The U.S. Court of Appeals for the Ninth Circuit affirmed the Board of Immigration Appeals (BIA) determination that Medina, a native and citizen of Bolivia, was ineligible for asylum because he failed to establish a well-founded fear of future prosecution based on his HIV serostatus. The Court gave great weight to previous determinations by the BIA and the Immigration Judge (IJ), which had determined Medina’s instances of mistreatment did not amount to persecution.
Significantly, however, the Court rejected the BIA’s interpretation of the “departure bar” in 8 C.F.R. §1003.2(d), under which the BIA maintained that it was precluded from reopening Medina’s prior removal proceedings when he was previously removed from the United States. The Court of Appeals found that precedent provides that the BIA is not jurisdictionally barred from entertaining whether to reopen prior removal proceedings after the alien has been involuntarily removed from the United States.