Weekly Blog for 6.1.19 by Merle Kahn, Esq.
Two interesting cases came down from the Ninth Circuit at the end of May 2019. First, the Ninth Circuit analyzes the differences between waiving an argument and forfeiting an argument. In the same case, the Ninth Circuit in a footnote discusses the doctrines of exhaustion and remand. It is a case that you might want to look at for its nerdier, important legal arguments. The second case is about particularly serious crimes and the Convention Against Torture (CAT). It reads like an episode of The Sopranos (one of my all-time favorite shows). I am going to write a separate blog discussing the Board of Immigration Appeals (BIA) decisions of May and June.
NINTH CIRCUIT
Waiver and Forfeiture of Arguments – A Due Process Treasure Trove
In a per curiam opinion, the Ninth Circuit approved the Board of Immigration Appeals (BIA)’s practice of refusing to address arguments raised for the first time on appeal. This case reinforces the importance of creating a good record in immigration court. A task made even harder now because the immigration courts are double-booking every hearing. But this case might help us challenge that policy under due process grounds, especially since we can show that we cannot cure the record on appeal. There is always a bright side. (Sometimes you just have to dig really, really deep).
Facts
Denys Honcharov is from Ukraine. In 2004 he entered the United States on a five-month visa. (The opinion does not say what kind of visa he entered on). In 2009, DHS placed Mr. Honcharov in removal proceedings. He requested asylum, withholding of removal and protection under the Convention against Torture (CAT). At the hearing, Mr. Honcharov asked for relief claiming that he was a member of the following particular social groups: “Ukrainian businessmen” and “witness victim to crime.” The IJ denied relief finding that these groups did not qualify as particular social groups under asylum law.
Mr. Honcharov appealed and this time his social group formulations seemed to be much more sophisticated. Mr. Honcharov claimed that he was a member of three different social groups: “Ukrainian businesses targeted for and subject to extortion who refuse to cooperate,” “Ukrainian businessmen subject to extortion by gangs the government is unwilling or unable to control,” and “victim witnesses to criminal enterprises which the government is unwilling or unable to control.” Honcharov v. Barr, No. 15-71554, slip op. at *4 (9th Cir. May 29, 2019). Here is where the case gets interesting, the BIA declined to consider these social groups because Mr. Honcharov raised them for the first time on appeal. Mr. Honcharov filed a petition for review with the Ninth Circuit.
Legal Argument
The Ninth Circuit starts the analysis by explaining the concepts of waiver and forfeiture. (I told you the case would take an interesting turn). “Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.” Hamer v. Neighborhood Hous. Servs. Of Chicago, 138 S. Ct. 13, 17 n. 1 (2017), quoted with approval, Honcharov, slip op. at *4 n.1 (emphasis added). The Ninth Circuit explains that these doctrines preserve the integrity of the appellate structure by ensuring that the issue is presented to and decided by the trial court before it goes up on appeal. Ibid.
The Ninth Circuit explains that when the issues involved require resolving disputed facts, it is critical that the case goes before a trial court. A trial court must look at the issues first to allow the adjudicator with the best understanding of the case to do the following: make an initial determination; make necessary findings; and, conduct additional proceedings to reach a fair and just result. This process encourages orderly litigation and allows “settlement of claims by preventing parties from withholding “secondary, back-up theories” at the trial court level, thus allowing party-opponents to appraise frankly the claims and issues at hand and respond appropriately.” Id., at *5. At least in San Francisco, OCC’s idea of settling a case is to not request an appeal. I’m not sure these lofty ideals apply to immigration court.
But the Ninth Circuit’s language is inspiring. They write, “[w]aiver and forfeiture are thus important tools for preserving the structure of hierarchical court systems by allowing appellate courts to act as a court of “review, not first view.”” Ibid. (internal quotes omitted). It sounds so nice and reasonable.
Back to practicalities, in a footnote, the Ninth Circuit explains the difference from the doctrines of exhaustion and remand. Exhaustion is jurisdictional and prevents the Court for a lack of subject matter jurisdiction from reaching the merits of a legal claim not presented in the legal proceedings below. But if the issue is presented to the BIA for the first time on appeal, the Ninth Circuit still has jurisdiction over it as the issue has been exhausted.
Then we get to waiver and forfeiture territory. Honcharov, slip op. at *5, n.2. Waiver is a discretionary determination. It is not a jurisdictional determination. The Ninth Circuit held that the BIA may apply a procedural default rule to arguments raised for the first time on appeal. The Ninth Circuit noted that in so deciding it was joining eight other circuits that had decided this issue. However, the last sentence is key: “Because it does not affect our resolution of the present petition, we leave it to another case to decide what standard of review we should apply to the Board’s decision to invoke such default, and what showing a non-citizen must make to the immigration judge to preserve an argument for Board review.” Honcharov, slip op. at *7.
Honcharov v. Barr, No. 15-71554 (9th Cir. May 29, 2019).
Serious Non-Political Crimes and CAT Relief
If you are looking for an excellent read, this case is it! Every aspect of it is fascinating. First, the basic holdings of the case are important. Second, the facts are truly amazing. The Ninth Circuit held that where a noncitizen commits a serious nonpolitical offense (here it is massive embezzlement) they are statutorily ineligible for asylum and for withholding of removal. However, they are still eligible for relief under the Convention Against Torture (CAT) and the Ninth Circuit remanded the case to the BIA to consider the CAT claim. Honestly, parts of this case reminded me of an episode of The Sopranos (one of my absolute favorite television shows, so please indulge me with all of The Sopranos references here).
Facts
Jiang Guan grew up in China. He testified that his grandmother introduced him to Christianity when he was a child. Then, in 2007, he was baptized into the Christian faith. But not only is Mr. Guan a Christian (were he only a Christian he might have gotten asylum based on religious persecution and the case would not be nearly as interesting) but, he also appears to have participated in some shady business deals in China. As I read the facts, I was thinking of Tony Soprano saying, “I’m in the waste management business. Everybody immediately assumes you’re mobbed up. It’s a stereotype and it’s offensive.” But back to Mr. Guan.
In January 2009, Mr. Guan had dinner with his uncle Guan Fengkun or “Uncle Fengkun” as he is called in the opinion. Uncle Fengkun introduced him to several government officials at a dinner including the mayor and the director of the propaganda department, a Mr. Jiang. A few days later Mr. Guan met with Mr. Jiang and with Uncle Fengkun. Mr. Jiang told him that he, the mayor, and others were putting their money together and use it for infrastructure projects in Qingdao. Mr. Jiang explained that it was not “appropriate” for a government official to manage the company. They wanted to hire a private citizen to run the company. Mr. Guan agreed to run the company. He testified that “it was a “rare” and “precious” opportunity for a young merchant like him to become acquainted with so many government officials, and he “had a lot of money on hand and…wanted to do some business. Guan v. Barr, No. 17-71966, slip op. at *6 (9th Cir. May 30, 2019). (I can just hear the theme song for The Sopranos).
They created a company called Jintailong. They got the money from three sources: public funds; money raised from friends and relatives of government officials; and, money from government officials. According to the opinion, government officials embezzled public funds to raise some of the money. They invested the money into different ventures including construction projects and residential community development. But they used “inferior materials” and “substandard” products in these development projects. The development ultimately forced the families that bought in to relocate and to accept compensation at less than the fair market value.
After Jintailong had been operating for a year, the mayor brought in a local gang leader to work as a manager. The gang leader “led “a number of social idlers and former prisoners to control the supply of cement, sand, and gravel for the development of various living communities,” and had gang members “take responsibility [for] the security of construction sites.” Guan, slip op. at *7. Another Sopranos break. Here is some dialogue:
Tony Soprano:
“Sil, break it down for ’em. What two businesses have traditionally been recession-proof since time immemorial?”
Silvio Dante: “Certain aspects of show business and our thing.”
In 2010 Mr. Guan wanted out. Now is when the case becomes a more typical immigration case. Mr. Guan told Uncle Fengkun about his plan to resign and a few days later, at a dinner, the mayor threatened to kill Mr. Guan. (Well, still sounds like The Sopranos). Mr. Guan stayed in the business. He opened a bar and night club called “The Bada Bing!” on behalf of the company. (Just kidding, it was called “Heshuo Entertainment”). Before Heshuo opened, Mr. Guan’s church group started meeting there. On January 27, 2013, the police raided the church and accused the members of “having an illegal gathering,” “spreading evil cult activities,” and disrupting social order. Guan, slip op. at *8. (I guess it was actually the opposite of “The Bada Bing!”). The police incarcerated and tortured Mr. Guan for three days. On January 30, 2013, the police released Mr. Guan after his wife paid a fine and Mr. Guan signed a letter admitting to his alleged crimes involving the church. He went to a local hospital for treatment and submitted a complaint with the city about how he was treated. Mr. Guan left Jintailong. In October 2013 he fled to the United States.
The facts do not get dull. But I don’t think I can make any more Sopranos analogies. After Mr. Guan came to the United States, his family said that the government was looking for him. In January 2014, the Chinese government issued an Interpol Red Notice seeking Mr. Guan’s extradition to China. A Red Notice is not an international arrest warrant. It is a request to locate and provisionally arrest an individual pending extradition. Interpol issues it at the request of a member country or an international tribunal based on a valid national arrest warrant. Guan, slip op. at *11 &n. 4. The Red Notice alleged that Mr. Guan “illegally received public deposits with high-interest promise” through Jintailong, knowing that the company “did not have the qualification to receive public deposits or grant loans. It further alleged that Guan “and other suspects illegally received public deposits of [¥] 97 million from 570 persons.” Guan, slip op. at *11.
Around June 2014, Mr. Guan learned from his attorney that he was wanted by the Chinese authorities. He feared that the Chinese government will execute him if he returns to China. In April 2014, Mr. Guan applied for asylum, withholding, and CAT claiming that he feared persecution by the Chinese government on account of his Christian religion and unregistered house church. In June 2014, the government placed Mr. Guan in removal proceedings and in 2016 they took him into custody.
Immigration Court Proceedings
At Immigration Court the IJ cut the merit’s hearing short when he learned that Mr. Guan had been fasting in solidarity with his “blood brother.” Guan, slip op. at *12. The IJ continued a subsequent merit’s hearing when it became clear that the interpreter spoke a different dialect that Mr. Guan. The IJ ultimately determined that Mr. Guan was ineligible for asylum and for withholding of removal based on religious persecution. The IJ found that Mr. Guan was not a credible witness and did not afford his testimony any weight. The IJ found probable cause to believe that Mr. Guan committed a serious nonpolitical offense in China based on Mr. Guan’s admissions and on the arrest warrant. (I assume the Ninth Circuit means the Red Notice).
The IJ also denied CAT relief. The IJ found that Mr. Guan failed to show a likelihood of being tortured in China because of his religious beliefs and that he was ineligible for CAT relief based on his anticipated death sentence for economic crimes because any punishment flowing from his crimes would constitute lawful sanctions. Guan, slip op. at *13.
Reading CAT cases sometimes drives me crazy because it does not seem like the judges have taken the time to read the regulations. There are no statutes, only regulations, and there are only three regulations: 8 C.F.R. § 1208.16; 8 C.F.R. § 1208.17; and 8 C.F.R. § 1208.18. Nowhere in these regulations is the requirement that the noncitizen establishes that they would be tortured on account of one of the protected grounds of asylum or withholding (race, religion, nationality, membership in a social group or political opinion).
The noncitizen must only establish that they fear that they will be tortured to punish them, intimate, or coerce them or for any reason based on discrimination of any kind. There is no requirement for the noncitizen to establish that the torture was or would be on account of one of the five social groups.
The IJ found Mr. Guan ineligible for CAT relief because “anticipated death for economic crimes because “any punishment flowing from [his crimes] would constitute lawful sanctions.” Seriously, the death penalty for embezzlement???? I would argue that there is a pretty decent argument that the sanction of the death penalty for financial crimes defeats the objective and purpose of the Convention Against Torture.
Legal Analysis
Serious Non-Political Crimes
First, the Ninth Circuit analyzes whether Mr. Guan has committed a serious nonpolitical crime outside the United States before coming to the United States. A noncitizen is ineligible for asylum and withholding of removal if there are “serious reasons” to believe that he committed a serious nonpolitical crime. The “serious reasons” standard is “tantamount to probable cause.” Guan, slip op. at *14.
The Ninth Circuit defines a serious non-political crime as “a crime that was not committed out of ‘genuine political motives,’ was not directed toward the ‘modification of the political organization or… the structure of the state,” and in which there is no direct, ‘causal link between the crime committed and its alleged political purpose and object.” Guan, slip op. at *14. Interestingly the definition then discusses proportionality. “In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common0law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.” INS v. Aguirre-Aguirre, 526 U.S. 415, 422 (1999) quoted in Guan, slip op. at *14-15.
After defining a serious non-political crime, the Ninth Circuit notes that a large financial crime such as embezzlement is normally a serious nonpolitical crime. To rebut this presumption, the noncitizen must identify facts showing that their offense had some political aspect or objective. Guan, slip op. at *15. But Mr. Guan does not give up. He argues that his crime was political in nature because the accusations against him are pretextual. He argues that the Chinese government’s true intent in seeking his extradition is “to stifle his ability to further expose the degree and extent of corruption that Chinese government officials engaged in while involved with Jintailong.” Guan, slip op. at *15.
But the Ninth Circuit finds that Mr. Guan conflates a politically motivated prosecution with a politically motivated crime. Ibid. The Ninth Circuit determines that Mr. Guan’s involvement in the Jintailong scheme stemmed from purely economic reasons. “[H]e had a lot of money on hand and “wanted to do some business.” Therefore, he fails to rebut the presumption that the alleged crime was nonpolitical.” Guan, slip op. at *16. Mr. Guan argued that there was insufficient evidence to support the IJ’s probable cause finding because he was unaware that the funds would not be repaid. But the Ninth Circuit found that substantial evidence supports the IJ’s finding that there was probable cause to believe that Mr. Guan had committed a serious non-political crime.
Due Process Violations
Mr. Guan argued that there were three due process violations at his hearing. First, he argues that he was fasting during the time of his hearing, so he was impaired. But the Ninth Circuit examined the record and found that he was not impaired at the hearing. His oral testimony tracked his written statements and during the hearing, he testified that he was not impaired. Second, he claimed that there were problems with the interpreter. But the alleged problems were from one day of the hearing and all the information was clarified at the next hearing. Neither the IJ nor the BIA cited the testimony from the sketchy hearing. Finally, Mr. Guan failed to explain how his problems with the interpreter affected his testimony or otherwise impacted the hearing’s fairness.
Lozada Motion and Public Service Announcement
Finally, he argued ineffective assistance of counsel but, he did not comply with Lozada. To establish that ineffective of assistance of counsel is a due process violation, the noncitizen must show that the attorney’s performance was inadequate and that the noncitizen was prejudiced. Under the BIA’s 1988 decision in Matter of Lozada, a noncitizen who claims ineffective assistance of counsel must file a motion to reopen. The Lozada motion must contain (1) an affidavit detailing the agreement with former counsel; (2) the noncitizen must notify former counsel of the allegations and give former counsel the opportunity to respond to them; and, (3) the motion must state whether the noncitizen has filed a complaint with the appropriate disciplinary authorities and if not why not. 19 I.&N. Dec. 637, 639 (BIA 1988). But, in the Ninth Circuit, the noncitizen can claim ineffective assistance of counsel even without a Lozada complaint if “the ineffectiveness of counsel was plain on its face.” Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir. 2010). Mr. Guan was unable to establish ineffective assistance of counsel.
Public Service Announcement: Many, many, many years ago I was a prosecutor for the Illinois bar and the D.C. bar. Just about the only way to be disbarred is to steal your client’s money. But the bar will discipline you if you commingle client funds with your money; if you are convicted of a serious crime; or, if you have neglected several cases. The State bar will not discipline you for blowing a deadline (maybe if you blow several) for failing to submit a piece of evidence or for failing to object a piece of evidence.
To give some context, there are approximately 168,000 licensed attorneys in California (I Googled it). In 2018, the State Bar received 15,973 complaints against attorneys. They filed disciplinary charges in (wait for it) 661 cases. They recommended formal discipline in 544 cases. The Supreme Court disbarred 131 attorneys and suspended 149 attorneys. You can read the report here. To be one of the 131 attorneys, you have to do something really bad. The state bar prosecutors understand Lozada and realize that it is a way to get an immigration case reopened. So, feel free to file Lozada complaints and don’t worry (too much) if a complaint is filed against you. It’s not pleasant.
Convention Against Torture
Finally, Mr. Guan filed for relief under the Convention Against Torture (CAT). He argued that he is likely to be tortured in China because of his knowledge and willingness to disclose to the United States government corruption of Chinese officials and because of his Christian beliefs. The Ninth Circuit found that Mr. Guan had not identified any actions that he took in the United States to expose Chinese government corruption. So, he had not established that it was more likely than not that he would be tortured in China because of his disclosure of the corruption of the Chinese government. But Mr. Guan did provide country reports establishing that the Chinese government tortured Christians. He also submitted proof from his church in the United States that he was a practicing Christian. The Ninth Circuit held that country conditions alone can play a decisive role in granting CAT relief. Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005). The Ninth Circuit remanded on the CAT issue.