Block on Trump's Asylum Ban Upheld by Supreme Court
In Pichardo v. Virgin Islands Comm'r of Labor, 08-4259, the Third circuit granted a petition for a writ of certiorari, and affirmed the decision of the newly-created Supreme Court of the Virgin Islands, in plaintiff's suit against her former employer for wrongful termination. The court first held that the degree of deference afforded to a territorial supreme court allows for reversal on matters of local law only when "clear or manifest error is shown." The court went onto to hold that there is no manifest error in the Virgin Island Supreme Court's decisions, including that the writ of review under section 70 is limited to consideration of issues for which an objection was raised and that section 1422 cannot be invoked to seek review of decisions by the DOL, given the existence of section 70.
Leslie v. Attorney General, 08-3180, concerned a Jamaican citizen's petition for review of a final order of removal of the BIA. In granting the petition, the court vacated the BIA's decision and remanded the matter in holding that when an agency promulgates a regulation protecting fundamental statutory or constitutional rights of parties appearing before it, the agency must comply with that regulation, and failure to comply will merit invalidation of the challenged agency action without regard to whether the alleged violation has substantially prejudiced the complaining party. Here, the IJ's failure to apprise petitioner of the availability of free legal services, as required under 8 C.F.R. section 1240.10(a)(2)-(3), renders invalid the subsequently entered removal order, without regard to petitioner's ability to demonstrate substantial prejudice.
Kang v. Attorney General, 08-4790, concerned a Korean-Chinese citizen's petition for review of the BIA's order of removal. In granting the petition in part, the court held that the BIA's reversal of the IJ, and determination that petitioner was not entitled to relief under CAT, was not supported by substantial evidence, but rather, the evidence compels the conclusion that it is more likely than not that petitioner will be tortured if returned to China, for providing food and shelter to North Korean refugees who had illegally entered China. Thus, in reversing the decision of the BIA, the court concluded that a remand is not necessary as the record evidence overwhelmingly supports the conclusion that the petition for withholding or removal under CAT should be granted.