Amalemba v. Holder
444 F. App'x 94
| 7th Cir. | 2011Background
- Amalemba, a Kenyan native, came to the United States on a student visa in 1997 and overstayed.
- In 2009, the government began removal proceedings; Amalemba conceded removability and sought voluntary departure, cancellation of removal, and adjustment of status.
- The IJ denied relief; the BIA remanded to address Amalemba’s mental competency, which the IJ then found to be competent.
- On remand, Amalemba testified as Luhya and described a 1996 attack by Mungiki members; he alleged related family killings and threats.
- The IJ found him not credible due to discrepancies with a witness and lack of corroborating evidence; CAT, asylum, and withholding were denied; discretionary relief and adjustment were denied.
- Amalemba appealed; the BIA denied a motion to reopen, finding the new evidence not previously unavailable or outcome-determinative; the petition was denied in part and dismissed for lack of jurisdiction in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adverse credibility supports denial of relief | Amalemba contends discrepancies were inadvertent and explainable. | Agency found significant discrepancies supported by the record. | Agency credibility supported; asylum/withholding denied |
| Whether corroborating evidence was reasonably available | Amalemba provided documents that were not before the IJ due to detention and other issues. | Evidence was not reasonably obtainable and not explained why others could not obtain it. | No error; corroboration reasonably obtainable; relief denied |
| Whether Amalemba is entitled to CAT protection | Mungiki persecution plus government acquiescence justify CAT relief. | No evidence that Amalemba would be tortured if returned; not likely. | CAT relief denied; not shown likelihood of torture |
| Whether discretionary relief (cancellation/adjustment/voluntary departure) was properly denied | Due process violations and evaluation of police reports prejudiced him. | Discretionary relief requires non-constitutional claims; no due process violation shown. | Court lacks jurisdiction over discretionary denials |
| Whether the Board properly denied the motion to reopen/remand | New evidence was material and unavailable earlier; could alter outcome. | Evidence not shown to be unavailable or outcome-determinative; proper exercise of discretion. | Motion to reopen/remand denied |
Key Cases Cited
- Hassan v. Holder, 571 F.3d 631 (7th Cir. 2009) (deferential review of credibility determinations)
- Moosa v. Holder, 644 F.3d 380 (7th Cir. 2011) (no liberty interest in purely discretionary relief)
- Bakarian v. Mukasey, 541 F.3d 775 (7th Cir. 2008) (due process and discretionary relief considerations in removals)
- Ward v. Holder, 632 F.3d 395 (7th Cir. 2011) (jurisdictional limits on review of discretionary denials)
- Jarad v. Gonzales, 461 F.3d 867 (7th Cir. 2006) (jurisdiction for review of discretionary relief)
- Victor v. Holder, 616 F.3d 705 (7th Cir. 2010) (standard for reopening/relief considerations)