9th Circuit Requests Additional Briefing in Case To Determine Whether to Hear en banc

Recently, the Ninth Circuit Court of Appeal requested additional briefing from my former office on the question of whether to hear the case en banc. I filed the petition for review in 2009 seeking appellate review of the denial of the protection afforded under the Convention Against Torture. This case was filed and fully briefed for my last office, The Law Offices of Haitham Ballout, Esq.in Burlingame, California.

The appellant was a Mexican national, who was a Lawful Permanent Resident at the time, and he was ordered removed for an aggravated felony conviction, first degree burglary. Once he was removed to Mexico, he was kidnapped at the airport in Mexico City by uniformed police officers telling him he did not have proper papers and he needed to go with them. They turned him over to the Federal Police, who transported him to Morelia in Michocan and placed him inside the prison. There he was tortured while his father in the U.S. was on the phone. The crooked cops were demanding ransom, which was eventually paid. The appellant had cigarettes burned into his skin, he had his teeth knocked out, he had electrodes place on his genitals, and he was waterboarded with Coke Cola poured onto a rag placed over his mouth and nose.

Appellant returned to the U.S., crossing in Arizona, but not before he was bit by a rattlesnake and lost his legs before Customs and Border Patrol located him. Appearing before Immigration Judge Yamaguchi in San Francisco, everybody acknowledged that he had suffered torture, by Yamaguchi held that he could safely relocate inside Mexico and ordered him removed.

The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I raised the legal issue that the IJ impermissibly held appellant to an incorrect legal standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is "impossible." I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).

There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.

"As we have previously acknowledged, "it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country." Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) ("[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety."). Additionally, when petitioner "has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable." Id.

Recent Ninth Circuit en banc Decision on Social Groups Cited My Research

The Ninth Circuit Court of Appeals certified the case of an El Salvadorian national who filed a claim for asylum relief based upon her fear of persecution on account of her testifying against gang-members who killed her father. Under asylum law, her claim fell within the nebulous group of membership in a particular social group. The case was rehear en banc with the intention of clarifying how such a claim of membership would be adjudicated, especially since any formulation of a particular social group fearing gang violence, retaliation, of coercion into a gang has been held not to constitute a social group. (See Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).)[The presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity.]

In this case, the asylum seeker fled El Salvador after witnessing the murder of her father at the hands of M-18 street gang. She identified the two men who murdered her father and then testified in open court against them. At the conclusion of her Individual Hearing before the Immigration Judge, the IJ held that she had suffered past persecution and she did have a reasonable fear of future persecution if returned to her native country and that she was a member of a particular social group, "people testifying against or otherwise opposing gang members."

The government appealed the IJ's Oral Decision and the Board of Immigration Appeals reversed the IJ's decision. Henriquez-Rivas en banc review, which was granted.

In the decision, the Ninth Circuit rendered a very narrow opinion that held the BIA misapplied its own precedent in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) in holding that witnesses who testify against gang-members may not constitute a particular social group due to a lack of social visibility.

In the dissent, Chief Justice Kozinski, joined by Justice Bybee, cited my research on what constitutes membership in a particular social group. Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22 (2008) twice on page 11 of the decision.

Here is the full decision:

Henriquez-Rivas v. Holder -