Wong v. Mukasey (3d Cir. 8/20/08)

CHAGARES Aldisert Fuentes

The CtApp found that the Board's decision, while brief, provided enough detail to permit judicial review. It upheld the Board's analysis in finding a lack of a "pattern and practice" of persecution of Indonesian Christians, finding Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) to be based on outdated country conditions docs. Fact that her husband's asylum claim was approved could have been relevant (citing Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006)), but "Wong has not provided any details as to her husband’s claim and we therefore cannot assess its similarity or relevance to her claim." I-730 pendency was irrelevant to the case. CtApp also suggested that Govt's attempts to protect Christians might be relevant to pattern and practice claim.

Interesting, the CtApp cited recent country conditions reports, but did not take judicial notice of them:

FN4 It is important to note that these recent reports are not part of the record and do not therefore control our decision-making. Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”). Although other courts of appeals have taken judicial notice of new country reports released after a final agency determination, see, e.g., Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41 (7th Cir. 2004), we have declined to do so. See Berishaj, 378 F.3d at 330 (explaining that we have followed “the clear command from SEC v. Chenery Corp., 318 U.S. 80 [] (1943), that courts reviewing the determination of an administrative agency must approve or reject the agency’s action purely on the basis of the reasons offered by, and the record compiled before, the agency itself”).

Read opinion here: 

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