CASES ARCHIVES
Follow these links to find cases of note in Deportation Defense which were decided in the previous year, or scroll down to find cases decided within the last two months.
CASES DECIDED IN FEDERAL COURT IN FEBRUARY / MARCH 2008
March 31- April 04, 2008
U.S. 1st Circuit Court of Appeals, March 31, 2008
Cuko v. Mukasey , No. 07-1273
Petition for review of a BIA order denying petitioner's application for asylum is denied over claims that: 1) the IJ improperly assumed the role of a government attorney by engaging in "prosecutorial questioning"; and 2) the IJ's adverse credibility determinations based on his perceptions of testimonial inconsistencies and witnesses' demeanors were not supported by the record. Read more...
U.S. 3rd Circuit Court of Appeals, April 03, 2008
Kaita v. Atty Gen. of US, No. 06-3288
Petition for review of a BIA decision denying claims for asylum, withholding of removal, and CAT protection, is granted in part and vacated in part where: 1) the trial transcript suggested that petitioner was unable to complete her testimony, and such deficiency impeded the court's appellate review; and 2) the adverse credibility finding was not supported by substantial evidence as the asserted inconsistencies and omissions were minor and did not go to the heart of petitioner's claims. Read more...
U.S. 7th Circuit Court of Appeals, April 03, 2008
Irasoc v. Mukasey, No. 07-2406
Petition for review of a denial of withholding of removal is granted where the IJ employed an incorrect legal standard because he required a showing of serious injuries when denying petitioner's claim of past persecution. Read more...
U.S. 7th Circuit Court of Appeals, April 04, 2008
Ali v. Mukasey, No. 07-1970
Petition for review of a finding that a resident alien's criminal offense was one of moral turpitude such that a waiver of ineligibility for admission was unavailable is denied where: 1) when deciding how to classify convictions under criteria that go beyond the criminal charge, such as the amount of the victim's loss, or whether the crime is one of moral turpitude, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction; and 2) substantial evidence supports the IJ's decision (which the BIA joined) that petitioner's crime entailed concealment and deceit, thus was a crime of moral turpitude. Read more...
U.S. 8th Circuit Court of Appeals, April 03, 2008
Bah v. Mukasey , No. 07-2072
In an action seeking as writ of mandamus to compel the USCIS to grant petitioner's application for Temporary Protected Status, the case is dismissed where the court was without jurisdiction to hear petitioner's claim of removal as: 1) the BIA vacated its previous order of removal and remanded to the IJ for further proceedings; and 2) there was no final order of removal at this time. Read more...
U.S. 9th Circuit Court of Appeals, March 31, 2008
Momeni v. Chertoff, No. 07-55018
An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal, other than on the basis of asylum. Read more...
U.S. 9th Circuit Court of Appeals, April 02, 2008
Sanchez v. Mukasey, No. 04-75584
Petition for review of a denial of Mexican petitioner's application for cancellation of removal, which was based on his lacking the requisite good moral character due to smuggling his alien wife into the country, is granted where: 1) the case is controlled by Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), which found that the "family unity" waiver provision of 8 U.S.C. section 1182(a)(6)(E)(iii) applies to applications for cancellation of removal; and 2) petitioner appeared to be eligible for the family unity waiver. Read more...
U.S. 9th Circuit Court of Appeals, April 02, 2008
Gutierrez v. Mukasey, No. 04-75650, 06-70551
Petition for review of a denial of petitioner's application for cancellation of removal is denied where petitioner's departure from the United States in 1990 interrupted the accrual of his continuous physical presence for purposes of his application for cancellation of removal. Read more...
March 24- March 28, 2008
U.S. 1st Circuit Court of Appeals, March 26, 2008
Lin v. Mukasey, No. 07-1658
Petition for review of a BIA order denying Chinese petitioner's claims for asylum and related relief is denied over a claim that BIA arrived at an adverse credibility finding which was unsupported by substantial evidence. Read more...
U.S. 1st Circuit Court of Appeals, March 27, 2008
Tandayu v. Mukasey , No. 07-1738
Petition for review of BIA's denial of petitioner's second motion to reopen a removal proceeding is denied where the BIA did not abuse its discretion in concluding that additional evidence submitted by petitioner did not establish a change of conditions in petitioner's country of origin. Read more...
U.S. 2nd Circuit Court of Appeals, March 25, 2008
James v. Mukasey, No. 06-5163
Petition for review of a BIA decision finding petitioner removable for having committed an aggravated felony is granted in part, dismiss in part, and vacated in part where: 1) the BIA's decision on the issue was based on an incorrect premise in assuming that courts treat petitioner's statute of conviction, New York Penal Law section 260.10, as divisible when in fact that is an open question; and 2) reconsideration is warranted as to whether petitioner's conviction for Endangering the Welfare of a Child under New York law constitutes the aggravated felony of sexual abuse of a minor under the INA. Read more...
U.S. 2nd Circuit Court of Appeals, March 26, 2008
Brito v. Mukasey, No. 06-3974
Petition for review of the BIA's denial of an application for adjustment status is denied where: 1) petitioner failed to exhaust before the agency the issue of his designation as an arriving alien; 2) the IJ lacked jurisdiction to adjudicate petitioner's present application for adjustment of status as it is new and separate from his previously filed application; and 3) petitioner lacked standing to assert his claim that regulations withholding from immigration judges jurisdiction to adjudicate adjustment of status applications are ultra vires. Read more...
U.S. 2nd Circuit Court of Appeals, March 27, 2008
Poole v. Mukasey , No. 06-4069
A petition for review of BIA's dismissal of an untimely appeal from an order of removal is dismissed in part and remanded in part where: 1) court lacks jurisdiction to consider all of petitioner's claims except his claim for derivative citizenship; and 2) petitioner appears to have met the requirements for derivative citizenship as provided in the section 321 of the INA in 1984 (the law in effect when petitioner fulfilled the last requirement for derivative citizenship) to warrant reconsideration. Read more...
U.S. 2nd Circuit Court of Appeals, March 27, 2008
Jiang v. Mukasey , No. 06-5213
Petition for review of a BIA decision denying petitioner's motion to reopen based on ineffective assistance of counsel is denied where petitioner's decision to withdraw his application for asylum and withholding of removal and to accept a grant of voluntary departure was a reasonable strategic decision which undermines claims of counsel's ineffective assistance. Read more...
U.S. 2nd Circuit Court of Appeals, March 27, 2008
Arriaga v. Mukasey , No. 07-1148
Petition for review of BIA's final order of removal on the basis of petitioner's conviction for the offense of stalking is denied where the stalking provision of the removal statute is not unconstitutionally vague on its face or as applied to the petitioner. Read more...
U.S. 7th Circuit Court of Appeals, March 28, 2008
Desai v. Mukasey, No. 07-1831
Petition for review of a finding of removability is denied where a state conviction for the delivery of a look-alike drug was a crime with a relation to a federal controlled substance sufficient to render petitioner a removable alien. Read more...
U.S. 8th Circuit Court of Appeals, March 25, 2008
Miah v. Mukasey , No. 06-2649, 06-3712
Petition for review of the BIA's determination of ineligibility for asylum and withholding of removal, as well as its refusal to reopen petitioner's removal proceeding, is denied where: 1) substantial evidence supported determinations that petitioner was ineligible for asylum; and 2) the BIA did not abuse its discretion in denying a motion to reopen to obtain adjustment of status. Read more...
U.S. 8th Circuit Court of Appeals, March 28, 2008
Llapa-Sinchi v. Mukasey, No. 07-1774
A petition for review of a BIA decision finding petitioner ineligible for a suspension of deportation is denied where the government properly served petitioner with notice even though: 1) she was only 14 years old at the time; and 2) the government did not serve additional notice on a responsible adult. Read more...
U.S. 8th Circuit Court of Appeals, March 28, 2008
Gitau v. Mukasey, No. 07-1987
A petition for review of a BIA order denying petitioner's motion to reopen and reconsider removal proceedings and upholding the IJ's absentia removal order, is denied where there is no basis to find that BIA abused its discretion in upholding the absentia order even though the petitioner's counsel may have failed to adequately represent her. Read more...
U.S. 9th Circuit Court of Appeals, March 24, 2008
Huang v. Mukasey, No. 04-73309
Petition for review of an order dismissing Chinese petitioners' appeal from a denial of their application for asylum and related relief is granted in part and the matter remanded where the IJ failed to make a credibility finding, and the BIA compounded that error in approving such non-existent finding. Read more...
U.S. 9th Circuit Court of Appeals, March 25, 2008
Orozco v. Mukasey, No. 06-75021
An alien, who obtains entry into the United States by fraudulent means, is statutorily ineligible for adjustment of status under 8 U.S.C. section 1255(a). Read more...
U.S. 9th Circuit Court of Appeals, March 27, 2008
Silah v. Mukasey, No. 06-73857
Petition for review of a denial of application for asylum, withholding of removal and relief under the Convention Against Torture is dismissed where the court lacks jurisdiction to review the denial of petitioner's asylum application since the determination involved an unresolved question of fact, and denied where it was reasonable for the IJ to conclude that circumstances in Sierra Leone have changed such that petitioner's life and freedom were no longer threatened. Read more...
March 17- March 21, 2008
U.S. 1st Circuit Court of Appeals, March 19, 2008
Oliveira v. Mukasey , No. 07-1642, 07-1643
Petition for review of BIA's decision that petitioners were not entitled to withholding of removal or protection under the Convention Against Torture is denied where substantial evidence supported a finding that the petitioners proved neither past persecution nor a likelihood of future persecution. Read more...
U.S. 1st Circuit Court of Appeals, March 21, 2008
Aragon-Munoz v. Mukasey, No. 06-2776
A petition for review of BIA's denial of an alien's motion to reopen his removal proceedings, after he failed to appear at a scheduled hearing, is denied over petitioner's claims that: 1) he never received the Notice to Appear because he moved to another state; and 2) even if the notice were received, the notice was insufficient because he was entitled to an oral warning in Spanish of the consequences of failing to appear. Read more...
U.S. 3rd Circuit Court of Appeals, March 20, 2008
Augustin v. Atty. Gen. of the US, No. 06-4744
Petition for review of a BIA order concluding that petitioner was removable and ineligible for cancellation of removal is denied where the the BIA did not err in refusing to impute to an alien who entered the United States as a minor the alien's parent's years of continuous residence in order to meet the seven-year requirement for cancellation of removal. Read more...
U.S. 6th Circuit Court of Appeals, March 20, 2008
Ahmed v. Mukasey, No. 06-3811
Petition for review brought by a citizen of Yemen of a final order of removal is granted where the BIA abused its discretion in denying a motion to remand to an IJ for further consideration of his eligibility for adjustment of status as a "child" and immediate relative of an American citizen under the Child Status Protection Act (CSPA) and 8 U.S.C. section 1255. Read more...
U.S. 6th Circuit Court of Appeals, March 20, 2008
Graham v. Mukasey, No. 06-4538
Petition for review of an order of removal based on Jamaican petitioner's status as an alien convicted of an aggravated felony is denied over meritless claims that the expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. section 1228(b), violated both his due process and his equal protection rights. Read more...
U.S. 7th Circuit Court of Appeals, March 19, 2008
Haxhiu v. Mukasey, No. 07-1097
Petition for review of a denial of an application for asylum, withholding of removal, and relief under the Convention against Torture is granted where substantial evidence did not support the IJ's findings that petitioner's persecution was not on account of his political opinion and that state actors were not responsible for the harm he alleged. Read more...
U.S. 8th Circuit Court of Appeals, March 19, 2008
Rodriguez v. Mukasey , No. 06-3523
An alien who marks the "citizen or national of the United States" box on a Form I-9 for the purpose of falsely representing himself as a citizen to secure employment with a private employer has falsely represented himself for a purpose or benefit under the Immigration and Nationality Act. Read more...
U.S. 9th Circuit Court of Appeals, March 21, 2008
Canyon County v. Syngenta Seeds, Inc., No. 06-35112
In a case involving an Idaho county's attempt to recover, from defendants, damages under the Racketeer Influenced and Corrupt Organizations Act (RICO) for additional monies it claimed to have expended on public health care and law enforcement services for undocumented immigrants, dismissal of the complaint is affirmed as the county lacked statutory standing for the RICO claims where: 1) county failed to allege that it was injured in its business or property; and 2) with respect to almost all of defendants' alleged RICO violations, county could not show that its claimed injuries were proximately caused by defendants' conduct. Read more...
March 10- March 14, 2008
U.S. 1st Circuit Court of Appeals, March 13, 2008
Sela v. Mukasey, No. 07-1837
Petition for review of a denial of an application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) the court lacks jurisdiction to review the IJ and BIA's determination that the asylum application was time-barred; 2) the IJ and BIA reasonably found that petitioner had failed to establish past persecution or a clear probability of future persecution; and 3) petitioner did not exhaust the administrative remedies relating to his CAT application. Read more...
U.S. 1st Circuit Court of Appeals, March 14, 2008
Ramirez v. Mukasey, No. 07-1655
Petition for review of an order of removal is denied where the BIA correctly classified petitioner's conviction for the Massachusetts crime of indecent assault and battery on a person who has attained the age of fourteen as a "crime of violence" that rendered petitioner removable and ineligible for any form of relief from removal. Read more...
U.S. 2nd Circuit Court of Appeals, March 13, 2008
Singh v. Mukasey, No. 07-1688
Section 511(a) of the Immigration Act of 1990's exclusion of "an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years" from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien who pled guilty to a disqualifying felony after the Act's enactment, even though he confessed guilt to police prior to the enactment. Also, section 404(d) of the AEDPA's exclusion of all aliens convicted of "aggravated felonies" from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien whose conviction pre-dated the AEDPA, but who was statutorily barred from discretionary relief by the time he sought such relief even under pre-AEDPA law because he had already served more than five years imprisonment. Read more...
U.S. 2nd Circuit Court of Appeals, March 14, 2008
Jiang v. Bureau of Citizenship and Immigration Servs., No. 06-4580
A decision finding that petitioner was ineligible for asylum and withholding of removal on the basis of "persecutor bar" under 8 U.S.C. sections 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i) is vacated and remanded where the BIA has not yet articulated in a precedential decision its position regarding whether and under what conditions involuntary intrauterine device (IUD) insertion constitutes persecution, and the BIA has taken inconsistent positions on the issue. Read more...
U.S. 2nd Circuit Court of Appeals, March 14, 2008
Ni v. Bd. of Immigration Appeals, No. 06-4477, 06-5239, 06-5302
Petitions for review of BIA orders denying petitioners' respective motions to reopen removal proceedings is granted where BIA erred in denying these motions by failing to support its decision with a rational explanation. Read more...
U.S. 3rd Circuit Court of Appeals, March 14, 2008
Yusupov v. US Attorney General , No. 05-4232, 05-5411
Petitions for review of decisions finding, inter alia, Uzbek petitioners barred from withholding of removal under the national security exception are remanded where: 1) although Chevron deference was warranted as to the Attorney General's interpretation of the reasonableness and danger requirements in the exception; 2) however, his interpretation conflicted with the intent of Congress by altering the requirement that an alien "is" a danger to national security to one where an alien "may pose" a danger to national security; and 3) a remand was required for application of the proper standard. Read more...
U.S. 3rd Circuit Court of Appeals, March 14, 2008
Vakker v. US Attorney General , No. 06-1949
Petition for review of BIA's denial of a motion to remand a case for reconsideration of "paroled" alien's requested renewal of a previously denied application for adjustment status is denied over petitioner's claims that the BIA's denial of his motion was: 1) inadequate; and 2) denied him due process of law. Read more...
U.S. 5th Circuit Court of Appeals, March 11, 2008
Martinez v. Mukasey, No. 06-60063
Petition for review of a decision sustaining a removability charge and denying petitioner statutory eligibility for a waiver of inadmissibility is denied in part, granted in part, and remanded where: 1) petitioner's bank-fraud conviction was an aggravated felony for purposes of the INA, and thus the circuit court lacked jurisdiction to review the removal order; but 2) for aliens who adjust post-entry to lawful permanent resident (LPR) status, INA section 212(h)'s plain language demonstrates unambiguously Congress' intent not to bar them from seeking a waiver of inadmissibility. Read more...
U.S. 5th Circuit Court of Appeals, March 12, 2008
Toledo-Hernandez v. Mukasey, No. 05-60901
For purposes of exhausting administrative remedies prior to court review of a final order of removal, if the BIA has never been given the opportunity to consider an issue but has the mechanisms to remedy it, even where the 90-day period for presenting a motion to reopen has passed, a petitioner must first present the issue to the Board in the form of a motion to reopen for exceptional circumstances. Read more...
U.S. 7th Circuit Court of Appeals, March 11, 2008
Gao v. Mukasey, No. 06-4431
Petition for review of the BIA's denial of a motion to reopen asylum proceedings is denied where the petitioner was not entitled to equitable tolling of the 90-day period in which to file a motion to reopen since he did not show that a diligent attempt to comply with the deadline would have failed. Read more...
U.S. 7th Circuit Court of Appeals, March 13, 2008
Escobar-Barraza v. Mukasey, No. 07-2502
Petition for review of a determination of inadmissibility is granted where, although the petitioner was inadmissible, he qualified for a waiver under 8 U.S.C. section 1182(h) since his conviction for possession of drug paraphernalia related to a single offense of simple possession of 30 grams or less of marijuana. Read more...
U.S. 7th Circuit Court of Appeals, March 13, 2008
US v. De Horta Garcia, No. 07-2060
Conviction for illegal re-entry is affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where: 1) defendant is barred from a collateral attack on his deportation order since the alleged violation did not make the deportation order fundamentally unfair; and 2) relief under INA section 212(c) is not available to any alien whose removal proceeding began after repeal except those who affirmatively abandoned rights or admitted guilt in reliance on section 212(c) relief, and defendant did not demonstrate such affirmative reliance. Read more...
U.S. 8th Circuit Court of Appeals, March 11, 2008
Tamenut v. Mukasey, No. 05-4418
The decision whether to reopen removal proceedings sua sponte is committed to the BIA's discretion by law, 5 U.S.C. section 701(a)(2), and the circuit court lacks jurisdiction to review the agency's discretionary decision. Read more...
U.S. 8th Circuit Court of Appeals, March 14, 2008
Liadov. v. Mukasey, No. 06-3522
Petition for review of BIA's dismissal of administrative appeal as untimely by one day is denied where: 1) the BIA did not abuse its discretion in refusing to certify the case due to a courier's failure to meet its contractual commitment of next-day delivery; and 2) BIA's filing deadline and self-certification procedure without forgiving overnight delivery delays did not violate due process in depriving alien appellants a meaningful opportunity to be heard. Read more...
U.S. 8th Circuit Court of Appeals, March 14, 2008
Hanan v. Mukasey, No. 07-1203
Petition for review of BIA's denial of an Afghanistan citizen's motion to reopen his immigration proceedings is denied over: 1) a due process claim that the BIA failed to properly consider submitted country reports and an affidavit; and 2) arguments that the BIA used the incorrect standard for acquiescence. Remainder of plaintiff's petition is dismissed for lack of subject matter jurisdiction. Read more...
U.S. 9th Circuit Court of Appeals, March 11, 2008
Lemus-Galvan v. Mukasey, No. 04-72651
Petition for review of a denial of petitioner's deferral of removal claim under the Convention Against Torture (CAT) is denied where: 1) the circuit court was not barred from considering the petition; and 2) substantial evidence supported the denial as petitioner failed to establish that internal relocation within Mexico was impossible. Read more...
U.S. 9th Circuit Court of Appeals, March 11, 2008
Mustanich v. Mukasey, No. 04-74290
Petition for review of a final order of removal by the BIA is denied where the circuit court rejects a claim that, although petitioner did not file an application for naturalization prior to the applicable statutory deadline, the government was equitably estopped from denying his citizenship because its own affirmative misconduct precluded a timely filing. A motion to transfer the case to the district court for an evidentiary hearing regarding his possible United States citizenship is denied as there was no genuine issue of material fact concerning nationality. Read more...
March 03- March 07, 2008
U.S. 2nd Circuit Court of Appeals, March 04, 2008
Savchuk v. Mukasey, No. 06-3383
Petition for review challenging upholding of petitioners's removability under 8 U.S.C. section 1227(a)(2)(A)(ii) and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where: 1) since petitioner's grand larceny conviction qualifies as a conviction under 8 U.S.C. section 1101(a)(48)(A), the BIA correctly found him removable; 2) petitioner raises no constitutional claims and there are no errors of law; and 3) petitioner's claim regarding being subject to torture was too speculative in that it involves a chain of assumptions regarding the respondent's potential economic situation in Ukraine. Read more...
U.S. 2nd Circuit Court of Appeals, March 07, 2008
Corovic v. Mukasey, No. 07-0156
Petition for review of denial of asylum, withholding of removal, and relief under the Convention Against Torture is granted where: 1) the submission of certain documents to the Macedonian government violated petitioners' right of confidentiality protected by 8 C.F.R. section 208.6; 2) the BIA and IJ erred in relying on evidence that the IJ had previously excluded; and 3) an adverse credibility determination cannot rest on an applicant's submission of fraudulent documents unless accompanied by a factual finding that the asylum applicant knew the submitted documents were fraudulent. Read more...
U.S. 3rd Circuit Court of Appeals, March 06, 2008
Kosak v. Aguirre, No. 06-4055
In the context of section 203(a)(4) of the Immigration and Nationality Act, which grants a visa preference to "[q]ualified immigrants who are the brothers or sisters of citizens of the United States", the BIA's decision that adopted children may not invoke this visa preference in favor of their biological siblings is a permissible construction of the statute that is entitled to deference under Chevron. Read more...
U.S. 7th Circuit Court of Appeals, March 03, 2008
Jimenez Viracacha v. Mukasey, No. 07-1548
Petition for review of a denial of an application for asylum is dismissed where, although there was a live controversy and a final order in the matter, the court has no jurisdiction over claims concerning IJ decisions to accept or reject untimely asylum applications when those claims only relate to the IJ's factual determinations or applications of law to fact, and involve no constitutional question or allegation of mistake of law. Read more...
U.S. 7th Circuit Court of Appeals, March 03, 2008
Negrete-Rodriguez v. Mukasey, No. 06-1931
Petition for review of a removal order involving a determination that petitioner was ineligible for cancellation of removal is denied where the BIA properly categorized petitioner's Illinois felon-in-possession conviction as an aggravated felony. Read more...
U.S. 7th Circuit Court of Appeals, March 06, 2008
Hussain v. Mukasey, No. 07-3688
Petition for review of a removal order is denied where the BIA correctly concluded that petitioner was removable since he had obtained entry into the U.S. by fraud and had materially supported a terrorist organization. Read more...
U.S. 8th Circuit Court of Appeals, March 03, 2008
Carmenatte-Lopez v. Mukasey, No. 06-3209
Guatemalan citizen's petition for review of a denial of petitioner's application for, inter alia, asylum and withholding of removal, is denied where the record did not compel a conclusion that petitioner's past persecution, fear of future persecution, and threatened death were and are on account of imputed political opinion. Read more...
U.S. 8th Circuit Court of Appeals, March 05, 2008
Pinos-Gonzales v. Mukasey, No. 07-1299
Where the BIA properly applies its own waiver rule and refuses to consider the merits of an argument that was not raised in an initial hearing, the circuit court will not allow circumvention of such discretionary agency procedures by addressing the argument for the first time in a petition for judicial review. Read more...
U.S. 9th Circuit Court of Appeals, March 03, 2008
Blanco v. Mukasey, No. 06-71385
In the context of immigration law, a misdemeanor conviction for false identification to a peace officer under California Penal Code section 148.9(a) is not a crime involving moral turpitude. Read more...
U.S. 9th Circuit Court of Appeals, March 04, 2008
Navarro v. Mukasey, No. 04-70324
Petition for review of a denial of petitioners' motion to reopen their deportation proceedings on the basis that they qualified for the benefits of a particular class action settlement is granted where: 1) petitioners were "scheduled" for a merits hearing between February 13 and April 1, their hearing was continued to a date after IIRIRA took effect, and they were denied relief on the basis of the stop-clock rule; and 2) consequently, they were class members eligible for relief. Read more...
U.S. 9th Circuit Court of Appeals, March 04, 2008
Hong v. Mukasey, No. 06-72823
Petition for review of a removal order is denied where the exclusionary rule does not generally apply in immigration proceedings and petitioner's due process rights were not violated such that probative evidence should have been suppressed. Petition for review of a denial of her application for cancellation of removal is dismissed for lack of jurisdiction. Read more...
U.S. 9th Circuit Court of Appeals, March 04, 2008
Shin v. Mukasey, No. 06-71955, 06-74052
In an immigration case involving an alien who overstayed her tourist visa and then paid for the purchase of a fraudulent alien registration card manufactured by a corrupt federal immigration employee, alien's petition for review of a final order of removal and a denial of a motion to reopen is denied primarily as petitioner could not bar the government from removing her on the grounds that the government was estopped from asserting the green card was bogus. Read more...
U.S. 9th Circuit Court of Appeals, March 05, 2008
Al-Mousa v. Mukasey, No. 06-70638
A petition for review brought by petitioner, a native of Sudan and citizen of Saudi Arabia, of a denial of his applications for asylum and related relief is remanded for the BIA to consider whether, as a matter of law, individuals under twenty-one years of age are minors under 8 C.F.R. section 1208.4(a)(5)(ii). Read more...
February 25- February 29, 2008
U.S. 2nd Circuit Court of Appeals, February 26, 2008
Diaz v. US, No. 06-5301
Dismissal of claim for the return of cash that was seized and forfeited in connection with plaintiff's arrest for violating currency reporting laws is affirmed as the district court lacked subject matter jurisdiction because the claim is barred by sovereign immunity. Read more...
U.S. 2nd Circuit Court of Appeals, February 28, 2008
Walcott v. Chertoff, No. 06-5516
Decision of BIA finding under the AEDPA, that petitioner is deportable as an aggravated felon and ineligible to seek a discretionary waiver of deportation under former section 212(c) of the Immigration and Nationality Act, is vacated where petitioner may assert a claim of reliance under Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004), which if proven before an immigration judge would make AEDPA's section 440(d) impermissibly retroactive as applied to him. (Amended) Read more...
U.S. 6th Circuit Court of Appeals, February 27, 2008
Ramirez-Canales v. Mukasey, No. 05-4504, 06-3990
A BIA decision denying petitioners' application for adjustment of status is affirmed as the circuit court defers to the BIA's interpretation of the relationship between 8 U.S.C. section 1255(i) and section 1182(a), under which petitioners are inadmissible under section 1182(a)(9)(C)(i)(I) due to their illegal reentry into this country after accruing greater than one year of illegal presence. Read more...
U.S. 7th Circuit Court of Appeals, February 25, 2008
Khan v. Mukasey, No. 07-1138
Petition for review of a denial of a request for a discretionary waiver of inadmissibility and an application for an adjustment of status is dismissed for lack of jurisdiction where petitioner failed to raise any viable constitutional claim or question of law. Read more...
U.S. 9th Circuit Court of Appeals, February 27, 2008
Tall v. Mukasey, No. 06-72804
In the context of immigration proceedings, California Penal Code section 350(a), which punishes "[a]ny person who willfully manufactures, intentionally sells, or knowingly possesses for sale any counterfeit...mark", is a crime involving moral turpitude. Read more...
U.S. 10th Circuit Court of Appeals, February 26, 2008
Martin v. Mukasey, No. 06-9572
The fugitive disentitlement doctrine applies in immigration appeals. English citizen's petition for review of a final order of removal is dismissed based on the fugitive disentitlement doctrine. Read more...
California Appellate Districts, February 26, 2008
People v. Paredes, No. D050150
Order granting defendant's motion to reduce sentence from 365 to 364 days in custody to protect him from removal under current federal law is reversed where there was no violation of the plea agreement, which included a judicial recommendation against deportation (JRAD), arising from a retroactive change in federal law subjecting defendant to deportation despite the JRAD. Read more...
February 18- February 22, 2008
U.S. 2nd Circuit Court of Appeals, February 19, 2008
Walcott v. Chertoff, No. 06-5516
BIA decision holding that, under the AEDPA, petitioner's aggravated felony conviction made him ineligible for discretionary relief from deportation under former section 212(c) of the INA is vacated to allow petitioner to assert a claim of reliance under Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004), which if proven before an IJ would make AEDPA's section 440(d) impermissibly retroactive as applied to him. Read more...
U.S. 2nd Circuit Court of Appeals, February 20, 2008
Aris v. Mukasey, No. 07-1211
Denial of motion to reopen deportation proceedings and rescind a deportation order entered in absentia is vacated. A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. Read more...
U.S. 2nd Circuit Court of Appeals, February 21, 2008
Silva v. Mukasey, No. 07-1882
Denial of motion to reopen and rescind an in absentia order of removal is vacated where the BIA improperly applied a strong presumption of receipt of notice. Read more...
U.S. 4th Circuit Court of Appeals, February 20, 2008
Lin v. Mukasey, No. 06-1456
Petition for review of denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture, is granted, primarily, where the BIA's cursory statement on forced IUD insertion in China does not provide sufficient information to conduct a meaningful review of BIA's conclusion that petitioner did not suffer past persecution. Read more...
U.S. 5th Circuit Court of Appeals, February 19, 2008
US v. Tellez-Martinez, No. 06-50647
Defendant's sentence for illegal reentry into the United States after previously being deported is affirmed over a claim that a prior California robbery conviction was not a crime of violence within the meaning of U.S.S.G. section 2L1.2(b)(1)(A)(ii) as the California statute at issue may be violated not only by the use of force but also by threats to property. Read more...
U.S. 6th Circuit Court of Appeals, February 20, 2008
US v. Rivera, No. 06-5573
A sentence for transporting illegal aliens from New Jersey to Tennessee for the purpose of obtaining driver's licenses for the aliens is reversed where the documents defendant procured were not related to immigration or naturalization, and thus, the district court erred in sentencing Rivera under U.S.S.G. section 2L2.1. Read more...
U.S. 7th Circuit Court of Appeals, February 19, 2008
Gaberov v. Mukasey, No. 07-1417
Petition for review of a denial of a motion to reopen immigration proceedings is granted where the evidence that petitioner presented of the BIA's failure to send him notice of an earlier denial of his application for asylum, coupled with his demonstration of due diligence, entitled him to equitable tolling of the 90 day time-limit to file a motion to reopen. Read more...
U.S. 7th Circuit Court of Appeals, February 20, 2008
Derezinski v. Mukasey, No. 07-1221
Petition for review of a denial of a second motion to reopen removal proceedings conducted in absentia is denied where there were no changed circumstances that would justify a reopening and the petitioner could not prove that he did not receive notice of the original hearing. Read more...
U.S. 7th Circuit Court of Appeals, February 22, 2008
Tchemkou v. Mukasey, No. 06-2638
After the grant of a petition for review of a BIA decision, petitioner's motion for attorney's fees and costs is granted where the government's position in the underlying action was not substantially justified. Read more...
U.S. 8th Circuit Court of Appeals, February 19, 2008
Zine v. Mukasey, No. 06-3002, 06-4127
Algerian citizen's petitions for review of a denial of an application for asylum and related relief, as well as a motion to reconsider or reopen the decision, are denied where: 1) the court lacked jurisdiction to review an asylum claim; 2) on withholding and CAT claims, an adverse credibility finding had to be upheld as petitioner's testimony and limited supporting evidence were not so overwhelming as to compel any reasonable adjudicator to find that testimony credible; and 3) there was no abuse of discretion in denying the motion to reopen, as an IJ lacked jurisdiction to consider an adjustment of status application in this asylum-only proceeding. Read more...
February 11- February 15, 2008
U.S. 1st Circuit Court of Appeals, February 13, 2008
Santos v. Mukasey, No. 07-2110
Denial of a claim of derivative citizenship is affirmed where the district court correctly assigned the burden of proof to petitioner and did not clearly err in its choice between two plausible interpretations of the evidence before it. Read more...
U.S. 1st Circuit Court of Appeals, February 14, 2008
Teng v. Mukasey, No. 07-1224
Petition for review of a denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where there was adequate evidence to support the IJ's adverse credibility finding, and where the petitioner's claims of inadequate translation and transcription services did not rise to the level of a due process violation. Read more...
U.S. 1st Circuit Court of Appeals, February 15, 2008
Acevedo-Aguilar v. Gonzales, No. 07-1261
Petition for review of an order of removal is denied where the IJ's determination that petitioner was ineligible for cancellation of removal because he was not continuously present in the United States for the requisite 10 years prior to his application was supported by substantial evidence. Read more...
U.S. 2nd Circuit Court of Appeals, February 14, 2008
Ruiz-Martinez v. Mukasey, No. 05-2903, 05-3662, 06-3605
In immigration cases where habeas corpus relief in the U.S. district courts has been eliminated by the REAL ID Act of 2005 for aliens seeking to challenge orders of removal entered against them, the Suspension Clause of the U.S. Constitution is not violated by the REAL ID Act, but a grace period of 30 days from the effective date of the Act should be afforded to those whose petitions were rendered untimely by the provisions of the Act. Read more...
U.S. 2nd Circuit Court of Appeals, February 15, 2008
Piranej v. Mukasey, No. 04-0309
Petition for review of denial of motion to reopen deportation proceedings based on ineffective assistance of counsel is granted where the BIA abused its discretion in rejecting petitioner's ineffective assistance of counsel claim without a more thorough factual examination and, if such an examination warranted it, a consideration of the meaning and applicability of the requirements of In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988) in the context of general retainer agreements. Read more...
U.S. 4th Circuit Court of Appeals, February 14, 2008
Saintha v. Mukasey, No. 06-2304
Petition for review of denial of application to defer removal under the UN Convention Against Torture and finding petitioner ineligible for relief under the INA is dismissed as to request for relief under the CAT, and denied as to requests for adjustment of status and a waiver of inadmissibility under the INA, where the BIA's interpretation of the INA is based on a permissible construction of the statute. Read more...
U.S. 6th Circuit Court of Appeals, February 13, 2008
Li v. Mukasey, No. 06-3711
Petition for review of a denial of Chinese petitioner's second motion to reopen removal proceedings is dismissed for lack of jurisdiction where, by granting petitioner's motion to reconsider and issuing a new order complete with new reasoning, the BIA effectively vacated the decision that the circuit court had been asked to review. Read more...
U.S. 7th Circuit Court of Appeals, February 14, 2008
Wood v. Mukasey, No. 06-2550
Petition for review of a denial of a continuance in removal hearings and a denial of a discretionary adjustment of status is denied where the court does not have jurisdiction over continuance and adjustment of status decisions, and the BIA properly exercised its appellate-review authority over discretionary issues when it determined petitioner did not merit a status adjustment. Read more...
U.S. 9th Circuit Court of Appeals, February 14, 2008
Perez v. Mukasey, No. 04-73029
A petitioner who arrives late for his immigration hearing, but while the IJ is still in the courtroom, has not failed to appear for that hearing. Accordingly, he is not required to demonstrate exceptional circumstances in order to reopen proceedings. A petition for review of a decision denying petitioner's motion to reopen immigration proceedings after he was ordered removed in absentia is granted where: 1) petitioner arrived late to his immigration hearing due to his car's mechanical failure, but he was in the courtroom when the IJ was still on the bench, and thus, he did not fail to appear for the hearing; and 2) the IJ's failure to reopen or continue his case, even in the absence of exceptional circumstances, was an abuse of discretion. Read more...
U.S. 9th Circuit Court of Appeals, February 14, 2008
Kalilu v. Mukasey, No. 06-75425
Liberian native's petition for review of an adverse decision determining that he filed a frivolous asylum application, denying his claims for asylum and related relief, denying his request for voluntary departure, and denying his motion to reopen, is granted in part and remanded for the BIA to reconsider its frivolousness determination in light of In re Y-L-, 24 I. & N. Dec. 151 (BIA 2007), and for a renewed exercise of the agency's discretion with respect to petitioner's motion to reopen, because the BIA's denial of the motion solely on jurisdictional grounds constituted an abuse of discretion. Read more...
U.S. 9th Circuit Court of Appeals, February 15, 2008
Rendon v. Mukasey, No. 05-77064, 05-77150
A state felony conviction for possession with intent to sell a controlled substance contains a trafficking element, and thus, qualifies as an aggravated felony under the immigration laws. Read more...
February 04- February 08, 2008
U.S. 1st Circuit Court of Appeals, February 08, 2008
Rotinsulu v. Mukasey, No. 07-1516
Petition for review of a denial of an application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture is denied where the BIA did not engage in de novo factfinding when it concluded that the petitioner had not suffered past persecution since the IJ had implicitly resolved the issue, and the BIA did not supplement the record by considering new evidence but merely analyzed the evidence that had been presented in the immigration court. Read more...
U.S. 2nd Circuit Court of Appeals, February 06, 2008
Melnitsenko v. Mukasey, No. 06-3189, 07-0110
Petition for review of denial of motion to suppress evidence, ordering petitioner removed, and denying her motion to reopen removal proceedings is granted in part were the BIA abused its discretion in denying the motion to reopen based solely on the fact that the Department of Homeland Security opposed the motion. Read more...
U.S. 2nd Circuit Court of Appeals, February 07, 2008
Delgado v. Mukasey, No. 06-5035
Petition for review challenging decision by the Immigration & Customs Enforcement reinstating order of removal against petitioner is denied over petitioner's claims that: 1) she applied for adjustment of status with the Citizenship & Immigration Services under 8 U.S.C. section 1255(i) on a date preceding the issuance of the reinstatement order; 2) she is eligible to have her status adjusted to that of a lawful permanent resident; and 3) she is eligible for adjustment of status with a waiver under 8 C.F.R. section 212.2(e), which "cures" her inadmissibility. Read more...
U.S. 5th Circuit Court of Appeals, February 04, 2008
US v. Gonzales-Terrazas, No. 07-50375
A sentence following defendant's guilty-plea conviction for unlawful reentry of an alien after removal is vacated and remanded where: 1) because there was no evidence from which it could be determined whether defendant actually pleaded to "wilfully and unlawfully" entering a dwelling house, the government failed to establish that Gonzalez was convicted of a burglary offense that satisfies the crime-of-violence definition in U.S.S.G. section 2L1.2; and 2) the district court's application of a 16-level crime-of-violence enhancement constituted plain error. Read more...
U.S. 7th Circuit Court of Appeals, February 05, 2008
Garcia-Meza v. Mukasey, No. 07-2215
Petition for review of a final order of removal, arising from a conviction for petitioner's grabbing a police officer's fingers and twisting them, is granted and the matter remanded where the BIA's finding that petitioner's state crime of "aggravated battery of a peace officer" was a crime of moral turpitude, was based on a misapprehension of Illinois law. Read more...
U.S. 8th Circuit Court of Appeals, February 08, 2008
Solis v. Mukasey, No. 07-1297
Petition for review of a denial of withholding of removal and protection under the CAT, based on a claim that a return to El Salvador would subject petitioner to likely harm or death due to his former membership in the country's military, is denied where: 1) a due process claim regarding a determination that he was convicted of a particularly serious crime was without merit; and 2) substantial evidence supported a determination that he was not eligible for relief under the CAT. Read more...
U.S. 9th Circuit Court of Appeals, February 05, 2008
Grigoryan v. Mukasey, No. 05-77020
Armenian citizen's petition for review of a denial of her motion to reopen removal proceedings on the ground of ineffective assistance of counsel is granted where: 1) the record showed that former counsel filed a boilerplate brief to the BIA that resulted in petitioner not receiving meaningful review; 2) the BIA abused its discretion in failing to presume prejudice from those actions and instead requiring petitioner to demonstrate that she suffered prejudice; and 3) she established plausible grounds for relief, and thus her presumption of prejudice was not rebutted. (Amended opinion) Read more...
U.S. 9th Circuit Court of Appeals, February 07, 2008
Plasencia-Ayala v. Mukasey, No. 06-73728
In the context of immigration law, failing to register as a sex offender in violation of Nev. Rev. Stat. section 179D.550 is not a crime involving moral turpitude within the meaning of 8 U.S.C. section 1182(a)(2)(A)(i)(I). Read more...
January 28-February 1, 2008
U.S. 1st Circuit Court of Appeals, January 29, 2008
Yosd v. Mukasey, No. 07-1390
Cambodian national's petition for review of a denial of asylum and related relief is denied where there was no due process violation in a remand for a second hearing, and an IJ's adverse credibility determination was supported by substantial evidence. Read more...
U.S. 1st Circuit Court of Appeals, January 31, 2008
Chikkeur v. Mukasey, No. 05-2893, 07-1798
Algerian citizens' petition for review of denials of their applications for asylum and related relief, as well as their motion to reopen, is denied where: 1) the IJ supportably found, on the record, that petitioners failed to demonstrate the requisite link between certain extortion and his political opinion or membership in a particular social group; and 2) there was no abuse of discretion in denying the motion to reopen. Read more...
U.S. 2nd Circuit Court of Appeals, January 28, 2008
Lin v. BCIS, No. 06-3905
Petition for review challenging denials of application for adjustment of status under the Chinese Student Protection Act and motion to reopen for consideration application for asylum, withholding of deportation, and relief under the Convention Against Torture is denied where: 1) the Immigration and Nationality Act section 245(i) does not provide an avenue for renewing or amending a CSPA application for adjustment of status that was previously denied as the applicant entered without inspection; and 2) the BIA did not abuse its discretion in declining to reopen to allow petitioner to pursue an application for asylum, withholding of removal, or CAT relief. Read more...
U.S. 2nd Circuit Court of Appeals, January 31, 2008
Yang v. Mukasey, No. 06-3872
Petition for review challenging denial of applications for adjustment of status and waiver of inadmissibility, and ordering her removed is dismissed where the court lacks jurisdiction over the decision to deny the adjustment of status based on independent, discretionary reasons. The remainder of the petition is denied. Read more...
U.S. 2nd Circuit Court of Appeals, February 01, 2008
Zheng v. Mukasey, No. 04-5027
Petition for review challenging finding that petitioner knowingly made a frivolous application for asylum, even though she withdrew the application before the IJ made a final determination, is granted and case is remanded to the BIA to clarify whether she is properly subject to the frivolousness bar. Read more...
U.S. 5th Circuit Court of Appeals, January 28, 2008
Tran v. Mukasey, No. 06-30361
8 U.S.C. section 1231(a)(6), as construed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), does not authorize the continued and potentially indefinite detention of a removable alien based on a determination by the government that the alien's mental illness renders him a dangerous risk to the community. Read more...
U.S. 6th Circuit Court of Appeals, January 30, 2008
Demjanjuk v. Mukasey, No. 07-3022
Former Nazi concentration camp guard's petition for review of a BIA decision holding that the Chief Immigration Judge was authorized to preside over petitioner's removal proceeding is denied as the Chief Immigration Judge clearly meets the statutory definition of "immigration judge." Read more...
U.S. 6th Circuit Court of Appeals, January 31, 2008
Al-Najar v. Mukasey, No. 05-4448
Petition for review of a decision denying petitioner asylum and related relief, and finding that he was removable due to a prior state conviction for possession of a controlled substance, is denied where a remand was unnecessary because petitioner's challenge to the state court conviction constituted an impermissible collateral attack, and he presented no other claims that would entitle him to relief. Read more...
U.S. 6th Circuit Court of Appeals, January 31, 2008
Salazar v. Mukasey, No. 07-3051
Petition for review of an order denying petitioner's motion for reconsideration of a dismissal of his appeal as untimely is granted and the matter remanded for further proceedings where the BIA abused its discretion by denying its authority to consider whether the circumstances presented by petitioner were "extraordinary or unique" as a basis for extending the deadline for his notice of appeal. Read more...
U.S. 7th Circuit Court of Appeals, January 28, 2008
US v. Christ, No. 07-1634
Conviction and sentence for conspiracy to commit visa fraud are affirmed over defendant's arguments that: 1) there was insufficient evidence to support his conviction; 2) the district court abused its discretion in admitting certain evidence and testimony; 3) the district court further erred by failing to give a missing witness instruction; and 4) the district court relied on improper facts in enhancing his offense level at sentencing, thereby rendering his sentence unreasonable. Read more...
U.S. 8th Circuit Court of Appeals, January 31, 2008
Guled v. Mukasey, No. 07-168, 07-2339
Somalian native's petition for review of a denial of a final order of removal, and a denial of his motion to reopen and reconsider, is denied over claims that: 1) legal errors committed by the IJ and BIA violated his due process rights; 2) the IJ misapplied the balancing test used to determine whether cancellation of removal is appropriate; 3) the IJ abused its discretion in denying his claim for asylum and in "failing to consider" his related claims for relief; and 4) it was an error of law for the BIA to rule he did not meet his burden to show proceedings should be reopened. Read more...
U.S. 11th Circuit Court of Appeals, January 28, 2008
Cisneros v. U.S. Attorney Gen., No. 07-11063
Petition for review of denial of motions to reopen removal proceedings based on exceptional circumstances is granted as the BIA abused its discretion in denying the motion to reopen. Read more...
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