Padash v. INS

Ninth Circuit Court of Appeals

No. 02-70439

Padash sought asylum and withholding of deportation to India or Iran.  He stated that his father disappeared while he and his mother were in India and they came to the United States shortly thereafter.  His mother then disappeared shortly after arriving in the US in 1992.  He stayed with relatives until he was charged with overstaying his temporary visa in 1995.  The IJ found Padash credible, but denied his application holding that he has not established past persecution or a well-founded fear of persecution if returned to India or Iran.

In 1984, a fourth preference family-based visa petition was filed by Padash’s uncle, who is a United States citizen.  Padash was included as a derivative beneficiary on this petition.  The INS approved the petition in 1984 and transferred it to the American Embassy in Bombay to await issuance of the permanent resident visa. 

While Padash’s appeal was pending with the BIA in 1996, the permanent resident visa became available.  He filed a motion to reopen claiming that he was eligible for adjustment of status.  He was under 21 years of age in 1996, thus making him eligible for immediate issuance of a visa. 

The BIA remanded the case, but the IJ did not hear the case for another year.  The IJ decided that Padash was no longer eligible for permanent residency because he had turned 21 before the IJ heard the case.  The BIA affirmed.  The Court affirmed the denial of his asylum application and withholding of deportation, holding that the Padash did fail to establish past persecution on the account of his religion.  

However, the Court reversed the BIA’s ruling on the adjustment of status claim.  The Court found that Padash met all three criteria of the Child Status Protection Act (CSPA), which was enacted following the IJ’s decision.  The Court ruled that “final determination” in the statute means final determination of the matter and not final determination by the agency involved.  Therefore, since the CSPA applies to Padash, the issue was remanded for determination by the BIA in consideration of the CSPA.

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Hakobyan v. Ashcroft

Ninth Circuit Court of Appeals

2004 US App. LEXIS 1235

The Appellant, Knarik Hakobyan, a native of Armenia, petitioned for review of the decision of the Board of Immigration Appeals denying her application for asylum, withholding of deportation, and relief under the Convention Against Torture.  The Ninth Circuit Court of Appeals granted her petition and remanded the case back for further proceedings.

The Appellant testified that although she was not a member of a political party in Armenia, she was singled out for persecution after she refused to kill one of her patients who was a member of an opposition party.  The Court found that her testimony was sufficient to establish a well-founded fear of persecution on the basis of an imputed political belief.

The Court also held that the IJ’s adverse credibility determination was not supported by evidence.  In so finding, the court stated that whether the IJ’s stated that minor inconsistencies in the Appellant’s testimony are not sufficient for an adverse credibility determination.  The Court further stated that pursuant to Shah v. INS, “Speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence.”