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In Du v. McCarthy, a Federal District Court in the Northern District of West Virginia has refused to dismiss a lawsuit brought against an I-864 sponsor. No. 2:14-cv-100 (N.D. W. Va. Mar. 26, 2015) (report and recommendations). [The magistrate's recommendations were upheld by order of a district court judge issued April 16, 2015]. The case raises at least one completely new issue, as discussed below.
The parties were married in 2012 and divorced in 2014. Following marriage, the U.S. citizen husband executed a Form I-864 for his wife. In the divorce action, the husband was ordered to pay a small amount of temporary spousal support. But the divorce court specifically stated that the spousal support order was not based on the Form I-864, since those rights had not be pleaded.
The defendant brought a motion to dismiss, asserting several arguments.
First, he argued that his wife could not bring the I-864 claim because she failed to raise it in the divorce case. In Yaguil v. Lee, a different federal court had dismissed a claim by an I-864 beneficiary since the claims had been raised in a preceding divorce case. No. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D. Cal. April 10, 2014). But in the Du case, the claims were never litigated in the divorce court.
Accordingly, the issue of support under the Form I-864 was never raised in the parties' divorce proceedings; therefore, there was never a final judgment on the merits of Plaintiff's claim.
This conclusion is consistent with the reasoning of other courts: if the I-864 is not raised in the divorce proceeding, the beneficiary may bring a separate lawsuit. In fact, even if she does attempt to assert a claim in the family law court, she may still have a right to bring a separate lawsuit, since the family law court may decide not to rule on the claim.
The defendant's second argument was that the beneficiary was filing a petition under the Violence Against Women Act (VAWA). A "self-petitioner" under VAWA files an I-360 petition for herself, as well as a Form I-864W to demonstrate that for such a petition she is not entitled to file a Form I-864. The defendant appears to have argued that if the plaintiff secured residence based on a Form I-360 petition, she would no longer be entitled to support under the I-864 that the defendant signed.
I'm not sure that's right. In this case, the court didn't have to decide the issue, because the defendant didn't prove that the I-360 had actually been approved. But let's look at the issue.
So let's say you have a sponsor who petitions for his wife. She gets 2-year conditional residency (it's a new marriage) and they get divorced before jointly petitioning for her 10-year (renewable) green card. First of all, in most cases the strategy will be to file an I-751 waiver application. Both the I-360 and the I-751 (at least on one strategy to secure approval) require the beneficiary to demonstrate abuse. But let's just assume she is first a conditional resident, then secures an approved I-360 uses that as a strategy for long term residence.
Was any of the five terminating conditions met? I don't see how. Condition (3) is met only if she departs the U.S. after losing status (which happens by operation of law at the end of the 2-year residency period). Condition (4) is met only if there's an order of removal and a new I-864... but in this hypothetical there is neither. I think that even if the I-864 beneficiary had (for whatever reason) received approval on the VAWA self-petition she would still be eligible to receive support.
Today an appeals court in Washington State held that an I-864 beneficiary is not entitled to receive spousal maintenance (i.e., alimony) on account of the I-864, Affidavit of Support. But the court made clear that the beneficiary is still able to seek enforcement of the Affidavit in a contract suit against the sponsor. This decision leads to a very inefficient situation, where two separate legal cases will be needed in order for the beneficiary to defend her rights. In Matter of Khan, No. 44814-9-II (Div. 2 2014) involved an Indian citizen who was married for two years to a United States citizen. The couple separated, and the husband petitioned for dissolution of marriage in January 2012. None of the pleadings in the divorce case mentioned the I-864, but the trial court considered the I-864 and ordered temporary maintenance of $2,000 based on the I-864. The beneficiary appealed, arguing that the trial court should not have limited the duration of the support, since it was based on the I-864 obligation which lasts potentially indefinitely. Instead, she argued, the courts should have based the duration based on the five events stated in the I-864 that end the support obligation.
First, the court found there was no conflict between state alimony rules and the I-864 obligations. Rather, the court held that state-ordered alimony are independent obligations.
Second, the court looked at the Washington statute governing alimony and found that none of the factors concerned "one spouse's contractual obligation under federal immigration law."
Third - and very importantly for I-864 beneficiaries - the court rejected the concern that the beneficiary could not bring a separate suite to enforce the support obligation. Other courts have found that a beneficiary cannot bring a separate lawsuit for I-864 support after arguing for such support in a divorce case. But the Khan court specifically held that the beneficiary could bring a different lawsuit to enforce her I-864 rights because the divorce court "did not adjudicate an action for breach of the sponsor's I-864 obligation."
The Khan case leads to a frustrating and inefficient situation for I-864 beneficiaries. By holding that a divorce court is not required to order alimony based on the I-864 the Khan court leaves beneficiaries in the position of having to bring a separate lawsuit to recover I-864 support. The Khan decisions leaves open the possibility that a divorce court could order support based on the I-864 if the judge found doing so appropriate, but if alimony is not ordered it will be difficult to appeal.
On the other hand, the Khan decision creates a new Washington State precedent that beneficiaries are entitled to bring a lawsuit against I-864 sponsors. This is great news for beneficiaries. And because beneficiaries are entitled to recover attorney fees and the costs of litigation from I-864 sponsors, the expense of these lawsuits will be born by I-864 sponsors.
In Yuryeva v. McManus a Texas appeals court stated clearly – although in dicta – that an immigrant-beneficiary could bring a subsequent contract action on the I-864 despite failing to raise enforcement in the context of her divorce proceeding. No. 01-12-00988-CV, 2013 WL 6198322, at *7 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.). In the divorce proceeding the beneficiary had put the I-864 into evidence and had testified that the sponsor had be failing to meet support obligations, and the sponsor’s attorney had stipulated that “there was an agreement that they were to live together and [the sponsor] would support her.” The beneficiary did not, however, specifically request that the trial court “enforce” the I-864 support duty. For this reason the appeals court held the lower court did not err in failing to incorporate the support obligation into the divorce decree, but the appeals court stated that the contractual obligation survived.
Yuryeva aside, there is some question as to whether a divorce proceeding may have issue or claim preclusive effect on a beneficiary's right to enforce a support obligation. For further discussion see Section II.B.2 of Suing on the I-864 Affidavit of Support.
Claim preclusion re defense of fraud. Erler v. Erler (N.D. Cal. Nov. 21, 2013).
A number of cases have addressed claims that a sponsor was fraudulently induced to sign an I-864, Affidavit of Support. In dicta, a District Court has suggested that a defendant-sponsor waives his right to raise the defense of fraud in the inducement if he fails to assert that defense in a preceding dissolution action. In Erler v. Erler the district court held that the defendant-sponsor had failed to provide “sufficient evidence” of fraud at summary judgment. CV-12-02793-CRB, 2013 WL 6139721, at *4 (N.D. Cal. Nov. 21, 2013). The court went on to state that the time to contest the marriage’s validity had passed, and that “[a]ny allegations of fraud should have been made to the state court during divorce proceedings.” Previous case law has suggested that an I-864 beneficiary may waive the right to seek support under the I-864 if she fails to raise the issue in a dissolution action. Nguyen v. Dean, No. 10–6138–AA, 2011 U.S. Dist. LEXIS 3803 (D. Or. Jan. 14, 2011) (granting defendant’s motion for summary judgment). The Erler counsels similar caution for family law attorneys representing I-864 sponsors.


§ 16.1-77. Civil jurisdiction of general district courts.
(1) Exclusive original jurisdiction of any claim to specific personal property or to any debt, fine or other money, or to damages for breach of contract or for injury done to property, real or personal, or for any injury to the person that would be recoverable by action at law or suit in equity, when the amount of such claim does not exceed $4,500 exclusive of interest and any attorney fees, and concurrent jurisdiction with the circuit courts having jurisdiction in such territory of any such claim when the amount thereof exceeds $4,500 but does not exceed $25,000, exclusive of interest and any attorney fees. However, this $25,000 limit shall not apply with respect to distress warrants under the provisions of § 55-230, cases involving liquidated damages for violations of vehicle weight limits pursuant to § 46.2-1135, nor cases involving forfeiture of a bond pursuant to § 19.2-143.
(2) Jurisdiction to try and decide attachment cases when the amount of the plaintiff's claim does not exceed $25,000 exclusive of interest and any attorney fees.
(3) Jurisdiction of actions of unlawful entry or detainer as provided in Article 13 (§ 8.01-124 et seq.) of Chapter 3 of Title 8.01, and in Chapter 13 (§ 55-217 et seq.) of Title 55, and the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim or cross-claim in an unlawful detainer action that includes a claim for damages sustained or rent against any person obligated on the lease or guarantee of such lease.
(4) Except where otherwise specifically provided, all jurisdiction, power and authority over any civil action or proceeding conferred upon any general district court judge or magistrate under or by virtue of any provisions of the Code.
(5) Jurisdiction to try and decide suits in interpleader involving personal or real property where the amount of money or value of the property is not more than the maximum jurisdictional limits of the general district court. However, the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim, or cross-claim in an interpleader action that is limited to the disposition of an earnest money deposit pursuant to a real estate purchase contract. The action shall be brought in accordance with the procedures for interpleader as set forth in § 8.01-364. However, the general district court shall not have any power to issue injunctions. Actions in interpleader may be brought by either the stakeholder or any of the claimants. The initial pleading shall be either by motion for judgment, by warrant in debt, or by other uniform court form established by the Supreme Court of Virginia. The initial pleading shall briefly set forth the circumstances of the claim and shall name as defendant all parties in interest who are not parties plaintiff.
(6) Jurisdiction to try and decide any cases pursuant to § 2.2-3713 of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) or § 2.2-3809 of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.), for writs of mandamus or for injunctions.
(7) Concurrent jurisdiction with the circuit courts having jurisdiction in such territory to adjudicate habitual offenders pursuant to the provisions of Article 9 (§ 46.2-355.1 et seq.) of Chapter 3 of Title 46.2.
(8) Jurisdiction to try and decide cases alleging a civil violation described in § 18.2-76.
(9) Jurisdiction to try and decide any cases pursuant to § 55-79.80:2 of the Condominium Act (§ 55-79.39 et seq.) or § 55-513 of the Property Owners' Association Act (§ 55-508 et seq.).
(10) Concurrent jurisdiction with the circuit courts to submit matters to arbitration pursuant to Chapter 21 (§ 8.01-577 et seq.) of Title 8.01 where the amount in controversy is within the jurisdictional limits of the general district court. Any party that disagrees with an order by a general district court granting an application to compel arbitration may appeal such decision to the circuit court pursuant to § 8.01-581.016.
1956, c. 555; 1968, c. 5; 1973, c. 440; 1978, c. 40; 1981, c. 404; 1983, c. 616; 1987, cc. 87, 93; 1988, c. 799; 1990, cc. 217, 471; 1991, c. 135; 1992, cc. 111, 777; 1995, c. 799; 1997, c. 753; 1998, cc. 482, 495; 1999, cc. 945, 987; 2001, cc. 473, 477; 2002, cc. 200, 506, 645; 2004, cc. 344, 460; 2008, cc. 840, 843; 2009, c. 663; 2010, c. 181; 2011, cc. 14, 76, 372, 378, 702; 2016, c. 181; 2017, c. 657.


What does a case involving a city council’s refusal to go forward with an economic development loan have to do with employment law? Plenty! In Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 174898 (4th Cir. May 5, 2017), a 4th Circuit panel relied heavily on employment law and again indicated that weighing facts has no place in a Rule 12(b)(6) determination.
Here, Michael and Ramona Woods were encouraged to apply for an economic development loan of $300,000, to be paid back over 10 years. They sought the funds for “Watcha Cookin’, “a situational comedy to be produced by their company, BNT Ad Agency, LLC. The Woods believed a successful production in Greensboro could establish the city as a production center for entertainment produced by and primarily for black audiences. Their loan was approved by the Greensboro City Council with a second mortgage on the Woods’ primary residence. Later, it was discovered that a home equity line of credit existed on the property. A resolution was raised which would allow the economic development lien to be in a third position. Despite acknowledging that the city had been in a third position in the past and that the property had sufficient equity to satisfy all three loans in the event of any default, plaintiffs alleged that the city council revoked the previous loan authorization.
The Woods and their company sued the city and council members, alleging breach of contract and violations of 42 U.S.C. § 1981, 1983, and 1986, and the Equal Protection and Due Process Clauses. The Woods contended that race had been a contributing factor in the council’s decision to revoke the loan. The U.S. District court disagreed, granting defendants’ motion to dismiss. The court reasoned that the discrimination laws protected persons, not organizations, and the Woods therefore lacked standing. Alternatively, the court determined plaintiffs could not prove discrimination because they had failed to allege the existence of “valid comparators.” Further, the court said, plaintiffs could not prove intentional discrimination because the initial resolution was approved, in part, because of plaintiffs’ race. BNT appealed the dismissal.
In a split decision, the 4th Circuit reversed. The court noted that it had adopted “imputed racial identity” to establish standing in Carnell Const. Corp. v. Danville Redev. & Housing Auth., 745 F.3d 703 (4th Cir. 2014). The court rejected the argument that the business had to be certified as minority owned – as had been the case in Carnell – in order to enjoy civil rights protections. Here, BNT was understood to stand for “Black Network Television,” and all the shareholders and officers were minorities. As such, BNT had set forth sufficient facts to establish imputed racial identity, which confers § 1981 standing, the court held.
Turning to the Rule 12(b)(6) argument, the court noted that in an employment case, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), the U.S. Supreme Court had held that “an employment discrimination plaintiff need not plead a prima facie case of discrimination to survive a motion to dismiss.” Id. at 515. The Court balanced that principal with the Iqbal/Twombly jurisprudence established in McCleary-Evans v. Maryland Dep’t of Transp., 780 F.3d 582 (4th Cir. 2015). In McCleary-Evans, the 4th Circuit held that while a plaintiff need not plead a prima facie case, a plaintiff must still “allege facts to satisfy the elements” of the relevant cause of action to satisfy Iqbal/Twombly.
Here, the court found ample allegations that race may have played a role in the defunding decision. A June 2012 “Disparity Study for the Minority/Women Business Enterprise Program” found that of $92.4 million in economic development incentives, less than $200,000 – of 0.2 percent – was disbursed to minority businesses, despite the city’s 40 percent minority population. The court noted that the city’s equity position was still sufficient whether it was second or third in line, and that the city had approved loans with a third position to other nonminority applicants.
The court also determined that inquiry into whether defendants’ nondiscriminatory reason for the action would be premature, as it concerns the burden-shifting analysis under McDonnell-Douglas and not 12(b)(6) standards. Allegations that the city had backed out of other loans to minority organizations while facilitating nonminority loans were relevant, the court reasoned, rejecting the trial court’s conclusion that those loans involved “invalid comparators” and were therefore uninstructive. Such determinations involved fact-finding and weighing, moving beyond the mere common-sense plausibility analysis appropriate for a 12(b)(6) inquiry. Imposing unique burdens or stereotypical expectations on an individual based on his or her “membership in a protected group is illicit discrimination, even if the defendant does not discriminate consistently against every woman or minority under all conditions.” Woods at *10.
Finally, the court noted that discrimination claims are “particularly vulnerable to premature dismissal because civil rights plaintiffs often plead facts that are consistent with both legal and illegal behavior, and civil rights cases are more likely to suffer from information-asymmetry, pre-discovery.” Id.
Jonathan Wall is a partner with Higgins Benjamin, PLLC, and a former chair of the NCBA Labor & Employment Law Section.


Yordanos Araya Bahta, Petitioner, v. Loretta E. Lynch, Attorney General of the United States,* Respondent.
Before Thompson, Selya, and Lipez Circuit Judges. Derege B. Demissie and Demissie & Church, Cambridge, MA, on brief for petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.
Petitioner Yordanos Araya Bahta, a native and citizen of Eritrea, seeks review of a final order of the Board of Immigration Appeals (“BIA”) denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An immigration judge (“IJ”) ordered Bahta's removal to her homeland after concluding that Bahta failed to remedy credibility problems in her testimony with persuasive corroborating evidence. The BIA affirmed this decision. Bahta asserts that the IJ and BIA erred, inter alia, in holding that her application was not adequately supported and relying on evidence outside the record. Finding these contentions unavailing, we deny the petition for review.
After Bahta left the military in 2002, her continued participation in the Pentecostal Church led to two arrests. In 2003, she and others attending a prayer session at her friend's home were arrested and taken to the police station, where she and ten to fifteen persons, including other Pentecostals, were held in a small, metal cargo container for seven days. They were given only bread to eat and were allowed out of the container twice a day to use the restroom. Upon her release, Bahta was told that if she continued practicing her religion, she would be taken to the battlefront and killed. She thereafter practiced her religion in secret at her friend's house.
In 2008, Bahta again was arrested, this time while delivering food and clothing to an imprisoned Pentecostal pastor, and detained for two days along with four other people. As a condition of release, she was ordered to report monthly to the police station. Shortly after this second arrest, Bahta's aunt, who lives in Saudi Arabia, secured a worker visa that enabled Bahta to go there and obtain a job as a babysitter.
In February 2009, Bahta accompanied her employers to the United States on a tourist visa that the employers arranged for her, traveling from Saudi Arabia to Washington, D.C. In her affidavit, Bahta stated that she attended church while in Washington and, for the first time in years, “prayed without looking over my shoulders in fear of being arrested.” She became concerned about returning to Saudi Arabia and, on the advice of an Ethiopian woman whom she met at the hotel, called a distant relative in Boston who urged her to travel to that city by bus. In early March, roughly two weeks after Bahta arrived in Washington, the Ethiopian woman took Bahta to the bus. Although Bahta asked her employers for her passport before she traveled, they refused to give it to her until she returned with them to Saudi Arabia. In Boston, she regularly attended the Ethiopian Evangelical Church, which she described as the local branch of the Pentecostal Church of Ethiopia.
Bahta's testimony was supplemented by various documents: the asylum application itself, with its accompanying affidavit; a photocopy of her United States visa showing her employment as a “personal or domestic employee” of the Saudi family; country conditions reports and articles describing the treatment of religious minorities in Eritrea; hand-dated photographs of her family in Eritrea; translated letters from her mother and the friend whom Bahta said had influenced her to convert to the Pentecostal religion; and a letter from the pastor of her Boston church.
Although the IJ refrained from making an explicit adverse credibility finding regarding Bahta's testimony, the judge examined whether Bahta's supporting documents provided “corroborating, objective, credible evidence to rehabilitate [her] testimony,” and concluded that the submissions fell short. The IJ stated that Bahta “offered no proof other than her own self-serving testimony that she was in Eritrea between 2004 and 2009[,] ․ and specifically in 2008 when she is alleged to have been arrested for the second time.” The IJ discounted the family photographs as evidence of Bahta's presence in Eritrea at the relevant time because there was no foundation provided for the handwritten dates on them.
Further, the IJ noted that Bahta had not provided “any credible objective evidence that she actually was a member of the Pentecostal Church in Eritrea.” Acknowledging Bahta's testimony that she could not get letters from the church because it had been closed by the government, the IJ questioned Bahta's failure “to obtain letters from any individuals or the testimony of any witnesses.” The IJ also noted the absence of testimony or a letter from the relative in Boston whom Bahta said she contacted after she arrived in Washington. As for the country conditions reports, the IJ stated that “none of them mention the targeting of Pentecostals by the government for persecution.” 4 The IJ thus concluded that Bahta had not met her burden to prove eligibility for any form of relief from removal.
Bahta appealed to the BIA. In an opinion that expressly adopted and affirmed the IJ's conclusion, the BIA addressed in some detail Bahta's evidence and her claims of error by the IJ. The Board challenged Bahta's assertion that the inconsistency concerning her arrival city was the product of “a simple clerical mistake,” noting that—contrary to her testimony—her asylum application “clearly indicates she arrived in Boston” and that she “swore that the contents of her asylum application were true.” The BIA also rebuffed Bahta's complaint that the DHS improperly relied on her visa application, which was not in the record, to ask about the duration of her employment in Saudi Arabia. The Board observed that Bahta bore the burden of proof in the proceedings, but had produced no corroborating evidence concerning the length of her employment.
The BIA thus upheld the IJ's determination that Bahta “did not provide or adequately explain her failure to produce corroborative evidence,” and concluded that, “[i]n the absence of adequate testimony and documentary support, the respondent cannot establish her eligibility for asylum or withholding of removal.” The BIA also agreed that Bahta was not eligible for CAT relief. Accordingly, her appeal was dismissed.
Bahta timely filed a petition for review in this court, arguing that the decisions of the IJ and BIA were not supported by the record. In particular, Bahta asserts that the agency adjudicators erroneously found material inconsistencies in the evidence she presented and violated her due process rights by considering her visa application.
When the BIA adopts and affirms the findings of the IJ, and also engages in its own discussion of the rationales supporting the IJ's determination, we review both the BIA's and IJ's decisions. Ordonez–Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014); see also Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir. 2012) (“[W]here, as here, the BIA accepts the IJ's findings and reasoning yet adds its own gloss, we review the two decisions as a unit.”). Our role is to determine whether the agency's ruling is supported by substantial evidence in the record. See Ordonez–Quino, 760 F.3d at 87; Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013). Under that deferential standard, “barring an error of law, we reverse ‘only if the record is such as to compel a reasonable factfinder to reach a contrary determination.’ ” Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)); see also 8 U.S.C. § 1252(b)(4)(B).
An applicant for asylum must demonstrate that she is a refugee, which requires a showing of either past persecution or a well-founded fear of future persecution based on one of five statutory grounds. See Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st Cir. 2013); 8 U.S.C. § 1101(a)(42)(A) (identifying the five grounds supporting refugee status as race, religion, nationality, membership in a particular social group, and political opinion); 8 C.F.R. § 1208.13(b). Proof of past persecution creates a rebuttable presumption of future persecution, Sunarto Ang, 723 F.3d at 10, and absent such proof, a petitioner is “eligible for asylum only if [she] can show that [her] fear of future persecution is both subjectively genuine and objectively reasonable,” id. at 12.
After carefully reviewing the record in light of Bahta's burden to demonstrate eligibility for asylum, we cannot conclude that a reasonable factfinder would be compelled on this record to reach a different conclusion. Bahta's claim to asylum rests on her assertion that she was persecuted in Eritrea for practicing the Pentecostal religion, with the mistreatment including an arrest in 2008 that prompted her departure from her homeland. Although the BIA (following the IJ's lead) did not reject Bahta's claim out-of-hand, it concluded that her “testimony without sufficient documentary support is insufficient to meet her burden of proof.” It then considered whether Bahta had produced adequate documentary evidence to corroborate her story—an inquiry expressly authorized by statute. See 8 U.S.C. § 1158(b)(1)(B)(ii) (requiring an asylum applicant to provide such evidence unless it “cannot reasonably [be] obtain[ed] )5 ; see also Guta–Tolossa v. Holder, 674 F.3d 57, 62 (1st Cir. 2012) (“[A]n IJ can require corroboration whether or not she makes an explicit credibility finding․”).
The BIA determined that, even in combination, “[t]he respondent's testimony, of limited credibility, and her corroborative evidence ․ does not satisfy her burdens of proof.” The record permits that judgment. Bahta provided no concrete support for her claim that she was in Eritrea in 2008, a member of the Pentecostal Church there, or arrested for her religious activity. The letter from her friend (the one whom Bahta said influenced her to become a Pentecostal) stated that Bahta had participated in the Eritrean Pentecostal Church, but the letter left the timeframe for Bahta's membership in that church murky.6 Likewise, the letter from Bahta's mother did not provide critical corroborative details. Although it reports (as translated) that Bahta's friends from school and church “who are not lucky to leave the country are still in prison,” and refers to the “horror and mistreatment of those captured while cland[estine]ly performing religious activity,” it does not mention Bahta's own arrests or her departure for Saudi Arabia.
Nor can we conclude that the agency acted unjustifiably in expecting more persuasive corroborating evidence. For instance, it stands to reason that, despite the closure of her church, Bahta could have obtained a written statement from one or more of the individuals allegedly arrested along with her at the prayer service in 2003, or from someone among the ten to fifteen others allegedly held with her for a week in the cargo container. Similarly, even if Bahta could not procure an official record documenting her second arrest in 2008, the agency reasonably could expect a statement from the aunt who arranged for Bahta's move to Saudi Arabia shortly thereafter, which could have reinforced both the claimed reason for, and timing of, her move.
Submission of evidence that should have been readily obtainable also would have bolstered Bahta's veracity more generally. To give one example, testimony by the Boston relative about Bahta's telephone call describing her situation in Washington would have corroborated Bahta's claim that her asylum application simply contained a mistake in identifying Boston as her arrival city. Such testimony might have included details that also could have strengthened a significant element of her story—that her employers had possession of her passport—and thus diminish the plausible inference that Bahta had not produced her passport only because its contents would undercut her claims.7 See Matter of J–Y–C, 24 I. & N. Dec. 260, 263 (BIA 2007) (stating that “an asylum applicant should provide documentary support for material facts which are central to his or her claim and easily subject to verification․ The absence of such corroborating evidence can lead to a finding that an applicant has failed to meet [his] burden of proof.” (quoting Matter of S–M–J, 21 I. & N. Dec. 722, 725–26 (BIA 1997)) (omission and alteration in original)).
Without doubt, the agency should not have used the application at the hearing if no party could produce the document. Indeed, as the BIA acknowledged, “the Immigration Judge's decision must be based on the evidence before him,” and, in this instance, the IJ admitted that “[t]he Court ․ does not have any documentation that [the five-year] representation was made in the visa application.” However, the IJ's “serious doubts” about Bahta's credibility, even with respect to her employment in Saudi Arabia, did not rest solely (or even largely) on the suggested conflict between Bahta's visa application and her sworn statements that she was arrested in 2008.10 With respect to Bahta's timing in Saudi Arabia, the IJ pointed to “[t]he entire series of questions and the respondent's answers,” including her testimony that she did not have her passport, “which could clarify whether [she] actually had been in Eritrea in 2008.” The IJ seemed skeptical of Bahta's explanation that her employers refused to return the passport.
The showing required to qualify for withholding of removal—“a clear probability of persecution”—“imposes ‘a more stringent burden of proof on an alien than does a counterpart claim for asylum.’ ” Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (quoting Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)). Accordingly, Bahta's claim for withholding of removal necessarily fails along with her asylum claim. See id.
Although Bahta also applied for relief under the CAT, she makes only passing reference to that claim on appeal and it is therefore waived. See Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005).
Having rejected each of Bahta's claims, we deny her petition for review. So ordered.
1. Bahta's application also asserted membership in a particular social group as a basis for relief, but the IJ deemed that ground “not cognizable” because Bahta did not specify the particular group to which she belonged. Bahta does not address the social group variation of her claim in her petition for review, and we therefore deem it waived.
2. Bahta's testimony repeated in abbreviated form the more detailed account of her experiences presented in an eleven-page affidavit submitted with her asylum application. Among other information, the affidavit included observations about the Eritrean government's hostility toward religions other than “the officially sanctioned Orthodox or Catholic churches” and describes the government's particular opposition to the Pentecostal Church.
3. Her affidavit, however, detailed her arrival in Washington and subsequent travel to Boston.
5. Section 1158(b)(1)(B)(ii) provides, in pertinent part:The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee․ Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
7. In her affidavit, Bahta speculated that her employers decided to keep her passport after she told them about her positive experience in church because they “realiz[ed] that I would wish to live in a country where being a Christian was not considered illegal.” Given that reaction, Bahta said she became frightened by the prospect of returning to Saudi Arabia because her “freedom and safety would depend entirely on [her employers'] goodwill and whim.” She then sought advice from the Ethiopian woman, which led to contact with the relative in Boston.
8. As described above, Bahta said she moved to Saudi Arabia with the worker's visa secured by her aunt shortly after her 2008 arrest. A five-year employment with the Saudi family would mean that she began working for them no later than 2004.
11. We also reject Bahta's due process claim based on the government's use of the visa application. Without condoning DHS reliance on such an extra-record document, we note that the challenged information consisted of personal details of which Bahta would have knowledge. She thus had the opportunity at the hearing and before the BIA to correct any inaccuracies, which was sufficient to meet the constitutional standard for this context. See Muñoz–Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir. 2008) (stating that, in asylum proceedings, “fundamental fairness means in general terms that the alien must have a meaningful opportunity to present evidence and be heard by an impartial judge”); cf. Gebremichael v. INS, 10 F.3d 28, 38-39 (1st Cir. 1993) (concluding that “the motion to reopen process can ordinarily satisfy the demands of due process” when the BIA relies on extra-record facts concerning changed country conditions).Bahta addressed the discrepancy, however, only by reiterating her story. When asked during cross-examination how she could have been arrested in February 2008 if she was by then babysitting in Saudi Arabia, she responded, “I was arrested in Eritrea,” and said the proof of her presence in Eritrea was the “[t]hings I have submitted.” Her attorney declined to conduct redirect. Before the BIA, Bahta pointed to “the record, including [her] testimony and affidavit,” as proof that she moved to Saudi Arabia in 2008.
12. Given that the IJ supportably rejected Bahta's asylum claim because she “has not even established to the satisfaction of the Court that she is in fact a Pentecostal,” we need not, and therefore do not, address whether the country conditions reports that she submitted show that the Eritrean government persecutes Pentecostals or, indeed, whether the type of mistreatment Bahta claims to have experienced in Eritrea amounted to persecution.


I’m proud & pleased to present a guest article with this reprint of the President’s Message from the Sept 2010 newsletter of the American Society of Appraisers NorCal Chapter. Thanks, Bob, for allowing us to share your message on our blog!
At a recent Northern California ASA meeting, I sat next to a retired IRS appraisal reviewer who answered the on-going question of qualified appraisers rather succinctly.
Off the record, he said, the IRS has such respect for the American Society of Appraisers designation that very few ASA-submitted appraisals are required to be passed up the chain for higher review.
In business valuation (“BV”—my own discipline), the Small Business Administration’s SOP 50-10 (5), released in August 2008 and effective on October 1, 2009, mentions the Accredited Senior Appraiser as first among four recognized credentials. Earlier editions of the SBA guidelines for lender and development company real estate and business loan programs clearly specified the requirement to comply with “USPAP” (the Uniform Standards of Professional Appraisal Practice) – which only the ASA clearly embraces as policy.
As for the IRS? In Internal Revenue Bulletin 2006-46 covering primarily Guidance regarding Appraisal Requirements for Noncash Charitable Contributions, the Internal Revenue Code, in Section 170(f)(11)(E)(i) provides that the term “qualified appraisal” means an appraisal that is (1) treated as a qualified appraisal under regulations or other guidance prescribed by the Secretary, and (2) conducted by a “qualified appraiser” in accordance with generally accepted appraisal standards and any regulations or other guidance prescribed by the Secretary.
(1) Appraisal designation. An appraiser will be treated as having earned an appraisal designation from a recognized professional appraiser organization within the meaning of § 170(f)(11)(E)(ii)(I) if the appraisal designation is awarded on the basis of demonstrated competency in valuing the type of property for which the appraisal is performed.
(2) Education and experience in valuing the type of property. An appraiser will be treated as having demonstrated verifiable education and experience in valuing the type of property subject to the appraisal within the meaning of § 170(f)(11)(E)(iii)(I) if the appraiser makes a declaration in the appraisal that, because of the appraiser’s background, experience, education, and membership in professional associations, the appraiser is qualified to make appraisals of the type of property being valued. See also § 1.170A-13(c)(5).
Section 170(f)(11)(E)(iii) further provides that an individual will NOT be treated as a “qualified appraiser” unless that individual (1) demonstrates verifiable education and experience in valuing the type of property subject to the appraisal, and (2) has not been prohibited from practicing before the Internal Revenue Service by the Secretary under § 330(c) of Title 31 of the United States Code at any time during the three-year period ending on the date of the appraisal.
Now here’s the “kicker.” Section 1219 of the PPA (Pension Protection Act of 2006) also adds a new (as of November, 2006) penalty provision. If the claimed value of property based on an appraisal results in a substantial or gross valuation misstatement under § 6662, a penalty is imposed by new § 6695A on any person who prepared the appraisal and who knew, or reasonably should have known, the appraisal would be used in connection with a return or claim for refund.
Curiously, the IRS and the taxpayer may together reach a conclusion of appraisal value without input from the appraiser . . . yet the appraiser is liable for the penalty. Little if any due process is granted to the appraiser, as the IRS and the taxpayer agree on the settlement.
So getting the most complete education, passing the required tests and peer review, and earning the highest designation recognized by the IRS and others may well be in your own best long-term interest.
“If you consider yourself an appraiser . . . and are not primarily a broker, accountant, actuary, advocate, analyst, advisor, intermediary, surveyor or other vocation . . . but an appraiser, then Welcome Home to the American Society of Appraisers!
The ASA professional is the Gold Standard in valuation, a qualified appraiser by any standard.
Do You Need an Industry-Specific Valuation Expert?


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1. Actions — Misjoinder — Parties — Causes of Action — Husband and Wife — Demurrer — Dismissal — Retention Upon Terms — Courts — Statutes.
An action brought by the wife in which her husband has joined, each independently seeking to recover from the defendant the value of their services separatively rendered, upon a quantum meruit, is a misjoinder both of parties plaintiff and causes of action, which will ordinarily be dismissed upon demurrer; but the court may sustain the demurrer and permit the defect to be cured by an amendment and the wife's cause proceeded with upon such terms as it considers just. C.S. 516.
2. Same — Pleadings — Amendments — Appeal and Error — Remanding Cause — Procedure.
While the husband is not a necessary party to his wife's action to recover for the value of her services rendered upon a quantum meruit, C.S. 2513, his joinder therein as a party plaintiff is not improper; and where he has alleged an independent cause of action upon a quantum meruit, the Supreme Court, on appeal, in the exercise of its discretion, may remand the cause with direction that the allegations of the complaint as to the statement of the husband's cause be stricken out and the action of the wife proceeded with.
APPEAL by defendant from Harding, J., at November Term, 1922, of GUILFORD.
No counsel appearing for plaintiffs.
John A. Barringer for defendant.
Civil action to recover upon a quantum meruit for services rendered and for an accounting.
The defendant demurred upon the ground that there was a misjoinder, both of parties and of causes of action. Demurrer (313) overruled. Defendant excepted and appealed.
The feme plaintiff alleges that in 1908 she was a ward of the Children's Home Society of North Carolina, Inc., — being only ten years old at that time — and that she was induced to go and live in the home of the defendant with the assurance that she, the feme plaintiff, would be adopted as a child of the defendant and thereby become entitled to receive, at the death of the defendant, a child's share of her estate. The plaintiff, relying upon this promise, changed her name, went into the home of the defendant and rendered every kind of service required of her by the defendant. She alleges that she cooked, washed dishes, milked the cow, nursed the defendant's husband in his sickness, attended to many of the chores about the house, worked in the cotton mill and in the cigar factory and turned over her wages to the defendant.
On 1 August, 1915, the feme plaintiff was married to Charles Shore, who also worked for the defendant for a period of eight months immediately thereafter. Plaintiff later learned that she had not been legally adopted by the defendant, and it is alleged that the defendant has now disavowed her intention to carry out her promise.
The feme plaintiff brings this action to recover upon a quantum meruit for the value of the services rendered by her to the defendant under the promise of reward as above set out. For the right to maintain her action, she relies upon the line of cases of which the following are representative: Hayman v. Davis, 182 N.C. 563; McCurry v. Purgason, 170 N.C. 463; Debruhl v. Trust Co., 172 N.C. 839; Patterson v. Franklin, 168 N.C. 75; Winkler v. Killian, 141 N.C. 575; Whetstine v. Wilson, 104 N.C. 385; Miller v. Lash, 85 N.C. 51.
Charles Shore is joined as a coplaintiff with his wife; and, in the present suit, coupled with his wife's complaint, he has set up a separate and independent cause of action for services rendered by him and for an accounting for the eight months he was with the defendant.
The basis of the demurrer is that there is a misjoinder, both of parties and of causes of action. Where this occurs, it has been held with us that the demurrer should be sustained and the action dismissed. Roberts v. Mfg. Co., 181 N.C. 204; Thigpen v. Cotton Mills, 151 N.C. 97. Clearly, the two causes of action are separate and distinct; and, if the feme plaintiff's husband has been improperly joined as a party plaintiff in her suit, the demurrer should be sustained and the action dismissed under authority of the cases just cited. But if the joinder of the (314) husband, as a formal party, in the wife's suit, is a matter of no special moment, as was said in Patterson v. Franklin, 168 N.C. 77, it would seem that she should be allowed to proceed on her cause of action with the allegations of her husband stricken from the complaint.
When several causes of action have been improperly united, the Court may sustain the demurrer and permit the defect to be cured by amendment, or order a division, upon such terms as are just, under authority of C.S. 516. Gattis v. Kilgo, 125 N.C. 133.
True, in Lipinsky v. Revell, 167 N.C. 508, it was said that the husband was not a necessary or even a proper party to an action of this kind, but this was unnecessary to the decision in that case and hence the statement that he was an improper party must be considered as no more than an obiter dictum. That he is not a necessary party is established by all the decisions on the subject (C.S. 2513), but in Sandlin v. City of Wilmington, ante, 257, it was suggested, on the peculiar facts there presented, that the husband might not be an improper party in an action brought by his wife to abate a nuisance. See, also, Craddock v. Brinkley, 177 N.C. 127; Kirkpatrick v. Crutchfield, 178 N.C. 352, and Price v. Electric Co., 160 N.C. 450.
While the demurrer should have been sustained for a misjoinder of the two causes of action, we are of opinion that the feme plaintiff's suit should not be dismissed.
In the present condition of the pleadings, we will remand the cause for further action along the lines suggested in this opinion; such procedure being permitted in the exercise of our discretion. Huggins v. Waters, 154 N.C. 444.
Let one-half the costs of this appeal be taxed against the plaintiffs and one-half against the defendant.
Cited: Evans v. Davis, 186 N.C. 46; Brock v. Brock, 186 N.C. 55; Weaver v. Kirby, 186 N.C. 391; Wood v. Wood, 186 N.C. 560; Hinnant v. Power Co., 189 N.C. 125; Robinson v. Williams, 189 N.C. 256; Rogers v. Rogers, 192 N.C. 52; Harrison v. Transit Co., 192 N.C. 546; Killian v. Hanna, 192 N.C. 20; Bank v. Angelo, 192 N.C. 578; Brown v. Williams, 196 N.C. 250; Sasser v. Bullard, 199 N.C. 563; Warden v. Andrews, 200 N.C. 330; Lipe v. Trust Co., 207 N.C. 796; Mills v. Bank, 208 N.C. 674; Brown v. Brown, 213 N.C. 347; Robertson v. Robertson, 215 N.C. 564; Burleson v. Burleson, 217 N.C. 339; Schnepp v. Richardson, 222 N.C. 230; Neal v. Trust Co., 224 N.C. 106; Helmstetler v. Power Co., 224 N.C. 824; Sparks v. Sparks, 230 N.C. 717; Teague v. Oil Co., 232 N.C. 470; Casey v. Grantham, 239 N.C. 130; Etheridge v. Wescott, 244 N.C. 643; Gaines v. Plywood Corp., 253 N.C. 193; Doub v. Hauser, 256 N.C. 337.

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