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First Circuit Rules IJ Should Not Have Denied Asylum and BIA Should Not Have Summarily Affirmed

by Carl R. Baldwin

In El Moraghy v. Ashcroft, No. 02-2606 (1st Cir. June 12, 2003), the Court of Appeals recited a catalogue of omissions by the immigration judge in an asylum case, and an overhasty affirmance by the Board of Immigration Appeals, and ordered a remand.

The petitioner is an Egyptian national, and a Coptic Christian. He arrived in the United States in 1999 with a B-2 tourist visa. He overstayed the allowable six-month period, and applied for asylum within one year of his arrival date. He claimed that he had been threatened and mistreated by Islamic fundamentalists who regarded him as an "infidel." His friendship with a Muslim woman aroused particular antipathy, and he had been forced to sign a document promising to convert to Islam and marry the woman in question. He recited five instances of threats and physical injury, one of which required hospitalization for a dislocated shoulder. As background evidence, El Moraghy submitted copies of the U.S. State Department Report on Human Rights Practices for 1996, 1998 and 1999 which provided evidence of the harsh treatment faced by Coptic Christians in Egypt. Newspaper articles submitted chronicled instances of violence against Coptic Christians in the 1990s, including killings in the town where El Moraghy had attended the university and been subjected to threats and beatings.

The court leads off by asserting: "Although the Board of Immigration Appeals affirmed the denial of asylum using its relatively new summary affirmance procedure, it should not have done so. Basic flaws in the methodology and reasoning of the Immigration Judge undercut his reasoning and so we remand."

According to the court, the immigration judge was in error in dismissing the State Department country condition reports and other background evidence on the grounds, as the judge said, that they did "not refer to respondent or any of his family in Egypt." That is a startling interpretation of the pertinence of background evidence to an asylum applicant. How often do our clients and their families get specifically named in such reports? The immigration judge then belittled El Moraghy's testimony as "self-serving": "(T)here is not one scintilla or iota of evidence to corroborate the respondent's self-serving declaration of what happened to him in Egypt and why he came to the United States." It is a real surprise to hear an immigration judge take that tack. After all, the regulations make it clear that "The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration." 8 CFR Section 208.13(a). The court notes that the IJ, in rejecting the application, did not make a finding that El Moraghy was not credible, nor did he address the question of whether he had suffered past persecution.

The immigration judge's rejection of the application was affirmed by the Board under the new "affirmance without opinion" provision of the regulations. 8 CFR Section 3.1(e)(4). The court observes that where the BIA summarily affirms the IJ's decision, the court will proceed to review that decision. In this case, the court holds: "Even under (the) deferential review of agency decisions, we conclude that the IJ's decision cannot, on this record, be upheld. The IJ fails to state conclusions at all on several important issues. The IJ misused State Department country reports and failed to address the issue of past persecution. In the absence of a finding that the petitioner was not credible, the decision cannot be affirmed as being based on substantial evidence."

After what must have been a devastating courtroom experience for El Moraghy, the First Circuit remand to the Board holds out at least a glimmer of hope. One wonders, however, whether remand to this immigration judge, if that is what the Board decides to do, holds out the prospect of a fair and impartial result.

Amicus briefs were submitted by the Immigration Law Foundation, the Massachusetts Law Reform Institute, and the New England Chapter of AILA.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.