Thursday, May 01, 2008

Wei (not precedential): BIA Error By Not Addressing Well-Founded Fear

Wei v. Mukasey, No. 07-1563 (3d Cir. Apr. 23, 2008) (not precedential)
275 Fed. Appx. 130, 2008 WL 1813151
Judges Smith, Hardiman, and Roth

The BIA and Immigration Judge Donald Vincent Ferlise made a fundamental error in an asylum case -- they did not make a ruling on one of two arguments that the asylum-seeker made. Someone seeking asylum must show a well-founded fear of persecution. Without getting in to a long, detailed explanation of all the legal theories, one approach is to show past persecution, which leads to an inference of future persecution. The asylum-seeker tried that and IJ Ferlise and the BIA analyzed the argument, as they were required to. They concluded there was no past persecution.

One of many other strategies is to try to prove future persecution (even if it seems the person was not persecuted in the past).
Inexplicably, both the IJ and the BIA failed to address Wei’s claim of a well-founded fear of future persecution. Consequently, we must remand the case so this claim can be addressed by the agency in the first instance.
Inexplicably, IJ Ferlise and the BIA failed to analyze everything they were required to and it took an appeal to a circuit court to point out the error. More proof of the need to expand federal court review of immigration court decisions, not to restrict it. If immigration judges and the BIA are making basic errors and not fixing them, maybe the system needs to be fixed. Let's just say this case was not exactly the immigration court system's proudest moment.

For Wei, Lorance Lockhert of NYC.  For the government, William C. Peachey, Ada E. Bosque, and Kathleen J. Kelly of OIL.


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