Professional Documents
Culture Documents
That status
affords aliens protection from removal from the United States upon
a determination by the Attorney General that conditions in the
alien's home country prevent the alien's safe return.
1254a.
8 U.S.C.
that
had
been
set
by
the
Attorney
General.
More
1254a(c)(1)(A);
Designation
of
El
Salvador
Under
8 U.S.C.
Temporary
By
virtue
El
of
the
Attorney
General's
designations
regarding
Shul
was then not served with a Notice to Appear for removal proceedings
until 2009.
-3-
Although
Shul thus
does
not
qualify
for
temporary
protected
status.
The
We
whether the Immigration Judge and the Board determined only that
Shul failed to show he was in the United States early enough to
qualify
for
temporary
protected
status
or
whether
they
also
We thus begin by
parsing the agency's decisions with this question in mind. See SEC
v. Chenery Corp., 332 U.S. 194, 197 (1947) ("If the administrative
action is to be tested by the basis upon which it purports to rest,
that
basis
must
be
set
forth
with
such
clarity
as
to
be
See Matovu v. Holder, 577 F.3d 383, 386 (1st Cir. 2009).
Cf. Waweru v.
Gonzales, 437 F.3d 199, 204 (1st Cir. 2006) (explaining that
"clarity
is
matter
of
degree,"
and,
as
such,
"the
normal
-5-
to
her
analysis
by
stating
that
Shul
"has
no
-6-
The
describes
Immigration
two
letters
Judge
Shul
begins
with
paragraph
submitted
from
the
East
that
Boston
states that Shul initially registered with the health center on May
31, 2002.
that
Shul
was
"unable
to
adequately
explain
the
is possible [Shul] was seen elsewhere," she states that "if his
treatment was at the [health center] it should have appeared on
this form."
In
Immigration
the
Judge
very
next
expresses
paragraph
the
-7-
of
further
the
opinion,
concern
that
the
"[n]o
impression" that he had informed the health center that "he needed
information regarding earlier dates than had been placed in the
first letter issued by the health center," although the Immigration
Judge
did
acknowledge
that
"Shul
was
somewhat
vague
in
his
This
Judge points to the fact that Shul had failed to introduce evidence
from either his mother (with whom he allegedly lived in 2001) or
-8-
March
9,
2001
on.
But
in the
context
of
the
-9-
Thus,
Its three-paragraph
The
But
in the next and only paragraph of the opinion that addresses the
merits of the Immigration Judge's analysis, the Board focuses
solely on the finding that Shul was "unable to establish having
resided in the United States as of February 13, 2001."
The Board
thus
Shul
makes
no
separate
assessment
of
whether,
if
had
established that fact, his evidence would have been enough to show
the kind of continuous ties the law requires of those seeking
temporary protected status.
B.
Having
determined
that
the
only
finding
before
us
-10-
But we are
evidence
that
supports
agency's
conclusion
and
then
Instead,
This
letter thus plainly seems to indicate not only that Shul was in
Boston as of September 2000, but also that he was sufficiently
established
there
to
have
sought
out
and
received
formal
connection
to
this
health
care
provider.
But
neither
the
appears to contradict the only finding made below: that Shul was
not in the United States before May 2001.
Perhaps
both
the
Immigration
Judge
and
the
Board
supports the one finding on which the agency appears to have based
its judgment.4
reaching
this
conclusion,
we
accept
that
the
from
which
to
assess
the
witnesses'
testimonies
and
sufficient
basis
for
discounting
the
reliability
of
the
read to raise the concern that the 2011 letter was produced only
upon Shul asking for some indication of earlier ties to the health
-13-
center than the 2003 letter from the health center showed, that
same concern would not apply to the 2000 letter.
as we have noted, sent before Shul had even applied for temporary
protected status.
As a
remand,
the
Board
may
seek
to
explain
why
--
-14-
Such a determination
But
however the Board chooses to proceed, "[i]t is not the role of this
court to determine in the first instance whether [Shul] met his
burden"
to
prove
eligibility
for
temporary
protected
status.
We
instead must confine our review to the reasons the agency itself
actually gave for its decision -- reasons which, we have explained,
were not adequate in this instance.
the Board is vacated and remanded.
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