Saturday, July 12, 2008

Ou (not precedential): BIA Flubs Basic Asylum Analysis

Ou v. Mukasey
No. 07-3118
July 11, 2008
Not Precedential
2008 WL 2699690
Judges McKee, Nygaard, and Roth (per curiam)

The BIA must apply basic asylum rules in deciding an asylum appeal. In this case, the BIA made a fatal error by not applying basic asylum rules to the appeal.

An asylum-seeker can show a well-founded fear of persecution either by showing past persecution or a well-founded fear of future persecution. So there are two ways. If the BIA is going to deny an asylum-seeker's claims of past persecution and future persecution, the BIA must address both claims.

In this case, the BIA forgot to address future persecution. The Third Circuit overturned the BIA's decision and remanded the case to force the BIA to address the asylum-seeker's claim of future persecution.

By the way, Judge Riefkohl initially denied the asylum-seeker's claim on the ground that the claim was not credible. The BIA made its ruling on different grounds -- that even if the testimony was credible, it failed to state a valid asylum claim. Therefore, the analysis must assume the testimony is true. The underlying claim involved a fear of how China treats those who practice Falun Gong.

For Ou was Liu Yu of NYC.  For the government, Rebecca A. Niburg and Joan E. Smiley of OIL.


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