Thu: BIA and IJ Failed To Review All Relevant Evidence In Asylum Claim

Thu v. Mukasey, No. 06-3499 (3d Cir. Dec. 18, 2007): The Third Circuit overturned the BIA and Immigration Judge Margaret Reichenberg in a precedential case involving an asylum claim by a Burmese man.

In a long 26-page opinion, the Third Circuit explained that where the BIA bases its decision on an IJ's adverse credibility determination, the Third Circuit will review both the BIA and IJ's decisions. Fiadjoe v. Atty Gen, 411 F.3d 135, 152-53 (3d Cir. 2005). The IJ must supply specific, cogent reasons why the asylum-seeker is not credible. Chukwu v. Atty Gen., 484 F.3d 185, 189 (3d Cir. 2007). The record must also show that the asylum-seeker has not supplied a convincing explanation for discrepancies and omissions. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004).

Also, if the record does not reveal that material evidence in the record has been fairly considered, the proper course is to remand the case. Sotto v. INS, 748 F.2d 832, 837 (3d Cir. 1984).

Here, the asylum-seeker testified about his involvement in pro-democracy issues about Burma and the IJ did not seem to analyze how the State Department Country Report describes Burma as a nation repeatedly betrayed by its government in terrible ways. Therefore, this seemed to be the main reason the Third Circuit overturned the BIA and IJ.

It seems that as long as the case was being remanded, the Third Circuit advised the BIA and IJ to reconsider whether the inconsistencies were enough to find the asylum-seeker not credible in light of the State Department report. It also advised that an IJ should hesitate before penalizing an asylum-seeker for not gathering supporting statements from family in Burma because of the notoriously repressive regime in Burma.