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Keywords

jurisdictionmotionasylumvisasustainedliens
jurisdictionmotionasylumsustained

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Kalilu v. Mukasey

Facts

Abraham Kalilu, a twenty-seven-year-old native and citizen of Liberia, sought review of the BIA's decision that determined he filed a frivolous asylum application. The BIA denied his claims for asylum and withholding of removal, as well as his request for voluntary departure and his motion to reopen. Kalilu argued that he was not afforded the required procedural safeguards and that the BIA abused its discretion in denying his motion to reopen to pursue adjustment of status based on his marriage to a U.S. citizen.

Abraham Kalilu, a twenty-seven-year-old native and citizen of Liberia, sought review of the BIA's decision that determined he filed a frivolous asylum application. The BIA denied his claims for asylum and withholding of removal, as well as his request for voluntary departure and his motion to reopen.

Issue

Did the BIA abuse its discretion in denying Kalilu's motion to reopen and in determining that he filed a frivolous asylum application?

Did the BIA abuse its discretion in denying Kalilu's motion to reopen and in determining that he filed a frivolous asylum application?

Rule

A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible for immigration relief. The BIA must provide an opportunity for arriving aliens in removal proceedings to apply for adjustment based on a valid immigrant visa petition.

A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible for immigration relief. 8 U.S.C. 1158(d)(6).

Analysis

The court noted that the BIA's frivolousness determination could not be sustained because Kalilu was not afforded the required procedural safeguards. The court also found that the BIA's denial of the motion to reopen solely on jurisdictional grounds constituted an abuse of discretion, as it did not take into account the factors set forth in prior cases regarding the exercise of discretion in granting motions to reopen.

The court noted that the BIA's frivolousness determination could not be sustained because Kalilu was not afforded the required procedural safeguards. The court also found that the BIA's denial of the motion to reopen solely on jurisdictional grounds constituted an abuse of discretion.

Conclusion

The court dismissed the petition for review regarding the asylum claim and voluntary departure, denied the petition concerning withholding of removal, but granted the petition regarding the frivolous determination and remanded the matter to the BIA for reconsideration.

The court dismissed the petition for review regarding the asylum claim and voluntary departure, denied the petition concerning withholding of removal, but granted the petition regarding the frivolous determination and remanded the matter to the BIA for reconsideration.

Who won?

Kalilu prevailed in part as the court granted his petition regarding the frivolous determination and remanded the case for further consideration.

Kalilu prevailed in part as the court granted his petition regarding the frivolous determination and remanded the case for further consideration.

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