Petition for Writ of Certiorari — Gutierrez v. Mukasey (No. 07-532)

Supreme Court, U.S.

ee BD .

CL 07-532 0717 2007

No.7. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

FRANCISCO LONDONO GUTIERREZ,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED StaTES Court OF APPEALS

FOR THE Firsr Circuit

PETITION FOR A WRIT OF CERTIORARI

VakD R. JOHNSON

Attorney for Petitioner

18 Tremont Street

Suite 210

Boston, MA 02108

BBO No. 660137

(617) 557-1711

(617) 557-4711

21171) g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

1

QUESTIONS PRESENTED

1. Should this Court grant certiorari to resolve the

question of whether the regulatory scheme governing

the filing of an asylum application for an alien in

proceedings is contrary to the language and intent of

Sec. 208 of the I.N.A.?

2. Should this Court grant certiorari to resolve the

question of whether the Petitioner was deprived of his

due process right to participate in a full and fair hearing

on his asylum application as guaranteed by the 5th

Amendment of the U.S. Constitution?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATEMENT

REASONS FOR GRANTING THE PETITION ...

A. The Regulatory Scheme Established by

8 C.F.R. § 208, 8 C.F.R. § 1003.18, and

Immigration Court Processing Procedure

Under Asylum Request Processing

Provision XIII(c) Regarding the Filing of

an Asylum Application In Removal

Proceedings Violates Sec. 208 of the I.N.A.

ii

Contents

B. As a Result of Application of the

Regulatory Scheme for Asylum Filing to

the Petitioner, the Petitioner was

Deprived of His Due Proces> Right to

Participate in a Full and Fair Hearing as

Guaranteed to Him by the 5th

Amendment of the U.S. Constitution,

which was Fundamentally Unfair

CONCLUSION

iv

TABLE OF APPENDICES

Appendix A — Judgment Of The United States

Court Of Appeals For The First Circuit Dated

May 2, 2007

Appendix B — Order Of The United States

Department Of Justice, Executive Office For

Immigration Review Dated December 12, 2005

Appendix C — Order Of The U.S. Department

Of Justice, Executive Office For Immigration

Review Dated October 12, 2005

Appendix D — Oral Decision Of The U.s.

Department Of Justice, Executive Office For

Immigration Review, Immigration Court,

Boston, Massachusetts Dated January 11, 2005

Appendix E — Order Of The United States Court

Of Appeals For The First Circuit Denying

Petition For Rehearing Entered July 19, 2007

Vy

TABLE OF CITED AUTHORITIES

Page

Cases:

Campos-Sanchez v. INS,

164 F3d 448 (9th Cir. 1999)

Chevron USA, I nc.

v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (Sup. Ct. 1984)

Hasanaj v. Ashcroft,

385 F3d 780 (7th Cir. 2004)

Hayek v. Gonzales,

145 F3d 501 (1st Cir. 2006)

INS v. Cardoza-Fonseca,

480 U.S. 447 (1992)

INS v. St. Cyr,

121 S. Ct. 2271 (2001)

Matter of Acosta,

19 I.&N. Dec. 211 (BIA 1985)

Matthews v. Eldridge,

424 U.S. 319 (1976)

McCarthy v. Madigan,

1128S. Ct. 1081 (S. Ct. 1992)

vi

Cited Authorities

Mehilii v. Gonzales,

433 F.3d 86 (1st Cir. 2005)

Reyes-Melendez v. INS,

342 F3d 1001 (9th Cir. 2003)

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005)... 18

Tapiero de Orejuela v. Gonzales,

423 F.3d 666 (7th Cir. 2005)

United States v. Aguirre-Tello,

353 F3d 1199 (10th Cir. 2004)

United States v. Charleswell,

456 F3d 347 (3d Cir. 2006)

United States v. Palacios-Martinez,

845 F.2d 89 (5th Cir. 1988)

United States Constitution:

Fifth Amendment

Statutes:

8 U.S.C. § 208.4(b)(3)

8 U.S.C. § 1158(a)(2)(B)

vil

Cited Authorities

Other Authorities:

8 C.ER. § 208

8 C.ER. § 208.2(b)

8 C.ER. § 208.4(a)(2)(ii)

8 C.ER. § 1003.18

8 C.ER. § 1003.18(a)

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA),

Pub. L. 104-208

§ 208(a)(B)

§ 208(a)(2)(B)

§ 235(b)

Statistical Year Book, Prepared by the

Office of Planning, Analysis, & Technology,

February 2006

]

Petitioner Francisco Londono Gutierrez respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the First

Circuit in this case.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the First Circuit (Pet. App. 14a) is unpublished.

The First Circuit’s judgment denied the petition for

rehearing and rehearing en banc. The opinion of the

Board of Immigration Appeals (Pet. App. 3a) is

unpublished. The Opinion of the Executive Office for

Immigration Review fro the Immigration Court at

Boston Massachusetts (Pet. App. 8a) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered

on May 2, 2007. A timely petition for rehearing and

rehearing en banc was denied on July 19, 2007 (Pet. App.

14a). This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATEMENT

1. The Petitioner, Francisco Anibal Londono

Gutierrez, is a native and citizen of Colombia who first

entered the United States on or about December 27,

2001. (A.R. at 95, 466). The Petitioner entered the United

States via Miami, Florida, by air with fraudulent

documents. (A.R. at 466). The Petitioner was detained

and a “credible fear” interview was administered

pursuant to § 235(b) of the Immigration & Nationality

Act (INA). (A.R. at 170-171). At his interview the

2

Petitioner expressed a fear of returning to Colombia

because he had problems with the “Auto Defensas de

Colombia” or “AUC,” a paramilitary group. (A.R. at 170).

Specifically, the Petitioner testified that he was a

businessman in Colombia. He had been the victim of

excessive extortion and that another businessman was

murdered after failing to adhere to the AUC’s deadly

requests. (A.R. at 170). Furthermore, the Petitioner

stated that threats had been communicated to him

prompting him to flee to the United States. (A.R. at 170-

171). After an asylum officer found that Mr. Londono

genuinely feared returning to Colombia he was released

and placed in removal proceedings.

2. What transpired next is riddled with serious

violations of due process rights. Section 208(a)(2)(B) of

the INA requires that an applicant for asylum

demonstrate that he or she has filed his application, Form

[-589, within one year after the date of the alien’s arrival

in the United States. For applicants in Immigration

Court proceedings, the Department of Homeland

Security can move to pretermit the request for asylum

for failure to file within the one year deadline. Here, Mr.

Londono’s deadline for filing his application for asylum

was December 26, 2002. The Respondent was scheduled

to appear for an initial Master Calendar Hearing on May

2, 2002. That notice was erroneously sent to 436 Meridian

Street, Apt. 1, East Boston, MA 02128. (A.R. at 458).

The correct address provided by the Respondent was

463 Meridian Street, Apt. 1, East Boston, MA 02128. The

Court, noting the error, rescheduled the Respondent to

appear for a Master Calendar Hearing on December 19,

2002. (A.R. at 457). Inexplicably, the Court next, sua

3

sponte, rescheduled the Respondent’s initial Master

Calendar Hearing and set it for July 31, 2003. (A.R. at

27), well after the one year deadline for the filing of an

asylum application.’

On July 24, 2003, the Petitioner appeared before the

Immigration Court represented by Attorney David

Collier. The Immigration Judge reset the case to October

30, 3003, to file the I-589. (A.R. at 85-86). On October 30,

2003, the Petitioner again appeared before the

Immigration Court. The Immigration Judge specifically

asked Petitioner’s counsel if there was any reason for

the failure to file an asylum application prior to the one

year filing deadline. (A.R. at 88). Petitioner’s counsel

responded, “No, Your Honor. No. This is—.” (A.R. at 88).

As a result, the Immigration Court construed

Petitioner’s counsel’s response as a request for

withholding only. The Petitioner was never afforded an

opportunity to comply with the one year filing deadline

because the Immigration Court without explanation

rescheduled the Petitioner’s Master Calendar Hearing.

On January 11, 2005, the Petitioner testified before

the Immigration Court regarding the I-589 he had

previously submitted. The Petitioner testified that he

had obtained a high school diploma in Colombia and that

he worked for a sports promotion in the municipality

where he was born. (A.R. at 95). He further testified that

1. It should also be noted that while the Court rescheduled

the matter to July 31, 2003, the Petitioner appeared before the

Immigration Court in Boston, MA, on July 24, 2003. (A.R. at 84-

86). There is no evidence in the administrative record that any

of the parties received an actual hearing notice for July 24, 2003.

Nonetheless, all parties appeared and a hearing was conducted.

4

he entered the United States on December 27, 2001, via

Miami, Florida, on a false passport and visa. (A.R. at 95-

96). The Petitioner testified that he operated his own

business, Granedo Polandur. (A.R. at 96). The Petitioner

stated that he had to rush out of his country because he

was in physical danger and his family was in danger.

(A.R. at 97).

The Petitioner lived in an area where there was a

significantly large presence of the AUC Paramilitary

members (hereinafter AUC). (A.R. at 97). The Petitioner

testified that he was approached by members of the AUC

and that they requested payment of two thousand pesos.

(A.R. at 97-98). The Petitioner was terrified, “green

behind the ears”. (A.R. at 97). He was told by other

merchants similarly situated that this was the National

Defense’s territory and they always collected rent.

(A.R. at 97-98). The Petitioner testified that he made

these payments of 2000 pesos for approximately one year

and six months when suddenly the price was raised to

200,000. (A.R. at 98). The Petitioner expressed his

inability to meet such an exorbitant amount but these

armed forces members replied that he “had to pay or

pay the consequences or kidnappings”. (A.R. at 99).

These armed men of the AUC would enter his business,

take supplies and money from the register. If the

Petitioner denounced them to the police they said he

would pay the costs at any measures. (A.R. at 99).

The Petitioner had no choice but to sell his business.

Nevertheless, the Petitioner received a threatening

letter demanding a percentage of the proceeds from the

sale of his business or the original 200,000 pesos the AUC

had previously requested. (A.R. at 100). Two months

5

after the sale of his business the Petitioner felt he had

no choice but to leave his country, particularly since he

felt that everywhere he went he encountered the

presence of the armed forces. (A.R. at 101).

On cross examination there were some minor

discrepancies elucidated by the Trial Attorney. For

example, the Trial Attorney ' oted that Mr. Londono

initially attempted to enter the United States on the false

passport rather than immediately requesting asylum.

(A.R. at 106). There were some differences regarding

testimony given at the airport during the credible fear

assessment and testimony given at the Individual Merits

Hearing, mainly concerning the amount of money that

the AUC demanded. Specifically, the Trial Attorney

focused on the Petitioner’s inability to meet the extortion

demands of the AUC with his ability to pay for a

fraudulent visa. (A.R. at ). The Trial Attorney also

inquired as to why the Petitioner’s wife, who was not

part of the proceedings, did not testify on his behalf.

(A.R. at 109-110).

The Immigration Court, which is charged with sole

jurisdiction over asylum claims, made no attempt to

ensure that the Petitioner’s right to due process was

preserved. The Immigration Court denied the

Petitioner’s request for withholding of removal based

on one internal inconsistency. Essentially, the Court

noted that the Petitioner was unable to continue meeting

the exorbitant demands of the AUC but was able to pay

for a fraudulent visa. The Court notes that even if the

Petitioner was internally consistent he had not shown

that it was more likely than not that he would be tortured.

6

3. On appeal, the Petitioner’s former counsel

challenged only the denial of Petitioner’s request for

withholding of removal. The Board noted that

Petitioner’s counsel failed to raise any arguments related

to the one year filing deadline and therefore adopts and

affirms the decision of the [Petitioner’s] application for

withholding of removal on October 12, 2005. (A.R. at 48).

There is an additional one-sentence in the Board’s

decision stating that they agree that the extortion was

criminal in nature. (A.R. at 48).

After the Board dismissed the Petitioner’s appeal a

Motion to Reconsider, Motion to Reopen, and Motion for

a Stay of Removal, were filed with the Board on

November 10, 2005. Specifically, the Motion to Reopen

addressed the Immigration Court’s failure to schedule

a hearing date for the filing of the asylum application

pursuant to 8 U.S.C. § 208.4(b)(3). It addressed the

numerous rescheduled hearings in this matter and the

total deprivation of Mr. Londono’s due process rights.

He was never afforded an opportunity to exercise his

right to fully prosecute his application for political

asylum. Because the Immigration Court never attempted

to determine if an exception existed to the one year filing

requirement, Mr. Londono was effectively precluded

from exercising his request for asylum. What is more,

the Board completely skirts present counsel’s critical

issue—whether the Petitioner was deprived of due

process when he was effectively prevented from timely

filing an asylum application. (A.R. at 2). The Board’s

decision addresses only the issues raised in the Motion

to Reconsider related to the withholding arguments.

The serious procedural errors present since the

inception of these proceedings warranted a remand to

7

the Immigration Court. The Immigration Court’s oral

decision cites one internal inconsistency and then denies

withholding of removal. Moreover, the Board’s complete

failure to address all of the Petitioner’s claim filed on

November 10, 2005, also warranted a remand.

The First Circuit Court of Appeals dismissed

Petitioner Francisco Londono’s Petition for Review on

May 2, 2007. In its judgment, the First Circuit states

that Petitioner did not establish a colorable due process

claim and, therefore, the Court lacked jurisdiction to

review his challenge to the ruling that his asylum

application was untimely. The Court further found

substantial evidence in the record supporting the

determination that petitioner failed to meet his burden

to show entitlement to withholding of removal.

The instant petition followed.

REASONS FOR GRANTING THE PETITION

This Court should grant this petition for a writ of

certiorari because the Petitioner’s due process right to

a full and fair hearing, as guaranteed by the 5th

Amendment to the U.S. Constitution, has been denied

as a result of a conflict between § 208 of the Immigration

& Nationality Act and its corresponding regulations,

combined with local operating rules and procedures

implemented across the Immigration Courts in the

United States. The First Circuit Court of Appeal’s

decision effectively grants Immigration Courts

unfettered discretion to schedule hearings for asylum

applicants beyond the one-year deadline that Congress

established in § 208 of the I.N.A. for the filing of an

8

application for asylum and withholding of removal. The

regulatory scheme as applied in this case and the First

Circuit Court’s decision granting the Immigration

Courts such unfettered discretion to schedule asylum

hearings clearly violate the statutory requirement

established by § 208 of the I.N.A. to file within one-year.

Furthermore, they frustrate Congressional intent to

process asylum claims within a limited one-year time

period. Petitioner’s rights to due process and

fundamental fairness were denied by the cumulative

effect of the Immigration Court’s procedural defects and

error in scheduling Petitioner’s hearing for asylum past

the statutory one-year deadline. Given the increasing

number of asylum applicants and the particular

vulnerability of the nation’s population of pro se refugees

who must navigate through the impenetrable labyrinth

of immigration laws passed by Congress, this conflict

and resulting deprivation of due process are untenable.

A. The Regulatory Scheme Established by 8 C.ER.

§ 208, 8 C.F.R. § 1003.18, and Immigration Court

Processing Procedure Under Asylum Request

Processing Provision XIII(c) Regarding the

Filing of an Asylum Application In Removal

Proceedings Violates Sec. 208 of the I.N.A.

The Iliegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208,

was enacted on September 30, 1996, and provided several

changes to the Immigration & Nationality Act. Sec. 208

of the INA states that an alien who is physically present

in the United States can file an application for political

asylum. Pursuant to the statute, the alien must also

demonstrate by clear and convincing evidence that he

9

or she filed the application for political asylum within

one year of arrival to the United States. See § 208(a)(B).

Section 208 of the Code of Federal Regulations

contains general procedures for asylum and withholding

of removal. The procedures relate to jurisdiction, forms,

and the filing of an asylum application. 8 C.F R. § 208.2(b)

grants exclusive jurisdiction to Immigration Judges over

asylum applications filed by an alien who has been served

with a Notice to Appear. The regulations further provide

that for an alien in proceedings the filing date of the

asylum application is the date it is served upon the

Immigration Court. See 8 C.ER. § 208.4(a)(2)(ii). An alien

in removal proceedings cannot simply submit their

asylum application to an Immigration Court Clerk. Local

rules and operating policies are implemented at

Immigration Courts across the country.

In Boston, Massachusetts, where the Petitioner’s

hearings were held, there are specific operating policies

governing the filing of an asylum application by an alien

in removal proceedings. Immigration Court Operating

Policy and Procedure Memorandum, 00-01, Asylum

Request Processing, Provision XIII(c), page 15, states:

“For cases before the Immigration Court in accordance

with Sec. 3.13 of this chapter, “asylum applications cannot

be accepted through the clerk’s office whether mailed

or hand delivered.” As a result of this constraining policy,

an alien in removal proceedings must wait until the

Immigration Court schedules his hearing. The

Immigration Court has sole responsibility for scheduling

cases and notifying the alien and the Government of the

“time, place and date of hearing”. See 8 C.ER.

§ 1003.18(a).

10

In the instant matter, the Petitioner was paroled into

the United States for the purposes of filing an asylum

application on or about December 27, 2002. (A.R. at 95,

466). According to his parole date, the Petitioner had to

file an I-589 Application for Political Asylum on or about

December 26, 2003. Instead, what occurred was that a

series of improper hearing notices were initially served.

Thereafter, the Immigration Judge, ignoring his sole and

exclusive functions of both receiving an asylum

application and scheduling the date for the filing of an

asylum application, inexplicably scheduled a Master

Calendar Hearing beyond the one-year filing deadline.

Initially, Mr. Londono was scheduled to appear

before the Immigration Court on May 19, 2002. (A.R. at

458). The notice was erroneously sent to an incorrect

address. The Immigration Court, promptly noting the

error, sent a rescheduled hearing notice to Mr. Londono’s

appropriate address and scheduled him to appear on

December 19, 2002, or four months later from the initial

hearing but seven days before Mr. Londono’s one-year

filing deadline. (A.R. at 457). Without explanation, the

Immigration Court, upon its own authority, reschedules

yet again this time to July 31, 2003, seven months past

the one-year deadline. When the Petitioner finally

appears in court the Immigration Court, which was in

control of scheduling Mr. Londono’s Master Calendar

Hearing for purposes of properly filing the asylum

application, proceeds with a Withholding of Removal

Application only.

In determining whether Mr. Londono’s statutory

right to a full and fair hearing was violated, the

particulars of this matter reveal that it was so violated.

11

The REAL ID Act deprived the courts of appeals of

jurisdiction over discretionary or factual determinations.

See Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).

Recently, in Hayek v. Gonzales, the First Circuit Court

of Appeals determined that it did not have jurisdiction

to review whether or not an asylum application was

timely filed. 145 F.3d 501 (1st Cir. 2006). That case

involved a Lebanese individual who filed an asylum

application ten years after her initial entry date and

argued “changed circumstances” as an exception to the

one-year filing deadline. See Hayek, at 503. Because

Hayek involved a factual determination as to whether

or not there were changed circumstances in her native

country, the First Circuit Court declined review. Here,

Mr. Londono submits that the regulatory scheme for

filing an asylum application in Immigration Court

frustrates the purpose of § 208 of the INA.

Section 208 of the INA specifically grants aliens

physically present in the United States the right to file

an asylum application. The statute further places the

burden of proof on the alien to establish that he or she

filed the asylum application within one year of arrival

by “clear and convincing” evidence”. Here, Mr. Londono

was at the mercy of the Immigration Court’s ability to

schedule his hearing within one year. Mr. Londono was

granted a humanitarian parole because of the

extraordinary circumstances he presented at the airport

in Miami, FL, namely, that he presented a credible fear

of returning to his native country. (A.R. at 170-171). What

happened next deprived Mr. Londono of his right to

properly file an asylum application. The regulations

governing the mechanism for filing an application are

contrary to the spirit of § 208 of the INA granting aliens

12

physically present in the United States the right to file

an I-589 within one year of arrival.

In.enacting § 208 of the INA, Congress intended to

grant refugees the right to request asylum within one

year of arrival. For those aliens not in removal

proceedings, the ability to file is accomplished by filing

it with the Service Center in their jurisdiction. For those

aliens in removal proceedings, the regulations have

shown that their ability to file their applications is

constrained by their particular Court’s time constraints.

The number of cases backlogged at Immigration Courts

across the country is rising every day and create

potentially serious problems, especially for pro se

refugees who must file their application for asylum

before an Immigration Court where the clerk has

discretion to select any date on which to schedule the

applicant’s hearing.

The Supreme Court has determined that the

judiciary is the “final authority on issues of statutory

construction and must reject administrative

constructions which are contrary to clear congressional

intent.” INS v. Cardoza-Fonseca, 480 U.S. at 447-48

(1992) (quoting Chevron USA, Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (Sup. Ct. 1984)). The

Petitioner need not raise these statutory construction

and constitutional issues before the Immigration Judge

or the Board since they have no jurisdiction for review.

See McCarthy v. Madigan, 112 S. Ct. 1081, 1086 (S. Ct.

1992); see also Matthews v. Eldridge, 424 U.S. at 328-30

(holding that exhaustion not required when there is a

constitutional challenge to an administrative action).

13

In the matter at hand, the regulatory scheme

frustrates clear congressional intent. When Congress

has left a gap in a statute to be filled by the agency, the

courts will usually defer to the agency’s regulation unless

it is clearly in error or irrational. See Chevron, at 843-

844. However, if the statute is clear on its face then the

principle of deference is not applicable. See INS v. St.

Cyr, 121 S. Ct. 2271, 2290 n.45 (2001). Here, the statute

clearly provides an alien with an opportunity to file their

asylum application within one year of arrival into the

United States. Nonetheless, the regulations at hand

prevent an alien from exercising their rights. Mr.

Londono was unable to comply with the requirements

of § 208 until the court scheduled a hearing. Because

the hearing was scheduled beyond the filing deadline,

Mr. Londono was unable to demonstrate by “clear and

convincing evidence” that he filed his F'orm I-589 within

one year of arrival. The regulatory requirement that an

application be considered filed when it is served upon

the “Immigration Court” is “arbitrary, capricious, and

manifestly contrary to the statute.” Succar v. Ashcroft,

at 23 (quoting Chevron USA, Inc., at 843-44). The

regulations create an unlawful scenario for refugees who

have to wait until an Immigration Judge schedules their

hearing date—which, under the regulations, may be

after the statutory one-year filing deadline.

As the regulations were applied to the instant case,

Mr. Londono was deprived of an opportunity to

participate in a full and fair hearing with respect to his

asylum application. Because the regulations and the

Court’s decision to schedule an Initial Master Calendar

Hearing beyond the one year deadline, Mr. Londono was

subjected to a much higher standard—withholding of

14

removal—where he had to demonstrate that it was more

likely than not that he would be persecuted upon a return

to his native country.

The Petitioner respectfully requests that the

regulatory scheme and corresponding local procedures

for filing of asylum applications, which grant unfettered

discretion to Immigration Courts to schedule hearings

on the merits of an asylum application, are held to be

inconsistent with and contrary to the statutory

provisions of § 208 of the I.N.A.

B. As a Result of Application of the Regulatory

Scheme for Asylum Filing to the Petitioner, the

Petitioner was Deprived of His Due Process Right

to Participate in a Full and Fair Hearing as

Guaranteed to Him by the 5th Amendment of the

U.S. Constitution, which was Fundamentally

Unfair

The Due Process Clause of the Fifth Amendment

to the U.S. Constitution “requires that aliens ‘threatened

with deportation’ are provided with the right to ‘a full

and fair hearing.’” See Reyes-Melendez v. INS, 342 F-3d

1001 (9th Cir. 2003). “As part of a right to a full and fair

hearing, an alien is entitled to a ‘reasonable opportunity

to present evidence on his behalf.’ ” Jd. In order to obtain

relief for a violation of procedural due process rights in

immigration proceedings, an alien must show that the

violation prejudiced him. To demonstrate prejudice, an

alien need demonstrate that the IJ’s conduct only

“potentially . . . affected the outcome of the proceedings.”

Id. at 16 (citing Campos-Sanchez v. INS, 164 F3d 448,

450 (9th Cir. 1999)). Some circuit courts require a higher

15

standard, such that a “reasonable likelihood” exists that

the due process violation prevented the Petitioner from

gaining relief from deportation. United States v.

Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004).

Fundamental precepts of due process have been

construed such that an alien wishing to challenge a

deportation order must satisfy three requirements: that

“(1) he exhausted any administrative remedies that may

have been available; (2) the hearing effectively

eliminated the right of the alien to obtain judicial review

from that proceeding; and (3) the prior hearing was

fundamentally unfair.” United States v. Charleswell, 456

F.3d 347 (3d Cir. 2006).

Additionally, it has been held that where one has had

a “full opportunity to present his case” and a

“fundamentally fair hearing,” a claim of denial of due

process is unfounded. Hasanaj v. Ashcroft, 385 F:3d 780,

785 (7th Cir. 2004); see also United States v. Palacios-

Martinez, 845 F.2d 89 (5th Cir. 1988). However,

misleading information and repeated procedural defects

on the part of an immigration court may have the

cumulative effect of denying due process and

fundamental fairness. United States v. Aguirre-Tello,

353 F.3d at 1210 (J. Holloway and J. Seymour,

dissenting).

Under 8 U.S.C. § 1158(a)(2)(B), a “clear and

convincing” burden is placed on asylum applicants to file

their application within “1 year after the date of the

alien’s arrival in the United States.” The Respondents’

regulations clearly establish that Immigration Courts

have the sole responsibility for scheduling cases and

notifying the alien and the Government of the “time,

16

place and date of hearing.” See 8 C.ER. § 1003.18(a).

Additionally, an individual in Immigration Proceedings

is required to file his application for asylum with the

Immigration Court, which “can only be filed with the

Immigration Court at a Master Calendar or a Master

Calendar Reset Hearing.” See Immigration Court

Operating Policy and Procedure Memorandum, 00-01,

Asylum Request Processing, Provision XIII(c), page 15.

In the present case, there is no question that the

application of the regulatory and policy scheme

established by the Respondent to Petitioner’s case has

prevented the Petitioner from receiving a full and fair

hearing on the merits of his asylum application. The

Petitioner was at the mercy of the Respondents’ policies

and procedures in order to meet his burden of filing his

asylum application within the statutory period. Through

the course of the Petitioner’s immigration proceedings,

the Petitioner attempted to file his asylum application.

However, the immigration court rescheduled his master

hearing on two occasions, past the one-year deadline

established by § 208 of the I.N.A. The Immigration

Court’s delay in scheduling Petitioner’s Master Hearing

effectively deprived the Petitioner of his right to file his

asylum application. The Petitioner was not afforded a

“reasonable opportunity to present evidence on his

behalf’—rather, he was afforded no opportunity to

present evidence on his behalf.

The Petitioner has been prejudiced by the

deprivation of his right to a hearing because the outcome

of his case was potentially affected. Being subject to a

final order of the Board after not being afforded a full

and fair hearing, the Petitioner is now subject to removal

17

from the United States, which has been his home over

the past five years. Asylum, withholding of removal, and

the protection under the Convention Against Torture

(“CAT”) are substantially different claims. Asylum is a

much less stringent standard than withholding of

removal and CAT. The Respondents’ own statistic shows

that the rate of approval for asylum applications is 38%,

while withholding of removal is only approved at a rate

of 13%. See FY 2005, Statistical Year Book, Prepared by

the Office of Planning, Analysis, & Technology, February

2006.

Even under the higher standard adopted by some

circuit courts that there be a “reasonable likelihood” that

the due process violation prevented the Petitioner from

gaining relief from deportation, the Petitioner had a

reasonable likelihood of showing he had a well-founded

fear of persecution on account of his social group. The

AUC paramilitaries in Columbia targeted the Petitioner

for excessive extortion. They murdered another

individual who refused to comply with their demands,

and they directly threatened the Petitioner. See also

United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir.

2004).

The Petitioner has satisfied fundamental precepts

of due process to show that (1) he exhausted any

administrative remedies that may have been available

because he pursued a final order of the Board of

Immigration Appeals, (2) the hearing scheduled by the

Immigration Court effectively eliminated his right to

obtain judicial review because the one-year deadline had

passed through no fault of his own, and (3) the prior

hearing was fundamentally unfair because it was

18

scheduled after the one-year deadline for Petitioner’s

asylum application. See United States v. Charleswell,

456 F'3d 347 (3d Cir. 2006) (where misleading language

contained in a reinstatement notice of intent form, and

the Immigration and Naturalization Service’s failure to

inform the immigrant of his statutorily prescribed right

to seek an appeal of his reinstatement order, was a

fundamental defect of the nature that, if prejudicial,

rendered the proceeding fundamentally unfair).

Analogous to misleading language on a notice of intent

form, the notice of a hearing form misled Petitioner to

think that his asylum application remained timely when

the Court scheduled his hearing past the one-year

deadline. See id. Petitioner’s resulting status of being

subject to deportation is fundamentally unfair.

Moreover, because Petitioner has been denied a “full

opportunity to present his case” at a “fundamentally fair

hearing,” his claim of deprivation of due process is well-

founded. Compare Hasanaj v. Ashcroft, 385 F3d 780,

785 (7th Cir. 2004)(where due process claim was held to

be unfounded because applicant had full opportunity to

present case); compare also United States v. Palacios-

Martinez, 845 F.2d 89 (5th Cir. 1988) (where defects in

an earlier deportation proceeding did not deprive

appellant of a fundamentally fair hearing). Additionally,

the Immigration Court’s scheduling of Petitioner’s

hearing past the one-year deadline created information

that was misleading for Petitioner, indicating that his

application would still be valid with a hearing date

beyond the one-year deadline. See United States v.

Aguirre-Tello, 353 F.3d at 1210 (J. Holloway and J.

Seymour, dissenting) (stating that misleading references

by an immigration judge on Petitioner’s eligibility for a

19

“pardon” and other procedural defects resulted in the

cumulative effect of denial of Petitioner’s rights to due

process and fundamental fairness). In the instant case,

the Immigration Court’s repeated procedural defects

resulting from this misleading information and the

incorrect address on Petitioner’s hearing notice have had

the cumulative effect of denying Petitioner due process

and fundamental fairness. See id.

Furthermore, the regulations and policies

established by the Respondent that allow the

Immigration Courts unfettered discretion in scheduling

cases are contrary to Congress’ intent in establishing

the one-year asylum filing deadline. Clearly, Congress

would not have established the burden and requirement

to file within one year if an individual would be

procedurally unabie to file the application because an

Immigration Court scheduled his hearing past the one-

year deadline. The regulations and procedures

established by the Respondent have effectively deprived

the Petitioner of a full and fair hearing on the merits of

his asylum application.

Additionally, the Immigration Judge indicated that

the Petitioner did not qualify for withholding of removal

since he did not establish persecution or fear of

persecution based on account of political opinion.

However, the Petitioner had attempted to file for asylum

and had filed for withholding of removal based on more

than one of the five enumerated groups (race, religion,

nationality, membership in a particular social group or

political opinion). The Petitioner’s application also

included social group as one of the enumerated grounds

of persecution. There have been numerous cases that

20

have established that an individual being extorted for

money can establish persecution based on a distinct

social group. See Matter of Acosta, 19 I.&N. Dec. 211,

233; and Tapiero de Orejuela v. Gonzales, 423 F3d 666,

672 (7th Cir. 2005) (where the Seventh Circuit applied

the social group test from Acosta to hold that Petitioners

“fell into a distinct social group: the educated,

landowning class of cattle farmers targeted by FARC,

noted in the State Department’s Country Report as

among the guerrillas’ ‘preferred victims.’ This group was

not defined merely by wealth, but by ownership of land,

social position as cattle farmers, and their education”;

and Petitioner’s persecution was marked by a murder,

repeated attempts at extortion, and various death

threats).

In this instance, the Petitioner is part of that social

group that was specifically targeted by guerilla groups

in Colombia. The AUC paramilitaries in Columbia

targeted the Petitioner for excessive extortion. They

murdered another individual similarly situated to

Petitioner who refused to comply with the monetary

demands they were making on Petitioner, and they

directly threatened the Petitioner with deadly force and

kidnapping. Specifically, the Petitioner testified that he

was approached by members of the AUC and that they

requested payment of two thousand pesos. (A.R. at 97-

98). The Petitioner was terrified, “green behind the

ears”. (A.R. at 97). Petitioner was told by other

merchants similarly situated that he was on the National

Defense’s territory and they always collected rent.

(A.R. at 97-98). The Petitioner testified that he made

these payments of 2000 pesos for approximately one year

and six months when suddenly the price was raised to

21

200,000. (A.R. at 98). The Petitioner expressed his inability

to meet such an exorbitant amount but these armed forces

members replied that he “had to pay or pay the

consequences or kidnappings”. (A.R. at 99). These armed

men of the AUC would enter his business, take supplies

and money from the register. If the Petitioner denounced

them to the police they said he would pay the costs at any

measures. Petitioner felt that everywhere he went he

encountered the presence of the armed forces. Petitioner

had to rush out of his country because he was in physical

danger and his family was in danger. (A.R. at 101).

Therefore, Petitioner put forth evidence of a well-founded

fear of persecution based on account of his social group to

show entitlement to withholding of removal.

In the interests of fundamental fairness, Petitioner

respectfully requests that he be granted his due process

right to a full and fair hearing on the merits of his asylum

application.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

VarRD R. JOHNSON

Attorney for Petitioner

18 Tremont Street

Suite 210

Boston, MA 02108

BBO No. 660137

(617) 557-1711

(617) 557-4711