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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 APRIL / MAY 2008
May 26 - May 30, 2008
U.S. 2nd Circuit Court of Appeals, May 30, 2008
Channer v. Dep't of Homeland Sec., No. 06-0120
Petition for review of a removal order on grounds that principles of res judicata barred the Department of Homeland Security ("DHS") from relitigating his removal based on a claim which could have been raised in his previous removal proceeding is denied where petitioner's second suit did not involve the same claim or nucleus of operative fact as the first. Read more...
U.S. 3rd Circuit Court of Appeals, May 27, 2008
US v. Ozcelik, No. 06-4245
Conviction and sentence for bribery and attempting to conceal, harbor, and shield from detection an illegal alien is reversed in part and remanded for resentencing where: 1) defendant did not meet the burden of showing that the court's alleged error in defining the term "official act" in its jury instructions substantially affected the outcome of the proceedings; but 2) no reasonable juror could find that defendant's conduct tended to substantially facilitate an alien's remaining in the United States illegally. Read more...
U.S. 3rd Circuit Court of Appeals, May 28, 2008
Arca-Pineda v. Atty. Gen. of US, No. 07-1914
Petition for review of an order finding petitioner removable and denying her application for suspension of deportation is denied where: 1) petitioner's continuous physical presence clock did not begin anew based on an administrative closure; 2) contrary to claims of inequitable application of the stop-time rule to her case, allowing petitioner's application for suspension of deportation would essentially permit her to avail herself from her failure to attend a deportation proceeding, frustrating Congress's purpose in enacting the stop-time rule; 3) petitioner's purported continuous period physical presence did not satisfy the requisite statutory period "immediately proceeding" her application for suspension of deportation; and 4) retroactive application of the stop-time rule to petitioner did not violate her due process rights. Read more...
U.S. 8th Circuit Court of Appeals, May 28, 2008
Beck v. Mukasey, No. 07-1345, 07-1351
Petition for review of orders denying Hungarian citizens' applications for asylum and withholding of removal is denied where: 1) petitioners did not apply for asylum within one year of entering the United States and failed to show extraordinary circumstances excusing such failure; and 2) despite the purported harassment and discrimination suffered at school and work in their native country, petitioners failed to prove past physical or economic persecution to show a clear probability of future persecution should they be removed to Hungary. Read more...
U.S. 8th Circuit Court of Appeals, May 29, 2008
US v. Chavarria-Brito, No. 07-2462
A sentence for illegal reentry following deportation, enhanced based on his prior conviction of an "aggravated felony", is affirmed where defendant's prior state conviction for possession of forged documents with intent to defraud or perpetuate a fraud was sufficiently related to the false making or material alteration of a document with the intent to deceive. Read more...
May 19 - May 23, 2008
U.S. 1st Circuit Court of Appeals, May 21, 2008
Ruiz v. Mukasey, No. 07-1783
Petition for review of a BIA order rejecting Colombian petitioner's request for asylum is denied over claims that the BIA erred in determining that petitioner failed to establish either past persecution or objectively reasonable fear of persecution on account of a statutorily protected grounds. Read more...
U.S. 1st Circuit Court of Appeals, May 22, 2008
Sok v. Mukasey, No. 07-2113
Petition for review of a denial of petitioner's withholding claim is granted and remanded for further proceeding where: 1) the BIA and IJ afforded a legally insufficient explanation of why petitioner failed to prove that she suffered past persecution in Cambodia; and 2) resolving the matter required the agency to make a well-reasoned and well-explained determination of petitioner's withholding eligibility. However, petition for review of a denial of petitioner's CAT claim is denied where petitioner's failure to develop arguments for her CAT claim was deemed a waiver. Read more...
U.S. 2nd Circuit Court of Appeals, May 20, 2008
Poole v. Mukasey, No. 06-4069
Petition for rehearing of a previous decision remanding a derivative citizenship claim to the BIA is denied where: 1) under 8 U.S.C. section 1252(b)(5), the court's authority of "decide" nationality claims did not preclude a remand for further consideration by the BIA; and 2) there was no reason not to obtain the BIA's view on the merits of the citizenship claim in the underlying case. Read more...
U.S. 4th Circuit Court of Appeals, May 19, 2008
Afanwi v. Mukasey, No. 06-1236
A petition to review an order affirming a denial of an asylum claim, an order denying petitioner's motion to rescind and reissue an order, and an order denying a motion to reopen immigration proceedings is denied where: 1) the petitioner does not need to file a separate petition for review for each of the three orders in issue as argued by the government under Stove v. I.N.S., 514 U.S. 386 (1995); 2) the petition to review the order affirming a denial of an asylum claim is denied because it was untimely filed; 3) the petition to review an order denying petitioner's motion to rescind and reissue is denied since there is no evidence that an incomplete address was a cause of the untimely filing and the decision to rescind and reissue an order of removal is properly left to the discretion of the BIA and where petitioner fails to receive an order through no fault of the BIA, a court of appeals properly defers to the BIA's decision not to extend this measure of grace; 4) there was! insufficient evidence to reopen removal proceedings; and 5) retained counsel's ineffectiveness in a removal proceeding cannot deprive an alien of his Fifth Amendment right to a fundamentally fair hearing. Read more...
U.S. 7th Circuit Court of Appeals, May 20, 2008
LaGuerre v. Mukasey, No. 06-4164
Petition for review of an order of removal finding petitioner a deportable aggravated felon based on a conviction for battery is denied where: 1) the elements of domestic battery under Illinois law establish that it is a crime of violence subjecting him; and 2) the court lacked jurisdiction to review a claim that the BIA applied the incorrect legal standard when it determined that he did not qualify for protection under the Convention Against Torture. Read more...
U.S. 8th Circuit Court of Appeals, May 22, 2008
US v. Desantiago-Esquivel, No. 07-1170
Read more...
U.S. 8th Circuit Court of Appeals, May 23, 2008
Lin v. Mukasey, No. 07-2627
Petition for review of the BIA's denial of Chinese petitioner's untimely motion to reopen removal proceedings is denied where petitioner failed to make a sufficient showing of changed conditions in her native country based on newly discovered evidence demonstrating there is a policy in a Chinese province of sterilizing all persons with two or more children, including those with foreign born children. Read more...
U.S. 9th Circuit Court of Appeals, May 21, 2008
US v. Vasquez-Landaver, No. 07-50226
A conviction and sentence for being found in the United States after being deported is affirmed where: 1) because defendant failed to make a prima facie showing of an immediate threat, the district court properly precluded him from introducing any evidence on a duress defense and properly declined to instruct the jury on duress; 2) the 90-month sentence was reasonable; and 3) the sentence was not an impermissible punishment for exercising his constitutional right to trial. Read more...
U.S. 9th Circuit Court of Appeals, May 22, 2008
Mandujano-Real v. Mukasey, No. 06-74186
A conviction for identity theft under Oregon Revised Statute section 165.800 is not categorically a conviction for an aggravated felony theft offense for the purposes of 8 U.S.C. section 1101(a)(43)(G) of the Immigration and Nationality Act (INA). Read more...
U.S. 9th Circuit Court of Appeals, May 22, 2008
Sandoval-Luna v. Mukasey, No. 04-74825
Petition for review of removal proceedings is denied where: 1) contrary to the government's assertion, the circuit court has jurisdiction to review an IJ's discretionary decision to deny petitioner's motion for a continuance, even absent constitutional claims; 2) on the merits, there was no abuse of discretion in denying a continuance to allow for the release of regulations under the Child Status Protection Act (CSPA) and the adjudication of his father's labor certification application; and 3) due process and equal protection claims failed. Read more...
May 12 - May 16, 2008
U.S. 2nd Circuit Court of Appeals, May 12, 2008
Bennett v. Mukasey, No. 06-2480
Motion to recall a mandate and reinstate a petition for review of a BIA decision is granted where a lawyer's practice of accepting an initial retainer fee and then deliberately failing to take required action due to non-payment of additional fees, thereby permitting his client's petition to be dismissed, was unacceptable. Read more...
U.S. 2nd Circuit Court of Appeals, May 12, 2008
Mendez v. Mukasey, No. 06-0032
Petition for review of a denial of cancellation of removal on grounds that petitioner had not demonstrated that his removal would cause exceptional and extremely unusual hardship to his US citizen children is dismissed where: 1) under binding precedential decisions, the determination of whether exceptional and extremely unusual hardship was present for the purposes of cancellation of removal is committed to the Attorney General's discretion; and 2) thus, the circuit court lacked jurisdiction to review such a determination. Read more...
U.S. 6th Circuit Court of Appeals, May 13, 2008
Ukpabi v. Mukasey, No. 06-4028
Denial of a motion for a continuance in a removal proceeding is affirmed where: 1) there was no evidence that an IJ abused her discretion in denying the motion; 2) there was no violation of international law; and 3) there is no due process right to a continuance while a pending visa petition is fully adjudicated. Read more...
U.S. 10th Circuit Court of Appeals, May 13, 2008
U.S. v. Pasillas-Castanon, No. 07-5101
A conviction for knowingly possessing a counterfeit green card is affirmed where: 1) the Speedy Trial Act generally does not apply to detentions based on civil deportation charges; and 2) the "ruse exception" to the Speedy Trial Act did not apply in case at hand. Read more...
May 05- May 09, 2008
U.S. 2nd Circuit Court of Appeals, May 08, 2008
Dedji v. Mukasey, No. 05-5414
An IJ has broad discretion, in the management of his docket, to enforce deadlines established by local rules, and to deviate from the local rules where: 1) petitioner has demonstrated good cause for the delay; and 2) substantial prejudice would likely result from the enforcement of the deadline. Further, abuse of discretion is the proper standard to apply in reviewing an IJ's decision to establish and enforce filing deadlines for submission of documents. Read more...
U.S. 4th Circuit Court of Appeals, May 06, 2008
U.S. v. Mir, No. 05-4985, 05-4989
Convictions for immigration fraud are affirmed over defendant's principal claim that that conversations two witnesses initiated with him at the government's behest violated his Sixth Amendment right to counsel because those conversations occurred after defendant had been indicted on the immigration fraud counts. Read more...
U.S. 5th Circuit Court of Appeals, May 08, 2008
Bolvito v. Mukasey, No. 06-60944
Petition for review of an order of removal is denied where an IJ did not err as a matter of law when he determined that petitioner could not claim an earlier priority date based on her mother's change of status to lawful permanent resident since petitioner could no longer be considered a child of the principal alien at that time the change of status occurred. Read more...
U.S. 6th Circuit Court of Appeals, May 06, 2008
Zoarab v. Mukasey, No. 07-3624
Petition for review of a denial of asylum and related relief is denied where there was little in the record to suggest that petitioner's comments about a soured business deal with a prince amounted to political speech, for purposes of a claim that he was entitled to asylum in light of the circumstances of the monarchical government in the United Arab Emirates, where any expression against the integrity of a royal family member is said to constitute political expression. Read more...
U.S. 7th Circuit Court of Appeals, May 08, 2008
Soumare v. Mukasey, No. 07-2405
Petition for review of a final order of removal is denied where: 1) the IJ properly found that petitioner's testimony was not credible to support his claim for asylum; and 2) the petitioner failed to corroborate his story with any evidence. Read more...
U.S. 7th Circuit Court of Appeals, May 08, 2008
Huang v. Mukasey, No. 07-2074
Petition for review of an order of removal is denied where: 1) petitioners' asylum applications were untimely filed; 2) the court cannot consider the asylum claim since petitioners failed to exhaust their administrative remedies; and 3) petitioners did not present credible evidence as to their claim under the Convection Against Torture. Read more...
U.S. 8th Circuit Court of Appeals, May 05, 2008
Garcia-Aguillon v. Mukasey, No. 07-1595
Petition for review of a decision denying a request for voluntary departure and ordering petitioner removed to Mexico is dismissed where: 1) the court lacked jurisdiction to review the discretionary denial of voluntary departure under 8 U.S.C. section 1229c; and 2) petitioner failed to raise a colorable constitutional claim or question of law to confer jurisdiction. Read more...
U.S. 8th Circuit Court of Appeals, May 08, 2008
Isse v. Mukasey, No. 07-1767
Petition for review of a BIA order denying petitioner's motion to reconsider asylum-related relief is denied over claims that the BIA: 1) abused its discretion by ignoring "the relevant fact" that fraudulent birth certificates seeped into almost every part of the IJ's adverse credibility finding; and 2) erred in determining that his wife's and sister's rapes were "material inconsistencies" because those rapes did not form the crux of his original claim for asylum. Read more...
U.S. 9th Circuit Court of Appeals, May 05, 2008
Fakhry v. Mukasey, No. 04-73671, 04-76147
Petition for review of a denial of am application for asylum based on petitioner's membership in a Senegalese political organization, as well as related relief, is granted in part and remanded as to the asylum claim where the IJ erred in finding that: 1) petitioner failed to qualify for the "changed circumstances" exception to the one-year bar on filing asylum claims; and, alternatively, 2) petitioner could reasonably relocate to another part of the country. Read more...
U.S. 9th Circuit Court of Appeals, May 05, 2008
Martinez-Merino v. Mukasey, No. 05-74776
Petition for review of an order reinstating petitioner's removal from the country is denied as petitioner did not allege the deprivation of any constitutional or statutory right to be free from the restraint imposed by the reinstatement order. (Substituted opinion) Read more...
U.S. 9th Circuit Court of Appeals, May 06, 2008
Silaya v. Mukasey, No. 06-73822
Petition for review of a denial of an application for asylum and related relief brought by a native of the Philippines is granted with respect to the asylum claim where: 1) the rape and physical abuse inflicted on petitioner supported a finding of past persecution under 8 U.S.C. section 1101(a)(42)(A); and 2) the record compelled a finding that petitioner was subjected to past persecution on account of imputed political opinion. Read more...
U.S. 9th Circuit Court of Appeals, May 08, 2008
Mendez-Mendez v. Mukasey, No. 06-70851
Petition for review of a dismissal of Mexican native's appeal from an IJ's order of removal is denied where: 1) because the statutory maximum term of imprisonment for petitioner's bribery offense was fifteen years, the petty offense exception to inadmissibility does not apply; and 2) the IJ did not violate his due process right to a full and fair hearing by unilaterally advancing the hearing date. The plain language of 8 U.S.C. section 1182(a)(2)(A)(ii)(II) indicates that the "maximum penalty possible" refers to the statutory maximum, not the maximum guideline sentence to which an alien was exposed. Read more...
U.S. 11th Circuit Court of Appeals, May 05, 2008
Lenis v. US Atty. Gen., No. 07-13629
Petition for review of a BIA decision denying petitioners' motion for a sua sponte reopening of their case pursuant to 8 C.F.R section 1003.2(a) is dismissed for lack of jurisdiction where the BIA's decision whether to reopen proceedings on its own motion pursuant to section 1003.2(a) is committed to agency discretion by law. Read more...
April 28 - May 2, 2008
U.S. 1st Circuit Court of Appeals, April 28, 2008
Piedrahita v. Mukasey , No. 07-1850
Petition for review of a BIA order denying petitioner's application for asylum and withholding of removal is denied where: 1) petitioner failed to raise relevant issues in his opening brief, and addressed a dispositive issue in an incoherent and perfunctory manner; and 2) the BIA's adverse credibility decision was supported by substantial evidence. Read more...
U.S. 1st Circuit Court of Appeals, April 29, 2008
Pulisir v. Mukasey, No. 07-1356
Petition for review of an order denying petitioner's request for withholding of removal is denied over claims that: 1) neither the BIA nor the IJ made an express finding about petitioner's past persecution; 2) the BIA and IJ misconceived the conceptual definition of "persecution" and "discrimination"; 3) the IJ read the State Department Country Reports so selectively as to run afoul the rule in Gomes v. Gonzales, 473 F.3d 746 (2007); and 4) the IJ's conduct violated petitioner's due process rights. Read more...
U.S. 2nd Circuit Court of Appeals, May 02, 2008
Ali v. Mukasey, No. 07-0460
Petition for review of a BIA order dismissing petitioner's appeal of a final order of removal on grounds that petitioner had waived the right of appeal is granted where, based on facts presented, the BIA's finding of waiver was not based on substantial evidence. Read more...
U.S. 3rd Circuit Court of Appeals, May 02, 2008
Nijhawan v. Atty. Gen. of US, No. 06-3948
Petition for review of a BIA decision finding that petitioner was removable under 8 U.S.C. section 1101(a)(43)(M)(i) for committing an aggravated felony is denied where: 1) petitioner's conviction for conspiracy to commit bank fraud, mail fraud and wire fraud constituted offenses involving "fraud or deceit" for purpose of the INA; and 2) while petitioner's conviction did not establish that loss to his victims exceeded $10,000, section 1101(a)(43)(M)(i) does not require a jury to have determined that there was a loss in excess of $10,000. Read more...
U.S. 5th Circuit Court of Appeals, April 29, 2008
Patel v. Mukasey, No. 06-61056
Petition for review of a decision finding that petitioner, a citizen of India, was removable for having committed an aggravated felony under 8 U.S.C. section 1101(a)(43)(M)(i) is denied where plaintiff's conviction for misprision of a felony was an offense that: 1) necessarily entailed fraud or deceit; and 2) involved a loss to the victim exceeding $10,000. Read more...
U.S. 5th Circuit Court of Appeals, April 29, 2008
US v. Lopez, No. 07-10151, 07-10321
A sentence for illegal re-entry after deportation is affirmed over claims of error regarding whether: 1) defendant's sentence was substantively unreasonable; and 2) the lack of a fast-track early disposition program in the Northern District of Texas deprived defendant of a sentencing reduction, in violation of his equal protection rights, and resulted in an unwarranted sentencing disparity. Read more...
U.S. 7th Circuit Court of Appeals, April 30, 2008
Atunnise v. Mukasey, No. 06-4008, 07-1287
Petitions for review of orders dismissing Nigerian alien's appeal and denying her motion to reconsider are granted, an order of removal vacated, and the matter remanded to reconsider petitioner's eligibility for a waiver of inadmissibility under section 212(d)(3) where: 1) a fatal flaw in form DS-156 did not allow petitioner to correctly answer a question regarding her immigration status and for the consular office to realize that petitioner needed to apply for a waiver; 2) the IJ failed to alert petitioner about all the avenues of relief and afford an opportunity to apply; and 3) petitioner can still apply for the section 212(d)(3) waiver while in detention since she has yet to enter the U.S. Read more...
U.S. 7th Circuit Court of Appeals, May 01, 2008
Al-Marbu v. Mukasey, No. 04-2055, 05-2824
Petitioner's motion to stay mandate of panel's order pending petition for a write of certiorari and request for an additional 30 days to file supplemental brief is denied where: 1) petitioner failed to demonstrate that the writ of certiorari would present a reasonable probability of succeeding on the merits; and 2) the request for an additional 30 days was unnecessary since the issues raised in the petition for certiorari had been previously examined by the court. Read more...
U.S. 7th Circuit Court of Appeals, May 02, 2008
Alvarez Guardia v. Mukasey, No. 07-2487
Petition for review of a removal order is dismissed in part and denied in part where: 1) petitioners filed their asylum claim in an untimely manner; and 2) there was no sufficient evidence to show a clear probability that petitioners would suffer persecution to support their withholding of removal claim. Read more...
U.S. 8th Circuit Court of Appeals, April 29, 2008
Zheng v. Mukasey , No. 07-1904
Petition for review of a BIA decision denying petitioner's second motion to reopen his removal proceedings is denied where, under the highly deferential standard of review for motions to reopen, the BIA did not abuse its discretion in denying petitioner's untimely and number-barred motion. Read more...
U.S. 9th Circuit Court of Appeals, April 28, 2008
Ortiz-Magana v. Mukasey, No. 06-72797
An alien who is convicted of aiding and abetting an assault with a deadly weapon under California Penal Code section 245(a)(1) has committed a crime of violence as if he had personally committed the offense. Read more...
U.S. 9th Circuit Court of Appeals, April 28, 2008
Alali-Amin v. Mukasey, No. 06-75411
Petition for review of a dismissal of Iranian native's appeal from an IJ's denial of a motion to reopen is denied where: 1) a January 31, 2000 ruling was an "order of deportation," despite the fact that it granted him protection under CAT and ordered deferral of his deportation; 2) thus, the order became final upon expiration of the 90 days petitioner had to appeal; and 3) the IJ correctly concluded that petitioner's motion to reopen was subject to the time limitations set forth in 8 C.F.R. section 1003.23(b)(1), and was untimely. Read more...
U.S. 9th Circuit Court of Appeals, April 30, 2008
Hernandez v. Mukasey, No. 04-72696
Knowing reliance upon the advice of a non-attorney cannot support a claim for ineffective assistance of counsel in a removal proceeding. Petition for review of a BIA decision denying Mexican natives' motion to reopen their deportation proceedings on the ground of ineffective assistance of counsel is affirmed over a claim that their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. Read more...
U.S. 9th Circuit Court of Appeals, May 02, 2008
Chen v. Mukasey, No. 06-71430
Petition for review of a denial of Chinese petitioner's motion to reopen her asylum proceedings to argue a change in her personal circumstances is denied where: 1) the BIA's interpretation of 8 U.S.C. sections 1158(a)(2)(D) and 1229a(c)(7), and their implementing regulations, in In re CW-L- was reasonable, and merited deference under Chevron; and 2) the BIA did not err in ruling that petitioner's motion to reopen was barred by the number and time limitations of section 1229a(c)(7). Read more...
U.S. D.C. Circuit Court of Appeals, May 02, 2008
Kaufman v. Mukasey, No. 06-5259
In a suit brought by plaintiff alleging that the Attorney General and the Secretaries of State and Homeland Security violated plaintiff's statutory and constitutional rights by refusing to allow him to renounce his citizenship pursuant to 8 U.S.C. section 1481(a)(6), dismissal of the complaint is reversed and remanded where: 1) the question of whether the AG retains authority under section 1481(a)(6) after enactment of the Homeland Security Act of 2002 has not been addressed; and 2) it was not clear if the U.S. Citizenship and Immigration Services Bureau's interpretation of the section was permissible. Read more...
April 21 - April 25, 2008
U.S. 1st Circuit Court of Appeals, April 24, 2008
Ly v. Mukasey, No. 07-2186
Petition for review of an order rejecting petitioner's application for asylum and related relief is denied where petitioner provided no specific evidence to support her claims of political persecution or to rebut the government's evidence of favorable changed conditions in her native country of Cambodia. Read more...
U.S. 2nd Circuit Court of Appeals, April 22, 2008
Ali v. Mukasey , No. 07-1186
Where a removable alien does not challenge on legal or constitutional grounds a decision to place him/her in removal proceedings, the circuit court lacks jurisdiction to consider a petition for relief. Read more...
U.S. 2nd Circuit Court of Appeals, April 22, 2008
Emokah v. Muksasey , No. 07-3115
Where an alien whose previous visa application has been denied receives a visa after providing false information about his/her identity, that conduct constitutes willful misrepresentation of a material fact for purposes of 8 U.S.C. section 1182(a)(6)(C)(i). Read more...
U.S. 2nd Circuit Court of Appeals, April 23, 2008
Martinez v. INS, No. 03-41049, 05-3319
Petition for review of an order denying cancellation of removal for failure to satisfy the seven-year continuous residence requirement of the now-repealed INA section 212(c) is denied where an application of the "criminal-offense stop-time rule" under 8 U.S.C. section 1229b(d)(1)(B) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA") to petitioner's pre-IIRIRA offense was not impermissibly retroactive. Read more...
U.S. 5th Circuit Court of Appeals, April 22, 2008
Arguelles-Olivares v. Mukasey, No. 05-60914
Petition for review of a removal order of petitioner who pled guilty to knowingly filing a false tax return, on the basis that his prior conviction for filing a false federal tax return did not constitute a removable offense, is denied where the record contained evidence, including an admissible Pre-Sentence Investigation Report (PSR) prepared in the tax offense proceedings as evidence of the amount of loss in his immigration proceedings, that supported the BIA's conclusion that plaintiff was an aggravated felon. Read more...
U.S. 6th Circuit Court of Appeals, April 25, 2008
Huang v. Mikasey, No. 07-3127
Petition for review of a denial of an application for asylum and related relief, as well as a motion to remand to the BIA and supplement the record, is dismissed in part as to the asylum claim and otherwise denied where: 1) there was substantial evidence to support an IJ's finding that petitioner's marriage was not entered in good faith; 2) the circuit court lacked of jurisdiction to review the asylum claim; 3) for purposes of withholding and CAT relief, petitioner failed to show that the BIA incorrectly determined that China's population-control policies would not be applied against her; 4) the BIA did not abuse its discretion in denying a motion to remand to allow her to reapply for asylum on the basis of the alleged birth of her second child; 5) the BIA did not abuse its discretion in denying a motion to remand to allow her to apply for adjustment of status based on her marriage; and 6) the court adopts the Second Circuit's analysis of the circumstances that render inappr! opriate the exercise of an inherent equitable power to remand cases to administrative agencies. Read more...
U.S. 7th Circuit Court of Appeals, April 21, 2008
Chatta v. Mukasey, No. 07-2179
Petition for review of a denial of an application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) substantial evidence supported the IJ's determination that petition was not credible; 2) petitioner did not show that the government perpetuated or condoned the alleged persecution; and 3) petitioner did not show that he would be subject to torture. Read more...
U.S. 7th Circuit Court of Appeals, April 24, 2008
Mitondo v. Mukasey, No. 06-3178
In an asylum case, petition for review of an order of removal is denied where documentary proof regarding certain events petitioner claim occurred was unavailable, and section 1158(b)(1)(B)(iii) permitted the agency to make a decision despite the uncertainty in any evaluation of oral testimony. Read more...
U.S. 7th Circuit Court of Appeals, April 24, 2008
Al-Marbu v. Mukasey, No. 04-2055, 05-2824
Petitioner's motion to stay removal pending petition for writ of certiorari and request for a 30 day extension to file supplemental brief is denied where: 1) petitioner failed to demonstrate a reasonable probability that the petition will succeed on the merits; 2) petitioner did not demonstrate a division between the circuits; 3) there was no conflict between prior precedent from the circuit and petitioner's case; and 4) the 30 day extension was based on matters which had been previously raised and examined by the court. Read more...
U.S. 9th Circuit Court of Appeals, April 22, 2008
Penuliar v. Mukasey, No. 03-71578
Petition for review of a decision finding petitioner ineligible for cancellation of removal and voluntary departure, and ordering that he be deported, is granted where: 1) evading an officer in violation of California Vehicle Code section 2800.2(a), is not categorically a "crime of violence" under 8 U.S.C. section 1101(a)(43)(F); and 2) the evidence was insufficient to establish that petitioner pled guilty to a "theft offense" within the meaning of 8 U.S.C. section 1101(a)(43)(G). Read more...
U.S. 9th Circuit Court of Appeals, April 24, 2008
Nicanor-Romero v. Mukasey, No. 03-73564
Petition for review of an order of removal is granted where the government failed to show that petitioner's California Penal Code section 647.6(a) misdemeanor conviction, for annoying or molesting a child under the age of 18, made him removable on the ground that it constituted a "crime involving moral turpitude" within the meaning of 8 U.S.C. section 1227(a)(2)(A)(i)(I). Read more...
U.S. 11th Circuit Court of Appeals, April 21, 2008
US v. Velasquez , No. 06-16637
Sentence for violation of supervised release is vacated and remanded where the district court: 1) exceeded its statutory authority by basing defendant's sentence on a disapproval of the fact that immigration officials had released defendant on bond pending the outcome of his asylum proceedings; and 2) lacked jurisdiction over immigration matters. Read more...
U.S. 11th Circuit Court of Appeals, April 22, 2008
Santamaria v. US Atty. Gen. , No. 06-16221
Denial of petitioner's asylum application and an order of removal are vacated and remanded where substantial evidence did not support a finding that petitioner could not demonstrate a subjective fear of future persecution, as the underlying record suggested that petitioner suffered past persecution on account of her political opinion. Read more...
California Appellate Districts, April 23, 2008
People v. Jacinto , No. A117076
In a case wherein a material defense witness, incarcerated and facing deportation, was served with a subpoena but immediately deported upon completion of his sentence, grant of defendant's motion to dismiss the information is reversed where the trial court erroneously concluded that the sheriff's department's act of releasing the witness to federal custody was state action. Read more...
April 14 - April 18, 2008
U.S. 1st Circuit Court of Appeals, April 18, 2008
Nou v. Mukasey, No. 07-1223
Petition for review of an order denying applications for asylum, withholding of removal, and relief under Convention Against Torture is denied where: 1) substantial evidence supports the BIA's determination that petitioner lacked credibility; and 2) petitioner failed to demonstrate a reasonable fear of future prosecution. Read more...
U.S. 6th Circuit Court of Appeals, April 16, 2008
Ndrecaj v. Mukasey, No. 07-3385
Petition for review of a BIA order removing petitioners to Albania, based on an IJ's adverse credibility finding and subsequent denial of asylum and related relief, is denied where: 1) a due process claim was meritless; 2) the evidence did not compel a contrary conclusion as to petitioner's credibility; 3) alternatively, denial of asylum was proper based on changed country conditions, and petitioner's admission that he does not fear Albania in its current state and that he fears only the possibility of the Socialist Party returning to power at some unspecified time in the future was dispositive in establishing that he lacks a well-founded fear of future persecution; and 4) withholding and CAT claims similarly failed. Read more...
U.S. 6th Circuit Court of Appeals, April 17, 2008
Barry v. Mukasey, No. 07-3317
Petition for review of an order denying petitioner's untimely motion to reopen is dismissed in part and denied in part where: 1) the circuit court lacked jurisdiction to review the BIA's decision not to exercise its sua sponte discretion to reopen removal proceedings; and 2) the BIA did not otherwise abuse its discretion when it denied her request to equitably toll the time limit for her motion to reopen. Read more...
U.S. 8th Circuit Court of Appeals, April 14, 2008
Nguyen v. Mukasey , No. 07-3889
Petition for review of an order denying cancellation of removal is granted where: 1) the court retains jurisdiction to review constitutional claims and nondiscretionary determinations underlying denial of relief; and 2) review of question whether alien committed marriage fraud or procured an immigration benefit by fraud or willful misrepresentation is required, as finding could result in permanent bar to entry. Read more...
U.S. 11th Circuit Court of Appeals, April 16, 2008
Acosta v. US Atty. Gen. , No. 06-10120
Petition for review of an order denying a motion for continuance of removal proceedings is denied where the circuit court lacked subject matter jurisdiction to hear the petition as: 1) petitioner's conviction was a crime "related to a controlled substance" under 8 U.S.C. section 1182(a)(2)(A)(i)(II); and 2) the petition presented no constitutional claim or question of law to confer jurisdiction under section 1252(a)(2)(C) and (D). Read more...
April 07 - April 11, 2008
U.S. 2nd Circuit Court of Appeals, April 09, 2008
US v. Hendry, No. 06-5118
Sentence calculation for entering the United States after having been lawfully deported following a conviction of an aggravated felony is affirmed over claims that: 1) the existence of "fast-track-programs" in some districts but not others not only created unwarranted disparities but also violated the parsimony provision of 18 U.S.C. section 3553(a); and 2) the sentencing court placed too much weight on the Guidelines, to the exclusion of other section 3553(a) factors. Read more...
U.S. 4th Circuit Court of Appeals, April 10, 2008
US v. Matamoros-Modesta, No. 07-4105
Sentence for illegal reentry is vacated and remanded where the district court erred in the wake of the Supreme Court's decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), by enhancing defendant's sentence for having previously been removed subsequent to an "aggravated felony" conviction. Read more...
U.S. 4th Circuit Court of Appeals, April 11, 2008
US v. Rodriguez-Amaya, No. 06-4514
Conviction for unlawful reentry after deportation by an aggravated felon is affirmed where the time defendant was detained by United States Immigration and Customs Enforcement on administrative charges pending his removal was not detention "in connection with" his arrest, thus defendant's indictment did not violate the Speedy Trial Act. Read more...
U.S. 4th Circuit Court of Appeals, April 11, 2008
US v. Diaz-Ibarra, No. 07-4420
Sentence for being found in the U.S. after having been deported subsequent to a conviction for an aggravated felony is affirmed where the sentencing judge did not err in applying a sentencing enhancement since violation of former Georgia Code Ann. section 16-6-4 categorically constituted "sexual abuse of a minor," which the Sentencing Guidelines define as a "crime of violence." Read more...
U.S. 8th Circuit Court of Appeals, April 07, 2008
Osonowo v. Mukasey , No. 07-1014
Petition for review of an order denying petitioner's application for asylum and related relief is denied where: 1) the IJ offered an adequate explanation for a credibility assessment and the record supported an adverse credibility determination; 2) the IJ did not err in determining that petitioner did not meet the well-founded fear of persecution standard for asylum; and 3) petitioner did not meet the burden of demonstrating that he would suffer torture in his home country for any reasons other than those advanced in his discredited asylum and withholding claims. Read more...
U.S. 8th Circuit Court of Appeals, April 10, 2008
Sabhari v. Mukasey , No. 06-3483
Petition for review of the BIA's denial of a second motion to reopen asylum proceedings is dismissed over petitioner's claims that the BIA: 1) abused its discretion by denying his motion to reopen proceedings, sua sponte, based on exceptional circumstances; and 2) violated the Due Process Clause by denying his motion as petitioner pointed to nothing which suggested the proceedings were not fundamentally fair. Read more...
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