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CASES ARCHIVES
Follow these links to find cases of note in Deportation Defense which were decided in the previous year, or scroll down to find cases decided within the last two months.
CASES DECIDED IN FEDERAL COURT IN OCTOBER / NOVEMBER / DECEMBER 2008
December 29, 2008 - January 02, 2009
U.S. 7th Circuit Court of Appeals, December 29, 2008
Ghaffar v. Mukasey, No. 07-3474
Court lacks jurisdiction to review the determination that Petitioner's belated filing of his asylum application was not justified by changed or extraordinary circumstances. His claims regarding IJ bias, and the BIA's failure to make a record of his wife's testimony, were both within the Board's power to address, and thus he was required to raise these claims before the BIA. Read more...
U.S. 8th Circuit Court of Appeals, December 29, 2008
Al Milaji v. Mukasey, No. 07-3128, 08-1824
Under IIRIRA, the court lacks authority to reinstate an expired period of voluntary departure. Substantial evidence supports an IJ's adverse credibility finding, where: 1) there were conflicting accounts as to whether petitioner had been arrested in Syria; 2) he held the rank of sergeant in the Syrian military; 3) he entered and departed Syria multiple times, not seeking asylum in other countries that he visited; and 4) he did not apply for asylum for three years after entering the US. Read more...
U.S. 8th Circuit Court of Appeals, December 29, 2008
Khrystotodorov v. Mukasey, No. 08-1012
The IJ had reasonable grounds for questioning petitioner's credibility and for requesting additional corroborative evidence to support a grant of asylum under the Convention Against Torture, where there were significant variances between his testimony, alleging persecution of Ukrainian Baptists by the UNA-UNSO, and the objective information in the background country reports. Read more...
U.S. 10th Circuit Court of Appeals, December 30, 2008
US v. Algarate-Valencia, No. 08-2022
District court did not commit plain error when it gave defendant's counsel only thirty seconds to speak at his sentencing hearing, and its explanation of the sentence was adequate. The forty-six month sentence for illegal re-entry of a removed alien, which reflected a downward departure and fell at the bottom of the resulting Guidelines range, was substantively reasonable. Read more...
U.S. 11th Circuit Court of Appeals, December 31, 2008
Singh v. US Attorney Gen., No. 08-10780
Petitioner was properly deemed deportable as an alien convicted of an aggravated felony (burglary) for which a sentence of at least one year was imposed. A conviction in adult court is a conviction for immigration purposes, no matter how old the alien was at the time of the offense. Read more...
December 22 - December 26, 2008
U.S. 1st Circuit Court of Appeals, December 22, 2008
Valenzuela-Solari v. Mukasey, No. 081752
Petition to review decision by the Board of Immigration Appeals (BIA) finding petitioner removable for overstaying his visa and for falsely representing himself to be a U.S. citizen is denied over claims that: 1) the Immigration Judge (IJ) erred in relying on the testimony of the Customs and Border Protection Agency (CBP) officers and on petitioner's sworn statement because that evidence was unreliable due to petitioner's limited understanding of English; and 2) petitioner was not removable because even if he made what could be viewed as a false claim, petitioner recanted his false claim of citizenship. Read more...
U.S. 1st Circuit Court of Appeals, December 23, 2008
Ouk v. Mukasey, No. 081145
Petition for review order of removal is denied in part and dismissed in part for lack of jurisdiction where: 1) there was more than substantial evidence to support the finding that petitioner did not show exceptional circumstances for his untimely motion to reopen; 2) the court lacks jurisdiction to review petitioner's claim that the Board of Immigration Appeals (BIA) should have granted equitable tolling because the agency based its decision on the factual determination that petitioner had not exercised due diligence, which is a precondition to equitable tolling. Read more...
U.S. 1st Circuit Court of Appeals, December 24, 2008
Amilcar-Orellana v. Mukasey, No. 08-1563
Petition by citizens of El Salvador for review of a BIA decision denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT), is denied where: 1) having testified against two gang members in an arson investigation did not entitle petitioner to asylum based on a fear of persecution for his political beliefs; 2) substantial evidence supported the conclusion that petitioner was not likely to be targeted based on his membership in a social group; and 3) relief under the CAT was not available where petitioner did not demonstrate a fear of being tortured at the instigation of the government. Read more...
U.S. 7th Circuit Court of Appeals, December 23, 2008
Torres v. Mukasey, No. 08-1614
Petition for review of a denial of Honduran native's application for asylum and related relief is granted where: 1) the IJ's credibility determination was tainted due to the IJ's improper conduct during the hearings at issue; and 2) there was not substantial evidence to support the IJ's conclusions. Read more...
U.S. 8th Circuit Court of Appeals, December 24, 2008
Skurtu v. Mukasey, No. 07-2859
In an action brought by petitioner, who had formerly been ordered removed to Moldova, styled as a "Complaint" alleging that an IJ in the underlying proceedings committed numerous errors and that the removal proceedings violated his constitutional rights, the circuit court dismisses the "Complaint" for lack of subject matter jurisdiction where: 1) because petitioner's "Complaint" sought review of the IJ's removal order, "sole and exclusive means for judicial review" was vested in the circuit court; 2) the time limits for filing a petition for review are mandatory and jurisdictional and not subject to equitable tolling, and thus the complaint was untimely; and 3) petitioner's inability to seek habeas review of his removal order did not violate the Suspension Clause, as the REAL ID Act is an adequate substitute for habeas review. Read more...
U.S. 8th Circuit Court of Appeals, December 24, 2008
Dukuly v. Mukasey, No. 07-3873
Petition for review of a BIA decision upholding an IJ's denial of an adjustment of status for a Liberian citizen is dismissed where: 1) adjustment of status is a discretionary decision committed to the Attorney General; 2) the circuit court lacks jurisdiction to review such a decision; and 3) petitioner failed to show fundamental unfairness or procedural irregularities that prejudiced his case. Read more...
U.S. 9th Circuit Court of Appeals, December 23, 2008
Salazar-Luviano v. Mukasey, No. 05-70505
Aiding and abetting an attempted escape from custody does not categorically qualify as an "obstruction of justice" crime, for purposes of constituting an aggravated felony within the meaning of the Immigration and Nationality Act (INA) section 101(a)(43)(S). Read more...
December 15 - December 19, 2008
U.S. 2nd Circuit Court of Appeals, December 16, 2008
Mora v. Mukasey, No. 07-3194
Petition for review is denied where the BIA reasonably found that aliens who are inadmissible because they entered the U.S. unlawfully after accruing more than a year of prior unlawful presence are foreclosed from adjusting their status under 8 U.S.C. section 1255(i) on the basis of approved immigrant visa applications. Read more...
U.S. 2nd Circuit Court of Appeals, December 18, 2008
Martinez v. Mukasey, No. 07-3031
Where Petitioner's state drug conviction could have been for nonremunerative transfer of as little as two grams of marijuana, his conviction is the equivalent of a federal misdemeanor under the Controlled Substances Act and therefore not an aggravated felony under the INA. Read more...
U.S. 2nd Circuit Court of Appeals, December 19, 2008
Samuels v. Chertoff, No. 052646.
In an immigration matter, petition for review of decision ordering deportation and denying petitioner's application for relief pursuant to Immigration and Nationality Act section 212(h), 8 U.S.C. section 1182(h), is granted where it was not clear that the Board of Immigration Appeals (BIA) correctly applied Section 1212.7(d) to petitioner's application. Read more...
U.S. 3rd Circuit Court of Appeals, December 19, 2008
Evanson v. Attorney Gen. of the US, No. 07-2509
Petition for review of a BIA order finding petitioner removable for having committed an aggravated felony, contrary to an IJ's finding and grant of cancellation of removal, is granted where the BIA erred in failing to apply the modified categorical approach set forth in applicable Supreme Court precedent, and thus it erred when it considered petitioner's sentencing document to determine whether he had been convicted of an aggravated felony. Read more...
U.S. 8th Circuit Court of Appeals, December 15, 2008
Bhosale v. Mukasey, No. 07-3505
Petition for review of a denial of relief in an asylum case brought by a married couple from India is denied where substantial evidence supported a finding that the evidence failed to establish past persecution, and petitioners were not likely to face future persecution if they returned to India, as they could safely relocate within India. Read more...
California Appellate Districts, December 16, 2008
Mendoza v. Ruesga, No. D051603
In a matter of first impression involving claim against defendant-immigration consultant for violation of the immigration consultants act (ICA), breach of fiduciary duty and intentional infliction of emotional distress, judgment in favor of plaintiffs awarding them damages for breach of fiduciary duty, civil penalties, and attorney fees while barring recovery of treble damages and damages under unclean hands is reversed in part and affirmed in part where: 1) as a matter of law the unclean hands doctrine was inapplicable to plaintiffs' cause of action under the ICA because it was based on defendant's violation of statutes intended to protect consumers; 2) there is a right to a jury trial on an ICA cause of action for damages and the ICA specifically provides that a consumer may recover compensatory damages from an immigration consultant and allows for injunctive relief; and 3) conduct by an immigration consultant giving rise to relief under the ICA may also give rise to punit! ive damages for breach of fiduciary duty or intentional infliction of emotional distress. Read more...
December 08 - December 12, 2008
U.S. 1st Circuit Court of Appeals, December 12, 2008
Munoz-Monsalve v. Mukasey, No. 08-1291
Immigration Judge's failure to initiate a competency evaluation did not constitute a deprivation of due process, where: 1.) the petitioner's counsel failed to broach the issue of mental competence; 2.) the record of the hearing does not evince incompetence; and 3.) there is no showing that the petitioner's substantial rights were prejudiced. Read more...
U.S. 2nd Circuit Court of Appeals, December 12, 2008
Huarcaya v. Mukasey, No. 08-0253
The BIA properly denied Petitioner's application for adjustment of status under the grandfather provision of 8 U.S.C. section 1255(i), as "meritorious in fact" was permissibly interpreted to require a showing that his prior marriage was bona fide. Read more...
U.S. 4th Circuit Court of Appeals, December 09, 2008
Masiss v. Mukasey, No. 051329, 051851
Petition to review decision by the Board of Immigration Appeals finding petitioner deportable as an aggravated felon is denied in part and dismissed over claims of error that: 1) petitioner had in ineffective counsel, based on his counsel's decision to concede deportability for petitioner's conviction for reckless endangerment; and 2) reckless endangerment is not a "crime of violence" and thus could not have formed the basis of petitioner's deportation as an aggravated felon. Read more...
U.S. 5th Circuit Court of Appeals, December 08, 2008
De Hoyos v. Mukasey, No. 07-60740
Petition for review of a final order of removal is denied where: 1) a prior cancellation of removal did not erase petitioner's conviction for possession of marijuana for immigration purposes, and that conviction was admissible in the removal proceeding; and 2) petitioner's equal-protection challenge failed because he did not demonstrate that he was similarly situated to other aliens who were granted admission. Read more...
U.S. 7th Circuit Court of Appeals, December 08, 2008
Chavez-Vasquez v. Mukasey, No. 08-1652
Illegal alien's petition for review of an order of removal is dismissed where: 1) the court lacked jurisdiction to hear an appeal from a judgment regarding cancellation of removal rendered under section 1229(b) of the Immigration and Nationality Act; 2) a procedural due-process claim could not be heard because petitioner had failed to raise it before the BIA; and 3) petitioner's evidence regarding country conditions in Guatemala had been considered, and the IJ's findings of fact with respect to that evidence were not reviewable. Read more...
U.S. 9th Circuit Court of Appeals, December 12, 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 3146 qualifies as the generic crime of "obstruction of justice" under 8 U.S.C. section 1101(a)(43)(S) but does not qualify as the generic crime of "failure to appear" under section 1101(a)(43)(T). Also, a petitioner's prior conviction qualifies as an aggravated felony under section 1101(a)(43)(S) only if the petitioner has been sentenced to a term of imprisonment of "at least one year." Read more...
California Appellate Districts, December 08, 2008
People v. Hassan, No. B194141
In a prosecution involving marriage fraud for immigration purposes, a conviction for offering false or forged instrument for recording and offering false evidence is reversed in part and affirmed in part where: 1) there was undisputed evidence defendant did not live in the same dwelling as his alleged wife; 2) "living together" as written in section Penal Code section 115 means cohabitating; and 3) defendant was improperly convicted of offering false evidence. Read more...
December 01 - December 05, 2008
U.S. 1st Circuit Court of Appeals, December 01, 2008
Fustaguio Do Nasciemento v. Mukasey, No. 072608
Petition for review of decision denying petitioner's motion to reopen her deportation proceedings is denied where: 1) petitioner failed to account for either the five-year delay in filing her first motion to reopen or the subsequent three-year lapse before the filing of her second motion; 2) the Board of Immigration Appeals made a reasonable factual determination that petitioner failed to demonstrate sufficient diligence to justify equitably tolling the motions deadline; and 3) therefore the court lacked authority to review the BIA's denial of relief. Read more...
U.S. 1st Circuit Court of Appeals, December 05, 2008
Khan v. Mukasey, No. 081112
Petition for review of decision denying petitioner's applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) is denied where substantial evidence in the record supported the finding that petitioner proved neither past persecution nor a likelihood of future persecution. Read more...
U.S. 2nd Circuit Court of Appeals, December 03, 2008
Severino v. Mukasey, No. 074126
Petition for review of a final order of removal by the Board of Immigration Appeals (BIA) is denied in part and dismissed in part where: 1) petitioner's status was terminated by law in March 1999; 2) petitioner was therefore ineligible for cancellation of removal; and 3) the burden of proof rested on petitioner in the proceedings before the immigration judge. Read more...
U.S. 2nd Circuit Court of Appeals, December 04, 2008
U.S. v. Connolly, No. 063139
Conviction for illegal reentry into the U.S. as a convicted felon in violation of 8 U.S.C. section 1326(b)(2) is affirmed over claim of error that the charge should have been vacated because defendant had established the requisite showing for United States citizenship under 8 U.S.C. section 1403 based on the fact that his biological father was a U.S. citizen and a member of the Army Reserves at the time of defendant's birth in Panama. Read more...
U.S. 2nd Circuit Court of Appeals, December 05, 2008
Aliyev v. Mukasey, No. 071093
Petition for review of decision denying petitioners asylum, withholding of removal and relief under the Convention Against Torture is granted and the Board of Immigration Appeals' order is vacated where: 1) the BIA failed to use the proper legal framework, i.e., mixed-motive analysis, and likely failed to consider material evidence supporting petitioner's claim; and 2) petitioner's testimony, deemed credible in light of the BIA's reversal of the Immigration Judge's non-credibility finding, provided ample ground for the conclusion that the BIA was not supported by substantial evidence in its finding that petitioner did not show that the government was unwilling to protect him from private persecution. Read more...
U.S. 3rd Circuit Court of Appeals, December 05, 2008
Khouzam v. Attorney Gen. US, No. 07-2926
In an appeal by an Egyptian national seeking to avoid removal, grant of petition for habeas relief is vacated, and petition for review of removal order is granted, where: 1) the district court lacked jurisdiction to entertain the habeas petition after Congress expressly removed such jurisdiction; 2) the petition for review was subject to federal appellate jurisdiction; 3) the lawfulness of DHS's termination of petitioner's deferral of removal based on diplomatic assurances by Egypt that he would not be tortured if returned there was a justiciable issue not subject to the political question doctrine or the rule of non-inquiry; 4) a procedure for making an individualized determination, in every case, as to whether particular diplomatic assurances were sufficient to permit removal under the Foreign Affairs Reform and Restructuring Act was not unreasonable; 5) no statutory or regulatory provision either afforded or prohibited procedures to challenge diplomatic assurances; 6) as ! an alien already granted statutory relief from removal, petitioner was entitled to due process prior to removal; and 7) petitioner was not afforded due process to challenge the diplomatic assurances upon which termination or deferral of removal was based. Read more...
U.S. 8th Circuit Court of Appeals, November 28, 2008
Bah v. Cangemi, No. 08-1705
In proceedings arising after petitioner successfully petitioned under 28 U.S.C. section 2241 for release from his detention in an immigration case, a denial of petitioner's request for attorney's fees under the Equal Access to Justice Act is affirmed where the district court did not abuse its discretion in finding that that the government's position regarding the detention and the litigation had been substantially justified. Read more...
U.S. 9th Circuit Court of Appeals, December 01, 2008
Aguilera-Montero v. Mukasey, No. 06-72956
Petition for review of the BIA's dismissal of petitioner's appeal of a denial of his application for adjustment of status is denied where: 1) petitioner is an inadmissible alien and no statutory basis exists to waive his inadmissibility, and thus he could not adjust his status to that of a lawful permanent resident; and 2) neither a state pardon nor his equal protection claim could overcome the fact that Congress has expressly declined to provide a waiver for an inadmissible alien convicted of a crime relating to a controlled substance. Read more...
U.S. 9th Circuit Court of Appeals, December 04, 2008
Valencia v. Mukasey, No. 04-76571
Petition for review of a BIA decision affirming petitioner's order of removal on the basis of a 1984 California conviction for transporting heroin is denied where there is no requirement that an alien be advised of the availability of relief from deportation where there is no apparent eligibility to receive it. Read more...
U.S. 9th Circuit Court of Appeals, December 05, 2008
Love Korean Church v. Chertoff, No. 07-55093
Revocation of a visa petition filed by a church on behalf its choir director is vacated and remanded where the revocation rested on an interpretation of 8 C.F.R. section 204.5(m)(2) that was inconsistent with the regulation and on factual findings that were unsupported by substantial evidence. Read more...
U.S. 11th Circuit Court of Appeals, December 04, 2008
Lin v. U.S. Attorney Gen., No. 0614404
Petition to review final order denying petitioner's claims for asylum and withholding of removal under the Immigration and Naturalization Act (INA) is affirmed where the evidence did not compel a finding that petitioner suffered past persecution or had a well-founded fear of persecution on account of his political opinion or any protected ground. Read more...
November 24 - November 28, 2008
U.S. 3rd Circuit Court of Appeals, November 26, 2008
Mehboob v. Attorney Gen. of the US, No. 07-1799
Petition for review of a BIA order of removability is denied where petitioner's conviction for indecent assault under 18 Pa. Cons. Stat. section 3126(a)(8), a strict liability offense, is a crime involving moral turpitude because the offense combines a reprehensible act with deliberate conduct. Read more...
U.S. 3rd Circuit Court of Appeals, November 26, 2008
Zheng v. Attorney Gen. of the US, No. 07-3122, 07-3199
In consolidated opinion concerning similar cases brought by Chinese petitioners who based their motions on allegations that there had been changed circumstances in China from those extant at the time of the denial of their applications for asylum, the BIA's denial of the petitioners' respective motions to reopen is vacated and remanded to the BIA for further proceedings, where procedural deficiencies existed in the previous BIA proceedings. Read more...
U.S. 4th Circuit Court of Appeals, November 25, 2008
Zuh v. Mukasey, No. 062050
Following decision finding petitioner-native of Cameroon eligible for asylum, withholding of removal, and protection under Article 3 of the United Nations Convention Against Torture, denial of petitioner's application for asylum is vacated and remanded where the Immigration judge failed to consider the totality of circumstances in denying petitioner's asylum. Read more...
November 17 - November 21, 2008
U.S. 1st Circuit Court of Appeals, November 19, 2008
Budiono v. Mukasey, No. 072363
Petition for review of denial of application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) Board of Immigration Appeals can adopt part of the Immigration Judge's decision and add its own analysis; 2) substantial evidence supported the determination that the harms Christian, ethnic Chinese-petitioner suffered in Indonesia did not constitute persecution; and 3) substantial evidence supported the IJ's and BIA's determination that petitioner failed to establish a well-founded fear of future persecution in light of the fact that her family continues to live in relative safety in Indonesia. Read more...
U.S. 7th Circuit Court of Appeals, November 21, 2008
Jimenez-Gonzalez v. Mukasey, No. 08-1071
Petition for review of an order of removal based on petitioner's conviction on a state charge of criminal recklessness is granted where criminal recklessness is not a crime of violence for immigration purposes. Read more...
U.S. 8th Circuit Court of Appeals, November 19, 2008
Sow v. Mukasey, No. 08-1131
Petition for review of denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is denied where: 1) substantial evidence supported the adverse credibility findings of the IJ; and 2) petitioner did not produce evidence that he was likely to face persecution upon his return to Mauritania. Read more...
U.S. 9th Circuit Court of Appeals, November 18, 2008
Khunaverdiants v. Mukasey, No. 07-70145
Petition for review of the denial of an asylum application as time-barred is granted, and denial reversed, where: 1) appellate jurisdiction existed to review the BIA's determination that petitioner failed to establish a timely filing of his application, because it involved a question of law; and 2) the BIA erred in concluding that proof of an exact departure date was necessary when other clear and convincing evidence established that petitioner necessarily filed his asylum application less than one year after arriving in the United States. Read more...
U.S. 9th Circuit Court of Appeals, November 19, 2008
Hakopian v. Mukasey, No. 05-72532
Petition for review of denial of claims for asylum, withholding of removal, and relief under the Convention Against Torture is denied where: 1) the IJ erred by finding that petitioner's asylum application was time-barred; but 2) the petition was denied on other grounds set forth in a separate memorandum disposition. Read more...
U.S. 9th Circuit Court of Appeals, November 19, 2008
Ahmed v. Mukasey, No. 07-73661
Petition for review of the BIA's denial of petitioner's motion to reopen on the basis that she lacked the effective assistance of counsel is granted, and case remanded, where the BIA erred in determining that petitioner suffered no prejudice as a result of her counsel's ineffectiveness. Read more...
U.S. 9th Circuit Court of Appeals, November 20, 2008
Abebe v. Mukasey, No. 05-76201
Petition for review of denial of relief under section 212(c) of the Immigration and Nationality Act via a discretionary waiver of deportation is denied in part and dismissed in part by the court sitting en banc where: 1) there was a rational basis for section 212(c) being limited to discretionary relief from inadmissibility, but not from deportation; and 2) there was therefore no equal-protection violation in the denial of such relief. Read more...
U.S. 9th Circuit Court of Appeals, November 20, 2008
Kalilu v. Mukasey, No. 06-75425
Petition for review of BIA decision is dismissed in part, denied in part, and granted in part where: 1) there was no appellate jurisdiction to review petitioner's claim to asylum and request for voluntary departure; 2) there was no abuse of discretion in the denial of a motion for withholding of removal; 3) remand was required to allow application of new standards for determining whether an asylum application was frivolous, and for reconsideration of a motion to reopen. Read more...
November 10 - November 14, 2008
U.S. 2nd Circuit Court of Appeals, November 12, 2008
Balachova v. Mukasey, No. 072278, 072279
Review of decision directing removal of husband and wife petitoners to Russia and denying asylum, withholding of removal, and relief under the Convention Against Torture is dismissed in part, granted in part, and the order of removal is vacated where: 1) wife-petitioner's claims were dismissed for failure to exhaust administrative remedies; 2) there were numerous errors in assessing husband-petitioner's applications for asylum and withholding of removal; 3) IJ's conclusion that husband-petitioner must have participated in the stated abuse because he equivocated the meaning of "rape" was not supported by substantial evidence; and 4) wife-petitioner may be eligible for derivative relief based on her husband's application. Read more...
U.S. 2nd Circuit Court of Appeals, November 14, 2008
Alsol v. Mukasey, No. 072068, 081942, 081112
Petitions for review of decisions canceling removal are granted and orders of the Board of Immigration Appeals are vacated where: 1) a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction did not proscribe conduct punishable as a felony as it did not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense; and 2) the decision in US v. Simpson did not hold to the contrary. Read more...
U.S. 6th Circuit Court of Appeals, November 13, 2008
Kaba v. Mukasey, No. 07-3862
Petition for review of a denial of asylum and related relief brought by a native of the Cote d'Ivoire is denied where the evidence in the administrative record did not compel a conclusion contrary to those reached by the IJ in finding: 1) he was not credible; 2) he had not suffered past persecution in his native country; and 3) he failed to show a well-founded fear of future persecution there. Read more...
U.S. 9th Circuit Court of Appeals, November 10, 2008
Flores-Torres v. Mukasey, No. 08-16484
In a case involving a habeas petitioner held in immigration custody during his ongoing removal proceedings for over two years, dismissal for lack of jurisdiction of his habeas petition challenging his continued confinement is reversed and remanded for a determination as to whether he is a U.S. citizen and thus immune from detention under the INA, as section 1252 of the INA does not precludes the district court from exercising jurisdiction over the habeas petition. Read more...
U.S. 10th Circuit Court of Appeals, November 07, 2008
Wei v. Mukasey, No. 07-9537
In an asylum case involving a Chinese citizen, petition for review of a denial of her second motion to reopen is denied where: 1) the BIA did not abuse its discretion in determining that petitioner failed to present any new material evidence of changed country conditions; and 2) changed personal circumstances cannot support an untimely motion to reopen after a final order of removal. Read more...
U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Alapizco-Valenzuela, No. 07-3327
A sentence for transporting illegal aliens for private financial gain is affirmed over defendant's challenges to: 1) the application of a two-level enhancement under U.S.S.G. section 2L1.1(b)(8) for detaining an alien involuntarily through coercion or threat, or in connection with a demand for payment; and 2) a decision to grant a motion for an upward departure and upward variance. Read more...
November 03 - November 07, 2008
U.S. 2nd Circuit Court of Appeals, November 04, 2008
Ma v. Chertoff, No. 071615
Following an action to compel adjustment of plaintiff's status to that of a lawful permanent resident on the basis that U.S. Citizenship and Immigration erroneously denied his application, denial of plaintiff's application for attorney's fees and costs is affirmed where plaintiff was not a "prevailing party" within the meaning of the Equal Access to Justice Act. Read more...
U.S. 2nd Circuit Court of Appeals, November 06, 2008
Mendez v. Mukasey, No. 071114
In an immigration appeal, petition for review of decision ordering petitioner's removal is denied where first degree larceny in the form of "defrauding a public community" is a crime involving moral turpitude. Read more...
U.S. 5th Circuit Court of Appeals, November 06, 2008
Santos-Sanchez v. US, No. 07-40145
In a case in which petitioner-resident alien, having pleaded guilty and served his sentence for aiding and abetting the illegal entry of an alien, sought to vacate his guilty plea in order to avoid removal in proceedings brought by DHS, denial of his petition for a writ of coram nobis is affirmed where: 1) jurisdiction to hear the petition was properly vested in the district court, not the magistrate judge who sentenced petitioner; 2) trial counsel was not ineffective for failing to advise petitioner that a guilty plea would automatically make him removable, nor did counsel affirmatively misrepresent the immigration consequences of his plea; and 3) the magistrate judge's failure to inform petitioner at his plea colloquy of the immigration consequences of a guilty plea did not make the plea involuntary. Read more...
U.S. 8th Circuit Court of Appeals, November 03, 2008
Malonga v. Mukasey, No. 07-3443
Petition for review of a denial of asylum and related relief brought by a citizen of the Republic of Congo is denied as to asylum and CAT claims, but granted as to a withholding of removal claim where: 1) the IJ applied an incorrect, heightened legal standard in defining past persecution as 8 C.F.R. section 1208.16 uses the term; and 2) the IJ erred in concluding that defendant's membership in the Lari ethnic group of the Kongo tribe is not a particular social group for purposes of withholding relief, as the group members are identifiable by accent, dialect, home region, and surname. Read more...
U.S. 9th Circuit Court of Appeals, November 03, 2008
Latu v. Mukasey, No. 05-75889
In an immigration action interpreting whether violation of Hawaii Revised Statute section 291C-12.5 regarding hit and run accidents categorically constitutes a crime involving moral turpitude (CIMT) allowing removal of a lawfully admitted immigrant, petition for review of a removal order is granted where: 1) to constitute a CIMT, the generic elements of a crime must show that it involves conduct that is "base, vile, or depraved" and violates "accepted moral standards;" 2) section 291C-12.5 incorporates behavior that does not involve moral turpitude because it can be violated by simply failing to provide required information following an accident causing injury or death; and 3) violation of section 291C-12.5 need not constitute fraud. Read more...
U.S. 9th Circuit Court of Appeals, November 05, 2008
US v. Youssef, No. 07-10335
A violation of 18 U.S.C. section 1015(a), which criminalizes the making of a false statement in an immigration document, does not require the false statement to be "material" as an element of the offense. Read more...
U.S. 10th Circuit Court of Appeals, November 04, 2008
Ribas v. Mukasey, No. 07-9509
Petition for review of a ruling finding that petitioner filed a frivolous asylum application, denying his application for adjustment of status, and ordering him removed to Angola, is denied where petitioner received adequate notice of the consequences of filing a frivolous asylum application, and his remaining issues were waived or lacked merit. Read more...
U.S. 11th Circuit Court of Appeals, November 05, 2008
Mohammed v. U.S. Attorney Gen., No. 0711605
Petition for review of decision denying application for asylum and withholding of removal for Eritrean petitioner is denied where: 1) substantial evidence supported Immigration Judge's finding that petitioner failed to prove past persecution; and 2) substantial evidence supported the finding that petitioner did not have a well-founded fear of future persecution. Read more...
October 27 - October 31, 2008
U.S. 1st Circuit Court of Appeals, October 29, 2008
Zheng v. Mukasey , No. 062479, 071568
In an immigration matter, petition to review decision denying request for asylum and related relief is denied where: 1) the evidence was insufficient to establish a well founded fear of persecution; 2) petitioner failed to establish a prima facie case for the relief sought; and 3) the BIA did not err in denying the motion to reopen. Read more...
U.S. 3rd Circuit Court of Appeals, October 28, 2008
Garcia v. Attorney Gen. of the US, No. 07-2164
In an immigration case involving a citizen of the Dominican Republic, petition for review of an order of removal is granted, BIA decision vacated, and case remanded where: 1) an amendment to the Immigration and Naturalization Act did not remove the five-year statute of limitations on initiating removal proceedings; and 2) there was appellate jurisdiction to review petitioner's challenge to the government's authority to remove her after the running of the limitations period. Read more...
U.S. 4th Circuit Court of Appeals, October 30, 2008
Teshome-Gebreegziabher v. Mukasey , No. 081060
Petition to review decision denying panel rehearing is denied where, based on the plain language of 8 U.S.C. section 1252(f)(2) and supported by the clear congressional purpose underlying the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), an alien who has been ordered removed from the U.S. must show by clear and convincing evidence that entry or execution of the order of removal is prohibited as a matter of law in order to "stay" (i.e., stop) the removal. Read more...
U.S. 7th Circuit Court of Appeals, October 27, 2008
Xiao v. Mukasey, No. 08-1120
Petition for review of a BIA order of removal is denied where the IJ made a reasonable determination that petitioners were not credible in their testimony as to why they had fled China. Read more...
October 20 - October 24, 2008
U.S. 1st Circuit Court of Appeals, October 22, 2008
US v. Boskic, No. 071188
Conviction of Bosnian citizen-defendant for two counts of making false statements in his applications for refugee status and permanent residency in the U.S. is affirmed over claims of error that: 1) the district court should have granted defendant's motion to suppress statements made during an interview with government agents because those statements were secured in violation of his Fifth and Sixth Amendment rights; and 2) the court should have granted his motion for judgment of acquittal because the evidence was insufficient to support a finding of falsity in his two statements. Read more...
U.S. 7th Circuit Court of Appeals, October 23, 2008
Malik v. Mukasey, No. 07-3821
Petition for review of denial of petitioners' motion to continue their removal proceedings, so that they could apply to become lawful permanent residents based on their marriages to United States citizens, is dismissed where the court lacked jurisdiction to review the IJ's determination that the continuance would be futile. (Republished opinion) Read more...
U.S. 7th Circuit Court of Appeals, October 24, 2008
Adebowale v. Mukasey, No. 07-2201
Petition by a Nigerian-born citizen of the United Kingdom for review of denial of his motion to reopen asylum proceedings is dismissed for lack of jurisdiction where the IJ's determination that petitioner failed to demonstrate exceptional circumstances required to reopen was a factual one not subject to appellate review. Read more...
U.S. 9th Circuit Court of Appeals, October 20, 2008
Estrada-Espinoza v. Mukasey, No. 05-75850
In an immigration case challenging removal based on statutory rape convictions, petition for review is granted where: 1) federally defined "sexual abuse of a minor" within the meaning of 8 U.S.C. section 1101(a)(43) requires a knowing sexual act with someone between 12 and 16 years old and at least 4 years younger than the perpetrator; 2) the California statutes under which petitioner was convicted set the age of consent at 18 and minimum age difference at 3 years; 3) there were no allegations of abuse or violence; and 4) petitioner and the victim cohabitated with permission of both sets of parents and raised a child together. Read more...
U.S. 9th Circuit Court of Appeals, October 23, 2008
Shin v. Mukasey, No. 06-71955, 06-74052
In an immigration case, denial of relief from a removal order is affirmed where the fact that a green card was purchased for $10,000 from a corrupt immigration employee does not prevent the government from asserting that the green card is fraudulent. Read more...
U.S. 9th Circuit Court of Appeals, October 24, 2008
Balam-Chuc v. Mukasey, No. 06-72887
In an immigration case, petition for relief from a removal order is denied where: 1) all aliens present in the U.S. on the date of enactment of the Immigration and Nationality Act (INA) had a deadline of April 30, 2001 to apply for adjustment of status under section 245(i) of the INA, which allows procedural benefits to spouses and minor children of lawful permanent residents; 2) INA section 245(i) is a statute of repose, thus not subject to equitable tolling for a claim of ineffective assistance of counsel; and 3) failure by petitioner's counsel to file petitioner's application on time did not implicate the Fifth Amendment because it did not affect the fundamental fairness of any ongoing hearing. Read more...
U.S. 10th Circuit Court of Appeals, October 21, 2008
US v. Martinez-Barragan, No. 06-2333
A sentence for illegal reentry by a deported alien after having been previously convicted of an aggravated felony is affirmed where: 1) claims that the sentence was procedurally unreasonable failed; and 2) under the circumstances, defendant failed to demonstrate that his criminal history and family circumstances, when viewed in light of 18 U.S.C. section 3553(a), rendered a bottom of the Guidelines sentence an abuse of discretion. Read more...
New York Court of Appeals, October 23, 2008
Katz Park Ave. Corp. v. Jagger, No. 141
In an ejectment action seeking to remove defendant-celebrity from her rent-stabilized apartment, summary judgment for landlord is affirmed where, in the absence of unusual facts, a foreign national who is in the United States on a tourist visa cannot meet the "primary residence" requirement of New York City's rent regulations. Read more...
California Appellate Districts, October 22, 2008
Fonseca v. Fong, No. A120206
Judgment entered by the trial court in defendants' favor on the basis of its order sustaining their demurrer without leave to amend is reversed where: 1) unlike the provisions of Proposition 187 declared preempted in League of United Latin American Citizens v. Wilson, section 11369 was not designed primarily for the purpose of effecting the removal of persons unlawfully present in this country; and 2) it was not possible to declare Section 11369 preempted under the supremacy clause pursuant to any applicable test. Read more...
October 13 - October 17, 2008
U.S. 2nd Circuit Court of Appeals, October 17, 2008
Alibasic v. Mukasey, No. 064046
Petition to review decision of Board of Immigration Appeals (BIA) vacating grant of Albanian Muslim-petitioner's application for asylum from violent disintegration of the former Yugoslavia, is granted where the BIA did not demonstrate that its decision was supported by "substantial evidence in the record," especially because it did not even address the evidence of continued persecution of Serbian minorities identified by the Immigration Judge in supporting materials submitted by petitioner and in the 2004 Country Report itself. Read more...
U.S. 6th Circuit Court of Appeals, October 15, 2008
Thap v. Mukasey, No. 07-3752, 07-4168
Petition for review of a decision removing petitioner to Cambodia is denied where: 1) petitioner's robbery conviction constituted a crime of violence that supported findings that he was removable; 2) a statutory ground for removal must have a "substantially identical" counterpart in the statutory grounds for exclusion in order to qualify for INA section 212(c), and the factual basis of the underlying criminal activity is irrelevant; 3) thus, petitioner was not eligible for section 212(c) relief; and 4) the evidence in this case did not compel a conclusion that it was "more likely than not" that he would be detained, let alone tortured, upon removal to Cambodia. Read more...
October 06 - October 10, 2008
U.S. 2nd Circuit Court of Appeals, October 07, 2008
Ajlani v. Chertoff, No. 071170
In an action pursuant to 8 U.S.C. section 1447(b) for declaratory and injunctive relief to effect plaintiff's naturalization as a U.S. citizen and to prohibit his removal from the U.S., dismissal of plaintiff's action is affirmed where: 1) the district court lacked jurisdiction to review the propriety of the removal proceedings pending against plaintiff; and 2) in light of 8 U.S.C. section 1429, the pendency of those removal proceedings precludes plaintiff from stating a claim for relief under 8 U.S.C. section 1447(b) in the form of an order either (a) compelling defendants to admit plaintiff to U.S. citizenship, or (b) directly granting his naturalization. Read more...
U.S. 2nd Circuit Court of Appeals, October 08, 2008
Matadin v. Mukasey, No. 064742
In an immigration matter, petition for review of a decision ordering removal is granted and decision of the Board of Immigration Appeals (BIA) is vacated and remanded where the agency assigned the burden of proof to the petitioner, where it should have required the government to prove abandonment by clear, unequivocal and convincing evidence. Read more...
U.S. 2nd Circuit Court of Appeals, October 10, 2008
Shao v. Mukasey, No. 072689
In an immigration matter brought by Chinese nationals who asserted a fear of future persecution, specifically, forced sterilization, if removed to China based on their having fathered or given birth to more than one child, petitions for review of decision of Board of Immigration Appeals (BIA) denying relief from removal are denied where: 1) there was no legal error in the evidentiary framework employed; and 2) because substantial evidence supported the BIA's findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable. Read more...
U.S. 6th Circuit Court of Appeals, October 08, 2008
Zhang v. Mukasey, No. 07-3355
Chinese citizen's petition for review of a decision denying both her motion to reopen asylum proceedings and her successive application for asylum is denied where: 1) there was no abuse of discretion in the BIA's denial of the motion to reopen; and 2) the BIA reasonably interpreted sections 1158(a)2)(D) and 1229a(c)(7)(C)(ii) of Title 8 as requiring an alien subject to a final order of removal for 90 days or more to make a successful motion to reopen her proceedings prior to consideration of a successive application for asylum. Read more...
U.S. 9th Circuit Court of Appeals, October 07, 2008
Granados-Oseguera v. Mukasey, No. 03-73030
In an immigration appeal, petition to review refusal to reopen removal proceedings is denied where: 1) denial of petitioner's I-140 petition does not render petition to reopen removal proceedings moot; but 2) even if there was ineffective assistance of counsel, there is no "exceptional circumstances" exception to the rule that under 8 U.S.C. section 1229c(d)(1) petitioner cannot move to reopen his removal proceedings after overstaying his voluntary departure period. Read more...
U.S. 9th Circuit Court of Appeals, October 08, 2008
Delgado v. Mukasey, No. 03-74442
Petition for review of denial of applications for asylum, withholding of removal, and withholding under the Convention Against Torture are dismissed in part and denied in part where: 1) the Board of Immigration Appeals may determine by adjudication that a crime is "particularly serious" without it being so classified by regulation; 2) the Court lacks jurisdiction to review the merits of such decisions; and 3) petitioner did not prove a likelihood of future torture if returned to El Salvador. Read more...
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