NIJC - 9th Cir: student status lost when not in class, one-year deadline case -O'Scannlain disnt re Ramadan

9th Cir: student status lost when not in class, one-year deadline case -O'Scannlain disnt re Ramadan

Thursday, 17 July 2008

Dhital v. Mukasey (9th Cir. 7/17/08)

PER CURIAM Hawkins Selna (dct) - (O'Scannlain concurring)

The applicant previously applied for (and received!) asylum under a different name. BIA denied based on previous application being frivolous, and 2nd app not filed within "reasonable time" of expiration of student status (did not count fraudulent asylee status). Remand would have been required for frivolousness finding, because of lack of notice - but Court could affirm based on one-year rule. CtApp found jurisdiction over one-year rule ruling based on Ramadan, Husyev.

CtApp agreed with BIA's interpretation of regulations, that student lost status when they dropped out of school. Also denied withholding because CtApp found that lie + testimony supported adverse credibility finding, and denied CAT because country conditions docs didn't show that applicant would be more at risk of torture than anyone else in Nepal.

O'Scannlain, concurring - notes his continued disagreement with Ramadan, citing other CtApps that disagree with it - Viracacha v. Mukasey, 518 F.3d 511, 516 (7th Cir. 2008); Zhu v. Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007); Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330-32 (2d Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006); Ignatova v. Gonzales, 430 F.3d 1209, 1213-1214 (8th Cir. 2005); Chacon- Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam).

[Analysis - but isn't this point misplaced here? The CtApp upheld the BIA's decision based solely on a legal point, i.e., that a student falls out of status when they fail to register, not when NTA is issued - wouldn't that be reviewable even under other CtApp's approaches? See, e.g., Posner in Huang v. Mukasey -CR]

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