Ahmad v. INS

Ninth Circuit Court of Appeals

2004 U.S. App. LEXIS 2228

The Petitioner, a native and citizen of Pakistan and of Indian descent, appealed the BIA’s denial of his motion to reopen in consideration of his Convention Against Torture (CAT) claim.  In the decision, the BIA took notice of a regime change in Pakistan following the Petitioner’s filing of a motion to reopen.  This change affected the BIA’s determination of the probability of future torture. 

The Court ruled that before taking notice of a change of government and the possible effects of the change on the Petitioner’s claim, the BIA must give the parties notice and opportunity to respond or show cause why administrative notice should not be taken.

The Court held that the BIA violated the Petitioner’s Fifth Amendment Due Process rights by failing to give the Petitioner notice, before the decision was issued, of the BIA’s reliance on the regime change.  Without this knowledge, the Petitioner was unable to show that the regime change did not preclude the possibility of torture.

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Zagaryan v. Ashcroft

Ninth Circuit Court of Appeals

2004 U.S. App. LEXIS 2595

Edmond Avanes Zagaryan, a citizen of Armenia, petitioned for review of the denial of his application for asylum, withholding of removal, and protection under Convention Against Torture (CAT).

The Ninth Circuit found that the evidence did not support the IJ’s determination that the Appellant’s account of his subjection to a pattern of beatings, death threats, and conscription, was not credible.  The IJ erred in determining that that the Appellant failed to show that the government was unable or unwilling to protect him with the Appellant provided evidence that compels a finding that the beatings, threats, and arrangements for him to be conscripted were committed by government forces.  The court also found that the omissions and inconsistencies cited by the IJ were minor and did not go to heart of alien's claim.

The Appellant’s petition was granted and remanded for further proceedings.