Vincent v. Holder
2011 U.S. App. LEXIS 2910
| 6th Cir. | 2011Background
- Vincent, a Sierra Leonean, entered the U.S. on July 2, 2000, on a nonimmigrant visa and overstayed.
- He married a U.S. citizen on August 6, 2001 and did not file for asylum within one year of arrival.
- Vincent pursued adjustment of status through the citizen spouse petition; the petition and his adjustment were denied after his wife died in July 2002.
- Vincent filed an asylum application about a year after his wife’s death, was found removable, and his asylum-related claims were denied at merits and on appeal to the BIA.
- The IJ and the BIA concluded the asylum filing was untimely and denied relief; the Board’s decision was appealed to the Sixth Circuit.
- On remand, the court addressed past persecution and potential future persecution, remanding for reconsideration of the withholding claim and potential future risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum was timely filed | Vincent argues there were extraordinary circumstances | Agency found no excusing circumstances for untimeliness | Untimeliness sustained; jurisdiction bars review for timeliness issues |
| Is there past persecution or likelihood of future persecution for withholding/Torture? | Past persecution shown by house burning and son's murder | Record insufficient to prove targeted persecution | Past persecution shown; remand for future persecution/withholding analysis |
| Should withholding of removal be granted based on past persecution? | Past persecution triggers presumption of future risk | Govt. rebuttal not proven | Remand to determine rebuttal of presumption |
| Is the CAT claim properly supported? | Would face torture by government agents if returned | No substantial evidence of likelihood of torture | Denied as to CAT; remand limited to withholding analysis |
Key Cases Cited
- Fang Huang v. Mukasey, 523 F.3d 640 (6th Cir. 2008) (limits review of timeliness to constitutional claims or statutory construction)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (timeliness review is restricted where discretionary/factual determinations are involved)
- Berdo v. INS, 432 F.2d 824 (6th Cir. 1970) (economic deprivation may amount to persecution)
- In re T-Z, 24 I. & N. Dec. 163 (BIA 2007) (exemplifies persecution thresholds for property loss)
- INS v. Stevic, 467 U.S. 407 (1984) (standard for withholding of removal determinations)