Marjorie Konda Lolong v. Alberto R. Gonzales, Attorney General

484 F.3d 1173 Marjorie Konda LOLONG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-72384. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 5, 2006. Filed May 7, 2007. Robert B. Jobe, Hilari Allred, Law Office of Robert B. Jobe, San Francisco, CA, for petitioner Marjorie Lolong. Jonathan F. Cohn & Isaac R. Campbell, Department of Justice, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Atf-tce-iex. Before MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, PAMELA ANN RYMER, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges. BYBEE, Circuit Judge. 1 Marjorie Konda Lolong petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying her application for asylum and granting her voluntary departure. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), we held that we lack jurisdiction to review the BIA's decisions in such cases…

Marjorie Konda Lolong petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying her application for asylum and granting her voluntary departure. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), we held that we lack jurisdiction to review the BIA’s decisions in such cases because the BIA lacks the authority to issue final orders of departure, and the Immigration and Naturalization Act (“INA”) conditions our jurisdiction on the existence of such an order. Until recently, a petitioner in Lolong’s position could still seek habeas relief in district court, but in the REAL ID Act of 2005, Congress eliminated this form of relief in immigration cases. See 8 U.S.C. § 1252 (a)(5). Together with our prior decisions, this statutory change leaves petitioners in Lolong’s position with no opportunity to obtain judicial review of the BIA’s disposition of their cases. We reheard this case en banc to revisit our prior jurisprudence because this lack of judicial review raises serious constitutional concerns. Having decided that our prior interpretation of the BIA’s power under the INA was overly narrow, we overrule Molina-Camacho and determine that we do have…

join, concurring in part and dissenting in part;

I concur in Section II of the majority opinion, which overrules Molina-Camacho *1182 v. Ashcroft, 393 F.3d 937 (9th Cir.2004). I respectfully dissent, however, from the majority’s outright denial of the petition for review on the merits. In this case, the immigration judge (“IJ”) granted asylum, but the Board of Immigration Appeals (“BIA”) reversed. In its reversal, the BIA made serious legal errors in its analysis and failed to fully address the claims made by the petitioner. Unlike the IJ, who relied on actual evidence, the BIA treated the aspirational goals of a government as a proxy for actual governmental control of those who would mercilessly persecute individuals based on their religion and national origin. Therefore, I would grant the petition and remand the case for further consideration by the BIA pursuant to INS v. Ventura, 537 U.S. 12 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002).

I

The analysis used by the BIA was incorrect as a matter of law and cannot be sustained. The BIA’s analysis is legally flawed because it (1) failed to address a core element of the petitioner’s claim; (2) based its decision on grounds that are…