Sunday, December 07, 2008

Zheng: BIA Must Consider The Evidence Submitted

Zheng v. Mukasey
No. 07-3122
IJ William Strasser

Decided in conjunction with Chen v. Mukasey, No. 07-3199, which was before IJ Donald Ferlise
Judges Sloviter, Greenberg, and Senior District Court Judge Joseph Irenas

Decision by Judge Greenberg

In both cases, the attorney for the immigrant was Gary J. Yerman of New York City. The attorneys arguing the appeals for the government were Ethan B. Kanter in one case and Eric W. Marstellar in another case.

The Third Circuit overturned the IJ and BIA in both appeals due to procedural errors in each case.

The BIA must address the evidence that someone submits in trying to reopen a case based on new evidence. The BIA is not allowed simply to quote passages from one of its earlier decision without identifying or discussing the pieces of new evidence being raised in the particular motion to reopen -- especially when the case that the BIA is relying upon did not involve the types of documents being raised in the particular appeal.

The BIA is also not allowed to conclude that no evidence exists for a certain principle (whether couples with two US citizen children would be sterilized upon returning to Fujian Province) without actually addressing evidence that the immigrant submitted that might prove that point. The Third Circuit is essentially requiring the BIA to consider the actual evidence in the actual appeal rather than make conclusory rejections that never seem to consider the evidence in the actual appeal.

In a diplomatic gesture, the Third Circuit did not demand that the BIA actually consider the evidence it received. Instead, the Third Circuit gently asked the BIA to make a more complete analysis of the evidence that was submitted. We can appreciate the diplomatic understatement -- but it is too bad that these two immigrants are waiting so long just to get a fair hearing in court before the BIA. If we did not have federal court review of the BIA's rulings, they might have been deported based on the BIA's defective and inadequate ruling.


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