Valpo Law Blog

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

Category: International Law

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.

Consular Notification: Police Do Not Have to Inform the Uninformed

Map

The above picture consists of the states involved in the 1963 Vienna Convention on Consular Relations; the green states represent parties to the Convention; the yellow states are signatories; the red states are non-signatories

By: Andrea J. LaMontagne
Valparaiso University School of Law
J.D. Candidate, 2016

Pursuant to Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), authorities that arrest or detain an individual within another state are required to inform the individual of his or her rights to have their consulate notified of the incident. In March of 2009, Illinois State Police Officer Todd Zeigler arrested a Nigerian citizen, Uche Mordi after a K-9 unit discovered drugs within his vehicle. Zeigler did not inform Mordi of his right to have his consulate notified upon his arrest- perhaps because Zeigler was unaware of Mordi’s citizenship status.

In the case at hand, Mordi brought an action under 42 U.S.C. § 1983 against three state police officers who did not comply with their obligations under the VCCR. The officers who were involved were Officer Todd Zeigler, who arrested Mordi, and Officers Greg Chance and Gregg Healey, who interrogated him. The issue in the case was whether the officers’ conduct was so clearly a violation of established law as to overcome their defense of qualified immunity.

Mordi informed Ziegler during the arrest that he had been born in Nigeria. However, Zeigler did not suspect that Mordi was a Nigerian citizen. As the Seventh Circuit Court of Appeals discussed in its decision, Mordi could have easily been born in Nigeria and could have become a citizen since that time.

In reaching their decision, the Seventh Circuit Court of Appeals discussed the recent United States decision Plumhoff v Rickard (an analysis of the case is available here), where it was held that the “crucial question” in deciding whether an officer of the law is within the scope of qualified immunity is determining by “whether the official acted reasonably in the particular circumstances that he or she faced.”

Holding in favor of the officers, the Seventh Circuit Court of Appeals held that, because reasonable officers in the same situation might have reacted in a similar manner and might not have realized the need for informing the individual of their rights to consular notification, the officers involved in the incident could not be held responsible for failing to inform Mordi of his rights.

More significantly, there is no clearly established law as to when VCCR notification must occur. The U.S. Supreme Court in Medellín suggested that such notification must occur within three working days. Since these officers only had contact with Mordi for a matter of hours, they were not sufficiently on notice of an individual responsibility to notify him of his VCCR rights during their relatively short interaction with him.

Although at first glance this decision might seem to have negative consequences, the value of the decision becomes apparent when one considers the importance of allowing officers to possess qualified immunity. Qualified immunity allows law enforcement professionals to make decisions with the best judgment they can in a moment when they often do not possess all of the facts. This case decided only the question of the officers’ liability for violating Mordi’s civil rights. He may have an opportunity to raise the VCCR issue on collateral appeal if he has not waived it.

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