Wednesday, September 18, 2013

Court Constricts Rights of Those Seeking Fear-Based Forms of Relief



The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued two decisions today restricting the ability of foreign nationals to obtain fear-based forms of immigration-related relief such as asylum and withholding of removal.

First, in a case called Garcia-Milian v. Holder the Ninth Circuit found that a woman could not establish that her suffering violent threats in her native Guatemala amounted to persecution based on a perceived political opinion despite such threats coming from individuals who were searching for her common-law husband because of his involvement in a guerilla group. The decision went further to find that the woman also had not established that the police in Guatemala were unwilling or unable to protect her from the threats despite the police’s declining to pursue the matter based on the conclusion that there was insufficient information.

Second, in a case called Kulakchyan v. Holder the Ninth Circuit held that one could not escape a potential frivolous-asylum-application finding simply by withdrawing the application. If an application for asylum is determined by an immigration judge to be frivolous, meaning it is wholly without merit potentially because it is fraudulent, then the applicant is barred not only from receiving asylum but also from receiving many other forms of relief including adjustment of status even if the applicant would otherwise have been eligible for a fraud-based waiver. In the decision, the Ninth Circuit deferred to the BIA’s determination that an Armenian woman’s asylum application was frivolous, triggering the devastating immigration consequences of such a determination, despite the woman’s later withdrawal of that application. The BIA had held, and the Ninth Circuit effectively condoned, that the filing of an asylum application is all that is required to begin an inquiry into whether such an application is frivolous, meaning the applicant does not even need to pursue it or otherwise seek a decision on it after filing for the application to be deemed frivolous.

The decisions are consistent with a similar decision issued at the end of last week by the Ninth Circuit in a case called Gutierrez v. Holder, which held that if the United States Department of Homeland Security (“DHS”) has evidence that a foreign national previously granted withholding of removal is no longer eligible for such relief because of some intervening occurrence, then it can seek to terminate the foreign national’s withholding-of-removal in conjunction with bringing removal proceedings, meaning without providing the foreign national a separate hearing on the issue of such termination. In that decision, the Ninth Circuit did not find that a Mexican woman was owed a separate proceeding solely for determination of whether her withholding-of-removal grant could be terminated and instead found that DHS could seek the termination in the context of new removal proceedings in which DHS need only show by a preponderance of the evidence that termination of such grant would be proper.

The cases show a trend toward making it more difficult for foreign nationals to obtain or maintain asylum, withholding of removal, and other forms of immigration-related relief if not careful in how they go about managing their immigration matter, something that should be taken very seriously.

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