Tuesday, May 11, 2010

California District Court Finds That INS Violated its Own Regulations in Refusing to Provide Plaintiff All Evidence Used to Determine Denial of Asylum

"Afghan Wins Review of Daughter's Asylum Case"

"Immigration authorities violated their own regulations by refusing to disclose the x-rays on which they based their refusal to grant asylum to an Afghan immigrant's daughter, a federal judge in San Francisco ruled.

Abdul Haq Ghafoori and his wife fled Afghanistan and were granted U.S. asylum in November 2000. Their daughter, Eida, had been unable to join them and remained in Pakistan, where the family lived after fleeing Afghanistan in the early 1990s.

Under federal immigration law, the child of an immigrant granted asylum is entitled to the same status, but it's up to the parent to prove that his child was 21 or younger when he first applied for asylum.

Ghafoori said his daughter was 13 in 2000, when he applied for asylum, but he was unable to produce a birth certificate or medical, church or school records to back up his claim. Instead, he offered other evidence, including copies of Eida's passport, a letter from her high-school principal, a family friend's affidavit, family photographs and money transfer documents showing that he and his wife still supported their daughter financially.

The Immigration and Naturalization Service (INS) approved the petition and forwarded it to the American Embassy in Islamabad, Pakistan.

Before issuing a visa, the embassy made Eida undergo a "bone-age assessment" at the Aziz Medical Center, which pegged Eida at "25 years of age or more," according to a doctor's letter.

INS told Ghafoori that it would reject asylum for his daughter unless he filed a rebuttal within 30 days. The agency sent him a copy of the doctor's letter, but not the actual x-rays.

His attorney, Gail Nevius, scrambled to obtain copies of the x-rays, but neither the Nebraska Service Center nor the embassy in Islamabad could produce them.

Ghafoori's asylum petition for his daughter was subsequently denied as "abandoned" in February 2005.

Ghafoori then hired attorney Tyler Gerking to help him get copies of the x-rays and fight the INS' decision. Gerking's records request bounced from the Nebraska Service Center to the Pakistani medical center to the embassy to immigration offices in New Delhi and back to the Nebraska Service Center, where the search began.

"Plaintiff's counsel therefore concluded that further requests to obtain the x-rays would remain futile," the ruling states.

Ghafoori sued immigration officials in federal court, claiming they violated their own procedures by basing their denial of his petition on x-rays that were never provided to him.

The officials filed a cross-motion to dismiss, arguing that Ghafoori failed to submit his rebuttal within 30 days.

U.S. District Judge Thelton E. Henderson ordered immigration authorities to reconsider the petition and base their decision "only on evidence disclosed to plaintiff."

Regulations unambiguously require the agency to let Ghafoori inspect all evidence "which constitutes the bases for the decision," except classified information, Henderson said.

He rejected the government's claim that INS met its obligations by providing a copy of the doctor's letter.

"That reading is irreconcilable with the regulations," Henderson wrote. "Divorcing the doctor's analysis from the medical records on which he relied creates an impossible burden for any petition attempting to rebut his conclusion." "
 
http://www.courthousenews.com/2010/05/10/27149.htm
 
Read the Order Granting Summary Judgment for the Plaintiff: http://www.courthousenews.com/2010/05/10/Ghafoori.pdf

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