Thursday, May 17, 2007

Li (not precedential): New Evidence Must Be Considered "New"

In Li v. Gonzales, No. 05-5541 (3d Cir. May 16, 2007) (not precedential), the Third Circuit took only five days after it accepted the papers as fully submitted to conclude that the BIA made a mistake by refusing to consider evidence about a brand new development to be new evidence.

Congress set up a system where if someone is denied asylum in losing a BIA appeal but there are new developments, the asylum-seeker has an opportunity to raise the new evidence to the BIA. You can't just bring up old evidence that existed when you first started the case. You have to submit new evidence and on top of that, the new evidence must rise to a certain level of importance and significance. (You can't get a new review of a case for raising insignificant developments.)

You be the judge -- if someone claims that he is the victim of family planning persecution in China and the BIA denies the appeal, would it be new evidence to show a brand new policy of how the Chinese government initiated a family-planning campaign in the area they are from? The answer, the Third Circuit said, is definitely yes. Evidence of a new policy that did not happen until after the BIA ruled on the appeal is new evidence.

Incredibly, the BIA ruled it was not new evidence. At best, the BIA made a fatal slip of the tongue and had other reasons why although the evidence obviously is new, it was not so significant to need to reopen the appeal. At worst, the BIA made a completely illogical and indefensible mistake and felt that evidence of brand new events should never be considered new if they relate to the same theme that the asylum-seeker raised before.

The Third Circuit needed only 5 days after closing the papers in the appeal to issue its decision -- evidence about events that took place after the appeal ended must be considered "new." Let's see, the Third Circuit will force the BIA to take back its mistaken December 2005 ruling. So, this means the poor asylum-seeker has lost around 1.5 years waiting for someone to correct the BIA's obvious mistake. Is anyone going to help improve the quality of the BIA and the immigration court system?


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