Agbortabi (not precedential): BIA May Not Make Its Own Credibility Finding Based Solely On How Asylum-Seeker Submitted Some False Documents

In Agbortabi v. Mukasey, No. 06-3130 (3d Cir. Jan. 16, 2008) (not precedential), the Third Circuit vindicated Immigration Judge Alberto Reifkohl by approving the appeal filed by Raymond D'Uva of Newark, NJ. It also criticized and overturned the BIA for making improper findings.

This case focuses on whether the BIA has the power to issue in the first instance a credibility finding against an asylum-seeker based solely on how some of the documents he submitted were fake. The Third Circuit resoundingly concluded that the BIA does not have that power in this case and based on the details in this particular case, the BIA had to send the case down to the Immigration Judge to make his findings and could not enter its own findings instead.

This case almost makes you want to scratch your head, wondering why the government is fighting so hard against the asylum-seeker.

The case involves two sets of documents -- a newspaper article and some items that the asylum-seeker submitted to support his claim. In 2002, the IJ denied asylum but granted withholding of removal, relying partly on the newspaper article. Later, the CIA completed an investigation (of disputed reliability) that concluded the newspaper articles and some of the items the asylum-seeker submitted were fake. The BIA vacated the IJ's conclusion and gave the case back to him to make a new ruling that considered the CIA report. Let's call this Remand #1.

During Remand #1 (the second time the IJ reviewed the case), the IJ analyzed the CIA report and still granted withholding of removal. The BIA again vacated the IJ's decision and remanded the case for an explicit credibility determination. Let's call this Remand #2.

In 2004, during Remand #2, the IJ analyzed the CIA report and ultimately concluded that the asylum-seeker was credible. The BIA vacated the IJ's decision and independently made its own conclusion that the asylum-seeker was not credible. The case was appealed to the Third Circuit, which remanded the case to the BIA (let's stop numbering the remands) to clarify whether the BIA instead should have remanded the case rather than inject its own credibility determination. The BIA did not take the hint and insisted that it had the power to make its own credibility determination. This appeal followed and, no surprise, the Third Circuit ruled the BIA did not have the power to inject its own credibility determination.

The key is that if someone submits some false documents, that does not automatically mean that everything that person says must be deemed a lie. There is no justification for the BIA's proposition. The BIA attempted to cling to In re O-D-, 21 I&N Dec. 1079 (BIA 1998), but that case only said that submitting fake documents is a critical factor toward deciding credibility, but certainly was not dispositive. This makes sense -- if someone has lots of credible documents, corroborating witnesses, and is completely convincing on the stand in court, the person should not suffer an automatic loss if one of the documents his relatives mailed to him turn out to be fake. It's possible the asylum-seeker was tricked by a well-meaning but shady relative who was gathering documents in his faraway home country.

The Third Circuit concludes with an unclear rule -- sometimes the BIA might be able to inject its own credibility determination but certainly it could not do so in this particular case. It is hard to tell in which types of cases the BIA may not inject its credibility determination. Maybe the rule over time will turn out to be -- if there is a substantial chance that the IJ would find the asylum-seeker credible despite submitting some false documents, then the BIA must give the IJ a chance to make his ruling. If it is extremely obvious and there is no doubt that the IJ has signaled that he wants to find the asylum-seeker not credible and would do so upon seeing any document was fake, then the BIA can do the obvious and inject its own credibility determination.

Before you pack away the case, keep in mind that it is still open and will probably be remanded back to Judge Reifkohl, after which we will have to see whether ICE counsel in Newark, NJ files yet another appeal in the case. Quite a saga.

Nayyar (not precedential): No Review Of BIA Refusal To Reopen Sua Sponte

In Nayyar v. Mukasey, No. 06-3269 (3d Cir. Jan. 15, 2008) (not precedential), the well-regarded Tom Moseley lost his Third Circuit appeal because the court held it did not have jurisdiction to review the BIA's decision not to reopen a case sua sponte.

When the BIA makes a ruling, the strongest types of appeals are to make direct appeals of its decisions. The next-best option (when it is available) is to make a motion to reopen to the BIA and explain why the request falls in the BIA's rules on motions to reopen. And if the BIA denies that motion, to appeal it.

This case suggests that the weakest type of motion is to ask the BIA to reopen a case sua sponte, which means of the BIA's own accord. The reason this is a weak type of motion is that you are depending completely on the BIA's unconstrained discretion to decide whether to reopen a case sua sponte, just as when you ask the BIA to reconsider one of its decision. The Third Circuit takes the approach that because that is completely in the BIA's discretion, it is something the Third Circuit will not review.

In this case, the root of the problem might have been a potentially questionable ruling by the BIA in 1998. But the immigrant's attorney at the time perhaps did not file a direct appeal (the strongest appeal) or file a valid motion to reopen right away (the next-strongest type of motion). Around seven long years later, the immigrant finally changed lawyers and hired Tom Moseley. Perhaps the reason he filed the weakest type of motion is that the options seemed extremely limited because of all the time that passed before the immigrant finally turned to him to work on the case.

The original case was decided by Immigration Judge Henry Dogin, but the appeal focused on the BIA's rulings, not what the immigration judge ruled.

Yu: BIA Can Reject Dr. Aird Affidavit On China Family Planning

Xiu Jin Yu v. Mukasey, No. 06-3933 (3d Cir. Jan. 15, 2008).

In this precedential decision, the Third Circuit held that the BIA had substantial evidence to support its conclusion in an asylum case that a Chinese couple did not have an objectively reasonable fear of being forcibly sterilized if the US forced the couple to go back to China. The question lies with fears about China's family planning regime and whether there is an objectively reasonable fear that China may forcibly sterilize a couple that had a second child while living in the United States.

The asyum-seeker used an affidavit by demographer Dr. John Aird that offers an opinion that couples cannot expect to be exempt from China family planning policies. On the other hand, the BIA stuck to its decision in Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) to say there was no objectively reasonable fear.

The BIA gave more weight to the contrary views of State Department reports and noted Dr. Aird's opinion was not based just on a pool of documentary evidence and did not speak specifically to whether someone with two children might be forcibly sterilized. The Third Circuit's level of review is extremely limited -- only whether there is substantial evidence to support the factual finding by the BIA. Yes, there was substantial evidence.

The best strategy, it seems, is to get affidavits that include opinions based on personal knowledge of the dangers in China, to get more reports on what is happening in China, and to convince an immigration judge or the BIA of what is really happening. When there is conflicting evidence, it's not clear how much you need to convince judges and the BIA that your view should be the prevailing view of the court.

Jahjaga: BIA Must Offer Actual, Intelligible Reasons For Refusing To Reissue Decision

Jahjaga v. Mukasey, No. 06-2866 (3d Cir. Jan. 4, 2008).

The Third Circuit ruled that the BIA erred in how it refused to reissue its decisions and in not reviewing the claims of the appellants that they never received the BIA's decision, even though the BIA thought it mailed it to the last address of record. Although both cases in this consolidated appeal arose out of cases by Judge Eugene Pugliese, the Third Circuit focused on the BIA's reasoning and nothing that Judge Pugliese decided.

First, the Third Circuit of course has jurisdiction to review the BIA's refusal to reissue its decisions. The government for some reason started arguing that a BIA refusal to reissue its decision is not a final order of removal, but the Third Circuit rejected that effort -- just as a denied motion to reopen is a final order, so is a denied motion to reissue a decision.

Second, equally strangely, the government also argued that the Third Circuit could not review the BIA decision because it was supposedly discretionary and therefore not open to judicial review. Strange, because it is quite a losing argument -- only acts specified in a particular subchapter of the statute to be in the AG's discretion avoid judicial review.

The Third Circuit agreed with the Ninth Circuit's ruling in Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007) -- if someone asks the BIA to reissue the decision and offers an affidavit that tries to rebut a presumption that he received what the BIA thinks it properly mailed out, then the BIA must analyze and address that factual issue. The BIA can't just summarily and cryptically refuse to reissue its decision. It must offer some intelligible reasoning. The Third Circuit did not adopt the Second Circuit's approach in Ping Chen v. Attorney General, 502 F.3d 73 (2d Cir. 2007), which said that even though the BIA offered no intelligible analysis, the Second Circuit would assume the BIA adopted a justifiable approach that a cover letter in the BIA's file is substantial evidence the BIA actually had mailed it out and that the appellant got it.

It's great that the Third Circuit is requiring the BIA to offer intelligible reasoning to its decisions. It is almost hard to believe that we are at a point where it takes federal judges to force the BIA to make decisions in a thoughtful, rational, and understandable way. Imagine the dark ages we'd have if Congress got rid of this critical level of federal court review!