OC Immigration Attorney

Gasparyan v. Holder

FACTUAL AND PROCEDURAL HISTORY

On October 24, 2004, Gasparyan fled Armenia (At 19 she was sexually assaulted by a friend, whom she married shortly thereafter to avoid shaming her family. The abuse continued during her marriage and until she fled to the U.S.) and entered the United States on a six-month visa. Sometime upon entering the U.S. a friend of hers (Topalian) wrote a letter to the INS on Gasparyan’s behalf asking for an extension of her visa, but INS denied the request on August 24, 2005. Gasparyan planned for her sister to send money and come visit so she “could hire a lawyer and deal with [her] immigration status.” However, Gasparyan’s sister had a car accident and could not come or send money. When asked during her asylum hearing what she was thinking after receiving the denial of the extension, Gasparyan responded, “I was waiting for money to come so I could apply.” Gasparyan testified before an immigration judge that after her arrival in the United States she felt troubled and unsafe. She suffered from nightmares and other psychological trauma related to the domestic violence she endured.

In August 2005, the brother and sister-in-law of Gasparyan’s husband invited her to live with them in San Mateo, California. Gasparyan agreed to move when her in-laws assured her that they would not tell her husband of her location. Gasparyan testified that her mental health quickly deteriorated because the trauma she suffered as a consequence of the domestic violence resurfaced while living with her husband’s family.

In August 2006, immigration officials took Gasparyan and her in-laws into custody because of an immigration problem that her in-laws had. Thereafter, the Immigration and Naturalization Service initiated removal proceedings against Gasparyan, during which she applied for asylum, withholding of removal, and relief under the Convention Against Torture.

The immigration judge found that Gasparyan was eligible for withholding of removal and CAT protection based on the domestic violence she suffered. However, the immigration judge denied her application for asylum because she did not file within the one-year deadline and she was not so severely mentally disabled as to establish extraordinary circumstances excusing the untimely filing.

Gasparyan appealed the denial of asylum. The Board dismissed her appeal.

ISSUES

1.    Whether the Board correctly determined that Gasparyan did not make a showing of “extraordinary circumstances.”
2.    Whether the Board erred by failing to analyze her extraordinary circumstances claim using the appropriate “three-part test” derived from 8 C.F.R. § 1208.4(a)(5).

RULE
1) Petitioner must establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2) The courts jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed.”

3) Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary.”

4) The three prongs test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

HOLDING

1. Petitioner did not establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2.  The court’s jurisdiction in cases where there are questions of law and fact are limited to instances where the underlying facts are, as in this case, “undisputed.”

3. Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary,” and in this case the record show’s petitioner did not show “extraordinary” circumstances.

4. Even assuming the petitioner showed “extraordinary” circumstances, the record does not establish she would be able to satisfy the three-prong test under 8 C.F.R. § 1208.4(a)(5).

REASONING

A. Jurisdiction to Review “Extraordinary Circumstances” Determination Based on Disputed Facts.

To excuse her untimely asylum application, Gasparyan must establish that her psychiatric problems constituted extraordinary circumstances “directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). The court concluded that the though Gasparyan claimed the delay was because of her psychiatric problems, the record indicated otherwise  because she lacked the money to hire an attorney and initiate the process. Similarly, Dr. Good testified that Gasparyan had explained to him that her delay was due to lack of funds and the language barrier, in addition to psychological trauma. Thus, the record reveals that the relation between Gasparyan’s mental disabilities and her failure to meet the one-year deadline was far from an “admitted or established” historical fact. Husyev, 528 F.3d at 1178. Because the record was showed “disputed facts” the court reasoned that its jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed,” as they are here, the court lacked jurisdiction to review the Board’s extraordinary circumstances determination. Therefore, the court dismiss Gasparyan’s petition challenging the merits of the Board’s extraordinary circumstances determination for lack of jurisdiction.

B. Legal Standard for Analyzing “Extraordinary Circumstances” Claim

Gasparyan argues that the Board erred as a matter of law by applying an incorrect legal standard when it failed to analyze her extraordinary circumstances claim using the requisite “three-part test.” Whether the Board applied the correct legal standard is a question of law, see Rodriguez-Rivera v. U.S. Dep’t of Immigration & Naturalization, 848 F.2d 998, 1001 (9th Cir. 1988), and thus we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).

The three prongs of the test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

While Gasparyan contended that the Board “made no findings” regarding any of the three factors listed in § 1208.4(a)(5) and therefore did not apply the pertinent regulation, the court determined that the extraordinary circumstances are criteria for assessing whether extraordinary circumstances may excuse an untimely asylum application. Also, before assessing the three factors, the court concluded that the Board must first determine that the alien’s circumstances were, in fact, extraordinary. Looking to Section 1208.4(a)(5) of the relevant code, which contains a non-exhaustive list of circumstances that may be considered extraordinary, including “[s]erious illness or mental or physical disability.” 8 C.F.R. § 1208.4(a)(5)(i), an alien’s circumstances are “extraordinary” if they fall within one of the examples listed or are of a similar nature or seriousness. Since the Board concluded that Gasparyan failed to present extraordinary circumstances, it was unnecessary for it to consider the three factors.

Furthermore, the court reasoned that even if the Board was required to consider the three factors, although the Board did not explicitly link each of its reasons for denying her extraordinary circumstances claim to one of the three factors in § 1208.4(a)(5), it did provide reasons that correspond to the factors listed in the regulation (For example, the Board noted that Gasparyan claimed that she delayed in applying for asylum because she was living with her husband’s brother, which rekindled the emotional trauma caused by her abusive husband). Also, the court mentioned that the applicant bears burden of establishing first, second, “and” third factor). Thus, the court concluded, The Board applied the correct legal standard and gave legitimate reasons for its conclusion.

CONCLUSION: The court denied petitioners relief to the extent she seeks.

The National Association of Immigration Judges believes that establishment of an independent agency or Article I court (like the tax or bankruptcy courts) rather than the current placement of the courts within the Department of Justice, is an essential reform. Only with this independence will the immigration courts be able to obtain the resources needed to ensure that each and every asylum case gets the in-depth scrutiny that both the applicant and the people of the United States deserve it receive.

Asylum adjudications are emotionally charged and legally complex. If a genuine refugee is erroneously denied relief, she may face torture or death in her home country. Because someone fleeing persecution may not be able to obtain documents, many cases are decided on testimony alone.

The immigration courts are a crucial checkpoint where fraudulent asylum claims can be ferreted out. Credibility determinations made at this juncture are given great deference by reviewing courts. As important as their role is, immigration courts are often the forgotten piece of this system, with funding a mere afterthought. Drastically under-resourced, the average pending caseload of an immigration judge is 1,200 cases. Judges struggle with one judicial law clerk for every four judges, instead of the three clerks that most federal district court judges have, although they handle one third the number of cases.

Dana Leigh Marks, president of the National Association of Immigration Judges, July 12, 2011. She has served as an immigration judge in San Francisco since 1987.

Immigration-court judges “suffer from significant symptoms of secondary traumatic stress and more burnout” than prison wardens or physicians in busy hospitals, according to a 2007 study led by Stuart Lustig, professor of psychiatry at the University of California, San Francisco.

More female judges reported being burned-out than male judges.

Writing anonymously, judges expressed how tough it is to hear asylum cases and how much stress they felt by the caseload burden, pressure from the Justice Department to complete cases and criticism by the Board of Immigration Appeals.

Here are some of their thoughts:

* “As an Immigration Judge, I have to hear the worst of the worst that has ever happened to any human being, particularly in asylum cases. I have to listen to the trauma suffered by individuals. I have to hear it on a daily basis. It’s emotionally draining and painful to listen to such horrors day in and day out.”

* “The combination of hearing traumatic stories and not knowing which ones to believe is what is so mentally and emotionally exhausting. It is really hard work, and we are not given enough recovery time within our busy schedules.”

* “The major stressors are having to complete a high volume of cases in an environment of completion goals and under the microscopic scrutiny of appellate courts, which may not understand the pressures the judge faces on a daily basis.”

Apparently, in Arizona, illegal immigrants get the boot. But refugees get the welcome mat. Only three states accepted more refugees on a per capita basis over the past six years. Furthermore, Arizona took nearly twice as many refugees per capita as its liberal neighbor, California, and more than twice as many per capita as New York, New Jersey and Connecticut.

According to the vice president at the International Rescue Committee, which resettles refugees in a dozen states, in the degree of welcome and receptivity, he would certainly put Arizona at the top.

The work contrasts with the state’s renown as the scourge of illegal immigrants, whom critics blame for driving up crime, stealing jobs and burdening hospitals and schools.
In addition, the State Senator, a Republican who is a leading critic of illegal immigration claimed they are not anti-immigrant, however they expect people to follow the law.

Numerically, the groups do not compare; Arizona took in about 4,700 refugees last year, but is thought to have about 375,000 illegal immigrants. Refugees are not economic migrants but survivors of war and persecution whom the United States admits for humanitarian and foreign policy reasons.

Arizona first drew refugees because the cost of living is low, and until the recession the state had lots of entry-level jobs open to non-English speakers, like housekeeping and lawn care.
Last year, the federal government admitted about 75,000 refugees, out of 10.5 million worldwide, and it covers most resettlement costs. State officials administer the money and help decide how many refugees they can take; private agencies do the casework, helping find housing and jobs.

The flip side of the Arizona story includes the Maricopa County sheriff, Joe Arpaio, who courts a national following by advertising his toughness toward illegal immigrants
Mr. Arpaio conducts frequent raids on immigrant neighborhoods, stopping people for minor infractions and reviewing their immigration status. He says these raids have netted many illegal immigrants. Critics say they spread fear and harass legal residents.

Victor Acevedo, an illegal immigrant from Mexico, said he was stopped in January after failing to use his turn signal and was found with a small amount of marijuana. He is now awaiting deportation in one of Mr. Arpaio’s famed prison tents, dressed in the standard outfit: black stripes and pink underwear.  In a tent-side interview in 107-degree heat, Mr. Acevedo, 29, said he came nine years ago for a better livelihood, found a landscaping job, married an American and had two American-born sons. He was deported in 2008 but then returned a year later to be with his family.

Refugees seem slow to sympathize. The two groups often compete for jobs or housing, and some refugees say Latino gangs have preyed on them. A refugee acknowledged that he, too, crossed a border illegally when he fled to Kenya.  However in the US the situation is different: you need documents!

As the Obama administration seeks to create a more humane system of detention for illegal immigrants, most continue to be held in rural jails without ready access to legal representation.

According to a survey of immigration detention facilities nationwide, more than half did not offer detainees information about their rights. Furthermore, Immigration and Customs Enforcement (ICE) detains about 400,000 immigrants annually at a cost of $1.7 billion this fiscal year.

Executive director of the National Immigrant Justice Center claimed that while access to legal counsel is a foundation of the U.S. Justice System, their survey found that the government continues to detain thousands of men and women in remote facilities where access to counsel is limited or nonexistent.

Federal officials said they were making progress in helping provide legal help for detained immigrants. Additionally, ICE spokesman stated that they are working with their stakeholders, including the U.S. Department of Justice and nongovernmental organizations, to expand and support legal pro bono representation for those in custody.

The issue of lawyers for immigrant detainees is not new. Last year, the Constitution Project, a bipartisan legal group that promotes the right to legal counsel, argued in a report that the government should consider public funding for legal aid to detained immigrants.

Illegal immigrants ordered held are placed in a patchwork of about 350 mostly private facilities, many of them in less populated parts of the country. Detainees often find themselves transferred to facilities far from their homes, families, friends, and access to legal representation. Some California detainees are transferred to Arizona, New Mexico and Texas, which makes it very difficult for their families to coordinate and organize a meaningful defense to deportation.

A 2005 Migration Policy Institute study found that 41% of detainees applying to become lawful permanent residents who had legal counsel won their cases, compared with 21% of those without representation. In asylum cases, 18% of detainees with lawyers were granted asylum, compared with 3% for those without.

Granting immigrants better access to counsel could even save taxpayer money because detainees often would be released sooner, saving the $122-a-day cost of detention.

If you or a loved one is currently in immigration court or being held in detention, contact The Nunez Firm to schedule a free consultation.

A federal appeals court ruling Monday created the possibility that Guatemalan women could qualify for political asylum in the U.S. because of the high female murder rate in the Central American country.

The 9th U.S. Circuit Court of Appeals issued a strongly worded ruling reversing the deportation orders of two immigration courts that such a claim applies too broadly. The San Francisco-based court ordered the immigration judges, who work in the U.S. Department of Justice, to reconsider granting asylum to Lesly Yajayra Perdomo, an illegal immigrant in her mid-30s who settled in Reno, Nev.

Most important, the court ordered the Board of Immigration Appeals to determine whether all Guatemalan women can qualify, a decision which would open the door to similar claims from other countrieswith high female murder rate in Central America,  such as El Salvador, Honduras and others with history of widespread gender abuse.

This is the first such case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.

Perdomo followed her mother to the U.S. in 1991 when she was 15 and settled in Reno, where she graduated high school and found work in the health care industry.

In 2003, the Immigration and Naturalization Service began deportation proceedings and she applied for asylum the next year citing Guatemala’s poor record of investigating and solving the hundreds of murders of women annually. The appeals court noted that the Board of Immigration, which rejected Perdomo’s asylum petition, has never addressed whether gender itself could be the basis for an asylum claim.

On Monday, the appeals court said past decisions suggest that women in Guatemala may qualify for asylum, which includes citizenship and is granted to those showing they were persecuted because of religion, political beliefs, race, nationality or membership in a particular social group.

Perdomo asked the court to include Guatemalan women as a “particular social group” eligible for asylum.

“While we have not held expressly that females, without other defining characteristics, constitute a particular social group, we have concluded that females, or young girls of a particular clan, met our definition of a particular social group,” Judge Richard Paez wrote for the unanimous three-judge panel.

Unless there is an appeal, the case goes back to the Board of Immigration Appeals to determine if Perdomo should be granted asylum.

Immigration judges have rejected asylum for people running from Central American gangs on the grounds that the threats were vague and that the petitioners’ lives did not appear to be truly at risk.

However, the cases of two Salvadorans, Benito Zaldívar, who was killed, and Nelson Benítez Ramos, have added new credibility to those claims. They have increased the pressure on the courts and the Obama administration to clarify asylum law so foreigners facing life-threatening dangers from gangs would have a chance at refuge in the US.

In Mr. Zaldívar’s case, the Board of Immigration Appeals found that he had failed to show that the gang he feared was specifically coming after him.  After his asylum petition failed, he was deported to El Salvador. His murder just two months later was the proof he foretold that his fears of the gang were not exaggerated.

Generally, legal standards for asylum in the United States are not easy to meet. Asylum seekers must show they have a “well-founded fear of persecution” because of their race, religion, nationality, political opinion or “membership in a particular social group.”

According to the United Nations Development Program, Central America is the most violent region of the world, with the exception of those regions where some countries are at war or are experiencing severe political violence. Additionally, the bloodshed in Central American came primarily from criminal gangs.

At the same time, American immigration judges, are always careful not to grant asylum to any flood, making it more difficult for Central Americans running from gangs. In a landmark ruling in 2008, the Board of Immigration Appeals denied a petition by three Salvadoran teenagers who fled recruitment by a gang called the MS-13, saying they had not shown that they were in more peril than Salvadorans in general.

“Gang violence and crime in El Salvador appear to be widespread, and the risk of harm is not limited to young males who have resisted recruitment,” the board found.

The judges created several legal hurdles for asylum seekers fleeing gangs, requiring them to prove that they are part of a “particular social group” that is widely recognized in their home society as being under attack, something like a persecuted ethnic minority.

Some federal appeals courts have taken the same view. Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, has repeatedly rejected the new standards as “illogical” and “perverse.”

In March, Attorney General Eric H. Holder Jr. formally declined to step in to clarify the administration’s position. Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Judiciary Committee, offered a refugee bill in March that would erase the recent court decisions and return to a less complicated standard that some people escaping gangs could hope to meet.

Meanwhile, Mr. Benítez, with a gang tattoo on his forehead, literally a marked man, waits in El Salvador after being deported last year.

In San Diego, California, Mosab Hassan Yousef seeks asylum, claiming he will be killed if he is deported from the United States to the West Bank. Yousef, who abandoned Islam for Christianity, is the oldest son of one of Hamas’ founders, was an Israeli spy for a decade, and now is marked as a traitor.

However, Homeland Security called Yousef a terrorist danger when it denied asylum in February 2009

He is scheduled to plead his case on Wednesday to an immigration judge in San Diego. The Department of Homeland Security wants him deported; they believe he is a danger to the security of the United States.

Four months ago Mr. Yousef published a book, in which Yousef  describes growing up admiring Hamas and hating Israel.

Yousef, 34, settled in Southern California after arriving in Los Angeles with a tourist visa in January 2007. At this time, he remains free while his application for asylum is considered.

Asylum applicants can close their hearings to the public, however Yousef welcomes the publicity. He urges supporters to contact the Homeland Security attorney assigned to his case and invites anyone in the San Diego area to attend his hearing.

U.S. Immigration and Customs Enforcement, the agency within Homeland Security that is arguing the government’s case, declined to comment, stating that it respects the privacy of all individuals involved in the immigration litigation process.

Yousef says his father, a senior Hamas leader who is serving a six-year sentence in an Israeli prison, disowned him in March.

Mosab Hassan Yousef was prepared to spend three-and-a-half hours Wednesday morning arguing for asylum before Homeland Security Immigration Court Judge Richard Bartolomei.
Instead, the hearing ended after only 15 minutes when government lawyers said they no longer opposed the request.

“There has been a change in the department,” Homeland Security attorney Kerri Calcador told Bartolomei without elaborating.

Outside the detention center, Yousef claimed he was surprised, and added that the US is the greatest country since the Constitution protects liberty all the time.

Until the hearing, immigration officials had questioned Yousef’s claims that he helped Shin Bet, Israel’s domestic security service, kill Hamas officials and thwart bombing attacks while working as a driver and aide to his father, Sheik Hassan Yousef.

The younger Yousef has lived in the San Diego area since arriving in the United States in 2007 with a tourist visa. The trip followed his rejection of his Islamic faith in 2005. Yousef said he was drawn to San Diego after meeting Christian missionaries from a local church who were visiting Israel.

Yousef said he will continue offering assistance to U.S. investigators and speaking out publicly against terrorism while promoting his book. He also plans to seek U.S. citizenship and apply to Harvard University to pursue a master’s in Middle Eastern studies.

Mohammad Abdollahi was putting his life on the line when he lobbied for immigration reform in Arizona this week, experts say.

The undocumented Ann Arbor resident, along with three other students, was arrested Monday and later detained by immigration officials in Arizona when he refused to leave Sen. John McCain’s office. The incidents spawned a response across the country, including two vigils, a protest and hunger strike among some Michigan students.

Though the four have been released, they now face deportation hearings in immigration courts in their home states, officials said Wednesday.

But what makes Abdollahi’s case unique is he is gay, and deportation for him could mean death in his native country of Iran.

“His safety and well-being would be in immediate jeopardy if he is returned to Iran,” said Steve Ralls, spokesman for Immigration Equality, a New York-based legal aid organization for gay immigrants. “It is a notorious homophobic country where lesbians and gays routinely face torture, violence and even execution. It is among the most dangerous countries on the globe for lesbian and gay people.”

But Abdollahi could seek asylum because of the violence in Iran, Ralls added. A policy in place since the mid-1990s requires that asylum seekers file paperwork within a year of their arrival in the U.S.

“His case presents some challenges,” Ralls said. “It is a high bar to meet but it is not an impossible one.”

Abdollahi, who came to the U.S. when he was 3 with his family, said he was aware of the risk he was taking when he refused to leave McCain’s office. But he thought it was critical to be part of civil disobedience to pressure lawmakers to pass the DREAM Act — federal legislation that would create citizenship for undocumented youths and give them higher education access — even if it means he could get deported to Iran.

“It’s a worry,” said Abdollahi, 24. “But if we can get the DREAM Act passed it would help so many lives, it would be worth it. I have seen too many friends get deported.”

Abdollahi’s father came to the U.S. on a student visa 21 years ago, and the family lost their legal status when Abdollahi was 8 or 9 years old, he said. He graduated from Huron High School, and went to Washtenaw Community College.

In 2007, he sought to transfer to Eastern Michigan University to train to be a social worker. A counselor gave him an acceptance letter, and five minutes later took it back after they became aware of his citizenship status, he said.