Friday, January 13, 2006

H.H.: Overturning IJ Who Ignored Affidavit Evidence (non-precedential)

"HH" v. Gonzales
"HH" v. Attorney General
Jan. 12, 2006
No. 04-2318

The Third Circuit overturned a decision because the immigration judge and BIA ignored evidence in the asylum-seeker's affidavit. Where an immigration judge and the BIA says that an asylum-seeker presented no evidence on a topic, but the asylum-seeker submitted an affidavit that includes evidence on that topic, the decision must be overturned so that the immigration judge can consider the issue in light of the evidence. This rule makes sense because by saying there was no evidence, the immigration judge essentially ignored certain evidence in the case. Even if the slip-up was by mistake, it was a mistake and the asylum-seeker deserves a properly made decision.

The legal rule is that there must be substantial evidence to support an immigration judge's factual finding. The Third Circuit will treat factual findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). When a conclusion by the judge is wholly unsupported by the record, it must be overturned.

In this case, the Third Circuit even identified the immigration judge: Donald Vincent Ferlise.


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