Joel Siwe v. Eric Holder, Jr.
2014 U.S. App. LEXIS 2344
| 5th Cir. | 2014Background
- Siwe, a Cameroon native, entered on a visitor’s visa in 2001 and was granted asylum in 2003; subsequent criminal convictions led DHS to initiate removal proceedings.
- The IJ terminated Siwe’s asylum based on a conspiracy conviction deemed an aggravated felony; Siwe sought adjustment under INA § 209(b) and CAT deferral.
- BIA panel affirmed the IJ, holding Siwe ineligible for 209(b) adjustment after asylum termination and rejecting CAT relief as not credible.
- Siwe challenged the 209(b) interpretation in this court; the REAL ID Act limits review of removal orders but preserves pure questions of law.
- The court held 209(b) does not require asylum to be ongoing for eligibility; CAT relief is not reviewable on the merits due to jurisdictional limits; the matter was remanded for 209(b) proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum termination bars 209(b) adjustment | Siwe contends 209(b) does not require ongoing asylum | DHS argues termination forecloses adjustment | Siwe may apply for 209(b) adjustment despite asylum termination |
| Whether CAT deferral is reviewable and sustains relief | Siwe seeks CAT deferral based on likelihood of torture | REAL ID Act confines review of factual CAT determinations | CAT relief review dismissed for lack of jurisdiction under REAL ID Act |
| Whether remand to BIA for three-member panel is necessary | Siwe requests three-member reconsideration for precedential clarity | Board could rule without remand; remand not necessary | Remand not required; court will decide 209(b) issue de novo; CAT remanded as to relief |
Key Cases Cited
- Matter of K-A-, 23 I. & N. Dec. 661 (BIA 2004) (addressed asylum termination discretion and 209(b) dynamics)
- Sharashidze v. Gonzales, 480 F.3d 566 (7th Cir. 2007) (rejection of automatic 209(b) bar post-asylum termination)
- Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010) (asylee who never adjusted cannot re‑adjust under 209(b))
- Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007) (REAL ID Act precludes review of removal orders but allows legal questions)
- Ventura, INS v. Orlando Ventura, 537 U.S. 12 (2002) (remand principles for agency decisions; not mandatory here)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (illustrates remand decision mechanics in 5th Circuit)