Sunday, September 06, 2009

Santhalingam (not precedential): Motion To Reopen For Country Conditions Only Needs Showing "Reasonable Likelihood" Of Success; BIA Ignored Evidence

Santhalingam v. Holder
Not Precedential
September 3, 2009

Judges Ambro, Fisher, and Jordan. Per Curiam. Overturning the BIA in a case initially decided by IJ Annie S. Garcy.

A woman from Sri Lanka applied for asylum and IJ Garcy denied it. The BIA also denied it and the Third Circuit affirmed the denial in 2003.

In 2007, she filed a motion to reopen with the BIA based on changed country conditions, which also requires showing prima facie eligibility for or entitlement to relief. That standard requires showing simply a "reasonable likelihood" of prevailing. The BIA erred by applying a higher standard than appropriate to the motion to reopen or by not adequately considering the evidence.

Briefly, the BIA apparently ignored articles about a surge of persecution from late 2006 onward in Sri Lanka. Even though some level of problems existed before 2006, the BIA ignored evidence that it became much worse after 2006. As far as protection under CAT, the Convention Against Torture, although she ultimately must prove it is more likely than not she would be tortured, to obtain reopening she only needs to show a reasonable likelihood that she will be able to make that proof. The BIA incorrectly required her to show it is more likely than not she will be tortured, rather than that there is a reasonable likelihood she can make that showing.


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