Top of the Ninth: Jun 01, 2018

The Ninth Circuit reminded us this week, that having a good theory of a case is not enough. We need to submit evidence to corroborate the case theory. The Ninth Circuit denied an asylum claim because while the noncitizen had a great theory as to why he qualified for asylum, he failed to submit any evidence of past persecution or any evidence that he feared future persecution. In other news, the Ninth Circuit denied one petition for rehearing en banc and granted a second petition for rehearing by the panel. No published decisions came down this week from the Board of Immigration Appeals or from the Attorney General.

In a bit of drama this week, Matthew Archambeault, an AILA attorney in Philadelphia, appeared at the Castro Tum hearing as a friend of the court and the Immigration Judge allowed him to make an appearance. As you might remember, the Attorney General referred a case to himself of an unaccompanied minor, who was not represented by counsel, and who had not appeared at any hearings, in order to limit the discretion of Immigration Judges and the Board of Immigration Appeals to administratively close cases. EOIR then scheduled the named Respondent’s hearing for two weeks after the Attorney General’s decision. The IJ relied on a memo that allowed for friends of the court for unaccompanied minors to let Mr. Archambeault appear. No one quite knows where Castro Tum is, and there has even been a “Go Fund Me” campaign to hire a private investigator to find Castro Tum. At the hearing, the IJ continued the case to allow Mr. Archambeault time to find Castro Tum and to represent him. According to Mr. Archambeault, one of the main issues for the IJ was did Castro Tum ever receive proper notice. Mr. Archambeault also reports that the original IJ, Judge Morley has been taken off the case and a new Judge Deepali Nadkarni has been assigned to the case.

I think the theme of this week, is just show up. Ninety percent of what we need to do in most of our cases is just show up. Matthew Archambeault just showed up for Castro Tum and may have changed the outcome of the case for him.

Ninth Circuit

Testimony Alone is Usually Not Enough – Under REAL ID You Need Evidence

The Ninth Circuit denied an asylum claim where the noncitizen failed to produce evidence of persecution or evidence of fear of future persecution to substantiate his testimony, even though he was given nearly eleven months to produce this evidence. Mr. Liu is a native and citizen of China. He was married in China and he and his wife had one child. Two years later his wife got pregnant. At the time, the Chinese government strongly enforced the one-child policy. The Chinese government forced her to get an abortion. Mr. Liu argued with the Chinese authorities at the time and the Chinese government detain him for about a month. Sixteen years later, he got a B-1/B-2 visa to come to the United States. After he came to the United States he applied for asylum. Back in 1996, Congress expanded the definition of a refugee/asylee to include those subjected to coercive family planning practices – so by 2009, when Mr. Liu applied for asylum, he had a pretty good claim and a pretty good theory of the case. At the Immigration Court hearing, the Immigration Judge (IJ) told Mr. Liu’s attorney that Mr. Liu’s testimony about coercive family planning needed to be substantiated by evidence. The case was continued for eleven months; but, Mr. Liu failed to produce any substantiating evidence of his claim at the continued hearing. The IJ denied the case and the BIA denied the appeal. The Ninth Circuit found that under REAL ID Mr. Liu had not sustained his burden to establish eligibility for asylum. The Ninth Circuit noted that if the immigration court determines that it needs corroborative evidence in addition to the testimony, the IJ must give the noncitizen notice and an opportunity to produce evidence or show why the evidence is not reasonably available. Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). Here the IJ gave Mr. Liu about eleven months to get corroborating evidence, but he failed to produce anything. Having a good theory of a case is not enough. You need evidence.

Liu v. Sessions, No. 12-74077 (9th Cir. June 1, 2018).

The Ninth Circuit Grants a Panel Rehearing and Withdraws the Original Case to Determine Whether an Arizona Misdemeanor Statute for a Crime of Domestic Violence is Categorically a Crime of Domestic Violence Under the Immigration and Nationality Act

The Ninth Circuit granted a petition for a panel rehearing and withdrew the underlying panel decision. Mr. Cornejo-Villagrana was convicted of misdemeanor domestic violence against his spouse in Arizona. In the original decision, the Ninth Circuit noted that the definition of a “crime of domestic violence” under INA § 237(a)(2)(E)(i) is a crime of violence as defined by 18 U.S.C. § 16 against a person who has a domestic relationship with the perpetrator. The Supreme Court in Sessions v. Dimaya, recently held that 18 U.S.C. § 16(b) is unconstitutionally vague. However, 18 U.S.C. § 16(a) still exists. The statute provides the offense must have “as an element the use, attempted use or threatened use of physical force against the person or property of another. That physical force must be violent force. Johnson v. United States, 559 U.S. 133 (2010). The Ninth Circuit originally found that the Arizona statute was divisible and the section of the statute that Mr. Cornejo-Villagrana was convicted under required violent force. The Ninth Circuit granted a panel rehearing.

One of the Amici Curiae briefs in support of rehearing was from the San Diego Federal Public Defenders Office, they argued that the Ninth Circuit improperly conflated the definition of a crime of domestic violence as defined by the U.S. Supreme Court in United States v. Castleman, __ U.S. __, 134 S.Ct. 1405 (2014) with a crime of violence as defined by 18 U.S.C. § 16(a) (which requires violent force under Johnson). The Amici brief noted that the Immigration and Nationality Act, section 237(a)(2)(E)(i) defines a crime of domestic violence as “any crime of violence (as defined by section 16 of Title 18).” Here is the interesting part, in Castleman, the Supreme Court noted that “domestic violence” is a term of art that includes conduct which would not be considered violent if it were employed against a stranger. However, because of the special relationship of trust in a domestic relationship, an otherwise non-violent act becomes violent if it is against a spouse, girlfriend, co-parent…. So, which definition applies? The strict definition of a crime of violence as defined by the Supreme Court in Johnson requiring violent force or the more encompassing definition of domestic violence as defined by the Supreme Court in Castleman. I think there is a strong argument that the crime of domestic violence as defined by INA § 237(a)(2)(E)(i) requires violent force under 18 U.S.C. § 16(a). I think we should be challenging the Ninth Circuit holding that a conviction under Cal. Penal Code § 273.5 (corporal injury to spouse, etc.) is categorically a crime of domestic violence. Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015).

I would like to give a special shout out to Michael Mehr who helped me clarify this posting and to Kara Hartzler from the San Diego Federal Public Defenders Office who generously sent me copies of the briefings in this case.

Cornejo-Villagrana v. Sessions, No. 13-72195 (9th Cir. May 30, 2018) withdrawing Cornejo-Villagrana v. Sessions, 870 F.3d 1099 (9th Cir. 2017).

The Ninth Circuit Refuses to Hear a Due Process Claim En Banc Where Noncitizen was Denied Counsel at the Outset of the Removal Process

The Ninth Circuit denied a petition to re-hear a case en banc. Mr. Gomez-Velasco was put in expedited removal proceedings under INA § 238(b)(1) (non-lawful permanent residents who have been convicted of an aggravated felony are subject to expedited removal). Mr. Gomez-Velasco was taken into ICE custody after being released from county jail. He refused to take a sworn statement before DHS officers without his attorney. But, he admitted the allegations in the notice to appear and conceded that he was removable to Mexico. Mr. Gomez-Velasco argued that DHS officers violated his right to counsel by pressuring him into conceding removability without the advice of counsel. The Ninth Circuit found that even assuming that Mr. Gomez-Velasco was denied his right to counsel under the Fifth Amendment, he did not establish that he was prejudiced by this denial. [Remember, Sixth Amendment rights to counsel do not apply to immigration proceedings]. In order to prevail in an ineffective assistance of counsel claim (or in this case, denial of assistance of counsel) under the Fifth Amendment the noncitizen must establish that s/he was prejudiced by the lack of counsel. Mr. Gomez-Velasco failed to establish prejudice.

Gomez-Velasco v. Sessions, 879 F.3d 989 (9th Cir. 2018) rehearing en banc denied, No. 71747 (9th Cir. May 31, 2018).