9th Circuit Requests Additional Briefing in Case To Determine Whether to Hear en banc
Last week, I received an order from the Ninth Circuit Court of Appeal for additional briefing on the question of whether to hear the case en banc. I filed the petition for review in 2009 seeking appellate review of the denial of the protection afforded under the Convention Against Torture. This case was filed and fully briefed for my last law office that I worked in Burlingame.The appellant was a Mexican national, who was a Lawful Permanent Resident at the time, and he was ordered removed for an aggravated felony conviction, first degree burglary. Once he was removed to Mexico, he was kidnapped at the airport in Mexico City by uniformed police officers telling him he did not have proper papers and he needed to go with them. They turned him over to the Federal Police, who transported him to Morelia in Michocan and placed him inside the prison. There he was tortured while his father in the U.S. was on the phone. The crooked cops were demanding ransom, which was eventually paid. The appellant had cigarettes burned into his skin, he had his teeth knocked out, he had electrodes place on his genitals, and he was waterboarded with Coke Cola poured onto a rag placed over his mouth and nose.Appellant returned to the U.S., crossing in Arizona, but not before he was bit by a rattlesnake and lost his legs before Customs and Border Patrol located him. Appearing before Immigration Judge Yamaguchi in San Francisco, everybody acknowledged that he had suffered torture, by Yamaguchi held that he could safely relocate inside Mexico and ordered him removed.
The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I completed all the briefing, raising the legal issue that the IJ impermissibly held appellant to an incorrect standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is “impossible.” I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).
There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.
“As we have previously acknowledged, “it 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.” Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) (“[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety.”). Additionally, when petitioner “has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable.” Id.
House GOP Passes Immigration Bill That Would Eliminate DACA: The Relief for Dreamers
House Republicans passed a bill Wednesday that would eliminate President Barack Obama’s policy that allows young undocumented immigrants to stay in the United States.The ENFORCE Act, which passed 233 to 181, goes after Obama for alleged overreach. The bill would allow Congress to sue the executive branch for allegedly failing to enforce the law, and it could lead to the dismantling of a key policy protecting some undocumented immigrants.The move was a far cry from the votes on immigration reform that Democrats want, and stood in stark contrast to the immigration principles put forward by House Republican leadership in January. While those guidelines called for young undocumented immigrants who came to the United States as children — often referred to as Dreamers — to receive eventual citizenship, the bill approved Wednesday could end the Deferred Action for Childhood Arrivals policy that keeps the same people from being deported.
The Obama administration has used prosecutorial discretion, or the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.
House Republicans said passing the bill was necessary because the president had shown an unwillingness to enforce the law and a desire to go around Congress, including through the Deferred Action for Childhood Arrivals policy.
“We have seen a pattern: President Obama circumvents Congress when he doesn’t get his way,” Judiciary Committee Chairman Bob Goodlatte (R-Va.) said on the House floor in support of the bill. “But the Constitution does not confer upon the president the executive authority to disregard the separation of powers and rewrite acts of Congress based on his policy preferences.”
The Obama administration threatened to veto both bills should they come to the president’s desk, and White House spokesman Jay Carney criticized them during a press briefing, noting the contrast between the legislation and some Republicans’ stated desires to work on immigration reform.
“It is, in my view, in our view, pretty amazing that today House Republicans went in the opposite direction by passing legislation targeting the deferred action for childhood arrivals policy that removed the threat of deportation for young people brought to this country as children, known as Dreamers,” he said, adding later, “It doesn’t require much to look at what House Republicans are doing today and question whether or not they’re serious about moving forward on comprehensive immigration reform.”
“Instead of voting to fix our broken immigration system as the Senate did in June, House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve,” Reid said. “These irresponsible Republican bills are dead on arrival in the Senate. I strongly support the President’s decision to protect DREAMers from deportation. Republicans should try solving problems for a change instead of blocking progress for our nation and making life more difficult for the immigrant community.”
Obama Administration Announces a Relaxations of Some Restrictions on Asylees Found to Have Aided Terrorist Organizations
The Obama administration recently made it easier for people with tangential connections to terror groups to receive refugee status or asylum in the United States.Two new exemptions to the Immigration and Nationality Act published in the Federal Register Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status. The so called de minimus
exception to the harsh consequences of providing material support to a foreign terrorist organization.The rules will likely affect about 3,000 people who have pending asylum cases and an unknown additional number of people currently in the process of being deported. It will certainly help Syrian refugees who would otherwise be blocked from receiving U.S. aid by existing rules.
The new exemptions apply to “limited material support,” which a DHS spokeswoman said is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”
DHS provided a series of examples of individuals who would have been ineligible for asylum or refugee status before the new exemptions, including business owners who unwittingly provided service to members of a terror group, aid workers who assisted members of a terror group during the aftermath of a natural disaster or civil conflict and people who had to pay a toll or tax to a terror group to pass through opposition-occupied territory.
“For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement,” the DHS spokeswoman said.
Aside from the Federal Register publication, the only public notice announcing the changes came from Sen. Patrick Leahy (D-Vt.), who has for years been championing a change in the “material support” definition.
“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” Leahy said. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”
U.S. Government Tells Federal Judge They Cannot Produce the Names and Identities of All Immigration Detainees Held for More Than 6 Months
In response to a Federal Court Order in Case No. 11-Civ.-3786, ACLU v. U.S. Department of Homeland Security, federal prosecutors told the judge they can’t meet his demand that they quickly deliver documents about thousands of immigrants who’ve been detained nationwide for months or years as their immigration statuses are reviewed.The office of U.S. Attorney Preet Bharara laid out the government’s position to U.S. District Judge Richard M. Berman in a letter made public just before Christmas.The letter, dated December 23, 2013, came five days after the judge criticized the government, saying it had been on notice since the American Civil Liberties Union requested the documents nearly five years ago.
The ACLU eventually filed a Freedom of Information Act lawsuit in Manhattan federal court in 2011 seeking documents from the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement.
The ACLU questioned the practice of “prolonged immigration detention — for months, if not years — without adequate procedures in place to determine whether their detention is justified.” It cited a dramatic increase in the number of immigration detainees in recent decades, noting they weren’t serving criminal sentences but were being detained by the thousands to ensure they’re available for removal from the country if removal is ordered and appeals are exhausted.
The judge said the government’s continued refusal to produce documents had stymied efforts to reform a system in which thousands of immigrant detainees, some applicants for asylum, languish in immigration jails longer than six months.
He also attacked as “painstaking and riddled with further delay” the government’s process for releasing documents, saying the government hasn’t produced any documents since his Sept. 9 order to release documents and had at times claimed it would take seven years to produce 100 files.
The government, though, said in its letter it is “not feasible” to produce documents from more than 22,000 individual files as ordered but said it can produce a reliable sample of 385 files within 15 months, with rolling releases within eight weeks of a revised order.
In 2009, The Associated Press conducted a computer analysis of an Immigration and Customs Enforcement database obtained under the Freedom of Information Act, finding there were 32,000 immigrants from 177 countries detained, including more than 18,000 with no criminal convictions.
The analysis showed that nearly 10,000 had been in custody more than a month, that 400 of those with no criminal records had been locked up more than a year, that a dozen had been held for three years or more and that one man from China had been incarcerated more than five years. Many of the longest-term non-criminal detainees were asylum seekers.
The analysis was referenced in the ACLU lawsuit.
According to a 2001 U.S. Supreme Court ruling, immigrants are supposed to be deported or released within about six months. The steady increase in the number of immigrants held behind bars grew considerably after Congress passed a pair of laws in 1996 requiring immigrants who committed crimes be locked up for deportation. The numbers continued to rise after the Sept. 11, 2001, terrorist attacks and amid anti-immigrant political rhetoric.
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