Hachem v. Holder
2011 U.S. App. LEXIS 18007
| 6th Cir. | 2011Background
- Mohamed Allalen (Algeria) and Kassem Hachem family (Lebanon) seek asylum, withholding of removal, and CAT relief; BIA affirmed IJ denial; both petition for review and seek stays of voluntary departure.
- IJ denied Allalen asylum, withholding, and CAT due to lack of credibility and insufficient likelihood of past or future persecution; BIA adopted these conclusions.
- Hachem family was found not to qualify for withholding or CAT relief based on changed country conditions in Lebanon after Syrian withdrawal and political developments.
- Both petitioners received voluntary departure grants; petitions for review and stays involve automatic termination rules under 8 C.F.R. 1240.26(i).
- Regulatory and constitutional challenges were raised to the automatic termination rule; the court upheld the regulation and application to petitioners.
- The court denied the petitions for review and the motions for stay of voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credibility and asylum eligibility standard | Allalen contends adverse credibility undermines asylum entitlement. | BIA/IJ properly applied REAL ID Act factors and affirmed credibility finding. | Substantial evidence supports credibility finding and denial of asylum. |
| Past persecution and well-founded fear | Allalen experienced repeated threats and violence constituting past persecution; fear persists. | Events do not amount to past persecution or well-founded fear; corroboration lacking. | Evidence supports finding no past persecution or well-founded fear; asylum denied for Allalen. |
| Changed country conditions and future persecution (Hachem) | Lebanon conditions still threaten opponents of Syrian influence; persecution could resume. | Country reports show significant changes; risks no longer present. | No reasonable fear of persecution; withholding and CAT denied for Hachem. |
| Voluntary departure regulation validity and applicability | Automatic termination rule may affect petitioners differently; question of statutory/regulatory conflict. | Regulation valid under Chevron; Congress delegated discretionary authority to grant voluntary departure. | Regulation valid and applicable; automatic termination applies to petitioners' reviews. |
| Effect of regulation on pre-existing voluntary departure orders | Hachem and Allalen challenged timing of reinstatement/extension under the rule. | BIA reinstatement is not an extension; only specified DHS officials can extend. | Automatic termination applies; regulation properly limits stay of voluntary departure. |
Key Cases Cited
- El-Moussa v. Holder, 569 F.3d 250 (6th Cir. 2009) (REAL ID Act credibility totality of circumstances framework)
- Ndrecaj v. Mukasey, 522 F.3d 667 (6th Cir. 2008) (due process standard for hearing fairness)
- Ahmed v. Gonzales, 398 F.3d 722 (6th Cir. 2005) (hearing interruptions not per se due process violation)
- Elias v. Gonzales, 490 F.3d 444 (6th Cir. 2007) (due process concerns require material prejudice)
- Mullai v. Ashcroft, 385 F.3d 635 (6th Cir. 2004) (credibility and persecution standards)
- Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2004) (totality of evidence in credibility assessment)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (changed country conditions sufficing to negate fear)
- Patel v. Attorney General, 619 F.3d 230 (3d Cir. 2010) (regulatory authority vs. statutory limitations)
- Ramirez-Lopez, 251 Fed. Appx. 390 (9th Cir. 2007) (agency discretion in voluntary departure context)
- Mistretta v. United States, 488 U.S. 361 (1989) (nondelegation doctrine and intelligible principle)