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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 JUNE / JULY 2008
July 28 - August 01, 2008
U.S. 1st Circuit Court of Appeals, July 28, 2008
Lutaaya v. Mukasey, No. 072328
Petition for review of a decision denying relief from removal of Ugandan petitioner fearing persecution because of her membership in Democratic Party and alleged attack by members of Ugandan military is affirmed where: 1)Court lacks jurisdiction to review determination that an asylum application is untimely and unexcused by the circumstances; 2) petitioner has not exhausted the Convention Against Torture claim before the Board of Immigration Appeals; and 3) on her claim for withholding of removal, petitioner did not meet the burden showing that, upon deportation, she is "more likely than not to face persecution on account of race, religion, nationality membership in a particular social group, or political opinion". Read more...
U.S. 1st Circuit Court of Appeals, August 01, 2008
Aronov v. Chertoff, No. 07-1588
District court's award of attorney's fees to plaintiff, who filed an action to force government to act on his long-pending application for naturalization, is affirmed where: 1) under Equal Access to Justice Act, he was the prevailing party in the litigation; and 2) the pre-litigation position taken by the government was not substantially justified. Read more...
U.S. 2nd Circuit Court of Appeals, August 01, 2008
Arar v. Ashcroft, No. 06-4216
In an action brought by Syrian-and-Canadian dual citizen plaintiff alleging he was mistreated by U.S. officials in the U.S. and removed to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture, dismissal of the action is affirmed where: 1) the allegations set forth in plaintiff's complaint were sufficient, at this early stage of the litigation, to establish personal jurisdiction over defendants not resident in New York; but 2) plaintiff did not establish federal subject matter jurisdiction over his claim for declaratory relief; 3) plaintiff's allegations did not state a claim against defendants for damages under the Torture Victim Protection Act; and 4) in light of the determinations of Congress and applicable precedents, a cause of action for damages under the Fifth Amendment could not be judicially created for plaintiff pursuant to the Bivens doctrine. (Corrected opinion) Read more...
U.S. 5th Circuit Court of Appeals, July 28, 2008
US v. Ramos, No. 06-51489
Convictions of Border Patrol agents for assault, unlawful use of firearms, and tampering with an official proceeding, all resulting from their shooting of an unarmed illegal immigrant attempting to flee into Mexico, are confirmed in part and reversed in part where: 1) the exclusion of evidence relating to the marijuana being transported by the victim at the time of the shooting and his prior involvement in drug trafficking did not deny defendants their right to cross-examination or to a complete defense; 2) defendants were not denied due process for lack of notice that the firearms statute could be applied to police officers while performing law enforcement duties; 3) the indictment counts for the firearms offenses were not flawed; 4) defendants were properly convicted of substantive crimes, not for merely violating Border Patrol policies; 5) jury instructions were proper; 6) the evidence was sufficient to support the jury verdict; and 7) there was no obstruction of justice ! because the Border Patrol investigation was not an "official proceeding" within the meaning of the tampering statute. Read more...
U.S. 5th Circuit Court of Appeals, July 30, 2008
US v. Valle, No. 07-50869
Conviction of an Immigration and Customs Enforcement agent for bribery and extortion is affirmed where: 1) an official may be convicted under the federal bribery statute if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has received, or agreed to receive, is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain; and 2) a decision, when issuing a supplemental instruction, not to remind the jury of the burden and quantum of proof and presumption of innocence did not result in a prejudicial unbalanced charge, nor did it shift the burden of proof to defendant. Read more...
U.S. 6th Circuit Court of Appeals, July 28, 2008
Aburto-Rocha v. Mukasey, No. 07-3871
Petition for review of an order denying petitioner's application for cancellation of removal is denied where, although there was jurisdiction to hear the petition, the BIA did not unreasonably apply its own precedent in rejecting the application. Read more...
U.S. 7th Circuit Court of Appeals, August 01, 2008
Aid v. Mukasey, No. 07-2915
Petition for review of petitioner's application for withholding of removal based on political opinion is denied where substantial evidence supported the BIA's decision that petitioner failed to establish that he had been persecuted on account of his political opinion. Read more...
U.S. 7th Circuit Court of Appeals, August 01, 2008
Bayo v. Chertoff, No. 07-1069
Petition for review of an administrative removal order for overstaying a visa is granted and the case remanded where an alien who gains entry to the United States under the Visa Waiver Program by waiving his due-process rights to contest future removal must sign the waiver knowingly and voluntarily. Read more...
U.S. 8th Circuit Court of Appeals, July 28, 2008
Osakwe v. Mukasey, No. 07-1714
Petition for review of an order denying petitioner's motion to remand his case for an adjustment of status on the basis of his second marriage to a U.S. citizen is granted, and the order vacated, where: 1) although petitioner's due process and law-of-the-case arguments failed; 2) it was not possible to rule on the merits of the petition without further clarification from the BIA regarding inconsistent marriage fraud determinations. Read more...
U.S. 8th Circuit Court of Appeals, July 29, 2008
Redd v. Mukasey, No. 07-3263
Petition for review of a denial of Liberian petitioner's application for asylum is denied where: 1) petitioner failed to meet his burden of demonstrating his credibility based on inconsistencies and implausibility of his testimony and failed to provide corroborating evidence for his persecution claim; and 2) thus, his asylum claim failed. Read more...
U.S. 8th Circuit Court of Appeals, August 01, 2008
Gumaneh v. Mukasey, No. 07-3003
Gambian citizen's petition for review of a denial of her application for asylum and withholding of removal is denied where: 1) the circuit court lacked jurisdiction to review the BIA's determination that her asylum application was untimely; and 2) a parent may not establish a derivative claim for withholding of removal based upon their child's fear of persecution. Read more...
U.S. 9th Circuit Court of Appeals, July 28, 2008
Casas-Castrillon v. Dep't of Homeland Sec., No. 07-56261
In the context of the detention of an alien who is a legal permanent resident of the U.S., the circuit court rules that a prolonged detention must be accompanied by appropriate procedural safeguards, including a hearing to establish whether releasing the alien would pose a danger to the community or a flight risk. Read more...
U.S. 9th Circuit Court of Appeals, July 29, 2008
Aguilar-Gonzales v. Mukasey, No. 04-74576
Petition for review of a denial of petitioner's motion to terminate removal proceedings against her and a finding that she was inadmissible under immigration statutes because she assisted in the smuggling of two undocumented alien minors into the U.S. is granted where petitioner's mere presence and acquiescence in her father's plan does not constitute alien smuggling under INA section 212(a)(6)(E)(i). Read more...
U.S. 9th Circuit Court of Appeals, July 31, 2008
Nehad v. Mukasey, No. 07-70606
Petition for review of an order denying petitioner's motion to reopen removal proceedings on the basis of ineffective assistance of his counsel is granted where: 1) petitioner's counsel, by announcing that he would withdraw if petitioner did not accept an offer of voluntary departure, impinged on petitioner's authority to decide whether, and on what terms, to concede his case; 2) counsel violated his duty to insure that withdrawal would be conducted in a manner that would not prejudice his client; and 3) the deficient performance and the prejudice resulting from it added up to a violation of his right to due process. Read more...
U.S. 9th Circuit Court of Appeals, July 31, 2008
Zhu v. Mukasey, No. 06-72967
Petition for review of a denial of petitioner's applications for relief from removal is granted and the matter remanded where: 1) the BIA's adverse credibility finding was not supported by substantial evidence as the principal ground for the adverse credibility finding was based on the IJ's view, unsupported by any evidence, that a rape victim in petitioner's position would have gone to a doctor; and 2) police sought to arrest petitioner "on account of" a protected ground. Read more...
U.S. 10th Circuit Court of Appeals, July 28, 2008
Hayrapetyan v. Mukasey, No. 06-9538
Denial of an application for asylum, and restriction on removal under the Immigration and Nationality Act and the United Nations Convention Against Torture (CAT), is affirmed in part as to the CAT claim, but otherwise reversed where: 1) the IJ applied the wrong legal standard in determining petitioner failed to prove past political persecution; and 2) the record would support a determination to the contrary under the correct standard. Read more...
U.S. 10th Circuit Court of Appeals, July 30, 2008
US v. Servin-Acosta, No. 07-2228
A sentence for illegal reentry after deportation is remanded for resentencing where: 1) a minute order from a California court purportedly reflecting a conviction of second-degree robbery, together with other evidence before the district court, was sufficient to prove the conviction; but 2) the evidence did not establish that the conviction was for the crime of generic robbery, as required by U.S.S.G. section 2L1.2. Read more...
July 21 - July 25, 2008
U.S. 1st Circuit Court of Appeals, July 23, 2008
Kechichian v. Mukasey, No. 07-1584
In an immigration proceeding, petition for review of a final order of removal is denied where: 1) petitioner was not entitled to withholding of removal because she has not shown that it is more likely than not she would be persecuted were she to return to her country; 2) petitioner's argument that she is a member of a social group of people with mental illness requiring treatment cannot be addressed because she failed to raise that argument before the IJ; and 3) a remand to the IJ, based on newly produced certificate from Armenian Embassy stating that petitioner's son is not an Armenian citizen, was unwarranted. Read more...
U.S. 2nd Circuit Court of Appeals, July 21, 2008
Duran v. Beaumont, No. 06-5614
Appeal from final judgment dismissing petitioner’s motion, for return of his daughter to Chile, for lack jurisdiction is affirmed where the petitioner did not actually possess custody rights at the time of his daughter’s removal to the United States, such as to allow him to seek return of her, under the Hague Convention, implemented by the International Child Abduction Remedies Act. Read more...
U.S. 2nd Circuit Court of Appeals, July 21, 2008
Lin v. Mukasey , No. 07-5211
Review of Order of Board of Immigration Appeals affirming an Immigration Judge’s denial of petitioner’s application for asylum, withholding of removal, and relief under Convention Against Torture is denied where the REAL ID Act of 2005 abrogated Court’s holding in Secaida-Rosales v. INS , that an adverse credibility determination cannot be based on inconsistencies and omissions that are ancillary or collateral to an applicant’s claims of persecution and that pursuant to the REAL ID Act, the IJ’s adverse credibility was proper in light of the totality of the circumstances. Read more...
U.S. 2nd Circuit Court of Appeals, July 22, 2008
Llanos-Fernandez v. Mukasey , No. 07-0756
Petition for review of a denial of minor petitioner's motion to reopen his removal proceedings and rescind his in abstentia order is granted where petitioner's uncle, into whose custody he had been released, was not served with the notice of the hearing. Read more...
U.S. 2nd Circuit Court of Appeals, July 23, 2008
Passi v. Mukasey, No. 07-2102-ag
In an immigration matter, petition for review of a denial of petitioner's application for asylum is granted and the case is remanded where the BIA could not have conducted an individualized analysis of how changed country conditions would affect someone in petitioner's situation. Read more...
U.S. 2nd Circuit Court of Appeals, July 25, 2008
Singh v. Mukasey, No. 07-3431
Petition for review of a denial of petitioner's motion to remand his case to an IJ in order to apply for an extreme hardship waiver of the ordinary requirement that a conditional permanent resident file a joint petition with his spouse to remove the conditional designation of his residency status is denied where: 1) there was jurisdiction to hear the matter; but 2) the BIA did not abuse its discretion by refusing to remand petitioner's case. Read more...
U.S. 7th Circuit Court of Appeals, July 23, 2008
Huang v. Mukasey, No. 07-2961, 07-3322, 07-3673, 07-3840
Petitions for review of BIA's denials of several petitions to reopen removal proceedings are dismissed in part and denied in part where no reviewable questions of law were presented regarding: 1) whether petitioners would face persecution in China for violating its one-child policy; 2) denial of a petition based on petitioner's propensity to lie in prior removal proceedings; or 3) dismissal as untimely of a petition to reopen based on the ineffective assistance of counsel at prior proceedings. Read more...
U.S. 7th Circuit Court of Appeals, July 25, 2008
Ceta v. Mukasey, No. 07-1863
Petition for review of denials of petitioner's application for adjustment of status and motion for termination of proceedings or a continuance is granted where: 1) appellate jurisdiction existed to consider petitioner's submission regarding the denial of his request for a continuance; and 2) the BIA abused its discretion by failing to articulate a reason consistent with the adjustment-of-status statute for declining to remand petitioner's case to the IJ with instructions to continue the proceedings so that petitioner could pursue his adjustment application. Read more...
U.S. 8th Circuit Court of Appeals, July 25, 2008
Hassen v. Mukasey, No. 07-2837
Petition for review of an order refusing to readjust petitioner's status to permanent resident based on her marriage to a citizen, as well as denying her asylum and related relief, is denied where: 1) substantial evidence supported an IJ's decision finding that petitioner and her husband were not entirely credible and that the marriage was entered into for for the purpose of obtaining admission to the U.S.; and 2) denial of asylum was neither manifestly contrary to law nor an abuse of discretion. Read more...
U.S. 9th Circuit Court of Appeals, July 23, 2008
Singh v. Mukasey, No. 05-74817
The REAL ID Act of 2005 gives aliens whose removal order became final before the REAL ID Act a reasonable opportunity to obtain judicial review. Aliens whose petitions were rendered untimely by the Act had a grace period of no more than 30 days from the effective date of the Act in which to seek such review. Read more...
U.S. 9th Circuit Court of Appeals, July 23, 2008
US v. Jimenez, No. 07-10399
A sentence for unlawful reentry of a deported alien is affirmed where defendant's prior convictions for Unlawful Use of a Communication Facility under 21 U.S.C. section 843(b) qualify as "drug trafficking offenses" under section 2L1.2(b)(1)(A)(i) of the Guidelines, as reasoned in US v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003). Read more...
U.S. 9th Circuit Court of Appeals, July 24, 2008
Parussimova v. Mukasey, No. 06-75217
Petition for review from a denial of asylum is denied where the BIA, in applying a provision of the Real ID Act of 2005 imposing a new evidentiary burden on asylum applicants, properly denied asylum to petitioner who claimed she was the victim of religious and ethnic persecution in Kazakhstan. Read more...
U.S. 9th Circuit Court of Appeals, July 25, 2008
Prieto-Romero v. Clark, No. 07-35458
An alien whose removal order is administratively final, but whose removal is stayed pending the court of appeals' resolution of his petition for review, may be subject to detention under 8 U.S.C. section 1226(a), but not section 1231(a)(2) or (a)(6). However, section 1226(a) does not authorize prolonged and indefinite detention. Denial of a habeas corpus petition is affirmed where the government's civil detention of a legal permanent resident of the United States for over three years, while he sought administrative and judicial review of his removal order, was authorized by statute. Read more...
U.S. 9th Circuit Court of Appeals, July 25, 2008
Rodriguez-Echeverria v. Mukasey, No. 06-73670
Petition for review of a final order of removal is granted and the matter remanded where: 1) an IJ erred in determining that petitioner was not under arrest at the time she gave certain incriminating statements; and 2) a remand was required to determine whether her rights under 8 C.F.R. section 287.3 were infringed and whether her statements were freely given. Read more...
July 14 - July 18, 2008
U.S. 1st Circuit Court of Appeals, July 14, 2008
Bakuaya v. Mukasey, No. 07-1667, 07-2439
In an immigration proceeding, petition for review of a denial of petitioner's asylum application is denied where: 1) there was no evidence that petitioner's familial and tribal associations give rise to a well-founded fear of persecution; 2) given petitioner's prior false statements, petitioner needed to present evidence as to why her brother was attacked in Togo; and 3) petitioner failed to show why she would be a more likely target of government harassment than other non-political members of her family. Read more...
U.S. 1st Circuit Court of Appeals, July 16, 2008
Sompotan v. Mukasey, No. 07-1635
In an immigration proceeding, petition for review an order denying petitioners' applications for withholding of removal is denied where: 1) the motivations for the alleged persecution were motivations that were not impermissible under applicable statute; 2) the fact that an actor may have multiple motives does not alter a petitioner's burden to provide sufficient evidence; and 3) petitioners did not present sufficient evidence to support their claim of persecution. Read more...
U.S. 2nd Circuit Court of Appeals, July 16, 2008
Rashid v. Mukasey, No. 07-2064
In order to equitably toll the filing deadline for a motion to reopen based on ineffective assistance of counsel, an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll. This includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed. Read more...
U.S. 2nd Circuit Court of Appeals, July 17, 2008
Grant v. US Dep't of Homeland Sec., No. 05-4614
The circuit court rejects a constitutional challenge to 8 U.S.C. section 1432(a) (1994), which provided that an alien born out of wedlock could obtain derivative citizenship based on the naturalization of his or her mother before the alien turned eighteen but could not obtain derivative citizenship based on the naturalization of his or her father before the alien turned eighteen unless paternity had been established by legitimation. Read more...
U.S. 5th Circuit Court of Appeals, July 16, 2008
Masih v. Mukasey, No. 07-60029
In an immigration proceeding, a petition to reverse a decision by the Board of Immigration Appeals denying petitioner's request for a continuance or abeyance of his removal proceedings while he pursues adjustment of status is granted where: 1) petitioner was statutorily eligible for adjustment of status under section 1255(i)(2)(B) since he was eligible to receive an immigrant visa and one was immediately available to him; 2) the BIA and the IJ failed to consider OI 245.4(a)(6) in their rulings despite the regulation's applicability; and 3) the BIA ignored precedence set in Matter of Ho. Read more...
U.S. 8th Circuit Court of Appeals, July 14, 2008
Che v. Mukasey, No. 07-2278
In an immigration proceeding, petition for review of a denial of petitioner's application for asylum and related relief is denied where: 1) petitioner failed to procure credible proof of persecution or future persecution due to several inconsistencies in her evidence; and 2) the government did not breach the confidentiality requirement of her asylum application by seeking court records in her name. Read more...
U.S. 8th Circuit Court of Appeals, July 16, 2008
Hashmi v. Mukasey, No. 07-2377
In an immigration proceeding, petition for review of a denial of petitioner's application for adjustment of status is affirmed where: 1) there was substantial evidence to support an IJ's determination not to credit petitioner's testimony that he intended merely to represent on an I-9 form that he was a non-citizen national; and 2) petitioner had presented himself as being born in Washington state and as having a right to work in the United States. Read more...
U.S. 8th Circuit Court of Appeals, July 18, 2008
Gutierrez-Olivares v. Mukasey, No. 07-2321
In an immigration proceeding, petition for review of a denial of an application for asylum and withholding of removal is dismissed where: 1) the court lacks jurisdiction to review a determination that petitioner's application for asylum was untimely; and 2) petitioner failed to prove that he will suffer persecution based on his political opinion if he is removed. Read more...
U.S. 8th Circuit Court of Appeals, July 18, 2008
Uli v. Mukasey, No. 07-2345
In an immigration proceeding, petition for review of a denial of an application for asylum and related relief is affirmed where: 1) the BIA did not err by not reversing an IJ's adverse credibility determination since the BIA treated her account as credible; 2) petitioner failed to establish past persecution; 3) the BIA did shift the burden to the Department of Homeland Security to rebut the presumption that petitioner had a reasonable fear of future persecution; 4) the BIA properly relied on the fact that petitioner's family still resided in Indonesia as evidence of changed country conditions; and 5) the court did not err in denying the request for withholding. Read more...
U.S. 9th Circuit Court of Appeals, July 17, 2008
Dhital v. Mukasey, No. 06-75043
Petition for review of a decision denying admissibility to a Nepalese student who admitted to having previously obtained asylum under a false identity is denied where substantial evidence supported findings that: 1) extraordinary circumstances did not justify petitioner's untimely filing and that he was ineligible for asylum as a result; 2) his lack of credibility prevented him from obtaining withholding of removal; and 3) CAT relief should be denied. Read more...
U.S. 9th Circuit Court of Appeals, July 17, 2008
US v. Singh, No. 07-30150
A conviction and sentence for offenses related to defendant's role in a human smuggling conspiracy is affirmed over claims that: 1) there was insufficient evidence to establish that he brought, or aided and abetted the bringing of, an alien into the United States as alleged in one count; and 2) the sentence violated Apprendi. Read more...
U.S. 9th Circuit Court of Appeals, July 18, 2008
Tekle v. Mukasey, No. 05-76841
Ethiopian citizen's petition for review of a denial of an application for asylum and related relief is granted where the BIA's adverse credibility determination was not based on substantial evidence. Where an IJ has made an adverse credibility finding and has also concluded in the alternative that petitioner is ineligible for asylum or other relief, and the BIA has affirmed on the basis of the IJ's adverse credibility finding, but has specifically declined to reach the issue of eligibility for asylum and other relief, the circuit court must remand under INS v. Ventura, 537 U.S. 12, 16 (2002). Read more...
July 07 - July 11, 2008
U.S. 1st Circuit Court of Appeals, July 09, 2008
Wiratama v. Mukasey, No. 07-1149
In an immigration proceeding, petition for review of an order denying asylum and related relief is denied where: 1) the application for asylum was untimely; 2) an adverse credibility determination was not supported by substantial evidence or cogent reasoning; but 3) even if his testimony had been fully credited, petitioner would have failed to establish that he had a reasonable fear of persecution. Read more...
U.S. 1st Circuit Court of Appeals, July 09, 2008
Beltre-Veloz v. Mukasey, No. 07-1958
In an immigration proceeding, petition for review a denial of a motion to reopen a removal proceeding is denied where: 1) petitioner failed to demonstrate that his removal proceeding should be reopened due to ineffective assistance of counsel; 2) petitioner's arguments of "substantial compliance" fell short of being substantial; and 3) no claims of substantial compliance were ever presented to the BIA. Read more...
U.S. 1st Circuit Court of Appeals, July 10, 2008
Shah v. Mukasey, No. 07-2001
In an immigration case, petition for review of an order denying a motion to reopen petitioner's removal proceedings is denied where: 1) petitioner was barred from reopening since he departed the United States before he filed his motion to open the deportation proceeding; and 2) petitioner failed to meet his burden that he failed to receive a notice to appear. Read more...
U.S. 2nd Circuit Court of Appeals, July 08, 2008
Garcia-Villeda v. Mukasey, No. 07-0283
Petition for review of an order reinstating a prior order of deportation for illegal entry is denied where: 1) 8 C.F.R. section 241.8 constitutes a valid interpretation of the reinstatement of removal statute, 8 U.S.C. section 1231(a)(5); 2) there was no prejudice resulting from the reinstatement of the prior deportation order; 3) the reinstatement of removal statute precludes collateral review of the underlying deportation proceeding; and 4) petitioner was ineligible for any discretionary relief under immigration laws as an illegal reentrant. Read more...
U.S. 2nd Circuit Court of Appeals, July 09, 2008
Nethagani v. Mukasey, No. 05-3249
Petition for review of a denial of asylum and withholding of removal is denied where: 1) 8 U.S.C. section 1252(a)(2)(B)(ii) does not limit the court's power to review a decision that petitioner was convicted of a "particularly serious crime"; 2) the BIA properly applied its own precedent in determining that petitioner had been convicted of a particularly serious crime; 3) 8 U.S.C. section 1158 allows the Attorney General to determine that a crime is particularly serious for purposes of the asylum statute; and 4) the BIA has rejected an interpretation that 8 U.S.C. section 1231 means that only aggravated felonies may be found to be particularly serious crimes. Read more...
U.S. 3rd Circuit Court of Appeals, July 07, 2008
Hashmi v. Attorney Gen. USA, No. 06-3934
In removal proceedings, petition for review of a denial of a motion for a continuance is granted where: 1) an IJ's decision whether to grant or deny a motion for a continuance based solely on DOJ "case-completion goals", with no regard for the circumstances of the case itself, is arbitrary and an abuse of discretion; and 2) a BIA decision providing an alternate basis for removal was impermissibly based on its own findings of fact. Read more...
U.S. 7th Circuit Court of Appeals, July 07, 2008
Kucana v. Mukasey, No. 07-1002
Petition for review of an order of removal is dismissed for lack of jurisdiction where 8 U.S.C. section 1252(a)(2)(B)(ii) limits the courts' ability to review discretionary decisions of immigration officials. Read more...
U.S. 7th Circuit Court of Appeals, July 08, 2008
Lin v. Mukasey, No. 07-3719
Petition for review of an order of removal is granted and the case remanded where petitioner met her burden of showing changed country conditions that entitle her to reopen her removal proceedings by demonstrating that she could be subject to forced sterilization if she is returned to China. Read more...
U.S. 8th Circuit Court of Appeals, July 07, 2008
Davila-Mejia v. Mukasey, No. 07-2567
Petition for review of a denial of petitioners' application for asylum and withholding of removal is denied where: 1) petitioners failed to establish that their status as affluent Guatemalans gave them sufficient social visibility to be perceived as a particular group by society; and 2) petitioners failed to establish that their status as "competing family business owners" gave them sufficient visibility to be perceived as a group by society that is at greater risk of crime in general. Read more...
U.S. 9th Circuit Court of Appeals, July 08, 2008
Loho v. Mukasey, No. 04-73136
Indonesian native's petition for review of a denial of her asylum, withholding of removal and CAT claims is denied where an IJ properly discredited a claim that she suffered persecution in her native country of Indonesia, when previous to her applications she twice visited the U.S. and yet voluntarily returned to Indonesia following each trip. Read more...
U.S. 9th Circuit Court of Appeals, July 09, 2008
Bustamante v. Mukasey, No. 06-17228
Ordinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review. However, when a U.S. citizen's constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, the circuit court will make a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason. Read more...
U.S. 9th Circuit Court of Appeals, July 09, 2008
Williams v. Mukasey, No. 05-70987
Nigerian national's petition for review of a denial of her untimely motion to reopen is denied where: 1) publication of CAT Regulations in the Federal Register provided petitioner with the notice that due process required; and 2) an argument that publication in the Federal Register was "insufficient in law" failed as the government had no independent legal duty to provide notice by a different method. Read more...
U.S. 9th Circuit Court of Appeals, July 09, 2008
Dela Cruz v. Mukasey, No. 05-76564, 06-75285
The filing of a petition for review in the circuit court does not toll the statutory time limit for filing a motion to reopen before the BIA. Read more...
U.S. 9th Circuit Court of Appeals, July 10, 2008
Brazil Quality Stones, Inc. v. Chertoff, No. 06-55879
In an action arising from the U.S. Bureau of Citizenship and Immigration Services' (USCIS) denial of a small corporation's petition to extend the visa of its Brazilian President and CEO, a ruling in favor of the agency is affirmed where the USCIS did not abuse its discretion in denying the petition based on a finding that the CEO was not acting in a managerial capacity at the time of the petition. Read more...
U.S. 9th Circuit Court of Appeals, July 10, 2008
Renteria-Morales v. Mukasey, No. 04-74742, 06-73283
In the context of immigration law, a conviction for failure to appear in court in violation of 18 U.S.C. section 31462 is not categorically an aggravated felony under either 8 U.S.C. section 1101(a)(43)(S) or 8 U.S.C. section 1101(a)(43)(T). Read more...
U.S. 10th Circuit Court of Appeals, July 08, 2008
US v. Munoz-Tello, No. 07-2007
In a prosecution arising after defendant rolled a vehicle carrying illegal aliens he was driving on a highway, resulting in the death of four aliens, defendant's sentence for transporting an illegal alien resulting in death is affirmed where the sentencing court: 1) correctly calculated defendant's advisory guidelines sentence; and 2) appropriately hitched an upward departure to a method ratified by circuit case law, and then examined the amended range in light of the statutory factors. Read more...
June 30 - July 04, 2008
U.S. 2nd Circuit Court of Appeals, June 30, 2008
Arar v. Ashcroft, No. 06-4216
In an action brought pursuant to the Torture Victim Protection Act (TVPA) and Fifth Amendment by a dual citizen of Syria and Canada alleging he was mistreated by U.S. officials in the United States and removed to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture, grant of defendants' motion to dismiss is affirmed where: 1) plaintiff satisfied the Article III requirements as to certain claims and made a prima facie showing sufficient to establish personal jurisdiction over defendants in New York; 2) plaintiff's allegations about the events surrounding his removal to Syria did not state a claim against defendants under the TVPA; 3) the circuit court rejects counts which would have required judicial creation of a cause of action pursuant to the Bivens doctrine, with regards to removal-related claims; 4) allegations about the mistreatment he suffered while in the United States did not state a due process claim against defendants; a! nd 5) plaintiff did not establish federal subject matter jurisdiction over his request for a declaratory judgment. Read more...
U.S. 7th Circuit Court of Appeals, July 02, 2008
Rapheal v. Mukasey, No. 07-1391
In an immigration proceeding involving a petition for asylum, withholding of removal, and relief under the Convention Against Torture, a decision rejecting the claims for relief is reversed and the case remanded where petitioner's hearing before an IJ did not conform to statutory requirements insofar as she did not have a chance to review an Immigration Report admitted against her. Petitioner's challenges to the use of video conferencing for immigration proceedings are rejected. Read more...
U.S. 8th Circuit Court of Appeals, July 03, 2008
Al Yatim v. Mukasey, No. 06-3321, 07-1456
Palestinian Christians' petitions for review of denials of their applications for asylum and related relief, as well as a motion to re-open, are denied where: 1) the record did not compel a conclusion that the BIA erred in finding petitioners ineligible for asylum, withholding of removal, or CAT relief; and 2) although the election of Hamas may cause increased difficulties for Christians in the Palestinian territories, petitioners failed to identify any additional difficulties they will face which would rise to the level of persecution. Read more...
U.S. 9th Circuit Court of Appeals, July 01, 2008
Kawashima v. Mukasey, No. 04-74313, 05-74408
Japanese natives' petitions for review of removal orders are granted in part where: 1) under circuit precedent, because the statutes to which petitioners pled guilty to violating do not require proof of any particular monetary loss, the circuit court does not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000; and 2) the government failed to show that petitioners' convictions are aggravated felonies under the categorical approach, and thus they are not removable. (Superseding opinion) Read more...
U.S. 10th Circuit Court of Appeals, July 01, 2008
Kabba v. Mukasey, No. 07-9532
In an immigration proceeding, petition for review of a decision finding petitioner ineligible for both asylum, restriction on removal, and related relief is granted where the BIA did not appropriately review an IJ's earlier credibility determination under the clearly erroneous standard, as required by 8 C.F.R. section 1003.1(d)(3)(i). Read more...
June 23 - June 27, 2008
U.S. 1st Circuit Court of Appeals, June 27, 2008
Jamal v. Mukasey, No. 07-1599
Petition for review of BIA's rejection of petitioner's application for asylum, withholding of removal, and relief under CAT is denied where: 1) the IJ's conclusion that petitioner's asylum application was untimely filed did not violate due process; and 2) measured against the stringent standard for overturning fact findings made by the IJ and BIA, petitioner had not shown that the record must compel a conclusion that he would to be persecuted or tortured upon returning to his native country of Pakistan. Read more...
U.S. 4th Circuit Court of Appeals, June 25, 2008
U.S. v. Martinez-Varela, No. 07-4375
A conviction and sentence pursuant to a guilty plea to illegal reentry into the U.S. after deportation following an aggravated felony are affirmed over claims of error regarding the aggregation of three prior sentences for felony drug convictions which made the defendant eligible for a sixteen-level enhancement. Read more...
U.S. 6th Circuit Court of Appeals, June 26, 2008
Rashid v. Mukasey, No. 06-4270
Judgment finding petitioner ineligible for cancellation of removal based on two state misdemeanor convictions is reversed and the case remanded where a conviction for misdemeanor drug possession is simply a conviction for the charged offense unless there is explicit reference to a prior misdemeanor drug-possession conviction as an element of the subsequent offense, and thus, a conviction for a prior drug-possession offense is necessary but not sufficient in and of itself to render someone a recidivist. Read more...
U.S. 7th Circuit Court of Appeals, June 25, 2008
Alden Mgmt. Services, Inc. v. Chao, No. 07-3828
In a suit challenging the validity of a back-pay order from the Secretary of Labor, which arose from an investigation into the compensation practices of plaintiff for nurses brought into the U.S. under the Immigration Nursing Relief Act, judgment for defendant is affirmed where: 1) section 1182(m)(2)(E)(ii) does not limit the defendant's ability to inquire into statutory compliance only in situations where an aggrieved party complains; 2) defendant's regulations that provide that a private complaint is not necessary to an investigation are not arbitrary or capricious; 3) back-pay may be awarded for as long as the worker continues to receive less than the law requires once an administrative proceeding begins; 4) there is no period of limitations for administrative enforcement actions; and 5) defendant did not violate due process by adopting and abandoning several different and incompatible views about the appropriate back-pay period. Read more...
U.S. 7th Circuit Court of Appeals, June 26, 2008
Rahman v. Chertoff, No. 07-3430
In an interlocutory appeal in a suit alleging violations of constitutional rights and seeking more effective ways of improving the FBI's and the Department of Homeland Security's methods of identifying and screening travelers, certification of two nationwide classes is reversed and remanded where: 1) the classes in the case failed to meet the typicality requirement of Rule 23(a)(3); 2) the classes were too ambulatory; and 3) the wrongs alleged were best addressed by individual lawsuits. Read more...
U.S. 7th Circuit Court of Appeals, June 27, 2008
Al-Siddiqi v. Achim, No. 07-3872
In removal proceedings based on expiration of petitioner's student visa, denial of petitioner's writ of habeas corpus is affirmed where an IJ ordered the petitioner detained pursuant to its right to impose conditions on a voluntary departure order, and not under its authority to review the Department of Homeland Security's bond determinations. Read more...
U.S. 8th Circuit Court of Appeals, June 23, 2008
Mocevic v. Mukasey, No. 07-2239
Petition for review of an order finding petitioner removable as a criminal alien is denied where: 1) petitioner's constitutional argument was nothing more than a challenge to the IJ's discretionary and fact-finding exercises cloaked as a question of law; and 2) the court lacked jurisdiction to review the IJ's fact-finding. Read more...
U.S. 8th Circuit Court of Appeals, June 26, 2008
US v. Andrade-Rodriguez, No. 07-2395, 07-2439
Conviction of alien-defendants for falsely claiming citizenship, using fraudulently obtained and false identification documents, falsely representing a social security number, and aggravated identity theft is affirmed over claims that the district court erred by excluding testimony from their immigration expert which would have explained their "necessity defense" to the jury that it was necessary for them to break the law because they needed to support themselves in the United States in order to benefit from immigration laws requiring illegal entrants to remain in the country while their visa applications were pending. Read more...
U.S. 9th Circuit Court of Appeals, June 25, 2008
Morgan v. Mukasey, No. 05-70590, 05-73115
Petitions for review of decisions denying Egyptian petitioners and their children asylum and other relief are granted where, primarily: 1) substantial evidence did not support the incredibility determination in this case because the components of that determination were neither substantial nor went to the heart of petitioner's claims of past persecution; 2) petitioners were denied due process in the exclusion of their two children's testimony; and 3) psychological reports were not adequately considered. Read more...
U.S. 9th Circuit Court of Appeals, June 26, 2008
Juarez v. Mukasey, No. 04-75717
Petition for review of a decision finding Mexican citizen removable and denying his application for cancellation of removal is denied where: 1) a person can be of good moral character for ten years before his application for cancellation of removal under 8 U.S.C. section 1229b(b)(1)(B), yet have committed a crime involving moral turpitude more than ten years earlier, and thus be ineligible for cancellation of removal; 2) consequently there was no error in finding petitioner's petty theft convictions rendered him ineligible for cancellation of removal; and 3) there was no violation of his due process rights to a fair hearing. Read more...
U.S. 9th Circuit Court of Appeals, June 26, 2008
Ram v. Mukasey, No. 05-71190
Petition for review of a decision finding that petitioner was removable because he was convicted of an aggravated felony and a controlled substance violation is granted and the matter remanded where: 1) petitioner was denied due process and his statutory right to counsel; and 2) he was prejudiced by the denial. Read more...
U.S. 9th Circuit Court of Appeals, June 27, 2008
Mousa v. Mukasey, No. 04-75998
Christian Iraqi citizen's petition for review of an order denying her application for asylum and withholding of removal is granted where: 1) petitioner offered a credible explanation for her reluctance to talk about her rape and thus her testimony about her rape could not support an adverse credibility finding; 2) the remaining reasons supporting the adverse credibility determination failed; 3) the government did not meet its burden of establishing that changed country conditions were a basis for denying the application; and 4) a remand was necessary to determine whether, accepting her testimony as true, petitioner established past persecution and was eligible for relief. Read more...
June 17 - June 21, 2008
U.S. 1st Circuit Court of Appeals, June 17, 2008
Sombah v. Mukasey, No. 07-1481
Petition for review of a decision rejecting Indonesian citizen's applications for asylum, withholding of removal, and relief under the CAT is denied where: 1) there was substantial evidence in the record to sustain a conclusion that petitioner's experience in Indonesia did not rise to the level of persecution; 2) petitioner's failure to meet the requirements for establishing eligibility for asylum also prevented her from satisfying the more stringent standard for withholding of removal; and 3) petitioner's failure to make any arguments in her petition regarding relief under the CAT effectuated a waiver of those claims. Read more...
U.S. 1st Circuit Court of Appeals, June 18, 2008
Gonzalez-Mesias v. Mukasey, No. 07-2346
Petition for review of a BIA decision finding petitioner ineligible for a waiver of deportability under applicable rules is denied where: 1) the court was bound by the law of the circuit doctrine notwithstanding petitioner's arguments predicated primarily on a ruling by a different circuit; and 2) in any event, petitioner's arguments lacked merit. Read more...
U.S. 2nd Circuit Court of Appeals, June 18, 2008
Ali v. Mukasey, No. 06-1469
An order terminating petitioner's grant of deferred removal under the CAT is vacated and remanded where the petitioner was deprived of his right to a fair hearing by the IJ's apparent bias against him and reliance on unfounded assumptions about homosexuals. Read more...
U.S. 7th Circuit Court of Appeals, June 17, 2008
Oryakhil v. Mukasey, No. 07-1993, 07-3178
An order for removal issued after the Board of Immigration Appeals (BIA) dismissed petitioner's appeal based on an IJ's determination that, although petitioner will be a target if he returns to Afghanistan, he could easily avoid future harm by reasonably relocating within the country is vacated and remanded where: 1) it was not explained how it would be possible for petitioner to safely relocate within Afghanistan; 2) once the IJ established that petitioner was a credible witness, it was improper for her to credit certain portions of his testimony and discount others without further explanation; 3) there was no evidence that safe relocation through the Afghan military was possible; 4) there was insufficient evidence to support the conclusion that safe relocation was reasonable; and 5) petitioner's motion to reopen the case is moot. Read more...
U.S. 7th Circuit Court of Appeals, June 18, 2008
Ogayonne v. Mukasey, No. 07-1098
Petition for review of an order of removal and denial of relief under the Convention Against Torture (CAT), as well as an asylum petition, is denied where: 1) the court lacked jurisdiction to review the discretionary findings of the Immigration Judge and the Board of Immigration Appeals regarding the facts behind the untimely application for asylum; 2) the IJ did not err in introducing documents which stated commonly acknowledged facts that were amenable to official notice; 3) the documents introduced by petitioner were not sufficient to establish her withholding claim; 4) petitioner failed to demonstrate that she would more likely than not be tortured if removed to the proposed country; and 5) petitioner's due process rights were not violated. Read more...
U.S. 8th Circuit Court of Appeals, June 20, 2008
Kirong v. Mukasey, No. 07-1370
Petition for review of BIA's decision finding petitioner ineligible for adjustment of status and denying his request for a voluntary departure, is denied where: 1) petitioner had not shown his eligibility for adjustment of status, as he failed to meet the burden of proving clearly and beyond doubt that he made no false claims of US citizenship for a purpose or benefit under the Immigration Act; and 2) it was within the BIA's discretionary authority to deny petitioner's request for voluntary departure when he was ineligible for it. Read more...
June 09 - June 13, 2008
U.S. 1st Circuit Court of Appeals, June 11, 2008
Santosa v. Mukasey, No. 07-2016
Petition for review of an order denying petitioner's request for asylum, withholding of removal, and CAT based relief is denied where: 1) petitioner did not satisfy the objectivity requirement in providing "credible, direct, and specific evidence" to support a reasonable fear of individualized persecution; and 2) upon reviewing the record, the manner in which the case was handled in proceedings below could not be deemed to have violated due process. Read more...
U.S. 2nd Circuit Court of Appeals, June 10, 2008
Li v. BCIS, No. 07-0963
Petition for review of an order denying petitioner's application for asylum, withholding of removal, and protection under the CAT is denied where: 1) the IJ's adverse credibility determination, based on implausibility, was supported by substantial evidence; and 2) while explanations were available for features of petitioner's account that were found implausible, the overall implausibility of petitioner's account precluded any reasonable adjudicator from concluding that she testified credibly. Read more...
U.S. 2nd Circuit Court of Appeals, June 11, 2008
Bah v. Mukasey, No. 07-1715, 07-1994, 07-2120
Petitions for review of a BIA decision finding petitioners ineligible for withholding of removal based on claims of genital mutilations which they suffered previously in Guinea are granted in part in part where the BIA erred in its application of the withholding of removal regulatory framework to female genital mutilation claims. Under the governing regulations, the fact that an applicant has undergone female genital mutilation in the past cannot, in and of itself, be used to rebut the presumption that her life or freedom will be threatened in the future. Read more...
U.S. 2nd Circuit Court of Appeals, June 13, 2008
Li v. Mukasey, No. 04-3985
Petition for review of BIA decision denying petitioner's applications for asylum, withholding of removal, and relief under the CAT is granted where: 1) the decision was premised on an adverse credibility finding which failed to comport in certain respects with subsequently announced rulings by the court; and 2) it could not be confidently predicted that the BIA would have reached the same decision absent these errors. Read more...
U.S. 3rd Circuit Court of Appeals, June 09, 2008
Paredes v. Atty. Gen. of US, No. 07-1402
The pendency of post-conviction motions or other forms of collateral attack does not negate the finality of convictions for immigration removal purposes unless and until the convictions are overturned as a result of the collateral motions. Read more...
U.S. 3rd Circuit Court of Appeals, June 09, 2008
Pierre v. Atty. Gen. of US, No. 06-2496
In a case involving an ex-convict petitioner with a liquid-only diet due to a self-imposed injury to his esophagus, petition for review of a final order of removal rejecting petitioner's claim for CAT relief is denied where petitioner could not fulfill the specific intent requirement of the CAT as: 1) there was no evidence that Haitian authorities imprison ex-convicts upon their deportation to Haiti in order to cause them severe pain or suffering; and 2) the prevalent prison conditions, which may deny the necessary medical care and diet petitioner needs, are due to the country's economic and social ills. Read more...
U.S. 9th Circuit Court of Appeals, June 10, 2008
Penuliar v. Ashcroft, No. 03-71578
On remand from the Supreme Court, petition for review of a BIA decision finding petitioner ineligible for cancellation of removal and voluntary departure, and ordering him 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). (Amended opinion) Read more...
U.S. 9th Circuit Court of Appeals, June 12, 2008
US v. Becerril-Lopez, No. 05-50979
A conviction and sentence for being a deported alien found in the U.S. is affirmed primarily as his prior conviction for robbery under California Penal Code section 211 qualified as a "crime of violence" under a sentence enhancement provision for illegal re-entry crimes. Read more...
U.S. 9th Circuit Court of Appeals, June 12, 2008
US v. Juvenile Male, No. 07-50107
In an appeal arising after defendant was found to be a juvenile delinquent based on violations for transporting illegal aliens in the U.S. and bringing illegal aliens to the U.S. for "commercial advantage or private financial gain", the district court's decision is reversed in part and remanded where: 1) juveniles must be provided with the protections of section 5033 of the Juvenile Justice and Delinquency Prevention Act (JDA) "[w]henever [they are] taken into custody," regardless of the evidence available to officers at the time of arrest about the individual's age; 2) section 5033 was violated in every respect in this case; and 3) a remand was required for consideration of whether the violations were a cause of defendant's confession. Read more...
June 02 - June 06, 2008
U.S. Supreme Court, June 02, 2008
Richlin Sec. Serv. Co. v. Chertoff, No. 06-1717
A prevailing party that satisfies the Equal Access to Justice Act's (EAJA) other requirements may recover its paralegal fees from the government at prevailing market rates, and is not limited to their cost to the party's attorney. Read more...
U.S. 2nd Circuit Court of Appeals, June 06, 2008
Leng v. Mukasey, No. 06-2477
In order to establish eligibility for relief based exclusively on activities undertaken after his arrival in the United States, an alien must make some showing that authorities in his country of nationality are: 1) aware of his activities; or 2) likely to become aware of his activities. Read more...
U.S. 5th Circuit Court of Appeals, June 04, 2008
Perez-Pimentel v. Mukasey, No. 07-60039
Petition for review of an order denying waiver of inadmissibility and an application for adjustment status is denied where: 1) 8 C.F.R. section 212.7(d) was a permissible construction of 8 U.S.C. 1182(h) and not ultra vires; and 2) section 212.7(d) is not impermissibly retroactive because it does not completely foreclose relief. Read more...
U.S. 9th Circuit Court of Appeals, June 02, 2008
Ahir v. Mukasey, No. 04-73464
Petition for review of a decision finding that Indian citizen's application for asylum was frivolous is denied where, when an applicant abuses the asylum process, as petitioner had done in this case, a finding of frivolousness is appropriate so long as the IJ and BIA have followed the requisite procedural framework. Read more...
U.S. 9th Circuit Court of Appeals, June 02, 2008
Chen v. Mukasey, No. 04-72413
Chinese native's petition for review of a decision declaring her asylum application frivolous is granted and remanded to the BIA to determine in the first instance: 1) whether the language of 8 U.S.C. section 1158(d)(6) requires an IJ to make a final determination on the merits of the asylum application, or whether the language requires only that an IJ make a final determination that the application itself was frivolous; and 2) whether the withdrawal of an application for asylum after it is filed renders a subsequent frivolousness finding by an IJ moot. Read more...
U.S. 9th Circuit Court of Appeals, June 04, 2008
Lazaro v. Mukasey, No. 05-70165
Philippines citizen's petition for review of an order dismissing his appeal from an IJ's removal order is denied in part to the extent it claimed that his Notice to Appear (NTA) was defective and deprived the Immigration Court of jurisdiction to begin his removal proceedings. However, the petition is granted in part and remanded for further proceedings where the decision under review contained an erroneous description of how his NTA was amended in the Immigration Court. Read more...
California Appellate Districts, June 04, 2008
People v. Laborde, No. B199726
In a prosecution for drug-possession, denial of defendant's motion to suppress evidence is affirmed over claims that a search of his stateroom on a cruise ship by a customs officer, after the ship docked at the conclusion of a foreign cruise, was conducted without reasonable suspicion of criminal activity in violation of Fourth Amendment. Although the underlying search in the present case was defensible as a "routine border search", wherein reasonable suspicion was not required, there may be circumstances under which the search of a passenger cabin at the border might be deemed non-routine. Read more...
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