Lanza v. Ashcroft

• Decision Date: 22 November 2004
• Docket Number: No. 02-73538.,02-73538.
• Citation: 389 F.3d 917
• Parties: Ana Maria LANZA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 917

389 F.3d 917

Ana Maria LANZA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73538.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 6, 2004.

Filed November 22, 2004.

Daniel M. Kowalski, Austin, TX, for the petitioner.

Peter D. Keisler and Linda S. Wendtland, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-107-918.

Before: GOULD, PAEZ, Circuit Judges, and SILVER,^* District Judge.

SILVER, District Judge.

Petitioner Ana Maria Lanza ("Lanza"), a native of Argentina, seeks review of a final order of the Board of Immigration Appeals (the "BIA" or the "Board") denying her petitions for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). An Immigration Judge ("IJ") found that Lanza's asylum application was untimely and that Lanza did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Lanza's asylum claim on the merits. Finally, he denied Lanza's petitions for withholding of removal and CAT relief. Lanza appealed, and the BIA affirmed without opinion pursuant to its streamlining regulations. See 8 C.F.R. § 1003.1(e)(4) (2004).

When the BIA streamlines and affirms without opinion, it endorses the result but not necessarily the reasoning of the IJ. Id. § 1003.1(e)(4)(ii). In Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003), we held that even though streamlining conceals the reasons for the BIA's decision, this circumstance does not compromise our ability to review the agency's action because we may bypass the BIA and review the IJ's decision directly. Although streamlining allows the Board "to affirm the IJ's decision based on different reasons than those set forth by the IJ," we noted that "the BIA is cognizant of this possibility and knows the risk it takes in declining to articulate a different or alternate basis for the decision." Id.

But we also expressed concern in Falcon Carriche about "potentially anomalous" situations in which the petitioner presents to the BIA grounds that are both reviewable and unreviewable in federal court and the BIA's subsequent affirmance without opinion "prevents us from discerning the reasons for the BIA's decision." Id. at 855 n. 10; see also id. at 856 n. 2 (T.G. Nelson, J., concurring in part and dissenting in part). In such cases the BIA could conclude that the IJ erred on the unreviewable ground, but reason that the error was harmless and affirm on the basis of the reviewable ground. Because the BIA does not issue a reasoned decision when it affirms without opinion, we would have no way of knowing that the BIA rejected the unreviewable ground. We would then be faced with a dilemma: should we assume that the BIA relied on the unreviewable ground and dismiss the appeal for want of jurisdiction, remand for clarification, or assume that the BIA affirmed on the basis of the reviewable ground?

This appeal requires an answer to that question. The IJ rejected Lanza's asylum claim on alternative grounds — one reviewable in federal court (the merits) and the other unreviewable (untimeliness). The BIA affirmed without opinion, and we do not know the reasons for its affirmance. The Government argues that the IJ's untimeliness finding controls the decision on appeal and that we should therefore dismiss Lanza's asylum claim for lack of jurisdiction. We reject this argument. We cannot ignore the possibility that the BIA may have rejected the IJ's untimeliness finding and affirmed on the merits. If the BIA in turn erred in affirming on the merits and we dismiss for lack of jurisdiction, Lanza will be erroneously removed to a country she claims will persecute her without receiving the benefit of her statutory right to have this Court review the BIA's decision. This would work a serious deprivation of due process.

Due process requires us to either review the merits of Lanza's asylum application or remand to the BIA for clarification of the grounds for its decision. Given the general presumption against federal jurisdiction, we remand for clarification. Because there are no barriers to our review of Lanza's withholding of removal and CAT claims, we reach the merits of those claims and we affirm.

BACKGROUND

I. The Removal Proceedings

Lanza entered the United States on March 20, 1990, by crossing the border from Mexico. She eventually moved to Seattle. On October 8, 1999, the Immigration and Naturalization Service ("INS")¹ charged Lanza with removability for illegal entry. Lanza conceded removability, but applied for asylum, withholding of removal, and CAT relief. She alleged that she had been and would be persecuted in Argentina because of her political opinions.

The IJ held a removal hearing on May 19, 1999. In an oral decision entered on November 4, 1999, he found Lanza removable. He also denied Lanza's requests for relief from removal and granted Lanza the privilege of voluntary departure. Lanza appealed to the BIA. The BIA affirmed without opinion on September 26, 2002. Lanza timely appealed to this Court on October 24, 2002.

II. Lanza's Affidavit and Oral Testimony

Lanza was born in Comodoro Rivadavia, Argentina on June 20, 1955. She attended the University of Buenos Aires for two years in the early 1980s, and then went on to work as a file clerk at the Municipal Offices of Caseros. Lanza claimed that while working as a municipal employee, she became involved in the Union Civica Radical ("UCR"), a political party led by Raul Alfonsin ("Alfonsin"). Alfonsin was opposed to Argentina's military-run government and wanted to return Argentina to democracy. Lanza said that she acted as a liaison between the party and the community and lobbied for votes on the party's behalf.

In 1983, following the defeat of the Argentine military in the Falklands/Malvinas War, Argentina held a free general election. Alfonsin was elected president. Lanza testified that she became a well-known union organizer during Alfonsin's presidency and continued to assist the UCR with its campaigns and activities. She alleged that she, along with others, founded Asociacion Sindical de Agentes Municipales, a union for municipal agents and employees.

An early presidential election was held in May 1989. Argentina was experiencing food shortages, unemployment, and civil unrest. Alfonsin was defeated and Carlos Saul Menem ("Menem"), a member of the Peronist Justicialist Party, was elected president. Lanza testified that she remained noticeably active in the UCR during Menem's presidency. In particular, she said that she opposed Menem's attempts to privatize state-owned businesses. Lanza claimed that she was blacklisted by the Menem government and lost her job at the Municipal Offices. She also said that she could not find suitable work for a person with her qualifications.

Lanza claimed that her troubles with the Menem government escalated in February 1990. She alleged that three men came to her home in Buenos Aires the night of February 19, 1990. She said that they first went to the room where her young daughter was sleeping and closed the door as they passed.² Lanza claimed that they then went over to her (Lanza), pushed her against the wall, and told her to sit in a chair. She alleged that the men punched her, called her a "crazy nationalist" and "stupid idealist," and told her that "women should not be in politics." She also alleged that they threatened to kill her and her daughter if she continued her political activities. Lanza claimed that the men were members of the Comando de Organizacion, a paramilitary group that took orders from Menem's Peronist Justicialist Party. She admitted that she never reported this incident to the police. She also admitted that she did not receive other threats while she was in Argentina.

After this alleged incident, Lanza went to the United States Embassy in Buenos Aires and applied for a tourist visa.³ She did not ask for asylum. The Embassy denied her visa application on February 22, 1990. Lanza claimed that she met with a friend from the Embassy soon afterwards.⁴ She said that her friend gave her the phone number of a man in Mexico named John who could take her to the United States if she wanted. On March 14, 1990, Lanza flew to Acapulco, Mexico with her daughter. Lanza testified that she had no intention of staying in Mexico for an extended period of time or of immigrating to the United States. She said that she planned to return to Buenos Aires after a few months and that she "viewed the time in Acapulco as a vacation and a period of reflection."

Lanza testified that her intentions changed after arriving in Mexico. She said that she telephoned her father in Argentina once she arrived in Acapulco. Her father allegedly told her that two men had come looking for her. The men supposedly asked her father for details about where she was and when she would return. Lanza claimed that she was frightened and wanted to go to the United States. She said that she traveled from Acapulco to Tijuana and then called her contact, John. John agreed to take Lanza and her daughter across the border for $1,500.00. Lanza and her daughter entered the United States on March 20, 1990, near San Ysidro, California. They eventually moved to Seattle, Washington.

From 1990 to 1992, Lanza made no attempt to apply for asylum. In 1992, while living in Seattle, Lanza married Roy Rowan ("Rowan"), an American citizen. Lanza testified that she did not try to adjust her immigration status during the marriage because she "d[id]n't know very much about the law." In 1994, Rowan moved to Atlanta to train for a job with IBM. Lanza planned to follow, but Rowan soon told Lanza that he was having an...