New 9th Circuit and BIA Immigration Cases

 **Credibility**

The IJ based his adverse credibility finding on the following inconsistencies: (1) Koussa alleged “in her affidavit that [her colleague] attempted to rape her” but she did not claim in her hearing testimony that she was raped; (2) Koussa’s “written statement says she was detained three days, but her asylum application says she was ‘almost detained’”; (3) Koussa testified that two persons from the security force came to her home on June 3, took her for questioning, and beat her, but written statement does not contain this allegation; (4) Koussa claimed the passport was obtained on June 3 but later her son stated he obtained both his and his mother’s passport on June 1; and (5) Koussa’s asylum application for asylum indicates that Koussa confronted her boss and was taken into custody on the 27th of May, but she testified that she was taken in on May 28th.   These are minor inconsistencies which do not go to the heart of Koussa’s claim.

However, two additional inconsistencies do go to the heart of Koussa’s claim: (1) Koussa claimed in her written statement that July went slowly with many arrests, but she testified that there were no further problems between the detention on June 3 and when she left for the United States; (2) Koussa’s passport bears an issue date of May 24, 1998, but Koussa testified that the passport-renewal application was filled out in response to the detention and mistreatment occurring from May 28 through June 1.  Nonetheless,  neither the IJ nor the government attorney questioned Kousa about these or any of the other inconsistencies. Because there are significant inconsistencies between Koussa’s testimony and her supporting documentation that had the IJ questioned Koussa about them might support an adverse-credibility determination, the case is remanded so that the BIA, through its immigration judge, may confront Koussa with the potential inconsistencies.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/03-70599.pdf

The Court lacks jurisdiction to review the BIA’s underlying order summarily affirming an IJ’s decision denying Rodriguez Nava’s application for cancellation of removal because the petition for review is not timely as to that
order.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/04-74508.pdf

**Credibility (adverse finding not supported by substantial evidence)

Adverse credibility finding not supported by substantial evidence where the IJ relied on an article in the CALIFORNIA LAWYER (which was not part of the record) to note a trend of “bogus” asylum applications by
Chinese applicants in the Los Angeles area.  It is uncertain whether or not this reference  “infected” the remainder of his reasoning about how Guan procured his passport and visa.  Another reason the IJ gave for the adverse credibility determination was also flawed – that Guan failed to seek asylum at the embassy in China, or upon arrival at the airport, or when extending his visa, or thereafter, and renewed his Chinese passport in the meantime- because the IJ failed to take Yu’s explanation into account.

Dissent (Bea): IJ made “one silly reference to inadmissable evidence.”  The IJ cited several facts, entirely unrelated to the California Lawyer article, to support his adverse credibility finding  and he askedGuan for explanations.  Guan’s answer: “I felt the free air.”

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/05-72803d.pdf

 IJ’s adverse credibility determination supported by substantial evidence where Yu admitted post-entry immigration fraud.  Since the IJ had this reason to question Yu’s credibility, she could require corroborating evidence.  Yu has not shown that the evidence he presented compelled a contrary conclusion.  In the absence of credible testimony, Yu failed to establish eligibility for asylum or withholding of removal.   His CAT claim also fails because it is based on the same incredible testimony and there is other evidence supporting a claim under CAT.  Regarding Yu’s due process claim, it was not exhausted before the BIA.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/05-73219.pdf

Ghimire failed to establish Maoists sought to recruit or extort money from him on account of a protected ground and therefore did not demonstrate past persecution or a well-founded fear of future persecution.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/05-73810.pdf

The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Khan’s asylum application.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/06-70565.pdf

Substantial evidence supports the agency’s denial of withholding of removal because Gutierrez failed to demonstrate it is more likely than not he would be persecuted if returned to El Salvador. Same for CAT claim.  Gutierrez’s other claims are foreclosed by Mejia v. Gonzales, 499 F.3d 991, 995-99 (9th Cir. 2007).

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/06-71337.pdf

Valdivia-Avila’s contention that the IJ improperly weighed the evidence in his case does not present a colorable constitutional claim or question of law over which this Court has jurisdiction.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/06-72240.pdf

The BIA did not abuse its discretion in denying petitioners’ motion to reopen because their failure to file the motion to reopen before the expiration of their voluntary departure period rendered them statutorily ineligible for the relief
they sought.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/06-72508.pdf

No jurisdiction to review the BIA’s discretionary determination that Lopez-Godinez failed to show exceptional and extremely unusual hardship to a qualifying relative.  Also,  the BIA did not make alternate findings of fact, but rather properly reviewed de novo the IJ’s hardshipdetermination.

http://www.ca9.uscourts.gov/datastore/memoranda/2009/09/29/06-74728.pdf