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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