CASES DECIDED IN FEDERAL COURT IN OCTOBER / NOVEMBER 2006
Here are some of the cases which were decided in Federal Court between 11/27/06 and 12/01/06 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Spina v. Department of Homeland Sec. (11/28/06 - No. 04-3177)
Dismissal of habeas petition of alien deemed ineligible for discretionary relief from deportation under now-repealed section 212(c) of the Immigration and Nationality Act, where alien served more than five years in custody for an aggravated felony, is upheld over claims that: 1) petitioner's pre-conviction detention should not count toward accrual of the five-year bar; and 2) that time spent in post-conviction custody stopped accruing for purposes of the five-year bar while he administratively challenged the INS's erroneous retroactive application to his case of an AEDPA amendment excluding aggravated felons from section 212(c) relief.
http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf
Chen v. Bureau of Citizenship & Immigration Servs. (11/29/06 - No. 04-5748)
BIA order vacating IJ decision to grant application for asylum, deny application for withholding of removal and relief under the Convention Against Torture, and order removal to China is vacated, where the BIA applied the wrong legal standard when conducting its review.
http://caselaw.lp.findlaw.com/data2/circs/2nd/045748p.pdf
U.S. 7th Circuit Court of Appeals
Gutnik v. Gonzales (11/29/06 - No. 05-3007)
Petition for review of the application of particular removal grounds to some of petitioner's convictions and the IJ's conclusions as to the unavailability of certain forms of relief from removal is granted in part where the application of the "hypothetical federal felony approach" removes the bar to petitioner's asylum claim, but denied where petitioner no longer qualifies as a refugee and is therefore ineligible to apply for a section 1159(c) waiver of inadmissability in conjunction with an adjustment of status.
http://caselaw.lp.findlaw.com/data2/circs/7th/053007p.pdf
U.S. 8th Circuit Court of Appeals
Celaj v. Gonzales (11/27/06 - No. 05-1493)
A petition for review of a denial of asylum is denied where an IJ's decision not to credit Albanian petitioner's claims of persecution was reasonable, and his credibility assessment was based on specific and cogent reasons.
http://caselaw.lp.findlaw.com/data2/circs/8th/051493p.pdf
Mohamed v. Gonzales (11/27/06 - No. 05-3357)
Petition for review of denial of relief under the Convention Against Torture is denied is denied where: 1) petitioner's as-applied constitutional challenge to the REAL ID Act is rejected; 2) lack of a competency hearing was not an abuse of discretion and did not violate his right to procedural due process; 3) he failed to establish prejudice from any possible due process violation; 4) the IJ did not err in failing to make explicit credibility findings as to certain witnesses; and 5) petitioner failed to establish a likelihood of torture upon removal.
http://caselaw.lp.findlaw.com/data2/circs/8th/053357p.pdf
U.S. 9th Circuit Court of Appeals
Singh v. Gonzales (11/28/06 - No. 04-72701)
When the BIA uses regular mail to meet its regulatory obligation to serve its decisions on aliens, the BIA's factual finding that its decision was properly mailed to the alien's address of record precludes alien's claim that he did not actually receive the decision for purposes of his motion to reopen.
http://caselaw.lp.findlaw.com/data2/circs/9th/0472701p.pdf
US v. Lopez (11/30/06 - No. 05-50433)
A conviction and sentence for being a deported alien found in the United States is affirmed where any error in the government's impermissible references to defendant's post-Miranda silence was harmless beyond a reasonable doubt, and none of his other assertions of error were meritorious.
http://caselaw.lp.findlaw.com/data2/circs/9th/0550433p.pdf
U.S. 11th Circuit Court of Appeals
Madu v. U.S. Attorney Gen. (12/01/06 - No. 05-14241)
District court's determination that habeas petition challenging the petitioner's detention and impending removal on the ground that he is not subject to a removal order amounts to a challenge to a final administrative order of removal within the meaning of section 106(c) of the REAL ID Act, and order transferring case to circuit court, is vacated and remanded for proceedings under 28 U.S.C. section 2241, as a petitioner's assertion that he is not subject to an order of removal is distinct from a petitioner's challenge to a removal order for the purposes of the REAL ID Act.
http://caselaw.lp.findlaw.com/data2/circs/11th/0514241p.pdf
Here are some of the cases which were decided in Federal Court between 11/20/06 and 11/24/06 which affect immigration law.
U.S. 1st Circuit Court of Appeals
Naeem v. Gonzales (11/20/06 - No. 05-2789)
Denial of alien's motion to reopen his removal proceedings is affirmed where the BIA's denial, on the ground that petitioner's non-compliance with the terms of a grant of voluntary departure rendered him statutorily ineligible for the relief that he hoped to obtain through a reopening, was not in error.
http://laws.lp.findlaw.com/1st/052789.html
U.S. 3rd Circuit Court of Appeals
Mudric v. Attorney Gen. of the US (11/24/06 - No. 05-2913)
Petition for review of the legality of petitioner's pending deportation is denied over claims that: 1) his Fifth Amendment right to procedural due process was violated by undue INS delays in processing certain applications; 2) the government should be estopped from removing him because he was prevented from obtaining lawful status as a result of its own undue delay; and 3) procedural due process violations occurred in the course of his asylum hearing.
http://caselaw.lp.findlaw.com/data2/circs/3rd/052913p.pdf
U.S. 5th Circuit Court of Appeals
Chen v. Gonzales (11/22/06 - No. 05-60379)
A petition for review of a denial of Chinese petitioner's application for asylum and related relief is denied where: 1) denial of the application for asylum was supported by substantial evidence; 2) the withholding claim necessarily failed as well, as the evidence did not compel a conclusion that her fear of persecution on the basis of religion was well-founded under the lower objective standard for asylum; 3) her evidence did not compel a finding that she would more likely than not be subjected to torture for leaving China illegally; and 4) an IJ's conclusion that she was not likely to be subjected to torture at the hands of snakeheads and money lenders was supported by substantial evidence.
http://caselaw.lp.findlaw.com/data2/circs/5th/0560379cv0p.pdf
U.S. 7th Circuit Court of Appeals
US v. Firishchak (11/20/06 - No. 05-3852)
A judgment ordering that defendant be denaturalized, stemming from his alleged service in the Ukrainian Auxiliary Police (UAP) during World War II and his failure to disclose it in his 1949 visa application, is affirmed over his claims that: 1) documents evidencing his UAP service were inadmissible; 2) it was an abuse of discretion to permit certain expert testimony on a subject that was not disclosed in a pre-trial expert report; 3) he should have been granted a continuance; 4) the evidence against him was insufficient; and 5) he was denied a fair trial.
http://caselaw.lp.findlaw.com/data2/circs/7th/053852p.pdf
U.S. 8th Circuit Court of Appeals
US v. Urqhart (11/22/06 - No. 06-1242)
A conviction for illegal reentry after deportation is affirmed over claims of erroneous admission of evidence and denial of a mistrial motion where: 1) a Certificate of Nonexistence of Record (CNR) from a defendant's "alien-file" constitutes nontestimonial evidence; and 2) the district court did not abuse its discretion in denying the motion for mistrial.
http://caselaw.lp.findlaw.com/data2/circs/8th/061242p.pdf
U.S. 9th Circuit Court of Appeals
US v. Martinez-Rodriguez (11/21/06 - No. 05-50719)
Under Taylor's categorical approach, the full range of conduct proscribed by California Health and Safety Code section 11359 falls within the Sentencing Guidelines' definition of drug trafficking offense. A sentence for re-entering the U.S. after removal is affirmed over claims that his sentence was improperly enhanced in that: 1) the district court improperly found that defendant's prior removal "was subsequent to a conviction for commission of an aggravated felony;" and 2) the district court erred in finding that his prior conviction for possession of marijuana for sale under California Health and Safety Code section 11359 was a drug trafficking offense under the guidelines.
http://caselaw.lp.findlaw.com/data2/circs/9th/0550719p.pdf
Sinotes-Cruz v. Gonzales (11/22/06 - No. 04-70745)
A petition for review from an order of removal is granted where: 1) although the government introduced sufficient evidence to carry its burden of proof that petitioner was removable; 2) based on INS v. St. Cyr, 533 U.S. 289 (2001), the permanent stop-time rule of section 240A(d)(1) of the INA may not be applied retroactively to prevent petitioner from fulfilling the seven-year continuous residence requirement of INA section 240A(a)(2), for cancellation of removal; and 3) petitioner does not need a waiver of deportation under INA section 212(c) in order to be eligible for cancellation of removal.
http://caselaw.lp.findlaw.com/data2/circs/9th/0470745p.pdf
U.S. 10th Circuit Court of Appeals
US v. Martinez-Trujillo (11/21/06 - No. 05-4122)
Sentencing disparities caused by the existence of fast-track programs, which allow defendants to obtain a downward departure in exchange for their plea and waiver of certain rights, are not considered unwarranted under 18 U.S.C. section 3553(a)(6). A sentence for illegal reentry of a previously deported alien is affirmed over a claim that the district court rendered an unreasonable sentence.
http://laws.lp.findlaw.com/10th/054122.html
Here are some of the cases which were decided in Federal Court between 11/13/06 and 11/17/06 which affect immigration law.
U.S. 1st Circuit Court of Appeals
US v. Turbides-Leonardo (11/14/06 - No. 05-2374)
Sentence for illegal re-entry following an earlier deportation for an aggravated felony conviction is affirmed where the defendant failed to object to the characterization of his prior conviction, there was no plain error in the sentencing court's addition of an enhancement for a drug trafficking offense, and the sentence was reasonable.
http://laws.lp.findlaw.com/1st/052374.html
Dar-Salameh v. Gonzalez (11/15/06 - No. 05-2886)
Petition for review of a final order of removal is denied where petitioner failed to exhaust his administrative remedies, but respondent agrees to permit petitioner to apply for relief from removal to the Palestinian Territories.
http://laws.lp.findlaw.com/1st/052886.html
Kim v. Gonzales (11/16/06 - No. 05-2462)
Denial of application for discretionary relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. section 1182(c) is affirmed where: 1) defendant's claim that his manslaughter conviction did not constitute a crime of violence was foreclosed since defendant never sought judicial review of the BIA's past ruling which affirmed the IJ's finding that he was an aggravated felon, and the time-limit for such an argument is jurisdictional; and 2) defendant's argument that his crime was one of moral turpitude, which is a ground for waiver under section 212(c), was irrelevant since the earlier crime of violence determination acted independently to preclude waiver.
http://laws.lp.findlaw.com/1st/052462.html
U.S. 2nd Circuit Court of Appeals
Madeira v. Affordable Housing Found. (11/14/06 - No. 04-3606)
Award of lost earnings to plaintiff undocumented alien, calculated partially by reference to U.S. pay rates as compensation for disabling personal injuries attributable to defendants' violation of New York Labor Law section 240(1), and apportioned among defendants and plaintiff's direct employer based on relative negligence, is affirmed over claim that federal immigration law, as articulated in the Immigration Reform and Control Act of 1986 necessarily precluded any damages award under New York law that compensated an undocumented worker for lost earnings, at least to the extent such earnings were based on pay rates in the U.S. rather than in the worker's native country.
http://caselaw.lp.findlaw.com/data2/circs/2nd/043606p.pdf
U.S. 4th Circuit Court of Appeals
Jahed v. Acri (11/13/06 - No. 05-6489)
Petition for review of final order of removal, entered after BIA rejected petitioner's claim of citizenship over claim by petitioner, a native of Afghanistan, that he attained derivative citizenship after his parents' Pakistani divorce and upon his father's naturalization, is dismissed as petitioner failed to demonstrate that his parents were legally separated for purposes of U.S. immigration law.
http://caselaw.lp.findlaw.com/data2/circs/4th/056489p.pdf
U.S. 6th Circuit Court of Appeals
Berri v. Gonzales (11/16/06 - No. 05-4045)
Petition for review of denial of Lebanese citizens' claims for asylum and related relief is denied where: 1) an IJ's denial of a continuance and in the matter was not an abuse of discretion; 2) an adverse credibility finding was reasonable; 3) petitioners failed to demonstrate past persecution or a well-founded fear of future persecution; 4) they failed to demonstrate that torture was more likely than not; and 5) the BIA's use of its affirmance without opinion procedure was proper.
http://caselaw.lp.findlaw.com/data2/circs/6th/054045p.pdf
U.S. 7th Circuit Court of Appeals
Bejko v. Gonzales (11/13/06 - No. 05-3872)
Denial of application for asylum, withholding of removal and relief under the Convention Against Torture is affirmed where: 1) the applicant did not establish past persecution or the well-founded fear of future persecution; and 2) The IJ's failure to inform applicant of his right to request withdrawal of his application for admission did not constitute a due process violation, since applicant could not demonstrate prejudice as a result.
http://caselaw.lp.findlaw.com/data2/circs/7th/053872p.pdf
Pjetri v. Gonzales (11/13/06 - No. 05-3871)
Petition for review of denial of asylum, withholding of removal and relief under the Convention Against Torture is dismissed for lack of jurisdiction where petitioner's claims of due process and evidentiary violations were not presented to the BIA, thus petitioner had not exhausted his administrative remedies.
http://caselaw.lp.findlaw.com/data2/circs/7th/053871p.pdf
U.S. 9th Circuit Court of Appeals
US v. Morales-Perez (11/13/06 - No. 05-10115)
The federal crime of attempted possession of a controlled substance with intent to sell encompasses the California-defined crime of purchasing cocaine base for purposes of sale. Because this is an offense that falls within the definition of a drug trafficking offense in the United States Sentencing Guidelines, a conviction under California Health and Safety Code section 11351.5 categorically qualifies as a predicate drug trafficking offense under U.S.S.G. section 2L1.2(b)(1)(A).
http://caselaw.lp.findlaw.com/data2/circs/9th/0510115p.pdf
US v. Martinez-Martinez (11/14/06 - No. 06-10015)
A enhancement to a sentence for illegal reentry after being deported following a felony conviction is reversed where, in computing defendant's prison sentence, the district court erred in treating his prior state-court conviction in Arizona for discharging a firearm at a residential structure as a "crime of violence" under the sentencing guidelines.
http://caselaw.lp.findlaw.com/data2/circs/9th/0610015p.pdf
Fernandez-Ruiz v. Gonzales (11/15/06 - No. 03-74533)
A petition for review of an order of removal is granted in part and remanded for further proceedings where: 1) neither of petitioner's two Arizona misdemeanor domestic violence/assault convictions constituted a crime involving moral turpitude for purposes of removal; 2) a remand is ordered to determine whether petitioner's sentence was unlawful on its face, and thus could not support a charge of removability as an aggravated felon; and 3) petitioner is held to be eligible for INA section 212(c) waiver of inadmissibility relief.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374533p.pdf
US v. Reina-Rodriguez (11/15/06 - No. 05-10475)
Burglary of a dwelling under Utah law categorically fits the Sentencing Guidelines' definition of "burglary of a dwelling." A fifty-one month sentence for illegal reentry after deportation is affirmed over claims that: 1) application of a sixteen-level enhancement under the sentencing guidelines for a prior Utah conviction for burglarly was erroneous; and 2) the sentence was unreasonable because it improperly considered, as a factor, that he did not plead guilty pursuant to a plea agreement.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf
Here are some of the cases which were decided in Federal Court between 11/06/06 and 11/10/06 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Chen v. U.S. Dep't of Justice (11/06/06 - No. 06-0762)
Denial of application for asylum, withholding of removal, and relief under the Convention Against Torture, is remanded to the BIA to: 1) determine if documents identified in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006) are authentic and whether they establish the existence of an official policy of forced sterilization of parents of two or more children, including parents such as petitioner whose children were born abroad; and 2) reassess petitioner's claim that she risks forced sterilization if returned to her home city in China.
http://caselaw.lp.findlaw.com/data2/circs/2nd/060762p.pdf
Singh v. Gonzales (11/08/06 - No. 05-5181)
Petition for review of order denying adjustment of status after motion to reopen was granted is denied where the petitioner was barred from such relief by 8 U.S.C. section 1229c(d) because he failed to comply with a voluntary departure order prior to filing his motion to reopen.
http://caselaw.lp.findlaw.com/data2/circs/2nd/055181p.pdf
U.S. 7th Circuit Court of Appeals
Ali v. Achim (11/06/06 - No. 05-1194)
Denial of habeas corpus petition is dismissed as moot. Petition for review of BIA denial of waiver of inadmissibility, asylum, and withholding of removal is denied where the Attorney General acted within his discretion when he established the heightened waiver standard for violent or dangerous criminal refugees, and the BIA did not apply an incorrect legal standard when it determined that petitioner committed a "particularly serious" crime for purposes of ineligibility for asylum and withholding of removal. Petition for review of denial of application under the Convention Against Torture is granted where the BIA left open the question whether petitioner would face torture "at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
http://caselaw.lp.findlaw.com/data2/circs/7th/051194p.pdf
Lino v. Gonzales (11/06/06 - No. 05-1078)
Petition for review of reinstatement of removal order and the denial of adjustment of status application is denied where section 241(a)(5) of the INA plainly precludes a previously removed alien who has since illegally reentered the U.S. from adjusting her status under section 245(i), and petitioner does not fall within any Congressionally recognized exemption from section 241(a)(5).
http://caselaw.lp.findlaw.com/data2/circs/7th/051078p.pdf
U.S. 10th Circuit Court of Appeals
US v. Cruz-Mendez (11/06/06 - No. 05-4296)
A conviction for illegal reentry is affirmed over a challenge to a denial of a motion to suppress evidence where: 1) officers' "knock and talk" was not a Fourth Amendment intrusion; 2) there was no clear error in finding that defendant's girlfriend consented to officers' entrance into the living room of her apartment; 3) a cellular phone observed by the officers in the apartment living room was in plain view; 4) the district court did not clearly err in finding that the girlfriend consented to a search of the bedroom; and 5) officers had probable cause to arrest defendant.
http://laws.lp.findlaw.com/10th/054296.html
US v. Valtierra-Rojas (11/09/06 - No. 05-3390)
A sentence for illegal reentry after deportation for an aggravated felony, which was thirty-three months above the high-end of the sentencing range recommended by the Sentencing Guidelines, is affirmed where, although the increase was substantial, it was reasonable under the compelling facts of the case, particularly defendant's propensity for dangerous criminal conduct when he is drinking.
http://laws.lp.findlaw.com/10th/053390.html
Here are some of the cases which were decided in Federal Court between 10/30/06 and 11/03/06 which affect immigration law.
U.S. 1st Circuit Court of Appeals
Orelien v. Gonzales (11/03/06 - No. 06-1085)
Petition for review of BIA denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is denied over petitioner's argument that the BIA erred in refusing to grant relief because he presented strong and credible evidence of persecution, both past and anticipated.
http://laws.lp.findlaw.com/1st/061085.html
U.S. 2nd Circuit Court of Appeals
Lin vs US Dep't. of Justice (10/30/06 - No. 06-2356)
Motion to remand to BIA based on new evidence suggesting the existence of an official policy of forced sterilization in Changle City, Fujian Province, China, is granted and case is remanded: 1) so that the BIA may determine whether evidence establishes the existence of an official policy, in Changle City or Fujian Province generally, of forced sterilization of parents of two or more children, including parents whose children were born abroad; and 2) so that the BIA may reassess, in light of this evidence, petitioner's claim that he risks forced sterilization if returned to his home province in China.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062356p.pdf
Hoxhallari v. Gonzales (10/31/06 - No. 04-2922)
Petition for review of denial of an application for asylum, withholding of removal, and relief under the Convention Against Torture, is denied where country conditions are sufficiently evident and concern a country that is the subject of an appreciable proportion of asylum claims, an immigration judge need not recite robotic findings when relying on changed country conditions under the Immigration and Naturalization Act.
http://caselaw.lp.findlaw.com/data2/circs/2nd/042922p.pdf
Silva-Carvalho Lopes vs Gonzales (11/02/06 - No. 05-6878)
Denial of motion to reopen and rescind an in absentia order of removal is vacated where, although the BIA properly applied a presumption of receipt because the record establishes that the notice to appear was accurately addressed and mailed according to normal office procedures, the BIA exceeded its discretion by failing to consider all the circumstantial evidence that petitioner offered to rebut that presumption.
http://caselaw.lp.findlaw.com/data2/circs/2nd/056878p.pdf
U.S. 3rd Circuit Court of Appeals
Ghebrehiwot v. Attorney Gen. of the US (11/03/06 - No. 05-3847)
A petition for review of a denial of petitioner's applications for asylum, withholding of removal and additional relief, is granted where: 1) the IJ failed to consider certain evidence which had been submitted in finding that petitioner did not establish a well-founded fear of persecution based on his religion; and 2) the IJ committed legal error in holding that failure to meet the evidentiary burden for asylum precluded relief under the U.N. Convention Against Torture.
http://caselaw.lp.findlaw.com/data2/circs/3rd/053847p.pdf
U.S. 5th Circuit Court of Appeals
US v. Villegas-Hernandez (10/31/06 - No. 05-40988)
Defendant's sentence for being unlawfully present in the U.S. following deportation pursuant to a conviction is vacated where the district court erred in applying an eight-level sentence enhancement because his prior Texas conviction for assault is not a "crime of violence" as defined for this purpose by the sentencing guidelines.
http://caselaw.lp.findlaw.com/data2/circs/5th/0540988cr0p.pdf
US v. Santiesteban-Hernandez (10/31/06 - No. 05-50399)
Defendant's sentence for illegal reentry is affirmed over claims that: 1) his conviction for robbery under Texas Penal Code section 29.02(a)(1) did not qualify as a crime of violence under section 2L1.2 of the Sentencing Guidelines; and 2) the application of the enhancement penalties of 8 U.S.C. section 1326(b)(1) violated his due process rights.
http://caselaw.lp.findlaw.com/data2/circs/5th/0550399cr0p.pdf
US v. Zuniga-Amezquita (10/31/06 - No. 06-40081)
A sentence for bringing in and harboring certain aliens is affirmed where defendant's method of transporting aliens created a substantial risk of death or serious bodily injury, for purposes of the challenged sentence enhancement at issue.
http://caselaw.lp.findlaw.com/data2/circs/5th/0640081cr0p.pdf
U.S. 6th Circuit Court of Appeals
Amir v. Gonzales (11/02/06 - No. 04-3538)
Petition for review of a denial of claims for asylum and related relief is denied in part and granted in part with respect to a claim based on the United Nations Convention Against Torture (CAT) where the IJ's reliance on a BIA decision which was manifestly contrary to law required vacatur and a remand for further proceedings.
http://caselaw.lp.findlaw.com/data2/circs/6th/043538p.pdf
U.S. 7th Circuit Court of Appeals
U.S. v. Villareal-Tamayo (10/30/06 - No. 05-3514)
Sentence enhancement for re-entering the US after deportation following a conviction for an aggravated felony is affirmed where the Constitution does not require an enhancement based on recidivism to be treated as an element of the underlying offense.
http://caselaw.lp.findlaw.com/data2/circs/7th/053514p.pdf
Ahmed v. Gonzales (11/02/06 - No. 05-2071)
Petition for review of denial of asylum is denied where the IJ's conclusion that petitioner did not suffer past persecution and has no well-founded fear of future persecution was supported by substantial evidence.
http://caselaw.lp.findlaw.com/data2/circs/7th/052071p.pdf
U.S. 9th Circuit Court of Appeals
Nath v. Gonzales (11/03/06 - No. 05-16557)
A petition for review of a denial of petitioner's motion to reopen is granted where: 1) the court had jurisdiction to review the denial of the motion to reopen; 2) the BIA erred by placing on petitioner the burden of proving that his first conviction was vacated for substantive, non-immigration related reasons; 3) the government failed to carry its burden of proof as to the reasons for the vacatur; and 4) the BIA erred in determining that the state crime to which petitioner pled guilty a second time qualified as an aggravated felony for immigration purposes.
http://caselaw.lp.findlaw.com/data2/circs/9th/0516557p.pdf
Here are some of the cases which were decided in Federal Court between 10/23/06 and 10/27/06 which affect immigration law.
U.S. 1st Circuit Court of Appeals
Gao v. Gonzales (10/26/06 - No. 05-2330)
Petition for review of denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied where petitioner failed to exhaust his administrative remedies for his due process claim, and substantial evidence supported the IJ's adverse credibility determinations on petitioner's forced sterilization and religious persecution claims.
http://laws.lp.findlaw.com/1st/052330.html
U.S. 2nd Circuit Court of Appeals
Beskovic vs Gonzales (10/24/06 - No. 05-4172)
Petition for review of application for asylum and withholding of removal is granted, and the denial vacated and remanded, where the IJ's analysis of the issue of past persecution was insufficient for the court to determine whether he applied the correct legal standard.
http://caselaw.lp.findlaw.com/data2/circs/2nd/054172p.pdf
U.S. 4th Circuit Court of Appeals
Afeta v. Gonzales (10/26/06 - No. 05-1174)
Order of removal, based on petitioner's status as an alien convicted of an aggravated felony and two crimes involving moral turpitude, is affirmed over claim of petitioner, an Ethiopian national, that he automatically became a citizen as a minor when his mother was naturalized.
http://caselaw.lp.findlaw.com/data2/circs/4th/051174p.pdf
U.S. 5th Circuit Court of Appeals
US v. Zamora-Vallejo (10/23/06 - No. 05-40092)
A sentence for being in the U.S. illegally after having been deported is vacated and remanded where the district court's decision to run defendant's sentences consecutively for crimes that were unrelated yet triggered by the same conduct did not demonstrate beyond a reasonable doubt that the sentence would have been the same under an advisory, as opposed to mandatory, Sentencing Guidelines scheme.
http://caselaw.lp.findlaw.com/data2/circs/5th/0540092cr0p.pdf
Tesfamichael v. Gonzales (10/24/06 - No. 04-61180)
A petition for review of a decision denying petitioners asylum, individually and as a married couple, from Eritrea and Ethiopia is denied where there was no error as to the resolution of either their individual claims for asylum, or their claim for asylum on the basis that they will be separated if removed to their respective countries, which are in a state of conflict.
http://caselaw.lp.findlaw.com/data2/circs/5th/0461180cv1p.pdf
Smith v. Gonzales (10/24/06 - No. 06-60020)
Petition for review of a dismissal by the BIA of petitioner's appeal from a decision denying his application for the discretionary relief of cancellation of removal is vacated and remanded where petitioner's state conviction for criminal sale of marijuana in the fourth degree did not qualify as an "aggravated felony" under the Immigration and Nationalization Act (INA) for purposes of barring discretionary relief.
http://caselaw.lp.findlaw.com/data2/circs/5th/0660020cv0p.pdf
U.S. 6th Circuit Court of Appeals
Ramaj v. Gonzales (10/24/06 - No. 05-3531)
A petition for review of a denial of an application for asylum and withholding of removal based on alleged persecution in Albania is denied where: 1) an adverse credibility determination did not constitute reversible error; 2) there was a sufficient basis for the exclusion of certain documents; and 3) substantial evidence supported a conclusion that changed country conditions refuted any presumption of a well-founded fear of future persecution, and thus, any errors on the issues of credibility and certain documents were harmless.
http://caselaw.lp.findlaw.com/data2/circs/6th/053531p.pdf
U.S. 7th Circuit Court of Appeals
Balliu v. Gonzales (10/27/06 - No. 04-1468)
In an asylum case involving a claim that Serbian officials persecuted petitioner in retaliation for his participation in a pro-Albanian political organization, a petition for review of an order of removal is granted where the immigration judge misallocated the burden of demonstrating a well-founded fear of future persecution.
http://caselaw.lp.findlaw.com/data2/circs/7th/041468p.pdf
U.S. 9th Circuit Court of Appeals
Fernandez-Ruiz v. Gonzales (10/26/06 - No. 03-74533)
The en banc court rules that petitioner is not removable for his 2003 Arizona conviction for domestic violence since it was not a "crime of domestic violence" under a federal statute that triggers removal of a legally admitted resident alien from the U.S., and the matter is returned to the original panel for resolution of the remaining issues.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374533p.pdf
U.S. 11th Circuit Court of Appeals
Mingkid v. U.S. Attorney Gen. (10/26/06 - No. 05-14484)
Denials of applications for asylum and withholding of removal, and finding pplications were frivolous, are vacated where: 1) the frivolity determination was not based on a specific finding that petitioners deliberately fabricated a material element of their applications; and 2) petitioners were not allowed a sufficient opportunity to account for the inconsistencies relied on by the IJ in making the frivolity determination.
http://caselaw.lp.findlaw.com/data2/circs/11th/0514484p.pdf
Here are some of the cases which were decided in Federal Court between 10/16/06 and 10/20/06 which affect immigration law.
U.S. 7th Circuit Court of Appeals
Ahmed v. Gonzales (10/16/06 - No. 05-3965)
Petition for review of an IJ's decision that did not address a family-based visa petition that had been filed in petitioner's case, and that petitioner alleged grandfathered him under section 245(i) of the Immigration and Nationality Act, is granted where: 1) the court has jurisdiction to review a discretionary decision that would, without stated reasons consistent with the statute, operate to prevent an alien from pursuing statutory rights; and 2) petitioner was correct that the family-based petition grandfathered him under the INA.
http://caselaw.lp.findlaw.com/data2/circs/7th/053965p.pdf
US v. Roche-Martinez (10/19/06 - No. 05-4618)
Conviction and sentence for being in the US after being deported following a conviction for an aggravated felony is affirmed where: 1) unlawful entry into the home of a criminal defendant does not make the defendant's subsequent detention unlawful, or the evidence collected during the detention inadmissible, if probable cause existed to arrest the defendant; and 2) defendant's sentence was not unreasonable.
http://caselaw.lp.findlaw.com/data2/circs/7th/054618p.pdf
Chakir v. Gonzales (10/19/06 - No. 05-3948)
Petition for review of denial of asylum application is denied where: 1) petitioner's contention that he was denied a reasonable opportunity to present his evidence failed because he did not show any prejudice resulting from the IJ's conduct during the asylum hearing; and 2) petitioner did not establish that he has a well-founded fear of future persecution.
http://caselaw.lp.findlaw.com/data2/circs/7th/053948p.pdf
U.S. 9th Circuit Court of Appeals
US v. Nguyen (10/18/06 - No. 06-30011)
A conviction under 8 U.S.C. section 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not "commit any crimes" -- is reversed where defendant's misdemeanor nolo contendere convictions were legally insufficient to support his conviction under section 1253(b), and moreover, the convictions should not have been admitted under Rules 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged.
http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf
Velazquez-Herrera v. Gonzales (10/19/06 - No. 04-72417)
A petition for review of a decision of the BIA -- finding that petitioner's conviction under Washington's fourth degree assault statute constituted a crime of child abuse under 8 U.S.C. section 1227(a)(2)(E)(i), thus making him removable and ineligible for discretionary relief -- is granted, and the matter remanded to the BIA so that it may issue a precedential decision defining what constitutes a crime of child abuse for purposes of section 1227(a)(2)(E)(i) and apply that definition to petitioner's conviction in accordance with Taylor v. United States, 495 U.S. 575 (1990).
http://caselaw.lp.findlaw.com/data2/circs/9th/0472417p.pdf
U.S. 11th Circuit Court of Appeals
Mezvrishvili v. U.S. Attorney Gen. (10/17/06 - No. 06-11668)
Denial of application for asylum, filed by citizen of Republic of Georgia who was a Jehovah's Witness and who alleged he suffered past persecution for his religious beliefs, is vacated where the BIA and IJ failed to give reasoned consideration to the application and make adequate findings.
http://caselaw.lp.findlaw.com/data2/circs/11th/0611668p.pdf
Here are some of the cases which were decided in Federal Court between 10/09/06 and 10/13/06 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Shao vs Board of Immigration Appeals (10/12/06 - No. 04-3965)
Denial of application for asylum and other relief, based on finding that petitioner's testimony on his fear of persecution was not credible, is vacated and remanded for the BIA to decide in the first instance whether a person who fathers or gives birth to two or more children in China, in apparent violation of China's family planning policies, may qualify on that basis alone as a person who has a well founded fear that he or she will be forced by the Chinese government to abort a pregnancy or to undergo involuntary sterilization and may accordingly qualify as a refugee.
http://caselaw.lp.findlaw.com/data2/circs/2nd/043965p.pdf
US v. Pereira (10/13/06 - No. 05-5969)
Sentence to non-Guidelines term of imprisonment of 62 months and three years supervised release, after guilty plea to illegally reentering the U.S. after having been deported following a 1998 conviction for commission of an aggravated felony, is affirmed over principal claim that the district court, when calculating the applicable sentence range under U.S.S.G. section 2L1.2, improperly increased defendant's offense level on the basis of the 1998 conviction, for which he was adjudicated a youthful offender under New York State law.
http://caselaw.lp.findlaw.com/data2/circs/2nd/055969p.pdf
U.S. 5th Circuit Court of Appeals
US v. Hernandez-Rodriguez (10/10/06 - No. 05-51429)
The offense of "deadly conduct," as defined in Tex. Penal Code Ann. section 22.05(b)(1), constitutes a crime of violence for purposes of sentence enhancement under U.S.S.G. section 2L1.2(b). A sentence for illegal reentry is affirmed over claims that: 1) the district court erred in finding that a Texas conviction for deadly conduct triggered a 16-level crime-of-violence adjustment under the guidelines; and 2) that, in light of Apprendi, his section 1326 sentence was limited to a maximum two years of imprisonment.
http://caselaw.lp.findlaw.com/data2/circs/5th/0551429cr0p.pdf
Here are some of the cases which were decided in Federal Court between 10/02/06 and 10/06/06 which affect immigration law.
U.S. 3rd Circuit Court of Appeals
Joseph v. Att'y Gen. of the U.S. (10/02/06 - No. 05-1047)
Petition for review of denial of withholding of removal is granted and the matter remanded to the BIA where defendant's 18 U.S.C. section 922(a)(3) conviction for transporting firearms across state lines was not an aggravated felony of "illicit trafficking in firearms" under 8 U.S.C. section 1101(a)(43)(C).
http://caselaw.lp.findlaw.com/data2/circs/3rd/051047p.pdf
U.S. 5th Circuit Court of Appeals
Amouzadeh v. Winfrey (10/05/06 - No. 04-50903)
Unlawful procurement of naturalization in violation of 18 U.S.C. section 1425(a) is a crime involving moral turpitude under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act (INA), as amended.
http://caselaw.lp.findlaw.com/data2/circs/5th/0450903cv0p.pdf
U.S. 6th Circuit Court of Appeals
Pickering v. Gonzales (10/04/06 - No. 03-3928)
Petition for review of a BIA order permanently barring petitioner from the US is granted and the matter remanded to the BIA with orders to quash an order of deportation and terminate deportation proceedings where the INS did not prove that a Canadian court quashed the petitioner's drug conviction solely to avoid adverse immigration consequences.
http://caselaw.lp.findlaw.com/data2/circs/6th/033928p.pdf
U.S. 7th Circuit Court of Appeals
Sepulveda v. Gonzales (10/02/06 - No. 05-4035)
Petition for review of the denial of an asylum application by a former employee of the Colombian Attorney General's office is granted and the matter remanded for further proceedings where the petitioner was a member of a distinct social group, but had not yet established a reasonable fear of being persecuted if he returns to Colombia.
http://caselaw.lp.findlaw.com/data2/circs/7th/054035p.pdf
Petrov v. Gonzales (10/06/06 - No. 05-4696)
Petition for review of denial of withholding of removal is dismissed for lack of jurisdiction where: 1) the decision whether the petitioner's conviction was for a "particularly serious" crime is discretionary and not subject to review; 2) petitioner's conviction was for an aggravated felony, which blocks review of the removal order; 3) the aggravated felony rule contains no exception for claims under the Convention Against Torture; and 4) there were no legal or constitutional claims that would give the court jurisdiction.
http://caselaw.lp.findlaw.com/data2/circs/7th/054696p.pdf
U.S. 9th Circuit Court of Appeals
Mendez-Alcaraz v. Gonzales (10/02/06 - No. 04-74268)
Denial of motion for reconsideration of deportation order is affirmed where the motion was untimely and petitioner was not entitled to equitable tolling.
http://caselaw.lp.findlaw.com/data2/circs/9th/0474268p.pdf
Bazua-Cota v. Gonzales (10/03/06 - No. 06-70717)
Petition for review of BIA's final order of removal is dismissed where the court lacks jurisdiction to review the BIA's discretionary denial of adjustment of status.
http://caselaw.lp.findlaw.com/data2/circs/9th/0670717p.pdf
Cisneros-Perez v. Gonzales (10/04/06 - No. 04-71717)
Petition for review of an IJ decision that petitioner was ineligible for cancellation of removal because of a battery conviction is granted and the case remanded for further proceedings where there was insufficient documentation to establish that petitioner's prior conviction was necessarily a crime of domestic violence.
http://caselaw.lp.findlaw.com/data2/circs/9th/0471717p.pdf
U.S. 10th Circuit Court of Appeals
Brue v. Gonzales (10/06/06 - No. 05-9569)
A petition for review of a final order of removal made pursuant to a finding that petitioner was an alien and removable because he committed an aggravated felony is denied over claims that: 1) because he met the statutory requirements for naturalization when his adoptive parents tendered an application on his behalf, he automatically acquired citizenship and was not subject to removal; 2) removal proceedings violated his Fifth Amendment due process rights because he was mentally incompetent; and 3) the agency failed to consider the appropriate factors when finding that he had committed a "particularly serious crime."
http://laws.lp.findlaw.com/10th/059569.html
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