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Keywords

jurisdictionattorneyappealtestimonyharassmentregulationasylumrespondent

jurisdictionattorneyappealregulationrespondent

Related Cases

Belishta v. Ashcroft

Facts

Belishta, a native and citizen of Albania, applied for asylum in the United States after experiencing past persecution due to her father's imprisonment by the communist regime. Despite credible testimony regarding threats and harassment from former government agents after the regime's fall, the immigration judge concluded that the violence was financially motivated and not based on a protected ground, leading to the denial of her asylum application. The BIA affirmed this decision, prompting Belishta to petition the court for review.

Belishta testified that when she was growing up in Albania, her father was [*1080] imprisoned for ten years by government authorities because of his opposition to the communist regime.

Issue

Whether the court has jurisdiction to consider Belishta's asylum claim under the new regulation, 8 C.F.R. 1208.13(b)(1)(iii)(B), which was not in effect when she filed her appeal.

Because Belishta did not seek relief under the new regulation before the BIA (because it was not in existence when she filed her appeal), we lack jurisdiction to consider the merits of this claim.

Rule

The court applied the principle that jurisdiction is lacking if the petitioner did not seek relief under a new regulation before the BIA, as established in Ortiz v. INS and Olivar v. INS.

See Ortiz v. INS , 179 F.3d 1148, 1152 (9th Cir. 1999) (quoting Olivar v. INS , 967 F.2d 1381, 1382 (9th Cir. 1992)) .

Analysis

The court determined that because Belishta did not seek relief under the new regulation before the BIA, it lacked jurisdiction to consider the merits of her claim. The court emphasized that the new regulation, which provides an opportunity for asylum to victims of past persecution facing serious harm upon removal, was not applicable since it was not in existence at the time of her appeal.

Because Belishta did not seek relief under the new regulation before the BIA (because it was not in existence when she filed her appeal), we lack jurisdiction to consider the merits of this claim.

Conclusion

The court denied the petition for review but stayed its mandate for 120 days to allow the BIA to consider reopening Belishta's case under the new regulation.

Petition for Review DENIED in part, and DISMISSED in part; Mandate STAYED for 120 days from the date of filing of this Order.

Who won?

The respondent, the attorney general, prevailed because the court found it lacked jurisdiction to consider the merits of Belishta's claim.

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