Cultural Evidence: District Court will Allow Government to Use, to Prove Sanity

The Government disputes the defense claim that the defendant Mitchell suffers from schizophrenia, as diagnosed by a psychiatrist for the federal Bureau of Prisoners. The trial court has ruled that the Government's proffered rebuttal expert witnesses meet the test for Rule 702, and shall be allowed to offer evidence of the defendant's culture and religious beliefs to rebut a claim of mental illness. USA v Mitchell, District Court, Utah, November 16, 2009.

Withholding of Removal: 6th Circuit Requires Grant Re Yemen

Al-Ghorbani v. Holder--- F.3d ----, 2009 WL 3718297C.A.6,2009. November 09, 2009

Abdulmunaem and Salah belong to a social group that opposes the repressive and discriminatory Yemeni cultural and religious customs that prohibit mixed-class marriages and require paternal consent for marriage. The active opposition of both Abdulmunaem and Salah distinguishes them from an impermissibly broad category of “young” or “westernized” persons in Yemen. See, e.g., Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005) (explaining that “generalized, sweeping classifications” of persons do not constitute a particular social group under the INA); Sharif v. INS, 87 F.3d 932, 936 (7th Cir. 1996) (describing the cognizability of westernized Iranian women as a particular social group “debatable at best”).

Moreover, Abdulmunaem and Salah have been identified by their community as persons opposing Yemen’s traditional, paternalistic, Islamic marriage traditions. The family members who refused to support Abdulmunaem’s marriage to Najla, the neighbor of Abdulmunaem and Salah’s mother who reported the brothers’ whereabouts to the General, and the local authorities who permitted Salah to be detained for months without charges and refused to prosecute the General for shooting his own son demonstrate that opposition to Yemeni marriage traditions is a characteristic which Yemeni society generally, and the General specifically, “seeks to overcome.” See Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009) (defining persecution as the infliction of harm to overcome a characteristic of the victim). Because of the fundamental nature of marriage, this is a characteristic that Abdulmunaem and Salah should not be required to change. See
Acosta, 19 I. & N. Dec. at 233. Accordingly, the “opposition” aspect of their actions places them in an identifiable social group.

*****

Similarly, in the instant case, the General’s personal motives cannot be unraveled from his motives based on Abdulmunaem and Salah’s social class and their opposition to Yemeni paternalistic rights. The conflict was caused by the General’s refusal to permit Abdulmunaem to marry Najla precisely because of the meat-cutter class to which Abdulmunaem and his family belong. Although the immediate cause of the General’s anger was the defiance of his wishes through Abdulmunaem’s secret marriage to Najla, the underlying cause of the General’s wrath was his class prejudice. The affront to the General’s honor was based on the fact that his daughter had run away with a lower-class man whom the General perceived to be unworthy. Thus, the BIA erred in finding that the sole motivation for the General’s actions was his personal vendetta against Abdulmunaem and Najla for disobeying him."

Abdulmunaem and Salah added insult to injury by openly opposing Yemeni cultural traditions once the secret marriage was discovered. Yemeni society recognizes a father’s right to control who his daughter marries and permits a father to punish—and even kill—those who defy this tradition and insult the family honor. Rather than giving up his marriage to Najla and submitting to the General’s rights as Najla’s father, however, Abdulmunaem took Najla to southern Yemen. Salah similarly refused to recognized the paternal rights of the General and would not disclose the location of Abdulmunaem and Najla, despite being detained and abused by the General’s guards.

Abdulmunaem’s and Salah’s refusal to submit to the paternalistic traditions of Yemen therefore gives the General further cause—recognized by Yemeni society—to kill the brothers. Indeed, the General has repeatedly made this very threat. " These facts, when viewed in “the overall context of the applicant[s’] situation,” Gilaj, 408 F.3d at 285, demonstrate that the General’s prejudice and traditional views underlay all of his actions. And because of the General’s actions, Abdulmunaem and Salah were forced to choose between their fundamental values and their personal safety. One cannot fairly distinguish the General’s personal vendetta from his prejudice and traditional views. The motivations are inextricably intertwined. Thus, the record
No. 08-3376 Al-Ghorbani v. Holder compels a finding that Abdulmunaem and Salah have proven the required nexus between the General’s threats of death and their membership in a particular social group. "

Juror Bias: 1st Circuit Reverses on Constitutional Grounds to Allow further Inquiry

Post verdict a juror wrote in USA v Villar,

"I felt compelled to send this to you. I don’t know if I should even be doing this but I don’t care. I know it’s late but I want you to know that there were at least 3 people on that jury who actually listened to the testimony with an open mind. We tried to make the rest pay attention. We made them go through every piece of evidence and every witness. Between us we pointed out every discr[e]p[a]ncy. They made up some story to explain it away. I want you to know that I will go to jail before I ever serve on another jury. It was awful. I’m sorry we couldn’t do anything. We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.” Well I won’t keep you longer. Again I am sorry we couldn’t do more. You know if I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there. These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn’t. God bless you and Mary keep you safe. USA v Villar

The Court reversed on constitutional grounds, due to the trial court's reliance on Rule 606b to prevent post verdict inquiry.

"While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury. In our view, the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias. ...... In addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct – such as alcohol or drug use – among jurors than racial statements uttered during deliberations to which they are not privy. "

Immigrants from Mexico and Central America at Risk of Kidnapping

If it wasn't bad enough, immigrants traveling north from Central America and Mexico are now at risk of kidnapping and murder. New York Times.

"A study by Mexico’s National Human Rights Commission released this year found 9,758 migrants who had been kidnapped as they tried to cross the border into the United States between September 2008 and February 2009. The commission noted that migrants were typically terrified to report such crimes out of fear of being deported by Mexican immigration authorities and that the actual number of victims was probably much higher.
The stories the commission heard in interviews with victims were alarming. There were frequent rapes of female migrants. Fierce beatings were carried out. As a lesson to other captives, the kidnappers killed some migrants who did not hand over the telephone numbers of their relatives.
“They said that if they did not receive payment, they would take away my kidney afterward and throw me into the river so the big lizards would eat me,” a Honduran man who was kidnapped in Tabasco State told commission investigators. "

Refugee Experience: Book Recommendation- "What is What"

For Second Year - Our blog gives strongest recommendation to: "What Is What" for insights into the trauma that many refugees have experienced and an insight into cultural differences. Linda Friedman Ramirez

Valentino Achak Deng

"What Is the What is the soulful account of my life: from the time I was separated from my family in Marial Bai to the thirteen years I spent in Ethiopian and Kenyan refugee camps, to my encounter with vibrant Western cultures beginning in Atlanta, to the generosity and the challenges that I encountered elsewhere. As you read this book, you will learn about me and my beloved people of Sudan. I was just a young boy when the twenty-two-year civil war began that pitted Sudan’s government against the Sudan People’s Liberation Movement/Army. As a helpless human, I survived by trekking across many punishing landscapes while being bombed by Sudanese air forces, while dodging land mines, while being preyed upon by wild beasts and human killers. I fed on unknown fruits, vegetables, leaves and sometimes went with nothing for days. At many points, the difficulty was unbearable. I thought the whole world had turned blind eyes on the fate that was befalling me and the people of southern Sudan. Many of my friends, and thousands of my fellow countrymen, did not make it. May God give them eternal peace. This book began as part of my struggle to reach out to others through public speaking. "

Immigration Policy: Guilt by Immigration Status - New Report

Guilty by Immigration Status new report, September 2009," reveals that immigration policing is causing a disturbing pattern of abuses and rights violations – a pattern that has severely and detrimentally affected the livelihood and safety of entire families, workers and communities across the U.S. In particular, the report describes how the Department of Homeland Security (DHS), along with other police, public officials and agencies, routinely trumped the civil rights and constitutional protections of a person in order to question, detain and/or jail them solely
based on their actual or perceived immigration status."

"The pattern of DHS practices and policies illustrated in the report gives evidence to a dramatic expansion and consolidation of an “immigration control regime,” under which the human rights of immigrants, including legal permanent residents and U.S. citizens, are routinely violated at the U.S.-Mexico border and in the U.S. interior. Unless the components of this regime are halted and dismantled, the long-held promise of immigration reform – the lifting of millions of immigrant workers and their families out of a life of fear and exploitation – will be severely undermined. "

Immigration Consequences: Padilla v Kentucky Orall Argument

Justices Seem Sympathetic, but Question whether they will fashion Remedy. Oral Argument New York Times, October 14, 2009.

Issue: Will the United States Supreme Court recognize a criminal defense attorney's obligation to advise re immigration consequences and provide veteran Padilla relief from removal? See NACDL's Amicus Brief on line.

Racial Profiling: Report re Cobb County Georgia

New Report from ACLU Georgia. “Terror and Isolation in Cobb: How Unchecked Police Power in Cobb has Torn Families Apart and Threatened Public Safety”
October 2009.

Immigration Crimes: Possession of Authentic Immigration Document can be Crime if Obtained by False Statement

Update: US Supreme Court has declined certiorari. October 6, 2009. The question remains whether the Government will deport Mr. Krstic.
**

On March 10, 2009, the 9th Circuit reversed the dismissal of an indictment against Defendant Krstic, charged with 18 USC 1546(a), on the grounds that he made false statements and obtained lawful permanent resident visa. United States v Krstic.

" We are confronted with a thorny question of statutory interpretation to discern whether an alien may be prosecuted for possession of an authentic immigration document obtained by means of a false statement.

" The superseding indictment, filed on October 16, 2007, alleged in relevant part that [Krstic] . . . did knowingly possess an alien registration receipt card . . . which [he] knew to have been
procured by means of materially false claims and the I-485 form, styled “Application to Register as a Permanent Resident Or Adjust Status,” is required as part of an application to become a lawful permanent resident of the United States."


"The indictment did not allege that the alien registration receipt card itself was forged, counterfeited, altered, or falsely made. Rather, it simply charged Krstic with obtaining an alien registration card by means of a false statement. Krstic moved to dismiss the indictment, contending that possessing an authentic immigration document procured by means of a false statement does not constitute an offense under § 1546(a). He argued that § 1546(a) criminalizes possession only of an already forged, counterfeited, altered, or falsely made immigration document. The district court agreed with Krstic and dismissed the indictment. The United States timely appealed."

International Human Rights: NLG Asks Holder to Appoint Special Prosecutor

National Lawyers Guild and other human rights groups issue open letter to Eric Holder

Immediate Release Contact: Marjorie Cohn, President, marjorie@tjsl.edu New York--Seventeen human rights and civil rights organizations and 45 prominent lawyers and civic leaders have sent a letter to Attorney General Eric Holder last week urging him to appoint a special independent prosecutor to investigate and prosecute Bush officials and lawyers involved in setting illegal interrogation policies. Holder had expanded the mandate of Justice Department lawyer John Durham to include a preliminary investigation but limited Durham's focus to a handful of interrogators who exceeded the limits set by the "torture memos." The groups and individuals stressed that the special prosecutor should come from outside the Department of Justice and not limit the investigation to low-level operatives, but "should investigate and prosecute all those who ordered, approved, justified, abetted or carried out the torture and abuse." The letter cites "political pressure" which has "led to [Holder's] office taking too narrow an approach to the investigation." Signatories of the letter include the National Lawyers Guild, Center for Constitutional Rights, U.S. Human Rights Network, and Psychologists for Social Responsibility, as well as prominent torture survivor Sister Dianna Ortiz. Also signing is the International Association of Democratic Lawyers, the American Association of Jurists and many other international bar associations.
They urge Holder to "hold firm against any attempts by former Vice President Dick Cheney, the CIA directors, and the media to silence those who demand that the United States hold accountable those who have committed and authorized torture." Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions "expressly require the United States to either extradite or initiate prosecution of persons who are reasonably accused," the letter says, adding "this is a legal obligation." "Whether actionable intelligence was gained is not the issue," the letter in conclusion reminds the Attorney General, and says that he cannot "pick and choose those laws you will enforce." Founded in 1937, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York, and it has chapters in every state.