In a Guatemalan asylum case, the 10th Cir applied In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), finding that it clarifies that the test in Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) ("deliberate imposition of substantial economic disadvantage"), applies where the state takes away something economic, whereas the Acosta test (so severe as to constitute "threat to life or freedom") applies where the Govt keeps someone poor. Found Acosta test appropriate, and that indigenous Guatemalans do not suffer so severely as to be in danger of death. (In passing, noted that 10th Cir treats ultimate question of whether facts show withholding as a question of fact, not question of law, cf. Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 109-10 (3d Cir. 2007); Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam)).
Petitioner also argued a state-created danger theory, that it would violate substantive due process to return someone to a country where the US Govt created danger (in this case, see atrocities in Guatemala in 1980s). 10th Cir rejected without analysis, simply joining the 1st and 3d circuits. Accord, Enwonwu v. Gonzales, 438 F.3d 22, 29-31 (1st Cir. 2006); Kamara v. Att’y Gen., 420 F.3d 202, 216-18 (3d Cir. 2005).
The 10th Cir looked behind the BIA's stated review standard (using de novo review) to determine whether the Board had erroneously reversed the IJ by applying a lower standard than the "clear error" standard required by the regs. The 10th Cir found that where there are two permissible readings of the evidence, there cannot be clear error - and found that the IJ's finding of credibility was permissible.
Bo Hae Lee v. Mukasey, 10th Cir. 6/3/08 (published)
Kelly, McKay, Hartz (dissenting)
Petitioner entered the U.S. on a B-2 visa and received a change in status to a F-1 student visa, which allowed her to attend a private secondary school. However, in her sophomore year, the school petitioner was attending ceased operations and she transferred to a public high school. Petitioner applied for AoS, was denied, and was then placed into removal proceedings where her AoS application was again denied b/c the IJ found her inadmissible as a student visa abuser under 8 U.S.C. 1184(m), despite acknowledging that she may not have been at fault for terminating her studies. The BIA affirmed.
The 10th Cir., however, held that Congress intended to penalize only individuals who acted affirmatively to terminate or abandon , and since petitioner had merely reacted to the closing of her private school, she had not violated her student visa status. The court thus reversed and remanded for further proceedings.
Dissenting, Judge Hartz argued that the government's interpretation of the statute was more reasonable and that, in any event, the language is ambiguous and ought to be interpreted by the BIA.
In this unpublished opinion, the 10th Cir. found that the BIA had not abused its discretion in omitting a detailed discussion of 42B relief when it denied petitioner's motion to reopen based on ineffective assistance and where petitioner had only referred to 42B relief but did not provide evidentiary support for this claim.
The 10th Cir reversed a conviction for transporting aliens, where the police pulled over a truck for driving under the speed limit. It found that moderately slow driving did not give police "reasonable suspicion" to pull over the truck.
Tenth Circuit 
