Immigration Success Stories USA

This case involved an Immigration Judge who found that the applicant for asylum was not credible because he failed to provide corroborative evidence of his account of the events. On appeal, the Board of Immigration Appeals disagreed, concluding that the Immigration Judge failed to ground her findings in the record and that the record supported quite an opposing finding.

An interesting case that concerns the issue of whether an individual against whom an immigration judge issued a negative credibility finding is precluded from making a successful argument of material change in country conditions, which would justify a second look at the existence of a well-founded fear of persecution on account of political activities that took place in the period after the immigration judge order as well on the fact of significantly increased persecution of the similarly situated individuals in the country of origin, in this case Belarus.

Represented the Petitioner only before the U.S. Court of Appeals for the Second Circuit. Petitioner appealed to the Court the BIA affirmance without opinion of the denial by an immigration judge of his request to continue removal proceedings. Petitioner needed more time to allow the US Department of Labor to adjudicate his previously filed labor certification application. The Court held that it did not constitute an abuse of discretion for an IJ to decline to grant multiple continuances in order to permit adjudication of a removable alien’s pending labor certification. The Court was particularly swayed by the fact that the IJ had previously granted the petitioner many continuances in the past as well as the need to move the case along. The court found no merits in the Petitioner’s argument that, he, the petitioner, did not control the Labor Department’s adjudication process and timeline and could not predict when the petition would be adjudicated. The Court held that labor certification was just a beginning in a long process of legalization so that the Court could not find fault with the IJ who refused to give the Petitioner more time. It is interesting that in a similar case some time later in 2010, the Second Circuit reversed its course and remanded the case when the IJ denied continuance. It seems as if the Court was struggling to set boundaries of when IJ’s refusal to continue removal hearing would interfere with the noncitizen’s rights to a fair hearing in removal proceedings or otherwise constitute arbitrary and capricious act on the part of an IJ.

Reversal of the BIA decision in part where the Board agreed with the IJ’s finding that the mistreatment the petitioner complained about did not constitute persecution. Sustaining the BIA decision in part where the Board reversed the original negative creditability finding by an Immigration Judge on the grounds that it did not rely on a specific and cogent reason needed to sustain negative credibility determination.

The case addressed the issue of “on account of” in the context of an application for asylum. The issue was whether the original analysis by the IJ complied with that spelled out by the Second Circuit Court of Appeals in the holding of Yeuging Zhang v. Gonzales, 426 F. 3d 540 (2nd Cir 2005) in making a determination of whether the harm of which the applicant for asylum complained, had been on account of one of the protected grounds under the Immigration and Nationality Act (The INA).