Tuesday, June 14, 2005

Motion to reopen; frivolousness overturned

Marke v. Atty Gen USA, No. 04-3031 (3d Cir. June 13, 2005) (non-precedential): a motion to reopen must be filed within 90 days of the BIA's decision or else the immigrant must prove why he should be excused for filing it after that period, such as for his former lawyer's ineffective assistance of counsel. But failing to address the issue in a belated motion to reopen means the motion to reopen should be denied as filed too late. Also, if an immigrant does not prove that he has been persecuted in the past, if he argues that changes in the country he has left makes it impossible for him now to return, the burden is on him to prove how the country has changed since he left.

Kelmendi v. Atty Gen USA, filed 06/13/05, No. 04-2545 (non-precedential): The Third Circuit overturned the IJ and BIA's finding of frivolousness. An asylum claim is deemed frivolous (which imposes serious penalties) only if there is an intentional false statement that has a bearing on the case. The IJ and BIA did not specifically identify or explain what statement was intentionally false, so the Third Circuit threw out their finding of frivolous. The process on authenticating foreign documents is not a mandatory requirement but is something that a judge can consider when deciding whether to allow certain documents into evidence. As the Third Circuit has said before, courts should be "loathe to quickly attach a label of frivolousness ... to an applicant's ... exercise of his legal rights." On another topic, if the judge offered the immigrant alternatives and an opportunity to follow the process, then the judge has the option of excluding the evidence if the immigrant did not follow the process and did not offer a good explanation for why following the authenticating process could not be done. Acceptable reasons for the IJ to believe the immigrant was not credible included: claiming he was seriously beaten but able to cure himself with home remedies, changing his testimony about how he got his passport, it seems strange that days after receiving a court summons he went ahead and had a trouble-free business trip to Greece.


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