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CASES ARCHIVES
Follow these links to find cases of note in Deportation Defense which were decided in the previous years, or scroll down to find cases decided within the last few months.
OCTOBER / NOVEMBER / DECEMBER 2008
CASES DECIDED IN FEDERAL COURT IN 2012
December 24, 2012 - December 28, 2012
United States Ninth Circuit, 12/26/2012
Sanchez v. Holder, No. 08-72430
A Mexican citizen's petition for review of BIA's decision affirming an IJ's order finding her inadmissible as an alien smuggler under 8 U.S.C. section 1182(a)(6)(E)(i), is denied where: 1) the IJ's findings, based solely on petitioner's admissions in her Form I-213 Record of Deportable/Inadmissible Alien, were supported by substantial and admissible evidence; 2) the IJ did not abuse his discretion by denying petitioner's motion to suppress the Form I-213 as hearsay, because the Federal Rules of Evidence do not apply in immigration hearings and petitioner did not claim her statements was inaccurate; and 3) petitioner's admitted actions were more than mere reluctant acquiescence in another's plan, but were rather affirmative acts. Read more...
United States Ninth Circuit, 12/26/2012
Alvarez v. Holder, No. 08-70941
A Mexican national's petition for review of BIA's denial of her application for cancellation of removal is: 1) dismissed for lack of jurisdiction on petitioner's claim that the denial of cancellation deprived her of due process where a different IJ had four years earlier granted relief to her husband on similar facts; but 2) vacated and remanded on petitioner's claim that the BIA erred in relying on a categorical rule that the availability of alternative lawful means to immigrate necessarily undercuts an alien's claim of hardship due to a qualifying relative. Read more...
United States Ninth Circuit, 12/28/2012
Alocozy v. U.S. Citizenship & Immigration Services, No. 11-16557
In an Afghan citizen's suit challenging the United States Citizenship and Immigration Services' (USCIS) determination finding him ineligible for naturalization due to his felony conviction for assault with intent to commit rape, district court's grant of summary judgment in favor of the USCIS is affirmed where: 1) the government's prior grant of INA section 212(c) relief to the petitioner did not constitute a waiver by the government of 8 U.S.C. section 1101(f)(8)'s permanent bar to naturalization; and 2) the Illegal Immigration Reform and Immigration Responsibility Act's addition of "crime of violence" offenses to the list of aggravated felonies that bar naturalization was not an improper retroactive application of the statute. Read more...
United States Ninth Circuit, 12/28/2012
Rojas v. Holder, No. 08-74331
A petition for review of a BIA's decision affirming an IJ's order denying petitioner pre-conclusion voluntary departure is denied where: 1) the IJ did not err in considering evidence of petitioner's sexual conduct with a minor, even though he had not been convicted of a crime, because it was probative as to his bad character and undesirability for permanent residency; and 2) the IJ's consideration of the underlying facts of the crime did not violate due process, because the petitioner had admitted that he, as an adult, had sexual relations with a minor. Read more...
December 17, 2012 - December 21, 2012
United States Second Circuit, 12/18/2012
Gashi v. Holder, No. 10-2584
In petitioner's appeal of decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture, the order of the Board of Immigration Appeals is vacated and remanded, where: 1) the agency employed an incorrect standard of law; and 2) the proposed group of cooperating witnesses identified by petitioner as the basis for his claim of past persecution does constitute a "particular social group" under the Immigration and Nationality Act. Read more...
United States Ninth Circuit, 12/18/2012
US v. Bustos-Ochoa, No. 11-50471
Defendant's conviction for illegal reentry after deportation is affirmed where an alien may not collaterally attack his removal order by claiming that an immigration judge failed to advise him about relief for which he was statutorily ineligible, even if the government did not introduce before the IJ noticeable documentation of the aggravated felony conviction that renders him ineligible. Read more...
United States Ninth Circuit, 12/20/2012
US v. Valdavinos-Torres, No. 11-50529
Defendant's conviction and sentence for illegal reentry are affirmed where: 1) under the modified categorical approach, defendant's predicate conviction for possession of methamphetamine for sale in violation of Cal. Health and Safety Code section 11378 qualifies as a drug trafficking offense under 8 U.S.C. section 1101(a)(43)(B); 2) defendant was not denied his due process right to counsel during removal proceedings, and because he has not demonstrated a plausible claim for relief from the removal order, he was not prejudiced by any such denial; 3) defendant's section 11378 conviction supports the district court's imposition of a 16-level enhancement; and 4) the district court's imposition of supervised release is substantively reasonable. Read more...
December 10, 2012 - December 14, 2012
United States Fourth Circuit, 12/13/2012
US v. Torres-Miguel, No. 11-4891
In defendant's conviction for illegal reentry by an aggravated felon, district court's imposition of a 51-months' imprisonment on the ground that defendant's previous state conviction for a criminal threat categorically constituted a prior crime of violence, is vacated and remanded where section 422(a) is not categorically a crime of violence as defined in Guidelines section 2L1.2 because contrary to the Ninth Circuit's holding, the plain language of section 422(a) does not contain an element requiring the use or threatened use of physical force. Read more...
United States Fourth Circuit, 12/14/2012
US v. Carpio-Leon, No. 11-5063
A Mexican citizen's conviction for possessing firearms while being illegally or unlawfully in the United States is affirmed where: 1) the scope of the Second Amendment does not extend to provide protection to illegal aliens, because illegal aliens are not law-abiding members of the political community and aliens who have entered the United States unlawfully have no more rights under the Second Amendment than do aliens outside of the United States seeking admittance; and 2) defendant's Fifth Amendment challenge fails because prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress's legitimate interest in public safety. Read more...
December 03, 2012 - December 07, 2012
United States First Circuit, 12/03/2012
Gasparian v. Holder, No. 11-2231
In Armenian citizens' motion to reopen their asylum claim, after their initial claim was denied in 1997, the BIA's denial of the petition is stayed for 90 days to allow for the son to apply relief where the son has a more promising chance for relief under the Morton Memo, having entered the United States as a young child and pursued his education in this country, and being blamed for remaining in the country despite the BIA's removal order. Read more...
United States Second Circuit, 12/03/2012
Lee v. Holder, No. 12-10
A Malaysian citizen's petition for review of BIA's determination that petitioner is ineligible for a change of immigration status is denied where: 1) Congress has provided that beneficiaries of labor-certificate applications filed by April 30, 2001 may be eligible for an adjustment of immigration status notwithstanding their unlawful presence in the United States; 2) the Attorney General has interpreted that provision as applying only to beneficiaries actually listed on labor-certification applications as of April 30, 2001, and not to individuals who were later substituted as beneficiaries; and 3) the Attorney General's interpretation of section 1255(i)(1)(B)(ii) is entitled to Chevron deference. Read more...
United States Second Circuit, 12/07/2012
US v. Daley, No. 11-2987
In appeal from denial of defendant's motion to dismiss the indictment for illegal reentry after deportation and subsequent conviction, judgment is affirmed, where the district court properly considered defendant's completed criminal conduct in making the discretionary determination that entry of the removal order against defendant in absentia was not fundamentally unfair because there was no reasonable probability that defendant would have obtained relief had he received notice of the removal proceeding and been present. Read more...
United States Ninth Circuit, 12/03/2012
Martinez v. Napolitano, No. 10-56023
District court's dismissal of a Guatemalan citizen's suit challenging the BIA's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture, as arbitrary and capricious and therefore in violation of the Administrative Procedure Act (APA), is affirmed where: 1) the district court properly dismissed the action for lack of subject matter jurisdiction because 8 U.S.C. section 1252(a)(5) prohibits APA claims that indirectly challenge a removal order; and 2) all claims challenging the procedure and substance of agency determinations "inextricably linked" to the order of removal are prohibited by section 1252(a)(5), no matter how the claims are framed. Read more...
United States Ninth Circuit, 12/03/2012
Pechenkov v. Holder, No. 08-73287
A Russian citizen's petition for review of the BIA's denial of withholding of removal and adjustment of status is: 1) dismissed as to the petitioner's challenge to the discretionary determination finding him ineligible for withholding because the crime underlying his removability was a "particularly serious crime"; and 2) denied as to the petitioner's challenge to the provisions precluding adjustment of status after his asylee status was revoked, also due to his conviction. Read more...
United States Ninth Circuit, 12/05/2012
US v. Hernandez-Estrada, No. 11-50417
District court's denial of a defendant's motion to dismiss his indictment for being a deported alien in violation of 8 U.S.C. section 1326, claiming that the court violated the Jury Selection and Service Act (Act) and the Fifth and Sixth Amendments by using a juror source list consisting only of registered voters, is affirmed where: 1) because the juror source list did not substantially under-represent African-Americans or Hispanics in the community, the district court's failure to supplement that list did not violate the Sixth Amendment; 2) because the defendant neither alleged nor showed discriminatory intent, there was no Fifth Amendment equal-protection violation; 3) although the district clerk's office should not automatically disqualify individuals who express doubt about their English skills, and should not put off preparing statistical jury-representativeness forms required by the Act, these technical violations did not frustrate the Act's goals and do not warrant relief in this case; 4) the court's dismissal of prospective jurors based solely on a "no" answer to a question whether jurors "read, write, speak and understand the English language" was not a substantial violation of the Act because it did not interfere with the Act's key goals of randomness and objectivity; and 5) defendant did not demonstrate that the court substantially departed from the requirements of the Act by failing to return questionnaires to prospective jurors who failed to answer questions on race and/or ethnicity. Read more...
November 26, 2012 - November 30, 2012
United States Third Circuit, 11/27/2012
Lin v. Attorney General United States of America, No. 12-1668
A Chinese citizen's petition for review of a BIA's denial of his motion to reopen removal proceedings is denied where: 1) the BIA did not abuse its discretion in denying petitioner's motion in determining that the newly presented evidence was insufficient to establish a reasonable likelihood that petitioner was entitled to relief because he failed to establish its authenticity; and 2) the BIA appropriately denied petitioner's claim on procedural grounds because he did not submit a new application for relief with his motion to reopen, as required by 8 C.F.R. section 1003.2(c)(1). Read more...
United States Ninth Circuit, 11/30/2012
US v. Arias-Espinosa, No. 11-10663
Defendant's appeal of his 51-month sentence for illegal re-entry into the United States is dismissed where the district court's statement that defendant "may have a right to appeal" was equivocal or ambiguous, rather than being unequivocally, clearly, and without qualification, and so does not vitiate his explicit waiver of right to appeal in his written plea agreement. Read more...
California Court of Appeal, 11/28/2012
People v. Serrano, No. H036373
Following the federal government's initiation of deportation proceedings against a defendant as a result of a 2007 conviction, defendant's appeal of a trial court's denial of his motion to vacate his conviction is dismissed as abandoned where defendant is not entitled to Wende review because this is an appeal from a postconviction proceeding. Read more...
November 19, 2012 - November 23, 2012
United States Fourth Circuit, 11/19/2012
Viegas v. Holder, No. 11-1689
A petition for review, by a native and citizen of the Republic of Angola, of an order by the BIA denying his petition to obtain relief of removal under the Immigration and Nationality Act, is denied where the BIA did not err in deeming petitioner ineligible for asylum and withholding of removal under the INA's Material Support Bar, because he was a member of, and provided material support to, a terrorist organization. Read more...
United States Ninth Circuit, 11/19/2012
US v. Catalan, No. 11-50318
Defendant's sentence for illegal reentry is vacated and remanded, where a November 1, 2012 amendment to the Sentencing Guidelines clarified, rather than altered, existing law in providing that a probation revocation sentence served after deportation should not be used to calculate the "sentence imposed" under U.S.S.G. section 2L1.2(b)(1). Read more...
United States Ninth Circuit, 11/19/2012
US v. Oseguera-Madrigal, No. 11-30360
Defendant's conviction and sentence for illegal reentry following deportation in a case in which defendant collaterally attacked his underlying removal order are affirmed where: 1) the BIA did not err in finding the defendant removable based on his conviction for use of a drug paraphernalia, which was a conviction "relating to a controlled substance"; 2) the IJ did not violate due process by failing to inform the defendant of the possibility of relief through a waiver of inadmissibility under 8 U.S.C. section 1182(h), where the defendant was plainly ineligible for the waiver because the paraphernalia he was convicted of using was related to cocaine, not marijuana; and 3) defendant's claim that the district court abused its discretion and imposed substantively unreasonable sentence when it granted "only" a six-month downward variance from the Sentencing Guidelines range is without merit. Read more...
November 12, 2012 - November 16, 2012
United States First Circuit, 11/13/2012
Perlera-Sola v. Holder, No. 11-2167
An El Salvadorian citizen's petition for review of BIA's final order of removal is denied where: 1) petitioner has not provided sufficient evidence to establish a well founded fear of future persecution based on his family membership to support his asylum claim; 2) because statutory withholding of removal under INA section 241(b)(3) requires an even greater likelihood of future persecution than asylum, his request for statutory withholding of removal necessarily fails; and 3) petitioner is not eligible for relief under the CAT, as he has set forth no evidence that there is any prospect that he will be "tortured" if he is returned to El Salvador. Read more...
November 05, 2012 - November 09, 2012
United States First Circuit, 11/05/2012
Rojas-Perez v. Holder, No. 11-1047
A Mexican citizens' petition for review of an order of removal is denied where the BIA's decision was reasonable and adequately supported by substantial evidence. Read more...
United States First Circuit, 11/09/2012
Tay-Chan v. Holder, No. 11-1548
A Guatemalan citizen's petition for review of BIA's affirmance of an IJ's denial of an application for withholding of removal is denied where petitioner has failed to demonstrate past persecution on account of a protected ground, and that failure means there was no presumption of future persecution. Read more...
United States Second Circuit, 11/08/2012
US v. Gupta, No. 09-4738
In appeal from conviction for immigration fraud, judgment is vacated and remanded where, under the particular circumstances of this case, the district court's intentional exclusion of the public from the courtroom during the entirety of voir dire, without prior consideration of the factors identified in Waller v. Georgia, 467 U.S. 39, 48 (1984), violated defendant's Sixth Amendment right to a public trial. Read more...
United States Fourth Circuit, 11/05/2012
Singh v. Holder, No. 11-1609
An Indian citizen's petition for review of an order by the BIA denying his application for withholding of removal under both the Immigration and Nationality Act (INA) and under Article III of the Convention Against Torture (CAT) is denied where: 1) because substantial evidence supports petitioner's failure to establish a clear probability of persecution throughout India, the BIA's conclusion that he was not entitled to withholding of removal under the INA is not manifestly contrary to the law nor an abuse of discretion; 2) because substantial evidence supports the conclusion that petitioner is not more likely than not to face torture if removed to India, the IJ and the BIA did not err in finding him ineligible for withholding of removal under CAT; and 3) petitioner's due process claim fails because he cannot establish either a violation or prejudice. Read more...
United States Fourth Circuit, 11/09/2012
Leiba v. Holder, No. 11-1845
An El Salvadorian citizen's petition for review of BIA's decision affirming an IJ's grant of a motion by the Department of Homeland Security to pretermit petitioner's applications for adjustment of immigration status and for a waiver pursuant to Immigration and Nationality Act (INA), is granted where the section 212(h) waiver bar unambiguously does not apply to the petitioner Read more...
United States Ninth Circuit, 11/06/2012
US v. Zamorano-Ponce, No. 11-10462
In defendant's conviction for illegal reentry, district court's imposition of a 33-month sentence in applying a 16-level enhancement based on a prior "crime of violence" is affirmed where defendant's prior conviction for "rape of a child in the third degree," in violation of the Revised Code of Washington section 9A.44.079, categorically qualifies as "statutory rape," which is a crime of violence for the purposes of a sentencing enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(ii). Read more...
October 29, 2012 - November 02, 2012
United States Ninth Circuit, 10/29/2012
US v. Aguilar-Vera, No. 10-10333
In defendant's conviction for a misdemeanor illegal entry by an alien, district court's decision rejecting defendant's challenge to his guilty plea proceeding en masse, is affirmed where although the group plea proceeding violated Rule 11(b)(1) and 11(b)(2), the error was harmless beyond a reasonable doubt. Read more...
October 22, 2012 - October 26, 2012
United States First Circuit, 10/22/2012
Escobar v. Holder, No. 11-2086
A Guatemalan citizen's petition for review of a BIA's denial of his applications for asylum, statutory withholding or removal and protection under the Convention Against Torture (CAT) is affirmed where: 1) whatever petitioner's subjective fear of persecution, he has not shown an objectively reasonable basis for that fear; 2) petitioner's alternative theory that a "very reasonable possibility that he will be persecuted in Guatemala based upon his membership in the particular social group of Guatemalan nationals repatriated from the United States," is without merit; 3) because statutory withholding of removal under INA section 241(b)(3) requires an even greater likelihood pf persecution than asylum, his request for statutory withholding necessarily fails; and 4) petitioner is not eligible for relief under CAT because he has not established that there is any prospect that he will be "tortured" if returned to Guatemala. Read more...
United States Third Circuit, 10/24/2012
US v. Kouevi, No. 10-3529
Defendant's convictions for visa fraud and conspiracy to commit visa fraud are affirmed where defendant's argument that the paragraph of 18 U.S.C. section 1546(a), of which he was convicted of violating, does not criminalize activities involving authentic immigration documents is without merit, where the plain language of the statute reveals that the first paragraph must be read to prohibit the possession or use of authentic immigration documents which are obtained by fraud. Read more...
October 15, 2012 - October 19, 2012
United States First Circuit, 10/19/2012
Campbell v. Holder, No. 11-2398
A BIA's decision ordering removal of a Jamaican citizen, following a conviction on two counts of risk of injury to a minor, is reversed insofar as it held that petitioner is removable on the grounds that he was convicted of aggravated felony sexual abuse and that he is therefore ineligible for cancellation of removal. Read more...
United States First Circuit, 10/19/2012
James v. Holder, No. 11-2500
A Jamaican citizen's petition for review of a BIA's decision finding him removable, is denied where the defendant provides no reason to doubt that "Possession with intent to sell" in violation of section 21a-277(b) is an offense to which he pled. Read more...
United States Second Circuit, 10/16/2012
Fuller v. Bd. of Immigration Appeals, No. 08-3973
Fuller's petition for review of a 2008 BIA order of removal, that was vacated and superseded by a subsequent 2009 order is dismissed for lack of jurisdiction, where: 1) the 2009 order rendered the 2008 order moot by vacating it both expressly and substantively; but 2) Fuller may obtain review of the 2009 Order if she successfully moves the BIA to reopen her proceedings and reissue that order on the ground that ineffective assistance of counsel prevented her from timely petitioning for review. Read more...
United States Second Circuit, 10/16/2012
In the Matter of Immigration, No. 12-4096
In light of the numerous immigration cases in the 2nd Circuit Court that are actually or potentially subject to a future decision by the Government as to whether it will or can remove petitioners if their petitions are denied, the Court has concerns about its ability to control its docket and efficiently allocate its judicial resources. The opinion sets forth procedures for all immigration cases pending in this Court that will enable an interested petitioner and the Government to evaluate whether remand to the BIA, according to terms specified therein, is appropriate. Read more...
United States Ninth Circuit, 10/19/2012
Garfias-Rodriguez v. Holder, No. 09-72603
A Mexican citizen's petition for review of BIA's removal order is denied where: 1) deferring to the BIA's decision in Briones, aliens who are inadmissible under INA section 212(a)(9)(C)(i)(I) may not apply for adjustment of status under section 245(i); 2) under the five-factor test of Montgomery Ward, this rule can be properly applied to petitioner because he filed his section 245(i) application before any court ruled he was eligible to do so; and 3) 8 U.S.S.C. section 1229(e) unambiguously provides the Attorney General with the same authority to promulgate 8 C.F.R. section 1240.26(i), and petitioner's grant of voluntary departure terminated upon his decision to file a petition for review. Read more...
October 08, 2012 - October 12, 2012
United States First Circuit, 10/10/2012
Sheikh v. Holder, No. 11-2237
A petition for review of a final order of removal by the Board of Immigration Appeals is denied where there was no abuse of discretion to deny the motion for continuance under the standards set forth in Matter of Hashmi. Read more... United States Ninth Circuit, 10/09/2012
Delgado-Hernandez v. Holder, No. 08-70789
Defendant's petition for review of a final order of removal following the Board of Immigration Appeals' determination that his conviction for attempted kidnapping under California Penal Code section 207(a) is an aggravated felony because it is categorically a crime of violence, is denied because an ordinary case of kidnapping under the statute presents of substantial risk of force, and thus section 207(a) defines a crime of violence. Read more...
October 01, 2012 - October 05, 2012
United States First Circuit, 10/03/2012
Dong v. Holder, No. 12-1091
A petition for review of a final order of the Board of Immigration Appeals denying petitioner asylum and an order of removal to China is denied where: 1) the agency did not err in refusing to grant the petitioner per se refugee status on the basis that the Chinese government had compelled his wife to undergo a forced abortion; and 2) the evidence in the record did not compel the agency to find that the petitioner had carried his burden of proving an objectively reasonable and well-founded fear of religious persecution. Read more... United States Ninth Circuit, 10/03/2012
Ridore v. Holder, No. 08-71379
A petition for review of a decision of the Board of Immigration Appeals (BIA) ordering petitioner removed to his native Haiti is: 1) granted with respect to to the Convention Against Torture protection claim and remanded where the BIA committed legal error by reviewing the IJ's findings under a de novo rather than clear error standard; but 2) denied with respect to cancellation of removal where the BIA applied the correct standard of review. Read more... United States Ninth Circuit, 10/05/2012
Ruiz-Diaz v. US, No. 11-35580
In a suit brought by non-citizen religious workers and their employers challenging a Justice Department regulation governing the process by which religious workers can apply for adjustment of status pursuant to 18 U.S.C. section 1255(a), judgment of the district court is affirmed where: 1) the regulation does not impose a substantial burden on plaintiffs' exercise of religion and therefore does not violate the Religious Freedom Restoration Act; 2) the regulation does not violate Equal Protection principles because it does not target any religious group, but rather, the regulation affects all members of the fourth-preference visa category who have been admitted on employment-based visas; and 3) there is no violation of plaintiffs' due process rights because the regulation does not bar religious workers from applying for adjustment of status. Read more...
September 24, 2012 - September 28, 2012
United States First Circuit, 09/25/2012
Cabas v. Holder, No. 11-2174
A Venezuelan citizen's petition for review of a final decision of the BIA, upholding an IJ's determination that the asylum application was time barred, and the IJ's denial of his application for withholding of removal on the merits is: 1) dismissed as to the asylum claim for lack of jurisdiction, because petitioner is plainly challenging the BIA's factfinding about changed circumstances vel non; and 2) denied as to the claim for withholding of removal because substantial evidence support the BIA's determination that petitioner failed to establish his entitlement to withholding of removal. Read more...
United States Second Circuit, 09/25/2012
Gjura v. Holder, No. 11-566
An Albanian citizen's petition for review of Board of Immigrant Appeals (BIA) order reversing the decision of Immigration Judge (IJ) grant of her application for asylum, withholding of removal, and relief under the Convention Against Torture, is denied where young, unmarried Albanian women do not constitute a social group for asylum purposes. Read more...
United States Ninth Circuit, 09/26/2012
Osorio v. Mayorkas, No. 09-56786
In plaintiffs' appeal of the United States Citizen and Immigration Services' (USCIS) denial of their requests for priority date retention under the Child Status Protection Act (CSPA), the district court's grant of summary judgment in favor of the government is reversed where the plain language of the CSPA unambiguously grant automatic conversion and priority date retention to aged-out derivative beneficiaries. Read more...
September 17, 2012 - September 21, 2012
United States Ninth Circuit, 09/17/2012
Young v. Holder, No. 07-70949
A petition for review of the BIA's decision affirming an order of removability in concluding that petitioner is ineligible for cancellation of removal because of a prior conviction for an aggravated felony, is denied in part and dismissed in part where: 1) petitioner failed to exhaust the claims that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S. C section 1227(a)(2)(B)(i); 2) the evidentiary limitations articulated in Shepard v. US apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. section 1229b; 3) under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant's conviction; and 4) an alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. Read more...
United States Ninth Circuit, 09/18/2012
Montes-Lopez v. Holder, No. 08-70229
An El Salvadorian citizen's petition for review of or an order of removal is granted where the petitioner's right to be presented in the proceedings by retained counsel, established under 8 U.S.C. section 1362, was violated when his attorney failed to appear at a scheduled merits hearing before an Immigration Judge because his license to practice law had been temporarily suspended. Further, a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. Read more...
September 10, 2012 - September 14, 2012
United States Third Circuit, 09/10/2012
Roye v. Attorney General of the United States, No. 11-1849
A Jamaican citizen's petition for review of a final order of the Board of Immigration Appeals (BIA) ordering him removed based on his state law convictions for aggravated assault and endangering the welfare of a child, is granted, and the BIA's order of removal vacated and remanded where the BIA answered the wrong question and applied incorrect legal standard in reviewing the IJ's finding that: 1) petitioner will be physically and sexually assaulted in a Jamaican prison by prisoners and prison guards who specifically intend to cause him pain or suffering; and 2) it is more likely than not that Jamaican public officials will consent to or acquiesce in assaults of petitioner. Read more...
United States Third Circuit, 09/12/2012
Green v. Attorney General of the United States, No. 11-3732
A Jamaican citizen's petition for review of the BIA's denial of his application for deferred removal under the United Nations Convention Against Torture, is denied where: 1) petitioner's argument that the IJ erred in determining that the Jamaican government would not consent to or acquiesce in a drug gang's actions cannot be considered for lack of jurisdiction; 2) defendant's argument that the IJ and BIA failed misapplied Kaplun is without merit; and 3) the IJ and BIA did not commit legal error by ignoring relevant evidence in the record regarding petitioner's position that the Jamaican government turns a blind eye to the criminal acts of the drug gang. Read more...
United States Third Circuit, 09/13/2012
Oliva-Ramos v. Attorney General of the United States, No. 10-3849
The Board of Immigration Appeals' (BIA) order affirming an Immigration Judge's order removing petitioner to Guatemala, and the BIA's denial of a motion to supplement the record and to reopen removal proceeding before an IJ is affirmed in part, vacated in part and remanded where: 1) the BIA abused its discretion in denying petitioner's motion to reopen because the IJ's refusal to grant the related subpoenas is contrary to 8 C.F.R. section 1003.35(b); 2) the BIA erred in not allowing petitioner an opportunity to support his Fourth Amendment claim; 3) the BIA failed to apply the proper Fourth Amendment inquiry into petitioner's claim of regulatory violations for consent to enter, seizure, warrantless arrest, and coerced statements; and 4) the BIA properly rejected petitioner's claim that the ICE agents violated 8 C.F.R. section 292.5(b), since he was notified of his right to counsel before he was placed in formal proceedings. Read more...
United States Third Circuit, 09/14/2012
Hanif v. Attorney General of the United States, No. 11-2643
A Guyanese citizen's petition for review of the BIA's determination finding him statutorily ineligible for relief from removal under 8 U.S.C. section 1182(h), is granted and the BIA's decision vacated, as under the first step of the Chevron test, the language of section 1182(h) is clear and unambiguous on its face, in that it requires both an "admission" and that the "admission" have been made by "an alien lawfully admitted for permanent residence." Here, petitioner has never been "admitted" to the United States "as an alien lawfully admitted for permanent residence," but acquired his LPR status while in the United States, never having been admitted for that purpose. Read more...
United States Ninth Circuit, 09/11/2012
Eche v. Holder, No. 10-17652
In petitioners' applications in the Commonwealth of the Northern Mariana Islands (CNMI), a territory of the United States, for naturalization as United States citizens, the district court's grant of summary judgment in favor of the government's rejection of the applications is affirmed, as the Consolidated Natural Resources Act of 2008 (CNRA) did not permit the petitioners to count toward the requirements, including that they have resided in the United States continuously for five years, for naturalization the time they resided in the CNMI before CNRA's effective date. Read more...
United States Ninth Circuit, 09/14/2012
US v. Carmen, No. 11-50094
Defendant's conviction for bringing in illegal aliens without presentation in violation of 8 U.S.C. section 1324(a)(2)(B)(iii), is reversed and remanded where: 1) the government undermined defendant's opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence; 2) the defendant has satisfied the two-part test used to evaluate whether the government's deportation of an alien witness amounts to a constitutional violation, as he has shown that the government acted in bad faith and that the deportation of the witness prejudiced his case; and 3) because a jury could have been swayed by the deported alien's eyewitness account, the constitutional errors were not harmless beyond a reasonable doubt. Read more...
United States Ninth Circuit, 09/14/2012
Gonzaga-Ortega v. Holder, No. 07-74361
A petition for review of the BIA's dismissal of a Mexican citizen's appeal of an order of removal, claiming that he was entitled to counsel during secondary inspection at the port of entry under 8 C.F.R. section 292.5(b), is denied where: 1) section 292.5(b) did not entitle petitioner to counsel, because the border officers were permitted to treat petitioner as an applicant for admission based on their conclusion that he had engaged in illegal activity, without waiting for a final administrative determination; and 2) petitioner's claims that his statements admitting the attempt to smuggle his niece across the border were coerced and used against him in violation of due process is rejected. Read more...
September 03, 2012 - September 07, 2012
United States First Circuit, 09/04/2012
Rebenko v. Holder, No. 11-2171
An Ukranian citizen's petition for review of a BIA's decision affirming the denial of an application for asylum, withholding of removal, and withholding under the Convention Against Torture, is denied, as substantial evidence supports the BIA's determination that petitioner failed to show past persecution, and remaining claims of error are without merit. Read more...
United States Second Circuit, 09/07/2012
Yu v. Holder, No. 11-2546
A Chinese citizen's petition for review of a BIA's decision affirming an IJ's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture, is granted where: 1) the BIA failed to consider petitioner's opposition to corruption in its full factual and political context and incorrectly concluded that opposition to corruption at one workplace - without evidence that the corruption extended to other workplaces - cannot serve as the basis for asylum; and 2) the BIA erroneously failed to consider petitioner's claim of imputed political opinion. Read more...
United States Third Circuit, 09/06/2012
Martinez v. Attorney General of the United States, No. 11-2258
A Nicaraguan citizen's petition for review of a final order of removal is denied where: 1) the Immigration and Nationality Act section 212(h)'s statutory language, construction, and evolution make clear that "admission" and "admitted" refer to inspection and authorization by any immigration officer at the port of entry; and 2) the section 212(h) waiver bar applies because petitioner was admitted following such procedures after failing to disclose his arrest and subsequent conviction for an aggravated felony. Read more...
United States Ninth Circuit, 09/04/2012
Sanchez-Avalos v. Holder, No. 07-74437
A Mexican citizen's petition for review of a BIA's decision that he is not eligible for waiver of inadmissability because he was convicted of an aggravated felony is granted where: 1) the crime of sexual battery under California law is categorically broader than the federal generic crime of "sexual abuse of a minor" because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor; and 2) none of the evidence permitted to be considered under the modified categorical approach establishes that petitioner's victim was a minor. Read more...
United States Ninth Circuit, 09/06/2012
Cheema v. Holder, No. 08-72451
An Indian citizen's petition for review, of an IJ's denial of all of the claims for relief in finding that petitioner had filed a frivolous asylum application for the purpose of obtaining an immigration benefit in violation of 8 U.S.C. section 1158(d)(6), and was therefore permanently ineligible for relief under the INA, is denied, as a matter of law, the written advisals on the I-589 asylum application form provide applicants with adequate notice of the consequences of filing a frivolous asylum application and of the privilege of being represented by counsel, as required by section 1158(d)(4)(A). Read more...
August 27, 2012 - August 31, 2012
United States Second Circuit, 08/28/2012
Gjerjaj v. Holder, No. 11-445
A petition for review, by a native and citizen of Albania, of a Order of Removal issued by U.S. Immigration and Customs Enforcement (ICE), is denied as petitioner knowingly and voluntarily waived her right to contest her removal on any basis other than asylum, and having participated in her asylum-only proceeding, she may not contest removal on the ground that she filed an adjustment of status application after she overstayed the time she was authorized to be in this country. Further, a Visa Waiver Program (VWP) participant may not contest his or her removal on the basis of an adjustment of status application filed after the 90-day period during which a VWP participant may stay in the country. Read more...
United States Third Circuit, 08/31/2012
Duran-Richardo v. Attorney General of the United States, No. 10-2114
A petition for review of a final order of removal following a controlled substance violation conviction, by a native of the Dominican Republic, claiming that he was not removable because his 1997 naturalization application had been finalized is denied where: 1) because petitioner never took the Oath, he never became a citizen and remained subject to removal; and 2) although the government failed to act on petitioner's application within 120 days of his naturalization examination, he failed to apply to the district court for a hearing on the matter, and having failed to invoke the very statutory and regulatory scheme that Congress enacted to address this type of delay, petitioner can not now assert that he was deprived due process of law. Read more...
United States Ninth Circuit, 08/27/2012
Ortiz-Alfaro v. Holder, No. 10-73057
A petition by a Mexican national, seeking review of 8 C.F.R. section 208.31, claiming that the regulation is unlawful because it precludes him from applying for asylum, is dismissed for lack of jurisdiction, as where an alien pursues reasonable fear and withholding of removal proceedings following the reinstatement of a prior removal order, the reinstated removal order does not become final until the reasonable fear of persecution and withholding of removal proceedings are complete. Here, the Department of Homeland Security has not completed all proceedings that will determine whether or not petitioner will be removed. Read more...
United States Ninth Circuit, 08/30/2012
US v. Vasquez-Cruz, No. 11-10467
In a conviction of defendant for illegal reentry in violation of 8 U.S.C. section 1326(a), district court's imposition of a prison term of 24 months is affirmed, as because the record makes clear that the sentencing judge considered the relevant evidence and argument, defendant's claims of procedural error fail, and the district court's within-Guidelines sentence was reasonable in light of the totality of circumstances, taking into account defendant's four prior deportations and five other criminal convictions as well as the evidence of his cultural assimilation and mental capacity. Read more...
United States Ninth Circuit, 08/31/2012
Corpuz v. Holder, No. 09-70181
A Philippine citizen's petition for review of a Board of Immigration Appeals (Board) decision declaring him ineligible for relief under former section 212(c) of the Immigration and Nationality Act (INA) on the ground that he had served a "term of imprisonment" of over five years for conviction of an aggravated felony, is granted, as it cannot be confidently approximated how much time petitioner would have actually served in prison had he never spent time in pre-trial psychiatric confinement. Thus, the matter is remanded for a determination of the amount of constructive good time credit to which petitioner is entitled for the period of his civil confinement. Read more...
August 20, 2012 - August 24, 2012
United States Third Circuit, 08/21/2012
Desai v. Attorney General of the US, No. 11-3229
A petition for review of a BIA's denial of a motion to reopen sua sponte is denied, as because the BIA considers motions sua sponte pursuant to a grant of authority from the Attorney General, there is no statutory basis for a motion to reopen in the sua sponte context, and the concern driving the holding in Prestol Espinal -- that the post-departure bar undermines an alien's statutory right to file one motion to reopen --- does not extend to cases like this one, where neither that statutory right nor congressional intent is implicated. Read more...
United States Ninth Circuit, 08/23/2012
Cabantac v. Holder, No. 09-71336
A petition for review of an order by the Board of Immigration Appeals (BIA) affirming an order of removal by the Immigration Judge (IJ) is denied where: 1) petitioner's appeal from the BIA's refusal to reopen his case sua sponte is dismissed for lack of jurisdiction to review such a decision, which is a matter committed to agency discretion; and 2) the BIA considered the record as a whole in concluding that petitioner is removable for having been convicted of possession of a controlled substance, and the record is clear that he pleaded guilty to possession of methamphetamine, a controlled substance offense that supports the order of removal. Read more...
California Court of Appeal, 08/21/2012
People v. Rodriguez, No. B239342
Following a conviction on drug-related charges, defendant's appeal from post-judgment order denying his nonstatutory motion to vacate the judgment claiming that his trial counsel was ineffective for misadvising him about the immigration consequences of his plea of nolo contendere, is dismissed, as although defendant's appeal is technically an "order made after judgment" within the meaning of Penal Code section 1237(b), it challenges the validity of his nolo contendere plea, and as such, defendant was required to obtain a certificate of probable cause in order to appeal from the denial of his motion to vacate the judgment. Read more...
August 13, 2012 - August 17, 2012
United States First Circuit, 08/17/2012
Beltrand-Alas v. Holder, No. 11-1419
A petition for review of BIA's decision upholding an IJ's denial of petitioner's application for withholding of removal, is denied, as substantial evidence supports the IJ's determination that petitioner failed to show that it is more likely than not that, if removed to El Salvador, he would suffer persecution on account of his membership in a particular social group or on account of political opinion. Read more...
United States Second Circuit, 08/15/2012
Adams v. Holder, No. 10-2923
A Jamaican citizen's petition for review of a BIA's removal order is denied where: 1) adjustment of status as under in 8 U.S.C. section 1256(a) describes the process whereby the Attorney General grants aliens physically present in the U.S. lawful permanent resident status, it does not reference consular processing by which the Department of State grants immigrant visas to aliens outside the U.S., allowing those aliens to enter the U.S. as lawful permanent residents; 2) the five-year limitations period that section 1256(a) places on the Attorney General's authority to rescind grants of adjustment of status applies only to rescission proceedings that restore the alien to his immigration status before adjustment, and not to proceedings that seek the alien's removal; and 3) because petitioner fraudulently secured permanent resident status through processing rather than adjustment of status and because he challenges an order of removal rather than rescission, the limitations period of section 1256(a) does not apply. Read more...
United States Third Circuit, 08/14/2012
Khan v. Attorney General of the US, No. 11-1789
A petition for review, brought by a Pakistani father and son, of an order by the Board of Immigration Appeals (BIA) denying a motion for an emergency stay or removal and motion to reopen their joint application for asylum, withholding of removal, or protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is denied where: 1) the Attorney General's motion to dismiss for lack of jurisdiction is denied as the premature petition for review has ripened; and 2) the BIA did not abuse its discretion in finding that the petitioners' motion to reopen was untimely and that the changed country conditions exception in 8 U.S.C. section 1229a(C)(ii) was inapplicable. Read more...
United States Fourth Circuit, 08/13/2012
Barahona v. Holder, No. 11-2046
A petition for review of the final order of the Board of Immigration Appeals (BIA), affirming petitioner's ineligibility for a "special rule" cancellation of removal under section 203 of the Nicaraguan and Central American Relief Act of 1997, is denied, as petitioner's support of an anti-government Salvadoran guerrillas of the so-called "FMLN" guerrillas falls under the Material Support Bar, even though that support was rendered involuntary and provided to the FMLN guerrillas under duress. Read more...
United States Ninth Circuit, 08/15/2012
Aguilar-Turcios v. Holder, No. 06-73451
A petition for review of the BIA's conclusion that defendant's conviction under Article 92 of the Uniform Code of Military Justice (UCMJ), for possession of child pornography on government issued computer, qualifies as an "aggravated felony" under the modified categorical approach, is granted and remanded, as defendant's Article 92 conviction is not an aggravated felony because the facts on which his conviction "necessarily rested" do not satisfy the elements of either 18 U.S.C. section 2252(a)(2) or (a)(4). Read more...
August 06, 2012 - August 10, 2012
United States Second Circuit, 08/06/2012
Vartelas v. Holder, No. 09-0649
On remand from the Supreme Court's decision in Vartelas v. Holder, 132 S. Ct. 1479 (2012), which implicitly required the conclusion that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) change should not be applied to petitioner retroactively, the case is remanded to the BIA to consider whether he was prejudiced by his attorney's failure to argue the issue of retroactivity. Read more...
United States Second Circuit, 08/09/2012
Liranzo v. US, No. 11-61
In plaintiff's suit against the government under the Federal Tort Claims Act (FTCA), claiming, inter alia, that federal officials falsely arrested and imprisoned him as a removable resident alien following his release from incarceration for a felony conviction, district court's dismissal of the complaint for lack of subject matter jurisdiction is reversed, as the district court erred in concluding that there was no private analogue to the immigration detention suffered by the plaintiff as required to find a waiver of the United States' sovereign immunity under the Act. Read more...
United States Fourth Circuit, 08/10/2012
US v. Gomez, No. 12-4089
In a conviction for unlawful reentry of a deported alien after an aggravated felony conviction, district court's application of the modified categorical approach in determining that defendant's child abuse conviction constituted a crime of violence is vacated and remanded, as the modified categorical approach applies only to those statutory offenses in which the statute itself is divisible. Here, the district court examined the trial record to decide if defendant acted violently in abusing her son, rather than examining the record to determine whether she committed a statutory violation constituting a crime of violence. Read more...
United States Ninth Circuit, 08/10/2012
Mojica v. Holder, No. 07-73098
A petition for review of the Board of Immigration Appeals' decision upholding the denial of cancellation of removal is denied, as in light of the Supreme Court's holding in Holder v. Martinez Gutierrez, petitioner's imputation argument making use of her father's lawful permanent residence is rejected. Read more...
July 30, 2012 - August 03, 2012
United States Third Circuit, 08/01/2012
Mendoza v. US, No. 11-3958
District court's denial of defendant's petition for a writ of error coram nobis, seeking to vacate his guilty plea due to his counsel's failure to inform him that his aggravated felony conviction would lead to deportation, is affirmed, as although the defendant's counsel's deficient performance may have precluded him from seeking relief at the time of the plea, defendant cannot show any sound reasons for his lengthy delay in pursuing relief since that time. Read more...
United States Ninth Circuit, 08/01/2012
Nijar v. Holder, No. 07-74054
A petition for review, by natives and citizens of India, of a removal order is granted, as the Department of Homeland Security does not have the authority to terminate an alien's asylum status. Read more...
July 23, 2012 - July 27, 2012
United States First Circuit, 07/27/2012
Gomez-Medina v. Holder, No. 10-2246
A petition for review, by a Colombian national and citizen, of a final order of removal by the Board of Immigration Appeals (BIA) is denied where: 1) the IJ did not abuse its discretion in denying petitioner's emergency motion to continue as the record shows that for nearly two years, petitioner failed to abide by the IJ's directives without furnishing a reasonable justification; 2) the IJ did not abuse its discretion in dismissing petitioner's claims for relief as abandoned as she failed to submit any of the court-ordered documents necessary to resolve those claims nor filed for asylum within the one-year time limit; and 3) petitioner was not denied due process rights as she was given the opportunity for a full hearing under the governing regulations. Read more...
July 16, 2012 - July 20, 2012
United States Third Circuit, 07/18/2012
Borrome v. Attorney General of the United States, No. 11-1975
Defendant's petition for review of a removal order of the IJ to the Dominican Republic following his conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs in violation of 21 U.S.C. sections 331(t) and 353(e), is granted, reversed and remanded where: 1) a conviction for violating the Federal Food, Drug, and Cosmetic Act's (FDCA) wholesale distribution provisions is not an "aggravated felony" including a drug trafficking crime under 8 U.S.C. sections 1101(a)(43)(B) and 1227(a)(2)(A)(iii); and 2) the FDCA's wholesale distribution provisions are not laws relating to a controlled substance under 8 U.S.C. section 1227(a)(2)(B)(i). Read more...
United States Fourth Circuit, 07/17/2012
US v. Bonilla, No. 11-4765
In a conviction of defendant for illegal reentry, district court's judgement of an enhanced sentence based on defendant's prior conviction for burglary is affirmed as, defendant's conviction under Texas Penal Code section 30.02(a)(3) substantially corresponds to the elements of generic burglary as outlined in Taylor v. US and thus qualifies as a "crime of violence" for sentencing purposes. Further, as to the element of intent to commit a felony, theft, or assault at the moment of entry, the Texas law satisfies Taylor's description of generic burglary, notwithstanding that defendant may not have formulated his intent prior to the unlawful entry. Read more...
July 09, 2012 - July 13, 2012
United States Second Circuit, 07/10/2012
Paidi v. Mills, No. 10-4397
In a case involving a state regulatory scheme that seeks to prohibit some legally admitted aliens from working, brought by a group of nonimmigrant aliens who have been authorized by the federal government to reside and work as pharmacists in the US, the District Court's summary judgment order is affirmed, which enjoins defendants from applying or enforcing against plaintiffs New York Education Law section 6805(1)(6), the requirement that only U.S. Citizens or Legal Permanent Residents (LPR) are eligible to obtain a pharmacist's license in New York. Read more...
United States Third Circuit, 07/10/2012
Nelson v. Attorney General of the US, No. 11-1654
Petition for review of the decision of the Board of Immigration Appeals, which concluded that Jamaican petitioner had not accumulated the seven years of continuous residence in the US necessary to be eligible for cancellation of removal under 8 U.S.C. section 1229b, is denied where: 1) the BIA did not act unreasonably in concluding that Okeke did not control the outcome in this case; and 2) the BIA's conclusion that petitioner's reentry did not restart the clock is reasonable. Read more...
United States Ninth Circuit, 07/09/2012
Florez-Lopez v. Holder, No. 08-75140
In a petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal from an immigration judge’s decision finding that his conviction for resisting an executive officer in violation of section 69 of the California Penal Code is a categorical crime of violence, rendering him removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. section 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, the petition is granted where: 1) there is reason to believe that the record of petitioner's conviction that is now before the court is incomplete; and 2) considering the abrogation of Navarro-Lopez and the elimination of the missing element rule to be significant intervening changes in the controlling law, weigh in favor of remanding the matter to the BIA. Read more...
July 02, 2012 - July 06, 2012
United States First Circuit, 07/06/2012
Lobo v. Holder, No. 11-1640
Petition for review of a final order of removal issued by the Board of Immigration Appeals (BIA) denying applications for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture (CAT), is denied where: 1) petitioner cannot independently establish that he has a well-founded fear of future persecution; and 2) the withholding of removal claim thus falls by the wayside because the court upholds the agency's denial of petitioner's asylum claim. Read more...
United States Ninth Circuit, 07/03/2012
Annachamy v. Holder, No. 07-70336
Petitions for review of a decision of the Board of Immigration Appeals (BIA) denying asylum and withholding of removal because petitioner provided material support to a terrorist organization, in violation of 8 U.S.C. section 1182(a)(3)(B)(iv)(VI), is affirmed where the material support bar does not include an implied exception for individuals who assist organizations engaged in legitimate political violence or who provide support under duress. Read more...
California Court of Appeal, 07/02/2012
B.F. v. Super. Ct., No. B238857
In a guardianship matter, where three minors seek special immigrant juvenile status (SIJ status) pursuant to title 8 U.S.C. section 1101 and 8 C.F.R part 204.11 (2012), the trial court's order denying their request for findings, including that they are dependent upon the court and have been legally placed in the custody of an individual appointed by a juvenile court, petition for review is granted because: 1) the federal statutes and regulations and the state statutes authorize the superior court sitting as a probate court to make such findings; and 2) the superior court rules recognize its authority to do so. Read more...
June 25, 2012 - June 29, 2012
United States Supreme Court, 06/25/2012
Arizona v. US, No. 11-182
In a case assessing the constitutionality of an Arizona statute known as S.B. 1070, which was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the state, the Ninth Circuit's ruling affirming the district court's issuance of a preliminary injunction preventing four of its provisions from taking effect is: 1) affirmed in part, where Sections 3 (misdemeanor for failure to comply with federal alien-registration), 5(C) (misdemeanor for an unauthorized alien to work), and 6 (authorizes officers to arrest without a warrant a person the officer has probable cause to believe has committed any public offense that makes the person removable from the US) of S.B. 1070 are preempted by federal law; but 2) reversed in part, where it was improper to enjoin section 2(B) (requiring officers conducting a stop, detention, or arrest to make efforts to verify the person's immigration status with the Federal Government) before the state courts had an opportunity to construe it and without some showing that section 2(B)'s enforcement in fact conflicts with federal immigration law and its objectives. Read more...
United States First Circuit, 06/25/2012
Viveiros v. Holder, No. 11-1535
In a petition by a Portuguese national seeking judicial review of a final order of the Board of Immigration Appeals (BIA), denying his motion to terminate removal proceedings and mandating his deportation, the denial of petition is affirmed where his shoplifting conviction remains a "formal judgment of guilt," 8 U.S.C. section 1101(a)(48)(A), and endures for immigration law purposes. Read more...
United States First Circuit, 06/25/2012
Aponte v. Holder, No. 11-1444
Petition for review by a Dominican Republic native of a decision of the Board of Immigration Appeals (BIA), denying her request for a remand and dismissing her appeal from a final order of removal, is: 1) denied in part; but 2) granted in part as to a) BIA's determination that petitioner did not demonstrate that she is prima facie eligible for asylum, withholding of removal, and CAT protection, and b) BIA's finding that Aponte has not established ineffective assistance of counsel. Read more...
United States First Circuit, 06/27/2012
Ayala v. Holder, No. 11-1737
Petition for review of a final order of removal is denied where petitioner is not eligible for asylum because she has proven neither past persecution nor any likelihood of future persecution on account of a protected ground. Read more...
United States Ninth Circuit, 06/27/2012
Rodriguez v. Holder, No. 08-71481
Petition for review of a BIA decision, reversing the IJ’s determination that petitioner was admissible and concluded instead that petitioner was inadmissible under 8 U.S.C. section 1182(a)(2)(C), is granted where the BIA committed legal error by making its own factual determination and engaging in de novo review of the IJ's factual findings. Read more...
United States Ninth Circuit, 06/28/2012
Nian v. Holder, No. 07-73643
Petitions for review of the Board of Immigration Appeals' (BIA) decision denying an alien crew member petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) is denied where the denial of an alien crew member's petition for asylum and other relief in "asylum only" proceedings is the "functional equivalent" of a final order of removal. Such an order constitutes a "final order of removal" within the meaning of 8 U.S.C. section 1252(a)(1). Read more...
United States Ninth Circuit, 06/29/2012
Rivera-Peraza v. Holder, No. 08-70455
Petition for review of the BIA's decision affirming the IJ's denial of application for waiver of inadmissibility, is denied where the BIA properly concluding that petitioner failed to satisfy the hardship standard of 8 C.F.R. section 1212.7(d) because his prior conviction for armed robbery was a "violent or dangerous" crime. Read more...
United States Ninth Circuit, 06/29/2012
Sawyers v. Holder, No. 08-70181
Petition for review from the Board of Immigration Appeals (BIA) denial of cancellation of removal under 8 U.S.C. section 1229b(a), is denied where: 1) because Cuevas-Gaspar and Mercado-Zazueta are no longer valid precedent on the issue of imputation under 8 U.S.C. section 1229b, petitioner’s imputation argument concerning his mother’s residence fails; and 2) the BIA correctly determined that petitioner's 2002 conviction terminated his continuous residence. Read more...
June 18, 2012 - June 22, 2012
United States Second Circuit, 06/18/2012
Caraballo-Tavera v. Holder, No. 11-2517
Decision of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied petitioner's application for adjustment of status and ordered him removed, is affirmed, as the petitioner is ineligible to adjust his status to that of a lawful permanent resident on any basis other than marriage to his K-1 visa sponsor. Read more...
United States Ninth Circuit, 06/19/2012
Vilchez v. Holder, No. 09-71070
In a petition for review of a Board of Immigrant Appeals (BIA) decision affirming the Immigration Judge's (IJ) denial of application for cancellation of removal, the petition is denied and BIA decision reaffirmed where the videoconference hearing held by the IJ did not violate petitioner's right to due process. Read more...
United States Ninth Circuit, 06/21/2012
US v. Ramos-Medina, No. 09-50408
Conviction and sentence for illegally re-entering the United States after previously having been deported are affirmed where: 1) defendant's prior conviction for burglary under California Penal Code section 459 qualified as a crime of violence under the immigration laws and for sentencing purposes; and 2) the district court did not err in denying defendant a two-level downward adjustment for acceptance of responsibility under Sentencing Guidelines section 3E1.1(a). Read more...
May 28, 2012 - June 01, 2012
United States Ninth Circuit, 05/30/2012
US v. Leal-Vega, No. 11-50065
In a prosecution for illegal reentry following deportation, the case is remanded for resentencing, where: 1) a conviction under California Health and Safety Code section 11351 does not qualify categorically as a "drug trafficking offense" for the purposes of U.S. Sentencing Guidelines section 2L1.2; but 2) the defendant's prior section 11351 conviction qualified as a "drug trafficking offense" using the modified categorical approach; and 3) the sentencing error was not harmless. Read more...
United States Ninth Circuit, 05/31/2012
US v. Perea-Rey, No. 10-50632
A conviction for harboring undocumented aliens is reversed, where the district court should have granted the defendant's motion to suppress evidence of aliens found at his home as the fruit of a warrantless search and seizure, because the agents physically occupied the curtilage of the defendant's home without obtaining a warrant, and no exceptions to the warrant requirement otherwise justified the search or seizure. Read more...
United States Ninth Circuit, 05/31/2012
US v. Gomez-Hernandez, No. 10-10441
A sentence upon conviction for illegal reentry after deportation is affirmed, where the district court's imposition of a sixteen-level enhancement under U.S. Sentencing Guidelines section 2L1.2(b)(1)(A)(ii) was proper, since the defendant's prior conviction for attempted aggravated assault qualified as a crime of violence. Read more...
May 21, 2012 - May 25, 2012
United States Supreme Court, 05/21/2012
Holder v. Martinez Gutierrez, No. 10-1542
A Board of Immigration Appeals (BIA) denial of cancellation of removal is upheld, where: 1) the aliens lacked the required years of continuous presence and lawful permanent resident status; and 2) the BIA's rejection of imputation of their parents' years of continuous presence and lawful permanent resident status was based on a permissible construction of the cancellation of removal statute, 8 USC section 1229b(a). Read more...
United States First Circuit, 05/23/2012
Gilca v. Holder, No. 11-1711
A petition for review of a BIA order denying relief from removal is denied, where: 1) the BIA supportably concluded that the petitioner neither experienced past persecution nor entertained a well-founded fear of future persecution, so his asylum claim failed; 2) the BIA did not err in rejecting the petitioner's counterpart claim for withholding of removal; and 3) the petitioner's claim for Convention Against Torture protection was waived for lack of development. Read more...
United States Fourth Circuit, 05/25/2012
Hosh v. Lucero, No. 11-1763
In a case in which a lawful permanent resident who was subject to removal sought and was denied a bond hearing, the district court's grant of a petition for habeas corpus is reversed, where the BIA's determination that removable criminal aliens are subject to mandatory detention, despite not having been detained immediately upon release from state custody, is based on a permissible construction of 8 USC section 1226(c). Read more...
May 14, 2012 - May 18, 2012
California Court of Appeal, 05/16/2012
People v. Shokur, No. G045855
In a criminal case in which an Afghani national who was in removal proceedings filed a "nonstatutory" motion to raise a postjudgment claim of ineffective assistance of counsel on the basis of counsel's failure to advise him of the immigration consequences of his guilty plea, the superior court's denial of the motion is affirmed, where: 1) the court was without jurisdiction to hear the motion, as case law did not require a nonstatutory motion safety net to provide a remedy when other remedies through which relief might have been obtained were no longer available; and 2) in any event, the defendant failed to make a prima facie showing that he would have been entitled to relief as a result of prior counsel's conduct. Read more...
May 07, 2012 - May 11, 2012
United States First Circuit, 05/10/2012
Da Silva Neto v. Holder, No. 11-1847
In removal proceedings against a Brazilian national who admitted to sufficient facts to support a finding of malicious destruction of property under Mass. Gen. Laws ch. 266, section 127, a petition for review of the BIA's denial of cancellation of removal is denied, where the BIA's conclusion that the petitioner committed a crime involving moral turpitude, and thus could not qualify as a person of good moral character, was neither arbitrary nor contrary to law. Read more...
April 30, 2012 - May 04, 2012
United States First Circuit, 05/02/2012
Cheung v. Holder, No. 11-1889
In a case in which a native and citizen of Hong Kong was denied cancellation of removal on the ground that he lacked ten years' continuous physical presence in the United States, a petition for review is denied, where a notice to appear (NTA) was effective to stop accrual of time, despite the fact that the charge alleged, fraud, was subsequently withdrawn and a new charge, overstaying, was added with the filing of Form I-261 approximately six months later, since the NTA itself was never withdrawn. Read more...
United States Second Circuit, 05/01/2012
Akinsade v. Holder, No. 10-0662
In removal proceedings against a lawful permanent resident who had been convicted of embezzlement by a bank employee under 18 USC section 656, a petition for review of a BIA finding of removability is granted, where none of the facts to which the petitioner actually and necessarily pleaded to establish the elements of his embezzlement offense revealed whether that offense was committed with a specific intent to defraud, so it was error for the BIA to infer that the conviction was for an offense involving fraud or deceit and thus an aggravated felony subjecting the petitioner to removal. Read more...
April 23, 2012 - April 27, 2012
United States First Circuit, 04/25/2012
Soeung v. Holder, No. 10-1545
In a case in which a former Cambodian immigration official sought asylum, withholding of removal, and protection under the Convention Against Torture as a result of past harassment and a fear of further reprisal for his antagonism to the ruling Cambodian People's Party and the Cambodian government, a petition for review of a BIA order denying relief from removal on those grounds is granted, where the BIA erred in dismissing the petitioner's appeal based on his failure to corroborate his dealings with a U.S. government employee, since there was no finding on the adequacy of his explanation for failing to provide the required corroboration. Read more...
United States Second Circuit, 04/23/2012
Morris v. Holder, No. 10-4687
In removal proceedings against a national of Saint Vincent and the Grenadines who had been convicted of second-degree assault in violation of New York Penal Law section 120.05(2), a petition for review of a BIA order denying cancellation of removal is dismissed, where: 1) the BIA did not err in determining that the conviction was for a "crime of violence" under 18 USC section 16(b) and therefore an aggravated felony for purposes of INA section 101(a)(43)(F), rendering the petitioner ineligible for cancellation of removal; and 2) retroactive application of IIRIRA's amendments to the INA's definition of aggravated felony in his deportation proceedings did not violate the Ex Post Facto Clause. Read more...
United States Second Circuit, 04/26/2012
US v. Ramos, No. 10-3982
In a prosecution for illegally transporting aliens within the United States, assisting an inadmissible alien in entering the US, and illegally being present in the US after having previously been removed, the district court's sentence is affirmed, where: 1) the district court did not err by imposing a two-point increase pursuant to section 4A1.1(d) of the federal sentencing guidelines in calculating the defendant's criminal history, as section 4A1.1(d) does not require a defendant to have knowledge that he or she is under a criminal justice sentence at the time he or she commits a new offense in order for its two-level increase to apply; 2) the sentence was otherwise substantively reasonable. Read more...
United States Ninth Circuit, 04/23/2012
Robles-Urrea v. Holder, No. 06-71935
In removal proceedings against a lawful permanent resident who had been convicted of misprision of a felony in violation of 18 USC section 4, a petition for review of the BIA's precedent decision finding removability is granted and the case remanded, where the BIA relied on a flawed rationale in concluding that misprision of a felony is categorically a crime involving moral turpitude. Read more...
United States Ninth Circuit, 04/25/2012
Rivas v. Napolitano, No. 09-56843
In a challenge to a consulate's denial of an immigrant visa petition, the district court's order granting the defendants' motion to dismiss for lack of subject matter jurisdiction is: 1) affirmed in part, where the district court's denial of the applicant's motion for an order compelling the consulate to act upon his I-601 waiver request was proper under the doctrine of consular nonreviewability, and no exceptions applied; and 2) vacated in part and remanded, where the record on appeal was insufficient to determine whether the consulate violated its ministerial duty to reconsider, as it was not clear whether the evidence submitted by the applicant overcame the ground of ineligibility on which his refusal was based. Read more...
April 16, 2012 - April 20, 2012
United States Second Circuit, 04/19/2012
Higgins v. Holder, No. 11-924
In removal proceedings against a Jamaican national who had been convicted for witness tampering under Connecticut General Statutes section 53a-151, a petition for review of the BIA's denial of cancellation of removal and a section 212(h) waiver is denied, where the conviction categorically constituted an "offense relating to obstruction of justice" within the meaning of 8 USC section 1101(a)(43)(S), and thus was an aggravated felony that precluded the requested relief. Read more...
United States Third Circuit, 04/16/2012
Singh v. Att'y General, No. 11-1988
In a case in which the government sought to remove a Jamaican national for an aggravated felony based on his conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 USC section 152(3), a petition for review of a BIA order of removal is granted, where: 1) a conviction under 18 USC section 152(3) necessarily entails deceit and therefore qualifies as a potential aggravated felony "deceit" offense; 2) the fact that the petitioner was not removable for a perjury-based aggravated felony did not mean he was not removable for a deceit-based aggravated felony; but 3) the petitioner's offense was not a deceit-based aggravated felony because it did not cause an actual loss of $10,000 or more. Read more...
April 09, 2012 - April 13, 2012
United States First Circuit, 04/12/2012
Restrepo v. Holder, No. 10-1750
In removal proceedings against a Colombian national, a petition for review of the BIA's denial of an application for cancellation of removal is denied, where: 1) substantial evidence in the record supported the immigration judge's determination -- and the BIA's reasoned affirmance -- that the petitioner, while under oath, provided false testimony at his immigration hearings regarding the motives underlying his divorce, so that the petitioner was statutorily precluded from obtaining cancellation of removal relief because he lacked good moral character; and 2) the BIA's credibility determinations were within the In re A-S- framework. Read more...
United States First Circuit, 04/12/2012
Castaneda-Castillo v. Holder, No. 09-1847
A final judgment closing an asylum case is issued, where the First Circuit, when it remanded the case to the BIA, explicitly retained jurisdiction for the express purpose of ensuring a speedy resolution to the case. Read more...
April 02, 2012 - April 06, 2012
United States Ninth Circuit, 04/03/2012
Arbid v. Holder, No. 09-73211
In removal proceedings against a Lebanese national reopened after he pleaded to guilty to mail fraud for his role in a scheme to defraud mortgage lenders, a petition for review of a BIA decision upholding removal is denied, where: 1) neither the BIA nor the immigration judge abused their discretion in holding that the petitioner was convicted of a "particularly serious crime" rendering him ineligible for asylum or withholding of removal; and 2) substantial evidence supported the finding that conditions in Lebanon had changed since an earlier grant of asylum and withholding of removal, such that it was no longer more likely than not that the petitioner would be tortured upon his return there. Read more...
March 26, 2012 - March 30, 2012
United States Supreme Court, 03/26/2012
Zivotofsky v. Clinton, No. 10-699
In a case in which parents of a child born in Jerusalem sought to have the child's place of birth recorded in his passport as "Israel" as allowed by a federal statute but prohibited by State Department policy, dismissal of the case on grounds that it presented a nonjusticiable political question is vacated, where: 1) resolution of the claim would not require the judiciary to define U.S. policy toward the status of Jerusalem, but rather required the courts to determine only whether the plaintiff could vindicate his statutory right to choose to have Israel recorded as his place of birth on his passport; 2) the only real question for the courts was whether the statute was unconstitutional; and 3) there was not a lack of judicially discoverable and manageable standards for resolving the question. Read more...
United States Supreme Court, 03/28/2012
Vartelas v. Holder, No. 10-1211
In removal proceedings against a lawful permanent resident who pre-IIRAIRA was convicted of a crime that made him inadmissible upon reentry under post-IIRAIRA INA section 101(a)(13)(C)(v), the Second Circuit's decision finding the petitioner removable is reversed, as the impact of the petitioner's brief travel abroad was determined not by IIRAIRA, which if applied would have had an impermissible retroactive effect, but by the legal regime in force at the time of his conviction, which did not require admissibility upon reentry. Read more...
United States First Circuit, 03/30/2012
Chen v. Holder, No. 11-1191
In removal proceedings that a Chinese national sought to reopen on the basis of changed country conditions affecting his claim for asylum, withholding of removal, and protection under the Convention Against Torture based on religion and political opinion, a petition for review of the BIA's denial of the motion is denied, where: 1) the BIA did not fail to consider the evidence the petitioner submitted as to changed country conditions; and 2) the materials that the petitioner submitted in support of his motion to reopen did not establish a fundamental change in country conditions such that a reopening of his case would be justified under the law. Read more...
United States Second Circuit, 03/27/2012
Huang v. Holder, No. 10-1263
In removal proceedings against a Chinese national who successfully applied for asylum before an immigration judge (IJ), a petition for review of the BIA's reversal of the IJ is granted and the case remanded, where: 1) the BIA erred in declining to consider an IJ's finding that a future event will occur to be fact-finding subject to review for clear error; although 2) de novo review applied to the ultimate question of whether the applicant sustained her burden to establish that her subjective fear of persecution was objectively reasonable; and 3) it was not error for the BIA to rely on a 2007 State Department country conditions report for China. Read more...
United States Fourth Circuit, 03/29/2012
Bracamontes v. Holder, No. 10-2033
In removal proceedings against a lawful permanent resident who had adjusted status after his last entry into the United States and then was convicted of an aggravated felony for which he sought a 212(h) waiver: 1) a petition for review of a BIA decision is granted, the order of removal is vacated, and the case is remanded for consideration of the waiver, where the plain language of section 212(h) does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility; but 2) the Fourth Circuit had no jurisdiction over a petition for review of BIA rulings precluding the petitioner from seeking additional relief under the Convention Against Torture, as the challenge did not implicate a question of law. Read more...
March 19, 2012 - March 23, 2012
United States First Circuit, 03/23/2012
Idy v. Holder, No. 11-1078
A Moroccan national's petition for review of a removal order affirmed by the BIA is dismissed in part for lack of jurisdiction and otherwise denied, where adjustment of status was properly denied because: 1) the petitioner did not raise any legal or constitutional issue regarding the denial of section 212(h) inadmissibility waiver, thus denying the court jurisdiction over that claim; and 2) the petitioner was convicted of violating New Hampshire's reckless conduct statute, N.H. Rev. Stat. Ann. section 631:3, and the BIA's determination that the crime was one involving moral turpitude was neither arbitrary nor contrary to law. Read more...
United States Third Circuit, 03/19/2012
Leslie v. Att'y General, No. 11-2442
In a case in which the government detained a Jamaican national for nearly four years without a bond hearing pending removal proceedings, a district court order denying a writ of habeas corpus is reversed, and the appeal is remanded with instructions to conduct an individualized bond hearing, where: 1) the prisoner's detention was "pre-removal" under 8 USC section 1226, rather than "post-removal" under 8 USC section 1331, and thus could not exceed a reasonable length of time; and 2) the prisoner was only responsible for a five-week delay for unspecified medical reasons, and the rest of the delay was caused by his pursuit of bona fide legal challenges to his removal. Read more...
United States Third Circuit, 03/19/2012
Gonzalez v. Sec'y of Dep't of Homeland Security, No. 11-2276
Summary judgment denying a petition for review of a USCIS denial of a naturalization application for lack of good moral character is affirmed, where: 1) the jurisdiction vested in district courts by 8 USC section 1421(c) to review naturalization denials is not divested by the priority given to removal proceedings under 8 USC section 1429; 2) the district court may grant declaratory relief in the naturalization case notwithstanding the role it may play in terminating a removal proceeding; but 3) there was no genuine dispute regarding the petitioner's false testimony in his naturalization interview. Read more...
United States Fourth Circuit, 03/22/2012
US v. Castillo-Pena, No. 10-5080
In a prosecution of a Nicaraguan national for falsely representing himself to be a US citizen during an ICE deportation investigation interview and for committing identity theft in relation to a false claim of US citizenship, the district court's denial of the defendant's motion for acquittal is affirmed, where the "cumulative context" in which his statement was made provided a substantial foundation for the jury's conclusion of willful misrepresentation. Read more...
United States Ninth Circuit, 03/22/2012
Peng v. Holder, No. 06-75841
In removal proceedings against a Chinese lawful permanent who was convicted at trial of a crime of moral turpitude before IIRAIRA, a petition for review of a BIA decision denying relief from removal and adjustment of status is: 1) granted as to the BIA's decision affirming the denial of a continuance in order to apply for a section 212(c) waiver of removal, as section 212(c) relief is available to aliens who proceeded to trial if they can plausibly argue that they relied on the availability of relief; and 2) denied as to adjustment of status because the petitioner did not have the requisite seven years continuous presence required for a section 212(h) waiver of admissibility, as the seven-year residency requirement is not impermissibly retroactive and does not violate equal protection. Read more...
March 12, 2012 - March 16, 2012
United States First Circuit, 03/12/2012
Hasan v. Holder, No. 10-1656
A petition for review of a BIA decision affirming a removal order is dismissed for lack of jurisdiction insofar as it challenged the denial of cancellation of removal, and denied insofar as it sought review of denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief, where: 1) the petitioner's cancellation of removal claim was simply a disguised challenge to fact finding, with no legal or constitutional grounding; 2) the BIA's decision to affirm the immigration judge (IJ) on asylum and withholding of removal was supported by substantial evidence; and 3) there was substantial support for the findings of the IJ and BIA on the CAT ground. Read more...
United States First Circuit, 03/14/2012
Gonzalez v. Holder, No. 11-1175
A Guatemalan national's petition for review of a BIA denial of his application for special rule cancellation of removal under NACARA is denied, where: 1) the BIA properly classified the petitioner as an "alien crewman" ineligible for special rule cancellation of removal; and 2) there was no merit to the petitioner's claim that he was denied notice of, or an opportunity to respond to, DHS's allegation that he was ineligible for special rule cancellation of removal. Read more...
United States First Circuit, 03/16/2012
Mayorga-Vidal v. Holder, No. 09-1208
In removal proceedings in which a Salvadoran national sought asylum, withholding of removal and protection under the Convention Against Torture (CAT), a petition for review of the BIA's denial of all relief is affirmed, where: 1) the BIA properly rejected the petitioner's proposed social group profile--young Salvadoran men who have resisted gang recruitment and whose parents are unavailable to protect them; 2) the petitioner failed to establish a well-founded fear of future persecution on account of his political opinion; and 3) the petitioner did not establish a likelihood of torture if he were to be repatriated. Read more...
United States First Circuit, 03/16/2012
Guta-Tolossa v. Holder, No. 10-2132
In removal proceedings in which an Ethiopian national applied for asylum, withholding of removal, and relief under the Convention Against Torture, a petition for review of the BIA's denial of all relief is granted and the case remanded, where: 1) the BIA should have reviewed the petitioner's appeal in light of the presumption of credibility, or explained why the presumption did not apply; and 2) the BIA failed to address whether the REAL ID Act required the immigration judge to provide the petitioner with notice of the need for corroborating evidence. Read more...
United States First Circuit, 03/16/2012
Jabri v. Holder, No. 10-1616
In removal proceedings in which a Jordanian national applied for asylum, withholding of removal, and protection under the Convention Against Torture on the basis of his fear of persecution on account of his conversion to Christianity, a petition for review of the BIA's denial of all relief is granted and the case remanded, where the record did not adequately support the immigration judge's reliance on two primary perceived inconsistencies that entered into the credibility calculus. Read more...
United States Second Circuit, 03/14/2012
US v. Roccisano, No. 10-5237
A 46-month sentence for a foreign national's illegal reentry into the United States is affirmed, where: 1) the district court did not err in assessing the defendant a two-point criminal history enhancement for having committed the crime while on supervised release, since a term of supervised release does not terminate upon deportation; and 2) the sentence was procedurally and substantively reasonable. Read more...
United States Ninth Circuit, 03/12/2012
Anderson v. Holder, No. 07-74042
A petition for review of a removal order is granted and the case remanded with instructions for the BIA to vacate the removal order, where: 1) a removal order that has been executed against a person claiming to be a US citizen is a reviewable final order of removal within the meaning of 8 USC section 1252(a); and 2) the BIA lacked jurisdiction to remove the petitioner from the country because he was a U.S. citizen under former 8 USC section 1409(a), which granted him derivative citizenship as a person whose paternity was established while he was under 21 by legitimation under Arizona's legitimacy statute. Read more...
March 05, 2012 - March 09, 2012
United States Ninth Circuit, 03/06/2012
Oyeniran v. Holder, No. 09-73683
A Nigerian national's petition for review of decisions by the BIA is granted, where: 1) collateral estoppel bound the BIA to its prior determinations relevant to the petitioner's claim for Convention Against Torture relief; and 2) the BIA abused its discretion by denying the petitioner's motion to reopen to consider significant new evidence. Read more...
February 27, 2012 - March 02, 2012
United States Second Circuit, 02/27/2012
Zheng v. Holder, No. 10-3838
On petition for review of BIA decision affirming an immigration judge's finding that the petitioner had filed a frivolous asylum application, the petition is: 1) denied with respect to the BIA's determination that a withdrawn asylum application may serve as the basis of a frivolousness finding; and 2) granted as to the BIA's conclusion that the immigration judge lacked discretion whether to engage in a frivolousness inquiry. Read more...
United States Third Circuit, 03/01/2012
Vera v. Att'y General, No. 11-3157
On petition for review of a removal order of the Department of Homeland Security issued to a Argentinian national who entered the United States pursuant to the Visa Waiver Program (VWP) when she was a minor, the petition is denied because there was no due process violation in failing to provide the ordinary removal process, where: 1) the court could presume that the petitioner, as a VWP entrant, executed the statutorily required waiver of her right to challenge removal; 2) the presumption was not rebutted; and 3) even if the petitioner did not sign a waiver, or if she signed a waiver that was invalid because she was a minor when she signed it, she suffered no prejudice. Read more...
United States Ninth Circuit, 02/29/2012
Pimentel v. Dreyfus, No. 11-35237
In a class action by lawful permanent resident aliens residing in Washington state challenging the state's elimination of food assistance to class members while continuing to administer federal food assistance to U.S. citizens and certain qualified aliens, the district court's grant of preliminary injunctive relief to the plaintiffs is reversed, where the district court, in assessing the likelihood of success, abused its discretion by finding that the termination of the state-funded program resulted in an equal protection or due process violation. Read more...
United States Ninth Circuit, 02/29/2012
Rohit v. Holder, No. 10-70091
On petition for review of a BIA decision denying an application for voluntary departure, arguing that the petitioner was not removable for committing two crimes involving moral turpitude, the petition is denied, where the BIA did not err in concluding that the petitioner's conviction under section 647(b) of the California Penal Code for disorderly conduct involving solicitation of prostitution constituted a conviction of a crime involving moral turpitude. Read more...
February 20, 2012 - February 24, 2012
United States Supreme Court, 02/21/2012
Kawashima v. Holder, No. 10-577
In removal proceedings against resident aliens who were convicted of willfully making and subscribing a false tax return under 26 USC section 7206(1) and aiding and assisting in the preparation of a false tax return under 26 USC section 7206(2), the orders of removal are affirmed, as violations of sections 7206(1) and (2) are crimes "involv[ing] fraud or deceit" under 8 USC section 1101(a)(43)(M)(i) and are therefore aggravated felonies subjecting the respondents to removal when the loss to the government exceeds $10,000. Read more...
United States Second Circuit, 02/24/2012
Guamanrrigra v. Holder, No. 10-4191
On petition for review of a BIA decision affirming an immigration judge's denial of the petitioner's application for cancellation of removal, the petition is denied because the petitioner did not have ten years' continuous presence, where: 1) service of a notice to appear not specifying the time and date of the hearing, followed by a notice to appear setting the time and date, satisfied the notice requirements of INA section 239(a)(1); and 2) such service triggered the stop-time rule of INA section 240A(d)(1) as of the date of the second notice, notwithstanding any imperfections in the service of a subsequent notice of hearing necessitated by a change in venue. Read more...
United States Second Circuit, 02/23/2012
Crocock v. Holder, No. 11-1123
In removal proceedings in which an Irish national was found ineligible for adjustment of status for having made a false claim to US citizenship on an I-9 form, a petition for review of the BIA's affirmance is denied, where: 1) the petitioner pointed to no evidence beyond his testimony to demonstrate that he thought he was a national when checking the "citizen or national" box on the I-9; 2) the petitioner admitted before the immigration judge that he did not believe himself to be a national; and 3) the petitioner made a statement to an immigration officer in which he characterized himself as a US citizen in order to obtain his "dream job." Read more...
United States Third Circuit, 02/24/2012
DelRio-Mocci v. Connolly Properties Inc., No. 09-4541
In a suit by a lessee in an apartment complex against its property managers, alleging injury to his leasehold property because the managers engaged in a criminal RICO conspiracy to harbor illegal aliens and to encourage or induce illegal aliens to reside in the United States in violation of federal law, the district court's grant of a motion to dismiss for failure to state a claim is affirmed, where: 1) the plaintiff did not sufficiently allege that the defendants' conduct tended to substantially facilitate an alien's remaining in the United States illegally and to prevent government authorities from detecting the alien's unlawful presence; 2) the defendants did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise; and 3) the district court did not abuse its discretion in denying the plaintiff leave to amend his complaint. Read more...
February 13, 2012 - February 17, 2012
United States First Circuit, 02/16/2012
US v. Lang, No. 10-1353
In a prosecution for making false statements and applying for naturalization in violation of 18 USC sections 1001(a)(2) and 1425(b), the conviction is affirmed, where: 1) because the N-445 Notice of Naturalization Oath Ceremony form was not testimonial, its admission did not violate the defendant's constitutional right to confrontation; 2) the N-445 was properly admitted under the public records exception to the hearsay rule; and 3) the government's repeated reference at trial to the defendant's prior conviction for selling cocaine was not error. Read more...
United States Third Circuit, 02/14/2012
Castro v. Att'y General, No. 10-3234
On petition for review of a BIA denial of the petitioner's motion to reconsider the sustaining of an immigration judge's order that the petitioner be removed to Costa Rica on the basis of a false claim to US citizenship, the petition is granted and the case remanded where the BIA’s construction of the "purpose or benefit" language of 8 USC section 1182(a)(6)(C)(ii) was contrary to law, and the BIA abused its discretion in denying the petitioner's motion to reconsider its decision on this ground. Read more...
United States Ninth Circuit, 02/13/2012
Rangel-Zuazo v. Holder, No. 07-72316
A petition for review of a final order of removal issued by the Board of Immigration Appeals is granted in light of Judulang v. Holder, 132 S. Ct. 476 (2011), which required reversal of the BIA's conclusion that the petitioner was ineligible for a waiver under section 212(c) because he failed to meet the comparability requirement. Read more...
United States Ninth Circuit, 02/17/2012
Latter-Singh v. Holder, No. 08-71277
On petition for review of a BIA order dismissing an appeal of an immigration judge's decision to deny various forms of relief from removal, the petition is dismissed in part and denied in part, where: 1) there was no error in the BIA's identification of the elements of the crime of making threats "with intent to terrorize" under California Penal Code section 422; 2) violation of section 422 is categorically a crime involving moral turpitude making the petitioner ineligible for admission to the United States; and 3) the petitioner's various other arguments had no merit. Read more...
February 06, 2012 - February 10, 2012
United States Fourth Circuit, 02/09/2012
US v. Sarwari, No. 10-4944
In a prosecution for willfully and knowingly making a false statement on a passport application, the conviction is affirmed, where: 1) the district court did not err in concluding that the Bronston literal truth defense did not entitle the defendant to judgment as a matter of law; 2) the word "father" is not so fundamentally ambiguous that the defendant's claim to be the father of his stepchildren could not provide the basis for a false statement conviction; 3) the evidence was sufficient to find that the defendant understood the question whether he was the father and answered it falsely; and 4) the district court did not err in refusing to give a proposed jury instruction regarding the lack of a statutory definition of the word "father." Read more...
United States Ninth Circuit, 02/07/2012
Mendoza-Pablo v. Holder, No. 07-73592
A petition for review of a BIA decision denying applications for asylum, withholding of removal, and protection under the Convention Against Torture is granted, as a child may be said to have suffered persecution and therefore be eligible for asylum where: 1) a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child; 2) that child's family has undisputedly suffered severe persecution; and 3) the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child's family. Read more...
United States Ninth Circuit, 02/06/2012
US v. Reyes-Bonilla, No. 10-50361
In a prosecution for being a deported alien found in the United States without permission, the conviction is affirmed, where: 1) the defendant was deprived of the opportunity for judicial review of his prior removal order, and was exempt from the administrative-remedies exhaustion requirement because did not validly waive his right of appeal; and 2) the defendant was not properly advised of his due process right to counsel nor did he waive this right; but 3) this due process violation was not per se prejudicial; and 4) the defendant could not demonstrate that he had a plausible claim to relief at the time of removal proceedings, so he was not actually prejudiced as a result of the due process violations, and entry of the removal order was not fundamentally unfair. Read more...
United States Ninth Circuit, 02/09/2012
Gomez Zarate v. Holder, No. 08-70696
On petition for review of a BIA order dismissing a Mexican national's appeal from an immigration judge’s decision pretermitting his application for cancellation of removal, the petition is denied, where the petitioner had been subjected to a formal, documented process sufficient to break ten years of continuous physical presence in the United States, given: 1) his presentation of a false identification document to a border official and, at least as reported on the Form I-213, his false claim of U.S. citizenship; 2) his subsequent arrest, his guilty plea and conviction in federal court; 3) the five days he spent in jail; and 4) his return to the Mexican border in INS custody. Read more...
January 30, 2012 - February 03, 2012
United States First Circuit, 01/31/2012
Guerrero v. Holder, No. 10-2286
In removal proceedings in which a Salvadoran national requested asylum and withholding of removal based on mistreatment suffered at the hands of FMLN guerillas, the petition for review of the BIA's decision upholding the immigration judge's denial of asylum and withholding of removal is denied, where the petitioner failed to surmount the standard of review with respect to his claim of past persecution. Read more...
United States First Circuit, 01/31/2012
Arevalo-Giron v. Holder, No. 10-2357
In removal proceedings in which a Guatemalan national applied for withholding of removal, asserting that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former "child of war," the petition for review of a BIA decision affirming the immigration judge's denial of relief is denied, where: 1) the BIA was correct in finding that any potential hardship faced by the petitioner in Guatemala would be unrelated to her membership in either of the purported social groups; 2) the petitioner could not establish past persecution; 3) the situation described in the country conditions report was not so pervasive as to compel the conclusion that the petitioner was likely to suffer harm upon her return to her homeland; and 4) the petitioner did not show any connection between the violence that she feared and the government of Guatemala. Read more...
United States First Circuit, 02/03/2012
Diaz Ruano v. Holder, No. 11-1224
On petition for review of a BIA decision that affirmed the decision of an immigration judge denying the petitioner's application for withholding of removal and protection from removal under the Convention Against Torture (CAT) based on claims that he would be subjected to persecution on account of his membership in the social groups of young males targeted by the criminal gangs in Guatemala for recruitment or because of opposition to gangs, and in the group of persons of perceived wealth returning from the United States, the petition is denied, where substantial evidence supported the determinations that: 1) the petitioner failed to show that it was more likely than not that, if removed to Guatemala, he would suffer persecution on account of his membership in a socially visible, sufficiently particular social group; and 2) the petitioner failed to establish that it was more likely than not that he would be subject to torture upon his return to Guatemala. Read more...
United States Fourth Circuit, 01/30/2012
Prudencio v. Holder, No. 10-2382
In removal proceedings against a lawful permanent resident who was convicted of contributing to the delinquency of a minor in violation of Virginia Code section 18.2-371, a misdemeanor, the petition for review of a BIA decision dismissing an appeal from an immigration judge's decision is granted and the immigration judge's order of removal is vacated, where: 1) the Attorney General's approach to determining whether a conviction is for a crime involving moral turpitude, set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is not an authorized exercise of the Attorney General's authority under Chevron; and 2) under the categorical and modified categorical approaches, DHS did not satisfy its burden of showing that the conviction qualified as a crime involving moral turpitude. Read more...
United States Fourth Circuit, 02/01/2012
Phan v. Holder, No. 10-1794
In a case in which USCIS denied an application for naturalization on the grounds that the applicant could not show good moral character because he was convicted of an aggravated felony, the district court's grant of summary judgment is affirmed, where: 1) on its face, the appellant's conviction satisfied the statutory requirements for a "conviction" of an aggravated felony; 2) although a court set aside the conviction, it acted pursuant to rehabilitative goals, which do not control the use of the conviction in the immigration context. Read more...
United States Fourth Circuit, 02/02/2012
US v. Rivera-Santana, No. 10-5123
In a sentencing challenge after the appellant was convicted of illegal reentry into the United States after being removed for a conviction of an aggravated felony, the sentencing court's judgment order is affirmed, where: 1) two upward departures in the advisory Sentencing Guidelines range, augmented by an upward variance of 90 months therefrom, were not procedurally unreasonable; and 2) the resulting sentence, which was the statutory maximum, was not substantively unreasonable. Read more...
United States Ninth Circuit, 01/30/2012
US v. Casasola, No. 10-50376
In a prosecution of a Guatemalan citizen for illegal reentry into the United States after removal, the district court's denial of a motion to dismiss the criminal information is affirmed, and the sentence is affirmed, where: 1) the defendant did not obtain derivative citizenship when his father was naturalized before the defendant turned eighteen but his mother, still married to the father, was not; 2) the statute as it existed at the relevant time did not deny equal protection, because it did not permit automatic derivative citizenship when one parent having joint custody was naturalized, but rather required the custodial parent, upon naturalization, to have sole legal custody; and 3) a sentencing guideline amendment that deleted the criminal history "recency" points used to calculate the defendant's criminal history category was not retroactive, and the sentence was neither substantively nor procedurally unreasonable. Read more...
United States Ninth Circuit, 02/01/2012
US v. Noriega-Perez, No. 10-50501
In a prosecution of a property owner stemming from his renting houses he owned near the United States-Mexico border to an alien smuggling organization knowing that they would be used as load houses to conceal and later transfer recently arrived aliens, the convictions are affirmed, where: 1) the strong circumstantial evidence presented at trial sufficed for the jury to find beyond a reasonable doubt that non-testifying material witnesses were illegal aliens; 2) a reasonable jury could find sufficient specific evidence linking the defendant to intentionally aiding the cross-border transportation of the named material witnesses before they were dropped off in the United States. Read more...
January 23, 2012 - January 27, 2012
United States First Circuit, 01/24/2012
Garcia-Callejas v. Holder, No. 11-1084
In removal proceedings in which the petitioner applied for withholding of removal and Convention Against Torture protection based on a claim was that he would be harmed by criminal gangs, prevalent in El Salvador, whose attempts to recruit him he had resisted before he left for the United States, and an assertion that the gangs would perceive him as wealthy because of his time in the United States and therefore subject him to further threats and violence, the BIA's denial of the application is affirmed where the category to which the petitioner sought to assign himself, whether as target of gang recruitment or a returnee perceived as wealthy, does not constitute a "social group" under BIA precedents that have several times been affirmed by the First Circuit. Read more...
United States First Circuit, 01/26/2012
de Carvalho-Frois v. Holder, No. 11-1214
In a case seeking judicial review of a BIA order upholding an immigration judge's denial of asylum for failure to establish either past persecution or a well-founded fear of future persecution, the petition for review is denied, where the petitioner's claimed social group--witnesses to a serious crime whom the Brazilian government is unwilling or unable to protect--is too amorphous to satisfy the requirements for social visibility. Read more...
United States Fourth Circuit, 01/26/2012
Turkson v. Holder, No. 10-1984
In removal proceedings in which the immigration judge's decision deferring removal was reversed by the BIA, petition for review is granted and the BIA decision is vacated, where the BIA erred in reviewing the immigration judge's factual findings under the de novo standard of review instead of under the clearly erroneous standard prescribed by its governing regulations. Read more...
United States Ninth Circuit, 01/26/2012
Oshodi v. Holder, No. 08-71478
On a petition seeking review of the BIA's denial of a request for withholding of removal and protection under the Convention Against Torture (CAT) based on the petitioner's fear of persecution and torture due to his religion and political opinions, the petition is denied, where: 1) the BIA did not fail to conduct an inquiry in accordance with a prior Ninth Circuit mandate; 2) the immigration judge did not err by basing his credibility determination on the petitioner's failure to produce corroborating evidence; 3) the immigration judge's adverse credibility determination was supported by substantial evidence; 4) the immigration judge did not prevent the petitioner from testifying about his past torture and persecution; 5) the petitioner did not overcome the presumption that the BIA reviewed his evidence; 6) the petitioner failed to properly authenticate certain documents by certification or by his testimony; and 7) the BIA provided a sufficiently comprehensible explanation for denial of relief under the CAT. Read more...
United States Ninth Circuit, 01/27/2012
Tyson v. Holder, No. 08-70219
In removal proceedings against a returning lawful permanent resident who was convicted in 1980 for importation of a controlled substance pursuant to a stipulated facts agreement, the BIA's decision upholding the immigration judge's denial of section 212(c) relief is reversed, where: 1) the stipulated facts trial entitled the appellant to invoke the St. Cyr line of cases allowing for retroactive section 212(c) relief even though she did not enter a traditional guilty plea; and 2) the record established the appellant's objectively reasonable reliance on the continued availability of section 212(c) relief. Read more...
January 16, 2012 - January 20, 2012
United States Fourth Circuit, 01/19/2012
US v. Ramos-Cruz, No. 08-4647
On appeal of conviction on nine criminal counts related to the defendant's membership in the MS-13 gang, judgment of conviction is affirmed, where: 1) erroneous jury instructions as to the federal nexus element of the offense of aiding and abetting witness-tampering murder were harmless error; 2) the government presented sufficient evidence to allow the jury to conclude that the defendant's application for temporary protected status had been denied at the relevant time, and thus the district court properly denied the defendant's motion for acquittal on the charge of being an illegal alien in possession of a firearm; 3) the district court did not abuse its discretion in allowing two government witnesses to testify under pseudonyms and without revealing their names, home and work addresses, or dates and places of birth; 4) a search warrant affidavit supported a finding of probable cause; and 5) it was established that the exclusionary rule does not apply to knock-and-announce violations. Read more...
United States Ninth Circuit, 01/17/2012
Chettiar v. Holder, No. 08-70035
In an appeal from a denial of a petition to remove conditions on permanent residency that was based on marriage fraud, the BIA's dismissal is affirmed, where: 1) the BIA was correct to conclude that the 90-day period within which USCIS must render a decision on such a petition did not start running after the petitioner's first scheduled interview, but rather at the conclusion of the interview process; and 2) the court lacked jurisdiction to consider the petitioner's due process argument because it was not raised at the administrative level. Read more...
United States Ninth Circuit, 01/18/2012
US v. Melendez-Castro, No. 10-50620
In an appeal of a conviction for illegal reentry into the United States after being deported, based on a collateral attack of the underlying removal order, the case is remanded where: 1) the defendant as a respondent in removal proceedings was not meaningfully advised of his right to seek voluntary departure, in violation of the Due Process Clause of the Fifth Amendment; 2) the defendant's waiver of his right to appeal his removal order was not valid; and 3) the district court did not fully analyze the issue of prejudice, which must be shown for a successful collateral attack. Read more...
January 09, 2012 - January 13, 2012
United States Third Circuit, 01/11/2012
Chehazeh v. Attorney General of the US, No. 10-2995
In an appeal from a judgment of the district court dismissing, for lack of jurisdiction, appellant's habeas petition and motion for a stay of removal proceedings, judgment is reversed where under the unusual circumstances of the case, the district court had jurisdiction to review the decision of the Board of Immigration Appeals to, sua sponte, reopen removal proceedings against appellant who was acquainted with the perpetrators of the September 11, 2001, attacks. Read more...
United States Third Circuit, 01/12/2012
Totimeh v. Attorney General of the US, No. 10-3939
In a petition for review of an order of the BIA dismissing petitioner's appeal of a removal order, petition is granted with the order vacated because a conviction under Minnesota’s predatory offender registration statute is not a crime involving moral turpitude for purposes of the INA, and where the BIA abused its discretion in not reopening petitioner's case to allow him to supplement the administrative record with evidence regarding when he first was admitted legally to the United States. Read more...
United States Fourth Circuit, 01/11/2012
Zelaya v. Holder, No. 10-2401
In a petition for review of an order of the BIA affirming the denial of petitioner's claims for asylum, withholding of removal, and CAT protection, petition is denied in part and granted in part because resistance to being recruited into a gang does not constitute a particular social group within the INA and where the BIA failed to adequately probe petitioner's CAT claim. Read more...
United States Ninth Circuit, 01/10/2012
US v. Alcala-Sanchez, No. 11-50030
Sentencing of defendant for being a deported alien found in the United States is vacated where the government breached a plea agreement because it made a mistake in its initial sentencing recommendation and attempted to cure that mistake by its substitution of the recommendation to which the defendant and the government had agreed in the plea agreement. Read more...
United States Ninth Circuit, 01/12/2012
US v. Arango, No. 10-15821
In an appeal from a judgment of the district court granting the government's motion for summary judgment in its action to revoke defendant's citizenship, judgment is reversed where the district court improperly weighed the evidence in the record in concluding that a cooperation agreement which permitted defendant to retain his status as a legal permanent resident and to naturalize did not exist. Read more...
January 02, 2012 - January 06, 2012
United States Third Circuit, 01/04/2012
Contreras v. Attorney General of the US, No. 10-4235
In a petition for review of an order of the BIA upholding an administrative denial of petitioners' motion to reopen, petition is denied because the Fifth Amendment's Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. Read more...
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