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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1608%3A1. Public record. Not legal advice.