Ssali, Fred v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3567 & 04-2148
FRED SSALI,
Petitioner,
v.
ALBERTO R. GONZALES,1
United States Attorney General,
Respondent.
____________
Petitions for Review of Orders
of the Board of Immigration Appeals.
No. A79-274-867
____________
ARGUED MAY 4, 2005—DECIDED SEPTEMBER 14, 2005
____________
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Fred Ssali is a native and citizen of
Uganda. He entered the United States in May 2000 as a non-
immigrant visitor and remained beyond the time authorized
by his visa. After the Immigration and Naturalization
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we have substituted the current Attorney General of the United
States, Alberto R. Gonzales, for his predecessor as the named
respondent.
2 Nos. 03-3567 & 04-2148
Service (“INS”) brought removal proceedings against him,
Mr. Ssali applied for asylum. An immigration judge (the
“IJ”) denied his application, and the Board of Immigration
Appeals (the “BIA” or the “Board”) affirmed. Mr. Ssali
sought review in this court and filed a motion to reopen
with the BIA. The BIA denied this motion to reopen, and he
separately petitioned for review of that denial. For the
reasons set forth in the following opinion, we grant his first
petition for review, reverse the judgment of the BIA and
remand for further proceedings.
I
BACKGROUND
A. Mr. Ssali’s Asylum Application
Mr. Ssali prepared his own asylum application without
the assistance of counsel. In the application, he stated that
he had been tortured and detained without trial by Ugan-
dan soldiers and that he feared “torture and persecution” if
returned to Uganda. A.R.358.2 On the application, Mr. Ssali
checked boxes that identified his membership in a particular
social group and his political opinion as the reason for the
alleged mistreatment. He further explained that he
“strongly oppose[d] and criticize[d] the one party system
dictatorship in Uganda, and the banning of multi-party
democracy.” A.R.360. Thus, he stated, he feared “being
subjected to torture . . . and suffering because of baseless
false accusations that I am a collaborator with ant[i]-govern-
2
There are two copies of the administrative record before
this court. For ease of reference, we refer only to the record in No.
04-2148, filed on October 15, 2004.
Nos. 03-3567 & 04-2148 3
ment personnel.” Id. He also claimed to be “opposed [to]
human rights violation in Uganda.” Id. Mr. Ssali identified
himself as a member of the group Human Rights Africa,
which he described as a human rights group, and that his
“brother (Ben Jjuko) was a member of Uganda Freedom
Movement (U.F.M.)[,] a guerilla military group.” A.R.359.
He also claimed that his “brother was tortured and detained
without trial.” A.R.358.
B. Hearing Before the IJ
Mr. Ssali appeared at a hearing before the IJ on May 14,
2002. He testified that he had left Uganda out of fear for
his life; he stated that “government . . . soldiers wanted to
kill [him] . . . [b]ecause [he] was politically inclined” and
“did not believe in the . . . dictatorship at the time.” A.R.153.
Two major events formed the basis for this fear. First, Mr.
Ssali described an incident that had taken place in May
1999. Government security officers entered Mr. Ssali’s
university dormitory room, blindfolded him and drove him
to a small army camp. There, he was beaten, kicked and
forced to kneel for extended periods of time. He also was
questioned about recent bombings and about the group
Allied Democratic Front (“ADF”) (a group to which, he
testified, he had never belonged). His captors told Mr. Ssali
that they believed he had information about the bombings
because two university students with whom Mr. Ssali was
friendly were suspected of being ADF activists. Mr. Ssali
was returned to his dormitory room late at night on the
same day. Mr. Ssali testified that he reported the incident to
university police, who did not take any action, and that a
hospital treated him for injuries. He testified that he still has
scars on his knees from the incident.
4 Nos. 03-3567 & 04-2148
Second, Mr. Ssali testified about events that occurred in
December 1999. A bus on which he was traveling was
stopped at an army roadblock, and Mr. Ssali was detained.
He testified that, although he told the soldiers that he was
traveling to western Uganda to conduct research for an
academic paper, the soldiers thought that he was travel-
ing to help the ADF. He testified that the soldiers asked him
his tribal origin. Mr. Ssali replied that he was Muganda, a
member of a tribe to which the parties refer as Baganda or
Buganda, which is located in southern Uganda. Upon
hearing that Mr. Ssali was Muganda, the soldiers became
angry. Mr. Ssali testified that the soldiers told him that
“these Buganda . . . are the people who are making our, our
political thing fail.” A.R.173. Mr. Ssali testified that most
Baganda are members of the Democratic Party.
Mr. Ssali then was blindfolded and driven two hours
to a camp where he was beaten in order to elicit information
about the ADF. The same night, he was driven away from
the camp and, when the vehicle in which he was being
carried stopped with a flat tire, Mr. Ssali escaped from the
truck and hitch-hiked to his father’s town, where he was
treated for his wounds.
Mr. Ssali stated that he was a member of the Democratic
Party in Uganda and that his father, who also was a member
of the Democratic Party, had been active in politics in the
1980s. He testified that, after his departure in 1999, someone
had approached his father to ask his (Mr. Ssali’s) where-
abouts. Mr. Ssali also testified about the process of obtaining
his visa and passport.
At the outset of Mr. Ssali’s testimony, he stated that he did
not have any siblings. However, on cross-examination, he
stated that he had two sisters and one brother and that his
brother’s name was Andrew Edward Kafeero. He also
Nos. 03-3567 & 04-2148 5
stated that he had an uncle who was killed in 1998 and that
his uncle’s name was Ben Jjuko.
C. The IJ’s Decision
The IJ’s oral decision denied Mr. Ssali’s motion for
asylum.3 The IJ determined that the two incidents of
beatings that Mr. Ssali had described constituted mistreat-
ment which rose to the level of persecution. The IJ also
found support in the record for the notion that Uganda’s
government continues to commit human rights abuses.
Nonetheless, the IJ concluded that, based on several consid-
erations, Mr. Ssali’s claim for asylum was not persuasive.
The IJ found that “significant omissions or discrepancies”
had surfaced with respect to Mr. Ssali’s application for
asylum and his testimony at the hearing, and further noted
that these irregularities had not been resolved at the hear-
ing. A.R.132. For instance, Mr. Ssali had noted on his
asylum application that he was a member of Human
Rights Africa, but he had not mentioned that fact at the
hearing.
The IJ was puzzled by the fact that several significant
aspects of Mr. Ssali’s claim had not been brought out in his
asylum application or in his direct testimony at the hearing,
3
The IJ also held that Mr. Ssali’s failure to demonstrate a well-
founded fear of persecution meant that he could not meet the
more demanding standard required for withholding of removal
under 8 U.S.C. § 1231(b)(3) or under the United Nations Conven-
tion Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment, 8 C.F.R. § 208.13(c)(1). Mr.
Ssali does not challenge this determination on appeal; therefore,
we shall confine our review to his asylum claim.
6 Nos. 03-3567 & 04-2148
but rather had surfaced during the Government’s cross-
examination of Mr. Ssali. For instance, although Mr. Ssali
had noted on his asylum application that he had a brother
named Ben Jjuko who had been detained and tortured by
Ugandan soldiers, he did not mention these facts during his
direct testimony. Instead, he had testified during cross-
examination that he had an uncle named Ben Jjuko who had
been killed in 1998. As well, Mr. Ssali had not included his
membership in the Democratic Party in his asylum applica-
tion or his direct testimony but had only mentioned it on
cross-examination.
The IJ also noted that the fact that Mr. Ssali had been able
to obtain a Ugandan passport and an exit visa was inconsis-
tent with Mr. Ssali’s theory that government officials wished
him harm. It surmised that perhaps Mr. Ssali
had encountered only regional prejudice, rather than
hostility that could be attributed to the national government.
Finally, the IJ found it significant that Mr. Ssali had not
documented “any specific aspects of his claim” by present-
ing corroborating evidence. A.R.134.
D. Appeal to the BIA
The BIA dismissed Mr. Ssali’s appeal. In its written
decision, the BIA deferred to the IJ’s adverse credibility
finding in light of “evidence . . . that [Mr. Ssali] significantly
embellished his asylum claim by the time of the hearing to
the point that we are unable to ascertain what is truthful.”
A.R.82.
The Board agreed with the IJ as to the existence of
Nos. 03-3567 & 04-2148 7
“material discrepancies” in Mr. Ssali’s account which went
“to the heart of the . . . asylum claim.” A.R.80. For instance,
the BIA reasoned that Mr. Ssali’s conflicting testimony
regarding whether Ben Jjuko was his uncle or his brother
cast doubt upon Mr. Ssali’s credibility. According to the
BIA, Mr. Ssali’s failure to mention his brother’s detention
and torture during his hearing testimony further weakened
his credibility because Mr. Ssali’s asylum application
had “center[ed]” on the torture and detention he and
his brother underwent. Id. The Board found it hard to
believe that Mr. Ssali had failed to mention the “crucial fact”
of his Democratic Party membership in his asylum applica-
tion, in light of the fact that, at the hearing, he attributed his
second detention to his Democratic ties. A.R.81. It consid-
ered suspect the fact that Mr. Ssali had not described the
details of his two detentions in his asylum application.
The Board did, however, regard Mr. Ssali’s failure to
testify regarding his membership in Human Rights Africa
as a “minor omission tangential to his asylum claim.”
A.R.80. The Board also stated that the IJ should not have
regarded Mr. Ssali’s credibility as undermined by his ability
to obtain a passport.
With respect to Mr. Ssali’s asylum claim itself, the BIA
noted that his accounts of the two incidents in which he was
detained by government soldiers were “not implausible” in
light of background information on Ugandan politics and
the Ugandan military. A.R.81. The Board also stated, “[T]he
Democratic Party . . . has been historically made up of
southerners and Catholics. While the respondent is from
eastern Uganda, he is a Christian.” Id.Although Mr. Ssali’s allegations generally were consistent
with conditions in Uganda, the BIA was not persuaded by
8 Nos. 03-3567 & 04-2148
his account due to the fact that his asylum claim as pre-
sented to the IJ “differ[ed] significantly from the one that he
put forth in the asylum application.” A.R.82. The BIA
rejected Mr. Ssali’s contention that the discrepancies could
be attributed to his poor command of English; it stated that,
as “a well-educated person from a former British colony
educated in English,” Mr. Ssali was “obviously fluent” in
English. Id. Indeed, the IJ found it “inconceivable” that
someone as “fluent . . . and well-educated” as Mr. Ssali
would have failed to mention in an asylum application his
Democratic Party membership or the details of his
detentions. Id.Because it believed his testimony was not credible, the
BIA concluded that Mr. Ssali did not meet the burden of
proof for an asylum claim. In its view, the IJ had been
reasonable in requiring corroborating evidence. Because Mr.
Ssali had not corroborated “particular facts show-
ing persecution,” the BIA concluded that Mr. Ssali had
failed to meet his burden of proof in establishing either past
persecution or a well-founded fear of future persecution. Id.E. Mr. Ssali’s Motion to Reopen
Following the BIA’s dismissal of his appeal, Mr. Ssali
married a United States citizen. Mr. Ssali’s wife filed a Form
I-30, seeking to classify Mr. Ssali as a family member.
Subsequently, Mr. Ssali filed a motion to reopen the pro-
ceedings against him. The Government opposed the motion
to reopen, and the BIA denied it.
II
DISCUSSION
Nos. 03-3567 & 04-2148 9
In cases in which the BIA writes an opinion that does
not “adopt[] . . . or supplement[]” the opinion of the IJ, Liu v.
Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004), the BIA’s opinion
“becomes the basis for judicial review of the decision of
which the alien is complaining,” Niam v. Ashcroft, 354 F.3d
652, 655 (7th Cir. 2004). On the other hand, in cases in which
the BIA writes an opinion “supplement[ing]” the decision of
the IJ, “the IJ’s opinion as supplemented by the BIA’s
opinion becomes the basis for review.” Liu, 380 F.3d at 311.
The Government contends that we should conduct the latter
sort of review, and we agree. The BIA’s analysis supple-
mented the IJ’s credibility determinations; it also made its
own independent assessment of the evidence regarding the
current conditions in Uganda with respect to political and
human rights. Thus, we review the IJ’s opinion as supple-
mented by the BIA’s analysis.
A. Asylum
We review the BIA’s denial of a petition for asylum under
the substantial evidence standard. See Capric v. Ashcroft, 355
F.3d 1075, 1086 (7th Cir. 2004). “The BIA’s decision must be
affirmed if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Id. (internal quotation omitted). We shall grant the petition
for review only if the petitioner “shows that ‘the evidence
not only supports [reversal of the BIA’s decision], but compels
it.’” Liu, 380 F.3d at 312 (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992)) (emphasis and alteration in origi-
nal).
The credibility determinations made by the IJ and the BIA
are entitled to “highly deferential review, . . . so long as they
are supported by specific, cogent reasons that bear a
10 Nos. 03-3567 & 04-2148
legitimate nexus to the finding.”4 Capric, 355 F.3d at 1086(internal quotations and citations omitted).
To qualify for asylum, an applicant must show that he is
a “refugee,” 8 U.S.C. § 1158(b); that is, that he is a “person
who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to . . . that country
because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id.§ 1101(a)(42)(A). “Hence, to qualify for . . . asylum, an
applicant must establish past persecution or a well-founded
fear of future persecution.” Capric, 355 F.3d at 1084. A
showing of past persecution gives rise to a presumption of
a well-founded fear of future persecution. See 8 C.F.R. §
208.13(b)(1).
The IJ evaluates an alien’s claim for credibility, assessing
internal consistency, plausibility and detail. Capric, 355 F.3d
at 1085. “If determined to be credible, the testimony of the
4
Congress recently has altered the standards by which immigra-
tion judges reach credibility determinations in asylum and
withholding cases. See Emergency Supplemental Appropria-
tions Act for Defense, the Global War on Terror, and Tsunami
Relief, Division B—REAL ID Act of 2005, Pub. L. No. 109-13,
§§ 101(a)(3), (b), 119 Stat. 231 (codified at 8 U.S.C. §§ 1158(b)(1)
(B)(iii), 1231(b)(3)(C)). However, these changes apply only to
applications for asylum, withholding or other relief from removal
that are made on or after May 11, 2005, the effective date of the
amendments. REAL ID Act § 101(h)(2). Thus, the portions of the
REAL ID Act affecting credibility determinations do not apply to
determinations made in the course of Mr. Ssali’s 2001 petition. See
Chen v. Gonzales, ___ F.3d ___, 2005 WL 2036223, at *1 (7th Cir.
2005); see also Dhima v. Gonzales, ___ F.3d ___, 2005 WL 1774549,
at *5 n.3 (1st Cir. 2005).
Nos. 03-3567 & 04-2148 11
alien alone may be sufficient to sustain the burden of proof
without corroboration.” Id. (internal quotations omitted).
However, if an IJ finds the alien’s testimony to be incredible,
the alien must submit corroborating evidence; otherwise, the
asylum claim will fail. Id. at 1086.
Mr. Ssali submits that the BIA should not have made an
adverse credibility finding in his case. Upon review of the
administrative record in this case, we must agree. The IJ
advanced several reasons for finding that Mr. Ssali’s
testimony was not credible, and the BIA adopted most of
these reasons. The reasons cited by the IJ and expressly
adopted by the BIA are the following: (1) Mr. Ssali did not
mention his Democratic Party membership in his asylum
application, but he testified to it at the hearing; (2) Mr. Ssali
stated in his asylum application that his brother was named
Ben Jjuko, but he testified at the hearing that he had just one
brother named Andrew and that his uncle was named Ben
Jjuko; (3) Mr. Ssali stated at the hearing that an unknown
man came looking for him at his father’s home after Mr.
Ssali left Uganda, but Mr. Ssali did not mention this fact in
his asylum application; (4) Mr. Ssali mentioned in his
asylum application that some of his family members had
been detained or tortured by Ugandan soldiers, but he did
not testify to these incidents at his hearing.5 In light of the
adverse credibility finding, the IJ and the BIA both also held
Mr. Ssali’s lack of corroboration of his claims against him.
5
Although the IJ also based its credibility finding on Mr. Ssali’s
failure to mention at the hearing his membership and on his
ability to obtain an exit visa, the BIA concluded that these two
grounds were “minor omission[s] tangential to his asylum claim.”
A.R.80. Therefore, we shall not consider them. See Niam v.
Ashcroft, 354 F.3d 652, 656 (7th Cir. 2004).
12 Nos. 03-3567 & 04-2148
The heart of Mr. Ssali’s asylum case is his membership
in the Democratic Party. The IJ and the BIA, however, did
not believe Mr. Ssali’s claims of Democratic Party member-
ship because Mr. Ssali did not mention the Democratic Party
in his asylum application. Furthermore, the BIA recognized
that “the Democratic Party . . . has been historically made
up of southerners and Catholics,” A.R.81, but also stated in
its opinion that Mr. Ssali “is from eastern Uganda,” id. We
perceive from the context of the BIA’s comments that it was
considering Mr. Ssali’s supposed residence in eastern
Uganda as a reason to be skeptical of his claim of member-
ship in the Democratic Party. In truth, Mr. Ssali is not from
eastern Uganda but from southern Uganda, precisely the
place the BIA recognized as the base of the Democratic
Party; in fact, Mr. Ssali expressly testified before the IJ that
he is from Masaka, A.R.170, which is in southern Uganda.
This very significant mistake suggests that the Board
was not aware of the most basic facts of Mr. Ssali’s case
and deprives its ruling of a rational basis. It is the sort of
mistake that constitutes the kind of “extraordinary cir-
cumstances” under which a credibility determination
should be overturned. See Ahmad v. INS, 163 F.3d 457, 461
(7th Cir. 1999).
By contrast, we think any discrepancy between Mr. Ssali’s
application and his testimony at the hearing was not as
significant as either the IJ or the BIA perceived it to be.
Although Mr. Ssali did not mention specifically his member-
ship in the Democratic Party on his asylum application, he
did explain that he was “strongly oppose[d] and criticize[d]
the one party system dictatorship in Uganda, and the
banning of multi-party democracy,” and that he feared
being suspected as “a collaborator with ant[i]-government
personnel.” A.R.360. Indeed, the BIA recognized that the
Democratic Party was the strongest opposition party in
Nos. 03-3567 & 04-2148 13
Uganda during the time period relevant to Mr. Ssali’s claims
of persecution. Most importantly, Mr. Ssali’s asylum
application and his hearing testimony made the same point:
He alleged that he had been detained and tortured based on
his political beliefs.
We turn next to an alleged incident in which an unknown
man approached Mr. Ssali’s father after Mr. Ssali’s depar-
ture from Uganda, an incident to which Mr. Ssali did
not refer in his asylum application. As the BIA characterized
it, such an incident “shows a continuing interest in [Mr.
Ssali] by the government which could establish a well-
founded fear of persecution whether or not he establishes
past persecution.” A.R.81. However, the BIA thought that
the failure to mention this incident in his asylum application
adversely impacted on Mr. Ssali’s credibility; it reasoned
that it would be “inconceivable . . . that someone so . . . well-
educated would . . . omit[] entirely [from his asylum
application] . . . any details regarding . . . the visit to his
father of the inquiring stranger.” A.R.82. The foregoing is
not a cogent reason for discrediting Mr. Ssali’s testimony.
See Ahmad, 163 F.3d at 461. There is no inconsistency
between Mr. Ssali’s asylum application and his testimony
suggesting that the government was interested in his
whereabouts. Indeed, Mr. Ssali’s allegation that an un-
known man sought to learn of his whereabouts is entirely
consistent with his asylum application which claimed that
his political opinions made him a target for government
oppression. Furthermore, this reason bears no legitimate
nexus to the adverse credibility finding; describing events
consistent with one’s asylum claim supports an applicant’s
credibility, rather than detracting from it.
The IJ and the BIA also perceived a discrepancy be-
tween Mr. Ssali’s reference, made in his application for
14 Nos. 03-3567 & 04-2148
asylum, to his “brother (Ben Jjuko)” who allegedly was
tortured, A.R.358, and his reference, made during cross-
examination, to an uncle named Ben Jjuko who allegedly
was killed in 1998. Both the IJ and the BIA held this incon-
sistency against Mr. Ssali in making credibility determina-
tions. However, we think that the question of the relation-
ship of Ben Jjuko to Mr. Ssali is merely peripheral to Mr.
Ssali’s asylum claim. In both his asylum application and his
hearing testimony, Mr. Ssali made his politics the central
issue. The relationship of Ben Jjuko to Mr. Ssali is incidental
to Mr. Ssali’s asylum claim. See Korniejew v. Ashcroft, 371
F.3d 377, 387 (7th Cir. 2004) (“[A]dverse credibility determi-
nations should not be grounded in trivial details or easily
explained discrepancies . . . .”).
The same rationale must govern the Board’s insistence
that Mr. Ssali’s credibility was diminished by his failure
to mention, in his hearing testimony, the detention of
other family members to which he had alluded in his
asylum application. Having determined that the IJ and the
BIA’s other reasons for discrediting Mr. Ssali’s testimony are
not probative, we do not believe that an adverse credibility
determination can be supported by the relationship of Ben
Jjuko to Mr. Ssali and the occurrences related to Mr. Ssali’s
other family members. See Georgis v. Ashcroft, 328 F.3d 962,
970 (7th Cir. 2003) (noting that court was “not inclined to
defer to [the IJ’s] credibility determination on [one] remain-
ing . . . ground alone” when it had found that all but one of
the grounds for the IJ’s adverse credibility determinations
were not supported by the evidence).
In light of the IJ and the BIA’s credibility determination
errors, we conclude that the decision to deny Mr. Ssali’s
asylum application was not based on substantial evi-
dence. See Uwase v. Ashcroft, 349 F.3d 1039, 1045 (7th Cir.
Nos. 03-3567 & 04-2148 15
2003). Therefore, we remand the case.6
B. Motion to Reopen
Because we have granted the petition for review and
reverse and remand Mr. Ssali’s asylum petition, we also
vacate the judgment of the BIA with respect to the motion to
reopen. In doing so, we pause to note that, even if we had
denied the asylum petition, we would have been disposed
to grant the petition in the motion to reopen.
First, the Board has given us very little explanation for its
action, which would have made review of the merits
very difficult. Although “the BIA is not required to write an
exegesis on every contention,” it is required to “consider the
issues raised, and announce its decision in terms sufficient
to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000) (internal quotation omitted). The
Board’s written decision does not indicate its reasoning in
a manner that is sufficient to allow review by this court.
Moreover, it appears clear that the Board misread its
own precedent in Matter of Arthur, 20 I. & N. Dec. 475(BIA 1992). The BIA noted that the Government opposed the
motion to reopen in Mr. Ssali’s case, and further noted that
“[s]uch opposition, whether well taken or not, is sufficient
to defeat the motion to reopen in the absence of an ap-
6
The Government further submits that, because the BIA did not
expressly adopt the IJ’s finding that Mr. Ssali’s alleged detentions
rose to the level of persecution, Mr. Ssali is not entitled to asylum.
However, we need not address this issue because further
proceedings are warranted on account of the errors we already
have discussed.
16 Nos. 03-3567 & 04-2148
proved visa petition.” A.R.2. The Board cited Matter of
Velarde, 23 I. & N. Dec. 253 (BIA 2002), in support of the
notion that the Government’s opposition was sufficient to
defeat a motion to reopen.
In Velarde, the BIA wrote that a motion to reopen
may be granted, in the exercise of discretion, to provide
an alien an opportunity to pursue an application for
adjustment where the following factors are present: (1)
the motion is timely filed; (2) the motion is not numeri-
cally barred by the regulation; (3) the motion is not
barred by Matter of Shaar . . . ; (4) the motion presents
clear and convincing evidence indicating a strong
likelihood that [Petitioner’s] marriage is bona fide; and
(5) the Service either does not oppose the motion or
bases its opposition solely on Matter of Arthur[, 20 I. &
N. Dec. 475 (BIA 1992)].
Id. at 256.
Before this court, the Government claims that its opposi-
tion was not based on Arthur, because Arthur applies only
to marriages entered into prior to the IJ’s issuance of a
decision. See Respondent’s Br. at 45 n.14 (“In Matter of
Arthur, the alien filed a motion to reopen . . . based on his
marriage to a United States citizen after the commencement
of deportation proceedings, but prior to the immigration
judge’s decision. . . . In the case at hand, Petitioner married
a United States citizen after the immigration judge’s deci-
sion and after the Board’s decision on the merits of Peti-
tioner’s asylum claim. . . . [B]ecause Petitioner’s marriage
occurred after the conclusion of proceedings, his case does
not fall within Matter of Arthur.”).
However, that simply is not an accurate characteriza-
Nos. 03-3567 & 04-2148 17
tion of Arthur. See Arthur, 20 I. & N. Dec. at 476 (noting
that the IJ’s decision finding deportability was issued
October 23, 1990, that the alien did not appeal and that the
alien “married his wife on January 18, 1991, subsequent to the
immigration judge’s decision in the case” (emphasis added));
see also Velarde, 23 I. & N. Dec. at 254 (noting that IJ’s
decision finding alien deportable was issued October 27,
1997, that alien filed a timely appeal and that alien married
U.S. citizen February 23, 1999, and granting motion to
reopen based on marriage).
Furthermore, the statutes on which Velarde relied apply to
all marriages which take place in “the period during which
administrative or judicial proceedings are pending regard-
ing the alien’s right to be admitted or remain in the United
States.” 8 U.S.C. § 1255(e)(2). Specifically, 8 U.S.C. § 1154(g)
states that a marriage entered into during the time period
described in 8 U.S.C. § 1255(e)(2) cannot be the basis for
granting immediate relative status unless the alien has
resided outside the United States for two years following
the date of the marriage. However, § 1154(g)’s restriction
shall not apply with respect to a marriage if the alien
establishes by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage
was entered into in good faith and . . . was not en-
tered into for the purpose of procuring the alien’s
admission as an immigrant . . . .
Id. § 1255(e)(3). Velarde simply outlined a five-factor test
for the “exercise of discretion” afforded to the Govern-
ment under the statutes just mentioned. Velarde, 23 I. & N.
Dec. at 255-56.
The statutes on which Velarde relied draw no distinc-
tion between marriages entered into while administra-
18 Nos. 03-3567 & 04-2148
tive proceedings are pending and those entered into
when administrative proceedings have concluded but
judicial proceedings are ongoing. In this case, Mr. Ssali
had taken a timely appeal from the BIA’s denial of his
petition for asylum; therefore, judicial proceedings still were
pending.
Although the decision to grant a motion to reopen is
subject to the BIA’s discretion, we are not satisfied in this
case that the Board correctly interpreted Arthur. The
Board did not explain its reasons, and the only reason the
Government can suggest to this court appears to rest on a
misunderstanding of Arthur.
Conclusion
For the foregoing reasons, we grant the petition for review
of Mr. Ssali’s asylum case. The BIA’s decision is reversed.
The case is remanded for proceedings consistent with this
opinion.
For the foregoing reasons, the petition for review of the
motion to reopen is vacated.
No. 03-3567 REVERSED and REMANDED
No. 04-2148 VACATED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-05