Monday, June 01, 2009

Jiang (not precedential): BIA May Not Ignore New Evidence By Incorrectly Calling It Old

Jiang v. Holder
No. 08-3392
May 28, 2009
Not Precedential
Judges Sloviter, Stapleton, and Cowen. Per Curiam.

The BIA erred in a case that was originally heard by IJ Esmeralda Cabrera (but IJ Cabrera did not make the mistakes that the Third Circuit focused on). After losing in immigration court and in a BIA appeal, Mr. Jiang filed a motion to reopen with the BIA. The BIA did not consider the evidence that was included with the motion to reopen. It was a motion to seek asylum based on changed country circumstances, so there was no time limit or numerical limit to the motion.

The BIA seemed to ignore the evidence because it referred to the evidence as material that all could have been submitted in 2002. However, most of the evidence was dated 2005-2007. Given that mistake, the Third Circuit did not have confidence that the BIA appropriately analyzed the evidence in concluding that there was no evidence to support that he would suffer a forced vasectomy in China if he returned.


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