Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

A new case on Asylum: Alien’s hope that conditions would improve in her native Kenya did not constitute an extraordinary circumstance excusing her delay in filing application for asylum. Immigration judge’s adverse credibility finding was subject to reversal because it was premised on erroneous determination that alien had not mentioned an incident where she claimed she was almost run down by a truck in her application. Where an issue has been presented to an IJ, and the Board of Immigration Appeals affirms, the issue is deemed exhausted. Where IJ relied upon election of Kenyan Democratic Party leader as president in Kenya and the State Department’s 2002 Human Rights Country Report in finding that conditions in Kenya had improved for members of the Democratic Party to such an extent that alien no longer had a well-founded fear of returning, IJ’s decision was not supported by substantial evidence since that report covered only one day after the president was sworn in and four days after he won the election, confirmed abuses like those allegedly suffered by alien were still common in Kenya, and did not indicate that the former ruling party was no longer able to persecute Democratic Party members. Record did not compel a finding that alien would likely be tortured if returned to Kenya.
Mutuku v. Holder – filed April 9, 2010

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