Neli v. Ashcroft

6th Circuit Court of Appeals

Case No. 02-3749

2003 US App. LEXIS 26602

The Petitioners escaped Albania following repeated beatings and torturing of the husband.  The couple determined escape was imperative after learning that the husband’s name was on the Communist government’s political death list. 

At the hearing, a former coworker of the Petitioner verified the stories of the beatings and stated that although the government had changed, the same people were still in power.  The immigration judge denied the Petitioners’ application for asylum and for withholding of removal, but granted their request for voluntary departure.  The IJ placed considerable weight on the Country Report and Asylum Report, which indicated that individuals were no longer persecuted on political grounds.  The BIA affirmed without opinion.

The Sixth Circuit Court of Appeals found support for the IJ’s determination that the Petitioner’s suffered past persecution and no well-founded fear of future prosecution.  However, the Court agreed with the Petitioners that the IJ abused his discretion by not considering whether the long-term persecution of the Petitioner and his family was sufficiently atrocious to merit a discretionary grant of asylum under In re Chen, 20 I&N Dec. at 18. 

Since the IJ did not address the issue of humanitarian asylum in his opinion, the Court remanded for a decision as to whether the persecution that the Petitioners suffered was sufficient to merit a grant of asylum for humanitarian reasons.  The Court instructed the IJ to offer a clear explanation and determination of whether the Petitioners’ past persecution warrants a discretionary grant of asylum.

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Zhang v. Ashcroft

9th Circuit Court of Appeals

2004 US App. LEXIS 719

Xiaodong Zhang, a native and citizen of China, petitioned for review of the Board of Immigration Appeals’ holding denying him asylum, withholding of removal, and relief under the Convention Against Torture. 

The Ninth Circuit Court of Appeals granted the petition and held that the BIA’s and IJ’s holdings that the Petitioner was not credible were not supported by substantial evidence.  Further, no determination was made as to whether the Petitioner’s testimony, if credible, was sufficient to establish eligibility for relief.

As a result, the Ninth Circuit granted the petition and remanded the case back to the BIA.

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Cardenas-Morfin v. Ashcroft

9th Circuit Court of Appeals

2004 US App. LEXIS 807

Sergio Cardenas-Morfin petitioned for review of the Board of Immigration Appeals and the Immigration Judge’s denial of his application for cancellation of removal and voluntary departure. 

The Petitioner argues on appeal that the Immigration Judge violated his constitutional right to due process in denying him a full and fair hearing. 

The Ninth Circuit Court of Appeals found that the Immigration Judge prevented the Petitioner from testifying in support of his application for cancellation of removal.  This denial of testifying denied him from presenting crucial evidence to support his application.  The court also found that the IJ limited the Petitioner’s testimony in support of his application for voluntary departure.  The Immigration Judge refused to allow testimony in support of the Petitioner’s good moral character after the INS introduced evidence that the Petitioner intentionally made false statements to the IRS on old tax returns. 

The Ninth Circuit found that the Immigration Judge’s refusal to allow the Petitioner a chance to rebut the INS’s contentions likely did affect the outcome of the proceedings.  As a result, the court granted the petition and remanded the case for future proceedings.