Third Circuit Opinions

Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993): PSG, Iran, feminism. Alito on why feminist Iranian women forced to wear veil are not suffering religious or political persecution. Comment about “more than one” as definition of “group.” (Word Doc Summary) (PDF Summary)

Senathirajah v. INS, 157 F.3d 210 (3d Cir. 1998): Asylum, adverse credibility based on airport interviews, corroboration (pre-REAL ID Act). Sri Lankan citizen denied asylum because of discrepancies in his testimony. (Word Doc Summary) (PDF Summary)

Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001): An asylum applicant’s credible testimony may be sufficient to carry their burden of proof, but IJ may ask for corroborating evidence where it would be reasonable to have it, and must give the applicant the opportunity to explain why such corroboration is not available if they do not have it. (These expectations were not spelled out in the INA until the REAL ID Act of 2005.) (Word Doc Summary) (PDF Summary)

Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001): Firm resettlement question: should ideally be determined objectively by reliance on foreign law (burden goes to the party that is relying on this. Persecution must involve nexus to protected ground: no evidence here that the harm suffered was more than just individual acts of violence to recover money. (Word Doc Summary) (PDF Summary)

Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002), superseded by statute (REAL ID Act of 2005) as confirmed by Sunawar v. A.G., 989 F.3d 239 (3d Cir. February 25, 2021): Falun Gong messenger case: IJ did not have substantial reasons for adverse credibility determination. The superseded part says that adverse credibility factors must go to the “heart” of the case, not be peripheral (now under the REAL ID Act an IJ may point to any instance of lack of credibility to support an adverse credibility determination). (Word Doc Summary) (PDF Summary)

Amanfi v. Ashcroft, 328 F.3d 719, 729–30 (3d Cir. 2003): Membership in PSG can be just imputed and not actual.

Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003): PSG encompassing PAST status (escaped child soldier in Uganda). Terrible persecution MAY NOT HAVE A NEXUS to a protected ground. (Word Doc Summary) (PDF Summary)

Ponce-Leiva v. Ashcroft, 331 F.3d 369 (3d Cir. 2003): No ineffective assistance of counsel or violation of due process (right to counsel) when IJ proceeded with merits hearing and refused to grant continuance to respondent when his negligent attorney failed to appear. (Word Doc Summary) (PDF Summary)

Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003):  no judicial review of determinations made by DOJ regarding untimeliness of asylum application. (Pre-REAL ID Act of 2005, so there’s a little difference later for constitutional claims–but CAs still can’t review factual claims.)

Dai v. Ashcroft, 353 F.3d 228 (3d Cir. 2003): Due process for immigrant petitioners

Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004): burden of proof rests on gov’t if there’s been changed country conditions. (And please use up-to-date reports, not “stale” ones!). “Other serious harm” case (Summary)

Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004): must “merely show a realistic chance that the petitioner can at a later time establish that asylum should be granted.”

Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004): 8 C.F.R. Section 287.6 Corroboration. Asylum applicants cannot always reasonably be expected to produce authenticated documents signed by their persecutors. China, forced abortions, Christianity. (Word Doc Summary) (PDF Summary)

Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005): Standard for withholding of removal is “clear probability” of persecution.

Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005): Single incidents of harm usually do not rise to level of persecution, but may do so in the aggregate. Corroboration per Abdulai. Albanian citizen, political opinion. (Word Doc Summary) (PDF Summary)

Fiadjoe v. A.G., 411 F.3d 135, 159 (3d Cir. 2005): Asylum: adverse credibility determination, government control. Monstrous IJ. Ghana, Trokosi sect, sexual abuse and trauma. “It is established in this Circuit that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ is not sufficient, standing alone, to support a BIA finding that the petitioner was not credible.” (Word Doc Summary) (PDF Summary)

Li v. A.G., 400 F.3d 157 (3d Cir. 2005): Persecution can be established through economic deprivation if it is severe enough. Unfulfilled threats don’t rise to the level of persecution unless they are seriously menacing. China, population control. (Word Doc Summary) (PDF Summary)

Konan v. A.G., 432 F.3d 497 (2005): If IJ and BIA did not consider part of asylum applicant’s claim, case must be remanded so they can do so. While general unrest does not qualify as persecution for asylum, targeted attacks on government supporters do rise to the level of persecution. (Word Doc Summary) (PDF Summary)

Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005): Petition for tolling of deadline for removal in absentia denied because respondent failed to exercise due diligence (basic, not Lozada). (Word Doc Summary) (PDF Summary)

Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006): adverse credibility determination disregarded alternate ways to authenticate documents, was based on IJ’s speculation and conjecture, and was possibly biased by IJ’s animus toward Indonesian respondents. (3d Cir actually recommends that it be remanded to a different judge!) (Word Doc Summary) (PDF Summary)

U.S. v. Charleswell, 456 F.3d 347 (3d Cir. 2006): court had jurisdiction to review the original removal order where the indictment for legal reentry cited only the reinstatement. Noncitizen must be allowed to bring a collateral attack on the original order. “Removal” does not nec. mean physical removal

Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006): “the requirement that the BIA’s decision be supported by substantial evidence is not an empty one.” BIA can’t just ignore or misconstrue evidence in respondent’s favor. Bystander came to aid of human rights workers and was subsequently persecuted for his imputed political association with their movement. (Word Doc Summary) (PDF Summary)

Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006): BIA has duty to consider evidence of changed country conditions that materially bears on petitioner’s claim.

Toure v. A.G., 443 F.3d 310 (3d Cir. 2006): Cote d’Ivoire, political asylum. Lots of misses by IJ. Determining persecution for asylum claim; following Abdulai Analysis for corroborating evidence; explaining in detail reasons for adverse credibility determination. REAL ID Act updates. Similarly situated family members in home country had no new incidents of persecution because they were in hiding. (Word Doc Summary) (PDF Summary)

Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007): Gov’t unable or unwilling to control persecutors.

Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290 (3d Cir. 2007): “[D]eference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole.”

Shardar v. Att’y Gen., 503 F.3d 308 (3d Cir. 2007): MTR, changed country conditions. BIA deemed the changed conditions generalized, but respondent had offered very particularized evidence. Convincing prima facie asylum case after all. Bangladesh, political parties. (Word Doc Summary) (PDF Summary)

Shehu v. A.G., 482 F.3d 652 (3d Cir. 2007): Visa Waiver Program participant applies for asylum after overstay. Persecution by criminals was based on a desire for money, not a protected ground. Court has jurisdiction to review this even though there’s not technically a removal proceeding (& final order to review) in a VWP case. (Word Doc Summary) (PDF Summary)

Chukwu v. A.G., 484 F.3d 185 (3d Cir. 2007): Post-REAL ID, but asylum application filed in 2002, so standard for credibility is the old one: getting to the heart of the claim. Review of Abdulai test for corroboration. IJ missed a lot in this political asylum case from Nigeria. (Word Doc Summary) (PDF Summary)

Jian Zhau Zheng v. A.G., 549 F.3d 260, 268 (3d Cir. 2008): the BIA has a heightened duty “to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim.” BIA failed to address record or evidence presented.

Gomez-Zuluaga v. A.G., 527 F.3d 330 (3d Cir. 2008): Colombia, FARC: PSG of “women who escaped from FARC”–past experience is immutable! Asylum and substantial evidence of well-founded fear of future persecution. REAL ID Act: establish one central motivation for persecution as a protected ground. (Word Doc Summary) (PDF Summary)

Lin v. Attorney General, 543 F.3d 114 (3d Cir. 2008): Adverse credibility determination because of conflicting written and oral testimony. (Word Doc Summary) (PDF Summary)

Sheriff v. A.G., 587 F.3d 584, 596 (3d Cir. 2009): The possibility of being murdered may qualify as “other serious harm” (Summary)

Sandie v. A.G., 562 F.3d 246 (3d Cir. 2009): Corroboration per Abdulai analysis; no automatic stay of voluntary departure period just by obtaining a stay of removal. (Word Doc Summary) (PDF Summary)

Jean-Louis v. A.G., 582 F.3d 462 (3d Cir. 2009): Cancellation of removal, CIMT & categorical approach: PA Simple Assault statute. Scienter requirement and PA’s gap-filler statute for mens rea. Found not to be a CIMT, because the “grading” section of the statute doesn’t trigger the gap-filler. (Word Doc Summary) (PDF Summary)

Ndayshimiye v. A.G., 557 F.3d 124 (3d Cir. 2009): [corresponds to and mostly affirms BIA’s In re J-B-N- & S-M- , 24 I&N Dec. 2008 (BIA 2007) (excluding “subordinate” in list describing what motivating factor should not be)]  REAL ID Act: asylum applicant must only demonstrate that persecution was at least in part motivated by the protected ground. But that motivation must not be incidental, tangential, or superficial to other grounds. (Word Doc Summary) (PDF Summary)

Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010): CAT relief and when to uphold BIA’s reversal of IJ’s decision

Fei Mei Cheng v. A.G., 623 F.3d 175 (3d Cir. 2010): Chinese population control case based on IIRIRA’s updated definition of refugee (“other resistance” to pop control measures). Persecution can be established cumulatively. Nexus can be established through the trajectory of the abuse in the aggregate. (Word Doc Summary) (PDF Summary)

 Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010): To establish a prima facie claim, the movant “must produce objective evidence that, when considered together with the evidence of record, shows a reasonable likelihood that he is entitled to [asylum] relief.”

Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir. 2010): BIA must not ignore or misconstrue evidence. Persecutor may attribute political opinion to someone and act on that belief. Working for the government may be the functional equivalent of possessing a political opinion opposite to anti-government forces. (Word Doc Summary) (PDF Summary)

Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010): CAT claim: “In the case of the likelihood of torture, there are two distinct parts to the mixed question: (1) what is likely to happen to the petitioner if removed; and (2) does what is likely to happen amount to the legal definition of torture? The two parts should be examined separately.” (at 271) (Word Doc Summary) (PDF Summary)

Garcia v. Att’y General, 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012): Guatemalan witness who testified in court against a gang was member of PSG because persecuted for this action by gang members later. (Word Doc Summary) (PDF Summary)

Pllumi v. Attorney General, 642 F.3d 155, 162-63 (3d Cir. 2011): harm resulting from unavailability of medical care could qualify as “other serious harm” (Summary)

Prestol Espinal v. A.G., 653 F.3d 213 (3d Cir. 2011): MTR, post-departure bar. Statute does not bar respondents from making motions to reopen even if they have left the country. (Statute has more authority than regulations, which includes the bar.) Dominican Republic. History of departure bar in the INA. (Word Doc Summary) (PDF Summary)

Khan v. A.G., 691 F.3d 488 (3d Cir. 2012): Untimely MTR. Changed country conditions must be material and go to gaps in the application, not generalized. PSG, persecution arguments denied. Pakistanis. (Word Doc Summary) (PDF Summary)

Galarza v. Szalczyk [745 F.3d 634 (3rd Cir. 2013)]: U.S. citizen appealing being held without probable cause by county LEA because they thought they were under a mandatory detainer from ICE. (Summary)

Fei Yan Zhu v. A.G., 744 F.3d 268 (3d Cir. 2014): BIA could not ignore evidence favorable to petitioner, and must explain its consideration of the evidence. Authentication of gov’t documents; China’s population control policies. (Word Doc Summary) (PDF Summary)

Gonzalez-Posadas v. A.G., 781 F.3d 677 (3d Cir. 2015): Isolated instance of criminal assault does not constitute persecution. No nexus between gang threats and PSG (homosexual men). (Word Doc Summary) (PDF Summary)

Bamaca-Cifuentes v. A.G., 870 F.3d 108 (3d Cir. 2017): time bar on MTRs applies for applications for withholding under CAT as well: waiver only if new evidence is presented of changed country conditions that is material and could not be accessed previously. (Word Doc Summary) (PDF Summary) (date is incorrect on top of sheet)

Sang Goo Park v. A.G., 846 F.3d 645 (3d Cir. 2017): BIA’s denial of MTR sua sponte unreviewable by Circuit Court unless BIA has limited its essentially boundless discretion on this decision through rule or practice. Sua sponte reopening requires exceptional circumstances, which BIA did not find here. S. Korea, waiver of inadmissibility relief. (Word Doc Summary) (PDF Summary)

 Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017): two-part test for identifying torture and gov’t acquiescence:

    • What is likely to happen if petitioner is removed?
      • Does what is likely to happen constitute torture?
    • How are public officials likely to respond to the harm the petitioner describes?

Ricketts v. Attorney General (2018): Jurisdiction for denied nationality claim. (Summary)

Wang v. Attorney General (2018): False report re. transaction not nec. aggravated felony. (Summary)

Guerrero-Sanchez v. Warden York County Prison (2018): … (Summary here.)

Saravia v. A.G., 905 F.3d 729 (3d Cir. 2018): IJ must give respondent notice as to what corroborating evidence will be expected, as well as an opportunity to explain why it’s not available if the respondent cannot obtain it. (This is contra BIA’s 2015 conclusion in Matter of L-A-C-.) (Word Doc Summary) (PDF Summary)

S.E.R.L. v. A.G., 894 F.3d 535 (3d Cir. 2018): PSG “family members of Honduran women unable to leave domestic relationship” found too diffuse and not socially distinct. Opinion affirms 3d Circuit’s deference to BIA’s W-G-R- M-E-V-G-(Word Doc Summary) (PDF Summary)

City of Philadelphia v. Attorney General (2019): Sanctuary cities case: AG does not have the authority to impose special conditions (related to immigration detention) on federal grant for law enforcement. (Summary here)

Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019): Examine ALL of the evidence when making CAT decisions. (Word Doc Summary) (PDF Summary)

Tilija v. Att’y Gen., 930 F.3d 165, 169-70, 172 (3d Cir. 2019): prima facie political asylum claim for being attacked and threatened for political support. (Word Doc Summary) (PDF Summary)

Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019): Particularity & determining boundaries of the PSG.

Liem v. A.G., 921 F.3d 388 (3d Cir. 2019): BIA must consider and address the majority of a petitioner’s new evidence of changed country conditions. (Failed to do so in Indonesian citizen’s petition in MTR.) (Word Doc Summary) (PDF Summary)

Nkomo v. A.G., 930 F.3d 129 (3d Cir. 2019): A defective NTA does not affect jurisdiction on the part of the Immigration Judge. (Word Doc Summary) (PDF Summary)

Jean Louis v. A.G., 914 F.3d 189 (3d Cir. 2019): Relying on the bad advice of a non-lawyer does not count as “exceptional circumstances” that would justify reopening an asylum case. (Word Doc Summary) (PDF Summary)

Guadalupe v. A.G., No. 19-2239 (3d Cir. Feb. 26 2020): An NTA that is defective under Pereira CANNOT be cured by a subsequent hearing notice, and therefore does not trigger the stop-time rule.  (Word Doc Summary) (PDF Summary)

Herrera-Reyes v. A.G., No. 19-2255 (3d Cir. Feb. 28 2020): Verbal threats constitute past persecution if sufficiently concrete and menacing; record must be considered in the aggregate. Harm to close associates and family members should be considered as supporting a claim to past persecution. (Word Doc Summary) (PDF Summary)

**Sumalia v. Attorney General, No. 18-1342 (3d Cir. March 31, 2020): Threats are sufficient to establish persecution; BIA & IJ ignored case law and record re. reasonable fear; medical records and serious physical injury are not necessary to establish persecution; intimate details of sexual relationships are not necessary to establish sexual orientation. (Word Doc Summary) (PDF Summary)

Doe v. A.G., 956 F.3d 135 (3d Cir. 2020): LGBTQ case from Ghana. Violent mob led by respondent’s father threatened him with death. Discussion of threats rising to persecution; lack of police corroboration; well-founded fear of future persecution. (Word Doc Summary) (PDF Summary)

Sunuwar v. A.G., 989 F.3d 239 (3d Cir. 2021): DV case with significant inconsistencies. Adverse credibility determination now may obtain even if the inconsistencies do not go to the “heart” of the matter (per Gao v. A.G., above at 2002; overruled by REAL ID Act in 2005). Good primer on particularly serious crime, too. (Word Doc Summary) (PDF Summary)

Guzman Orellanas v. Attorney General, No. 19-1793 (3d Cir. April 17, 2020): “Persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group.” (at 3) (Word Doc Summary) (PDF Summary)

Nkomo v. A.G., 986 F.3d 268 (3d Cir. 2021): MTR, Equitable Tolling, Administrative Exhaustion. Exhaustion requirements are lenient in 3d Cir., and respondent met them even though she did not precisely state the issue of equitable tolling in her brief. 90-day deadline should have been tolled because of new evidence (approved I-130) referenced on appeal. (Word Doc Summary) (PDF Summary)

Sanchez v. A.G., 997 F.3d 113 (3d Cir. 2021): IJs and BIA have the general authority to administratively close cases under the regulations. (Word Doc Summary) (PDF Summary)

Aristy-Rosa v. A.G., 994 F.3d 112 (3d Cir. 2021): A gubernatorial pardon is insufficient to remove the deportation consequences of a controlled substance conviction. Pardon waiver provision8 U.S.C. § 1227(a)(2)(A)(vi) / INA § 212(a)(2)(A)(i)(II). (Word Doc Summary) (PDF Summary)

K.A. v. A.G., 997 F.3d 99 (3d Cir. 2021): Using categorical approach for determining whether a theft offense in NJ constitutes an aggravated felony / particularly serious crime so that a respondent is ineligible for asylum / WH. MTR, but only marginally relevant. Nigeria. (Word Doc Summary) (PDF Summary)

Darby v. A.G., ___ F.3d ___ (3d Cir. June 17, 2021) (2021 WL 2460986): New country conditions have to be material–that is, go to deficiencies in an application that caused its rejection by the IJ previously. Jamaica, phone scam. (Word Doc Summary) (PDF Summary)