The en banc Ninth Circuit reversed the BIA’s denial of asylum to a homosexual citizen of Mexico, finding that the petitioner had shown that Mexican officials were unable or unwilling to protect him from harm by private individuals due to his sexual orientation, and thus that he had established past persecution. The court also concluded that the petitioner was entitled to a presumption of future persecution, and remanded for the BIA to consider whether that presumption was rebutted, and also to consider the petitioner’s claims for withholding of removal and CAT protection, taking into account new evidence of the petitioner’s HIV diagnosis.
Court Defers to BIA’s Decision in Matter of F-P-R- to Calculate Asylum Applicant’s “Last Arrival” into the United States
The Second Circuit deferred to the BIA’s decision in Matter of F-P-R- to hold that the petitioner’s rebuffed effort to enter Canada from the United States after being illegally present in the United States following multiple deportations counted as his “last arrival” into the United States, thus giving him an additional one year from that date to file an asylum application. Accordingly, the court granted the petition for review in part and remanded in part for the BIA to determine whether the petitioner’s asylum application was timely.
The Seventh Circuit concluded that substantial evidence did not support a finding that the petitioner deliberately fabricated material elements of his asylum application, because the IJ “seemed to base his frivolousness finding on a lack of credible evidence rather than any evidence that [the petitioner] had made deliberate falsehoods.”
(1) An untimely application for asylum may be found frivolous under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2012). Luciana v. Att’y Gen. of U.S., 502 F.3d 273 (3d Cir. 2007), distinguished. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010), followed.
(2) The respondent’s asylum application is frivolous because he deliberately made a false statement postdating by more than 2 years his date of entry into this country, which is a material element in determining his eligibility to seek asylum given the general requirement to file the application within 1 year of the date of arrival in the United States.
The Sixth Circuit found that the IJ’s adverse credibility determination was supported by substantial evidence, and that the petitioner, who claimed that her Christian beliefs would subject her to persecution if she was removed to China, had not presented evidence or any argument that would compel a reasonable adjudicator to disagree with the IJ’s finding. The court also rejected her due process claims, noting that because none of the alleged violations affected the outcome of her asylum claim, she did not suffer any prejudice.
Circuit Court Affirms Injunction Against Indiana’s Attempt to Withhold Funds to Agency That Resettles Syrian Refugees
The Seventh Circuit affirmed the grant of a preliminary injunction against the state of Indiana’s attempt to withhold funds from a private agency that assists in the resettlement of refugees, including Syrian refugees. The court rejected the governor of Indiana’s brief asserting that “the State’s compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries,” finding that there was no evidence to support that argument.
Circuit Court Upholds Regulation Precluding an Individual Subject to a Reinstated Removal Order from Applying for Asylum
The Ninth Circuit found that 8 CFR §1208.31(e), which prevents a noncitizen who is subject to a reinstated removal order from applying for asylum, is reasonable, and entitled to deference under Chevron. Accordingly, the court affirmed the BIA’s conclusion that it could not consider the petitioner’s application for asylum in light of his reinstated removal order. The court remanded for the BIA to reconsider the petitioner’s applications for withholding of removal and protection under the Convention Against Torture (CAT) in light of intervening circuit precedent inHenriquez-Rivas v. Holder and Madrigal v. Holder.