced Conscription. Forced recruitment of alien without evidence of a discriminatory purpose is insufficient to compel a finding of past persecution on account of political opinion, as will make alien eligible for grant of asylum and withholding of deportation. (2001 decision).

Protected Grounds/ Imputed Political Opinion, Found. Past persecution of alien in his native Guatemala by guerrillas, who demanded that he join their forces and threatened harm to alien and his family if he did not, was on account of an imputed political opinion, so that presumption existed that alien had a well-founded fear of future prosecution which would potentially warrant grant of asylum and withholding of deportation; alien gave credible, uncontradicted testimony that guerrillas targeted him because they believed he held anti-guerrilla sympathies, that his uncle was attacked and one of his cousins was killed by guerrillas because of their military affiliations, and that he was closely associated with another of his cousins, who was an army lieutenant. (2001 decision).