Tuesday, August 25, 2009

Mino-Saldana (not precedential): IJ Must Grant A Short Continuance To Resolve Substantial Issues About Adjustment of Status

Mino-Saldana v. Holder
Not Precedential
July 31, 2009

Judges Fuentes, Weis, and Garth. Per Curiam. The attorneys for Ms. Mino-Saldana before IJ Garcy were Marcia S. Kasdan and Renta A. Pilny (who are from the same office).

The Third Circuit overturned the BIA and IJ Annie S. Garcy for not granting a short continuance to resolve whether the immigrant could avoid deportation by obtaining legal permanent residence status through the adjustment of status process.

IJ Garcy refused to grant a short continuance to resolve the issue of completing all the paperwork to show that Ms. Mino-Saldana was section 245(i) eligible and could obtain LPR status through an I-140 petition her husband's employer supported for her husband and herself. The case could have been resolved on the merits within a matter of days with no detriment to the government. IJ Garcy's refusal to grant a short continuance was a misuse of discretion.

The Third Circuit also agreed to accept new evidence into the record on appeal -- Ms. Mino-Saldana's husband had an I-140 filed, it was approved, and he is in line to obtain LPR status. Rather than exclude the new evidence, deny the appeal, and have Ms. Mino-Saldana try to reopen the case by filing a motion to reopen with the BIA due to newly available evidence, the Third Circuit used its power to accept new evidence into the record and cite that in overturning the BIA and IJ Garcy.

Monday, August 24, 2009

Bamaba (not precedential): BIA Cannot Deny CAT Claim Without Analyzing Supporting Evidence

Bamaba v. Holder
July 28, 2009
Not Precedential

Judges Fisher, Chagares, and Cowen. Opinion by Judge Chagares. For Mr. Bamaba, Steven J. Kolleeny (argued), Boris Bershteyn, and Daniel M. Gonen of Skadden, Arps, Slate, Meagher & Flom LLP in New York, NY. For the government, Jeffrey L. Menkin (argued), Paul F. Stone of OIL.

An IJ denied an asylum and CAT applications by finding Mr. Bamaba not credible, reason for persecution was not political opinion, and there was no objective evidence of torture. The BIA affirmed the IJ and relied on the adverse credibility determination.

The Third Circuit ruled for Mr. Bamaba on one issue and remanded the case for that reason -- the BIA failed to analyzed relief under CAT (the Convention Against Torture) in a way that examined the evidence supporting CAT. The BIA improperly referred solely to an adverse credibility determination about evidence supporting asylum without addressing separate evidence focused on CAT relief. In this case, Mr. Bamaba presented a CAT claim separate from the basis for seeking asylum -- he argued that he faced torture from attacks against members of families who were part of an opposition party. That claim was not the same as his argument that he faced persecution based on political opinion.

The Third Circuit ruled for the BIA on certain issues. The BIA is allowed to make a credibility determination based on the facts that the IJ found on the record. Also, the BIA was allowed to avoid analyzing problems with the admissibility of the government's evidence based on how Mr. Bamaba did not object during the hearing before the IJ. Also, in a case held after the REAL ID Act became the law, the court will affirm adverse credibility determinations if the evidence is not so compelling that no reasonable factfinder would rule otherwise, even if the BIA's errors raise some questions.

Friday, August 21, 2009

Zheng (Not Precedential): BIA Must Give Decisions That Can Be Comprehended

Zheng v. Holder
No. 07-3557
July 7, 2009
Not Precedential

Judges Scirica, Chagares, and Aldisert. Per Curiam. Overturning the BIA in a case first decided by IJ Henry S. Dogin

The IJ denied asylum for a reason that the BIA did not address -- IJ Dogin found the asylum-seeker not credible. The BIA denied asylum for a different reason, stating that the claim if taken as true would not establish a well-founded fear of future persecution. The BIA gave no reasoning. Although the BIA is not required to write an exegesis, it must offer some basis for its decision in order to present something for the Third Circuit to review in a meaningful way.

The BIA must offer a decision that can be comprehended, not a cursory denial with no analysis.

Wednesday, August 19, 2009

Li (not precedential): BIA Must Analyze Motion To Reopen For Changed Country Conditions

Li v. Holder
July 6, 2009
No. 07-4037
Not Precedential

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam. Overturning the BIA in a case that was first heard by Immigration Judge Donald V. Ferlise.

After losing with IJ Ferlise and the BIA, the asylum-seeker filed a motion to reopen based on changed country conditions. The BIA erred by characterizing the motion as relying solely on changed personal (not country) conditions. The BIA's conduct was similar to the mistakes it made in Zheng v. Att'y Gen., 549 F.3d 260 (3d Cir. 2008) -- the BIA had a conclusory statement that looked at Matter of J-W-S but did not mention or analyze the asylum-seeker's affidavit or the affidavit of her mother. Once again, the BIA just cited another case that dealt with a different grouping of evidence than what was in the case that the BIA was supposed to rule on. The Third Circuit overturned the BIA and sent the case back to the BIA for proper analysis.

In a side-note, the Third Circuit noted that IJ Ferlise exhibited hostility and impatience during the hearing.

Tuesday, August 18, 2009

Lin (not precedential): IJ Mills Makes Several Mistakes In Denying Asylum-Seeker

Lin v. Holder
No. 08-2532
Not Precedential
August 14, 2009

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision. Overturning the BIA and IJ Miriam K. Mills

IJ Mills and the BIA held that the asylum-seeker was not believable for any of six grounds (three about credibility and three about corroboration). The Third Circuit held that IJ Mills's reliance on each of the six grounds lacked support or had major problems.

Examples of IJ Mills's mistakes include: mistaking the asylum-seeker's testimony that she usually handed out flyers on Tuesdays as meaning that she never handed out flyers on any other day; faulting the asylum-seeker for not having a Chinese calendar on-hand to respond to the IJ's unexpected question about days of the week and the Chinese calendar; mistakenly relying on statements in an airport interview for which there was no evidence other than a government's lawyer commentary on what happened at the interview; faulting the asylum-seeker for not having a letter from her aunt despite an explanation that the aunt suffered a stroke and could not speak or write. There were more mistakes that I'm not trying to summarize here. So little time, so many errors...

The Third Circuit also noted that where an IJ takes over direct examination and examines aggressively, it sometimes could require overturning the IJ's ruling, but that IJ Mills's conduct in this case did not show enough intemperance or partiality to require overturning the IJ here.

Friday, August 14, 2009

Garder (not precedential): IJ Wrongly Mischaracterized Two Important Asylum Issues

Garder v. Holder
Not Precedential
August 13, 2009
No. 08-2972

Judges Scirica, Chagares, and Aldisert. Per Curiam Decision. Overturning the BIA and Immigration Judge David W. Crosland.

IJ Crosland made two major errors and the Third Circuit noted a third error, too. A man sought asylum and explained that he feared two groups that behave like the police and guard order in that country. They also are considered close allies to the government, in some parts they conduct armed patrols to maintain order. IJ Crosland made a major error by saying that there was no testimony that the government was unable or unwilling to control the groups. The IJ said no testimony existed, but there was testimony about how the groups were allies with the government and behaved like the police without government opposition.

There were two parts to the IJ's second major error. First, the man never said his family continued to be persecuted yet the IJ faulted him for not giving evidence about one of the points he supposedly had made. Second, his family did provide a statement that mentioned suffering from one of the groups since the man had left. The IJ fauled the man for not offering evidence even though he had given that evidence.

A minor error that the Third Circuit pointed out is that the BIA has a policy that the issue of credibility must be considered separately from the issue of whether someone provided corroboration. Chukwu v. Mukasey, 484 F.3d 185, 191 (3d Cir. 2007). IJ Crosland might have violated that rule and the BIA may have erred in adopting the IJ's analysis.

We hope that several months from now, the man will get a full hearing and be right back where he was in October 2006 when the IJ made his initial decision. It will probably be three years of difficult struggle to overturn the IJ's decision before he returns to immigration court. It is very fortunate that Congress has allowed some judicial review of BIA and IJ decisions to save people like the man in this case from mistakes. Congress should consider increasing judicial review!