 NEWS FROM THE COURTS
Al-Saher v. INS, Ninth Circuit
In this case, the court ruled that while the applicant was not eligible for asylum, he should be granted relief under the United Nations Convention Against Torture.
Mudher Jassim Mohamed Al-Saher, a citizen of Iraq sought entry to the US in 1998 as a tourist. Lacking a valid visa, the INS found him inadmissible and placed him in removal proceedings. Al-Saher applied for asylum, arguing that if returned to Iraq, he would be persecuted on the basis of his political opinion.
In 1984, when applying for military service, Al-Saher stated that he was a Sunni Muslim from Baghdad; in fact he was a Shiite Muslim from Al-Bashra. He told an immigration judge the reason he lied was that persecution against Shiite Muslims by the Iraqi government. In 1997, Al-Saher’s father indicated that the family was Shiite on a census form, and Al-Saher was arrested for misrepresenting his religion and his place of birth. In prison, he was beaten on numerous occasions for two weeks. The beatings only stopped after his father paid a bribe to the government. After he was released and returned to work, Al-Saher questioned a work order and was again arrested. He was again repeatedly beaten and burned with cigarettes. He was released after a friend intervened but was again arrested after discussing hunger in the country. This time he escaped and fled to the US.
The immigration judge denied his asylum application, finding that while Al-Saher was a credible witness, he did not establish that he was persecuted on the basis of a protected ground. On appeal, Al-Saher agreed that his first two arrests were not on account of a protected ground, but argued that the third was based on a political opinion the government imputed to him after hearing him discuss what he saw as unfair patterns of food distribution. The Ninth Circuit found that the arrest was politically motivated, he had not suffered persecution.
Al-Saher also sought protection under the United Nations Convention Against Torture, which prohibits signatory countries from returning people to a country where there is a possibility that they would be tortured. The immigration judge had ruled that Al-Saher had not been tortured while in prison, a finding with which the Ninth Circuit disagreed. Moreover, the Ninth Circuit noted the widespread use of torture by the Iraqi government, and said that such information should be taken into consideration when deciding claims under the Convention. The court found that if returned to Iraq, Al-Saher would likely face torture, and ordered that he be granted withholding of removal.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/9971308p.pdf.
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In re Sotelo, Board of Immigration Appeals
In this case, the Board denied the application for cancellation of removal.
Javier Sotelo-Sotelo, a citizen of Mexico, became a US permanent resident in 1990. In 2000, he was convicted in federal court of various immigrant smuggling and document fraud offenses. He was placed in deportation proceedings and conceded his deportability, but sought cancellation of removal. The immigration judge denied the application, and Sotelo appealed to the Board of Immigration Appeals.
To be eligible for cancellation of removal, the applicant must have been a permanent resident for at least five years, have been a US resident for at least seven years, and cannot have been convicted of an aggravated felony. Even if an applicant meets these criteria, cancellation is discretionary and therefore does not have to be granted. In making his decision, the immigration judge said that Sotelo needed to show “outstanding equities” in order to qualify for cancellation, and found that he could not. The Board found that this requirement, which had been used under withholding of deportation, was no longer relevant because convictions for aggravated felonies now render a person ineligible for relief from removal. Instead, what the immigration judge must do is equally weigh the equities and adverse factors in each case.
Applying this standard, the Board found that Sotelo did not warrant a favorable exercise of discretion. While he had significant ties to the US, including family, a home and work, the Board found that his actions in violating US immigration laws and profiting from those violations overcame the equities of the case. Therefore, the Board upheld the decision to deny cancellation of removal.
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3460.pdf.
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