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Ruling on Motion to Reopen Asylum Application

By FindLaw Staff on March 09, 2010 2:49 PM

In Sadhvani v. Holder, No. 08-1684, the court faced a challenge, by a native and citizen of Togo, to the BIA's denial of his motion to reopen his asylum application in light of William v. Gonzalez, 499 F.3d 329 (4th Cir. 2007). 

As stated in the decision: "In William I, we held that the regulation promulgated by the agency, 8 C.F.R. section 1003.2(d), was invalid because it directly contradicted the statutory language in the INA which permitted one motion to reopen with no restriction on the location from which it was filed."

In affirming the BIA's decision, the court concluded that, although the regulation no longer works to remove BIA's jurisdiction, it did not abuse its discretion in denying relief based on the statutory requirement that an alien must be present in the US to be eligible for asylum.  Here, petitioner was removed by the Department of Homeland Security under a valid removal order, and as such, he can no longer pursue an application for asylum.

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