Thursday, November 26, 2009

Sheriff: BIA Utterly Failed To Consider Atrocities In Liberia In Humanitarian Asylum Case

Sheriff v. Holder
No. 08-1645
November 24, 2009

Judges Barry, Fisher, and Jordan. Opinion by Judge Barry. Overturning the BIA and vindicating the original decision by Immigration Judge Alberto J. Riefkohl. The BIA overturned IJ Riefkohl in a decision where one member dissented without an opinion.

Dennis Mulligan of the Nationalities Service Center (Philadelphia, PA) argued the case for Ms. Sheriff. Susan B. Green argued the case and worked with Lindsay B. Glauner and Angela N. Liang of the Justice Department's Office of Immigration Litigation for the government.

The Third Circuit criticized the BIA for utterly failing to consider or analyze atrocities and almost unimaginable horrors that a woman from Liberia experienced. The BIA was required to consider and analyze that evidence when deciding her request for asylum, including humanitarian asylum.

There is no question that the woman suffered past persecution due to incidents that rose to the level of persecution, was on account of one of the protected grounds, and was committed either by the government or forces the government was unable or unwilling to control. People who suffered past persecution are presumed to have a well-founded fear of persecution. The government can rebut that presumption by showing a fundamental change in circumstances in the home country that takes away the well-founded fear. If the government does not rebut the presumption, the court should grant asylum in its discretion. If the government does rebut the presumption, the asylum-seeker has two additional avenues to succeed -- showing compelling reasons for being unwilling or unable to return to the home country due to the severity of the past persecution or showing a reasonable possibility he or she may suffer other serious harm upon returning to the home country.

First, the Third Circuit discussed the BIA's errors about whether the government rebutted the presumption. The BIA cannot rely solely on the State Department's Country Reports because general evidence of improved country conditions is insufficient to rebut credible testimony and other evidence unless the Country Report addresses the specific basis for the fear of persecution.

Another mistake was that the BIA did not mention much of the asylum-seeker's evidence. Because the Country Reports do not appear to be enough to support rebutting the presumption and the BIA did not give any indication it considered and addressed the asylum-seeker's evidence, the Third Circuit overturned the BIA and sent the case back to the BIA for further proceedings.

It is useful that the Third Circuit endorses how the BIA will accept Country Reports that come out while a case is on appeal to the BIA. Another clarification is that in BIA appeals on or after September 25, 2002, the BIA cannot overturn an IJ's fact-finding unless it is clearly erroneous but the BIA has de novo review over whether the facts legally rebutted the presumption.

Second, the Third Circuit addressed the BIA's errors regarding humanitarian asylum. The avenue based on the severity of past persecution is also known as Matter of Chen asylum based on Matter of Chen, 20 I&N Dec. 16 (BIA 1989). It is available when the past persecution was an atrocious form of persecution. The Third Circuit emphasized that the atrociousness is not narrowly limited to victims of such horrors as the Holocaust, the Chinese Cultural Revolution, or Cambodian genocide. Other victims can also succeed. Because the BIA did not show that it considered the terrible incidents that Ms. Sheriff endured, the Third Circuit remanded the case.

Also, on remand the BIA can for the first time offer some explanation and analysis of what type of serious harm there is a reasonable possibility the asylum-seeker might suffer upon returning to the home country.

Congratulations to Dennis Mulligan for the comprehensive victory! It is disappointing that the government tried to minimize the BIA's failure to consider the horrors the asylum-seeker suffered by arguing that the BIA was not required to mention every "detail," as the government cavalierly described them. It is unfortunate that the asylum-seeker's battle is taking even more time due to the extra litigation. IJ Riefkohl granted asylum in April 2006 and the Third Circuit in essence has commended IJ Riefkohl for his analysis and decision-making. The BIA overturned the IJ in February 2008. Now, 3.5 years after the IJ granted asylum, the case is returning back to the BIA for the BIA to conduct the analysis it was required to do the first time around.

Saturday, November 21, 2009

Rodrigues (not precedential): BIA Erred In Ruling Notice Of Appeal Was Untimely

Rodrigues v. Holder
No. 09-4077
November 13, 2009
Not Precedential

Judges Sloviter, Fuentes, and Nygaard. Per Curiam. Overturning the BIA in a case originally heard by IJ Walter Durling.

The BIA erred by ruling that a notice of appeal to the BIA was untimely filed. The BIA ignored how the date stamp on the notice of appeal indicates that ICE counsel received it two days before the deadline. The decision does not explain much more of what happened, but the Third Circuit concluded that the notice of appeal should be treated as timely filed.

The Third Circuit made clear that it has jurisdiction to rule on whether a notice of appeal was timely filed, even if the immigrant raising the issue was found removable for an aggravated felony conviction or a controlled substance violation.

Friday, November 20, 2009

Sharif (Not Precedential): BIA Cannot Deny Motion To Reconsider In Incomprehensible Decision Where BIA Erred By Ignoring Key Evidence

Sharif v. Holder
No. 08-4432
November 13, 2009
Not Precedential

Judges Barry, Stapleton, and Nygaard. Per Curiam. Overturning the BIA in a case originally heard by IJ Daniel A. Meisner.

The Third Circuit held that the BIA erred in denying a motion to reopen without providing any coherent explanation for its decision. After losing a case with IJ Meisner and the BIA, Mr. Sharif filed a motion to reopen with the BIA arguing that conditions in his country had changed that supported an asylum claim. The BIA denied the motion to reopen and Mr. Sharif filed a motion to reconsider. The BIA denied the motion to reconsider but did not offer coherent analysis. The BIA's failure to offer coherent analysis happens so often that the Third Circuit has a rule on it -- when the deficiencies in the BIA's decision make it impossible to review the decision meaningfully, the Third Circuit will vacate the decision and remand the case. Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003).

Here, the BIA incomprehensibly admitted that it failed to recognize some of the evidence that formed the reason why Mr. Sharif sought to reopen his case, but then in a summary manner said it made no error. It is hard to comprehend how the BIA could admit it overlooked key evidence and then skip to a conclusion that it made no errors.