Appellate Law

CA1: what the BIA doesn?t have to address

By S. COTUS

Vasilia v. Mukasey, No. 07-1434 (unpublished).  These are Albanian petitioners.  They sought a reopening late.  The First Circuit says, ?We do not have jurisdiction to review the BIA?s decision that equitable tolling is unavailable where that decision was based ?on a factual determination that [the petitioner] had not exercised due diligence.?? The 90-day period for reopening doesn?t apply to changed country conditions, but the stuff she submitted, the First Circuit says, doesn?t show that she would be persecuted.  Then it gets strange.  The BIA didn?t discuss the materials that the petitioner submitted, instead relying on State Department country reports.  The First covers for the BIA by saying that it wasn?t arbitrary.  Strangely, the First says that Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) seems to only require discussion of country reports when they speak to conditions getting worse, rather than consideration of things that contradict country reports that indicate that conditions got better.

Full post as published by Appellate Law and Practice on February 06, 2008 (boomark / email).