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Bamaba (not precedential): BIA Cannot Deny CAT Claim Without Analyzing Supporting Evidence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Not Precedential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


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