 NEWS FROM THE COURTS
Jobe v. INS, First Circuit
In this case, the court ruled that the petitioner was not entitled to reopen his deportation proceedings.
Sulay Jobe, a native of Gambia, entered the US as a business visitor in 1994. He overstayed his visa, and in 1996 was placed in deportation proceedings. He failed to appear for the deportation hearing and was deported in absentia. He tried to file a motion to reopen the proceedings, but because it was filed more than 180 days after the order, the Immigration Judge dismissed it as not timely filed.
Jobe appealed to the Board of Immigration Appeals, arguing that ineffective assistance of counsel caused him both to miss the deportation hearing and to not file the motion to reopen within the 180-day period. The Board dismissed the appeal, finding that Jobe did not establish the exceptional circumstances necessary for an exception to the 180-day rule. Jobe then appealed to the First Circuit, which granted his appeal, finding that because he was unaware of the deportation order, the 180-day rule should be tolled for that period. However, the INS requested a rehearing by the entire Circuit, which resulted in the current decision.
On rehearing, the INS argued that the 180-day rule was a jurisdictional element and therefore not subject to tolling. The court, while finding this argument persuasive, declined to rule on it, instead finding that Jobe had failed to present evidence that the application of the 180-day rule violated his due process rights. There was evidence in the record that Jobe knew that some action was being taken on his case, but that he failed to contact an attorney for more than six months. In the court’s opinion, his failure to diligently protect his rights meant that his ineffective assistance of counsel claim was without merit.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2001,0201-Jobe.shtm
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Abdulai v. Ashcroft, Third Circuit
In this case, the court remanded with instructions that the Board of Immigration Appeals clarify its ruling.
Olufemi Abdulai, a citizen of Nigeria, arrived at the John F. Kennedy airport in New York City in 1998. He did not have a valid visa, and was therefore placed in removal proceedings. He conceded removability, but stated his intention to seek asylum in the US. At the asylum hearing, Abdulai testified in his own behalf, and presented documentary evidence showing that he had been persecuted for his political beliefs. The Immigration Judge denied the asylum application, finding that Abdulai did not present sufficient evidence to support his application. He appealed to the Board of Immigration Appeals, which remanded to the Immigration Judge. On the rehearing, a witness testified that conditions in Nigeria had deteriorated since Abdulai’s flight. However, the Immigration Judge again denied the application, finding that he did not meet his burden of proof. The Board affirmed this decision, and Abdulai appealed to the Third Circuit.
After a democratic election in 1993, a Nigerian general seized power. Following this, many student groups devoted to the restoration of democracy were formed, and Abdulai joined one, the Campaign for Democracy (CD). At a CD meeting in 1995, Abdulai, along with several others, was arrested and imprisoned, never charged with an offense, and released after about two weeks. This caused Abdulai to become more active in the CD, and a few months later he was again arrested. He was told he was being held for sedition, and was not released until his family paid a bribe. At the urging of his family, he abandoned his political activities, but in 1996 was again arrested on two separate occasions, and was questioned by the police numerous times. During his last stay in prison, he became ill, and following his release, he fled to Benin. In 1998, after hearing from several friends that CD members were still being arrested, Abdulai decided to flee to the US.
No other witness corroborated Abdulai’s story, but he did present much documentary evidence to support his asylum application, including a letter from a democracy activist in Nigeria who stated that his story was very credible.
Before the Third Circuit, Abdulai argued that the Board had violated his right to due process by not making a decision that was based on the evidence he presented. In the administrative context, due process requires three things: First, that the decision is based on the factual record, second that the applicant be allowed to make arguments on their own behalf, and third, that the final determination be “individualized.” This means that an agency cannot simply rubberstamp a decision, but must examine the facts and arguments presented.
The court found that although there were considerable problems with the Board’s handling of Abdulai’s appeal, the record did demonstrate that it had conducted an individualized review of his case.
Abdulai also argued that the Board had applied to strict a standard of evidence when it found that he failed to meet his burden of proof. Under established Board precedent, an asylum applicant does not need to present corroborating evidence unless to do so would be reasonable, but that when it is reasonable to do so, the failure to present the evidence is a failure to meet the burden of proof, even if the applicant is otherwise credible.
The court found that while the Board’s rules were not invalid, they were not properly applied in this case. Nowhere in it’s decision did the Board say which evidence Abdulai should have corroborated. This left the Third Circuit in a position where it could not know whether his failure to corroborate was reasonable. Therefore, it remanded the case to the Board for further proceedings.
The opinion is available online at http://laws.findlaw.com/3rd/003111.html.
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