Saturday, June 09, 2007

Singh (not precedential): IJ Imroperly Speculated About How India Operates

In Singh v. Gonzales, No. 06-3268 (3d Cir. June 6, 2007) (not precedential), the Third Circuit overturned Immigration Judge Mirlande Tadal and the BIA for improperly making assumptions about how India operates when they denied an asylum-seeker's claim.

IJ Tadal in Elizabeth, New Jersey made mistakes when trying to figure out whether the person seeking asylum was believable. It makes sense that a judge must consider all the evidence (pro and con) when deciding whether someone really was attacked in 2000 and 2001. In this case, the person seeking asylum submitted various documents to prove he was attacked twice. On the other hand, when he asked India for a passport to leave, he wrote down that he supposedly was not in India in the months he was attacked. The Third Circuit ruled that Judge Tadal and the BIA made fatal mistakes by not at least considering all of the evidence.

Next, Judge Tadal and the BIA also ignored (without explanation) the person's plausible explanation that he lied when he applied for a passport because others said saying he had left before would speed up his passport application in India. The Third Circuit ruled that was another fatal mistake.

Third, Judge Tadal and the BIA also made a fatal mistake by guessing that someone with an arrest warrant in India would not file for a replacement passport because perhaps India has a well-coordinate database to compare warrants with passport applications. The Third Circuit ruled, however, that the IJ and BIA's guess was "sheer speculation." Who knows how well-coordinated India is!

Finally, IJ Tadal and the BIA made an error that the Third Circuit was pointed out in several decisions over the past few years. I wonder if they are getting tired of seeing the same mistake repeated -- before complaining that someone did not provide corroborating evidence, an IJ must identify the facts, decide whether there is adequate corroboration, and analyze whether there is an adequate explanation why there isn't more corroboration. Here, the IJ and BIA complained that the person fleeing India did not provide a copy of his arrest warrant -- even though that warrant "presumably is in the possession of his persecutors" (citing the important In re S-M-J- case by the BIA in 1997).

The end result of the appeal is that the asylum-seeker (who litigated it on his own without legal representation) wins his appeal and will sometime in the near future have a chance to continue with his asylum claim -- having only lost two years of his life litigating the appeal to the BIA then the Third Circuit.

It is tragic that while the federal courts continue to point out fatal errors being made by immigration courts, some in Congress are trying to restrict federal court review of immigration cases. If anything, Congress should consider expanding federal court review.

if someone has a bunch of documents suggesting he was attacked in 2000 and 2001, but
incorrectly found the asylum-seeker to be not believable


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