The 8th Cir upheld a denial of asylum to Palestinian Christians, finding that while evidence could have supported an asylum grant, it was not strong enough to compel reversal. Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir. 2006).
CIMT triggered 8 USC 1252(a)(2)(C), jurisdiction limited to questions of law and constitutional questions. CtApp could consider his claim that IJ failed to engage in "wholesale failure to consider the evidence" as an individualized analysis; but CtApp found that evidence didn't support that contention. Rest of claim is factual claim, not constitutional.
Individual who entered on F-1 visa was found not removable for false claim to USC - because DHS didn't offer enough proof - but he likewise couldn't prove that he *wasn't* inadmissible on that ground (by clear and convincing evidence), and thus not eligible for adjustment through USC wife. CtApp has already held that false statement on I-9 is a false claim. Rodriguez v. Mukasey, 519 F.3d 773, 777 (8th Cir. 2008). Because evidence was equivocal as to whether he represented himself as a national or citizen, CtApp upheld removal order. CtApp reviewed this finding even though BIA made alternate finding on discretion, because of the severe consequences of inadmissibility on that ground. Found jurisdiction over constitutional questions re VD, but denied relief.
Bye, concurring - disagrees with standard, but would find it met in any event (and finds CtApp bound by earlier decision):
Despite the clear regulatory language imposing a mere preponderance standard upon an alien who argues a ground for denial of relief should not apply to him, see 8 C.F.R. § 1240.8(d) ("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." ), we hold Paul Kipkemei Kirong had the higher burden of proving "clearly and beyond doubt" that he did not make a false claim of citizenship. I will not belabor the reasons why I disagree with this conclusion, because we are bound by Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), issued after this case was submitted to our panel. See Rodriguez, 519 F.3d at 776 ("Rodriguez bore the burden of proving clearly and beyond doubt that he was not inadmissible.").
The 8th Cir. denied this PoR of a withholding claim by 2 Hungarian citizens of the Romani ethnicity, finding that substantial evidence supported the BIA's finding that the prejudice and discrimination petitioners had faced did not rise to the level of past persecution and that, likewise, petitioners did not face a clear probability of future persecution.
Also, because petitioners did not apply for asylum w/in one year of arrival and failed to show extraordinary circumstances, the court lacked jurisdiction over this claim.
Mai Yang v. Mukasey, 8th Cir. 5/27/08 (unpublished)
BYE, Smith, Benton
In unpublished opinion, 8th Circuit affirmed BIA's denial of petitioner's motion to reopen to apply for asylum based on Hmong ethnicity and Christian faith. Petitioner did not present evidence that country conditions had changed since her removal hearing such that she now had, but did not previously have, a fear of persecution in Laos. Furthermore, the court lacked jurisdiction over petitioner's newly raised argument for reopening to apply for withholding/CAT based on extra-marital pregnancy, since she did not raise this argument below.
Eighth Circuit 
