Iriani (not precedential): IJ Must Address The Issue Of Past Persecution And BIA Cannot Refer To Non-Existing Ruling

Iriani v. Holder
August 25, 2009
Not Precedential
http://www.ca3.uscourts.gov/opinarch/083235np.pdf

Judges Barry, Smith, Hardiman. Per Curiam decision. Overturning BIA and IJ Rosalind K. Malloy.

IJ Malloy mistakenly failed to rule on whether the asylum-seeker has a fear of future persecution (regardless of whether the person had a fear of past persecution). IJ Malloy did rule that there was no past persecution, but the issue of future persecution is a separate question. The BIA incorrectly ruled that IJ Malloy had addressed the issue of future persecution and the BIA said it agreed with what it imagined IJ Malloy had said without the BIA itself providing any reasoning about future persecution.

The Third Circuit overturned the BIA because IJ Malloy had not ruled on future persecution so the BIA acted improperly by affirming something that IJ Malloy had not ruled on. The Third Circuit noted that it might be possible to prove future persecution based on how the asylum-seeker had received death threats from Muslims in Indonesia and the police were not willing to help them. There is also supporting evidence in an International Religious Freedom Report.

Excellent victory even if the Third Circuit in footnote called the asylum-seeker's brief disorganized and far from a model of clarity.