Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
CA6 on PSG: Zometa-Orellana v. Garland (Unpub.)
“Ana Mercedes Zometa-Orellana, a native and citizen of El Salvador, suffered regular beatings and rape by her domestic partner. She sought asylum and withholding of removal based both on political opinion and membership in a particular social group. An immigration judge (IJ) denied asylum and withholding of removal, and the Board of Immigration Appeals (BIA) affirmed that ruling. Since then, however, a crucial case on which both the BIA and the IJ relied to assess Zometa-Orellana’s particular social group was vacated by the Attorney General. And the IJ and BIA failed to consider the entire record in determining the El Salvadorian Government’s willingness to respond and Zometa-Orellana’s ability to relocate in El Salvador. For these reasons, we GRANT the petition, VACATE the BIA’s decision, and REMAND for further proceedings in accordance with this opinion.”
[Hats off to Dr. Alicia Triche!]
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CA4 on Nexus: Aleman-Medrano v. Garland (Unpub.)
“Aleman-Medrano’s central argument on appeal is that the agency [EOIR: the IJ and the BIA] erred at the second step of the analysis, improperly rejecting his claim that he was targeted by gang members “on account of” his family ties to his daughter. We agree and, finding no independent basis on which to affirm the agency’s denial of relief, remand for further proceedings. … [W]e are compelled to conclude that Aleman-Medrano’s relationship with his daughter was at least one central reason why he, and not someone else, was threatened by MS-13. … MS-13’s threats to Aleman-Medrano arose “on account of” his family ties and that he thus has met the nexus requirement for both asylum and withholding of removal.”
[Hats off to Abdoul A. Konare!]
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CA9 (2-1) on Right to Counsel: Usubakunov v. Garland
“This is not a case of a petitioner abusing the system or requesting serial delays of his merits hearing—Usubakunov had found an attorney willing to take his case. Although it may be tempting to look for a bright-line rule, we hew to our precedent that the “inquiry is fact-specific and thus varies from case to case.” Biwot, 403 F.3d at 1099. In doing so, we do not suggest that there is “no limit,” Dissent at 19, to the permissible delay for obtaining a lawyer. Our factspecific inquiry here leads us to conclude that the IJ’s refusal to grant a continuance violated Usubakunov’s right to counsel. … This case illustrates diligence, not bad faith, coupled with very difficult barriers faced by a detained applicant who does not speak English. Usubakunov sought and identified counsel within the period the IJ originally thought reasonable, but he was stymied by counsel’s scheduling conflict. He had identified by name and organization the lawyer who would ultimately represent him, and Usubakunov thus sought his first continuance of the merits hearing. We conclude that “[u]nder these circumstances, denial of a continuance was an abuse of discretion because it was tantamount to denial of counsel.” Biwot, 403 F.3d at 1100. Given these unique circumstances, our grant of the petition will not open the floodgates of continuances, as we apply the same fact-based inquiry we have done for years. That concludes our inquiry, as a petitioner who is wrongly denied assistance of counsel at his merits hearing need not show prejudice. See Gomez-Velazco, 879 F.3d at 993 (citing Montes-Lopez v. Holder, 694 F.3d 1085, 1090 (9th Cir. 2012)). In light of the need to remand for a new hearing, we do not address Usubakunov’s other challenges. We grant Usubakunov’s petition for review and remand for further proceedings. PETITION GRANTED and REMANDED.”
[Hats off to Bardis Vakili (argued), ACLU Foundation of San Diego and Imperial Counties, San Diego, Kristin MacLeod-Ball, American Immigration Council, Brookline, Massachusetts; Mary Kenney, American Immigration Council, Washington, D.C.; for Amicus Curiae American Immigration Council; and Laura J. Edelstein, Jenner & Block LLP, San Francisco, California, for Amicus Curiae Women’s Refugee Commission!]
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Natz. Victory Slams Matter of Zhang: Melara v. Mayorkas
“Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) is not entitled to deference by this Court because it is a dramatic break with past agency interpretation, is in conflict with the Department of State’s current interpretation of the false claim to citizenship ground of inadmissibility, and is a break from Congress’s clearly expressed intent. An agency’s interpretation of an unambiguous statute receives no deference if the interpretation is not in line with Congress’s clearly expressed intent. See, e.g., Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir. 2016). Matter of Zhang takes a dramatic and unique approach to the knowledge element out of the term “false claim to U.S. citizenship.” See, e.g., Richmond v. Holder, 714 F.3d 725, 729 (2d Cir. 2013) (assuming without deciding that false claim inadmissibility provision has knowledge element); Muratoski v. Holder, 622 F.3d 824, 828 (7th Cir. 2010) (agency determined that applicant lacked good moral character because he “knew or should have known” that he was not a United States citizen at the time he made that claim); Valdez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010) (reasonable factfinder would not be compelled to disagree with agency’s determination that applicant was inadmissible because he “intended to and did make a false claim of United States citizenship”). … The Court finds that Petitioner Antonio Fernando Melara has met his burden of proving each element of naturalization by preponderance of the evidence. Judgment is GRANTED for Petitioner.”
[Hats way off to Sabrina Damast and Patricia M. Corrales!]
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Individuals are being mistreated! Attorneys are frustrated! Due Process is mocked! Garland is disinterested in fixing the huge structural, personnel, and quality control problems at BIA/EOIR!
🇺🇸Due Process Forever!
PWS
11-03-21