Appellate Law

CA1: First continues to usurp executive and legislative function on immigration matters

By S. COTUS

Odmar v. Mukasey, No. 07-2361 (unpublished) (10/1/08).  The petitioner is from Indonesia.  He filed his petition for asylum late.  There is an interesting question about the extent to which the First Circuit can review an IJ?s application of an incorrect standing in determining whether changed circumstances brought on the late filing.  But, the First blows it off, saying that even though the IJ might have screwed it up, the BIA applied the correct standard.

Regarding the witholding of removal, the First says he didn?t suffer that much persecution in the past.  The First goes off the chains here when it starts citing its prior holdings on the way that Indonesian Christians are treated.  This is wrong.  The courts cannot apply any doctrines of asylum-tyime claims regarding country conditions.  Each individual case must rise and fall on its facts or the record.  But relying on its prior cases the First has begun writing foreign policy which is properly the domain of Congress and the executive.  But, since the executive is getting what it wants (sending someone back to their home country) they don?t complain.  I am sure that they would feel differently if the courts held that as a matter of law that all non-Muslim Iraqis had an absolute right to asylum in the US because they were oppressed in their home country. 

Full post as published by Appellate Law and Practice on October 02, 2008 (boomark / email).