Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

A new case: Board of Immigration Appeals did not abuse its discretion in denying late-filed motion to reopen removal proceedings where Guatemalan petitioner’s HIV diagnosis was not new information and was only a change in personal circumstances. Adoption of the Dominican Republic-Central America-United States Free Trade Agreement–which petitioner argued could affect access to treatment–did not amount to changed country conditions that resurrected petitioner’s late-filed motion where he failed to show that passage of the treaty was material to his claim. Lopez Almaraz v. Holder

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BIA issues two crime related decisions

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New case where Appellate Court ruled the BIA and IJ were wrong in ruling that there was an adverse credibility finding: Alien’s submission of two news articles describing a rally in India where he said he was arrested did not support an adverse credibility finding based on fact that one article did not mention any violence or arrests at rally and alien did not provide a contemporaneous clarification this article was not entirely accurate. Alien’s failure to explain why a newspaper article stated Delhi police exempted Sikh women from the helmet law before date of rally did not support an adverse credibility finding since only the government could grant such an exemption and later events contradicted this report. Speculation as to what “grave and serious” offenses termination order from alien’s employer was referring to could not be used to support an adverse credibility finding. Where requested documentation was not easily available to alien because it was in India and under the control of a third party, alien’s failure to provide corroborating evidence did not support an adverse credibility finding. Alien’s claim that he had not been formally terminated at his first merits hearing was consistent with employer’s termination order where alien claimed he was unaware of the termination order at the first hearing and had arrived in the United States nearly 10 months before that order was issued. Even if termination order were “poorly drafted and formatted” as Board of Immigration Appeals held, such a conclusion does not bear a substantial and legitimate nexus to the adverse credibility finding. BIA’s disbelief of alien’s decision not to challenge his suspension from work based on speculation and conjecture about what someone in alien’s position would or would not do did not support the adverse credibility finding. Neighbor’s testimony that alien “quit” because he would have had to compromise his religion by cutting his hair and beard in order to keep his job was consistent with alien’s claim that he could have had his job back if he cut his hair and trimmed his beard, but that he was not willing to do so. Where alien repeatedly testified that no media or police reports of a bus explosion exist, or if they did, he was unable to locate them, alien’s failure to provide such reports did not support an adverse credibility finding. Alien was not required to provide “strong” or “conclusive” evidence of bus explosion and his subsequent arrest and mistreatment. Where immigration judge’s skepticism as to the plausibility of alien’s testimony was based on a mischaracterization of that testimony, such skepticism did not provide a proper basis for upholding an adverse credibility finding. IJ and BIA erred to the extent they based an adverse credibility finding on statistics contained in a 2003 Country Conditions Report because those statistics reveal nothing about the circumstances or persecution of Sikhs living in New Delhi in 1998, the year in which alien claimed he was persecuted.

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BIA remand case back to USCIS

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