Miah v. Ashcroft

In this case from the Third Circuit, a national of Bangladesh, Bismillah Miah (“Miah”), petitioned for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”). The Board had ordered Miah removed to his home country.

The Immigration Judge had denied Miah’s petition for political asylum and withholding of removal on the basis that Miah’s testimony lacked credibility and corroboration to sustain the burden of proof. The BIA rejected the Immigration Judge’s adverse credibility determination, but still dismissed the appeal on the grounds that Miah had failed to corroborate the events on which he based his claim. The Third Circuit held that the BIA failed to properly analyze the issue of corroboration in accordance with previous rulings.

The Third Circuit Court held that while the BIA emphasized that Miah failed to produce documentary evidence corroborating the specifics of his claim, the BIA did not explain which “particular aspects of his testimony it would have been reasonable to expect him to have corroborated.” Similarly, the BIA merely reiterated the Immigration Judge’s findings regarding Miah’s attempts to corroborate his story. Thus, the BIA’s failure to provide it’s own rationale precluded meaningful review.

The court held that while it might be appropriate for the BIA to adopt an Immigration Judge’s findings regarding corroboration in certain cases, the BIA erred by doing so in this case. Here, the Immigration Judge found Miah not to be credible because “his testimony regarding the alleged incidents lacked sufficient detail.”

In this case, testimony found to be incredible by the IJ was transformed into credible testimony by the BIA. However, the BIA did not explain how the transformation affects the degree of corroboration required for Miah to sustain the burden of proof. In other words, once Miah was deemed to be a credible asylum applicant, which of the events on which he bases his claims must then be corroborated and to what degree?

The Third Circuit held that because the BIA’s failure of explanation made it impossible to review its rationale, the matter has to be remanded to the BIA so that it can refer the case to the Immigration Judge with instructions to assume credibility and conduct a new corroboration analysis.

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Clark v. Ashcroft

In this case from the United States District Court for the Eastern District of Pennsylvania, Dennis Clark petitioned the court for Writ of Habeas Corpus. The Writ was granted.

Dennis Clark (“Clark”), an alien in detention, sought a Writ of Habeas Corpus when he claimed that his continued detention by the Bureau of Immigration and Customs Enforcement (“BICE”) violates his Fifth Amendment due process rights. The Government responded that the petition must be denied because Clark’s extended detention was entirely attributable to his failure to provide accurate personal information.

Initial deportation against Clark had began in April 1991 when he was serving time for a theft conviction. At that time Clark swore that he was born in Kingston, Jamaica, and had entered the U.S. in 1979. However, he was not deported and in 1995 he was released, pending final removal. Between 1996 and 1998 there were numerous arrests for thefts and receiving stolen property, but no convictions. However, Clark had pleaded guilty to burglary and trespass in 1998; he was convicted twice in 1990 for theft and receipt of stolen property; and he pleaded guilty to criminal attempt and theft in 1990. In 1998, Clark again entered INS custody after his arrest by the INS officials. He had remained in custody since that date. But in June 2001 he claimed that he was a citizen of the United Kingdom, and communicated with the British Consulate General in Houston, TX, and applied for a U.K. passport.

Following a custody status review in January of 2003, the INS refused to release Clark for failure to assist in obtaining a travel document. The report stated that Clark had failed to provide any documentation regarding his identity or citizenship to assist the INS in effecting his departure from the United States.

The court found that the INS had over two years to obtain travel documents from the United Kingdom in order to effectuate Clark’s removal from the United States. Communications with the British consulate commenced on May 22, 2002. The government had not shown any evidence of how Clark had not cooperated since that time.

Using the dates set forth, Clark’s post-order removal period lasted a maximum of one year, 11 months (June 6, 2001, to the date this court stayed Clark’s removal, May 30, 2003). And it lasted a minimum of just over one year (May 22, 2002, to May 30, 2002). Either way, the 90 day statutory period for removal had ended. The court, therefore, found that the 90 day statutory removal period had expired and that Clark’s actions were insufficient to toll that period.

The court held that the longer an alien is detained beyond six months, the less foreseeable his removal becomes. The court concluded that the INS had detained Clark beyond a reasonable removal period for at least three months, or at most one year, two months. Either period would have been sufficient to conclude that Clark’s removal would no longer be reasonably foreseeable. Continued detention of Clark would have been in contravention to the laws of the United States. So, although the BICE and Clark may effect his removal some day, the court concluded that his removal was not reasonably foreseeable. Therefore, Clark’s petition for a writ of habeas corpus was granted, and BICE was ordered to release Clark under supervision, pending his final removal from the United States.