The 3d Cir vacated and remanded a withholding denial, in light of multiple interpretation problems and unfair IJ interference. However, it did not grant the PfR as to the asylum denial, which was premised on the same flawed adverse credibility decision and procedural errors.
On 3/14, the 3d Cir handed down two apparently contradictory decisions, Yusupov (which held that the 3d Cir had jurisdiction over a Petition for Review filed despite remand to IJ for record checks) and Vakker (IJ decision was the final administrative decision). The 3d Cir today attempted to distinguish Vakker, noting that for CAT purposes, the background check can't change anything. (In that case, why have it?). The amended decision contains a new footnote, distinguishing Vakker.
The 3d cir found that residence - unlike "domicile" - cannot be imputed to a child, for purposes of LPR Cancellation (because residence, unlike domicile, is statutorily defined; and also because the Board issed Matter of Escobar, 24 I. & N. Dec. 231 (BIA 2007), which gets Chevron deference). The 3d cir thus rejected the 9th cir's approach in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), creating a circuit split.
The 3d cir held that the "final order" for purposes of appeal was the IJ decision after BIA remand for record checks; which is inconsistent with another 3d Cir decision issued on the same day, and with other circuits to consider the question. On merits, where the Petitioner was a parolee with no regulatory right to renew his AOS application before the IJ, and where USCIS had already denied AOS, there was no error where Board refused to remand to IJ for AOS.
The 3d Cir overturned part of In re A– H–, 23 I. & N. Dec. 774, 788 (A.G. 2005). It found (a) that it had jurisdiction despite remand to IJ for background checks; (b) that the AG's "reasonable person" standard was reasonable construction of the statute; (c) that the AG's standard of whether someone "may be" a danger is inconsistent with the statutory standard that the person "is" a danger; (d) that Congress intended to adopt int'l law norms for determining asylum eligibility; but (e) danger to security is inherently serious, no need to read that word into the statute.
Third Circuit 
