11th CIR BOPS BIA 4 BLOWING BASICS — BIA IGNORES DECADE-OLD PRECEDENTS ON POLICE REPORTS IN ATTEMPTING TO DENY ASYLUM! – RECINOS-CORONADO V. ATTORNEY GENERAL (UNPUBLISHED)

http://media.ca11.uscourts.gov/opinions/unpub/files/201612073.pdf

Recinos-Coronado v. Attorney General, 11th Cir., 09-29-17 (unpublished)

Before WILSON and NEWSOM, Circuit Judges, and WOOD,* District Judge.

PER CURIAM:

* Honorable Lisa Godbey Wood, United States District Judge for the Southern District of Georgia sitting by designation.

KEY QUOTE:

“We grant the petition for review on Recinos-Coronado’s petitions for asylum and withholding of removal. The BIA erred as a matter of law when it excluded from its past-persecution analysis the sexual abuse that Recinos-Coronado suffered at the hands of his uncle on the ground that Recinos-Coronado failed to report it. We have treated an applicant’s failure to report abuse as separate from the question whether the applicant suffered past persecution. See Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344–45 (11th Cir. 2007). And in previously determining that an applicant suffered persecution based on cumulative incidents, we included in the past-persecution analysis (without discussion) an incident that the applicant failed to report—there, threatening “graffiti at his wife’s farm which alluded to [guerillas’] presence in the area, and referenced him specifically.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1255–57 (11th Cir. 2007). By refusing to consider the uncle’s abuse solely on the ground that Recinos-Coronado failed to report it, the BIA erred.”

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There respondent in this case is from Guatemala. Generally, reporting anything to the police in Guatemala is a waste of time, at best, and personally risky, at worst. The police are both corrupt and ineffective. Filing a police report is probably as likely to get the victim shaken down or abused by the police, or have the police tip off the abuser, as it is to result in effective law enforcement action.

Here’s what the latest U.S. State Department Country Report has to say about the police and the judiciary in Guatemala:

“Principal human rights abuses included widespread institutional corruption, particularly in the police and judicial sectors; security force involvement in serious crimes, such as kidnapping, drug trafficking, trafficking in persons, and extortion; and societal violence, including lethal violence against women.

Other human rights problems included arbitrary or unlawful killings, abuse and mistreatment by National Civil Police (PNC) members; harsh and sometimes life- threatening prison conditions; arbitrary arrest and detention; prolonged pretrial detention; failure of the judicial system to conduct full and timely investigations and fair trials; government failure to fully protect judicial officials, witnesses, and civil society representatives from intimidation and threats; and internal displacement of persons. In addition, there was sexual harassment and discrimination against women; child abuse, including the commercial sexual exploitation of children; discrimination and abuse of persons with disabilities; and trafficking in persons and human smuggling, including of unaccompanied children. Other problems included marginalization of indigenous communities and ineffective mechanisms to address land conflicts; discrimination on the basis of sexual orientation and gender identity; and ineffective enforcement of labor and child labor laws.”

Like many aspects of BIA asylum jurisprudence, on its face, the concept that the victim should report the harm to police seems to be rational. But, in practice, in disposing of (particularly Northern Triangle) asylum cases on an “assembly line” basis, the BIA takes a plausible factor and turns it into a “handle for quick denial” without much real analysis or even attention to the basic applicable law (in this case, 11th Circuit precedents that had been issued a decade earlier — hardly “hot off the presses”).

As a judge, I wanted to see the police reports if available or hear an explanation of the reason for unavailability. But whether or not an incident was reported to police was only one of many factors in judging the credibility of an asylum case, and never was determinative in and of itself. Sure, this is only one case. But an “expert tribunal” shouldn’t be getting basics like this wrong. It’s symptomatic of an appellate system “geared for denial.”

I do wish the 11th Circuit would publish this case. Although it’s short, it provides very important guidance on a point that obviously escaped the BIA.

PWS

10-08-17

 

 

 

11th Circuit Zaps BIA’s Overbroad Interpretation Of “Prison” — Alfaro v. Attorney General — “Rebel-controlled trailer in a jungle is not a ‘prison.'”

http://media.ca11.uscourts.gov/opinions/pub/files/201414913.pdf

Key Quote:

“The BIA’s determination that Alfaro was confined to a prison is erroneous. The status adjustment application asked whether Alfaro had ever been confined in a prison, and we cannot conclude as a matter of law that a rebel-controlled trailer in the middle of the Nicaraguan jungle is a “prison.” In ordinary usage, a prison is a “building or complex where people are kept in long-term confinement as punishment for a crime . . . specif[ically], a state or federal facility of confinement for convicted criminals.” Black’s Law Dictionary (10th ed. 2014). Both the definition and the plain meaning of the word suggest that legal authority to confine someone is a necessary component. That is to say, a prison is an instrumentality of the state, and it is the state’s legal authority to confine someone that distinguishes confinement in a prison from confinement by one without legal authority to do so, say a kidnapper, for instance. 3

In arguing that Alfaro’s confinement constitutes confinement in a “prison,” both the government and the BIA liken the trailer to a military prison because Alfaro was placed there involuntarily, during wartime, following a war-related incident. But Alfaro was not confined in a prison, he was confined in a small

3 Even assuming that Alfaro did previously say that he was in “jail,” whether Alfaro was confined to a prison is a question of law determined by the definition of the word “prison.”

6

Case: 14-14913 Date Filed: 07/13/2017 Page: 7 of 7

trailer, in a jungle, by a group of his peers—the Contras—fellow rebels fighting to overthrow their government. It was nothing like a military prison. The Contras were not military personnel, they were insurgents, and they were not acting under any governmental or legal authority to detain him. The Contras did not charge or convict Alfaro of any crime because they lacked the authority to do so. Indeed, it is not even clear whether Alfaro was being punished or whether he was just being questioned pending an inquiry into the incident. Regardless, we hold that as a matter of law, a rebel-controlled trailer in a jungle is not a “prison.” 

PANEL: TJOFLAT and WILSON, Circuit Judges, and ROBRENO, District Judge.

OPINION BY: Judge Wilson

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Even relatively “pro-Government” Circuits like the 11th appear to be getting weary of the BIA’s attempts to expand the reach of removal statutes.

PWS

07-16-17

 

11th Cir. — BIA GETS IT WRONG AGAIN ON MODIFIED CATEGORICAL APPROACH & AGFEL — GORDON V. ATTORNEY GENERAL

http://media.ca11.uscourts.gov/opinions/pub/files/201513846.pdf

Key quote:

“Further, the Board’s conclusion that the crime was an aggravated felony because the sale or delivery was “for monetary consideration” is meritless. That the sale or delivery was “for monetary consideration” does nothing to assist us in determining “which of a statute’s alternative elements”—sale or delivery— “formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. The Supreme Court has made clear time and time again that “[a]n alien’s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. As the Board did not appropriately determine that Gordon was convicted of an aggravated felony, we grant Gordon’s petition and reject the Board’s finding of removability.”

PANEL: Circuit,Judges Tjoflat, Wilson; District Judge Robreno

INION BY: Judge Tjoflat

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So, why does an “expert tribunal” like the BIA keep getting this fairly basic stuff wrong? And, why has the DOJ eliminated EOIR training?

PWS

07-13-17

7th Cir. Finds Gays Protected By 1964 Civil Rights Act

https://www.washingtonpost.com/news/post-nation/wp/2017/04/04/court-discrimination-against-gays-is-prohibited-by-federal-law/?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.c296389bf33a

Sandhya Somashekhar reports in the Washington Post:

“A federal appeals court ruled Tuesday that workers may not be fired for their sexual orientation, becoming the highest court in the country to find that the 1964 Civil Rights Act protects gays from workplace discrimination and setting up a possible Supreme Court battle.

The U.S. Court of Appeals for the 7th Circuit, based in Chicago, found that instructor Kimberly Hively was improperly passed over for a full-time job at Ivy Tech Community College in South Bend, Ind., because she was a lesbian. While the Civil Rights Act does not explicitly prohibit discrimination on the basis of sexual orientation, it bars sex discrimination; the court concluded that the college engaged in sex discrimination by stereotyping Hively based on her gender.

“Hively represents the ultimate case of failure to conform to the female stereotype … she is not heterosexual,” Chief Judge Diane Wood wrote in Tuesday’s opinion. “Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing.”

The ruling echoes those of a number of lower courts, which have also concluded that discrimination against gays is a prohibited form of sex stereotyping. It conflicts, however, with others, including a ruling last month by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta, which interpreted Title VII of the Civil Rights Act more narrowly and found that sexual orientation is not a protected class under that law.

A split in the circuits could set up a clash before the Supreme Court.”

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Wonder how Jeff Sessions and his pals are going to react to this one? But, no matter how much some social conservatives and “alt righters” would like to “turn back the clock” to a time when people were “free” to act on their biases and prejudices against others, the cause of LGBT rights is not going to go away.

PWS

04-02-17

 

Huge Win For TPS In 9th Circuit — Court Blasts DHS’s “Rube Goldberg” Interpretation — Allows Adjustment Of Status — Ramirez v. Brown

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf

“And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country—in this case, the country that the Attorney General has deemed unsafe— though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful

permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255(i), but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.

In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under §1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.”

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Although the 9th Circuit’s decision makes sense to me, and is consistent with a previous ruling by the 6th Circuit, the court notes that the 11th Circuit agreed with the DHS position. Consequently, there is a “circuit split,” and this issue probably will have to be resolved by the Supremes at some future point.

I had this argument come up before me in the Arlington Immigration Court. After conducting a full oral argument, I ruled, as the 9th Circuit did, in favor of the respondent’s eligibility to adjust. While the DHS “reserved” appeal, I do not believe that appeal was ever filed.

One of the things I loved about being a trial judge was the ability to hear “oral argument” from the attorneys in every merits case where there was an actual dispute.

PWS

04-01-17