Ehoan (not precedential): BIA Can't Summarily Affirm Novel Factual Case

In Ehoan v. Gonzales, No. 05-5091 (3d Cir. Dec. 20, 2006) (not precedential), the Third Circuit again ruled that you can challenge the BIA's internal procedures about how it decides cases. In this situation, the BIA issued what it calls a summary affirmance of the immigration judge's decision. The problem is that the BIA's regulations say that the BIA can only issue a summary affirmance if the issues in the case are squarely controlled by existing case law or if the issues are not so substantial that there should be a written opinion. In this appeal, the facts were novel and the issues were quite substantial -- whether a conviction should be considered what the law calls a "serious nonpolitical crime" that disqualifies someone from receiving asylum protection. The Third Circuit did not say what the crime was, but described it as not involving physical harm. The Supreme Court has said this area of the law is not well-developed and depends on guidance from the BIA and Attorney General because defining this area of law could have an impact on foreign relations.

In another not-precedential decision, Haynes v. Gonzales, No. 05-3244 (3d Cir. Dec. 20, 2006), the Third Circuit ruled that if you write to the BIA that you are withdrawing your appeal, and you did so knowingly, you can't change your mind later. I feel very sympathetic to the guy who did that, explaining in his motion to reopen that he wrote to withdraw the appeal when he was tired and in disagreement with his family. The Third Circuit didn't say how long he took to change his mind, but I would have hoped the BIA would have been a bit lenient to let him change his mind.