                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Mufulu v. Atty Gen USA" (2006). 2006 Decisions. Paper 892.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/892


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                                                                  NOT PRECEDENTIAL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.




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