Mufulu v. Atty Gen USA , 186 F. App'x 253 ( 2006 )


Menu:
  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-15-2006
    Mufulu v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-2018
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
    Recommended Citation
    "Mufulu v. Atty Gen USA" (2006). 2006 Decisions. Paper 892.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/892
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 05-2018
    ____________
    GILONDA KINGAMBO MUFULU,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES;
    SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
    Respondents
    ____________
    On Petition for Review from an
    Order of the Board of Immigration Appeals
    (Board No. A73 569 669)
    Immigration Judge Donald V. Ferlise
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    June 15, 2006
    Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.
    (Filed June 15, 2006)
    ____________
    OPINION OF THE COURT
    ____________
    *
    The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
    Circuit, sitting by designation.
    FISHER, Circuit Judge.
    The mistake in this case is clear: the Board of Immigration Appeals reviewed the
    wrong order. An order of removal was initially entered against the alien in April 2002,
    based on his failure to appear at a scheduled hearing. (A. 22-26; A.R. 107-09.) However,
    the order was subsequently rescinded when the immigration judge determined that the
    alien had not been given notice of the proceeding. (A. 28-30, 43, 45.) A second hearing
    was held in September 2002, at which the alien appeared, and a new order of removal was
    entered based on the immigration judge’s adverse credibility determination. (A. 46-51.)
    The alien then appealed from that order. (A.R. 102.) Unfortunately, the Board assumed
    that the order under review was the rescinded one, issued in April 2002. (A. 89; A.R. 2.)
    It affirmed based on the alien’s failure to appear, without addressing the adverse
    credibility determination on which the final order of removal, entered in September 2002,
    was based. (A. 89; A.R. 2, 102.) The alien now petitions for review.
    We cannot affirm a decision of the Board on grounds other than those on which it
    relied. See, e.g., Li v. Attorney General, 
    400 F.3d 157
    , 163 (3d Cir. 2005). Since the
    Board failed to address the merits of the final order of removal, we are precluded from
    doing so. We will grant the petition for review and remand this case to the Board so that
    it may consider the order issued in September 2002.
    2
    

Document Info

Docket Number: 05-2018

Citation Numbers: 186 F. App'x 253

Filed Date: 6/15/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023