This case considered prolonged detention pending a CtApp appeal, where a stay of removal was entered. The CtApp found that it couldn't be mandatory, but that continued detention was in fact authorized - and CtApp couldn't review the amt of IJ bond.
(a) that prolonged detention is not authorized by 1231(a) or 1226(c), so that 1226(a) is the appropriate statute for analysis;
(b) that where removal is possible to the person's country (in this case, Mexico), that prolonged detention is not unauthorized by the statute, as in Zadvydas or Ly v. Hansen (distinguishing Nadarajah, which involved a possible AG certification, as unique)
(c) declined to address whether Govt has burden of proof as to flight risk and dangerousness, because here the IJ set a bond (implicitly finding him not to be a flight risk);
(d) found no jurisdiction over the claim that the bond amt was excessive - jurisdiction stripped by 1226(e).
The 9th Cir. found that the Real ID Act overturned its prior asylum case law, requiring that a persecutor be motivated "at least in part" by one of the five protected grounds. The new standard is higher:
A “central” reason is a reason of primary importance to the persecutors, one that is essential to their decision to act. See supra at 9243. In other words, a motive is a “central reason” if the persecutor would not have harmed the applicant if such motive did not exist. As noted above, persecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was “at least one central reason” for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.
The Court found that the utterance of a racial slur, standing alone, was not enough to show that her race was a cause of the attempted rape.
The 9th Cir agreed with the 2d and 3d Cirs that the Real ID Act implicitly contained a 30 day period in which previously-barred individuals could file a new Petition for Review. Accord Kolkevich v. Att’y Gen., 501 F.3d 323, 335 (3d Cir. 2007), Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008). But because PfR was filed after 30 days, that couldn't help him. He also asked the CtApp to "reinstate" a dismissed Petition for Review, but CtApp refused to do so (because he waited more than 2 months to ask), and also refused to treat request to reinstate PfR as a PfR itself (and it'd have been too late, anyway). CtApp refused to reinstate it nunc pro tunc, because the earlier decision "was not dismissed through any clerical mistake or error of law, but rather was properly dismissed under the law as it existed at the time".
The 9th Cir reversed an IJ's adverse credibility finding, after quoting the IJ stating that he didn't care if the 9th circuit reversed him (9th cir pointed out that it affirms 80% of adverse credibility determinations). The Court found that remand under Ventura was required, because BIA hadn't considered IJ's alternate ground for denying relief (that even if credible, no past persecution). According to SF Chronicle, IJ was Harry Gastley, of Las Vegas, NV.
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]
Ninth Circuit 
