Thursday, July 31, 2014

Ninth Circuit to Hear En Banc CAT Claim/Internal Relocation Burden of Proof Issue

The U.S. Court of Appeals for the Ninth Circuit ordered that Maldonado v. Holder be heard en banc.  The case was submitted on the briefs in December 2013, then the panel, without issuing a decision, issued this order in April:

"Pursuant to General Order 5.4(c)(3), the parties are directed to file simultaneous briefing setting forth their respective positions on whether this case should be heard en banc. The parties’ briefs shall address: (1) whether there is a conflict in our case law between Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011), and Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004), regarding which party bears the burden of proof on internal relocation; and (2) whether Hasan and Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), improperly elevated the burden of persuasion by requiring that a CAT petitioner establish that internal relocation is `impossible.' The parties shall file their briefs no later than April 30, 2014."

The briefs in the en banc case can be found here.  Petitioner claims that the ​circuit's decisions on the burden of proof on the issue of the possibility of relocation in a Convention Against Torture case are in conflict.  It appears that the U.S. government contends that that en banc review was not justified because one of the Ninth Circuit decisions was simply incorrect.

Another hat tip to Cappy White!


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