Wednesday, September 19, 2007

Shardar: BIA Must Act Rationally In Deciding Whether To Reopen Asylum Case for Changed Circumstances

In Shardar v. Gonzales, No. 06-1238 (3d Cir. Sept. 19, 2007), the Third Circuit overturned the BIA for failing to acknowledge that the asylum-seeker had new evidence that could not have been produced at the first hearing and the combination of the old and new evidence made out a prima facie case for asylum -- there was a reasonable likelihood for the asylum claim to succeed.

The first question -- whether there was new evidence that could not have produced at the first hearing -- is important because unless you have new evidence based on changed circumstances, you may only file on motion to reopen within 90 days of the BIA's decision. Thanks to the new evidence, you can file a successive motion more than 90 days after the BIA's ruling. Here, the new evidence was significant -- it showed that the political party persecuting the asylum-seeker had re-emerged. The BIA made an illogical ruling that it could stray from a positive conclusion in a similar case just because the prior case was not marked as a precedential decision. The BIA also illogically ruled that a prior case was irrelevant because it dealt with reopening an abandoned asylum claim as opposed to this case's reopening of a denied asylum claim. But whether the case was abandoned or denied is irrelevant to whether there are changed circumstances.

The Third Circuit also criticized the BIA's conclusory statements that did not shed light on how it came to its conclusion to deny the motion to reopen.

Unfortunately, the BIA is frequently issuing decisions that are conclusory and offer little opportunity to understand what rationale they might have used. It is very fortunate that there is a way to appeal the BIA's rulings and that the Third Circuit is forcing the BIA to make well-reasoned, logical, and correct decisions that explain their rationale. Not such a radical demand for the Third Circuit to make!


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