The IJ and BIA initially denied this Cameroonian asylum for lack of credibility, with an alternate denial based on nexus - but after the Govt moved for remand from the CtApp, the BIA denied only on the basis of nexus. The Board held that she hadn't shown that being arrested at a political rally (and then raped) was on account of her politics; nor that being arrested with her family due to a religious conflict with local authorities was for religious reasons. The CtApp made short shrift of this: "the BIA completely ignored the doctrine of mixed motives—the opinion does not analyze whether Ndonyi’s oppressors were partially motivated by politics or religion, and makes no mention of any of our precedent on the issue." The CtApp called the agency reasoning "radically deficient," and said that it didn't see how a student protest against discrimination against Anglophones could be apolitical. Also, BIA didn't shift burden to Govt to show that internal relocation was possible. Reversed.
A Filipino asylum applicant was an Undersecretary in the Dept of Agriculture, accused by political opponents of the President of being part of a corruption scandal. The 7th Cir upheld the asylum denial, finding his fears not objectively reasonable, because his fears (and his supporting witnesses) were too vague. CtApp discussed prosecution vs. persecution distinction, and stated that even politically-motivated prosecution wouldn't be persecution if he were guilty of the corruption offense. But the holding of the CtApp is that there is no pending prosecution and no identifiable threat to Bolante - so PfR denied.
An individual with an expedited removal order (for a post-97 false claim to USC) obtained a B-1 visa, without noting her prior removal or her prior fraud. She married a USC and applied for adjustment; denied for false claim to USC, reentry without prior permission to reapply. BIA found no nunc pro tunc authority to grant nonimmigrant waiver, per Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989). She only challenged the nunc pro tunc waiver issue.
The 7th Cir found the Board's interpretation of 212(d)(3), barring nunc pro tunc adjudication, "entirely sensible." Distinguished Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008), because that involved someone applying for admission at POE, so the 212(d)(3) waiver wouldn't have been retroactive or nunc pro tunc. Also, Borrego's use of false name at consular interview prevented consulate from discovering her past expedited removal order.
[CR - but why wouldn't the entire case be dismissed as harmless error? A post-96 false claim to USC is a non-waiveable ground of inadmissibility, who cares whether she could get retroactive permission to reapply? It's a purely advisory opinion...]
In responding to a Motion to Reopen for Adjustment (via a not-yet-approved spousal I-130), the Board refused to reopen, but didn't discuss any evidence presented to show the bona fides of the marriage.
1. Fact that brief was written arguing an "abuse of discretion," whereas Kucana limits mtn to reopen jurisdiction to questions of law, wasn't dispositive - just as alleged errors of law may really be discretionary issues, alleged abuses of discretion can really be legal errors.
2. Cannot be any constitutional claim re discretionary relief: "Because we have held that “a petitioner has no liberty or property interest in obtaining purely discretionary relief,” such as the reopening of a case, Iglesias’s due process rights were not implicated here. See Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see also Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006)."
3. CtApp had jurisdiction to consider a "wholesale failure to consider evidence" under question of law standard.
[A] “failure to exercise discretion or to consider factors acknowledged to be material to such an exercise”—such as the “wholesale failure to consider evidence”—would be an error of law for purposes of reviewing a motion to reopen. See Huang, 2008 WL 2639039, at *1 (second quotation from Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008)). And we fail to see how the BIA can make a reasoned decision denying a motion to reopen if it completely ignores the evidence that a petitioner presents. * * * So we conclude that Iglesias’s allegation that the BIA completely ignored the evidence he presented is a good faith claim of legal error that we can review. See Kucana, 2008 WL 2639039, at *4 (noting that the Board has “an obligation to consider every argument made to it”).
4. But Board's failure to consider the evidence was harmless here: "[B]ecause the BIA could have reasonably concluded that Iglesias’s evidence was not “clear and convincing” proof of a bona fide marriage, we need not remand because the alleged legal error was harmless. See Tariq v. Keisler, 505 F.3d 650, 657 (7th Cir. 2007)." [CR - but is that the harmless error standard? Shouldn't the Court more properly have asked whether the Board could have concluded that there was enough evidence to show that marriage was bona fide]
An Algerian man who refused to give supplies to the Islamicists (for free) was denied asylum for lack of a nexus to any political opinion. The 7th Cir affirmed. "Aid did not go to the police with the intent of allying himself with the Algerian government or getting the terrorists into trouble. Rather, his motivation was self-preservation: he sought to protect himself from misdirected retribution by the army mistakenly thinking that he was working in concert with the terrorists." Found that while "reasonable minds could differ," substantial evidence does support the Board's denial.
Seventh Circuit 
