Heartland Alliance's National Immigrant Justice Center's experienced legal staff can speak about the legal ramifications of immigration laws, provide analysis of how immigration policies play out in immigrant communities, and help put reporters in touch with immigrants, refugees, and asylum seekers who can provide a human face to stories about the U.S. immigration system.
NIJC Press contact:
Tara Tidwell Cullen
General Immigration 8th Cir. Denies Asylum to Guatemalan Mayan; No Jurisdiction over Repapering Denial | 8th Cir. Denies Asylum to Guatemalan Mayan; No Jurisdiction over Repapering Denial |
|
|
| Friday, 29 August 2008 | |||||
|
Castro-Pu v. Mukasey, No. 07-2126 (8th. Cir.) August 28, 2008 LOKEN, Gibson, Melloy
Castro-Pu was a Guatemalan Mayan who had defied army orders to report for duty in the Guatemalan civil patrols and later became a student activist. He applied for asylum in 1991, and his appeal was decided by the BIA eight years later, in 1999. The IJ below found no well-founded fear of future persecution; the BIA found that conditions in Guatemala had greatly improved, so Castro-Pu’s claim failed. A dissenting board member opined that Castro-Pu should have been granted asylum in 1991 but at minimum, that he should have been given an opportunity to rebut the BIA’s finding that conditions in Guatemala had greatly improved since the time of Castro-Pu’s flight from the country.
No federal court appeal followed the BIA’s 1999 decision (Castro-Pu claimed he was never informed of the BIA’s final decision by prior counsel) and in 2000, after Castro-Pu was detained, he filed a habeas petition in district court, arguing that he should have been permitted to present evidence to rebut the BIA findings on country conditions in Guatemala. The district court agreed and remanded his case to the BIA on this issue; the BIA in turn remanded to the IJ for further testimony in the case.
In remanded proceedings, Castro-Pu attempted to introduce the executive director of an immigration legal services agency as an expert witness on Guatemala, the IJ refused to accept the director as an expert witness, because she had lacked “relevant credentials” and had not been to Guatemala since 1989. The IJ expressly adopted the original IJ and BIA decisions, and found Castro-Pu did not rebut the finding that conditions in Guatemala had improved nor that he was wanted by the authorities.
The 8th circuit disagreed with Castro-Pu’s contention that the remand by the district court in his case constituted a finding that he had suffered past persecution triggering a rebuttable presumption of future persecution, noting that the district court had simply remanded for the taking of evidence on this point. Because he had never raised a past persecution argument previously, the court deemed this argument waived. Further, the court found that the IJ and BIA decisions were supported by substantial evidence.
The court also found that it did not have jurisdiction over the refusal of DHS to repaper Castro-Pu’s case, finding this to be a discretionary decision not subject to judicial review.
Further, the court also held that Castro-Pu had not suffered any due
process wrongs where the IJ had refused to accept his expert witness because no
prejudice resulted from the IJ’s denial.
Finally, the court noted its previous holding that it had no jurisdiction to review the IJ’s
denial of a continuance in the case to obtain an expert witness. Grass v. Gonzales, 418 F.3d 876 (8th Cir. 2005) cert denied, 547 US 1079 (2006)
Powered by !JoomlaComment 3.12 Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved. |
|||||
| Next > |
|---|