In an unpublished decision, the Ninth Circuit Court of Appeals reversed both lower court decisions denying relief to our client, who had been held in immigration detention for several years. The Ninth Circuit, ruling in favor of the petitioner, found that he would be subject to torture if returned to his native country of El Salvador. The Court reasoned that an IJ’s adverse credibility finding does not preclude protection pursuant to the Convention Against Torture where it is more likely than not that the petitioner will be subject to torture. The decision resulted in the release of our client who had been held in immigration detention for several years without even being given an opportunity to seek bond. He is now free, living in California and counseling at risk youth through community and religious organizations.
See decision here: https://cdn.ca9.uscourts.gov/datastore/memoranda/2015/12/07/13-73958.pdf
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Mira Law Group Attorney Stanley Radtke’s appeal of a BIA decision, which he spearheaded as an Associate with his former employer, was ruled upon by the Ninth Circuit in an En Banc opinion. The Court affirmed Stanley’s argument, in part, by overruling the BIA rejection of Petitioner’s claim because he failed to prove that internal relocation was impossible. The Court ruled that neither the Petitioner nor the government should bear the burden to prove that internal relocation is impossible, when considering a non-citizen’s claim for withholding of removal pursuant to the Convention Against Torture. Rather, to the extent that internal relocation is an issue in the case, the Immigration Court should consider it when determining whether it is more likely than not that the Petitioner would be tortured if removed.
In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.
In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.
The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.
Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.