Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Immigration Law (page 1 of 2)

Thug Life: Cocaine, Marijuana Bars to Asylum

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Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

In the context of U.S. immigration law, seekers of asylum or refugee status must demonstrate “persecution.”Persecution involves three essential elements: the petitioner must establish harm, that the harm was authorized by a foreign government, and that the harm stems from race, religion, nationality, political opinion, or membership of a particular social group.

Jonathan Castillo-Ibarra, a 24-year-old citizen of El Salvador, applied for a withholding of removal and protection under the United Nations Convention Against Torture based on his former membership of Mara Salvatrucha, better known as MS-13.

Castillo-Ibarra originally entered the United States with a relative when he was 12 years old. He was placed in immigration proceedings, and in 2005 he received a final order of removal after failing to depart voluntarily. Instead of heading back to El Salvador, however, Castillo-Ibarra remained in the U.S. and became a member of MS-13. He was found in Indiana in 2011 with 21 grams of cocaine on his person, and was subsequently removed back to El Salvador.

Two months later he was found in Indiana again, and this time was arrested for possession of marijuana. This arrest led to Castillo-Ibarra’s previous cocaine charge being reinstated, and in December 2012 he was sentenced to 20 years imprisonment for dealing cocaine.

While in prison, the Department of Homeland Security contacted Castillo-Ibarra and notified him that he would be removed back to El Salvador pursuant to his 2005 order. Castillo-Ibarra, who had multiple tattoos indicating his membership in MS-13, stated that he was afraid to return to El Salvador because he had quit the gang and would likely be murdered in retaliation. His aunt had already been threatened and beaten, and Castillo-Ibarra himself had also been threatened. He stated that the police would likely not help him in El Salvador.

During an interview with an asylum officer, the officer concluded that Castillo-Ibarra did not have a reasonable fear of persecution or torture because no one had actually tried to harm him in El Salvador, and he couldn’t link possible gang retaliation with the government. Not only that, but an Immigration Judge also found that because Castillo-Ibarra had been convicted of a “particularly serious crime” (cocaine trafficking), he was not eligible to remain in the United States. The Board of Immigration Appeals agreed, and as a result Castillo-Ibarra filed a petition for deferral under the Convention Against Torture.

The Seventh Circuit Court of Appeals looked over Castillo-Ibarra’s petition, but eventually sided with the Immigration Judge and the Board of Immigration Appeals. As both previous agencies had noted, Castillo-Ibarra was barred from seeking a withholding of removal because he had already been convicted of a particularly serious crime.

Notwithstanding that determination, the Seventh Circuit also held that even if he had not been convicted, Castillo-Ibarra still would not be entitled to relief under the Convention Against Torture, because he had not shown that he more likely than not would experience severe pain and suffering authorized by the Salvadoran government. As a result, Castillo-Ibarra will be forced to return back to El Salvador, regardless of his previous convictions and former participation in MS-13.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Lack of Evidence in a Trans-Siberian Conspiracy

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Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

After reporting an illegal smuggling operation, Mongolian native Bayanmunkh Darinchulunn filed an application for asylum in the United States, alleging that he had been persecuted for his act of whistleblowing.

Darinchuluun, a resident of Mongolia, was employed by a railroad company in the Mongolian capital of Ulaanbaatar. The railroad company, which was a joint venture between Russia and Mongolia, assigned him the task of receiving and reviewing cargo that entered the city by rail.

In November 2004, Darinchuluun discovered guns and ammunition in a box that was meant to contain coal. He reported his findings to his immediate supervisor, who did nothing. Shortly afterward, Darinchuluun was attacked by a group of unknown individuals, who broke his arm and two other bones. As a result of the attack, Darinchuluun was hospitalized for twenty days.

The illegal shipments of weapons continued, and Darinchuluun finally mustered up the courage to contact the Russian director of the railroad. Darinchuluun remained in contact with the director, a man named Magdei, for the next few months. Following a meeting with Magdei, Darinchuluun was again attacked by an unknown assailant, this time being stabbed in the back.

Darinchuluun was forced to recuperate in the hospital for a month; however, his doctor’s description of the injury was extremely vague, stating “He [Darinchuluun] was knitted into his left hollow and vein and nerve was broke. He made surgery.”

After being discharged from the hospital, Darinchuluun and Magdei inspected a shipment of illegal cargo with the Mongolian police, who seized the contraband. A few days later, however, Magdei turned up dead, and the newspaper stated his cause of death as “accidental carbon monoxide poisoning from a heater while on a fishing trip.” Darinchuluun believed that Magdei had actually been murdered for his participation in the seizure of illegal cargo, and Darinchuluun fled to Switzerland, believing that he was the next one on the list.

Darinchuluun’s time in Switzerland was brief, however, as he was forced to return to Mongolia to take care of his father, who had been attacked and hospitalized after voicing complaints to the Mongolian Minister of Justice. While there, Darinchuluun was abducted and attacked yet again,and was later discovered lying on a railroad track by a railroad inspector.

Following this incident, Darinchuluun moved to Russia and lived there for two years. He had originally considered seeking asylum in Russia, but believed that Russian authorities would deport him back to Mongolia, where he had previously been attacked multiple times. Regardless of this fear, he then moved back to Mongolia and applied for a visa to enter the United States.

After moving to Illinois, Darinchuluun was attacked by another Mongolian national whom he knew, after getting into an argument about who had the superior immigration status. Darinchuluun said that he believed the person must have been hired to attack him by the Mongolian railroad company. The attack prompted Darinchuluun to file for asylum in the United States.

Darinchuluun spoke at a hearing before an Immigration Court. The Immigration Judge admitted that Darinchuluun’s story was persuasive and credible, but it was disconcerting that he had lived in two other nations (Switzerland and Russia)and had not sought asylum there. The worst part about Darinchuluun’s application, however, was the fact that he provided next to no evidence to actually support his story. The Immigration Judge held that Darinchuluun had not provided sufficient evidence to meet his burden of proof, and denied his application.

Darinchuluun tried to present new evidence in an appeal with the Board of Immigration Appeals, but that appeal was denied. As a result, Darinchuluun petitioned for administrative review of his application denial with the Seventh Circuit Court of Appeals.

In an opinion written by Judge Kenneth Ripple, the Seventh Circuit held that both the Immigration Judge and the Board of Immigration Appeals properly denied Darinchuluun’s application for asylum. Judge Ripple summed this up by stating, “An immigration judge now enjoys substantial leeway to demand corroboration of an asylum applicant’s allegations whether or not the judge finds the applicant credible.” The Seventh Circuit was satisfied by the Immigration Judge’s rationale for requiring corroborative evidence, especially considering that Darinchuluun had not applied for asylum in any other country.

The Seventh Circuit further held that Darinchuluun never established the fact that he was unable to procure evidence for his original asylum hearing. As a result, he was precluded from attempting to bring in new evidence for his appeal with the Board of Immigration of Appeals. Thus, the Seventh Circuit held that the Board of Immigration Appeals properly denied Darinchuluun’s asylum appeal.

While Darinchuluun’s story may seem incredible to some, the important take-away in this case is that even in asylum cases, plaintiffs must provide evidence to meet their burden of proof during initial court proceedings. A plaintiff cannot wait to establish new evidence on appeal; it must be done at the trial stage. If it cannot be done at the trial stage, they must explain why it cannot. Darinchuluun was unable to meet this burden, and as a result his application for asylum was denied.

Does the Second Amendment Apply to Non-citizens?

Does the Second Amendment apply to noncitizens?

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

On August 20, 2015, the Seventh Circuit dealt with the question as to whether or not undocumented noncitizens residing within our country have the right to bear arms under the Second Amendment.  In United States v. Meza-Rodriguez, the Court grappled with this question and answered in the affirmative noting that illegal aliens are among “the people” of our “national community” protected by the Constitution.  However, the Second Amendment’s right to bear arms is subject to limits set in place by acts of Congress.  Congress passed 18 U.S.C. § 922(g)(5) to curb gun violence and forbids any person illegally or unlawfully in the United States to possess a firearm.

The City of Milwaukee police officers arrested Meza-Rodriguez–an undocumented alien–after a bar fight and seized a .22 caliber cartridge on his person. Defendant pleaded guilty to possessing a firearm by an illegal alien in the District Court for the Eastern District of Wisconsin, but argued that § 922(g)(5) infringed on his Second Amendment constitutional right. The district court held that the right to bear arms does not extend to unauthorized aliens within our borders.  However, the Seventh Circuit disagreed with that rationale and ruled that the Second Amendment accords undocumented immigrants the same privilege enjoyed by all citizens of the United States.

In countering this argument, the government said that unauthorized noncitizen’s lack of social obligations should disqualify them as being part of “the people” of the United States. In addition, the government contended that defendant’s troublesome reputation, his inability to maintain a job, and his failure to file tax returns are telltale signs that he has not fully accepted his social obligations.

As interpreted by the Seventh Circuit, “the people” means all inclusive as employed in the First, Fourth, Ninth, and Tenth  Amendments, and any person with “substantial connections” with this country is protected under the Constitution’s umbrella.  “Substantial connections” includes being a resident, attending public schools, having employment, sustaining relationships with family and friends, and the continuing expansion of extensive ties in this country.  An undocumented alien who has developed substantial connections after entering the United States’ territory is entitled to constitutional protections, declared the Seventh Circuit.

Under the Court’s reasoning, Meza-Rodriguez fits the test of having “substantial connections” with this country; thus the defendant is entitled to the privilege of the Second Amendment.  Although Meza-Rodriguez may invoke his right to bear arms, his status as an illegal alien subjects him to restrictions under § 922(g)(5) which does not infringe on his constitutional right to bear arms.

Congress passed the statute in question as a means to combat crime and to prohibit gun possession by dangerous or irresponsible individuals. People who are unlawfully in the United States or unauthorized aliens fall into the statute’s proscription because law enforcement has great difficulty in identifying them due to their elusiveness and ability to evade detection

The Seventh Circuit sits alone in holding that undocumented noncitizens are among “the people” entitled to the Second Amendment right to bear arms.  The Fourth, Fifth, and Eight Circuit Courts of Appeals all have ruled against recognizing unauthorized noncitizens within the purview of “the people.” Is the rift from this controversial issue a prologue to a showdown before the Supreme Court to address which individuals possess this right and perhaps other rights that belong to “the people?”

7th Circuit Extends Second Amendment Rights to Unauthorized Aliens

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By: Scott Johnson
Juris Doctor Candidate, 2016
Valparaiso University School of Law

MADISON, WI- Last month the United States Court of Appeals for the Seventh Circuit ruled on a seemingly narrow issue in the case U.S. v. Meza-Rodriguez when it considered, “Whether unauthorized aliens have rights under the Second Amendment?” However, this issue has much broader implications to the rights of many who live within our borders.

Many of our liberties apply only to legal citizens of the United States, but some like the freedom of expression, free speech, and protections against unreasonable searches and seizures extend to citizens and non-citizens alike. For example, even foreign tourists enjoy the protection against unreasonable searches. These constitutional rights extend to anyone within the jurisdiction of the United States including the 11.4 million undocumented immigrants living here.

The court per Chief Judge Diane Wood held that unauthorized aliens were “People” within the Second Amendment. The Seventh Circuit also ruled that the federal statute used to convict the defendant on being here illegally and possessing a firearm remained valid law.

Mariano Meza-Rodriguez’s parents brought him to the United States from Mexico when he was four years old. He grew up in Milwaukee, held employment there, and attended public schools in the city. Meza-Rodriguez never acquired the necessary paperwork to become a legal citizen. In 2012, Meza-Rodriguez was arrested following a bar fight in downtown Milwaukee. Though some witnesses claimed Meza-Rodriguez may have had a gun earlier that night, MPD only found a single .22 caliber round in his pocket. He was indicted under a federal law, specifically 18 U.S.C. § 922(g), which bans anyone in the country illegally, from possessing firearms or ammunition.

Like the Fourth Amendment, the Second Amendment suggests a right that belongs to “the People”. The Fourth Amendment guarantees, “The right of the people to be secure in their persons, houses, papers, and effects…” Similarly the Second Amendment protects, “The right of the people to keep and bear Arms…” This is significant because in Meza-Rodriguez, the government argued that an undocumented immigrant charged with violating a federal law was not part of “the People” who benefit from Second Amendment rights.

The Seventh Circuit dismissed the government’s argument holding, “There is no principled way to carve out the Second Amendment and say that unauthorized aliens or even all non-citizens are excluded.” The majority relies overwhelmingly on a Supreme Court decision from 1990 called U.S. v. Verdugo-UrquidezIn Verdugo-Urquidez, the Court held that, “Aliens receive constitutional protections when they have come within the territory of the United States and have developed substantial connections with this country.” Meza-Rodriguez had lived in this country for over a decade where he developed close relationships with family, friends, and employers, all which signify his ties to the community.

Like the First, Fourth, and Fourteenth Amendment, the founders used the term “the People” instead of word “Citizen” in the Second Amendment. These two words have distinct constitutional meanings and cannot be used interchangeably. The word “Citizen” is used extensively in Article II of the Constitution to define who can vote and run for office. This distinction shows the founders intent of using the term “the People” to define more than just legal citizens but anyone within the jurisdiction of the United States.

There is an inherent danger by not defining people like Meza-Rodriguez asthe People” under the Constitution. The issue is far wider than simply a case about gun-rights because it provides legitimacy to nativists in denying liberties and protections to non-Citizens. If aliens are not considered “ the People” under the Constitution it could open up further degradation to the rights of millions.

This may seem like a slippery slope argument but a secondary holding in Verdugo-Urquidez was that the Fourth Amendment rights of aliens depend on their affinity to the United States. The court upheld the government’s illegal search of Verdugo-Urquidez’s home because he did not establish enough connections to the United States. Some will argue that this ruling will give illegal immigrants the green light to carry weapons free from government regulation. However, these skeptics miss the second portion of this ruling. The Seventh Circuit never overruled the constitutionality of the federal statute on aliens possessing guns or ammunition.

The significant holding was that unauthorized aliens are now considered “the People” within the definition of the Second Amendment. Nonetheless, government regulation of firearm ownership is certainly valid according to the Supreme Court and is based on numerous factors including past criminal history and mental illness. This decision does little to progress the agendas of either the NRA or gun control advocates. The significance of Meza-Rodriguez lies in its potential consequences for undocumented persons. Specifically in regards to the First, Fourth, and Fourteenth amendments if unauthorized aliens are not considered “the People” under the Constitution it would lead to further police harassment of millions.

Joseph Bugni, Meza-Rodriguez’s attorney plans to ask all nine judges of the Seventh Circuit to review the decision. His argument is that the court’s holding contradicts itself in regards to the statute and the Second Amendment. The fact several federal courts are divided on this question and the contradiction in the law itself make it very likely that this issue will eventually appear in front of the Supreme Court.

Wikipedia & Lack of Evidence No Bar to Asylum Seeker’s Request

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

Asylum seekers are not here in the United States under the best of circumstances in any given case. They come seeking protection from governments and people who would do them harm if they stayed in their homelands. When they do arrive, they must prove to the United States government that they meet the requirements to stay. Proving that you are worthy of asylum is no easy task; it is not made any easier when the immigration judge gives you the vexatious task of retrieving evidence from the country you just fled so you can stay in the United States.

Lucy Sibanda arrived and sought asylum in the United States in 2009. In her application, Sibanda stated that after her husband died, her politically powerful brother-in-law attempted to rape her and force her to marry him. The brother‐in‐law was enforcing the custom of “bride‐price” or lobola, as practiced by several tribes in Zimbabwe. After she applied for asylum, the government started removal proceedings. The Immigration Judge denied Sibanda’s application, in part for lack of corroboration of the alleged custom and the crimes and threats against her.

While the Board of Immigration Appeals found her account credible, it dismissed her appeal because of insufficient corroboration. Sibanda produced several pieces of evidence but with the police, tribal leaders and even her own family against her, she could not gather enough official documents or affidavits to satisfy the Immigration Judge or the Board of Appeals.

In a show of common sense, the Seventh Circuit Court of Appeals reversed the lower courts’ decision. Chief Judge Wood, writing for the court, began the court’s analysis noting that immigration judges may ask for corroborating evidence, but statute dictates that the asylum seeker may be excused from producing such evidence if the seeker does not have it and cannot reasonably obtain it. The question before the Seventh Circuit then became whether or not such corroborating evidence was available to Sibanda.

The Seventh Circuit reasonably found that it would have been impossible for Sibanda to furnish any more corroborating evidence than she had, and that it was unreasonable for the Immigration Judge to ask for it, especially after finding her story credible. It would be impossible to obtain affidavits from members of the community who turned hostile against her, and furthermore,there were no records from the police that she could have obtained because the police never would have filed a report when they refused to get involved.

Fault was also found with the lower courts. It seems that what little corroborating evidence provided by Sibanda to prove she had been attacked and ignored by the police was mistakenly discounted by the Board of Appeals. In a much more embarrassing irregularity though, the immigration judge at the initial trial brought in outside evidence in the form of a Wikipedia article on the custom of “bride-price” and quizzed Sibanda on the information he found, comparing her answers to the Wikipedia article. This is the second time the Immigration Judge has consulted Wikipedia outside the record in a proceeding and was done in spite of the fact that Immigration Judges are free to consult and enter into the record reliable, freely available sources of information, such as State Department reports on the matter of “bride-price.”

The matter of whether or not corroborating evidence was reasonably available to Sibanda was settled clearly by the Seventh Circuit but several other minor issues still must be addressed. While the case was remanded back to a lower court, the decision by the Seventh Circuit nonetheless marks an understanding that asylum seekers should not have unreasonable burdens placed upon them to prove that they are being persecuted. People in the position of fleeing their homes for safety do not have access to the necessary documentation of their persecution mid-flight. To require more than what is possible for asylum seekers to obtain undermines the asylum system itself.

Some Evidence Beats No Evidence

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

Forgetfulness is not enough to deport you from the United States, at least if there is no rebutting evidence. The Seventh Circuit Court recently overturned an Immigration Board of Appeals ruling, holding that having faulty memory does not bar a plaintiff from carrying their burden of proof.

The facts of the case begin in 1999, when Mr. Juan E. Lopez-Esparza illegally entered into the United States. With the exception of several trips to Mexico, Mr. Lopez-Esparza continuously remained in the country. In 2008 his illegal status was ascertained during a traffic stop, and two years later he received a notice to appear for a removal hearing.

Central to the case was whether or not Mr. Lopez-Esparza had remained in the United States continuously. The administrative judge granted that Mr. Lopez-Esparza had been in the United States for 10 years in order to request a cancellation of the removal under U.S.C. § 1229b(b)(1)(A). However, under § 1229b(d)(2), the time spent in the country must be continuous, leaving the country for no more than 90 days at one time or 180 days in aggregate.

Mr. Lopez-Esparza gave testimony that he had not left the country enough to break either of those time limitations, but could not come up with exact dates of entries or exits in and out of the United States. The judge ruled that the testimony was incomplete and therefore could not be used to satisfy the plaintiff’s burden of proof for proving continuous residence. The Immigration Board of Appeals agreed and the case went up to the Seventh Circuit.

Luckily for Mr. Lopez-Esparza, the Seventh Circuit understood that it is hard to remember events that occurred a decade ago, and that while a recollection of those events may be incomplete, it is nonetheless still evidence. As the court explains, the problem the judge had “was not appreciating the limitations of recollection.“ Just because Mr. Lopez-Esparza could not remember the exact dates does not mean the testimony was not enough to show a preponderance of the evidence, or that it was more likely than not. Weak evidence is better than no evidence, and the Seventh Circuit remanded the case back to the Immigration Board of Appeals to consider whether or not the plaintiff had met his burden with the new ruling giving guidance.

Preponderance of the evidence is already a very low standard to meet. The Seventh Circuit’s ruling may have lowered it even further, at least in immigration cases. The Court stopped short from stating that Mr. Lopez-Esparza had proven his case for cancellation of removal, but there does not seem to be any other way to interpret this since the continuousness issue was the only matter to consider. At least here, the Seventh Circuit endorses that almost any evidence, incomplete or not, is sufficient to bounce the burden of proof to the government to disprove.

Only time will tell how this affects immigration cases, but for now, it means that Mr. Lopez-Esparza will most likely be staying in the United States.

One Set of Papers, Please

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

Last week I brought you the story of Mr. Ruiz-Cabrera, an illegal alien who argued that he should be allowed to stay in the United States because he was too afraid to go back to his wife in Mexico. The 7th Circuit denied his petition and held that having marital problems isn’t enough reason to be allowed to stay in the country. This week the Court took a closer look at another immigrant’s petition to be allowed to stay in the United States and considered the curious case of a petitioner who had more documentation of his identity than was good for him.

Judge Hamilton delivered the judgment of the Court in Singh v. Holder, beginning his opinion with a quip about how not even Mycroft Holmes could deduce the true identity of Mr. Tarsem Singh, or, as one of this three birth certificates and multiple passports listed him as, Simranjit Singh. Mr. Singh was a born citizen of India who immigrated to the United States at some point in 1990’s by means of a smuggler to live with his father. The exact date of his birth and entry into the country are in dispute though, as none of his documentation is consistent. His birth date ranges on his multiple birth certificates and passports from the late 1970’s to the early 1980’s, and his date of entry to the country ranges between 1994 and 1997.

One of the few facts not in dispute though is that in 1997, on a bus ride to his job, Immigration and Naturalization Service (INS) agents detained Mr. Singh. The INS inspection of his documents show that he was 19 years old at the time and had been admitted to the United States just one week before he was detained. Mr. Singh was represented by counsel at the time of the detention, received a Notice to Appear for a future court date and was released to his employer. Mr. Singh denies that those facts and dates were correct, and that at the time he his knowledge of the English language was too poor for him to understand anything that was happening.

After the detention, Mr. Singh alerted his father to the stop. His father quickly assembled a new identity for his son, and Mr. Singh had lived as the older Simranjit Singh ever since. Notice of an immigration hearing was sent to Mr. Singh’s employer, but never passed on to Mr. Singh himself or his father. Mr. Singh never appeared in front of the immigration judge per the 1997 Notice to Appear, and in his absence, was ordered deported in absentia. It was not until 2010 however that Mr. Singh would appear to the immigration authorities. He presented himself to the INS and argued that the 1997 order for removal should be vacated for two reasons. First, Mr. Singh argues that his due process rights had been violated because of improper service relating to his  to poor English skills and his young age at the time, and second, that he was properly inspected and admitted into the United States and therefore eligible for discretionary cancellation of his removal. Both the initial immigration judge and the Board of Immigration Appeals disagreed with Mr. Singh, and the 7th Circuit upheld their rulings.

To put it simply, the 7th Circuit denied both of Mr. Singh’s arguments for the reason that he had too much conflicting documentation. The first argument was found to be lacking in substance. Mr. Singh argued that he did not understand what was stated on the paper and had no idea he had to reappear at a later date due to his age and poor English. But, under INS regulations, personally serving a Notice to Appear is proper service for people over the age of 14, regardless of whether or not it is served in their language. Furthermore, Mr. Singh presented himself as a 19 year old at the time of the detention, and even though he has one passport and birth certificate showing that he was 14 years old at the time, he has others that show he was the original age stated. Even more telling, the Court found that Mr. Singh must have been properly served and on notice since his father considered the incident  important enough to fraudulently obtain a new identity for his son to avoid being deported.

The Court also disagreed with Mr. Singh’s second argument for discretionary reversal of the removal decision based on proper inspection and admittance into the United States. As with the first issue, the Court simply found that Mr. Singh’s arguments lacked any credibility due to the large amount of conflicting documents and fraudulent activity that he had been involved in. His entry to the United States had been through a smuggler, his identity had been concealed from the government for years now and the Court could not even be certain of his name. He simply could not prove by clear and convincing evidence that he had ever been inspected and admitted properly into the United States; the Court denied Mr. Singh’s petition altogether and upheld the decision of the lower courts.

It is unfortunate for Mr. Singh that the Courts did not grant him a favorable outcome. The record shows that he has spent a large portion of his life living and working in the United States. At the same time though, the Court came to the correct conclusion. It is impossible for a court to find a favorable outcome for a petitioner when the court doesn’t even know who the petitioner might actually be. Layers of fraud upon fraud rarely win a court’s trust, and when a court cannot trust a person to tell the truth, the person pays for it.

Love is…Fleeing the Country to get away from your Wife

By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

The US government will consider an asylum request on many grounds. First, you have to show that you have been persecuted.  But its not enough to just be persecuted; according to Title 8 Section 1101(a)(42)(A) of the U.S. Code, the persecution must stem from your race, religion, nationality, political opinions or membership in a particular social group. The first four are rather self-explanatory. But membership in a particular social group can be rather vague. Thankfully, the 7th Circuit has narrowed down the definition by eliminating a potential category from the list of accepted social groups: those who are married.

The case of Ruiz-Cabrera v. Holder centers on Benjamin Carlos Ruiz-Cabrera’s petition for asylum from his vengeful wife, who is the mayor of their town and a political leader. Mr. Ruiz-Cabrera began dating his future wife in 1989 and had several children with her. As recounted on page three of the opinion, during the more than a decade he spent with her, Mr. Ruiz-Cabrera alleges that his wife would often become violent and encourage other men to fight him. He alleges that he was once shot at over rumors spread by his wife of an affair with another married woman. Twice, he believed that Mexican police were directed by his wife to detain him and harass him. In 2000, Mr. Ruiz-Cabrera says he married his now-wife in order to protect his children, but just a year later, he fled to the United States. He came to the attention of immigration authorities in 2009 after an arrest, but applied for asylum soon afterwards. Mr. Ruiz-Cabrera conceded that he could be removed to Mexico, but he applied for asylum, stating he feared returning to Mexico due to threats and his wife’s threats and accusations that he mistreated her.

In arguing for asylum, Mr. Ruiz-Cabrera put forward three arguments. First, that he would be persecuted for political opinions that could be attributed to him since he went against his wife, and seemingly his wife’s political party. Second, that under the U.N. Convention on Torture, the United States could not deport him since he was likely to be tortured if returned. And
third, that he was a part of a particular social group: people who fear harm from politically connected spouses. While the immigration judge found the reports of his abusive wife credible, the immigration judge and reviewing Board of Immigration Appeals did not find that the evidence supported any of the three arguments put forward, so Mr. Ruiz-Cabrera appealed to a higher court.

Unluckily for Mr. Ruiz-Cabrera, the 7th Circuit panel was not persuaded by his arguments. In affirming the lower courts’ judgments, Judge Hamilton explained that each of Mr. Ruiz-Cabrera’s arguments lacked specific requisites for his claims, mainly any substantial evidence or showing supporting any of his claims. Mr. Ruiz-Cabrera had not shown that he would suffer any harm that specifically amounted to torture under the U.N. Convention Against Torture, nor was there any proof that anyone in Mexico would persecute him for holding any specific political opinions contrary to his wife’s.  The 7th Circuit put the most consideration into the last of Mr. Ruiz-Cabrera’s arguments.

The Court first considered what exactly a ‘particular social group’ is, since it is not clear from the statutory text. As defined by the Board of Immigration Appeals, a ‘particular social group’ is “limited to those groups whose membership is defined by a characteristic that is either immutable or so fundamental to an individual identity or conscience that a person ought not to be required to change.” Mr. Ruiz-Cabrera argued that his proposed group is valid because its members, people who fear harm from their politically- connected spouses, share the characteristics of being married, and that the identity of one’s spouse or former spouse is an immutable characteristic.

All three courts rejected this proposed group, and for good reason. The common characteristic of a particular social group’s instances of asylum cannot simply be sharing the characteristic of being persecuted. The persecution must be tied to an immutable trait, and the trait that Mr. Ruiz-Cabrera put forward isn’t much of a trait at all. Instead, as the court notes, it is merely the relationship that the alleged persecutor has to the persecuted. To put it simply, the proposed particular social group put forward by Mr. Ruiz-Cabrera to the Court only has one member: Mr. Ruiz-Cabrera. It is only he who is being persecuted by his wife. A group that has one member isn’t much of a group at all. The Court agreed with the lower courts’ conclusion that Mr. Ruiz-Cabrera was not part of a persecuted group, but was instead, embroiled in a particularly nasty personal dispute with his wife. With that, the Court upheld the lower courts’ decisions, and denied Mr. Ruiz-Cabrera’s petition for asylum.

While it’s unfortunate that Mr. Ruiz-Cabrera will have to go back to his wife, the Court cannot carve out individual exceptions for asylum to cater to personal disputes. The asylum system exists to protect groups of people experiencing unjust persecution in their respective countries, not to protect individuals from their angry spouses. Any exceptions to the system are simply improper, and future asylum seekers should be wary of seeking asylum under the banner of fleeing from a vengeful spouse.

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