The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven , MS .  Originally from Russia , Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi .  She can be contacted via email at mbjorne@msn.com.

DJOUMA v. GONZALES, No. 04-2086, 2005 U.S. App. LEXIS 24525 (7th Cir. 2005) holds that a family membership may constitute “membership in a particular social group;” “persecution” is not necessary to qualify for the Convention Against Torture relief.

JUDGES: POSNER, KANNE, and WILLIAMS:

The Immigration Judge (IJ) rejected Petitioner’s claim of asylum and ordered him removed (deported), and the BIA summarily affirmed. Petitioner is a citizen of Chad , and the nephew of a former government official who fled Chad and became active in a movement to forcibly overthrow the existing regime in Chad . Immediately after his uncle fled Chad , Petitioner was arrested, jailed, interrogated, and whipped. Petitioner fled to Cameroon , and remained there without seeking asylum before coming to Canada . After Petitioner was denied asylum in Canada , he applied for asylum in the United States .

The U.S. IJ’s primarily based its credibility finding on the Canadian immigration proceeding and its incomplete transcript with missing pages. The IJ failed to order a complete copy of the Canadian hearing transcript. The IJ found it suspicious that Petitioner had not applied for asylum in Cameroon and that he found his uncle in Benin by looking him up in the phone book. The IJ did not give reasons for her disbelief.

The court pointed out that the Department of Homeland Security and the Justice Department had failed to provide the IJs and the members of the BIA with any systematic guidance on the resolution of credibility issues. The court stressed that there ware no conducted studies of patterns of true and false representations made by the applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who were denied asylum and removed to the country that they claimed would persecute them. The court concluded that absent such systematic evidence the IJs were likely to misinterpret minor contradictions and were lacking background knowledge which was required to make reliable determinations of credibility.

The court disagreed with the IJ’s conclusion that Petitioner was not a member of “a particular social group” because he was merely a witness to his uncle’s whereabouts. The court stressed that the term "membership in a particular social group" would cover Petitioner regardless of his political activities or opinions because he was a member of his uncle’s family. Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005).  Nevertheless, the court concluded that Petitioner failed to show that he would be persecuted as a member of his uncle’s family because several members of the Petitioner's and his uncle’s families remained in Chad undisturbed.

While the court agreed that Petitioner was not entitled to relief under Convention Against Torture ( CAT ), the court disagreed with the IJ’s characterization of Petitioner’s whipping during his detention in Chad as merely “harassment.” The court pointed out that certain levels of whipping would amount to torture even under the Convention's restrictive definition of "torture." 8 C.F.R. §§ 208.18(a)(1),(a)(2). The court stressed that the CAT did not protect only victims of persecution. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). Nevertheless, the court concluded that it was “more likely than not” that Petitioner would not be tortured if returned to Chad.

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MONTER v. GONZALES, No. 03-4070, 2005 U.S. App. LEXIS 24477 (2^nd Cir. 2005) holds that where an immigration court finds that an alien has made a material misrepresentation, the IJ must also determine whether that alien has rebutted the resulting presumption that he or she will have been removable if the true facts have been known to the INS ; denial of motion to change venue to the place with the most nexus to the case, which resulted in failure of the key witness to appear, and when the government interests are adequately protected by respondent’s counsel’s stipulation is prejudicial.

JUDGES: MINER, SACK, and SPATT:

Petitioner is married to a United States citizen. After Petitioner had been married for several years and after he had been granted conditional permanent residency status, he submitted a form I-751 Petition to Remove the Conditions of Residence to the INS , which was approved without an interview. The INS later discovered that Petitioner at the time was separated from his wife and had made a misrepresentation in his I-751 form. The IJ found that this misrepresentation was "material" and therefore, petitioner was removable. The BIA affirmed.

The removal proceedings were held in Buffalo, New York. Petitioner's counsel requested a change of venue from Buffalo to New York City. Petitioner’s counsel stipulated that the statement which had been knowingly made by Petitioner in Buffalo would be received in evidence, and therefore, the presence of Buffalo officer who had taken the statement would not be necessary at the New York proceeding. Petitioner’s counsel further stipulated to the admissibility of the I-751 and other documents tendered by the INS to the IJ. The government did not contest the change of venue. Despite the fact that the key witness, the wife of Petitioner, resided in New York, the IJ would not permit a change of venue, unless there was a complete and unconditional acquiescence in the charges. The Petitioners counsel asked for continuance because the wife could not be present at the scheduled hearing. The IJ denied the motion and, when Petitioner’s wife failed to appear, held the hearing without her presence, and refused to consider her affidavit attesting to bona fides of the marriage.

The IJ concluded that Petitioner had procured removal of the conditions of his residence by fraud and ordered him removed from the United States. The BIA affirmed, concluding that Petitioner suffered no prejudice from the denial of his motion for a change of venue.

The court found that because the Government's interest would be protected by Petitioner’s stipulations, and because the key witness, Petitioner’s wife, lived in New York, the change of venue would be justified as having the most nexus to the issues to be tried. The court found that the record did not establish that Petitioner's wife would have been unable to testify had the hearing been transferred to New York, and held that the IJ’s denial to change venue was prejudicial.

The court agreed that Petitioner’s misrepresentation was “material” under 8 U.S.C. § 1182(a)(6)(C)(i). Nevertheless, the court pointed out that 8 U.S.C. § 1451(a) had four elements: “the naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment." Kungys v. United States,485 U.S. 759, 767(1988). Therefore, if a court concludes that the misrepresented or concealed fact is "material," then it must determine whether the applicant "procured" his or her citizenship by means of those misrepresentations or concealments. Id. at 776. The showing of "materiality" created only a presumption that the petitioner was disqualified from naturalization. Id. at 777. The court held that a naturalized citizen should be able to refute the presumption by establishing that he or she did in fact meet the statutory qualification that the misrepresentation had a tendency to influence.

The court concluded that Petitioner’s misrepresentation was material under the definition provided in Kungys. The court held that Petitioner was not given the opportunity to rebut presumption of removability and might have been prejudiced by the IJ's denial of his motion for a change of venue.

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Russian Woman Granted Appeal for Asylum

The Ninth Circuit Court of Appeals Judge D.W. Nelson issued his opinion on Galina Ivanovna Smolniakova v. Alberto R. Gonzales, Attorney General, in favor of the petitioner. Smolniakova, a citizen of Russia, sought review of the order of the Board of Immigration (BIA), which denied her request for asylum and withholding of removal and review of the termination of her conditional permanent resident status. Immigration Judge (IJ) Anna Ho refused Smolniakova’s asylum claim because of a lack of credibility, failure to establish past persecution, and failure to establish a well-founded fear of future persecution upon returning to Russia. The IJ also refused her request to review the termination of her conditional resident status because Smolniakova had not proved a “heavy burden” that her 1993 marriage to a U.S. citizen was genuine, and found her deportable.

Smolniakova, 39, was born in Kaliningrad, Russia, and is the daughter of a Jewish mother and non-Jewish father. In her asylum application, Smolniakova noted many instances of discrimination and harassment because of her Jewish identity, and stated that the environment in which she lived was inhospitable, if not openly hostile, to Jews. Smolniakova was a part of a Jewish community organization that met secretly from 1988 to 1991. She recounted the murders of a close Jewish family that was never resolved and testified that in 1991 she was attacked by two men who attempted to strangle her while she was walking home. One of the assailants called her a “Jewish bitch.” Six months after this attack, two men came to her home and threatened to kill her if she did not let them in and referred to her home as a “Jewish snake nest.” Smolniakova and her sister called the police, who refused to help.

In 1991 Smolniakova entered into a marriage with a Russian man who was a seaman. During their time together she lived with him at his parents’ home, but was separated shortly thereafter when he had to return to sea. Smolniakova stated that her mother-in-law would express her displeasure at her Jewish background, and she and her husband decided that she should go to the United States for safety until she could reunite with him in Germany. She was granted a six-month visitor’s visa and left Russia in December 1991. Upon her arrival, she learned from her sister that her husband was seeing other women and sought a divorce and political asylum in the United States. Smolniakova filed her asylum application without counsel on April 17, 1992. Her application was denied in October 1992 for failure to provide a well-founded fear of persecution.

Smolniakova’s divorce was finalized in February 1993. She testified that she met her second husband, Roberto Quitevis, at a party in December 1992, and the two were married in June 1993. Quitevis then filed an immediate relative visa on her behalf, which was approved by INS , and Smolniakova was granted two-year conditional permanent resident status as the spouse of a U.S. citizen. By December 1994, her marriage to Quitevis had deteriorated significantly, and on June 1, 1995, the INS revoked her conditional resident status upon the belief that her marriage to Quitevis was a sham. Their divorce was finalized in November 1995, and deportation proceedings began in December. During her deportation proceedings, Smolniakova presented documentary evidence including wedding pictures, a joint tax return, a marriage certificate, checks from a joint banking account, joint phone bills, and a lease in both names. Sixteen witnesses also presented evidence in her favor.

Quitevis testified against her in the proceedings by stating that he had been approached by Smolniakova about a business proposition through which he would receive a payment of $5,000 in exchange for marrying her. He further testified that the couple created the illusion of a happy marriage, but denied ever having had sexual relations with Smolniakova. Quitevis stated that the marriage was merely one on paper. During her deportation proceedings Smolniakova entered into a relationship with Tony Roland, and the two were wed in December 1995. Roland filed a Petition for an Alien Relative visa on Smolniakova’s behalf on March 4, 1996, which was denied on the marriage-fraud bar for such petitions.

The IJ reviewing Smolniakova’s case denied her petitions on grounds of lack of credibility on her asylum claim, which the Appeals Court believed tainted the ruling on her marriage claim as well. Judge Nelson reversed the IJ’s credibility finding in the asylum context and found that Smolniakova had suffered past persecution because of her religion and that she has a well-founded fear of future persecution. The judge also found Smolniakova eligible for asylum. The opinion of the court called for an exercise of discretion on Smolniakova’s asylum claim and for further consideration of the withholding of removal claim. The court further reversed the IJ’s denial of Smolniakova’s petition for the review of the determination that her marriage to Quitevis was a sham and remanded to the BIA for a new hearing for this petition and also of the INS ’s termination of Smolniakova’s conditional permanent resident status.

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Court Rules Against Nebraska Service Center in Educational Equivalency Case

In Grace Korean United Methodist Church v. Chertoff, Plaintiffs Grace Korean United Methodist Church and Jeong Mi Park sought judicial review of a decision made by the Nebraska Service Center Director of the United States Citizenship and Immigration Services (CIS) which denied the Church's I-140 immigrant visa petition.

In 1996 the Church filed an Application for Alien Employment Certification, also known as a “labor certification,” with the Oregon Employment Department. The Church was looking for a candidate with a bachelor’s degree “or equivalent” in the field of theology to fill a vacant position. The Department of Labor ( DOL ) issued the labor certification, stating that U.S. workers were recruited, but that none were available to fill the position. The Church then filed an I-140 immigrant visa petition with the Nebraska Service Center ( NSC ) on behalf of Park. To demonstrate that Park met the requirements of the position, the Church submitted evidence of Park’s education and experience, attesting that her education and experience were the equivalent of a B.A. The NSC denied the petition on the grounds that it failed to demonstrate that Park had the equivalent of a B.A. in theology based solely on her formal education.  The Church appealed this decision, and presented a letter from Dong Hwan Lim, D. Min., the Dean of the Graduate School of Bethesda Christian University and Bethesda Theological Seminary. Dean Lim's letter stated that based on Park's Korean education, his University would admit Park into its Masters of Divinity program as if she had the equivalency of a B.A. in theology. The appeal was dismissed by the Administrative Appeals Office (AAO). The Church then filed a motion for reconsideration, arguing that the NSC director misinterpreted the phrase “B.A. or equivalent” to mean “B.A. or equivalent foreign degree" instead of “B.A. or the equivalent of a B.A”. The AAO affirmed that Park did not possess the specific degree required by the labor certification.  The Church filed another motion for reconsideration, stating that education and experience may be accepted in place of a degree when the labor certification requires a “B.A. or equivalent.”  The AAO once again affirmed its decision.

According to the Administrative Procedures Act, a reviewing court should not dismiss an agency's decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” The Plaintiffs claim that the Defendants’ interpretation of “B.A. or equivalent” is incorrect, and that Park’s education and experience suffice, according to the decision. The Defendants contended that the “skilled worker” or “professional” classification under which the I-40 petition was filed does not allow for equivalency based on education and experience, and that Park must possess an appropriate degree. Neither the statute nor the regulations, however, require a degree under the “skilled worker” classification, according to the court. Thus, USCIS is not authorized to enforce its narrow definition of “B.A. or equivalent” as provided in the labor certification.  For those reasons, the court ruled in favor of the Plaintiffs, stating that the Defendants' decision was “arbitrary, capricious, and an abuse of discretion.” The court ordered the Defendants to approve the I-140 petition on behalf of Park.