Appellate Law

CA1: First resolves asylum mailbox problem

By S. COTUS

Jorgji v. Gonzales, 07-1571.  The petitioners area Albanian Christians.  But, the big issue appears to be whether their application for asylum was timely under the one-year rule in 8 U.S.C. § 1158(a)(2)(B) and the regulation which tolls the deadline for weeks and holidays.  8 C.F.R. § 208.4(a)(2)(ii).  At the initial hearing before the IJ, the government didn?t raise the issue.  But the IJ did.  Before the First, the government seems to go to far and claim that the First has no authority to review the finding that the petition was untimely.  The First says that what is really happening is a legal dispute, as seem to be some hairy issues about whether non-represented people can understand what the impact of putting a letter in a mailbox (as opposed to handing it to a clerk at the government agency are).  The First concludes that, ?Under these circumstances, we will follow the literal language, adding that the government would be well advised formally to clarify the regulation language if it prefers its counsel's position to govern in the future.?  So, for purpose of this regulation, ?one year? from date of entry ends the first non-Saturday mailing day? regardless of whether it was filed by hand or not.

Maybe you want to read on to find out how it turns out.

Oh, and the merits.  The First says, ?Remarkably, the government's brief addresses with care the claim that the hearing was procedurally unfair but scarcely addresses at all the substance of the persecution claim beyond reciting (in the statement of facts) the IJ's own analysis.?  (I think this is a diss.)    The First looks at what the IJ concluded, and says that the oppression that took place long ago doesn?t really mean that they will be religiously persecuted now.

Finally, the First rejects the idea that the IJ was hostile and interrupted attorneys.  The First gives the IJ a pass, nothing that the IJ credited the stories, but disagreed on the law.

Full post as published by Appellate Law and Practice on January 24, 2008 (boomark / email).