us 7thc guatemala042423

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IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

___________________________________________

No. 04-2423

___________________________________________

EUFEMIA NOHEMI LOPEZ DE LEON

Agency# A79 473 457

Petitioner

v.

ALBERTO GONZALES, United States Attorney General,

Respondent

_____________________________________________

PETITION FOR REVIEW

Appeal from the Decision of the Board of Immigration Appeals

Appeal from the Decision of the

Honorable Immigration Judge O John Brahos

_____________________________________________

APPELLANTS OPENING BRIEF

___________________________________________

W. MICHAEL SHARMA-CRAWFORD

REKHA SHARMA-CRAWFORDSharma-Crawford, Attorneys at Law, LLC

7208 W. 80th, Ste. 202Overland Park, KS 66204

913-385-9821 phone

913-385-9964 fax

Attorney for Appellant-Petitioner


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CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT

The following is a complete list of the trial judge(s) and all attorneys,

persons, associations of persons, firms, partnerships, and corporations that have an

interest in the outcome of this case:

1. O John Brahos, Immigration Judge

2. Karl Cozad, Trial Attorney DHS

3. Paula Davis, Trial Attorney, DHS

4. Carol Federighi

5. George P. Katsivalis

6. John Miles, Trial Attorney, DHS

7. Anthony Moscato, BIA Panel member

8. James Phillips, Trial Counsel

9. Rekha Sharma-Crawford

10. William M. Sharma-Crawford

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TABLE OF CONTENTS

PageDISCLOSURE STATEMENT 2

TABLE OF AUTHORITIES 4, 5

STATEMENT OF JURISDICTION 6

STATEMENT OF THE ISSUES 7

STATEMENT OF THE CASE AND FACTS 8

1. Nature of the Case 8

2. Disposition Below 8

3. Statement of the Facts 8

STANDARD OF REVIEW 10

INTRODUCTION AND SUMMARY OF THE ARGUMENT 11

ARGUMENT 12

1. The Immigration Judge erred in denying

Petitioners asylum and withholding of removal claim 12

a. The Immigration Judge incorrectly found 12that country conditions had not changed

sufficiently to warrant Petitioners asylum application.

b. The Immigration Judge incorrectly held that Petitioner, 14

though credible, required corroborative evidence.

c. The Judge conducted the hearing in 18

a manner that prevented a full and fair hearing.

CERTIFICATE OF COMPLIANCE 21

CONCLUSION 22

CERTIFICATE OF SERVICE 23

SHORT APPENDIX 24

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TABLE OF AUTHORITIES

Cases Page(s)

Diallo v. INS, 232 F.3d 279 (2

nd

Cir. 2000) 16

Fisher v. INS, 79 F.3d 955 (9th

Cir. 1996) 17

Gontcharova v. Ashcroft, 384 F.3d 873 (7th

Cir. 2004) 15, 16

INS v. Elias Zacarias, 502 US 478 (1992) 10

Laurent v. Ashcroft, 359 F.3d 59 (1st

Cir. 2004) 18

Lazo-Majano v. INS, 813 F.2d 1432 (9

th

Cir. 1987) 17

Logue v. Dore, 103 F.3d 1040 (1st

Cir 1997) 18

Miljkovic v INS, 376 F.3d 754 (7th

Cir 2004) 13

Niam v. Ashcroft, 354 F.3d 652 (7th

Cir. 2004) 10

Sankarapillai v. Ashcroft330 F.3d 1004 (7th

Cir. 2003) 6

Stone v. INS, 514 US 386 (1995) 6

Yadegar-Sargis v. INS, 297 F.3d 596 (7th

Cir. 2002) 10

Zadvydas v. Davis, 533 US 678 (2001) 18

Board Decisions Page(s)

In re S-M-J, 21 I&N Dec. 722 (BIA 1997) 14

Matter of D-V, 21 I&N Dec. 77 (BIA 1993) 16

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Table of Authorities Contd

Statutes Page(s)

8 USC 1252(a), (b) 6

8 USC 1252(b)(4) 10

8 CFR 208.4 12

8 CFR 208.4(a)(2)(i)(A) 12

8 CFR 208.4(a)(4)(i)(A) 12

8 CFR 208.16(c)(2) 14

INA 241(b)(3) 16

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STATEMENT OF JURISDICTION

The jurisdiction of the Court of Appeals is established by filing a timely

Petition for Review of a final order of removal. 8 USC 1252(a), (b); Stone v. INS,

514 US 386, 401-405 (1995). The Petition for review must be filed 30 days from

the date of issuance of the final Order. Sankarapillai v. Ashcroft, 330 F.3d 1004

(7th

Cir. 2003).

The BIA issued their decision on May 5, 2004. The Petition for Review was

filed on June 4, 2004, within 30 days of that date and thus is timely filed. This

Court, therefore has jurisdiction to review the decision of the agency and the

Immigration Judge.

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STATEMENT OF THE ISSUES

The Immigration Judge erred in denying Petitioners asylum and

withholding of removal claim

a. The Immigration Judge incorrectly found that country conditions

had not changed sufficiently to warrant Petitioners asylum

application

b. The Immigration Judge incorrectly held that Petitioner, though

credible, required corroborative evidence.

c. The Judge conducted the hearing in a manner that prevented a full

and fair hearing.

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STATEMENT OF THE CASE AND FACTS

1. Nature of the Case

The Immigration Judge erred when denying Petitioner her asylum and

withholding of removal claims. In doing so the IJ ignored the credible,

uncontroverted testimony of Petitioner, which by the agencies own regulations is

sufficient to support an asylum claim. Despite the delay in filing for Asylum,

Petitioner provided supplementary evidence that the Country conditions have not

improved since the 1996 peace accords and have, to some degree slid backwards

into the lawlessness that haunted Guatemala for the decades preceding the 1996

accords.

2. Disposition Below

The Immigration denied Respondents asylum, withholding of removal and

Convention against Torture claims and ordered Respondent removed on December

10, 2002. The BIA issued their decision on May 5, 2004. This Petition for Review

was filed on June 4, 2004, within 30 days of that date and thus was timely filed.

3. Statement of the Facts

Petitioner is a married Guatemalan woman whose father and husband served

in the civil patrol prior to the 1996 peace accords (A.R. 100). Petitioners husband

deserted the Army (Civil Patrol) in 1987 prior to their marriage in 1991. (A.R. 101)

This was after Guerrillas twice tried recruit Petitioners husband to provide them

with arms. Petitioners husband left Guatemala in 1994. (A.R. 136) This forced

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Petitioner to live alone with their child. (A.R. 138) Petitioner was active in her

local Catholic Church, Virgin de Guadalupe. She helped the church with its

Sunday school classes. (A.R. 103-4).

Petitioner lived without incident until May of 1995. On May 1, 1995,

Petitioner was assaulted by guerillas. (A.R. 116-8) She was hit, kicked and her

nose was scarred either by a thrown stone or her fall. (A.R. 112). Petitioner

escaped and fled to her aunts house. (A.R. 119) She did not report this or any

other incident to police because she testified that the police and civil authorities

were ineffective at meting out justice. (A.R. 120) A few days after arriving at her

aunts house, Petitioner was walking to church when she was assaulted and

kidnapped by the same persons who had initially assaulted her. She was taken to a

camp in the mountains of Guatemala. At that camp she was raped and forced to

act as domestic help for the guerrillas in the camp. They also encouraged her to

recruit the member of her church to assist them in their Communist ideals (A.R.

123)

She was held for 30 days until she eventually escaped from the camp and

fled to her cousins house. The day after she arrived at her cousins house the

guerillas burned it down. The guerillas threatened her with death if she did not

return to assist them with their efforts. (A.R. 127) When she tried to return home

they shot into her house. She fled from there and left Guatemala for the United

States. (A.R. 128)

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STANDARD OF REVIEW

Where the BIA merely supplements the Immigration Judges decision, the

Court will review the IJ decision as supplemented by the Boards decision. Niam

v. Ashcroft, 354 F.3d652, 655-656 (7

thCircuit, 2004).

Whether the Court reviews the decision of the BIA or the IJ, or both, the

Court reviews the underlying conclusions under the substantial evidence

standard: to withstand judicial review, the determinations of the BIA and/or the IJ

must be supported by reasonably, substantial, and probative evidence on the record

as a whole. 8 USC 1252(b)(4);INS v. Elias-Zacarias, 502 US 478, 481 (1992).

The Seventh Circuit Court of Appeals has further indicated that disagreement with

the conclusions of the Agency is not enough to secure reversal, but rather the

evidence must compel reversal. Yadegar-Sargis v. INS, 297 F.3d 596, 602 (7th

Cir.

2002).

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INTRODUCTION AND SUMMARY OF THE ARGUMENT

The Immigration Judge erred in finding that Petitioner had not either

established past persecution or a fear of future persecution when he denied her

asylum claim. In denying her asylum claim the IJ incorrectly held that her

application, though untimely filed, was unacceptable for asylum because country

conditions had not changed sufficiently to justify the late filing. The IJ also sought

corroborative evidence from Petitioner despite her credible testimony. Despite

regulations, which direct a contrary result, the IJ denied Petitioners claims when

she was unable to produce corroborative evidence for her credible testimony. The

Immigration Judge conducted the proceedings in such a manner that his pre-

decision and condescension was evident throughout trial. His blatant attitude

robbed Petitioner of her due process rights.

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ARGUMENT

1. The Immigration Judge erred in denying Petitioners asylum and

withholding of removal claim.

a. The Immigration Judge incorrectly found thatcountry conditions had not changed sufficiently towarrant Petitioners asylum application.

In his decision the Immigration Judge states, the regulations and statue

requires that the application be timely filed. Therefore, the Court finds that the

application is time barred. The IJ was apparently referring to 8 CFR 208.4 which

states: By clear and convincing evidence that the application has been filed within

1 year of the date of the alien's arrival in the United States. (8 CFR

208.4(a)(2)(i)(A)) Despite a volume of credible supplementary evidence which

discusses the current (the current state for 2001 when the application was filed)

state of Guatemala. The Immigration Judge ignores an exception to the one year

filing deadline found at 8 CFR 208.4(a)(4)(i)(A) which states: Changes in

conditions in the applicant's country of nationality or, if the applicant is stateless,

country of last habitual residence.

Petitioner offered numerous articles as supplementary evidence that all

indicate that small bands of guerrillas still exist and that governmental corruption

was on the rise. However there were occasional reports that small groups of

genuine or purported members of armed opposition groups carried out acts of

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aggression or intimidation in the countryside. (A.R. 188). Further documentation

states that:

Two decree laws passed in March in June of 2000 giving the

Military Police and the Armed Forces the mandate to collaborate withthe PNC in the public security operations. Together, these two laws

violate both the spirit and letter of the Peace Accords which call for

the demilitarization of Guatemalan Societyaccording to MINUGUA

since the start of 2000, police have become the principle responsible

parties for the gravest human rights abuses. (A.R. 194).

It is this governmental corruption that led to the creation of the

guerillas decades earlier. Other NGO reports indicate that the primary

victims of these changes are indigenous people, women and poor peasants.

(A.R. 222) These changes in the socio-political landscape of Guatemala are

changed country conditions that excuse the one-year filing deadline. The

Immigration Judge dismisses all this evidence with one line I would further

note that changed country conditions would also obviate the granting of this

application. (A.R. 34). However, this Court, inMiljkovic v INS, 376 F.3d

754 (7th

Cir 2004) held that the burden of proving changed country

conditions lies with the government. To that end the government has only

offered the State Department Report which itself documents the partial

failure of the peace accords, and the increase in violence especially against

women. (A.R. 362)

The Government failed in demonstrating that country conditions have

changed sufficiently to warrant a denial of asylum. As well they have been

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unsuccessful in demonstrating that country conditions have not changed

sufficiently that Respondent should not be allowed to file beyond the

statutory one-year deadline. Thus Respondents application for asylum

should have been accepted.

b. The Immigration Judge incorrectly held that Petitioner, though

credible, required corroborative evidence.

The Immigration Judge never made a finding that Petitioner was incredible,

but asked for extensive corroborative evidence during the hearing and ultimately

cited the lack of corroborative evidence as a reason for denial. INS regulations

provide that an applicant's testimony, "if credible, may be sufficient to sustain the

burden of proof without corroboration." 8 C.F.R. 208.16(c)(2) (emphasis added).

The BIA inIn re S-M-J, 21 I. & N. Dec. 722 (BIA 1997), defined the

circumstances under which such testimony must be corroborated. Distinguishing

between claims that rely on general country conditions and claims that are based

on particular experiences of persecution, the BIA declared that where "an

applicant's claim relies primarily on personal experiences not reasonably subject to

verification, corroborating documentary evidence of the asylum applicant's

particular experience is not required."Id. at 726. But the Board went on to insist

that "where it is reasonable to expect corroborating evidence for certain alleged

facts pertaining to the specifics of an applicant's claim, such evidence should be

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provided." Gontcharova v. Ashcroft, 384 F.3d 873, 876 (7th

Cir 2004). The

Gontcharova Court went on to find:

Nevertheless, we do not reject the BIA's corroboration rule out of

hand. In order that we may review its application, however, an IJ mustexplain his use of it. Such an explanation should include, at a

minimum: (1) an explicit credibility finding; (2) an explanation of

why it is reasonable to expect additional corroboration; and (3) an

account of why the petitioner's explanation for not producing that

corroboration is inadequate.

Id. at 877

In the instant matter the Immigration Judge stated in his decision that

Respondents inability to provide corroborating evidence is not optional. (A.R.

55) The corroborating evidence sought by the IJ was a record of her participation

in her church (A.R. 107); evidence that she was injured by the guerillas (A.R. 113);

documentation from her aunt, that following the first assault, Respondent moved

into to her aunts home (A.R. 119); police reports (A.R. 120); any evidence that

she was raped (A.R. 131). When confronted with this lack of evidence Respondent

stated that since coming to the United States she has not had any contact with her

family in Guatemala, and does not know where even her mother is currently living.

She stated that she did not make reports to the police because You know, over

there, there is no justice done. Despite the fact that Respondents husband left

Guatemala before she did the IJ excoriates both Respondent and Counsel for her

husbands failure to testify. (A.R. 129) Respondent stated that her husband, who is

also undocumented, feared coming to Immigration even to testify, concerned that

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single woman and had a social connection the guerillas sought to exploit. Rape is

a tool used to subjugate. This male right subjugation has been held to be a political

opinion. SeeLazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987), overruled

in part on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc).

Hence the persecution was inflicted on account of political opinion. The IJ, despite

his apparent sarcasm, correctly points out this fact; So you were a female alone at

risk, is that right? The Respondent then stated I imagine so, but I know that they

knew that I was alone. (A.R. 138).

Respondents uncontroverted testimony is that she was assaulted and

ultimately abducted by Guerillas. She was beaten on two separate occasions. She

was scarred from her encounters both mentally and physically. The guerillas

sought to subjugate her and utilize her connections in the community to further

their political aims.

These facts, when combined with the NGO reports that indicate that women

are a targeted group. (A.R. 222) This combination of facts and evidence

demonstrate a clear probability that Respondent would be targeted for persecution

should she be removed to Guatemala as a single woman and as such her claim also

rises to the greater standard of Witholding of Removal. (INA 241(b)(3))

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c. The Judge conducted the hearing in a manner that

prevented a full and fair hearing.

Immigrants have a right to due process in Immigration proceedings.

Zadvydas v. Davis, 533 US 678 (2001).The Immigration Judge dominated the

questioning during hearing, belittled the Respondent and engaged in inappropriate

commentary, all of which robbed Respondent of her due process right to a full and

fair hearing. The IJs conduct of the trial indicated that he has decided the

outcome of the case prior to hearing the testimony.

The vast majority of the transcript, including Counsels closing arguments

are dominated or interrupted by the IJ. While the IJ is responsible for the conduct

of the hearing the level of domination here rendered counsel for Respondent

ineffective. The Court inLaurent v. Ashcroft, 359 F.3d 59 (1st

Cir 2004) stated:

A party is entitled to a fair hearing, not a perfect one, and

within wide margins -- not approached here -- a judge's efforts atroutine administration of court proceedings do not offend principles of

fundamental fairness. SeeLogue v. Dore, 103 F.3d 1040, 1045 (1st

Cir. 1997). This does not mean, of course, that judges have carte

blanche to act arbitrarily or to cross the line that separates judicial

officers from litigants. A judge must maintain a standard of balance

and impartiality, and a reviewing court will look to the facts of each

particular case to determine whether the judge's actions unfairly

prejudiced any of the parties. See id.

In the instant matter the Judges sporadic commentary combined with his

overbearing nature crossed the line described by theLaurentCourt. The IJ

contributed the following inappropriate commentary:

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Nada huh? As they say in Spanish, nada, standing for nothing.

(A.R. 114)

Because you used the words, does that mean that its now in the

record Mr. Phillips? (A.R. 115)

Now maam, why would the Communist group think that a religious

group would join them when the Communist group doesnt believe in

God, and the Christian group believes in God? Why would you have

me believe that they would want you to recruit people who believe in

God to go to an organization that does not believe in God? (A.R.

123) [No evidence was ever introduced by either Respondent or the IJ

that the guerillas who abducted Respondent did not believe in God.]

I see. Youre living here in Missouri, and Missouri is the show me

state. Isnt that correct? So if you dont see it yourself, you dont

believe it. Is that right? Is that correct? If you dont see it, you dont

believe it, is that right? Almost like Doubting Thomas with the holes

in Christs hands and the spear in the side of his chest. So if you dont

put your hands through the nails or put your hands through the spear,

you dont believe it until you see it yourself. Is that right? Is that

correct? If you dont see it you dont believe it. Si or no? (A.R. 126)

No, no, no, no. Youre free to embellish as much as you wish.(A.R.

151)

Finally at A.R. 155, page 88 of the transcript, the translator interrupts and

stated that Respondent needed to take a break. The IJ continued closing arguments

which lasted until page 93 of the transcript (A.R. 160). At that point there is an

indication that the tape had been turned off, but no real indication that Respondent

was ever allowed to take a break.

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The IJ is demeaning and overbearing, combined with his inappropriate

commentary, indicated that he had pre-decided this matter robbed Respondent of

her right to a full and fair hearing.

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CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief consists no more than 14,000 words, to wit:

3,658, being in compliance with Rule 32(a)(7)(B). The word processing system

used to produce it is Word 2000 for Windows. It is being submitted in hard copy

and on a 3.5 inch computer diskette that has been scanned for viruses by an

antivirus program, and is, as far as can be ascertained, virus free.

______________________________W. MICHAEL SHARMA-CRAWFORD

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CONCLUSION

The Immigration Judge had decided this matter before hearing any evidence.

He looks for excuses to diminish Respondents credible testimony. When

presented with viable rationale for the lack of corroboration, the Immigration

Judge deems the statements self serving. The Immigration Judge ignores a

voluminous amount of supplementary evidence that supports both the continued

existence of guerilla activity as well as the persecution of women. The

supplementary evidence serves to corroborate Respondents testimony. The

Immigration failed to take into account changed country conditions that would

have allowed Respondent to file outside the statutory filing period. The

Immigration Judge ignored evidence that supports past persecution, a fear of future

persecution and the clear probability that Respondent would be persecuted if she

were to be returned to Guatemala.

Wherefore Respondent prays that this Court grant her Petition for Review.

Respectfully Submitted:

_________________________________

W. MICHAEL SHARMA-CRAWFORDREKHA SHARMA-CRAWFORD, Kansas Bar No. 16531

Sharma-Crawford, Attorneys at Law, LLC

7208 W. 80th, Ste. 202Overland Park, KS 66204

913-385-9821 phone

913-385-9964 fax

Attorney for Appellant-Petitioner

Dated: March 14, 2005

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CERTIFICATE OF SERVICE

I, W. Michael Sharma-Crawford, certify that I have on this ___________

day of March, 2004 served a copy of the APPELLANTS OPENING BRIEF

WITH ADDENDUM on the parties hereto by depositing said copy in the USpostal service, postage pre-paid, and addressed to:

George P. Katsivalis

DEPARTMENT OF HOMELAND SECURITY

Office of the District Counsel

Chicago, IL 60690

Carol FederighiDEPARTMENT OF JUSTICE

Civil Division, Immigration

Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

_________________________MICHAEL SHARMA-CRAWFORD

Attorney at Law

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