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US Court of Appeals for the 5th Circuit Recommends BIA to Review Removal Against Pakistani Immigrant with Asylum Status

coaThe US Court of Appeals for the Fifth Circuit recently remanded the Board of Immigration Appeals (BIA) to review its affirmation of a removal order against one Nadeem Ali, a Pakistani immigrant who entered the United States in 1991 without a visa. The CA recommended a review of the removal order after it found that the BIA failed to consider some provisions of the Immigration Nationality Act (“INA”), 8 U.S.C. § 1151, et seq., DHS regulations, and previous BIA decisions.

Case Background

After Ali entered the United States as an undocumented immigrant in 1991, the Department of Homeland Security initiated exclusion proceedings against the Pakistan native, who would be compelled to seek asylum on the grounds of political persecution. In an asylum hearing presided Immigration Judge Robert Brown, Ali submitted evidence to support his claims of facing political persecution in Pakistan as a member of an opposition party, experiencing kidnapping and torture in the hands of the government and a rival political party in separate incidents in 1982, 1989, and 1991. The IJ granted Ali’s application for asylum; he would receive lawful permanent resident (LPR) status.

Arrest Leading to Removal Proceedings

In 2013, Ali was arrested and pleaded guilty to possession of cocaine (less than 1 gram). The DHS then initiated removal proceedings against him under 8 U.S.C. § 1227(a)(2)(B)(i). After being advised to file for new asylum by IJ Greenstein to protect himself from removal, Ali’s reapplication was strangely denied by the same judge at a later hearing due to technicalities. These include:

  • Inconsistencies in his recent testimony with the one in 1992
  • The enactment of the REAL ID Act of 2005 (which changed the standard for credibility determinations),
  • The fact that Ali’s political party, the PPP, had now taken control of the Pakistani government
  • Ali’s safe return to Pakistan in 1994 and 2007

The IJ essentially ruled that because Ali’s LPR status terminated his asylum, he was eligible for deportation proceedings.

Ali would appeal to the Board of Immigration Appeals, who would affirm the IJ’s decision, citing a precedential decision, C-J-H.

Court of Appeals Remands the BIA

Ali then took his case to the Court of Appeals, arguing that 8 U.S.C. § 1158(c) contains plain language stating he cannot be removed without first terminating his asylum status, which his adjustment to LPR status did not terminate.

The court ruled that because the BIA did not consider important provisions of the Immigration Nationality Act (INA), including section 1158(c), 8 U.S.C. 1158(c), it failed to exercise its Chevron discretion in C-J-H-. The court thus remanded for the BIA to go over relevant provisions in the INA once more to allow them to come up with a fair decision.

If you or anyone you know is facing a similar situation in court and fear for the consequences of removal to your safety, please contact the immigration lawyers of Lyttle Law Firm. Learn about your rights by calling our offices at 512-215-5225 or by visiting our website.

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