Deportation - Board of Immigration Appeals - BIA - removal - convention against torture - CAT - Immigration - detention - reopen - reconsider - INS - DHS



. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .	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. OCTOBER / NOVEMBER 2006 DECEMBER / JANUARY 2006/2007 FEBRUARY / MARCH 2007 APRIL / MAY 2007 JUNE / JULY 2007 AUGUST / SEPTEMBER 2007 OCTOBER / NOVEMBER 2007 DECEMBER 2007 / JANUARY 2008 FEBRUARY / MARCH 2008 APRIL / MAY 2008 JUNE / JULY 2008 CASES DECIDED IN FEDERAL COURT IN / AUGUST / SEPTEMBER 2008 September 29 - October 03, 2008 U.S. 1st Circuit Court of Appeals, September 30, 2008 Kadri v. Mukasey, No. 062599, 071754 In an immigration matter brought by Muslim Indonesian-native petitioner, petition for review of decision by Board of Immigration Appeals (BIA) denying asylum is granted where: 1) sexual orientation can serve as the foundation for a claim of persecution, as it is the basis for inclusion in a particular social group; 2) petitioner suffered economic persecution because he could not earn a living as a medical doctor; and 3) because court was unable to determine what standard the agency used in rejecting petitioner's economic persecution claim, case is remanded to the BIA to instruct the IJ to evaluate petitioner's case under standard set forth in In re T-Z. Read more... U.S. 1st Circuit Court of Appeals, September 30, 2008 Magasouba v. Mukasey, No. 072298 Petition for review of a decision of the Board of Immigration Appeals (BIA) which declared Guinean-petitioner removable as an aggravated felon and denied his application for withholding of removal and relief under the Convention Against Torture (CAT) is dismissed in part and denied in part where: 1) though two of petitioner's claims arguably satisfy the standard of review each of the claims in the end proved unavailing; 2) court agreed that petitioner's due process claim fell short; and 3) petitioner's remaining claims involved fact-based challenges which, because of petitioner's status as an aggravated felon, court lacked jurisdiction to review. Read more... U.S. 1st Circuit Court of Appeals, October 01, 2008 El-Labaki v. Mukasey, No. 071191 Petition for review of decision denying asylum, withholding of removal and protection under the Convention Against Torture (CAT) and granting voluntary departure to Greek Orthodox Christian petitioner from Lebanon is denied where: 1) court lacked jurisdiction to review the agency's determination regarding the timeliness of the asylum application or its application of the "extraordinary circumstances" exception, unless the petitioner identified a legal or constitutional defect in the decision; 2) in his asylum claim, having failed to establish past persecution, petitioner was not entitled to a presumption of future persecution; and 3) having suffered no past persecution, based on substantial evidence on record, the IJ and BIA correctly concluded that petitioner failed to show that he was likely to face persecution or torture upon return to his home country. Read more... U.S. 7th Circuit Court of Appeals, October 01, 2008 Johnson v. Mukasey, No. 08-1126 In an action to remove a permanent resident because of a drug conviction, petition for review denial of motions to reopen and reconsider after a ten-year delay in executing the removal order is denied where the discretionary denial of a motion to reconsider is not reviewable. Read more... U.S. 10th Circuit Court of Appeals, October 01, 2008 US v. Phillips, No. 07-3135, 07-3143 Husband and wife's convictions for multiple counts of willingly making a false statement to a federal agency and immigration fraud are affirmed in part and reversed in part where: 1) defendants' conduct did not fall within the plain language of the immigration fraud statute, 18 U.S.C. section 1546(a); but 2) claims of insufficient evidence and that the court improperly admitted several significant documents are rejected. Read more... California Appellate Districts, September 30, 2008 M.V. v. Superior Court of California, No. G040676 In a family law matter brought by mother seeking reunification with her infant after her incarceration and deportation for engaging in consensual sexual intercourse with a 15-year old boy, petition for a writ of mandate directing the trial court to vacate its order and to issue a new and different order continuing reunification services to a 12-month review is affirmed where the court erred in terminating reunification services and setting a .26 hearing by applying the 12-month review standard pursuant to section 366.21, subdivisions (f) and (g), instead of the six-month review standard pursuant to section 366.21, subdivision (e). Read more... September 22 - September 26, 2008 U.S. 1st Circuit Court of Appeals, September 22, 2008 Nou v. Mukasey , No. 071546 Petition to review decision denying application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) is denied where: 1) substantial evidence supports the Board of Immigration Appeals' (BIA) conclusion that petitioner was not targeted on account of one of the protected statutory grounds; 2) petitioner did not establish a well-founded fear of future persecution, and 3) the BIA did not err in rejecting petitioner's asylum claim and denying his petition for judicial review. Read more... U.S. 1st Circuit Court of Appeals, September 25, 2008 Singh v. Mukasey, No. 072187 Petition for review of decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) is denied where: 1) petitioner failed to prove a sufficient nexus between his persecution and one of the statutory grounds for asylum; 2) no evidence suggested that petitioner was an intended target of the 1995 shooting on account of his father's political affiliations; 3) the evidence supported the BIA conclusion that the militants were motivated primarily by economic factors; 4) because petitioner failed to establish his eligibility for asylum, his claims for withholding of removal and protection under the CAT necessarily failed to meet the higher threshold. Read more... U.S. 2nd Circuit Court of Appeals, September 24, 2008 Rajah v. Mukasey, No. 063493, 063811, 064102, 06-5390 In an immigration matter in which four petitioners responded to Special Call-In Registration Program following terrorist attacks of September 11, 2001, petition to review deportation orders issued by Board of Immigration Appeals (BAIA) is denied over claims of error that: 1) the Program lacked statutory authorization; 2) the Program was invalid as a matter of administrative law; 3) the Program violated equal protection; 4) evidence obtained during the Program should have been suppressed under the Fourth and Fifth Amendments; and 5) regulatory violations in the course of the Program required the vacating of their deportation orders. Petition is granted as to the individual claim of petitioner Rajah, which is discussed in a separate opinion also issued on this date. Read more... U.S. 2nd Circuit Court of Appeals, September 24, 2008 Rajah v. Mukasey, No. 063493 In an immigration matter in which petitioner sought to review denial by Board of Immigration Appeals (BIA) to terminate immigration proceedings, to suppress evidence gathered through the National Security Entry-Exit Registration Program, and to grant a continuance on behalf of petitioner, petition for review is granted and BIA's order is vacated where: 1) court could not adequately consider whether the agency abused its discretion in denying petitioner's request for a continuance in the absence of standards that reflect various situations of those seeking such continuances; and thus 2) case is remanded to the BIA for an explication of the standards applicable in such cases. Read more... U.S. 2nd Circuit Court of Appeals, September 25, 2008 Gertsenshteyn v. Mukasey, No. 071183 Petition for review of decision ordering Ukranian citizen-petitioner to be removed for conviction of an aggravated felony is granted and the Board of Immigration Appeals (BIA) decision is vacated and remanded where: 1) the BIA decision departed, with insufficient reason, from the legal framework that the court has long used to decide whether an alien charged with removability under 8 U.S.C. section 1227(a)(2)(A)(iii) has been convicted of an aggravated felony; and 2) it was unclear what result the BIA would reach under the proper framework. Read more... U.S. 8th Circuit Court of Appeals, September 26, 2008 US v. Reyes-Solano, No. 07-3334 A twenty-two month sentence for illegally reentry to the U.S. following deportation is vacated and remanded where the district court erred in applying Shepard v. US, 544 U.S. 13 (2005), to defendant's prior Mississippi convictions for domestic assault and assault of a police officer, an error that undermined a U.S.S.G. section 2L1.2(b) 1)(E) four-level increase. Read more... U.S. 9th Circuit Court of Appeals, September 24, 2008 Ngaeth v. Mukasey, No. 04-71732 In an immigration case, the Court denies petition for review of denial of a motion to reopen the case where a conviction for entering a locked vehicle with the intent to commit theft under California Penal Code section 459 constitutes an attempted theft offense allowing removal of a lawful permanent resident as an aggravated felon under 8 U.S.C. section 1101(a)(43)(U). Read more... U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. Gomez-Leon, No. 05-50138 In a case challenging an enhanced sentence imposed for illegal reentry after deportation, the sentence is reversed and remanded where: 1) the district court erred by enhancing defendant's sentence under U.S. Sentencing Guidelines (USSG) section 2L1.2(b)(1)(A)(I) because the government failed to show that defendant’s sentence for his prior drug trafficking offense exceeded thirteen months; and 2) defendant's conviction under California Penal Code section 192(c)(3) for vehicular manslaughter while intoxicated without gross negligence was not a "crime of violence" allowing a sixteen point enhancement under USSG section 2L1.2(b)(1)(A)(ii). Read more... September 15 - September 19, 2008 U.S. 1st Circuit Court of Appeals, September 19, 2008 Nou v. Mukasey, No. 07-1546 Denial of asylum is affirmed due to petitioner's failure to show past persecution based on membership in a protected class and failure to show likelihood of persecution on return to Cambodia, as: 1) evidence showed that petitioner's past persecution was due to enforcing Cambodian laws against fishing with hand grenades, not for membership in the Sam Rainsy political party; and 2) future persecution appeared unlikely due to current political conditions in Cambodia. Read more... U.S. 5th Circuit Court of Appeals, September 18, 2008 Ramos-Bonilla v. Mukasey, No. 07-60312 Appeal of BIA denial of petitioner's motions to reopen his removal case is dismissed for lack of jurisdiction where petitioner's application for relief from removal under the Nicaraguan Adjustment and Central American Relief Act had been untimely filed, and petitioner had therefore failed to exhaust his administrative remedies. Read more... U.S. 7th Circuit Court of Appeals, September 15, 2008 Fernandez v. Mukasey, No. 06-3476, 06-3987, 06-3994 Petitions by three aliens for review of their orders of removal are denied where each of the petitioners' most recent state court convictions for misdemeanor drug possession constituted an aggravated felony under the Immigration and Nationality Act, because each occurred after a previous drug conviction became final. Read more... U.S. 7th Circuit Court of Appeals, September 19, 2008 Musollari v. Mukasey, No. 06-4107 Denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is affirmed where determinations that applicant's testimony was not credible were supported by substantial evidence and the record did not compel a contrary conclusion. Read more... U.S. 8th Circuit Court of Appeals, September 18, 2008 Ngengwe, No. 07-3702 Petitions for review of a denial of Cameroonian native's application for asylum and related relief is granted where: 1) the BIA erred in rejecting one of petitioner's asserted social groups, that of Cameroonian widows, as female widows are viewed by society as members of a particular social group and discrimination against women who survive their husbands is pervasive in Cameroon; 2) no substantial evidence supported a finding that she failed to establish that she suffered at the hands of people that the Cameroonian government was unable or unwilling to control; 3) the BIA erred in finding that her mistreatment by her relatives did not rise to the level of past persecution as her in-law's non-physical actions were not properly considered; and 4) a remand was required for purposes of determining whether the persecution was "on account of" her membership in the group, and whether she established a well-founded fear of future persecution. Read more... U.S. 9th Circuit Court of Appeals, September 15, 2008 Bromfield v. Mukasey, No. 05-75844 In an immigration case interpreting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), petition to review denial of withholding of removal is granted and denial of a CAT claim is remanded where: 1) Jamaica's criminalization of homosexuality with penalty of incarceration compels a conclusion of government acquiescence in the torture of gay men, satisfying CAT, 8 C.F.R. section 1208.18(a)(1); 2) evidence in the record compelled a conclusion that there exists in Jamaica a pattern of persecution of gay men; and 3) the Immigration Judge erroneously relied on irrelevant evidence of a continued relationship with petitioner's Jamaican father and trips back to Jamaica prior to coming out as homosexual to find no likelihood of persecution on return. Read more... U.S. 9th Circuit Court of Appeals, September 15, 2008 Cosa v. Mukasey, No. 04-75643 In an asylum case alleging persecution in Romania on the basis of membership in the Millenist faith, petition is granted for review of denial of asylum and withholding of removal, and an adverse finding of credibility is vacated, where: 1) the Immigration Judge's adverse credibility finding was not based on substantial evidence; 2) the adverse credibility finding was based on speculation into and skepticism of Millenism. Read more... U.S. 9th Circuit Court of Appeals, September 16, 2008 Karapetyan v. Mukasey, No. 05-75865, 05-77141 In an asylum case alleging violation of the Convention Against Torture (CAT), denial of asylum, denial of petition to review denial of withholding of removal, and denial of CAT relief are reversed and remanded where: 1) the Immigration Judge erred in requiring corroborating evidence of petitioner's testimony after deeming his testimony credible; 2) substantial evidence supported petitioner's eligibility for asylum; 3) the district court denied to review the denial of withholding of removal and denied CAT relief on the theory that petitioner had not met more lenient asylum standard; and 4) the Immigration Judge abused his discretion in denying petitioner a continuance. Read more... U.S. 9th Circuit Court of Appeals, September 17, 2008 Chicanos Por La Causa, Inc. v. Napolitano, No. 07-17272, 07-17274, 08-15357 In a facial challenge to the legality of the Legal Arizona Workers Act (LAWA), judgment in favor of the state is affirmed where: 1) LAWA is not expressly preempted by the federal Immigration Reform and Control Act of 1986 (IRCA) which allows state regulation through licensing law; 2) LAWA's requirement that employers use federally voluntary E-Verify technology is not impliedly preempted by IRCA; and 3) LAWA's provisions regarding employers' right to dispute findings of employee authorization to work do not facially violate due process. Read more... U.S. 9th Circuit Court of Appeals, September 17, 2008 Mota v. Mukasey, No. 07-71880 In an immigration case, petition for review of denial of a request to cancel removal is granted and the case is ordered to mediation where petitioner's conviction for inflicting injury on a child did not bar her under from eligibility for cancellation of removal under section 237(a)(2)(E) of the Immigration Nationality Act because the conviction occurred before September 30, 1996. Read more... U.S. 9th Circuit Court of Appeals, September 18, 2008 Mukasey v. Diouf, No. 07-55337, 08-55504 In an immigration case, grant of an injunction requiring a hearing to determine whether petitioner's prolonged detention was justified is reversed, and grant of habeas relief is vacated where: 1) petitioner's detention was authorized under section 1231, rather than section 1226 of the Immigration and Nationality Act (INA); and 2) petitioner failed to demonstrate that there was no significant likelihood of removal in the reasonably foreseeable future. Read more... U.S. 9th Circuit Court of Appeals, September 19, 2008 Malkandi v. Mukasey, No. 06-73491 In an asylum case regarding an alleged associate of al Qaeda operative Salah Saeed Mohammed bin Yousaf (a.k.a. Khallad), petition for review from a denial of asylum, denial of withholding of removal and Convention Against Torture (CAT) protection is denied where: 1) statutory exclusion from withholding of removal and CAT relief due to national security threat requires reasonable grounds to believe the petitioner actually poses a threat to national security; 2) petitioner presented no substantive evidence to counter substantial evidence of his having arranged a medical appointment in the U.S. for Khallad; and 3) the IJ's adverse credibility finding was supported by evidence of material misrepresentations made during petitioner's naturalization proceedings and obfuscations regarding evidenced contacts with Khallad. Read more... September 08 - September 12, 2008 U.S. 1st Circuit Court of Appeals, September 10, 2008 Sok v. Mukasey, No. 072233 Petition to review decision denying application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) is denied over claims of error that: 1) denial of Cambodian-citizen petitioner's claims was not supported by substantial evidence; and 2) translation problems in the hearing before the Immigration Judge violated her rights to due process. Read more... U.S. 1st Circuit Court of Appeals, September 10, 2008 Khan v. Mukasey, No. 081135 Petition to review decision denying application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied where: 1) Pakistani-citizen petitioner failed to present evidence to satisfy the standard of asylum; 2) therefore, he cannot meet the more rigorous standard for withholding of removal; and 3) petitioner's CAT claim is rejected because it depended on the same uncorroborated testimony as his asylum claim. Read more... U.S. 1st Circuit Court of Appeals, September 12, 2008 Pina v. Mukasey, No. 072311 In an immigration matter in which petitioner was charged by Department of Homeland Security with removability as an alien convicted of an aggravated felony after admission, removal order is vacated where: 1) informal agreement between petitioner's parents to share legal custody was entitled to effect; and 2) Child Citizenship Act of 2000 requirement that, at the time the statute went into effect, petitioner was "in the legal...custody of the citizen parent", is satisfied. Read more... U.S. 2nd Circuit Court of Appeals, September 12, 2008 Jin v. Mukasey, No. 055485 Petition for review of decision denying petitioners' motions to reopen and to file successive asylum applications is denied where an alien who is subject to a final removal order and who wishes to file a successive asylum application must do so in conjunction with a motion to reopen pursuant to 8 C.F.R. section 1003.2(c)(3)(ii) and thus may not do so based solely on changed personal circumstances. Read more... U.S. 3rd Circuit Court of Appeals, September 09, 2008 US v. Silveus, No. 07-3544 In an appeal from convictions for aiding and abetting the transportation of illegal aliens and harboring and shielding an illegal alien, denials of a motion to suppress evidence, a motion for acquittal for insufficient evidence, and a motion for a new trial are affirmed in part and reversed in part where: 1) reasonable suspicion supported the initial police stop of defendants which led to the discovery of evidence used against defendant; 2) there was sufficient evidence to support the conviction for transporting, but not for harboring; 3) there was no abuse of discretion in the denial of the motion for a new trial; and 4) there was no abuse of discretion in the limitation of defendant's cross-examination of a government witness. Read more... U.S. 3rd Circuit Court of Appeals, September 11, 2008 Bin v. Attorney Gen. US, No. 06-2883 In an immigration case involving a citizen of China who claimed he was persecuted as a practitioner of Falun Gong, petition for review of a BIA order of removal is denied where: 1) petitioner failed to expressly raise the issue of the IJ's adverse credibility determination before the BIA, thus failing to exhaust his administrative remedies on that issue; 2) petitioner could not claim to have impliedly raised the credibility issue before the BIA on the basis that, with no corroborating evidence having been presented to the IJ, the IJ's credibility determination was necessarily the only appealable issue; 3) the BIA did consider the credibility determination sua sponte, which exhausted the issue and created a basis for appellate jurisdiction; and 4) substantial evidence supported the IJ's adverse credibility determination. Read more... U.S. 5th Circuit Court of Appeals, September 08, 2008 US v. Moreno-Florean, No. 07-50833 Sentence for attempted illegal reentry into the U.S. is vacated and remanded where: the elements of the crime in a prior state kidnapping conviction did not necessarily include the use of physical force, and so did not require a crime of violence enhancement to the base offense level. Read more... U.S. 7th Circuit Court of Appeals, September 08, 2008 Sharashidze v. Mukasey, No. 07-2611 Petition for review of a BIA order of removal on the basis of conviction on an aggravated felony is dismissed for lack of jurisdiction where all of petitioner's arguments sought review of factual questions, and the court had jurisdiction to review only for legal or constitutional error. Read more... U.S. 7th Circuit Court of Appeals, September 08, 2008 Ali v. Mukasey, No. 07-2462 Petition for review of a BIA finding that petitioner was deportable is denied where substantial evidence supported the conclusion that petitioner violated the conditions of his H1-B visa by working at a second job for which he lacked work authorization. Read more... U.S. 7th Circuit Court of Appeals, September 09, 2008 Osagiede v. US, No. 07-1131 After a foreign national's conviction for heroin distribution, petition for habeas relief is granted where: 1) foreign nationals may bring ineffective assistance of counsel claims based on violations of Article 36 of the Vienna Convention; 2) the government violated Article 36 by failing to notify petitioner of his right to consular assistance; 3) counsel's failure to raise the violation was deficient performance; and 4) this failure prejudiced petitioner. Read more... U.S. 7th Circuit Court of Appeals, September 10, 2008 Jezierski v. Mukasey, No. 07-3569 Petition for review of BIA denial of petitioner's motion to reopen her removal proceeding on the basis of ineffective assistance of counsel is dismissed for lack of jurisdiction where: 1) the allegation of ineffective assistance was not an allegation of violation of a constitutional right; 2) appellate review of the petition was therefore limited to review of questions of law; and 3) the BIA's determination that petitioner was not prejudiced by her lawyer's failures was a factual one. Read more... U.S. 7th Circuit Court of Appeals, September 11, 2008 Esquivel v. Mukasey, No. 07-2260 Petition for review of a finding that petitioner was ineligible for a waiver of inadmissibility is denied where: the waiver in prior proceedings of the removal effect of petitioner's conviction for attempted murder did not require it to be waived in subsequent proceedings. Read more... U.S. 9th Circuit Court of Appeals, September 08, 2008 Santos-Limus v. Mukasey, No. 07-70604 Petition for review of dismissal of appeal of an order denying asylum and protection under the Convention Against Torture is denied where: 1) the ongoing safety of a family member in the same town prevents fear of future persecution based on family membership from being well-founded; 2) "young [men] in El Salvador resisting gang violence unstoppable by the police" is too broad and lacks the social visibility required to constitute a particular social group; and 3) petitioner did not present evidence showing it more likely than not that he would be tortured upon return to El Salvador. Read more... U.S. 9th Circuit Court of Appeals, September 10, 2008 US v. Lopez-Martinez, No. 07-10174 In an immigrant smuggling case, convictions for conspiracy to bring aliens into the US, for aiding and abetting bringing aliens into the U.S. resulting in death, and for aiding and abetting bringing aliens into the U.S. for profit are affirmed where: 1) the trial court judge's suggestion of a line of questioning to the prosecutor was not improper given a lack of evidence of bias and no effect on the jury; 2) the convictions were based on sufficient evidence; 3) aiding and abetting bringing aliens to the US for profit requires that the principles, not the necessarily defendant, acted for profit; and 4) an envelope containing definitions of "reasonable doubt" and "conspiracy" brought into the jury room by an alternate juror but unseen by any jurors, did not require new trial. Read more... U.S. 9th Circuit Court of Appeals, September 10, 2008 Alvarez Figueroa v. Mukasey, No. 05-75157 In an immigration case, petition to review denial of application to cancel removal is granted and the case remanded to the Board of Immigration Appeals (BIA) where: 1) petitioners exhausted their remedies before the BIA; 2) petitioners challenged the legal standard used below, not discretionary application of facts onto the legal standard; 3) the Immigration Judge erroneously required a showing that removal would result in unconscionable harm to the petitioners' citizen children; and 4) the Immigration Judge erred by looking at petitioners' children's current conditions, rather than their future condition with parents removed. Read more... U.S. 9th Circuit Court of Appeals, September 11, 2008 Hassan v. Chertoff, No. 06-17252 In an immigration case seeking mandamus relief and challenging the government's denial of an application to adjust residency status and its cancellation of permission to reenter the U.S., dismissal for lack of jurisdiction is affirmed where: 1) section 1252(a)(2)(B) of the REAL ID Act of 2005 expressly precludes all judicial review of the denial of an adjustment of status application or of any discretionary decision or action taken by the Attorney General or Secretary of Homeland Security; 2) the government's denial of plaintiff’s status adjustment application and its cancellation of permission to reenter the U.S. were in part discretionary; and 3) plaintiff sued in district court and did not raise a constitutional claim upon petition for review by the correct court of appeals. Read more... September 01 - September 05, 2008 U.S. 2nd Circuit Court of Appeals, September 03, 2008 Sharkey v. Quarantillo, No. 061397 In claim alleging that the U.S. Citizenship and Immigration Services had granted lawful permanent resident status to the plaintiff then rescinded that status without following the mandatory regulatory rescission procedures, decision in favor of defendant-state immigration services is reversed and remanded where: 1) the district court erred by dismissing the complaint for lack of subject matter jurisdiction; and 2) the complaint states a claim upon which relief can be granted. Read more... U.S. 4th Circuit Court of Appeals, September 02, 2008 Ogundipe v. Mukasey, No. 071075, 071592 In claim by Nigerian citizen-petitioner contending his eligibility to adjust his status without leaving the U.S. because he is a "grandfathered alien" who was the beneficiary of a special immigrant visa petition filed before April 30, 2001, petition to review decision ordering petitioner's voluntary departure and dismissing his appeal is denied where: 1) the visa petition by which petitioner relied was not "approvable when filed; and 2) court finds no error in Board of Immigration Appeals decision. Read more... U.S. 6th Circuit Court of Appeals, September 04, 2008 US v. Kalymon, No. 071965 In the revocation of defendant's American citizenship on the basis that he persecuted Jews during World War II, advocated or acquiesced in conduct contrary to civilization and human decency, and misrepresented a material fact on his visa application, revocation of citizenship is affirmed over claims of error including mistaken identity and various evidentiary errors by the district court. Read more... U.S. 6th Circuit Court of Appeals, September 04, 2008 Koulibaly v. Mukasey, No. 073743 Petition for review of order of removal to Guinea is granted where Board of Immigration Appeals' decision was based upon: 1) minor inconsistencies regarding petitioner's location on July 14, 2003, and the dates of her hospitalization; 2) a mistaken finding that petitioner failed to mention being beaten in her initial asylum application; 3) petitioner's failure to mention her hospitalization in her initial asylum application; 4) a chimerical inconsistency regarding the events leading up to petitioner's husband's arrest; and 5) petitioner's vague description of her escape from the hospital. Read more... U.S. 7th Circuit Court of Appeals, September 02, 2008 Alvear-Velez v. Mukasey, No. 07-2133 Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where: 1) although a prior deportation proceeding based on the same felony conviction had already been concluded, res judicata did not apply to preclude the use of the conviction in a new removal proceeding because intervening legislation had retroactively expanded the definition of an aggravated felony to include petitioner's crime; and 2) transitional rules set forth in the Immigration Reform and Immigrant Responsibility Act applied only to procedural requirements for removing aliens and not to the substantive changes to the definition of aggravated felony. Read more... U.S. 7th Circuit Court of Appeals, September 02, 2008 Vaca-Tellez v. Mukasey, No. 07-2397 Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where burglary to an automobile was an aggravated felony for the purposes of a removal proceeding. Read more... U.S. 7th Circuit Court of Appeals, September 02, 2008 Ndonyi v. Mukasey, No. 07-3196 In an immigration case in which petitioner claimed persecution in Cameroon on the basis of her political and religious beliefs, petition for review of BIA order is granted, order of removal vacated, and cause remanded where: 1) the evidence on the record did not support agency determinations that petitioner did not suffer past persecution; and 2) the government did not meet its subsequent burden to establish that petitioner lacked a well-founded fear of future persecution. Read more... U.S. 7th Circuit Court of Appeals, September 04, 2008 Bakarian v. Mukasey, No. 06-3228 In an immigration case in which the government sought removal of petitioner as having been convicted of crimes of moral turpitude, petition for review of denial of cancellation of removal and waiver of inadmissibility is denied where: 1) petitioner did not meet the continuous-residence standard for eligibility of a cancellation of removal; and 2) petitioner's failure to raise the application of the stop-time rule before the BIA was not excused by futility, and the court therefore lacked jurisdiction to hear the issue on appeal. Read more... U.S. 9th Circuit Court of Appeals, September 03, 2008 Alanis-Alvarado v. Mukasey, No. 06-72369 Petition for review of deportation order is denied where petitioner violated a protection order issued under California Family Code Section 6320, which by definition fits categorically within the protection orders whose violation qualifies as a deportable offense under the Immigration and Nationality Act. Read more... U.S. 9th Circuit Court of Appeals, September 04, 2008 Rodriguez v. US, No. 07-55241 In an action for attorney's fees interpreting the Equal Access to Justice Act, an award of attorney's fees is affirmed in part and reversed and remanded in part for recalculation where some, but not all, of the government's defenses were in bad faith. Read more... U.S. 9th Circuit Court of Appeals, September 05, 2008 US v. Medina-Beltran, No. 06-10181 In an immigration case, an enhanced sentence is affirmed where: 1) the government's decision not to move for reduced sentencing was not arbitrary; and 2) separation of powers between the judicial and executive branches is not violated by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, which requires the government to make a motion in order for a defendant to receive a reduced sentence under the U.S. Sentencing Guidelines. Read more... U.S. 10th Circuit Court of Appeals, September 03, 2008 Ba v. Mukasey, No. 07-9575 In an immigration case in which petitioner alleged persecution in his home country of Mauritania, petition for review of a BIA order upholding an IJ's denials of asylum, restriction on removal, and protection under the Convention Against torture (CAT) is denied where: 1) evidence of changed conditions in Mauritania overcame the presumption of future persecution raised by petitioner's prior adverse experiences; and 2) petitioner presented no evidence that he would face torture if returned to Mauritania. Read more... August 25 - August 29, 2008 U.S. 1st Circuit Court of Appeals, August 25, 2008 Bonilla v. Mukasey, No. 07-1813 Petition to review decision denying petitioners' application for asylum, withholding of removal and relief under the Convention Against Torture (CAT) is granted where the agency's determination that Colombian-national petitioners had an offer of permanent residence in Venezuela lacks support. Read more... U.S. 1st Circuit Court of Appeals, August 25, 2008 Abdelmalek v. Mukasey, No. 07-2819 Petition to review decision denying petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied where: 1) petitioner failed to establish that he is entitled to asylum; and 2) there is nothing in the record that would compel the conclusion that it is more likely than not that petitioner would be tortured if he were to return to Egypt. Read more... U.S. 1st Circuit Court of Appeals, August 27, 2008 Datau v. Mukasey, No. 07-1996 In an action brought by a native and citizen of Indonesia claiming she experienced persecution based on her Christian beliefs and the incorrect perception that she is ethnically Chinese, petition to review decision denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied over claims of error that: 1) Board of Immigration Appeals' decision lacks support because it is based, in part, on the IJ's unclear credibility judgments; 2) petitioner presented substantial evidence of both past persecution and the likelihood that she would be subject to future persecution if forced to return to Indonesia; and 3) petitioner established grounds for withholding removal and protection under CAT. Read more... U.S. 2nd Circuit Court of Appeals, August 26, 2008 Pinto-Montoya v. Mukasey, No. 05-6541 Petition to review decision affirming removal to Guatemala is denied where the petitioners' contact with plainclothes immigration officials did not constitute a seizure within the meaning of the Fourth Amendment and accordingly, their statements were properly admitted. Read more... U.S. 7th Circuit Court of Appeals, August 25, 2008 Borrego v. Mukasey, No. 07-2183 In an immigration case in which petitioner had previously been barred from entering the US for her attempt to enter by claiming that she was a US citizen, petition for review of a BIA removal order is denied where, under the plain text of the Immigration and Nationality Act, a waiver of inadmissibility may not be granted retroactively in removal proceedings. Read more... U.S. 7th Circuit Court of Appeals, August 27, 2008 Bolante v. Mukasey, No. 07-2550 In an immigration case involving a former official of the Philippine government, petition for relief from a BIA judgment denying asylum and ordering removal is denied where petitioner did not demonstrate that he faced an objective likelihood of future persecution upon his return. Read more... U.S. 7th Circuit Court of Appeals, August 28, 2008 Kholyavskiy v. Mukasey, No. 07-1020 In an immigration case, petition for review of a BIA order denying asylum, withholding of removal, and relief under the Convention Against Torture is granted in part and denied in part where: 1) petitioner enjoyed a fair hearing before the IJ; 2) remand was necessary for evaluation of evidence of past persecution with reference to the cumulative significance of a series of events alleged by petitioner, and with reference to petitioner's age at the time; 3) denial of asylum based on future persecution was supported by substantial evidence; and 4) a claim for humanitarian asylum should be reconsidered in light of the regulatory standard. Read more... U.S. 7th Circuit Court of Appeals, August 29, 2008 Aioub v. Mukasey, No. 07-3666 In an immigration case involving an allegedly fraudulent marriage, petition for review of BIA order of removal is denied where substantial evidence supported the IJ's finding that petitioner had entered a sham marriage to gain permanent residency. Read more... U.S. 8th Circuit Court of Appeals, August 28, 2008 Godinez-Arroyo v. Mukasey, No. 064039 Petition to review decision ordering removal of petitioner for conviction of second-degree assault is denied where: 1) aliens convicted of "a crime involving moral turpitude" are subject to removal; 2) petitioner's conviction for "recklessly caus[ing] serious physical injury to another person" is a conviction of a crime involving moral turpitude; and 3) the Board of Immigration Appeals conclusion was persuasive. Read more... U.S. 8th Circuit Court of Appeals, August 28, 2008 Castro-Pu v. Mukasey, No. 072126 Petition to review decision denying asylum, withholding of removal, and relief against Convention Against Torture (CAT) is denied where: 1) petitioner was not harmed during or after the incidents in 1988 and 1991; 2) petitioner's immediate family has remained in Guatemala unharmed; 3) petitioner failed to rebut the substantial evidence that political and human rights conditions dramatically improved after he left the country; and 4) petitioner failed to show "a particularized risk of persecution on account of a protected ground" that would establish either a well-founded fear of persecution making him eligible for asylum or the withholding of removal, or a likelihood of torture warranting relief under the CAT. Read more... U.S. 8th Circuit Court of Appeals, August 29, 2008 Badasa v. Mukasey, No. 072276 Dismissal of petition for asylum and relief under the Convention Against Torture is remanded where: 1) court does not know whether the Immigration Judge (IJ) would have reached the same conclusion without use of Wikipedia or whether Board of Immigrant Appeals (BIA) believes that the IJ's consideration of Wikipedia was harmless error; and 2) the BIA failed to adequately explain its conclusion that petitioner did not establish her identity. Read more... U.S. 9th Circuit Court of Appeals, August 25, 2008 Dzyuba v. Mukasey, No. 06-74372 In immigration proceedings, an order removing Georgian native to the Ukraine is vacated and the matter remanded where: 1) substantial evidence did not support the BIA's finding that petitioner entered the U.S. with a Ukranian passport as he entered the U.S. with a passport issued by the Soviet Union and stamped with the date of his entry to the U.S.; and 2) a remand was required for the BIA to determine the meaning of the term "country" in the removal context, and to determine in the first instance whether pre-independent Ukraine qualifies as a "country". Read more... U.S. 9th Circuit Court of Appeals, August 26, 2008 Zhao v. Mukasey, No. 07-75041 Petition for review of a denial of married Chinese Falun Gong practitioners' asylum claims is granted where petitioners are eligible for asylum because the evidence, especially when viewed in light of the recent decisions in Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006), and Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004), compels a conclusion that they have established a well-founded fear of future persecution. Read more... U.S. 11th Circuit Court of Appeals, August 27, 2008 Sicar v. Chertoff, No. 0714072 In a class action claim for declaratory and injunctive relief, alleging the government has systematically misclassified plaintiffs' parole status during the course of status adjustment determinations under the Haitian Refugees Immigration Fairness Act of 1998, dismissal of class action complaint is affirmed where the court lacks subject matter jurisdiction. Read more... August 18 - August 22, 2008 U.S. 1st Circuit Court of Appeals, August 19, 2008 Limani v. Mukasey, No. 07-2472 Petition for review of a denial of an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied where: 1) petitioners failed to establish past persecution or clear probability of future persecution in Algeria; 2) substantial evidence supported a conclusion that the family's fear of future persecution was speculative; and 3) petitioners did not establish either that they were tortured in the past or that it was more likely than not that their family would be tortured if removed to Algeria. Read more... U.S. 1st Circuit Court of Appeals, August 21, 2008 Gonzalez-Rucci v. US Immigration and Naturalization Serv., No. 07-1198 In claims of malicious prosecution and abuse of process brought under Federal Tort Claims Act (FTCA) by plaintiff-immigration attorney against INS, dismissal of plaintiff-attorney's claims is affirmed where: 1) Puerto Rico law requires both malice and action without probable cause to sustain a malicious prosecution claim; 2) the court's factual findings plainly reveal that neither was present in these circumstances; and 3) plaintiff did not meet her burden of showing any procedural component of her criminal prosecution was influenced by a bad motive, or conducted with the purpose of attaining an improper collateral objective. Read more... U.S. 2nd Circuit Court of Appeals, August 21, 2008 Miller v. Mukasey, No. 06-1680 Petition for review of decision reinstating removal to Jamaica is denied where when an alien chooses not to avail himself of available administrative procedures to challenge the reinstatement of a prior order of removal, he cannot claim that those procedures failed to provide him adequate process. Read more... U.S. 3rd Circuit Court of Appeals, August 20, 2008 Wong v. Atty. Gen. US , No. 06-3539 Petition for review of a final order of removal is denied where the evidence in the record did not compel a finding that petitioner had a well-founded fear of persecution based on any widespread or systemic violence against ethnic Chinese or Christians in Indonesia. Read more... U.S. 3rd Circuit Court of Appeals, August 22, 2008 Rranci v. Atty. Gen. US, No. 06-3327 Petition for review of a BIA order dismissing an appeal of an order of removal is granted and the matter remanded where: 1) the state-created danger exception did not apply to create an obligation upon the government to forgo removal of petitioner to Albania, even after the government sought petitioner's cooperation in prosecuting an Albanian national, who then made threats against petitioner should he return to Albania; but 2) petitioner satisfied the procedural requirements for bringing an ineffective assistance of counsel claim, and remand was necessary to consider the substantive aspects of error and prejudice; and 3) on remand, the BIA is also to determine how current United States law reflects compliance with the specific provisions of the United Nations Convention Against Transnational Organized Crime relevant to petitioner's claim. Read more... U.S. 6th Circuit Court of Appeals, August 20, 2008 US v. Djoumessi, No. 07-1740 Convictions for holding someone in involuntary servitude and for harboring an alien for private financial gain are affirmed over claims that the charges violated defendant's rights under the Double Jeopardy Clause and that the government failed to support the involuntary servitude conviction (and a related conspiracy conviction) with sufficient evidence. Read more... U.S. 7th Circuit Court of Appeals, August 22, 2008 US v. Burgos, No. 06-4091 Conviction for illegal reentry following deportation is affirmed where: 1) an alien's warrant of deportation and certificate of nonexistence of record are nontestimonial business records not subject to the requirements of the Confrontation Clause, and may be used at trial by the government to prove its case; and 2) there was no error in the denial of defendant's motion for new counsel on the morning of trial. Read more... U.S. 7th Circuit Court of Appeals, August 22, 2008 Iglesias v. Mukasey, No. 07-2910 Petition for review of BIA's denial of motion to reopen the case is denied where: 1) petitioner's allegation that BIA had ignored evidence put forth by petitioner regarding his marriage to an American citizen was an allegation of legal error subject to appellate review; but 2) petitioner did not provide clear and convincing evidence that his marriage was bona fide. Read more... U.S. 9th Circuit Court of Appeals, August 18, 2008 Doissaint v. Mukasey, No. 06-73218, 06-75390 When the Board of Immigration Appeals (BIA) commits legal error in a petitioner's direct appeal, the BIA cannot cure that error in a denial of the petitioner's motion to reopen. Read more... U.S. 9th Circuit Court of Appeals, August 19, 2008 Cui v. Mukasey, No. 05-72185 Petition for review of a ruling pretermitting Chinese native's application for withholding of removal and relief under the Convention Against Torture (CAT) is granted where the IJ abused his discretion in refusing to grant petitioner's motion for a continuance so that she could resubmit fingerprints for a background security check. Read more... U.S. 9th Circuit Court of Appeals, August 19, 2008 Sowe v. Mukasey, No. 06-72938 Petition for review brought by a native of Sierra Leone of a denial of his applications for asylum, withholding of removal, and protection under the CAT is denied in part, but granted in part and remanded where: 1) the BIA erred in failing to determine whether, assuming the truth of petitioner's testimony that he witnessed his parents' murder, the severing of his brother's hand, and his sister's kidnaping, he provided compelling reasons for his being unwilling or unable to return to Sierra Leone; and 2) a remand was required to determine his eligibility for asylum pursuant to 8 C.F.R. section 1208.13(b)(1)(iii)(A). Read more... U.S. 9th Circuit Court of Appeals, August 20, 2008 US v. Hernandez-Orellana, No. 06-50584, 06-50620 Convictions for alien smuggling-related offenses are affirmed in part, reversed in part, and the sentences vacated and remanded where: 1) a reasonable jury could have determined that two defendants participated in a conspiracy to bring aliens from Mexico Mexico to the United States for financial gain in violation of federal laws; but 2) the en banc decision in United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007), decided during the pendency of this case compelled the reversal of their convictions on substantive "bringing to" counts. Read more... U.S. 9th Circuit Court of Appeals, August 21, 2008 de Rincon v. Dep't of Homeland Sec., No. 04-15411, 04-70555 Appeals challenging an expedited removal order are dismissed for lack of jurisdiction where: 1) the circuit court lacked jurisdiction to hear petitioner's collateral attack on her reinstated expedited removal order; and 2) pursuant to 8 U.S.C. section 1252(e), the circuit court and the district court lacked jurisdiction to hear petitioner's habeas petition challenging her expedited removal order. Read more... U.S. 9th Circuit Court of Appeals, August 21, 2008 Castro de Mercado v. Mukasey, No. 06-70361, 06-70366 Petitions for review of denials of petitioners' applications for cancellation of removal are dismissed where the circuit court lacked jurisdiction to review an IJ's decision, which held that the removal of husband and wife petitioners would not impose an "exceptional and extremely unusual hardship" on their United States-born children and the husband's elderly parents, both of whom have legal status to reside in the United States. Read more... U.S. 11th Circuit Court of Appeals, August 19, 2008 US v. Vega-Castillo, No. 07-12141 Sentence of 70 months for reentering the United States illegally after having been deported or removed is affirmed over claims of error that prior precedent, which "does not require the district court to depart based on the availability of the [fast-track] departure", was overruled by Kimbrough. Read more... August 11 - August 15, 2008 U.S. 1st Circuit Court of Appeals, August 15, 2008 Chhay v. Mukasey, No. 07-2202 Petition for review of a decision denying Cambodian national petitioner asylum and related relief is denied where: 1) the court lacks jurisdiction over an asylum claim because she had not exhausted her administrative remedies; 2) the record did not contain evidence that petitioner experienced any persecution prior to her exodus from Cambodia; 3) petitioner did not satisfy burden of proof of likelihood of future persecution; 4) petitioner did not prove that it was more likely than not that she will be tortured if removed to her homeland; and 5) the IJ fully considered documentation proffered by petitioner and did not violate her right to due process, and put sufficient weight to evidence of general conditions in Cambodia. Read more... U.S. 3rd Circuit Court of Appeals, August 14, 2008 Cospito v. Attorney Gen. US, No. 07-1619 An alien's petition for review of an order of removal is denied in part and dismissed in part where: 1) DHS was not collaterally estopped from raising issues in the removal proceeding that were not raised during prior adjustment-of-status proceedings, both because the adjustment proceeding is non-adversarial and because petitioner's fraudulent statements precluded any final adjudication on those issues; and 2) agency's discretionary determination that it would not grant a waiver for petitioner's prior criminal convictions or her failure to disclose previous applications for adjustment of status was based on unreviewable factual findings. Read more... U.S. 4th Circuit Court of Appeals, August 11, 2008 Anim v. Mukasey, No. 07-1373 Petition for review of a denial of an application for asylum brought by a native of Cameroon is granted where: 1) Department of State letter establishing petitioner's right to a confidential asylum application was breached during the course of the overseas investigation, in violation of 8 C.F.R. section 208.6; and 2) an IJ's reliance on the letter, which lacked any meaningful indicia of reliability, violated petitioner's right to due process. Read more... U.S. 5th Circuit Court of Appeals, August 11, 2008 US v. Muniz, No. 08-40372, 08-40373 In appeals by landowners challenging condemnation orders allowing the government a temporary easement to enter their land and conduct surveys for a planned US-Mexico border fence, appeals are dismissed for lack of appellate jurisdiction where the lower court's orders did not constitute a final adjudication of the cause. Read more... U.S. 5th Circuit Court of Appeals, August 13, 2008 US v. Garza, No. 07-40962 Sentence for transporting an unlawful alien is vacated and remanded where the sentencing guideline enhancement for creating a substantial risk of death or serious bodily injury to another person was not automatically applicable to any case in which a defendant transports illegal aliens through the brush, but must be determined based on the facts of each case. Read more... U.S. 5th Circuit Court of Appeals, August 13, 2008 US v. Fuentes-Oyervides, No. 07-41007 Sentence for attempting to enter the United States illegally is affirmed where a prior conviction under an Ohio statute constituted a drug-trafficking offense under the sentencing guidelines for sentence-enhancement purposes. Read more... U.S. 5th Circuit Court of Appeals, August 14, 2008 US v. Carriles, No. 07-50737 Dismissal of an indictment charging false statements in naturalization proceedings, and suppression of statements made by defendant during those proceedings, are reversed and remanded where: 1) the government's naturalization interview of defendant was not a mere pretext for a criminal investigation, and the government's conduct was therefore not so deceptive and outrageous that it merited dismissal of the indictment; and 2) specific allegedly false statements made by defendant were not fundamentally ambiguous, and allegedly faulty translation could not be the basis for a blanket suppression of all statements. Read more... U.S. 7th Circuit Court of Appeals, August 11, 2008 Vale v. Avila, No. 08-2161 Grant of father's petition to return his children to Venezuela under the International Child Abduction Remedies Act is affirmed where the childrens' place of habitual residence was properly determined to be Venezuela, and the custody rights held by father under Venezuelan law were violated by mother's removal of the children to the US. Read more... U.S. 7th Circuit Court of Appeals, August 13, 2008 Sankoh v. Mukasey, No. 07-2369 Denials by the BIA of applications for asylum, withholding of removal, and relief under the Convention Against Torture are affirmed where: 1) the IJ's refusal to admit country reports from Sierra Leone was proper; 2) the BIA properly took administrative notice of facts contained in those country reports; 3) the IJ did not exhibit bias in his questioning of plaintiff; and 4) the BIA did not err in finding no credible evidence of past persecution or of a well-founded fear of future persecution. Read more... U.S. 7th Circuit Court of Appeals, August 15, 2008 US v. Calimlim, No. 07-1112, 07-1113, 07-1281 In the prosecution of a husband and wife for keeping an alien in the United States illegally and forcing her to work as their housekeeper, convictions for obtaining and conspiring to obtain forced labor, and conspiring to harbor an alien for private financial gain are affirmed but the sentences reversed and remanded, where: 1) the forced-labor statute was not vague or overbroad; 2) jury instructions on forced labor correctly stated the law; 3) there was sufficient evidence to support a conviction for harboring an alien; and 4) sentence enhancements should have been applied for commitment of another felony during the course of committing the crime of forced labor, for a vulnerable victim, and for use of a minor to commit a crime. Read more... U.S. 8th Circuit Court of Appeals, August 13, 2008 US v. Medina-Valencia, No. 07-3642 A sentence for illegal re-entry into the U.S. after previously being deported is affirmed where, given the at least eight year age-difference between defendant and his victim, the district court did not err in finding that his prior conviction was for sexual abuse of a minor, and therefore a crime of violence. Read more... U.S. 8th Circuit Court of Appeals, August 14, 2008 Alanwoko v. Mukasey, No. 07-2769, 07-3281 Petitions for review of decisions denying of asylum and related relief, as well as a motion to reopen, for Nigerian native are denied where: 1) petitioner did not satisfy his burden on an asylum claim; 2) as petitioner was not asserting that torture would occur for a reason other than his religion, the IJ did not err by denying withholding of removal or CAT relief; and 3) there was no abuse of discretion in denying the motion to reopen based on newly discovered evidence. Read more... U.S. 8th Circuit Court of Appeals, August 14, 2008 Cooke v. Mukasey, No. 07-2939 Petition for review of a denial of Liberian citizens' applications for asylum and related relief is denied where: 1) although petitioner suffered past persecution on account of his political beliefs; 2) the IJ did not abuse her discretion in determining that conditions in Liberia have changed such that petitioners no longer have a well-founded fear of being persecuted if they were to return. Read more... U.S. 9th Circuit Court of Appeals, August 12, 2008 Choin v. Mukasey, No. 06-75823, 07-70941 Russian native's petition for review of a decision denying her application for adjustment of status and ordering her removed is granted where: 1) the BIA erroneously interpreted the "as a result of the marriage of the nonimmigrant" language in INA section 245(d); 2) the plain language of section 245 is ambiguous; 3) nothing in the plain language of section 245(d) suggests that an application that was valid when submitted should be automatically invalid when a petitioner's marriage ends by divorce two years later; and 4) the statute also does not require the automatic removal of immigrants whose marriages end in divorce while their applications for adjustment of status are under agency consideration. Read more... U.S. 9th Circuit Court of Appeals, August 12, 2008 US v. Almazan-Becerra, No. 07-10420 A sentence for illegal reentry into the U.S. is affirmed where: 1) district court properly applied the modified categorical approach when it concluded that defendant's prior conviction under California Health and Safety Code section 11360(a) was a "drug trafficking offense"; 2) it properly relied on certain police reports in concluding that defendant was previously convicted of selling marijuana; 3) consequently, an offense-level enhancement under the Guidelines was warranted; and 4) the sentence was reasonable. Read more... U.S. 9th Circuit Court of Appeals, August 13, 2008 Romero-Ruiz v. Mukasey, No. 06-74494 An immigrant who did not have lawful permanent resident status at the time of his mother's naturalization is not eligible for derivative citizenship. Read more... California Appellate Districts, August 11, 2008 In re James C., No. D051599 Part of a dispositional order that conditioned probation on seventeen-year old juvenile ward's living in Mexico and not returning to the United States is reversed where the probation condition that he not enter the country was: 1) unreasonable under People v. Lent(1975) 15 Cal.3d 481; and 2) unconstitutional. Read more... August 04 - August 08, 2008 U.S. 1st Circuit Court of Appeals, August 08, 2008 Sinurat v. Mukasey, No. 07-2230 Petition for review of decision denying application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) is denied where: 1) regardless of students' motives, harm experienced by Indonesian petitioner in one-time school violence incident did not amount to past persecution; 2) there was no connection between the Indonesian government's treatment of Christians generally and the isolated attack on petitioner; 3) petitioner failed to satisfy requirement for withholding of removal; and 4) because petitioner did not make any arguments before the BIA regarding relief under CAT, that claim is waived. Read more... U.S. 8th Circuit Court of Appeals, August 05, 2008 Rafiyev v. Mukasey, No. 07-1317, 07-2406 There is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding. Read more... U.S. 8th Circuit Court of Appeals, August 08, 2008 Ezeagwu v. Mukasey, No. 07-1668 Petition for review of a denial of Nigerian native's application for asylum and related relief is denied where: 1) substantial evidence supported the BIA's decision upholding an IJ's adverse credibility finding and denying his application for withholding of removal; 2) the adverse credibility finding also justified the denial of a claim for relief under the CAT; 3) an ineffective assistance claim was adequately evaluated; and 4) a contention that the matter should be remanded in light of new evidence is rejected. Read more... U.S. 9th Circuit Court of Appeals, August 06, 2008 US v. Flores-Villar, No. 07-50445 The circuit court rejects challenges under the equal protection component of the Fifth Amendment's due process clause on the basis of age and gender to two former sections of the Immigration and Nationality Act (INA), which impose a five-year residence requirement, after the age of fourteen, on U.S. citizen fathers, but not on U.S. citizen mothers, before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen. Read more... U.S. 9th Circuit Court of Appeals, August 08, 2008 Lopez-Rodriguez v. Mukasey, No. 06-70868 Petition for review of a decision removing petitioners to Mexico is granted where: 1) petitioners' respective Forms I-213 (Record of Deportable/Inadmissible Alien) and a sworn statement by one petitioner should have been suppressed; and 2) the government did not produce any other evidence tending to show petitioners' alienage in the proceedings before the IJ. Read more... U.S. 11th Circuit Court of Appeals, August 07, 2008 Quinchia v. US Atty. Gen., No. 07-12248 Petition for review of a decision finding petitioner ineligible for discretionary relief from removal pursuant to section 212(h) of the Immigration and Nationality Act (INA) is granted where: 1) a non-precedential Board of Immigration Appeals (BIA) decision did not merit Chevron deference; and 2) there was need for "clear and uniform" guidance through precedential decisions. BIA's decision is vacated and matter is remanded to BIA to allow it to issue a precedential decision interpreting Section 212(h). Read more... 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...

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