Sunday, April 09, 2006

Toure: IJ Erred In All Six Speculative Reasons To Deny Asylum (and violated his duty to develop the record)

Toure v. Gonzales
April 5, 2006
Third Circuit

This is another case where the Third Circuit overturned the BIA and immigration judge's asylum decision because their findings were based on inferences and presumptions that are not reasonably grounded in the record. The IJ made six findings and the Third Circuit soundly rejected all six because some were "simply speculative or insufficiently developed; others defy the canons of logic."

Focusing on when the man's house was invaded and his wife was abducted by people supporting the Ivory Coast government. That was the third major attack on him -- he was detained for 15 days in February 1998 (but not beaten or otherwise mistreated) and he was detained for two days and severely beaten in January 2001. Even if the IJ held those first two attacks were not severe enough to be persecution, they set a backdrop for the danger he felt after the third attack.

If true, the three attacks definitely constitute persecution and the Third Circuit cited other cases involving multiple beatings that caused injury. It was not just isolated mistreatement that caused no severe injuries.

The Third Circuit also ruled that the immigrant made a case that he was attacked for his political opinion. The IJ should not have required him to be a card-carrying member of his political group. Also, the IJ incorrectly ruled that the internal conflict in the Ivory Coast is not regional or ethnic, but every official report of the civil war says otherwise! A third error of the IJ and BIA was ruling that there was not enough proof that the home invasion was something other than a common burglary. The IJ and BIA took the isolated comment that some common burglaries are done by men in uniform to extrapolate falsely that the invasion by uniformed people was likely a common burglary.

The Third Circuit also addressed other errors: he can't be penalized for breaking a law that he had to in order to escape the persecution, the BIA and IJ can't penalize him for not having corroborating evidence unless they engage in the required three-step analysis, the IJ's unclear credibility finding would have been unfounded because it falsely assumed the Ivory Coast is run top-down.

The Third Circuit reiterated that even after REAL ID, the IJ still has a duty to develop an applicant's testimony, especially regarding an issue that the judge may find dispositive. The Third Circuit cited In re S-M-J-, 21 I. & N. Dec. at 723-726 (“Although the burden of proof in establishing a claim is on the applicant, the Service and the Immigration Judge have a role in introducing evidence into the record.”).


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