New From 9th Circuit: Ayala v. Sessions — Reaffirming “economic extortion on the basis of a protected characteristic can constitute persecution!” — Judicial Review of Credible Fear/Reinstatement — “Extortion Plus” Reaffirmed!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/01/13-72250.pdf

“The IJ abused his discretion in concluding that there was no legal error in his previous opinion affirming the negative reasonable fear determination.5 Contrary to the IJ’s holding, our precedents make clear that economic extortion on the basis of a protected characteristic can constitute persecution.

5 We review the legal error de novo and conclude that the IJ abused his discretion in reaching the result he did. See Popa v. Holder, 571 F.3d 890, 894 (9th Cir. 2009) (“An IJ abuses his discretion when he acts arbitrarily, irrationally, or contrary to law.”) (citations and quotation marks omitted); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”).

AYALA V. SESSIONS 17

Borja, 175 F.3d at 736; Barajas-Romero, 846 F.3d at 357 & n.5 (“A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is ‘because of’ one of the five listed reasons:” race, religion, nationality, membership in a particular social group, or political opinion) (citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). In Borja, for example, the petitioner suffered past persecution on account of her political opinion when she was extorted partly for economic reasons and partly on the basis of her political statements. 175 F.3d at 736. We described this type of persecution as “extortion plus”—that is, extortion, with the threat of violence, on the basis of a protected characteristic. Id.

Here, Ayala testified that she suffered this type of persecution by stating that she faced extortion, and threats of violence, not only for economic reasons, but also because of her family ties. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (“[T]he family remains the quintessential particular social group.”). Whatever the merits of her claim, it was legal error for the IJ to hold that extortion could not constitute persecution for the purposes of withholding of removal: where the petitioner’s membership in a particular social group (in this case, a family) is at least “a reason” for the extortion, it is sufficient to meet the nexus requirement for withholding of removal. See Barajas-Romero, 846 F.3d at 360 (Post REAL-ID withholding claims are not governed by the “one central reason” test that applies to asylum claims, but instead require only that a protected ground was “a reason” for persecution, which “is a less demanding standard.”).

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Therefore, we grant Ayala’s petition for review, and remand for the IJ to address whether Ayala has established a reasonable fear based on her extortion-plus claim of persecution.

CONCLUSION

We have jurisdiction to review the IJ’s negative reasonable fear determination relating to the reinstatement of Ayala’s expedited removal order. The BIA’s dismissal of Ayala’s appeal for lack of jurisdiction was the final order of removal; therefore, Ayala’s petition for review is timely because it was filed less than 30 days after that order.

We hold that the IJ abused his discretion in concluding that extortion could not constitute past persecution, and in failing to consider the question of Ayala’s family ties. Therefore, we GRANT Ayala’s petition for review and REMAND for proceedings consistent with this opinion.”

PANEL:

Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman,* District Judge. (*The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.)

OPINION BY:  Judge Reinhardt

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In my experience, U.S. Immigration Judges, the BIA, and some Courts of Appeals make the mistake highlighted by the 9th Circuit in far too many instances by summarily disregarding credible claims of persecution based on extortion. That’s why the Trump Administration’s effort to “heighten” the standards for “credible fear” and “reasonable fear” of persecution will almost certainly compromise due process and fairness.

PWS

05-01-17

9th Cir. En Banc — After 80 Pages, 9-2 Majority Finds Mexican Gov. “Unwilling Or Unable To Prevent” Persecution Of Gays — Dissent Bemoans “Usurpation” Of BIA’s Fact-Finding Authority — BRINGAS-RODRIGUEZ V. SESSIONS

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/08/13-72682.pdf

Judge Wardlaw for the majority:

“In Castro-Martinez, we also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture. Rejecting Castro’s claim that, in Mexico, a systematic pattern or practice of persecution against homosexuals remained, we found Castro’s evidence unpersuasive “in light of recent country reports,” which showed that the “Mexican government’s efforts to prevent violence and discrimination against homosexuals . . . ha[d] increased in recent years.” Castro- Martinez, 674 F.3d at 1082.

Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. It is not unusual that a country’s “de jure commitments to LGBTI protection do not align with the de facto reality of whether the State is able and willing to provide protection.” Brief for UNHCR as Amicus Curiae at 4. And we have recently recognized that Mexico has experienced “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to these communities.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original).

Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013) (noting that while Mexico’s national government was willing to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because state and local officials were involved with drug traffickers).”

Writing for the dissent, Judge Bea (who claims to be the only U.S. Circuit Judge to actually have been the subject of deportation proceedings), joined by Judge O’Scannlain:

“I respectfully dissent from the majority opinion because it usurps the power of the Board of Immigration Appeals (BIA) to determine facts. It does this by reciting, but ultimately departing, from the “substantial evidence” standard which states that agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).”

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The Administration apparently believes that cases like this are going to be resolved on an “assembly line” operation with U.S. Immigration Judges sitting in “shifts” in detention centers from 6 AM until 10 PM.

While notable for its potential precedential effect, this case is not particularly unusual in terms of the difficult factual and legal issues that arise daily in U.S. Immigration Court in asylum cases coming from countries “south of our border.” This happened to be Mexico, but LGBT cases involving individuals from the Northern Triangle are quite common, even in jurisdictions like the Arlington Immigration Court.

I note that the amicus views of the UNHCR fare much better in the majority’s decision than they typically do these days at the BIA. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014), the BIA summarily “blew off” the views of the UNHCR on the issue of “particular social group.”

It’s also interesting that notwithstanding the dissent, the BIA actually lacks de novo fact finding authority of its own. Following a regulation change during the “Ashcroft era,” that authority belongs to the Immigration Judge with review by the BIA for “clear error.”

PWS

03/14/17