IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ___________________________________________ No.

04-2423 ___________________________________________ EUFEMIA NOHEMI LOPEZ DE LEON Agency# A79 473 457 Petitioner v. ALBERTO GONZALES, United States Attorney General, Respondent _____________________________________________ PETITION FOR REVIEW Appeal from the Decision of the Board of Immigration Appeals Appeal from the Decision of the Honorable Immigration Judge O John Brahos _____________________________________________ APPELLANTS OPENING BRIEF ___________________________________________ W. MICHAEL SHARMA-CRAWFORD REKHA SHARMA-CRAWFORD Sharma-Crawford, Attorneys at Law, LLC 7208 W. 80th, Ste. 202 Overland Park, KS 66204 913-385-9821 phone 913-385-9964 fax Attorney for Appellant-Petitioner

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

The following is a complete list of the trial judge(s) and all attorneys, persons, associations of persons, firms, partnerships, and corporations that have an interest in the outcome of this case:

1. O John Brahos, Immigration Judge 2. Karl Cozad, Trial Attorney DHS 3. Paula Davis, Trial Attorney, DHS 4. Carol Federighi 5. George P. Katsivalis 6. John Miles, Trial Attorney, DHS 7. Anthony Moscato, BIA Panel member 8. James Phillips, Trial Counsel 9. Rekha Sharma-Crawford 10. William M. Sharma-Crawford

TABLE OF CONTENTS Page DISCLOSURE STATEMENT TABLE OF AUTHORITIES STATEMENT OF JURISDICTION STATEMENT OF THE ISSUES STATEMENT OF THE CASE AND FACTS 1. Nature of the Case 2. Disposition Below 3. Statement of the Facts STANDARD OF REVIEW INTRODUCTION AND SUMMARY OF THE ARGUMENT ARGUMENT 1. The Immigration Judge erred in denying Petitioners asylum and withholding of removal claim a. The Immigration Judge incorrectly found that country conditions had not changed sufficiently to warrant Petitioners asylum application. b. The Immigration Judge incorrectly held that Petitioner, though credible, required corroborative evidence. c. The Judge conducted the hearing in a manner that prevented a full and fair hearing. CERTIFICATE OF COMPLIANCE CONCLUSION CERTIFICATE OF SERVICE SHORT APPENDIX
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TABLE OF AUTHORITIES Cases Diallo v. INS, 232 F.3d 279 (2nd Cir. 2000) Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) Gontcharova v. Ashcroft, 384 F.3d 873 (7th Cir. 2004) INS v. Elias Zacarias, 502 US 478 (1992) Laurent v. Ashcroft, 359 F.3d 59 (1st Cir. 2004) Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987) Logue v. Dore, 103 F.3d 1040 (1st Cir 1997) Miljkovic v INS, 376 F.3d 754 (7th Cir 2004) Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004) Sankarapillai v. Ashcroft 330 F.3d 1004 (7th Cir. 2003) Stone v. INS, 514 US 386 (1995) Yadegar-Sargis v. INS, 297 F.3d 596 (7th Cir. 2002) Zadvydas v. Davis, 533 US 678 (2001) Board Decisions In re S-M-J, 21 I&N Dec. 722 (BIA 1997) Matter of D-V, 21 I&N Dec. 77 (BIA 1993) Page(s)

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Table of Authorities Contd Statutes 8 USC 1252(a), (b) 8 USC 1252(b)(4) 8 CFR 208.4 8 CFR 208.4(a)(2)(i)(A) 8 CFR 208.4(a)(4)(i)(A) 8 CFR 208.16(c)(2) INA 241(b)(3) Page(s) 6 10 12 12 12 14 16

STATEMENT OF JURISDICTION The jurisdiction of the Court of Appeals is established by filing a timely Petition for Review of a final order of removal. 8 USC 1252(a), (b); Stone v. INS, 514 US 386, 401-405 (1995). The Petition for review must be filed 30 days from the date of issuance of the final Order. Sankarapillai v. Ashcroft, 330 F.3d 1004 (7th Cir. 2003). The BIA issued their decision on May 5, 2004. The Petition for Review was filed on June 4, 2004, within 30 days of that date and thus is timely filed. This Court, therefore has jurisdiction to review the decision of the agency and the Immigration Judge.

STATEMENT OF THE ISSUES

The Immigration Judge erred in denying Petitioners asylum and withholding of removal claim a. The Immigration Judge incorrectly found that country conditions had not changed sufficiently to warrant Petitioners asylum application b. The Immigration Judge incorrectly held that Petitioner, though credible, required corroborative evidence. c. The Judge conducted the hearing in a manner that prevented a full and fair hearing.

STATEMENT OF THE CASE AND FACTS 1. Nature of the Case The Immigration Judge erred when denying Petitioner her asylum and withholding of removal claims. In doing so the IJ ignored the credible, uncontroverted testimony of Petitioner, which by the agencies own regulations is sufficient to support an asylum claim. Despite the delay in filing for Asylum, Petitioner provided supplementary evidence that the Country conditions have not improved since the 1996 peace accords and have, to some degree slid backwards into the lawlessness that haunted Guatemala for the decades preceding the 1996 accords. 2. Disposition Below The Immigration denied Respondents asylum, withholding of removal and Convention against Torture claims and ordered Respondent removed on December 10, 2002. The BIA issued their decision on May 5, 2004. This Petition for Review was filed on June 4, 2004, within 30 days of that date and thus was timely filed. 3. Statement of the Facts Petitioner is a married Guatemalan woman whose father and husband served in the civil patrol prior to the 1996 peace accords (A.R. 100). Petitioners husband deserted the Army (Civil Patrol) in 1987 prior to their marriage in 1991. (A.R. 101) This was after Guerrillas twice tried recruit Petitioners husband to provide them with arms. Petitioners husband left Guatemala in 1994. (A.R. 136) This forced
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Petitioner to live alone with their child. (A.R. 138) Petitioner was active in her local Catholic Church, Virgin de Guadalupe. She helped the church with its Sunday school classes. (A.R. 103-4). Petitioner lived without incident until May of 1995. On May 1, 1995, Petitioner was assaulted by guerillas. (A.R. 116-8) She was hit, kicked and her nose was scarred either by a thrown stone or her fall. (A.R. 112). Petitioner escaped and fled to her aunts house. (A.R. 119) She did not report this or any other incident to police because she testified that the police and civil authorities were ineffective at meting out justice. (A.R. 120) A few days after arriving at her aunts house, Petitioner was walking to church when she was assaulted and kidnapped by the same persons who had initially assaulted her. She was taken to a camp in the mountains of Guatemala. At that camp she was raped and forced to act as domestic help for the guerrillas in the camp. They also encouraged her to recruit the member of her church to assist them in their Communist ideals (A.R. 123) She was held for 30 days until she eventually escaped from the camp and fled to her cousins house. The day after she arrived at her cousins house the guerillas burned it down. The guerillas threatened her with death if she did not return to assist them with their efforts. (A.R. 127) When she tried to return home they shot into her house. She fled from there and left Guatemala for the United States. (A.R. 128)
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STANDARD OF REVIEW

Where the BIA merely supplements the Immigration Judges decision, the Court will review the IJ decision as supplemented by the Boards decision. Niam v. Ashcroft, 354 F.3d 652, 655-656 (7th Circuit, 2004). Whether the Court reviews the decision of the BIA or the IJ, or both, the Court reviews the underlying conclusions under the substantial evidence standard: to withstand judicial review, the determinations of the BIA and/or the IJ must be supported by reasonably, substantial, and probative evidence on the record as a whole. 8 USC 1252(b)(4); INS v. Elias-Zacarias, 502 US 478, 481 (1992). The Seventh Circuit Court of Appeals has further indicated that disagreement with the conclusions of the Agency is not enough to secure reversal, but rather the evidence must compel reversal. Yadegar-Sargis v. INS, 297 F.3d 596, 602 (7th Cir. 2002).

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INTRODUCTION AND SUMMARY OF THE ARGUMENT The Immigration Judge erred in finding that Petitioner had not either established past persecution or a fear of future persecution when he denied her asylum claim. In denying her asylum claim the IJ incorrectly held that her application, though untimely filed, was unacceptable for asylum because country conditions had not changed sufficiently to justify the late filing. The IJ also sought corroborative evidence from Petitioner despite her credible testimony. Despite regulations, which direct a contrary result, the IJ denied Petitioners claims when she was unable to produce corroborative evidence for her credible testimony. The Immigration Judge conducted the proceedings in such a manner that his predecision and condescension was evident throughout trial. His blatant attitude robbed Petitioner of her due process rights.

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ARGUMENT 1. The Immigration Judge erred in denying Petitioners asylum and withholding of removal claim. a. The Immigration Judge incorrectly found that country conditions had not changed sufficiently to warrant Petitioners asylum application.

In his decision the Immigration Judge states, the regulations and statue requires that the application be timely filed. Therefore, the Court finds that the application is time barred. The IJ was apparently referring to 8 CFR 208.4 which states: By clear and convincing evidence that the application has been filed within 1 year of the date of the alien's arrival in the United States. (8 CFR

208.4(a)(2)(i)(A)) Despite a volume of credible supplementary evidence which discusses the current (the current state for 2001 when the application was filed) state of Guatemala. The Immigration Judge ignores an exception to the one year filing deadline found at 8 CFR 208.4(a)(4)(i)(A) which states: Changes in conditions in the applicant's country of nationality or, if the applicant is stateless, country of last habitual residence. Petitioner offered numerous articles as supplementary evidence that all indicate that small bands of guerrillas still exist and that governmental corruption was on the rise. However there were occasional reports that small groups of genuine or purported members of armed opposition groups carried out acts of

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aggression or intimidation in the countryside. (A.R. 188). Further documentation states that: Two decree laws passed in March in June of 2000 giving the Military Police and the Armed Forces the mandate to collaborate with the PNC in the public security operations. Together, these two laws violate both the spirit and letter of the Peace Accords which call for the demilitarization of Guatemalan Societyaccording to MINUGUA since the start of 2000, police have become the principle responsible parties for the gravest human rights abuses. (A.R. 194). It is this governmental corruption that led to the creation of the guerillas decades earlier. Other NGO reports indicate that the primary

victims of these changes are indigenous people, women and poor peasants. (A.R. 222) These changes in the socio-political landscape of Guatemala are changed country conditions that excuse the one-year filing deadline. The Immigration Judge dismisses all this evidence with one line I would further note that changed country conditions would also obviate the granting of this application. (A.R. 34). However, this Court, in Miljkovic v INS, 376 F.3d 754 (7th Cir 2004) held that the burden of proving changed country conditions lies with the government. To that end the government has only offered the State Department Report which itself documents the partial failure of the peace accords, and the increase in violence especially against women. (A.R. 362) The Government failed in demonstrating that country conditions have changed sufficiently to warrant a denial of asylum. As well they have been
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unsuccessful in demonstrating that country conditions have not changed sufficiently that Respondent should not be allowed to file beyond the statutory one-year deadline. should have been accepted. b. The Immigration Judge incorrectly held that Petitioner, though credible, required corroborative evidence. The Immigration Judge never made a finding that Petitioner was incredible, but asked for extensive corroborative evidence during the hearing and ultimately cited the lack of corroborative evidence as a reason for denial. INS regulations provide that an applicant's testimony, "if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. 208.16(c)(2) (emphasis added). The BIA in In re S-M-J, 21 I. & N. Dec. 722 (BIA 1997), defined the circumstances under which such testimony must be corroborated. Distinguishing between claims that rely on general country conditions and claims that are based on particular experiences of persecution, the BIA declared that where "an applicant's claim relies primarily on personal experiences not reasonably subject to verification, corroborating documentary evidence of the asylum applicant's particular experience is not required." Id. at 726. But the Board went on to insist that "where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence should be Thus Respondents application for asylum

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provided." Gontcharova v. Ashcroft, 384 F.3d 873, 876 (7th Cir 2004). The Gontcharova Court went on to find: Nevertheless, we do not reject the BIA's corroboration rule out of hand. In order that we may review its application, however, an IJ must explain his use of it. Such an explanation should include, at a minimum: (1) an explicit credibility finding; (2) an explanation of why it is reasonable to expect additional corroboration; and (3) an account of why the petitioner's explanation for not producing that corroboration is inadequate. Id. at 877 In the instant matter the Immigration Judge stated in his decision that Respondents inability to provide corroborating evidence is not optional. (A.R. 55) The corroborating evidence sought by the IJ was a record of her participation in her church (A.R. 107); evidence that she was injured by the guerillas (A.R. 113); documentation from her aunt, that following the first assault, Respondent moved into to her aunts home (A.R. 119); police reports (A.R. 120); any evidence that she was raped (A.R. 131). When confronted with this lack of evidence Respondent stated that since coming to the United States she has not had any contact with her family in Guatemala, and does not know where even her mother is currently living. She stated that she did not make reports to the police because You know, over there, there is no justice done. Despite the fact that Respondents husband left Guatemala before she did the IJ excoriates both Respondent and Counsel for her husbands failure to testify. (A.R. 129) Respondent stated that her husband, who is also undocumented, feared coming to Immigration even to testify, concerned that

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he too would be arrested and placed in proceedings. (The Immigration Court in Kansas City is located within the Immigration office that also houses USCIS and USICE offices.) Following each request for corroboration, Respondent was able to provide a plausible rationale for her lack of further evidence. Ultimately, in his decision, the IJ does not make any credibility finding but alludes that the only evidence provided is unsupported self serving statements by Respondent. This lack of analysis is parallel to that in Diallo v. INS, 232 F.3d 279 (2nd Cir 2000), where that Court held: "In the absence of an explicit credibility finding, an explanation of the need for additional corroboration, and an assessment of [the petitioner's] reasons for his failure to produce further corroboration, we conclude that the BIA's ultimate ruling cannot stand." Id at 290. The BIA makes no further analysis as to Respondents credibility or lack of corroborating evidence. Further, Respondent does provide corroboration to her testimony. Respondent provides the Court with volumes of supplementary evidence. Absent such findings by the IJ or the BIA, through the analysis provided by the Gontcharova and Diallo Courts, this decision should be overturned. Based on Respondents credible statements, she has demonstrated a wellfounded fear of persecution. It is established that rape can be persecution. The BIA held squarely that rape can be a form of persecution. Matter of D-V-, 21 I&N Dec. 77 (BIA 1993) Respondent was targeted by the guerillas because she was a
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single woman and had a social connection the guerillas sought to exploit. Rape is a tool used to subjugate. This male right subjugation has been held to be a political opinion. See Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987), overruled in part on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc). Hence the persecution was inflicted on account of political opinion. The IJ, despite his apparent sarcasm, correctly points out this fact; So you were a female alone at risk, is that right? The Respondent then stated I imagine so, but I know that they knew that I was alone. (A.R. 138). Respondents uncontroverted testimony is that she was assaulted and ultimately abducted by Guerillas. She was beaten on two separate occasions. She was scarred from her encounters both mentally and physically. The guerillas sought to subjugate her and utilize her connections in the community to further their political aims. These facts, when combined with the NGO reports that indicate that women are a targeted group. (A.R. 222) This combination of facts and evidence demonstrate a clear probability that Respondent would be targeted for persecution should she be removed to Guatemala as a single woman and as such her claim also rises to the greater standard of Witholding of Removal. (INA 241(b)(3))

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c.

The Judge conducted the hearing in a manner that prevented a full and fair hearing.

Immigrants have a right to due process in Immigration proceedings. Zadvydas v. Davis, 533 US 678 (2001). The Immigration Judge dominated the questioning during hearing, belittled the Respondent and engaged in inappropriate commentary, all of which robbed Respondent of her due process right to a full and fair hearing. The IJs conduct of the trial indicated that he has decided the outcome of the case prior to hearing the testimony. The vast majority of the transcript, including Counsels closing arguments are dominated or interrupted by the IJ. While the IJ is responsible for the conduct of the hearing the level of domination here rendered counsel for Respondent ineffective. The Court in Laurent v. Ashcroft, 359 F.3d 59 (1st Cir 2004) stated: A party is entitled to a fair hearing, not a perfect one, and within wide margins -- not approached here -- a judge's efforts at routine administration of court proceedings do not offend principles of fundamental fairness. See Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997). This does not mean, of course, that judges have carte blanche to act arbitrarily or to cross the line that separates judicial officers from litigants. A judge must maintain a standard of balance and impartiality, and a reviewing court will look to the facts of each particular case to determine whether the judge's actions unfairly prejudiced any of the parties. See id. In the instant matter the Judges sporadic commentary combined with his overbearing nature crossed the line described by the Laurent Court. The IJ contributed the following inappropriate commentary:

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 Nada huh? As they say in Spanish, nada, standing for nothing. (A.R. 114) Because you used the words, does that mean that its now in the record Mr. Phillips? (A.R. 115) Now maam, why would the Communist group think that a religious group would join them when the Communist group doesnt believe in God, and the Christian group believes in God? Why would you have me believe that they would want you to recruit people who believe in God to go to an organization that does not believe in God? (A.R. 123) [No evidence was ever introduced by either Respondent or the IJ that the guerillas who abducted Respondent did not believe in God.] I see. Youre living here in Missouri, and Missouri is the show me state. Isnt that correct? So if you dont see it yourself, you dont believe it. Is that right? Is that correct? If you dont see it, you dont believe it, is that right? Almost like Doubting Thomas with the holes in Christs hands and the spear in the side of his chest. So if you dont put your hands through the nails or put your hands through the spear, you dont believe it until you see it yourself. Is that right? Is that correct? If you dont see it you dont believe it. Si or no? (A.R. 126) No, no, no, no. Youre free to embellish as much as you wish.(A.R. 151) Finally at A.R. 155, page 88 of the transcript, the translator interrupts and stated that Respondent needed to take a break. The IJ continued closing arguments which lasted until page 93 of the transcript (A.R. 160). At that point there is an indication that the tape had been turned off, but no real indication that Respondent was ever allowed to take a break.

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The IJ is demeaning and overbearing, combined with his inappropriate commentary, indicated that he had pre-decided this matter robbed Respondent of her right to a full and fair hearing.

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CERTIFICATE OF COMPLIANCE I certify that the foregoing brief consists no more than 14,000 words, to wit: 3,658, being in compliance with Rule 32(a)(7)(B). The word processing system used to produce it is Word 2000 for Windows. It is being submitted in hard copy and on a 3.5 inch computer diskette that has been scanned for viruses by an antivirus program, and is, as far as can be ascertained, virus free.

______________________________ W. MICHAEL SHARMA-CRAWFORD

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CONCLUSION The Immigration Judge had decided this matter before hearing any evidence. He looks for excuses to diminish Respondents credible testimony. When presented with viable rationale for the lack of corroboration, the Immigration Judge deems the statements self serving. The Immigration Judge ignores a voluminous amount of supplementary evidence that supports both the continued existence of guerilla activity as well as the persecution of women. The supplementary evidence serves to corroborate Respondents testimony. The Immigration failed to take into account changed country conditions that would have allowed Respondent to file outside the statutory filing period. The Immigration Judge ignored evidence that supports past persecution, a fear of future persecution and the clear probability that Respondent would be persecuted if she were to be returned to Guatemala. Wherefore Respondent prays that this Court grant her Petition for Review. Respectfully Submitted: _________________________________ W. MICHAEL SHARMA-CRAWFORD REKHA SHARMA-CRAWFORD, Kansas Bar No. 16531 Sharma-Crawford, Attorneys at Law, LLC 7208 W. 80th, Ste. 202 Overland Park, KS 66204 913-385-9821 phone 913-385-9964 fax Attorney for Appellant-Petitioner Dated: March 14, 2005
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CERTIFICATE OF SERVICE I, W. Michael Sharma-Crawford, certify that I have on this ___________ day of March, 2004 served a copy of the APPELLANTS OPENING BRIEF WITH ADDENDUM on the parties hereto by depositing said copy in the US postal service, postage pre-paid, and addressed to:

George P. Katsivalis DEPARTMENT OF HOMELAND SECURITY Office of the District Counsel Chicago, IL 60690 Carol Federighi DEPARTMENT OF JUSTICE Civil Division, Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044

_________________________ MICHAEL SHARMA-CRAWFORD Attorney at Law

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