First Circuit Criticizes Reliance on Boston Gang Database

Sitting en banc, the First Circuit has criticized the agency’s reliance on reports from a gang database used by the Boston Police Department, finding insufficient evidence that the documents used to label the petitioner as a gang member were actually probative of gang membership. The court noted that the reports from the database “show no more than a teenager engaged in quintessential teenage behavior -- hanging out with friends and classmates. These social encounters occurred in unremarkable neighborhood locations for this peer group: at a park, at school, in front of one teenager's home, on the benches in an empty stadium. The record lacks any evidence as to why assigning points for those interactions was a reliable means of determining gang membership. Certainly, the fact that the young men were all Hispanic does not permit an inference that any, or all, of them were gang members.”

The full text of Diaz Ortiz v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P2-01A.pdf

My post about the original 3-judge panel decision in this case (which permitted reliance on the gang database documents) can be found here:

https://www.sabrinadamast.com/journal/2020/5/25/first-circuit-permits-reliance-on-gang-database

Ninth Circuit Finds Violation of Asylees' Due Process Rights

The Ninth Circuit has found that the admission of a Report on Investigation violated the petitioner’s due process rights. The Immigration Judge (IJ) acknowledged the report lacked detail. The IJ also acknowledged that the report concluded that four documents presented by the petitioner were likely fraudulent, based on exemplars that Petitioner had no access to. The IJ noted that the petitioner was able to prove that at least two of those documents were not, in fact, fraudulent. The petitioner had no ability to cross-examine the investigators or the drafter of the report. Nonetheless, the IJ relied on the report to find that the petitioner had committed fraud to obtain his asylum status, to terminate that status, and to deny petitioner’s renewed application for asylum on credibility grounds.

“The single-page ROI refers to unnamed investigators and ‘exemplars’ of documents that purportedly confirm that some of Petitioner’s asylum application materials are fraudulent. However, DHS did not identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud. Thus, the Grigoryans were not allowed a meaningful opportunity to rebut the government’s fraud allegations.” “The ROI’s indicia of reliability are further undermined because, despite their limited ability to rebut the ROI’s findings, the Grigoryans were nonetheless able to show that half of the identified documents were not fraudulent. In addition, the mere fact that the ROI is a DHS document does not absolve the government from affording the Grigoryans a fair opportunity to rebut its assertions.”

“DHS must not only show that certain documents submitted with Petitioner’s original application for asylum were fraudulent. The government’s burden here is much higher: It must show that Petitioner would not have been granted asylum in 2001 but for the fraudulent documents. If, and only if, the government meets this heavy burden, does the burden shift to the Grigoryans to prove they are entitled to relief from deportation.”

The full text of Grigoryan v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/16-73652.pdf