Khan v. Attorney General of United States
691 F.3d 488
| 3rd Cir. | 2012Background
- Mohammed Shuaib Khan and his son Faras Khan, Pakistani citizens, entered as nonimmigrant visitors in 1990 and overstayed, leading to removal proceedings.
- IJ denied asylum, withholding of removal, and CAT protection in 2000; BIA affirmed in 2003; petition for review not filed then.
- On October 21, 2010, petitioners filed with the BIA a motion for an emergency stay of removal and a motion to reopen.
- On March 29, 2011, petitioners filed a petition for review in this Court challenging the BIA’s handling of their motions; a temporary stay was granted pending briefing.
- April 12, 2011, the BIA denied the October 2010 motions; the petition for review was amended to address the BIA’s April 12 order.
- The Third Circuit held it had jurisdiction to review the ripened petition despite the premature filing, and then denied the petition on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction of premature petition | Khan argued premature filing should ripen upon final BIA order | Holder argued lack of jurisdiction due to prematurity | Premature petition ripened; court has jurisdiction |
| Changed country conditions exception timing | Motion to reopen justified by changed Pakistan conditions | Changed conditions not shown and not applicable to personal self-induced changes | Exception in 8 U.S.C. § 1229a(c)(7)(C)(ii) does not apply |
| Materiality of evidence for asylum/reopening | New evidence would change outcome of relief request | Most evidence not material; credibility and PPP membership not rehabilitated | Evidence not material; no prima facie eligibility shown |
| Social group and credibility findings | ANP membership and anti-American sentiment show persecution risk | No cognizable social group; credibility adverse finding supported | No error; BIA properly deferred to IJ credibility findings and rejected social-group theory |
| Medical evidence and asylum support | Mental health diagnoses indicate persecution risk on return | Medical evidence inadequate to demonstrate persecution risk | BIA's assessment supported by substantial evidence; no well-founded fear shown |
Key Cases Cited
- Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983) (premature appeals can ripen upon final judgment to serve merits on the record)
- Lazy Oil Co. v. Witco Corp., 166 F.3d 585 (3d Cir. 1999) (premature notices of appeal may ripen when final settlement decisions are entered)
- DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209 (3d Cir. 2007) (premature notices may ripen upon court action when no prejudice)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (abuse of discretion standard for motion to reopen; material evidence standard)
- Huang v. Att’y Gen., 620 F.3d 372 (3d Cir. 2010) (BIA must review evidence and provide rationale for conclusions)
- Kaur v. BIA, 413 F.3d 232 (2d Cir. 2005) (material evidence must have potential to change outcome)
- Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (evidence review for changed country conditions; sufficiency of records)