Saturday, July 25, 2009

Makanast (Not Precedential): BIA Given Leeway To Conclude Lawyer's Mailing Did Not Include Motion For This Case

Makanast v. Holder
Not Precedential
May 29, 2009
Judges Barry, Smith, and Hardiman. Per Curiam.

Hard to understand what is going on with this case, but the BIA is free to conclude that a mailing did not include the motion that Parsekian & Solomon filed for someone. The short description does not really explain what is happening. Maybe that law firm filed a motion in a case for a different client and it suggests they never filed a motion for this case?

Perhaps the best practice would be to make a note of the receipt number for your mailing in some part of the filing, such as in a cover letter or scribbled on the cover sheet of the filing. Too little information to figure out what the significance of this case is.

Friday, July 24, 2009

Barrie (not precedential): Over Dissent, Upholding Asylum Denial

Barrie v. Holder
No. 08-2988
July 23, 2009
Not Precedential

Judges Sloviter, Ambro, and Stapleton. 2-1 decision. Majority opinion per curiam. Dissent by Judge Ambro.

The 2-1 majority upheld the BIA and Immigration Judge Mirlande Tadal for denying an asylum-seeker, finding the person not credible, and not considering an affidavit by the person's spouse.

Basis for adverse credibility included testifying member of an organization but written application only said a supporter of that organization and in an interview said was a supporter.

Basis for finding no past persecution -- although testified about being interrogated about politics while arrested, the written application only said questioned about identity of strike leaders. Also, IJ Tadal concluded taken into custody due to civil unrest rather than politics.

In dissent, Judge Ambro would have overturned the adverse credibility finding because many members of political parties are also supporters, so it is not a contradiction to switch between those descriptions. Also, the man had no legal representation in court and no formal education, which suggests word play could have been unfairly misleading. Judge Ambro also would have overturned the BIA for not considering his wife's affidavit.

Seems very tenuous for the majority to uphold the adverse credibility determination and very troubling problems when courts do not recognize any right to appointed counsel for the indigent in immigration court.

Thursday, July 23, 2009

Millien: IJ Asylum Credibility Finding Overturned -- No Credibility Problem Where In-Court Testimony Weakens Claim

Millien v. Holder
June 4, 2009
Not Precedential
Judges McKee, Hardiman, and Roth. Per Curiam decision.

The BIA and IJ Frederic Leeds relied on an adverse credibility determination to deny a man seeking asylum. The Third Circuit concluded that the adverse credibility finding was not supported by substantial evidence. The Third Circuit was particularly concerned that IJ Leeds did not try to reconcile the finding with the documentary evidence. Some examples include how the asylum-seeker testified he was a party leader but wrote on one application he was a party member. The Third Circuit pointed out it was consistent, not contradictory and that asylum-seekers should not be harshly punished for not having asylum applications as detailed as desirable if they can back up the additional details with evidence.

The Third Circuit held that discrepancies cannot bear on credibility where the in-person testimony weakens the claim of persecution. In that instance, the in-person testimony is not any attempt to enhance the claim of persecution. For example, testifying he was hit in the head in a non-serious way rather than beaten. Or testifying he got 6 threatening phone calls rather than the 50 written in the application (which he said was probably due to a translation mistake).

Wednesday, July 22, 2009

Zhang (not precedential): BIA Must Review All Materials For Motion To Reopen

Zhang v. Holder
Not Precedential
July 20, 2009
Judge Ambro, Fisher, Jordan. Per Curiam decision.

Another case where the Third Circuit overturned the BIA for denying a motion to reopen a case based on changed country circumstances that affect someone's ability to seek asylum. As in other cases, the BIA failed to address all of the evidence supporting the claim.

Ignoring relevant evidence is improper in a BIA decision. The BIA improperly ignored relevant evidence in a number of motions to reopen dealing with changed country conditions in China. The BIA cannot say that some (but not all) of the documents were dealt with in other decisions. That leaves unaddressed all of the new evidence that were not covered in old decisions.

Tuesday, July 21, 2009

Liu (not precedential): BIA Must Consider Evidence in Motion To Reopen

Liu v. Holder
Not Precedential
April 23, 2009

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision.

Theodore N. Cox of New York, NY for Ms. Liu. Drew C. Brinkman for OIL and the government.

As with Zheng v. Mukasey, 549 F.3d 260, 264-65 (3d Cir. 2008), the BIA may not deny a motion to reopen without mentioning key evidence supporting the argument to reopen a case because of changed country circumstances.

There is no question that the BIA ignored 6 pieces of evidence supporting the motion to reopen and only addressed 3 other pieces of evidence by tersely referring to a previous BIA decision. It is disappointing that the BIA broke the rules by not considering the evidence in the motion to reopen. The BIA should make its decisions based on the evidence in the case, not in a way that is unrelated to what the parties have submitted.

IJ Henry S. Dogin made the ruling in immigration court on the case, but the Third Circuit solely criticized the BIA's analysis of the motion to reopen and did not criticize in any way IJ Dogin.

Monday, July 20, 2009

Figeroa-Matos (not precedential): BIA May Not Ignore Key Evidence In The Record

Figueroa-Matos v. Holder
February 23, 2009
Not Precedential
Judges Scirica, Ambro, Smith. Decision by Chief Judge Scirica.

Argued by Matthew D. Baxter of Genevieve Gross & Associates, PC in Huntingdon Valley, PA for Mr. Figueroa-Matos and Nancy E. Friedman (argued) and Sharon M. Clay for OIL and the government.

The Third Circuit overturned a case decided by the BIA and IJ Roxanne C. Hladylowycz.

Under section 212(c) relief (which Congress prospectively deleted in 1996), an IJ has the power to save a legal permanent resident from deportation based on a variety of factors, including rehabilitation from a criminal conviction. In this case, the IJ concluded that Mr. Figueroa-Matos deserved section 212(c) relief and was "genuinely rehabilitated." ICE appealed and in a divided opinion, the BIA overturned the IJ and denied relief. The BIA erred by trying to make independent findings of fact that contradicted the IJ's findings. The BIA simply refused to acknowledge the IJ's factual finding that the man was genuinely rehabilitated.

Even if for the sake of argument, the BIA could acknowledge rehabilitation yet try to give it little weight, that is not what the BIA did here -- the BIA just ignored one of the IJ's key factual findings. The BIA may not ignore the evidence in the record.

Here, the BIA improperly broke the law by ignoring the key evidence in the record and the Third Circuit overturned the BIA. It is disappointing that the BIA broke the rules by ignoring the evidence. The BIA is supposed to decide appeals based on the record, not to issue rulings that have no relation to what happened in the particular case.