Posted on June 14, 2007 by Tami Cowden

Post-hearing polygraphs and medical exams not newly discovered evidence

Today’s Ninth Circuit decision reminds us that the time to be creative in the gathering of evidence is before, not after, the hearing.

In Goel  v. Gonzales, the Ninth Circuit declined to overturn an administrative finding that an applicant for asylum lack credibility. The credibility finding was based upon inconsistencies between documentary evidence submitted by the applicant, and the applicant’s testimony.

The Court also upheld the denial of a request to reopen the evidence in the matter on the basis of newly discovered evidence. The “new” evidence consisted of the applicant’s polygraph examination, taken after his application had been denied, in which he was found to be truthful, and also, a medical report stating that the applicant’s scars could have been caused by the torture he described in support of his application. The Court found that such evidence was not newly discovered, as the applicant could have undergone the polygraph or medical examination prior to his hearing, so that such evidence could have been presented then.  The Court noted the applicant had not been in custody, and thus, had been free to gather such evidence as he desired to present.

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Posted on June 13, 2007 by Tami Cowden

Inference alone cannot support denial of asylum

 

In Singh v. Gonzales, the Ninth Circuit that mere inference is insufficient to support a denial of asylum. Singh is an Indian Sikh who claims he left India after being detained and beaten several times by Indian police.  He entered the U.S. through Canada, where he had been briefly detained.  While there, he was fingerprinted and sign some documents. 

Investigators attempted to obtain the Canadian file, but Canada would not release it without Singh’s permission.  Singh refused to release the file, claiming he feared his family in India would be killed if the person who had helped him get to Canada learned of it.

The Immigration judge denied the application for asylum because of Singh’s refusal to release his Canadian file.  The judge acknowledged the file could confirm the claim of persecution, but also noted the file could contain contradictory.  

The Court held that the evidence did not support the denial, where the IJ did not make any finding of lack of credibility in Singh’s testimony, but instead, relied only on the fact of Singh’s refusal to release his Canadian file.

 

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Posted on June 6, 2007 by Tami Cowden

Physical resistance not necessary to prove force for asylum purposes

In Tang v. Gonzales, the Ninth Circuit granted a petition for review of a denial of a grant of asylum. Tang had sought asylum from China due to the forced termination of his common law wife’s pregnancy.  Forced abortion results in a statutory entitlement of asylum for the woman and her partner. Tang presented evidence that his wife was required to submit to a gynecological examination by her employer, was  found to be pregnant, was physically taken by the employer to the medical facility, and suffered an abortion performed without anesthesia.   The Court rejected the immigration judge’s (IJ) findings that the abortion had not been forced Tang and his wife had not protested, physically resisted, or attempted to go into hiding. The Court relied upon the facts that the examination had been mandatory, the employer required the abortion, the employer physically took the wife to the facility, and the abortion was performed without anesthesia to find force was established.

 

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Posted on May 8, 2007 by Tami Cowden

Ninth Circuit has jurisdiction to review BIA determinations

In LoLong v. Gonzales, the Ninth Circuit overturned its previous decision of Molina-Camacho v. Ashcroft, and finds it does have jurisdiction to review decisions of the Board of Immigration Appeals. Until passage of the REAL ID Act in 2005, persons aggrieved by a BIA decision could seek habeas review, but that option has been removed, prompting the Court to revisit its decision in Molina-Camacho.

Having determined it has jurisdiction, the Court affirmed the denial of asylum here. There was no evidence that the Indonesian government was unable, or unwilling, to protect Chinese Christians there from religious militant groups. Accordingly, LoLong’s fears of persecution were not objectively reasonable.

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