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.

Subah (not precedential): Statute Of Corrupting Morals That Covers Negligent Conduct Is Not Crime Involving Moral Turpitude

Subah v. Mukasey, No. 05-5525 (3d Cir. Dec. 5, 2007) (not precedential): The Third Circuit did a simple analysis of crimes involving moral turpitude: use the categorical approach, see what conduct is covered by the criminal statute, focus on the mens rea required for the conviction, and if it is merely the negligent commission of an act to corrupt a minor's morals, it is not a crime involving moral turpitude. The Third Circuit explained the categorical approach in Partyka v. Gonzales, 417 F.3d 408, 411 (3d Cir. 2005).

It is very disappointing to see both the IJ and BIA made mistakes on this straightforward analysis by wrongly ruling it was a crime involving moral turpitude. Good thing Congress had not shut out federal court review of the IJ and BIA's clear mistakes. Hard to believe Congress is actually considering closing out federal court review of BIA decisions.

It is also disappointing to see ICE and the government incorrectly arguing the crime was a crime involving moral turpitude.

Campbell (not precedential): Motion To Terminate Granted In Case Against Vietnam War Veteran

Campbell v. Mukasey, No. 05-3163 (3d Cir. Dec. 5, 2007) (not precedential) held that a motion to terminate should be granted if then-INS violated its Operations Instructions when it started a deportation case against someone who had served in the armed forces.

They started the case using an Order to Show Cause in January 1997. That the time, an INS Operations Instruction 242.1(18) (1997) required first obtaining approval to issue an Order to Shaw Cause to someone who served in the armed forces only after getting permission from the Assistant Commissioner Border Patrol or Investigations. INS did not do that so it is clear that the case must be terminated. Internal policy guidelines created by agencies often constrain an agency's use of discretion. See INS v. Yang, 519 U.S. 26, 31-32 (1996).

What is disappointing is that the IJ and BIA ignored this obvious argument when they heard of it. Good thing Congress has not blocked federal court review of IJ and BIA decisions -- otherwise, the poor guy would have been deported based on an obviously defective proceeding!