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Garder (not precedential): IJ Wrongly Mischaracterized Two Important Asylum Issues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Not Precedential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


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