Chery v. Ashcroft

U.S. Court of Appeals for the 2^nd Circuit

2003 U.S. App. LEXIS 21025

Serge Chery, a citizen of Haiti and lawful permanent resident of the United States, was arrested in 1998 at age 33 for having consensual sexual intercourse with a 14-year-old girl.  Chery was convicted of second-degree sexual assault and sentenced to five years imprisonment, with 18 months to serve and 10 years probation.  Following this conviction, the INS informed Chery that he was subject to deportation as an alien who committed an aggravated felony, or a “crime of violence”, under 8 U.S.C. § 1101(a)(43)(f).  The immigration judge ordered removal because the sexual assault constituted an aggravated felony. 

Chery appealed to the BIA claiming that second degree sexual assault under the Connecticut statute is not a “crime of violence” as defined by 18 U.S.C. § 16(b).  The BIA upheld the immigration judge’s ruling, stating that Chery’s conviction, by its nature, involves a substantial risk that physical force against the victim may be used in the course of committing the offense.  Chery then filed a habeas petition in the United States District Court for the District of Connecticut.  The court granted the petition, ruling that Chery’s felony conviction did not constitute a crime of violence.

The three-judge panel of the 2^nd Circuit Court of Appeals reversed the district court’s decision and ruled that a person convicted of statutory rape is considered to have committed a crime of violence even if the perpetrator did not actually physically harm the victim.  The Court agreed with the BIA decision that held that a conviction under Connecticut’s statutory rape law involved a substantial risk that physical force might be used against a victim in the course of committing an offense.

The Court added that other circuits have repeatedly recognized that when a sexual crime is committed against children, there is a substantial risk that physical force will be used to ensure compliance and that because the statute in question criminalizes sexual intercourse with a victim who, because of her age, is unable to truly give consent, the crime of statutory rape carried a substantial risk of physical force.

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Gong Fu Li v. Ashcroft

U.S. Court of Appeals for the 5^th Circuit

Filed November 21, 2003 No. 03-60242

(no citation provided)

Gong Fu Li, a native and citizen of the People’s Republic of China, appealed to the 2^nd Circuit for review of the Board of Immigration Appeal’s summary affirmation of the Immigration Judge’s decision denying his application for asylum and withholding of removal.  Li argued that the IJ’s ruling was not supported by substantial evidence because he is eligible for asylum and withholding of removal due to his wife’s involuntary sterilization.

The Court held that under an assumption that Li’s statements concerning his wife’s sterilization were true, Li created a regulatory presumption that he had a well-founded fear of future persecution and that Li’s life or freedom would be threatened in China in the future.  In addition, no evidence was presented to rebut this presumption, such as evidence of changed country conditions or that Li could avoid persecution.

Due to this determination, the Court held that Li was eligible for asylum and withholding of removal.  The IJ’s conclusion that Li did not meet the statutory definition of refugee since Li left China for reasons other than his wife’s sterilization was erroneous.  The statutory definition of refugee does not require Li to have left China for any particular reason.  In addition, Li was not required to demonstrate “compelling reasons for being unwilling to return resulting from the severity of the past persecution unless the presumption under 8 C.F.R. § 208.13(b)(1)(i) had been rebutted by the [INS].”