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Misak v. Gonzales
Citation: 188 F. App'x 10Docket: No. 04-5962-AG
Court: Court of Appeals for the Second Circuit; July 11, 2006; Federal Appellate Court
The petition for review pertains to the Board of Immigration Appeals (BIA) decisions that affirmed an Immigration Judge's (IJ) denial of asylum, withholding of removal, and relief under the United Nations Convention Against Torture for Astghek Raffi Misak and his family. The review process considers the IJ's decision directly when the BIA affirms without opinion. The court applied a substantial evidence standard to factual findings and a de novo standard to legal principles applied to undisputed facts. The IJ concluded that the Misaks did not demonstrate past persecution but inadequately assessed their claim of a well-founded fear of future persecution as Armenian Christians in Iraq. The IJ's reasoning, which dismissed their fears based solely on general conditions in Iraq post-Saddam Hussein, was deemed insufficient for meaningful review. Importantly, the IJ failed to analyze the factual basis for the Misaks' fears or consider submitted evidence of increased anti-Christian violence since the regime's fall. Due to these deficiencies, the court partially granted the petition, vacated the BIA’s decisions regarding asylum and withholding of removal, and remanded the case for further proceedings. Both parties will have the opportunity to update the record with current conditions in Iraq. The Misaks did not appeal the Immigration Judge's (IJ) denial of their joint application for Convention Against Torture (CAT) relief, resulting in a failure to exhaust available administrative remedies, which precludes jurisdiction for review under 8 U.S.C. 1252(d)(1). The petition for review is partially granted, vacating the Board of Immigration Appeals (BIA) decisions on asylum and withholding of removal, while the request for CAT relief is dismissed due to lack of jurisdiction. The case is remanded for further proceedings. The Misaks' argument regarding the BIA's "streamlining" of their appeal is not addressed, as it relies on outdated regulations not applicable at the time of the BIA's decisions. The current regulation, 8 C.F.R. 1003.1(e)(4), remains unchanged.