By Any Buitrago Zarabanda
SAN FRANCISCO – Deputy Public Defender Hayley Upshaw appealed here this week for a review of her client’s case after the immigration court – Upshaw charges – failed to properly consider evidence and uphold correct legal standards before the Ninth Circuit Court of Appeals.
Upshaw’s client, Ronald Singh, was brought to the U.S. as an eight-month infant in 1988 after he and his family fled Fiji because of violent attacks by Fijian Soldiers. In 2005, he was granted asylum.
However, after sustaining an aggravated felony, Singh lost his status and has been placed in removal proceedings.
“[Singh] was eligible for two forms of relief and applied for both and the agency made critical errors in each form which require remand. I’d like to bring your attention to three of the errors in particular,” Upshaw stated before Ninth Circuit’s judges Ronald M. Gould, Kim McLane Wardlaw and James D. Cain Jr.
According to Upshaw, the first error allegedly made was in the failure to apply the Asylee statute that allows for Singh to adjust status through a waiver of inadmissibility under the Adjustment of Status of Refugee 8 USC § 1159.
In this statute, this type of waiver is allowed for humanitarian purposes that secure family unity or are in the public interest. The immigration court denied Singh’s application on the grounds of insufficient humanitarian factors or family unity.
However, Upshaw argues that there is strong legal ground to uphold Singh’s waiver under this statute based on public interest factor.
“In Mr. Singh’s legal arguments, said there were strong public interest grounds including his ability to make restitution, his ability to make the victim of his crime whole again through restitution which he will be unable to do if returned to Fiji,” explained Upshaw to the judges.
The second error allegedly made, according to PD Upshaw, was that the immigration court failed to take into consideration the country conditions in the analysis for the waiver of inadmissibility for Singh as it failed to analyze hardship to Singh and its exercise for discretion
“The [immigration court] failed to consider the country conditions and expert evidence for the harms short of torture that Mr. Singh would face if removed to Fiji,” said Upshaw.
Upshaw also highlighted that in the application submitted for this section, Singh provided expert testimonies that would attest to the hardships he would face as an Indo-Fijian, a deportee with little to no social networks and family connections in Fiji.
It is also explained that the immigration judge would take these expert affidavits into consideration. However, in the analysis done by this immigration judge, there is no acknowledgment of such expert testimonies/evidence and used findings that were contrary to evidence provided.
Upshaw further explains the previous matter and additionally cites multiple prior rules of law that uphold the claims she is arguing.
“Under the BIA Law (Board of Immigration Appeals) Mendez Moralez, the [immigration court] was required to consider hardship to Mr. Singh and to his family if deportation occurs but failed to so in its analysis…only focusing on his long term residence, his supportive family members, and his work and educational history,” Upshaw said.
Judge Ronald M. Gould asked Upshaw to address the due process argument.
“The due process argument is while Mr. Singh does not have the right to any specific outcome in a discretionary finding, he does have the right to due process which includes [the immigration court] considering all relevant evidence and applying the correct legal standards in its discretionary decision,” replied Upshaw.
The final alleged error made by the immigration court regards the C.A.T. (Convention Against Torture) analysis in which Upshaw argues that the agency ignored the torture Singh endured as an infant.
“Counsel, let me ask you a question about that if Mr. Singh at the time of the military was harming his family was an eight-month-old infant, then how can an infant experience torture from observing that,” questioned Judge Gould.
“Your honor, attempted killing certainly I think is torture…this court has clearly held that and attempted killing, here the evidence shows he was crying while his mother was being raped and his father was being beaten up. The infant Mr. Singh was crying in the next room. The army officials certainly knew he was there and set fire to his home… and I think that attempted killing of a child constitutes torture,” replied Upshaw.
Senior Litigation Counsel Brianne Cohen on behalf of the U.S. Attorney General presented the opposing arguments against Deputy Public Defender Upshaw.
Counsel Cohen expresses to the court that Singh’s case should be dismissed in part and denied in part the petition for review. According to Cohen, the court lacks jurisdiction to review the immigration court’s denial of Singh’s application for adjustment of status and the waiver for inadmissibility.
“The questions that are involved in the denial of the waiver and the ultimate determination to deny adjustment status in the exercise of discretion, do not raise legal questions but instead amount to a disagreement to the[immigration court] weighing of the factors and are inherently discretionary questions for which the court lacks jurisdiction to review,” said Cohen.
Cohen addressed each of the alleged errors argued by Upshaw.
For the first alleged error regarding whether or not the immigration court errored in looking at all of the relevant factors for the hardship waiver, Cohen said the court did analyze correctly the application for the hardship waiver.
Cohen further explained that in cases where the petitioner has been convicted of an aggravated felony, that will be applied under the matter of Jean (In re Melanie Beaucejour Jean).
“Ultimately there is nothing on the record that indicates that the [immigration court] failed to consider any of the relevant factors and the ultimate questions here relate to discretionary determinations over which the court lacks jurisdiction,” reaffirmed Cohen.
Cohen then said, regarding the second alleged error argued by Upshaw on whether or not the agency properly considered country conditions evidence that fell short of torture, that the immigration court consider the evidence that was presented on the record, but that it fell short of torture.
“The [Immigration court] considered Mr. Singh’s argument and evidence that showed he would face difficulty perhaps finding employment. This is not something that would normally go to torture but instead was considered by the agency in the context of the hardship to both Mr. Singh and to his family should Mr. Singh be removed to Fiji,” explained Cohen.
Lastly, regarding the C.A.T. (Convention Against Torture) and whether or not the immigration court ignored the prior torture, Cohen said that Singh’s claims related almost completely to the torture endured by his parents and never brought to attention his experience and that of torture at the time of the violent attack.
“[Singh] did not, for example, argue that he has suffered enduring trauma as a result of the violent attack on his parents, but it is clear that the agency considers the violent attack as it related to Mr. Singh’s parents in their consideration” clarified Cohen.
Cohen added that past torture is a factor in a C.A.T. analysis but it does not contain a presumption of future torture regardless of if torture was established in the past. Cohen further amplifies that the immigration did not commit any errors and that the court does not have jurisdiction to review Singh’s case.
Judge Gould asked Cohen to address the arguments for due process.
“Ultimately, these arguments amount to a weighing of the evidence. None of the arguments that were raised truly get to due process violation. The closest argument is the argument about the consideration of the expert testimony but the record shows that the petitioner agreed to move forward on a proffer testimony and the immigration judge considered that at full weight,” Cohen replied.
Cohen followed these statements by asking the court to dismiss and deny the petition for review.
Public Defender Upshaw readdressed the court and addressed the arguments presented by Cohen.
“As to the criminal review bar, this court has found that where the [immigration court] errors in the matter of law by failing to apply all relevant [and] consider all relevant evidence and by failing to apply correct legal standards. This is a legal issue and still subject to this court’s review,” Upshaw said.
This court proceeding concluded by Judge Kim McLane Wardlaw stating that this case will be submitted.
Any Buitrago Zarabanda is a Criminal Justice studies student at San Francisco State University. She is originally from Colombia and migrated to the U.S. at the age of 12. She aspires to be a lawyer and work in the fields of immigration or public defense.
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