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Cases & Decisions
CA7 Criticizes DHS & DOJ, But Says Being a “Material Witness” is Not a Basis for Asylum
The Court criticized DHS and DOJ for not giving systematic guidance on credibility issues to IJs and the BIA, but ultimately denied Petitioner’s claim, stating that being a material witness was not a basis for asylum. (
Djouma v. Gonzales
, 11/15/05). AILA Doc. No. 05120661.
AILA Doc. No. 05120661.
CA7 Remands AWO Decision Back to BIA for Clarification
Because a lack of explanation prevented the court from knowing with certainty the basis of the BIA’s decision, the court was prevented from ascertaining whether it was based on reviewable or non-reviewable grounds. As such, the court remanded the case to the BIA to indicate the basis. (
Cuellar Lopez v. Gonzales
, 10/26/05). AILA Doc. No. 05111664.
AILA Doc. No. 05111664.
CA7 Holds BIA’s “Very Significant Mistake” As Grounds to Overrule Credibility Determination
The Court found that the BIA’s“very significant mistake,” finding that applicant was from eastern, not southern, Uganda, suggested that it was not aware of the most basic facts of the case. The Court found that the mistake constituted extraordinary circumstances under which a credibility determination could be overruled. (
Ssali v. Gonzales
, 9/14/05). AILA Doc. No. 05103162.
AILA Doc. No. 05103162.
CA7 Finds IJ’s Adverse Credibility Determination Was Supported by Substantial Evidence
The Court found that the inconsistencies and implausibilities in Petitioner’s story, pointed out by the IJ, went to the heart of the claim and were sufficient to support an adverse credibility finding. The Court also denied his due process claim, finding that he had not shown he was prejudiced by the deadline set by the IJ. (
Hussain v. Gonzales
, 9/20/05). AILA Doc. No. 05103161.
AILA Doc. No. 05103161.
CA7 Comments on Role of IJ in Overturning Adverse Credibility Determination
The Court noted that unlike an Article III judge, an IJ is not merely a fact finder and adjudicator, but also has an obligation to establish the record. The Court then found that all five reasons cited by the IJ for finding Petitioner not credible were unsupported by substantial evidence. (
Tabaku v. Gonzales
, 9/29/05). AILA Doc. No. 05103160.
AILA Doc. No. 05103160.
CA7 Holds BIA Erred in Finding Testimony Was Inconsistent with Country Reports
The Court found that the BIA erred in denying Petitioner’s motion to reconsider. The Court held that his testimony about the persecution he suffered was not inconsistent with the background information on conditions for Coptic Christians in Egypt. (
Dawoud v. Gonzales
, 9/19/05). AILA Doc. No. 05102562.
AILA Doc. No. 05102562.
CA7 Says Ethnic Chinese Indonesian With Permanent Residency in Singapore Is Firmly Resettled
Stating that the most important issue in firm resettlement is whether the stopover country made an offer of permanent residency, the Court found that Petitioner was ineligible for asylum since Singapore offered permanent residency and she was firmly resettled there (
Firmansjah v. Gonzales
, 9/16/05). AILA Doc. No. 05102163.
AILA Doc. No. 05102163.
CA7 Finds Landowning Class of Cattle Farmers in Colombia Constitutes a Particular Social Group
The Court found that Petitioners belonged to the particular social group of the educated, landowning class of cattle farmers. The Court found that they suffered past persecution including the murder of a family member, death threats and extortion. The Court also held that relocation was not a realistic possibility. (
Tapiero de Orejuela v. Gonzales
, 9/8/05). AILA Doc. No. 05101767.
AILA Doc. No. 05101767.
CA7 Finds IJ Erred in Making Adverse Credibility Determination & Violated Right to Due Process
The Court held that the IJ relied on irrelevant inconsistencies in reaching his adverse credibility finding. The Court also held that the IJ violated the Petitioner’s right to due process by barring the testimony of her experts, and that she was prejudiced by the IJ’s actions. (
Rodriguez Galicia v. Gonzales
, 9/2/05). AILA Doc. No. 05101765.
AILA Doc. No. 05101765.
CA7 Overturn IJ’s Credibility Determination of Chinese Asylum-Seeker Forced to Abort a Pregnancy
The Court held that the evidence did not support the IJ’s finding that Petitioner’s story was implausible, and that Petitioner’s testimony was contradicted by country reports. The IJ also erred in basing his adverse credibility finding on her use of false entry documents. (
Dong V. Gonzales
, 8/31/05). AILA Doc. No. 05100762.
AILA Doc. No. 05100762.
CA7 Criticizes IJ for Unsubstantiated Conjectures and Overrules IJ’s Adverse Credibility Finding
The Court found that the decision denying asylum was not supported by substantial evidence. In particular, the Court found that the IJ failed to demonstrate an understanding of conditions in Algeria and failed to explain why he believed corroborating evidence would be available. (
Hor v. Gonzales
, 8/29/05). AILA Doc. No. 05100761.
AILA Doc. No. 05100761.
CA7 Holds IJ Erred in Excluding Expert Testimony & Finding Ukrainian Mormons Had Not Suffered Persecution
The Court found that the IJ erred in holding Petitioner wife to an impermissibly high standard for establishing persecution. The Court also found that the IJ erred in excluding the testimony of Petitioners’ expert, while relying heavily on anonymous Department of State country reports. (
Koval v. Gonzales
, 8/16/05). AILA Doc. No. 05100560.
AILA Doc. No. 05100560.
CA7 Says IJ Erred in Concluding that Divesting a Person of Citizenship Does Not Amount to Persecution
The Court rejected the IJ’s conclusion that Petitioners, who were stripped of their Ethiopian citizenship, did not suffer persecution. The Court reasoned that the IJ failed to recognize the distinction between denying someone citizenship and divesting someone of citizenship. The Court, therefore, remanded these cases to the BIA. (
Haile v. Gonzales
, 8/29/05). AILA Doc. No. 05100460.
AILA Doc. No. 05100460.
CA7 Finds No Pattern or Practice of Persecution Against Gypsies in Bulgaria
The Court found that the evidence presented by Petitioner did not compel a different outcome. The Court, therefore, upheld the BIA’s findings that Petitioner failed to show a nexus despite her attackers’ use of ethnic slurs. The Court also found no pattern or practice of persecution of Roma in Bulgaria. (
Mitreva v. Gonzales
, 8/8/05). AILA Doc. No. 05083064.
AILA Doc. No. 05083064.
CA7 Finds that Cohabitation with Boyfriend Is Not an Expression of Political Opinion
The Court found that a Chinese asylum applicant’s alleged expression of political opinion via cohabitation with a man outside marriage did not constitute a political opinion. The Court also found that she had not shown she was harmed on account of her alleged political opinion or that she suffered harm amounting to persecution. (
Li v. Gonzales
AILA Doc. No. 05083062.
CA7 Finds Two Verbal Threats by FARC Did Not Amount to Persecution
The Court found that verbal threats received by Petitioner for his refusal to sell military supplies to FARC were not sufficiently immediate or menacing to be persecution, nor were the threats held to be on account of a protected ground. Petitioner also failed to show the government was unwilling or unable to protect him. (
Hernandez-Baena v. Gonzales
, 8/4/05). AILA Doc. No. 05083061.
AILA Doc. No. 05083061.
CA7 Defines Assistance in Persecution of Others in Denying Claim of Punjabi Constable
The Court held that the record must reveal the applicant actually assisted or otherwise participated in the persecution of others. The Court noted that there is a distinction between genuine assistance and inconsequential association. The Court found that Petitioner’s conduct crossed the line into actual assistance. (
Singh v. Gonzales
, 8/5/05). AILA Doc. No. 05083060.
AILA Doc. No. 05083060.
CA7 Says No Jurisdiction to Review Discretionary Challenge to One Year Asylum Filing Deadline
The court said that qualifying for the changed or extraordinary circumstances exception to the one year asylum deadline was discretionary determination, and thus not reviewable, because it must be demonstrated “to the satisfaction of the Attorney General.” (
Vasile v. Gonzales
, 8/9/05). AILA Doc. No. 05082962.
AILA Doc. No. 05082962.
CA7 Addresses Scope of Review of CAT Claims By Criminal Aliens
The court held that review CAT claims raised by individuals subject to INA §242(a)(2)(C) is limited to legal and constitutional claims. “[W]e cannot consider whether the IJ's factual conclusions (including his conclusion about the likelihood of torture) are supported by substantial evidence,” it said. (
Hamid v. Gonzales
, 8/2/05). AILA Doc. No. 05082663.
AILA Doc. No. 05082663.
CA7 Addresses New INA §242(a)(2)(D) Added by Real ID
Pursuant to new INA §242(a)(2)(D), added by the REAL ID Act, the court reviewed the merits of Petitioner’s due process challenges to his removal proceedings and his equal protection challenge to different treatment of state and federal drug possession offenses. (
Ramos v. Gonzales
, 7/12/05). AILA Doc. No. 05081663.
AILA Doc. No. 05081663.
CA7 Says IJ’s Asylum Denial “Completely Disregarded” Test For Lack of Corroborating Evidence
The Court found that IJ’s erred in denying Petitioner’s asylum claim for lack of corroboration. The Court also found that the IJ did not adequately consider Petitioner’s explanations for missing documents, including the outbreak of civil war in Cote d’Ivoire and a misdirected DHL package. (
Soumahoro v. Gonzales
, 7/19/05). AILA Doc. No. 05081165.
AILA Doc. No. 05081165.
CA7 Rules IJ & BIA Ignored Evidence of Religious Persectution in Asylum Claim of Sri Lankan Muslim
The Court held that the evidence presented supported Petitioner’s claim that he was targeted for harassment and extortion, in part because he was Muslim. The Court remanded the case to the BIA because both the BIA and the IJ ignored the evidence presented by Petitioner. (
Mohideen v. Gonzales
, 7/21/05). AILA Doc. No. 05080963.
AILA Doc. No. 05080963.
CA7 Reproaches BIA for Failing to Define “Persecution” in Pakistani Asylum Case
The Court criticized the IJ and BIA for failing to support reasoning for ruling that Petitioner, an Ahmadi from Pakistan, did not have a well-founded fear of persecution. The Court found that Ahmadis are forced to practice their faith secretly and ordered the BIA to discharge its responsibility by defining “persecution.” (
Sahi v. Gonzales
, 7/25/05). AILA Doc. No. 05080961.
AILA Doc. No. 05080961.
CA7 Overturns BIA’s Denial of Motion to Reopen Asylum Application Based on Conversion to Jehovah’s Witness Faith
The Court held that the BIA abused its discretion denying a motion to reopen and requiring Petitioner to submit more proof of her religious conversion when she already had provided, among other things, her affidavit and an explanation of why official confirmation of her conversion could not be submitted in time. (
Fessehaye v. Gonzales
, 7/8/05). AILA Doc. No. 05080562.
AILA Doc. No. 05080562.
CA7 Upholds IJ’s Finding that Submission of False Documents Central to Asylum Claim Is Proper Basis for Negative Credibility Determination
The Court found that the false documents, altered news articles, were so central to Petitioner’s asylum claim that the IJ was entitled to discount Petitioner’s testimony. The Court rejected Petitioner’s arguments that other evidence in the record supported his claim and that he was not given the opportunity to rebut the forensic report. (
Hysi v. Gonzales
, 6/15/05). AILA Doc. No. 05070769.
AILA Doc. No. 05070769.
CA7 Remands Withholding Claim for BIA to Determine if Forcible IUD Insertions Amount to Persecution
The Court overturned BIA’s ruling that Petitioner’s testimony lacked sufficient detail to meet her burden of proof for withholding of removal. The Court, however, remanded to the Board the issue of whether forcible IUD insertions amount to persecution, noting that no appellate court had yet decided the issue. (
Zheng v. Gonzalez
, 5/24/05). AILA Doc. No. 05061663.
AILA Doc. No. 05061663.
CA7 Holds Reinstatement Not Impermissibly Retroactive When Applied to Persons Who Reentered Before 4/1/1997 but Applied for AOS After 4/1/1997
Finding reliance necessary to establishing impermissible retroactive effect, the court concluded that petitioners did not reasonably rely on being adjustment of status eligible at the time they reentered the United States. (
Labojewski et al. v. Gonzales
, 5/4/05). AILA Doc. No. 05060168.
AILA Doc. No. 05060168.
CA7 Finds Airport Interview of 17 Year-Old Iraqi Reliable; Affirms IJ’s Negative Credibility Determination
The Court upheld the IJ’s negative credibility determination of an Assyrian Christian from Iraq finding that his airport interview, when he was 17, was reliable. The Court found it reliable because there was a full transcript of the interview, a translator was used, and there was no objection to the use of the transcript at the hearing. (
Jamal-Daoud v. Gonzales
AILA Doc. No. 05050972.
CA7 Overturns IJ’s Denial of Chinese Catholic Asylum Claim on Credibility Grounds
The Court found that the IJ’s negative credibility and lack of corroboration findings were not supported by substantial evidence. The Court criticized the IJ for repeatedly interrupting Petitioner’s testimony and not allowing her to explain her answers. The Court also criticized the IJ for relying on non-record information on Catholicism. (
Huang v. Gonzales
, 4/14/05) AILA Doc No 05050969
AILA Doc. No. 05050969.
CA7 Reverses BIA’s Denial of MTR Based on 180 Day Deadline for Reopening In Absentia Proceedings
The court found that the statutory deadline at INA § 240(b)(5)(C)(ii) “is merely a statute of limitations and is therefore subject to equitable tolling.” The court ordered the BIA to reconsider reopening based on the claim that prior counsel rendered ineffective assistance. (
Pervaiz v. Gonzales
, 4/18/05). AILA Doc. No. 05050412.
AILA Doc. No. 05050412.
CA7 Overturns Asylum Denial of Falun Gong Practitioner in Scathing Opinion by Judge Posner
The Court held that the IJ failed to provide a rational analysis of the evidence. The IJ had denied asylum because Petitioner’s testimony “was vague concerning her beliefs” and contained inconsistencies. The Court criticized IJs for their “exaggerated notion” of what people know about their religions and found the inconsistencies to be trivial. (
Iao v. Gonzales
, 3/9/05). Doc No 05040662.
AILA Doc. No. 05040662.
CA7 Finds that INA § 242(f) Not Applicable to Stay Requests
The court rejected the government’s position that the INA §242(f) governs stay requests and instead held that, in permanent rule cases, INA §242(b)(3)(B) authorizes it to issue stays of removal if traditional equitable standards merit it. (
Hor v. Gonzales
AILA Doc. No. 05040461.
CA7 Finds Illinois Obstruction of Justice Conviction is CMT
The court acknowledged that an Illinois statute lacks the specific element of fraud, but still found that Petitioner’s “crime entails other conduct that is sufficient to support a finding of moral turpitude, namely, making false statements and concealing criminal activity.” (
Padilla v. Gonzales
, 2/22/05). AILA Doc. No. 05031860.
AILA Doc. No. 05031860.
CA7 Rejects Retroactive Application of Reinstatement Provision
The court held that the Service cannot reinstate a prior order of removal pursuant to INA § 241(a)(5) against individuals who reentered the United States and filed an affirmative relief application before April 1, 1997. Such reinstatement, the court held, would have impermissible retroactive effect. (
Faiz-Mohammad v. Ashcroft
, 1/27/05). AILA Doc. No. 05020836.
AILA Doc. No. 05020836.
CA7 Holds Illinois Conviction For “Aggravated Criminal Sexual Abuse” is “Sexual Abuse of a Minor” under INA § 101(a)(43)(A)
The Court found that the BIA properly classified a conviction under 720 ILCS 5/12-16(b) (“aggravated criminal sexual abuse”) as an aggravated felony under INA § 101(a)(43)(A) because the activity in which Petitioner engaged constituted “sexual abuse of a minor” under the common understanding of the phrase. (
Espinoza-Franco v. Ashcroft
AILA Doc. No. 05012463.
CA7 Finds That Grant of Stay of Removal Does Not Result in Automatic Stay of Voluntary Departure
The Court rejected the Petitioners’ argument that a grant of a stay of removal implicitly results in a stay of the relevant period of voluntary departure; a stay of voluntary departure may only be obtained via an explicit request to the Court after proper exhaustion of administrative remedies. (
Alimi v. Ashcroft
, 12/10/04). AILA Doc. No. 05011369.
AILA Doc. No. 05011369.
CA7 Finds Offense of “Aggravated Fleeing” is a CIMT
The Court held that a conviction for “Aggravated Fleeing from a Police Officer” in violation of 625 ILCS 5/11-204.1(a)(1) constitutes a crime involving moral turpitude and is thus a deportable offense. (
Mei v. Ashcroft
, 12/29/04). AILA Doc. No. 05011368.
AILA Doc. No. 05011368.
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