The Board implicitly found that an Indonesian Catholic suffered past persecution, and never explicitly found that the Govt rebutted the attendant presumption of future persecution - but the 8th cir affirmed anyway. The CtApp found that the Board had cited to record evidence, offered by the Govt, showing that the danger had receded, and also found particularly relevant that family members had returned to Indonesia. The CtApp distinguished Matter of D-I-M-, 24 I. & N. Dec. 448, 451 (BIA 2008), finding that the IJ there didn't make specific references to the record.
[But wouldn't it have been more appropriate to remand to the Board per Ventura, to allow it to apply the intervening precedential decision? -CR]
An Adjustment applicant had represented himself to be a "citizen or national" on the I-9 form, stating that he believed that any lawfully-present alien was a "national." The IJ found the charge of misrepresentation not sustained, but also found that Petitioner couldn't establish "clearly and beyond doubt" his admissibility.
The Court of Appeals noted that "[b]ecause the I-9 form is phrased in the disjunctive, it is theoretically possible that an alien who has checked the 'citizen or national' box has not represented himself to be a citizen," but upheld IJ's decision declining to credit his testimony. CtApp noted that the Petitioner also stated that he was born in the state of Washington, and elsewhere represented himself to be a US citizen.
[Analysis: But is the "clearly and beyond doubt" language from 240(c)(2) the proper standard? It seems designed to apply to inadmissibility charges, not to inadmissibility determinations relating to relief - cf. 8 CFR 1240.8(d) ("Relief from removal. The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.") It would seem a strong argument that the regulatory "preponderance" standard should apply. See Judge Bye's concurrence in Kirong. - CR]
The 8th Cir upheld the adverse credibility determination regarding a Cameroonian asylum applicant. Che argued that the US Consulate's request for documents from Cameroon courts violated the regulatory confidentiality provisions - the CtApp found that it didn't necessarily reveal her asylum application, and even if it did, it would be "of no consequence" to the asylum claim.
Even if the use of Che’s name constitutes a disclosure, we are by no means certain that such a disclosure would reasonably infer Che is seeking asylum. See Averianova v. Mukasey, 509 F.3d 890, 899 (8th Cir. 2007). As we have previously noted, “many documents, such as . . . some court records, do not necessarily imply that a foreign national is seeking asylum.” Id. at 899-900 (quoting Lin v. U.S. Dept. of Justice, 459 F.3d 255, 270 (8th Cir. 2006)). Indeed, criminal records may be sought for a variety of reasons unrelated to a claim for asylum, including a: criminal investigation; background investigation of a witness; visa petition; marriage investigation; background investigation related to custody, guardianship, or adoption of a child; or employment application. However, assuming without deciding that the use of Che’s name was a disclosure that violated the regulation, the same would be of no consequence in the pending claim for asylum. See id. at 899-900.
The 8th cir held that "competing family business owners" is not an acceptable definition of a particular social group. Analyzing the case under Matter of A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007), the CtApp found no evidence that the purported group have "social visibility," or a heightened risk of harm; and that it is too "amorphous" to be accepted.
Eighth Circuit 
