Petitioner was detained on entry into the U.S. in 2000 and applied for asylum. The IJ denied the asylum/withholding/CAT claims finding that petitioner had filed false documents, her testimony was not credible, and her applications were frivolous. Petitioner did not leave the country, married, and had two U.S. citizen children.
In 2007 petitioner filed a MTR and a successive asylum application arguing that (a) the 2002 enactment of China's population control statute was a change of circumstances allowing reopening of her earlier denied asylum application due to changed country conditions under 1229(c)(7)(C)(ii); and, (b) her successive asylum application was allowed under under 1158(a)(2)(D) due to her own changed circumstances of having given birth to two children. The 6th Cir. disagreed with petitioner and denied the PFR.
1. The 6th Cir. found that the BIA's denial of the MTR was not an abuse of discretion and that petitioner had not proven that she would face persecution in China because the BIA did not credit a letter from petitioner's friend without any other corroboration. Petitioner had not overcome her earlier credibility problem and had not shown changed country conditions that would lead to her persecution.
2. The 6th Cir. found that the BIA's determination that "additional applications for asylum are only permissible if they are accompanied by a motion to reopen supported by changed country circumstances" was a reasonable interpretation of the INA and had also been found so by the five other circuits that had ruled on the issue. Since petitioner did not win on her MTR she could not win on her successive asylum application. The 6th Cir. noted that its earlier decision in Haddad was either distinguishable or wrong and now overruled consistent with Brand X.
3. "We agree with our sister circuits and conclude that the BIA reasonably interpreted §§ 1158(a)(2)(D) and 1229a(c)(7)(C)(ii) of Title 8 as requiring an alien subject to a final order of removal for 90 days or more to make a successful motion to reopen her proceedings prior to consideration of a successive application for asylum."
Koulibaly v. Mukasey (6th Cir., 9/4/08, No. 07-3743)
GIBBONS, Kennedy, Gilman
Petitioner, a citizen of Guinea, applied for asylum/withholding/CAT based on past persecution, including her treatment by Guinea police and the disappearance of her husband.
The 6th Cir. reviewed the BIA's adoption of the IJ's finding of lack of credibility and determined that the Assessment to Refer by the Asylum Officer lacked sufficient indicia of reliability to support an adverse credibility determination. Factors to consider in weighing the Assessment include: indication of an oath, language of interview noted, rendition of interview in question and answer format, and detail of the contemporaneous notes; these factors could be butressed at the IJ hearing by asking the Respondent about the accuracy of the Assessment notes and the opportunity to explain any discrepancies.
The 6th Cir. then went on to analyze the specific facts that the BIA determined showed a lack of credibility and found that substantial evidence did not support the finding of lack of credibility. The court granted the petition for review, vacated the BIA judgment, and remanded the case for further consideration.
The 6th Cir. denied Ba's PFR of the denial of his claims for asylum, withholding and CAT. The 6th Cir. found that the murder of petitioner's father did not constitute past persecution of petitioner and that petitioner had no claim to a well-founded fear of future persecution because he failed to raise it before the BIA. The 6th Cir. did not rule on two arguments - membership in a social group and the government's inability to control a non-governmental group, the Ninjas - because, respectively, he did not raise it below and did not raise it with the BIA.
Petitioner's family are members of the Lari tribe that lost a civil war to the current government. The Lari tribe's militant group is known as the Ninjas. In March 2004 petitioner claimed a group of Ninjas came into his father's store and bound both of them. Government forces appeared and petitioner escaped and fled the country. Petitioner fled to Gabon and learned of the death of his father, apparently by the Ninjas. Petitioner then entered the U.S. with fraudulent documents.
In a non-LPR Cancellation case, the Petitioner argued that the Board failed to apply its own precedent - Matter of Recinas - which would have led to a finding of extraordinary hardship. The CtApp found that Board failure to follow precedent is not a discretionary decision, so 1252(a)(2)(B) didn't bar review - thus, no need to reach whether failure to file precedent is a question of law under 1252(a)(2)(D). (Note that the 6th Cir treats 1252(a)(2)(B) as barring only review over discretionary questions.) However, the CtApp found that such review must be deferential, and limited to whether the Board made a reasonable application of its precedent to this particular case.
At the end of Rashid v. Mukasey, the Court of Appeals referred to "the government’s apparent concession [in its Answering Brief] that it will return Rashid to the United States for the proceedings that we now require." Indicating that it will not appeal the merits of the decision, the Govt fears the precedent of being ordered to return someone to the U.S., and asked the Court to amend that part of the Court's decision. The Govt argued that it should not have to pay for a proper removal, and gave the following version of its obligations:
The Government’s involvement in returning Petitioner would be limited to facilitating his return if he chooses to do so, by ensuring that Petitioner’s transportation is not prohibited by lack of travel documents and taking other necessary steps to ensure that his entry is effectuated at the border once he presents himself for admission into the United States. For example, the Government would first assess whether Petitioner actually wants to return to the United States. Assuming his desire to return to the United States, Petitioner would have to agree to return to the same custody status from which he was removed. Moreover, once the perimeters of his return were established, the Government would begin the process of generating the appropriate documents to facilitate Petitioner’s processing at the border. In order to generate the appropriate documentation to parole Petitioner into the United States, DHS would coordinate certain matters with Petitioner’s counsel, which would include the completion of a specific forms and other documents.
The Govt also contested the Board's role in refereeing any disputes: "the Board has no statutory or regulatory authority over the procedural nature of the processes involved in Petitioner’s return to the United States. That authority lies exclusively with DHS."
[The return of individuals to the US after a removal order is a major problem, reported by litigators throughout the country. USCIS has no forms that can be filled out; ICE and the State Dept have great trouble coordinating travel documents. The only times the process is simple is where the respondent happened to maintain a travel document, such as an LPR card. While it does seem unlikely that the Govt could be made to pay for the return, an order requiring documentation within a set time period seems not unreasonable. -CR]
Sixth Circuit 
