Sunday, May 18, 2014

The Ninth Circuit Continues Issuing Decisions That Change How Asylum Applications are Adjudicated


The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued a tremendously pro-foreign-national decision recently in Chandra v. Holder wherein the Ninth Circuit held that an otherwise untimely motion to reopen one's removal proceedings could nevertheless be considered on its merits based on the changed-country-conditions asylum-related exception even if the alleged change in country conditions is related to a change in the foreign national's personal circumstances.

The case concerned an Indonesian man who after being ordered removed in 2005 converted to Christianity and argued about four years later that his conversion combined with the increase in persecution of Christians in Indonesia rendered timely his 2009 motion to reopen. Such motions to reopen previously were routinely denied by the BIA on the basis that a change in a foreign national's personal circumstances, regardless of whatever changes that may have occurred in that foreign national's home country, may not render that foreign national eligible to apply for asylum if s/he has a final order of removal and did not raise the application within ninety days of such order. In issuing its decision though, the Ninth Circuit pointed out that such a motion to reopen will not be meritorious if it relies solely on a change in a foreign national's personal circumstances without showing any relevant changes within that foreign national's home country. It will be interesting to see whether this change results in more opportunities for legitimate claims to be raised or more chances for foreign nationals to prolong their stay in the U.S. based on orchestrated claims.

All of the Ninth Circuit's other immigration-related published decisions within the last couple of weeks also concerned asylum-related issues. For instance, in Zhi v. Holder, the Ninth Circuit clarified that the BIA may not rely on a reconciled discrepancy to make an adverse credibility determination regarding an asylum application.

Moreover, in Pirir-Boc v. Holder, yet another decision concerning social-group recognition of those who oppose gang recruitment in the Central-American countries of Guatemala, El Salvador, and Honduras, the Ninth Circuit remanded a case because the BIA did not conduct the necessary social-group-recognition analysis when it reversed a Guatemalan man's grant of asylum.

Finally, in Konou v. Holder, the Ninth Circuit held that a sentence enhancement could be taken into account in determining whether an asylum applicant's conviction that is otherwise found not to be for an "Aggravated Felony," which could bar him/her from asylum and withholding of removal, could be found to be for a "Particularly Serious Crime," which also would bar him/her from asylum and withholding of removal. The case, which concerned a homosexual man from the Marshall Islands, is also interesting because it upheld a denial of relief under the Convention Against Torture because although homosexuality is against the law in the Marshall Islands, country-conditions-related evidence showed that such law is not enforced there.

The immigration-related cases published by the Ninth Circuit during the last couple of weeks show once again that asylum-related issues in the U.S. are quite complex, and that skilled legal advice is oftentimes necessary to be successful with such an application.

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