News From the Courts

Posted on: January 24th, 2018
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CA9 Vacates Denial of Chinese Petitioner’s Asylum Application

Xinbing Song, a citizen of China, filed a petition for review of the decisions of an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) each of which denied Song’s application for asylum. Before coming to the United States, Song resided in China’s Hunan province, where in 2009, the local government informed him of its plans to demolish and rebuild the building in which Song lived, and had been living for over 10 years. This practice of demolishing and rebuilding buildings was relatively common in China, and it was a major point of contention among members of the public, who were rarely provided proper financial compensation for their domiciles. It became commonplace for the government to collude with property investors, allowing the bare minimum property value to be given to residence who were forced into eviction. Song faced a similar situation, when the government offered him a total of 6,500 Yuan for his property. The law requires the government to compensate owners of commercial properties between 11,000 and 13,000 Yuan per square foot and between 3,000 and 4,000 Yuan per square foot of residential property; the lower floor of Song’s property was commercial, and the upper floors were residential. Once Song realized that not only he, but also his neighbors in the building, he organized a protest at the local government office. The government officials disbanded the protest after some time, claiming it to be “anti-government” and “not right,” but not before identifying Song as one of the leaders of the protest and informing him of the government’s intent to notify everyone of its plans regarding the demolition within a week. Song informed them that the protests would continue if the residents were not given the fair compensation they sought.

On August 5, 2009, Song received the government’s notice informing him of its plans to continue with the demolition as planned, and Song continued his protest. Song hung a banner outside his unit stating that he would rather die than relinquish his property, and he moved his belongings into a unit in his building which had been vacated after the notice of demolition and began sleeping there. Twelve days later, Song was forcibly removed, charged with interfering with official duties, and taken to a detention center. While at the detention center, Song was tortured by police who physically assaulted him and encouraged his cellmates to do the same. Song was also forced to spend an entire night in a squatting position, while officials interrogated him. They alleged Song was being “anti-government” that he was “subvert(ing) the government, and that he was “preventing the [government] official from doing official duties” and demanded his confession of those crimes. When Song refused to comply, they assaulted him with a baton and electric baton until he was rendered unconscious. His family managed to acquire the 10,000 Yuan required for Song’s release, after which the government mandated that he maintain weekly contact. Fearing he would inevitably be arrested and tortured again, Song fled to the United States, entering the country on a visitor’s visa in January 2010.

The decisions made by the IJ and BIA rejecting Song’s asylum claim and ordering his removal to China were predicated on the conclusion that the punishment received by Song was motivated not by the voicing of his political dissent but by his desire to seek further financial compensation for his property. The Court of Appeals decided these to not be mutually exclusive. Not only did Song seek additional compensation, but he organized a public protest and a private sit-in demonstrating against government policy which he did not view as just. The Court of Appeals also decided the government’s disproportionately harsh punishment for his actions indicated a persecution based on political opinion. For these reasons, the Court of Appeals granted Song’s petition for review, vacating the BIA’s denial of asylum and remanding the case to the Attorney General.

For more information, view the full case.

CA8 Finds Petitioner Ineligible for Cancellation of Removal Due to Minnesota Misdemeanor Domestic Assault Conviction

Malak Manes, a native and citizen of India, appealed a decision made by the Board of Immigration Appeals (BIA) which affirmed the decision of an Immigration Judge (IJ) which denied Manes petition for asylum, withholding of removal, and protection under the Convention Against Torture. Manes based his petition on persecution he experienced in based on his affiliation with the India National Order Lok Dal (INOLD), a group which is one of the country’s opposing political parties.

The IJ rejected Manes’ petition due to an adverse credibility determination, after citing multiple reasons for this finding. Noting that Manes was “visibly nervous” when evidence was produced which refuted his testimony, specifically mentioning that he fidgeted his hands to the extent that “his bracelets would make a noise.” The IJ also referenced his diction when elaborating on her adverse credibility determination. She stated that not only did he increase his rate of speech when faced with cross-examination but also spoke with a “desperate tone,” and noted this behavior as in stark contrast to his calm demeanor when faced with direct. Manes contested that the IJ should have mentioned such examples at the time of their occurrence, but Immigration Judges are not required to explicitly state such examples. Furthermore, in making a credibility determination, Immigration Judges are encouraged to reference observations that were not explicitly recorded.

The BIA affirmed this decision, given that the IJ was in a uniquely advantaged position to reach such a determination given her first hand perception of Manes’ demeanor. Additionally, the BIA agreed with the determination of the IJ that documentary evidence undermined Manes’ credibility. When submitting evidence of his involvement with the INOLD, he presented a letter purportedly from a district party chief which listed Manes on voter roster. Manes was listed on this roster, however, as a 25-year-old female, which is incongruent with his actual age and gender as a 22-year old male. Since Manes himself submitted this as evidentiary of his involvement in the organization for which he received persecution, substantial weight can be given to even the most minor inconsistencies within that evidence. For these reasons, the Court of Appeals denied Manes’ petition for review.

For more information, view the full case.

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