Gloria Arevalo v. John Ashcroft

In this case from the First Circuit, the petitioner, Ms. Arevalo, had first arrived in the United States in 1986 under the pseudonym “Maria Guadalupe Sillas-Mendoza.” She had been apprehended by the INS and due to the fact that she had not been legally admitted to the U.S. and did not have proper documentation, an immigration judge had ordered her deported to Guatemala. However, in 1990 the petitioner had illegally reentered the United States, using the name “Gloria Arevalo.” She had remained here from that time forward and given birth to two children, both of whom are American citizens.

Acting under the INA’s current reinstatement provision, the INS had resurrected the previous order of deportation and instructed the petitioner that she had no right either to seek a hearing before an immigration judge or to apply for discretionary relief. The petitioner challenged the Attorney General’s authority to summarily reinstate the previous order of deportation. This case from the U.S. Court of Appeals for the First Circuit had to answer two questions:

1. What standard is applied by the new law when considering whether to grant stays of removal pending an appeal.
2. Whether the new statutory procedures for reinstating previous removal orders can be applied retroactively to an illegal reentrant who had requested discretionary relief before those procedures took effect.

In answer to the first question, the First Circuit held that under the new law such stays of removal are guided by essentially the same standard that informs the grant or denial of preliminary injunctions. The proposal by the INS that the clear and convincing evidence standard should apply to a stay of removal was rejected and the court adopted the preliminary injunction standard. Under this standard the petitioner must demonstrate

(1)     That she is likely to succeed on the merits of her underlying objection;

(2)     That she will suffer irreparable harm absent the stay;

(3)     That this harm outweighs any potential harm fairly attributable to the granting of the stay; and

(4)     That the stay would not disserve the public interest.

In answer to the second question, the First Circuit held that the recent changes to the reinstatement provisions of the INA would, if given retroactive effect, unfairly attach new legal consequences to the petitioner’s preexisting application for an adjustment of status. Therefore it was held that the new reinstatement provision could not be applied in this instance.

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Xuan Wang v. John Ashcroft

In this case from the Ninth Circuit, Xuan Wang (“Wang”), the petitioner, appealed the Board of Immigration Appeal’s decision which had affirmed the Immigration Judge’s (IJ’s) adverse credibility determination. The IJ had found Wang removable from the U.S. because she had been employed without authorization while present in the U.S. as the spouse of a nonimmigrant student. Wang had then applied for asylum and withholding of removal because she had been subject to two forced abortions pursuant to China’s strict one-child policy, and would be subject to sterilization procedures if she returned to China. She had provided testimony and documentary evidence that she had had two forced abortions. The Ninth Circuit reviewed the BIA’s decision to determine whether it was supported by substantial evidence.

The Ninth Circuit determined that the plain statutory language provides that forced abortions are per se persecution and trigger asylum eligibility. The statute also provides protection for individuals who are forcibly sterilized. Since Wang had established past persecution through two forced abortions and an IUD insertion, there existed a rebuttable presumption that she had a well-founded fear of future persecution.

The INS could have rebutted this presumption by showing, by a preponderance of evidence, that the conditions in the applicant’s home country had changed such that she no longer had a well-founded fear of persecution. The INS was not able to present such evidence to rebut the presumption, and therefore did not meet its burden.

Although there were discrepancies in this case, the Ninth Circuit found that these discrepancies did not go to the heart of Wang’s asylum case, and therefore cannot constitute substantial evidence. For instance, Wang had failed to remember the exact date on which she was subjected to abortion and an IUD insertion was not material. It was held that discrepancies in dates which do not reveal anything about an asylum applicant’s fear of her safety are not an adequate basis for an adverse credibility finding.

The Ninth Circuit concluded that:

1. The BIA erred in denying Wang’s application for asylum because the adverse credibility determination was not supported by substantial evidence; and
2. The INS failed to rebut the presumption of future persecution.

It was decided that Wang had established her eligibility for asylum with credible, direct and specific evidence of past persecution and had shown a genuine and well-founded fear of future persecution should she return to China.