Napitupulu v. Holder (unpub)
**Persecution; disfavored group analysis**
The record does not compel the conclusion that the beating Napitupulu suffered from his co-workers or the incidence in which a co-worker put cockroaches in his food, even considered cumulatively, constitute past persecution. However, the BIA did not apply the disfavored group analysis in analyzing his claim. Remanded.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-74120.pdf
Minasyan v. Holder (unpub)
**Persecution on account of religion**
Substantial evidence does not support the BIA’s finding that Minasyan failed to establish past persecution because his credible testimony established the police arrested and beat him three times, at least in part, on account of his religion.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-73839.pdf
Singh v. Holder (unpub)
**MTR; due process**
The BIA did not abuse its discretion in denying Singh’s motion to reopen because Singh failed to present material, previously unavailable evidence of changed circumstances in India, and he failed to establish prima facie eligibility to reopen to apply for relief under CAT. Singh’s contention that the BIA did not consider the relevant facts fails because he has not overcome the presumption that the BIA reviewed the record.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-73809.pdf
Lin v. Holder (unpub)
**Persecution, coercive population control**
Lin credibly testified she went into hiding for three months and escaped China to avoid a forced abortion on account of her status as a pregnant, single, underage woman. She gave birth shortly after arriving in this country. Her boyfriend was imprisoned for this offense, and when released, also escaped China. A reasonable fact finder would be compelled to conclude that Lin suffered past persecution on account of her resistance to China’s coercive population control program.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-73686.pdf
Oroh v. Holder (unpub)
**Withholding, disfavored group analysis**
The BIA declined to apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). Remanded.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-73453.pdf
Singh v. Holder (unpub)
**MTR; due process**
The BIA did not abuse its discretion in denying Singh’s motion to reopen as untimely and numerically barred because it was Singh’s second motion to reopen and he filed it over five years after the BIA’s final order of removal and Singh failed to establish changed circumstances in India to qualify for the regulatory exception to the time and number limitations. Singh’s contention that the BIA did not consider evidence fails because he has not overcome the presumption that the BIA reviewed the record.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-73428.pdf
Shi v. Holder (unpub)
**Credibility**
The agency concluded Shi was not credible because her asylum application stated that she had a trial pending against her, whereas she testified that there was no court trial pending against her. This conclusion is not supported by substantial evidence because Shi’s explanation established there was no inconsistency between her asylum application and testimony. In addition, the inconsistency in Shi’s testimony regarding the Zhong Gong headquarters is a minor inconsistency that does not go to the heart of her claim, and the omissions from her asylum declaration that police used verbal profanities and their “fingers” during her second arrest are omissions of detail. The agency’s finding that Shi gave varying accounts as to how she obtained her passport is not supported by the record.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-72711.pdf
Li v. Holder (unpub)
**Credibility**
Substantial evidence does not support the BIA’s adverse credibility determination because the perceived inconsistencies identified by the BIA regarding whether Li removed his clothing during detention, whether he was paid wages after June 2000, and whether he knew his port of arrival in the United States are minor and do not got to the heart of his claim. Furthermore, Li’s omission in his asylum application of the incident of being doused with water
in his cell, when his application and testimony included being beaten and imprisoned for three weeks, does not support the BIA’s determination that he was not credible. The BIA’s conclusion that Li could not remove his own clothes if he had been brutally beaten was based on impermissible speculation.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-72678.pdf
Juliana v. Holder (unpub)
**Cummulative impact of harms/disfavored group analysis**
In assessing Juliana’s asylum and withholding of removal claims, the agency only considered the incidents of harm she suffered on account of her Chinese ethnicity, and did not consider the harms she suffered on account of her Christianity. Because the agency has not considered the cumulative impact of these harms in assessing relief, remanded.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/29/07-71491.pdf
Matter of Graciela Quilantan (PUB)
**AOS/245(a), entry/procedural regularity**
For purposes of establishing eligibility for adjustment of status under INA section 245(a), a respondent seeking to show that she has been “admitted” to the United States pursuant to INA section 101(a)(13)(A) need only prove procedural regularity in her entry, which does not require her to be questioned by immigration authorities or be admitted in a particular status. Here, the Respondent physically presented herself for questioning, which constitutes an inspection, even though she volunteered no information and was not actually questioned by the immigration authorities. The 1960 amendment to INA section 245(a) replaced the requirement that the respondent be admitted as a bona fide nonimmigrant, i.e., that the respondent’s admission be substantively lawful, with a requirement that the respondent simply be inspected and admitted, i.e., that his or her admission be procedurally regular. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) (interpreting the term “admitted” to denote only procedural regularity, not compliance with substantive legal requirements) presented a factual scenario nearly identical to the one in this case. This interpretation remains valid–INA section 101(a)(13)(A), as enacted by the IIRIRA, does not abrogate the holding in Matter of Areguillin. A contrary interpretation would attribute to Congress an intent to reinstate an additional requirement of substantive legal compliance for adjustment of status under section 245(a), despite the absence of any evidence of such congressional intent. In addition, the waiver of inadmissibility under section 212(h) would potentially become available to those who had procured lawful permanent residence by fraud and misrepresentation.
Concurring, Lauri Steven Filppu:This construction of the terms “admission” and “admitted” to demand only a procedurally lawful entry gives limited meaning to the word “lawful,” but it is the interpretation most in keeping with the overall structure and sound operation of the statute as a whole.
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