Metropolitan News-Enterprise


Monday, April 4, 2011


Page 1


Court Blocks Deportation of Man Claiming Fear of Leftists




The Ninth U.S. Circuit Court of Appeals Friday granted a stay of removal to a Salvardoran immigrant who claims he would be persecuted by violent leftists  if forced to return.

A panel consisting of Judges Kim McLane Wardlaw, Raymond C. Fisher, and Marsha S. Berzon granted William A. Leiva-Perez’s request for a stay. The judges said he  made a sufficient preliminary showing in support of his claim that beatings and threats from members of the Farabundo Martí National Liberation Front constitute political persecution.

The front, known by the Spanish-language acronym FMLN, began as an umbrella group for leftist guerillas fighting El Salvador’s civil war. But it became a legal political party after signing the 1992 peace accords, and now holds the country’s presidency and the largest number of seats in the National Assembly.

An immigration judge found Leiva’s testimony about the beatings and extortion to be credible, but said they  did not constitute political persecution—and thus did not qualify him for asylum or withholding of removal—because they were “criminal matters.”

‘General Fear’

The Board of Immigration Appeals, in upholding the IJ’s determination, said that Leiva-Perez had merely “a general fear of crime and violence” rather than a well-founded fear of persecution based on protected opinion.

The appellate panel noted that prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, deportation proceedings were routinely stayed pending judicial review. After IIRIRA, however, stays are within the discretion of the courts of appeals.

In Abbassi v. INS, 143 F.3d 513 (9th Cir. 1998), the Ninth Circuit established a standard similar to that used to determine whether to grant a preliminary injunction. A stay, the court said, would generally be granted if the immigrant was likely to prevail on the merits and faced a possibility of irreparable harm, or if the immigrant’s case was “strong” and the potential harm resulting from the denial of a stay outweighed the potential harm from the grant of one.

Four Factors

One aspect of that ruling, the panel noted yesterday, was overruled in Nken v. Holder, 129 S. Ct. 1749 (2009), when the Supreme Court held that a four-factor test had to be applied in ruling on stays of removal. The four factors were the likelihood of success on the merits, the potential for irreparable harm, the potential injury to other parties, and the public interest.

Nken did not, however, reject “the general balancing approach used in Abbassi,” the judges said yesterday, although it does preclude a stay based on the mere possibility of irreparable injury. 

Applying that approach to Leiva’s request, the judges said, tips in favor of a stay.

Nken, they said, does not require that every applicant for a stay show that he is more likely than not to prevail, but only that the likelihood of success, in combination with the other three factors, weighs in favor. “[T]he minimum quantum of likely success” that must be shown, the panel concluded, is equivalent to Abassi’s requirement that “serious legal issues are raised.”

Leiva’s claim that the threats he received constitute persecution raises such an issue, the judges said.

The panel acknowledged that the IJ and BIA discounted the likelihood that the threats were political. “But that does not mean that where, as may be the case here, the persecutors were motivated by an economic or other criminal motive in addition to a protected ground, the petitioner cannot show a nexus.”

Credibility Finding

The court went on to say that the IJ’s finding that Leiva’s fears were credible supports a finding that removal would subject him to irreparable harm, even under the heightened Nken standard. The government, the judges added, brought no facts to their attention suggesting that a stay would be contrary to the public interest.

Richard Miyamoto of  Phung, Miyamoto & Diaz, LLP in Los Angeles and Salman Alam of Newport Beach served as appointed pro bono amicus curiae counsel for the petitioner. The government was represented by DOJ attorneys Lynda Do and Karen Y. Stewart.

The case is Leiva-Perez v. Holder, 09-71636.


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