Metropolitan News-Enterprise


Monday, September 30, 2019


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Ninth Circuit Panel Rebuffs Challenges To Bundle of Aliens’ Asylum Denials

Wallace, Farris, Nguyen Resolve 78 Matters in a Week, 33 Relating To Immigration, Perceiving Nearing All As Meritless


By a MetNews Staff Writer


A trio of Ninth U.S. Circuit Court of Appeals judges last week summarily disposed of a spate of petitions challenging the denial of asylum sought by illegal aliens who contend they would face adverse consequences if deported to their native lands.

Senior Judges A. Wallace Tashima and Jerome Farris and Judge Jacqueline Nguyen comprised the panel. They acted on a total of 78 appeals and petitions, with no oral argument in any of the cases, and with 33 of them relating to immigration.

Most of the immigration matters involved petitions seeking review of Board of Immigration Appeal (“BIA”) orders dismissing appeals from immigration judges’ decisions denying asylum under the Convention Against Torture (“CAT”). The judges granted only one of the petitions for review in full, and granted the other partially.

Torture in Jamaica

Berinston Lorien Spencer of Jamaica won a remand to the BIA on Wednesday because, the judges said, “it is unclear from the record whether the agency considered the risk of torture by actors other than the individuals who previously attacked Spencer, where Spencer testified that he will be tortured or killed by anyone who learns of his sexual orientation in Jamaica, including the police, and where there is potentially dispositive record evidence supporting Spencer’s testimony.”

Rafael Lainez-Urquilla of El Salvador moved for a reopening of deportation proceedings; the judges on Wednesday found no abuse of discretion on the part of the BIA in denying the motion on one of its bases but remanded because the agency failed to the other basis.

Among the contentions which the judges found to lack merit was that of Guilleimo Adan De La Toixe-Magdaleno, a Mexican citizen, who argued that those who return to Mexico after having “lived in the United States for more than ten years” face discrimination. The panel on Thursday said:

“Substantial evidence supports the agency’s denial of CAT relief because De La Tone-Magdaleno failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government of Mexico.”

No Cognizable Group

In a decision with like facts, the judges said Thursday:

“Aguilar Arrieta fears harm in Mexico as a member of the proposed social group of ‘individuals who would be returning from the United States who fear being targeted by dangerous gang members, vandals, chug dealers, and drug cartels.’ The BIA did not err in finding that Aguilar Arrieta failed to establish membership in a cognizable social group.”

With proliferating efforts by aliens to skirt deportations based on claims under the CAT, other panels have likewise cast aside, without extended discussion, petitions seeking relief based on questionable claims of the prospect of torture if deportation were effected.

Prisoner Appeals

Of the 78 dispositions by Wallace, Farris and Nguyen, 15 came in response to prisoner appeals.

One appeal was filed by James Anthony Smith, whose civil rights action, based indifference to his medical needs, was dismissed by District Court Judge Troy L. Nunley of the Eastern District of California. Smith, an inmate of the Siskiyou County  Jail, was beaten by another prisoner; a deputy sheriff took him to a hospital which said he needed emergency surgery at a trauma center; instead of taking him there, the deputy returned him to the jail and then released him, delaying the surgery.

The action against the deputy was reinstated. However, the panel affirmed dismissal of the action against the county that was based on cruel and unusual punishment.


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