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Cases & Decisions
CA8 Upholds Asylum Denial Based on Lack of Credibility, Lack of Nexus & Criminal Conviction
The Court held that inconsistencies went to the heart of Petitioner’s asylum claim. In addition, the Court held that he failed to establish that he and his family were persecuted on account of a protected ground. Lastly, the Court found that the IJ did not abuse discretion in denying asylum based on Petitioner’s conviction. (
AILA Doc. No. 05121961.
CA8 Holds IJ Offered Specific Cogent Reasons for Adverse Credibility Finding
The Court found that the denial of asylum was not inconsistent as a matter of law; a fraudulent memorandum significantly undermined Petitioner’s credibility; no forensic examination of his passport was required; the IJ did not err in requiring corroboration; and the Petitioner failed to demonstrate CAT eligibility. (
, 11/10/05). AILA Doc. No. 05121261.
AILA Doc. No. 05121261.
CA8 Overturns IJ’s Asylum Denial & Rejects Government's "Floodgates" Argument
Court held Petitioners facing China's One Child policy presented credible evidence of a well-founded fear based on the birth of their two children. Court criticized IJ for not mentioning significant evidence contradicting DOS reports. Court relied on REAL ID Act to reject the government’s floodgates argument. (
, 11/4/05). AILA Doc. No. 05120510.
AILA Doc. No. 05120510.
CA8 Finds Asylum Applicants Failed to Prove the Motive of their Persecutors
The Court found Petitioners did not establish that the harm they suffered by government soldiers was “on account of” an imputed political opinion. The Court noted that a reasonable fact finder could infer that the soldiers beat Petitioners for their refusal to cooperate in the search for a relative who was an army deserter. (
, 10/10/05). AILA Doc. No. 05112161.
AILA Doc. No. 05112161.
CA8 Finds It Lacks Jurisdiction to Review One-Year Filing Deadline for Asylum Application
The Court found that the statutory language plainly excludes jurisdiction to review the BIA’s determinations that Petitioner’s application was not filed within one year and that he failed to meet the changed or extraordinary circumstances exception to the one-year deadline. (
, 9/27/05). AILA Doc. No. 05102164.
AILA Doc. No. 05102164.
CA8 Finds Peruvian Homosexual Failed to Establish Eligibility for Withholding of Removal
The Court found that the BIA’s decision that Petitioner had failed to demonstrate a clear probability of persecution was supported by substantial evidence. The Court also said instances of violence against homosexuals were sporadic, there were safer areas within Peru, and the continuance denial did not violate due process. (
AILA Doc. No. 05100760.
CA8 Holds Colombian Asylum Applicants Failed to Show They Would Be Harmed Because of Their Political Opinion or Family Membership
The Court found that the Petitioners failed to discuss their political opinion and how it differed from the FARC, and failed to prove that there was a threat against their family. Also, the Court refused to find an exception to the one-year filing deadline for the Petitioners’ daughter based on her status as a minor. (
, 8/23/05). AILA Doc. No. 05091960.
AILA Doc. No. 05091960.
En Banc CA8 Applies Prudential Mootness Doctrine to Detention Habeas
Petitioner’s release and unknown whereabouts rendered his case prudentially moot due to uncertainties in the case, “including whether and where [he] might be apprehended, the changing country conditions in Somalia, and our inability to provide an effective remedy at this time.” (
Ali v. Cangemi
, 8/16/05). AILA Doc. No. 05091662.
AILA Doc. No. 05091662.
CA8 Discusses Jurisdiction to Review Continuance Denial
While acknowledging it could review some legal and constitutional claims related to the IJ’s denial of a continuance request pursuant to new INA §242(a)(2)(D), the court held that petitioner’s claim was purely discretionary and, thus, it lacked jurisdiction to review the claim under INA §242(a)(2)(B)(ii). (
Grass v. Gonzales
, 8/12/05). AILA Doc. No. 05091361.
AILA Doc. No. 05091361.
CA8 Finds Changed Conditions in Sierra Leone and Upholds BIA’s Asylum Denial
The Court found that Petitioner failed to establish past persecution or a well-founded fear of future persecution in Sierra Leone. The Court also upheld BIA’s finding of changed conditions in Sierra Leone based on a 2002 State Department Country Report that noted the end of the civil war and improving conditions. (
Jalloh v. Gonzales
, 8/18/05). AILA Doc. No. 05090860.
AILA Doc. No. 05090860.
CA8 Addresses New INA §242(a)(2)(D); Finds State Felony Simple Possession Conviction is an AgFel
The court ruled that even if the state offense would not qualify as an aggravated felony under federal law, “the plain language of the INA, and of the other statutes it refers to, states that any drug conviction that would qualify as a felony under either state or federal law is an aggravated felony.” (
Lopez v. Gonzales
, 8/9/05). AILA Doc. No. 05082961.
AILA Doc. No. 05082961.
CA8 Upholds IJ’s Adverse Credibility Determination for Kenyan Asylum Applicant
The Court found that the IJ offered specific, cogent reasons for disbelieving Petitioner, including the lack of detail in his story, his implausible explanations for his bigamy andlack of contact with his family, and the lack of corroborating evidence for any of his allegations. (
Ombongi v. Gonzales
, 8/1/05). AILA Doc. No. 05082464.
AILA Doc. No. 05082464.
CA8 Says BIA Erred in Not Considering Significant Evidence Regarding Objective Fear of Persecution
The Court held that the BIA erred in rejecting testimony of asylum applicant’s sister in finding that the applicant lacked an objective fear of persecution based on China’s One-Child Policy. The court also noted the BIA's failure to take into account an affadavit disputing DOS Country Report claims for China. (
Zheng v. Gonzales
, 7/28/05). AILA Doc. No. 05082461.
AILA Doc. No. 05082461.
CA8 Upholds Regulation Barring Arriving Aliens from Adjusting Status While in Removal Proceedings
Reasoning that the ability limit eligibility for adjustment of status falls within the Attorney General’s discretionary authority in INA § 245(a) and INA §245(i)(2), the court upheld the regulation barring arriving aliens from adjusting in proceedings. (
Mouelle et al. v. Gonzales
, 7/29/05). AILA Doc. No. 05081665.
AILA Doc. No. 05081665.
CA8 Rejects Claim that Salvadoran Government Unable or Unwilling to Protect Against Gang Members
The Court rejected claims of Salvadoran asylum applicant, holding that Petitioner failed to show that Salvadoran police were unable or unwilling to protect her from a gang member. The Court discounted news articles about gang activity in El Salvador as too general.
Menjivar v. Gonzales
, (7/29/05). AILA Doc. No. 05081060.
AILA Doc. No. 05081060.
CA8 Upholds BIA’s and IJ’s Findings that Cameroonian’s Asylum Claims Lack Credibility
The Court held that Petitioner failed to establish that he suffered past persecution and also failed to sustain his burden of proof regarding future persecution. The Court found that the IJ’s and BIA’s reluctance to accept questionable proof of SDF membership and explanations offered by Petitioner was supported by substantial evidence. (
Eta-Ndu v. Gonzales
, 6/23/05). AILA Doc. No. 05071361.
AILA Doc. No. 05071361.
CA8 Holds IJ Erred in Finding that Six Years in a Laotian Concentration Camp Did Not Amount to Persecution
The Court held that the IJ erred in concluding that Petitioner, who spent 6 years in a Laotian re-education camp, had not suffered persecution. The IJ erroneously focused on the lack of physical harm to Petitioner, despite evidence that he was held in an underground cell, denied family contact and subjected to forced labor. (
Phommasoukha v. Gonzales
, 6/3/05). AILA Doc. No. 05062114.
AILA Doc. No. 05062114.
CA8 Upholds Negative Credibility Determination in Asylum Claim & Finds Willful Misrepresentation Sufficient to Deny AOS
The Court upheld a finding by the BIA and IJ that a Nigerian asylum applicant, whose claim was based on religious persecution, was not credible. Moreover, the Court also upheld the determination that she was ineligible for adjustment of status because statements made in her asylum claim were willful misrepresentations. (
Falaja v. Gonzalez
, 5/11/05). AILA Doc. No. 05061364.
AILA Doc. No. 05061364.
CA8 Upholds IJ’s Withholding and CAT Denial Based on Lack of Corroboration Applying Three-Part Test
The IJ denied Petitioner’s claims finding that he was credible, but he had not reasonably explained his failure to obtain corroborating evidence. The Court upheld the decision finding that IJ had met the three-part test criteria. One judge dissented stating that the burden was on the BIA to show that it was reasonable to expect corroboration. (
Madjakpor v. Gonzales
, 5/11/05). 05060763.
AILA Doc. No. 05060763.
CA8 Holds that Filing a Timely Motion to Reopen and Stay Request Tolls the Voluntary Departure Period
Where a person files a motion to reopen and request for a stay of removal or voluntary departure prior to the expiration of the voluntary departure period, the court held that the departure period is tolled while the BIA is adjudicating the motion. (
Sidikhouya v. Gonzales
, 5/17/05). AILA Doc. No. 05060362.
AILA Doc. No. 05060362.
CA8 Upholds IJ’s Negative Credibility Determination
The Court rejected the petition finding that the IJ gave specific, cogent reasons for disbelieving Petitioner. The IJ found inconsistencies in testimony about her rape, and noted that she stated that her boss did not tell her why he was raping her. The Court also upheld the finding that Petitioner had no fear of future persecution. (
Alemu v. Gonzales
, 4/8/05). AILA Doc. No. 05050968.
AILA Doc. No. 05050968.
CA8 Refuses to Review IAC Claim
The court considered, but ultimately did not decide, whether INA §242(d)(1) requires issue exhaustion. Instead, the court applied the “basic principle of administrative law” that "ordinarily an appellate court does not give consideration to issues not raised below." (
Etchu-Njang v. Gonzales
, 4/8/05). AILA Doc. No. 05050411.
AILA Doc. No. 05050411.
CA8 Denies Somali Asylum Due to No Past Persecution, Lack of Credibility and Safe Petitioner Relocation
The Court upheld the IJ’s findings that there was insufficient proof that Petitioner was harmed because of her Benadir clan membership or imputed political opinion. In determining the reasonableness of internal relocation, the Court held that the burden was on the Petitioner and she failed to meet it. (
Mohamed v. Ashcroft
, 2/10/05). AILA Doc. No. 05041168.
AILA Doc. No. 05041168.
CA8 Defers to IJ's Negative Credibility Determination in Asylum Denial
The Court held that inconsistencies and omissions in Petitioner's asylum case went to the heart of her claim. And while the Court noted that a negative credibility determination is not determinative of CAT claims, it held that the IJ could properly consider Petitioner’s discounted credibility. (
Esaka v. Ashcroft
, 2/16/05). AILA Doc. No. 05041165.
AILA Doc. No. 05041165.
CA8 Rules That Discrimination & Harassment in Ivory Coast Is Not Persecution
The Court upheld the IJ’s determination that, although the Petitioner testified credibly, he was not entitled to asylum or withholding of removal because the discrimination he suffered and feared in the future did not amount to persecution. Petitioner’s claim related to his difficulty in obtaining identity documents. (
Berte v. Ashcroft
, 2/4/05). AILA Doc. No. 05014461.
AILA Doc. No. 05041161.
CA8 Rules That Afghan Christian's Past Persecution Creates Presumption of Future Persecution
In overturning asylum denial, the Court found that the IJ and BIA had failed to make a credibility determination, failed to consider the impact on his asylum claim of the murder of Petitioner’s sister, and failed to consider whether the treatment of apostates has changed in Afghanistan. (
Ahmadshah v. Ashcroft
, 2/1/05). AILA Doc. No. 05041160.
AILA Doc. No. 05041160.
CA8 Upholds BIA Decision Denying Sexual Orientation-Based Asylum and Withholding Claims
The Court held that the BIA properly affirmed the IJ’s decision denying Petitioner relief from removal in the form of withholding of removal because, based on the evidence in the record, it was not “more likely than not” that Petitioner would suffer persecution on account of his sexual orientation if returned to Botswana. (
Molathwa v. Ashcroft
AILA Doc. No. 05012762.
CA8 Finds No Right To Effective Assistance of Counsel With Respect to Asylum Claims
The Court held that since asylum is a discretionary form of relief, there is no protected “liberty or property interest” at stake that triggers 5th Amendment due process concerns with respect to effective representation. Even if such a right did exist here, Petitioners were not denied that right in this case. (
Obleshchenko v. Ashcroft
, 12/20/04). AILA Doc. No. 05012161.
AILA Doc. No. 05012161.
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