Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

circumstances” for delay caused by ineffective assistance of counsel presented a mixed question of law and fact and federal appellate court had jurisdiction to review immigration judge’s finding that alien’s application was time-barred. Where alien could not recall the name of his former counsel or the dates or circumstances of any purported contact with this person, who may not have been an attorney, alien failed to provide any independent basis from which to analyze merits of his claim, which was fatal to his application. Even if “extraordinary circumstances” were found, alien failed to file his application within a reasonable period of time, delaying over four years. Although harm to a petitioner’s close family members or associates may be relevant to assessing whether petitioner suffered past persecution, harm to others may not substitute for harm to an applicant who was not in the country at the time he claims to have suffered past persecution there. Substantial evidence supported IJ’s finding that changed conditions in Nepal mitigated against any fear of persecution where alien admitted that no member of his family had any contact with Maoists since 2002, alien’s family returned to Nepal in 2006 and continued to reside there without incident, and the political party with which alien and his family were associated was leading the government of Nepal. IJ’s adverse credibility finding was supported by the record based on alien’s claim that “nothing had changed” and evidence of change in Nepal. Alien’s asserted fear of future persecution was not objectively reasonable where alien’s family had voluntarily returned to Nepal and continued to live there unharmed and alien’s purported fear was based entirely upon threats received by his family. For the same reasons alien could not establish fear of persecution, alien also failed to demonstrate a likelihood of torture if he returned to Nepal. Tamang v. Holder

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