Second Circuit Reverses BIA (Twice in a Day)

Second Circuit on forced insertion of IUD, persecutor bar

“[W]e remand this case to the BIA for it to articulate a consistent position on “whether and under what conditions forced insertion of an IUD constitutes persecution.” … In doing so, we urge the BIA to apply consistently the standard for what conduct constitutes “persecution” for purposes of establishing refugee status, see 8 U.S.C. § 1101(a)(42), and for purposes of determining whether an individual who “ordered, incited, assisted, or otherwise participated in” that conduct would be subject to the persecutor bar, see 8 U.S.C. §§ 1158(b)(2)(A)(i) & 1231(b)(3)(B)(i), or to explain adequately its reasons for not doing so. We find it troubling that, in the context of an application for asylum, the BIA concluded that forcible IUD insertion does not constitute persecution, but then applied the persecutor bar to an applicant based on a conclusion that forcible IUD insertion does constitute persecution because a period of detention preceded it.”

Jiang v. BCIS, Mar. 14, 2008.

Second Circuit on motions to reopen

“The BIA erred … because a rote recital of a jurisdictional statement — even if technically accurate — does not adequately discharge the BIA’s duty to “consider the facts of record relevant to the motion” and provide a “rational explanation” for its ruling. … The BIA did not consider … whether petitioners’ newfound ability to file adjustment applications with the USCIS warranted a favorable exercise of its discretion to reopen and continue the proceedings and thereby lift the removal orders. Accordingly, the reason set forth by the BIA for its denial of the motions — a lack of jurisdiction over adjustment applications — was unresponsive to the relief petitioners sought and therefore did not provide a “rational explanation” for the denial.” Ni v. BIA, Mar. 14, 2008.

KJ