Aslam v. Mukasey (2d Cir. 08/08/08, Docket no. 05-1044-ag)
Pooler, Hall, Trager
The 2d Cir denied this petition for review of the IJ's decision finding petitioner removable and ineligible to adjust based on petitioner's inadmissibility due to previous marriage fraud. At his merits, petitioner's ex-wife testified via videoconferencing regarding her fraudulent marriage to petitioner. While agreeing that the admission of VTC testimony of witnesses must comply with due process, the court rejected petitioner's arguments that his due process rights were violated as the admission of the evidence was clearly probative and there was no evidence in the record that its use was not fundamentally fair. Moreover, petitioner was not prejudiced through the VTC testimony. The court next found that the IJ did not err in finding petitioner removable and ineligible for adjustment based on inadmissibility due to the marriage visa fraud. Finally, the court found that the BIA had not abused its discretion in summarily affirming without opinion the IJ's decision.
Where petitioner had filed a motion to reopen and remand with the BIA, in order for him to be able to apply for an extreme hardship waiver under INA 216A, the court held that it had jurisdiction to review the Board's denial of this motion for abuse of discretion and that this appeal was not insulated from appellate review simply by being labeled "discretionary."
However, in reviewing the Board's denial of the motion to remand, the court concluded that the Board had not abused its discretion. The Board's interpretation of the regulation - that the extreme hardship period was only the period that the alien was admitted for permanent residence on a conditional basis - was permissible, and the Board was therefore not required to consider evidence following the end of this period (including his second wife's naturalization and children's birth certificates). Absent this evidence, the Board did not abuse its discretion in determining that petitioner had failed to present previously unavailable material evidence such that a motion to remand was warranted.
The 2nd Cir. granted this PFR where petitioner from the Democratic Republic of Congo was denied asylum by the IJ, and the Board affirmed, stating that conditions in the DRC had changed to the extent that there was no evidence that petitioner would face persecution. The court found that the Board had improperly inferred that the general improvements of conditions in Congo rebutted the presumption of a well-founded fear of future persecution and that the Board ought to have conducted an individualized analysis of whether the changes in Congo were so fundamental that they were sufficient to rebut this presumption.
A 15 year old was in the custody of his uncle, the then-INS served the hearing notice on the boy, not the uncle - an in absentia order ensued. The boy moved to rescind just before age 21. The regs require notice on an adult for under 14 years; the 9th Cir., Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) found that service on all minors had to be on the adult custodian. The 8th Cir. disagreed, Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008). The 2d cir didn't follow either circuit, opting instead to remand to the Board for a published (or at least, thoroughly reasoned) opinion.
The 2nd Circuit found that the REAL ID Act of 2005 abrogated its 2003 holding in Secaida-Rosales v. INS, 331 F.3d 297 (2nd Cir. 2003), in which the court decided that adverse credibility determinations in asylum cases could not be based on inconsistencies and omissions that were ancillary or collateral to the applicant's claims of persecution. Rather, the court held that an IJ may now rely on omissions and inconsistencies so long as the totality of the circumstances establish that the applicant is not credible.
Second Circuit 
