Appellate Law & Practice

CA1: First sends Falun Gong practitioner back without taking appeal seriously

Lu v. Mukasey, No. 08-1113 (unpublished) (9/25/08).  The First Circuit denies of a petition of a Falun Gong practitioner, sending her back to China where she will, I am sure be able to practice her religion.  During my trip to China I met many people that claimed to be members of Falun Gong and said that there was “100% Human Rights #1 in China.” The First blows off the appeal, without providing specifics, and it is a mystery why they did not take this seriously.

Finally, it is strange that they say that the BIA is a “court.”

CA1:Cambodian fishing cop not oppressed

Nou v. Mukasey, No. 07-1546.  Judge Dyk of the Federal Circuit says this “we conclude that the BIA did not err in rejecting Nou’s asylum claim and in denying Nou’s petition for judicial review.”  I believe that he might not be that detail-oriented, because the BIA did not receive a petition for judicial review, but rather the First Circuit did.  This would appear to be a failure of detail-orientation, or maybe details are not important.  It would be interesting to get some clarification on that one. 

Anyway, the petitioner is a Cambodian who was “charged with enforcing Cambodian fishing laws.”  (There is no evidence that he attended a real law school.)  One day he was threatened by soldiers that wanted to fish using hand grenades which is technically illegal in Cambodia.  But, he was dogged.  He later on arrested other fishermen for using grenades and electricity to kill fish. However, the people arrested were of a different political party.  Later he was fired, and he left the country.

The IJ said that this didn’t look like political persecution.  Judge Dyk doesn’t perform much analysis.  Whatever. 

CA1: Massachusetts law on custody means that aggravated felon is a citizen and gets to stay

Pina v. Mukasey, No. 07-2311.  This is an actual legal issue involving immigration.  The issue comes down to whether someone is a citizen under the Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431.  The guy later committed an aggravated felony.  The IJ said he was a citizen.  The BIA said he wasn’t.  There was some question as to whether the petitioner was in the legal and physical custody of his father.  “The BIA interpreted Massachusetts law to require a court order or judgment of custody before the father of a child born out of wedlock will be deemed to have legal custody of the child. Pina’s parents did not have a formal court order related to his custody.”  Instead, they sort of arranged it between themselves. 

The First points out that under the older version of the statute, a foreign-born child could obtain derivative citizenship if both parents were naturalized, but under the newer version, only one parent is necessary.  But, the First says that state law governs the issues, and looks to the Massachusetts divorce statute.  Mass. Gen. Laws ch. 208, § 31 (2007).  The First disagrees with the way the government proposes to interpret Massachusetts law.  (I think the First is being a little hard on the government, actually.)  The First points to some Massachusetts caselaw which says that “custody” can be established without a court order.  Moreover, “Massachusetts statutes and cases suggest that in situations in which a child was born out of wedlock, as well as in divorce situations, agreements between the parents as to the upbringing and legal custody of the child are favored.”

CA1: Pakistani Shi'ite petition denied because of failure to substantiate Canadian petition

Khan v. Mukasey, No. 08-1135 (9/10/08) denies the petition of a Pakistani Shi'ite.  He says that Sunnis were harassing him or something.  He came to the US, but 9/11, he decided that the US wasn’t the best place to seek asylum and went to Canada.  The Canadians took his passport, denied him asylum, and sent him back to the US, after being detained at the border, he sought asylum.  The IJ found that a photocopy of his Pakistani passport wasn’t good enough, and he was not credible.  The BIA sort of went in a different direction, noting that he didn’t provide a copy of his Canadian asylum application.  Anyway, the First says what the BIA said is good enough.

CA1: Cambodian not that oppressed

Tieng v. Mukasey, No. 07-2233 denies a petition for review of a Cambodian who seems to have been widow of victim of some political violence.  The hearing before the IJ was a typical clusterf**k, with translation problems, and the IJ saying all sorts of crazy stuff.  The First says that her fears of future persecution could reasonable be held to be unreasonable.  Even though the IJ said that the government of Cambodia was “harsh” the First and the IJ delight in sending her back.

CA1: First disses brief

Kurniawan v. Mukasey, No. 07-2421 (8/28/08) (unpublished).  This denies the petition fore review of an Indonesian Muslim that converted to Christianity.  The First writes:

He argues that the persecution he suffered in Indonesia, in conjunction with the 2005 Country Report on Human Rights Practices in Indonesia, constitutes evidence sufficient to satisfy his burden. However, nothing in the record or in his woefully inadequate brief compels a contrary finding

Does this mean that the guy would get to stay in the country if the brief were adequate?

CA1: First usurps foreign-policy making role to help government

Datau v. Mukasey, No. 07-1996 denies a petition of an Indonesia Christian.  She looks Chinese.  The IJ said some weird things about how he had "concerns" about the truthfulness of the story, but didn't find it credible.  What does that mean?  I hate that word, "concerns."  The First seems to take particular delight by citing previous cases to establish whether an ethic group in a foreign country is oppressed or not.  This is a blatant usurpation of the executive's power.  Of course, because the executive wins they don't object.  And, since a foreigner loses, the Federalist Society doesn't care.  (Not that they have a coherent definition of "activist" beyond "things we don't like.")  But, the First seems to be not the "facts" of individual cases (as found in the record), but referring to other cases.  Anyway, the First says that she is unlikely to be persecuted when she goes back to that country.

CA1: Petition for review of Colombian asylum-seeker granted

Bonilla v. Mukasey, No. 07-1813.  The petitioner is a Colombian.  FARC was giving him a hard time.  So he moved to Venezuela, where he got a “permanent resident” stamp.  Then he went back to Columbia.  The IJ concluded that he was “firmly resettled” in Venezuela, and therefore he had “firmly resettled” there.  See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15.  He claims that he didn't really have permission to resettle in Venezuela, because the stamp expired, and he never really lived there.  The First says that the evidence is ambiguous – because renewal of the stamp might be just an administrative thing -- and the government bears the burden of showing resettlement.  So, the First remands.

CA1: Copt not that oppressed

Abdelmalek v. Mukasey, No. 07-2819 denies a petition for review of an asylum-seeking Egyptian Coptic Christian.  He is a doctor, whose wife owned a building that collapsed killing a lot of Muslims.  The First denies the petition for review.  However, saying that he wasn't really oppressed.  However, I am a little disturbed the First's remarks:

It is never a pleasant task to attempt to quantify an individual's suffering and measure it against the suffering of others, but it must be remarked that this court has recently denied petitions for review filed by other Egyptian Copts who suffered mistreatment at least equal to, if not greater than, that allegedly suffered by Abdelmalek.

See, remarks like this create dangerous precedent.  Courts adjudicate petitions for review on an individual basis.  They don't adjudicate the status of ethic groups or the suckiness of countries.  If anything, the State Department does this.  I discussed this here.

For the travails of another Coptic doctor see here.

CA1: pro-Western Algerian has to go back

Limani v. Mukasey, No. 07-2472 denies a petition for review of an Algerian with a late-filed petition.  These people seem to be fairly educated and avowedly “pro-American.”  Some Muslims don’t like this. However, everyone seems to think that the general Islamic hatred of pro-Western Algerians isn’t just general crime and not government-sponsored or tolerated crime.