Chhay v. Mulasey (8/15/08)

Boudin, SELYA, Dyk

 The Court found that as Ms. Chhay, both before the IJ and the BIA, did not raise changes country conditions in Cambodia as an exception to the one-year filing deadline for applying for asylum, the Court did not have jurisdiction to review her asylum claim and any possible exceptions to the one-year deadline.  Furthermore, the Court concluded that there was no evidence of past persecution and that Ms. Chhay had not met her burden under the REAL ID Act of providing substantial evidence.  The Court relied largely on its prior decision in Sela v. Mukasey, 520 F.ed 44 (1st Cir. 2008) to find that as Ms. Chhay had not presented any evidence other than her own statements about her membership in the San Rainsy party and had not explained why other “seemingly readily available” corroborating evidence had not been provided, she had not met the substantial evidence rule as discussed in Sela.  Therefore, the Court found that the IJ and BIA properly denied Ms. Chhay’s request for withholding of removal.  Finally, the Court held that CAT relief was also properly denied as she was unable to substantiate membership in the San Rainsy party and provided “her fear of torture is wholly speculative and her reasoning in support of it is amorphous.”

            The Court did take the time to note that “The elliptical phraseology employed by the IJ in this case, in which he termed the petitioner’s testimony generally credible wile making it clear that he did not believe a specific portion of it (i.e. her claim of party membership), is confusing.  Immigration judges would do well to take pains to use more straightforward language.”

            Finally, the Court rejected both due process arguments raised by Ms. Chhay.  In the Court’s opinion, there was no prejudice shown by the IJ possible not talking into account all the background evidence submitted as the failure to consider it would have been harmless.  In addition, the Court rejected that the IJ gave insufficient weight to evidence of general conditions in Cambodia as the IJ weighing the facts against the interest of Ms. Chhay is not a due process violation.

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 Lordes v. Mukasey (8/13/08)

Torruella, LIPEZ, Howard

Although the BIA found that Lordes missed his prior court date due to ineffective assistance of counsel, the BIA and the IJ concluded that this ineffective assistance of counsel “did not effect the respondent’s untimely filing of his asylum application”.  The First Circuit found that as no legal or constitutional defect was properly raised by Lordes, the Court of Appeals has no jurisdiction to review the BIA/IJ finding that there was no excuse for the untimely asylum filing.  The Court found that under its decision in Hana v. Gonzalez, 503 F.3d 39 (1st Cir. 2007 ), there was no merits to Lordes’s argument that the jurisdictional bar in 1158(a)(3) violates due process.  Furthermore, the First Court found that there was no past or future persecution demonstrated, meaning that Lordes was not eligible for withholding of removal.  Finally, the court held that there had been no evidence presented that Lordes would suffer harm or torture at the hand of the Brazilian government, therefore, CAT relief was also appropriately denied.

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Sinurat v. Mukasey (8/8/08)

LYNCH, Selya and Howard

The First Circuit found that Sinurat failed to establish both past persecution and an objectively reasonable fear of future persecution on account of his religious views and practices. While  Sinurat tried to argue that since the IJ stated it was “unclear” if in 1992 when Sinurat was in high school, an attack by Muslim high school students was because Sinurat was Christian or because of school rivalries, the de novo standard is required.  However, the Court concluded that since the IJ and BIA both conclude that regardless of the students’ motive, this one time incident did not amount to past persecution, there was no merit in Sinurat’s argument.  Finally the Court concluded that IJ and BIA “reasonably found no connection between the Indonesian government’s treatment of Christians generally and the isolated attack on Sinurat.”

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Alexandrescu v. Mukasey (8/7/08)

LYNCH, Torruella and Boudin

The Court found that Alexandrescu had not suffered economic deprivation in being demoted and eventually asked to leave his military position as he “lost his job, not his ability to make a living”.  In rejecting Alexandrescu’s argument that he had established a fear of future persecution based on his fear of being imprisoned for failing to inform the military of his whereabouts as required by Romanian law, the Court stated that generally, “a sovereign nation’s normal penalties for avoiding military service are not considered persecution.” Finally, the Court held that Alexandrescu provided no proof of who specifically would seek to persecute him on account of any protected ground.

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