Abassi v. INS: 9th Circuit Finds BIA Must Review State Dept. Country Reports...

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
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ABASSI V. INS: 9TH CIRCUIT FINDS BIA MUST REVIEW STATE DEPT. COUNTRY REPORTS CITED BY PRO SE APPLICANT SEEKING REOPENING FOR CAT RELIEF
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

Relying on the principle that procedural restrictions should be liberally construed with respect to pro se litigants, the Ninth Circuit Court of Appeals has ruled that the Board of Immigration Appeals erred in failing to consider U.S. State Dept. country reports that were referenced in a pro se litigant's motion to reopen his case to obtain relief under the Convention Against Torture (CAT). The court ruled that when a pro se claimant refers in his motion to recent State Dept. reports with enough specificity for them to be identified, the BIA is obligated to consider them, even if the applicant has not attached them on appeal or provided an exact citation.

The petitioner in this case, a Mr. Abassi, had applied for asylum and withholding of deportation from Afghanistan and was denied both claims by the immigration judge, in a decision that the BIA upheld. Abassi subsequently moved to reopen his case under the CAT. In order to establish a CAT claim, an applicant must demonstrate that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. A fact-finder assessing a claim brought under the CAT may consider evidence that human rights are flagrantly violated within the proposed country of removal, as well as other relevant information.

In his motion to reopen, Abassi alleged that upon his return to Afghanistan he would be interrogated, tortured, or possibly killed at the hands of the government, because Afghanis deported from other countries and returned to Afghanistan were customarily treated that way. Abassi did not submit any documentation to support his claim. Instead he stated, "I reasonably believe and recent country reports indicate that this may in fact be true." The State Dept. publishes country reports and profiles of country conditions throughout the world. It is to these reports that Abassi referred when he submitted his appeal.

Stating that Abassi had not presented any evidence to establish a prima facie claim under the CAT, the BIA rejected Abassi's motion. The BIA had reviewed the State Dept.'s 1994 country report for Afghanistan that Abassi had included in his original asylum and withholding case. However, it did not consider a more recent country conditions report. The BIA concluded that Abassi had not submitted any evidence of the country's abusive treatment towards returning deportees, and Abbasi filed a petition for review of the BIA's decision.

Ruling on the petition for review, the Ninth Circuit reversed the BIA's denial of Abassi's motion under an abuse of discretion standard. The court relied on the principle that procedural restrictions must be liberally construed with respect to pro se litigants. The court found that, by mentioning the reports with sufficient specificity to identify them, Abassi adequately placed the relevant country conditions report before the BIA for consideration. The court stated that, although applicants have the burden of proving their case, they need not attach to their appeals government reports that are easily available to the BIA. Nor does a pro se litigant need to follow proper legal citation format when making reference to a report. In so ruling, the Ninth Circuit made clear that the BIA need not take administrative notice of particular reports when they are not mentioned in a motion, nor need it track down or sort through multiple documents. It need only consider the most recent, relevant portion of the country report, if the pro se litigant references it.

Abassi had also separately moved to reopen his case to apply for adjustment of status due to his marriage to a U.S. citizen. The BIA had dismissed this motion as untimely, as it was filed more than 90 days after the BIA's final order in this case. The 90-day limit does not prevent the BIA from reopening a case sua sponte (on its own motion), and Abassi appealed the BIA's refusal to do so. The court of appeals dismissed this claim for lack of jurisdiction, following Ekimian v. INS, No. 99-70322 (9th Cir. Sept. 12, 2002), in which the court found that the court of appeals may not review the BIA's decision not to invoke its sua sponte reopening authority (see "9th Circuit Finds No Jurisdiction to Review BIA Refusal to Reopen Deportation Proceedings Sua Sponte," Immigrants' Rights Update, Oct. 21, 2002, p. 8).

Abassi v. INS, No. 01-70846 (9th Cir. Sept. 23, 2002).