Patricia Camarillo Garcia; et al. v. Ashcroft

U.S. Court of Appeals for the Ninth District

2004 U.S. App. LEXIS 5651

Petitioners Patricia Camarillo Garcia and her husband Apolonio Garcia Munoz, natives of Mexico, had applied for cancellation of removal.  The Immigration Judge (IJ) denied the application and the Board of Immigration Appeals (BIA) affirmed the decision. 

The Petitioners appealed on three grounds: that the BIA’s summary affirmation of the IJ’s decision violated due process; that the Nicaraguan Adjustment and Central American Relief Act favors certain immigrants over others; and that the IJ erred in ruling that the Petitioners did not meet the continuous physical presence requirement.  The Ninth Circuit court denied the first two claims, but did find that the IJ erred when ruling that the Petitioner’s testimony was not credible.

The Petitioners claimed that they had both entered the U.S. in 1987 and have since never left. The IJ ruled that this testimony was not credible.  The Ninth Circuit disagreed and stated that a rejection of the testimony must be based on a clear and direct explanation of persuasive reasons for such rejection.  The IJ had also found that the Petitioners did not provide substantial evidence that they had good moral character even though they testified that they had never been arrested nor convicted of a crime.  The Ninth Circuit found that such testimony was sufficient for the substantial evidence standard.

Based on these findings, the Ninth Circuit vacated the IJ’s decision and remanded the case to the IJ to determine if the Petitioners were otherwise eligible for cancellation of removal.

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Liu v. Ashcroft

United States Court of Appeals for the Third Circuit

2004 U.S. App. LEXIS 12697

Petitioners Mr. Gui Cun Liu and Mrs. Xiu Ding Liu appealed the Board of Immigration Appeals (BIA) order denying their application for asylum and withholding of deportation.  The Lius alleged that the BIA violated their due process rights by affirming the opinion of the Immigration Judge (IJ) without opinion.   They alleged that the IJ improperly found their testimony not credible, rejected documentary evidence because it was not authenticated, and ignored favorable new evidence indicating increased likelihood of persecution in their home country.

The Lius, a married couple from China, claimed that the Chinese government twice forced Mrs. Liu to have an abortion.   They also claimed that they both faced persecution because of their Christian beliefs.  They presented documentary evidence to the IJ, consisting of two certificates, which indicated that the two abortions had occurred in China on specified dates.  The Lius explained that they had attempted to comply with the regulatory authentication procedure, but that Chinese officials refused to accommodate them.  The IJ dismissed their explanation and did not consider the certificates at all in his decision.  He noted several inconsistencies in their testimonies that led him to conclude the Lius were not credible.

Because the BIA did not issue an opinion, the U.S. Court of Appeals for the Third Circuit reviewed the reasoning and decision of the IJ.  Relying on the government’s own interpretation of its regulation, the Court found that the authentication procedure is not the exclusive method of authenticating records.  It recognized that asylum applicants are not always able to certify records while they are fleeing persecution.  The Court concluded that the IJ erred in rejecting the documents solely because they were not certified.  Moreover, the Court found that the inconsistencies cited by the IJ were “ill-founded, trivial, or nonexistent.” 

The Court vacated the BIA’s order and remanded to the agency to reconsider and reweigh the facts, particularly in light of the now admissible documentary evidence.  It left the BIA to determine the genuineness of the certificates.  In light of its disposition, the Court found it unnecessary to address the petitioners’ due process claim.  The Court indicated that the BIA, in its discretion, could consider on remand the Lius’ claim of new evidence pertaining to “changed circumstances” in China.