Saturday, January 03, 2009

Kesuma (not precedential): BIA Can't Use Wrong Standard For Asylum Cases

Kesuma v. Mukasey
Not Precedential
November 21, 2008
Judges Scirica, Chagares, and Aldisert
Per Curiam

A basic requirement is that the IJ (IJ Charles M. Honeyman) and BIA must apply the correct legal standard when applying the law to an immigration case.  The Third Circuit overturned the BIA because it applied the wrong standard.

To seek asylum, you must prove among other things that you have a well-founded fear of persecution based on a protected ground.  Let's focus on the need to show a well-founded fear.  In this case, the IJ and BIA ruled that the asylum-seeker supposedly had the burden of proving it was more likely than not that she would be persecuted if she returned.

A basic principle is that proof of a well-founded fear is much easier to prove than proving that it is more likely than not you will be persecuted.  The IJ and BIA applied the wrong legal standard.  It is disappointing that OIL counsel for the government argued that it was harmless error because the BIA perhaps silently used the correct standard.  The Third Circuit threw out OIL counsel's argument, noting there is nothing to indicate the BIA had the correct standard in mind.

It is disappointing to see that the BIA and immigration judges are at times applying the wrong legal standard in immigration cases and it requires a second appeal to a federal court to fix the clear mistake.  Congress should expand judicial review of BIA and IJ rulings.


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