CASES DECIDED IN FEDERAL COURT IN FEBRUARY / MARCH 2007
Here are some of the cases which were decided in Federal Court between 3/19/07 and 3/23/07 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Gao vs Gonzales (03/20/07 - No. 05-5013)
Petition for review of denial of motion to reopen removal proceedings is dismissed under the fugitive disentitlement doctrine as petitioner's continued failure to surrender to immigration officials renders him a fugitive from justice.
http://caselaw.lp.findlaw.com/data2/circs/2nd/055013p.pdf
Lewis v. Gonzales (03/23/07 - No. 05-1677)
Order concluding that petitioner, who was removable on account of his conviction for a controlled substance offense, neither derived citizenship from his naturalized father nor merited cancellation of removal is upheld where: 1) 8 U.S.C. section 1432(a)(3) (repealed 2000) requires the parents of a legitimated alien child to effect a "legal separation" – even when the parents never were married in the first place – before the child may derive automatic citizenship from either of his parents individually; 2) petitioner's parents did not effect any such separation; and 3) the court lacks jurisdiction to review the denial of cancellation of removal, and petitioner waived his argument that his felony marijuana offense is not a controlled substance offense.
http://caselaw.lp.findlaw.com/data2/circs/2nd/051677p.pdf
U.S. 4th Circuit Court of Appeals
Mbea v. Gonzales (03/22/07 - No. 05-1204)
In case involving citizen of Cameroon and permanent resident of U.S., petition for review challenging finding that petitioner is subject to removal as he was twice convicted of crimes involving moral turpitude, in the form of arson and destruction of property, is denied where the malicious burning of property is a crime of violence and, thus, petitioner's arson conviction is an aggravated felony which renders him statutorily ineligible for cancellation of removal and for a hardship waiver.
http://caselaw.lp.findlaw.com/data2/circs/4th/051204p.pdf
U.S. 5th Circuit Court of Appeals
Gao v. Gonzales (03/19/07 - No. 05-60518)
Petition for review of a decision finding petitioner ineligible to apply for relief under former section 212(c) of the INA is affirmed where there was no error in a finding that one of petitioner's crimes, the unauthorized use of a motor vehicle, lacks a comparable ground of inadmissability under INA section 212(a).
http://caselaw.lp.findlaw.com/data2/circs/5th/0560518cv0p.pdf
Brieva-Perez v. Gonzales (03/19/07 - No. 05-60639)
A petition for review of a decision holding that petitioner's crime of unauthorized use of a vehicle constituted a crime of violence rendering him removable and that he was ineligible for a statutory waiver is denied where petitioner was deportable for having committed an aggravated felony and was not eligible for a section 212(c) waiver.
http://caselaw.lp.findlaw.com/data2/circs/5th/0560639cv0p.pdf
Avilez-Granados v. Gonzales (03/19/07 - No. 05-61165)
Petition for review of a decision holding that petitioner is ineligible to apply for discretionary relief under section 212(c) of the INA is denied as to the section 212(c) claim, but the matter is remanded to the BIA for further proceedings since petitioner was not given an opportunity to apply for an adjustment of status based on his marriage to an American citizen.
http://caselaw.lp.findlaw.com/data2/circs/5th/0561165cv0p.pdf
U.S. 8th Circuit Court of Appeals
Nabulwala v. Gonzales (03/21/07 - No. 05-4128)
A Ugandan citizen's petition for review of a denial of asylum and related relief, based on alleged persecution on account of her homosexuality, is granted where: 1) an IJ erred in concluding that to qualify for asylum, petitioner had to demonstrate persecution at the hands of government officials; and 2) no proper finding was made as to whether the government was unable or unwilling to control persons who had harmed, or would harm petitioner.
http://caselaw.lp.findlaw.com/data2/circs/8th/054128p.pdf
U.S. 9th Circuit Court of Appeals
US v. Latu (03/19/07 - No. 05-10815)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
US v. Nasser (03/20/07 - No. 05-10466)
A conviction and sentence for knowingly transporting an illegal alien is affirmed where: 1) the district court correctly denied a motion to suppress evidence resulting from an alleged stop of defendant's vehicle because there was no stop for purposes of Fourth Amendment analysis; and 2) the sentence imposed was not unreasonable.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510466p.pdf
Ochoa-Amaya v. Gonzales (03/22/07 - No. 05-74693)
A petition for review of a denial of petitioner's motion to reopen to allow consideration of his application for adjustment of status is denied where the BIA properly interpreted the relevant language of the Child Status Protection Act (CSPA) in finding that petitioner did not qualify as a child under the CSPA, and thus could not show statutory eligibility for adjustment of status. (Amended opinion)
http://caselaw.lp.findlaw.com/data2/circs/9th/0574693pv2.pdf
Here are some of the cases which were decided in Federal Court between 3/12/07 and 3/16/07 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Siewe v. Gonzales (03/13/07 - No. 05-6563)
Denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is affirmed over claims that the IJ's adverse credibility finding is not supported by substantial evidence since the IJ erroneously resorted to speculation and conjecture when assessing the evidence, and since any inconsistencies relied upon by the IJ are immaterial and easily and reasonably explained.
http://caselaw.lp.findlaw.com/data2/circs/2nd/056563p.pdf
Sandher v. Gonzales (03/15/07 - No. 06-4262)
Habeas petition challenging conviction and transferred from district court to court of appeals under section 106 of the REAL ID Act of 2005 is dismissed as section 106 does not apply to habeas petitions challenging an alien's criminal conviction.
http://caselaw.lp.findlaw.com/data2/circs/2nd/064262p.pdf
U.S. 3rd Circuit Court of Appeals
US v. Laville (03/16/07 - No. 06-1577)
The unlawfulness of an arrest under state or local law does not make the arrest unreasonable per se under the Fourth Amendment. At most, the unlawfulness is a factor for federal courts to consider in evaluating the totality of the circumstances surrounding the arrest.
http://caselaw.lp.findlaw.com/data2/circs/3rd/061577p.pdf
U.S. 7th Circuit Court of Appeals
Adekpe v. Gonzales (03/14/07 - No. 05-3951)
Petition for review of a final order of removal to Togo is granted where the IJ failed to rationally consider petitioner's evidence of political persecution at the hands of the Togolese government as a whole.
http://caselaw.lp.findlaw.com/data2/circs/7th/053951p.pdf
Terezov v. Gonzales (03/15/07 - No. 06-2101)
Petition for review of a removal order entered in absentia is granted where significant, unexplained gaps in the administrative record existed such that the decision of the IJ, as supplemented by the opinion of the BIA, was not supported by substantial evidence.
http://caselaw.lp.findlaw.com/data2/circs/7th/062101p.pdf
Mungongo v. Gonzales (03/15/07 - No. 06-1635)
Petition for review of a denial of petitioner's motion to reconsider an earlier denial of a motion to reopen her removal proceedings is denied where petitioner's motion to reconsider did not present any additional legal arguments, a change of law, or an argument that was overlooked by the BIA in denying her motion to reopen.
http://caselaw.lp.findlaw.com/data2/circs/7th/061635p.pdf
Sharashidze v. Gonzales (03/16/07 - No. 06-2661)
Petition for review of termination of asylee status and denial of pending application for adjustment of status is denied where the BIA's finding that petitioner committed an aggravated felony by soliciting a sex act involving a minor was supported by substantial evidence. Petitioner's due process claim is dismissed where he did not exhaust his administrative remedies for the claim.
http://caselaw.lp.findlaw.com/data2/circs/7th/062661p.pdf
U.S. 8th Circuit Court of Appeals
Quomsieh v. Gonzales (03/15/07 - No. 05-4405)
Petition for review of a denial of Palestinian Christian family's applications for asylum and related relief is denied where: 1) petitioners failed to establish past persecution and a well-founded fear of future persecution; 2) there was no record evidence showing that petitioners would more likely than not be subjected to torture if returned; and 3) a claim regarding the IJ's denial of voluntary departure was not properly raised before the BIA, and the court lacked jurisdiction over such claim in any event.
http://caselaw.lp.findlaw.com/data2/circs/8th/054405p.pdf
U.S. 10th Circuit Court of Appeals
US v. Valenzuela-Puentes (03/15/07 - No. 04-2283)
In a prosecution for reentering the U.S. after being previously deported following a conviction for an aggravated felony, grant of government's motion to allow for involuntary medication so as to render him competent to stand trial is reversed where: 1) record did not contain evidence from which a conclusion of a substantial likelihood of restoring competency was unavoidable, and the district court provided no explanation as to whether or why it had become clearly convinced that defendant could be rendered competent through medication despite his exceptionally low IQ; and 2) it was unclear whether the district court applied the appropriate burden of proof.
http://laws.lp.findlaw.com/10th/042283.html
U.S. District of Columbia Circuit Court of Appeals
US v. Ventura (03/16/07 - No. 05-3045)
Sentence for a conviction under federal immigration laws based on guilty plea is vacated in light of Booker's changes to the sentencing regime, and since the district court may have erred.
http://caselaw.lp.findlaw.com/data2/circs/dc/053045a.pdf
California Appellate Districts
Reyes v. Van Elk, Ltd. (03/14/07 - No. B182068)
In suit alleging failure to pay prevailing wages to employees on public works projects, summary judgment for defendants is reversed where: 1) prior case law and plaintiffs' undocumented status did not prohibit them from having standing to raise their prevailing wage claim; and 2) the prevailing wage law and the post-Hoffman statutes are not preempted by the Immigration Reform and Control Act of 1986.
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2007/b182068.html
http://caselaw.lp.findlaw.com/data2/californiastatecases/b182068.pdf
Here are some of the cases which were decided in Federal Court between 3/5/07 and 3/9/07 which affect immigration law.
U.S. 3rd Circuit Court of Appeals
Atkinson v. Attorney Gen. of the US (03/08/07 - No. 05-1099)
A petition for review of a denial of immigration relief for petitioner is granted as the BIA cannot preclude petitioner from applying for a discretionary waiver under former INA section 212(c) because IIRIRA's repeal of that section cannot be applied retroactively.
http://caselaw.lp.findlaw.com/data2/circs/3rd/051099p.pdf
U.S. 5th Circuit Court of Appeals
Ghanem v. Upchurch (03/06/07 - No. 06-10499)
The decision of the Secretary of Homeland Security to revoke a visa pursuant to 8 U.S.C. section 1155 is discretionary, and thus strips the circuit court of jurisdiction to review such a decision.
http://caselaw.lp.findlaw.com/data2/circs/5th/0610499cv0p.pdf
Rico v. Flores (03/07/07 - No. 05-41719)
In an action brought by the estates of deceased illegal immigrants arising from the immigrants' deaths while stowed in a grain hopper railroad car in an attempt to pass a border checkpoint, an order finding that certain non-diverse defendants were improperly joined and denying plaintiffs' remand motion is reversed where the application of the Texas unlawful acts rule to plaintiffs' claims was too uncertain to support a finding of improper joinder.
http://caselaw.lp.findlaw.com/data2/circs/5th/0541719cv0p.pdf
U.S. 6th Circuit Court of Appeals
Hamida v. Gonzales (03/07/07 - No. 06-3134)
Petition for review of denial of Tunisian husband and wife's applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where an adverse credibility finding was supported by substantial evidence.
http://caselaw.lp.findlaw.com/data2/circs/6th/063134p.pdf
U.S. 9th Circuit Court of Appeals
Incalza v. Fendi N. Am., Inc. (03/06/07 - No. 04-57119)
The Immigration Reform and Control Act of 1986 (IRCA) does not preempt California labor laws that forbid employers from firing an employee without good cause.
http://caselaw.lp.findlaw.com/data2/circs/9th/0457119p.pdf
U.S. 10th Circuit Court of Appeals
US v. Jarillo-Luna (03/05/07 - No. 05-4262)
A sentence for illegal reentry by a previously deported alien is affirmed over a claim, inter alia, that the district court erred by failing to consider his argument that sentencing disparities resulting from the existence of fast-track program in some districts, but not the district of Utah, justified a sentence below the range dictated by the Sentencing Guidelines.
http://laws.lp.findlaw.com/10th/054262.html
US v. Lara-Garcia (03/07/07 - No. 06-4155)
A federal agent's failure to provide a lawfully detained suspect a Miranda warning prior to inquiring about his immigration status does not require suppression of that status where fingerprint evidence subsequently confirms such status.
http://laws.lp.findlaw.com/10th/064155.html
Here are some of the cases which were decided in Federal Court between 2/26/07 and 3/2/07 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Uwais v. Gonzales (02/28/07 - No. 03-4697)
Denial of application for asylum and withholding of removal is vacated as the BIA applied the wrong legal standards and failed to address the complete factual record, errors central to the determination that petitioner failed to establish past persecution based on a protected ground.
http://caselaw.lp.findlaw.com/data2/circs/2nd/034697p.pdf
U.S. 3rd Circuit Court of Appeals
Lavira v. Attorney Gen. of the US (02/26/07 - No. 05-3334)
A petition for review of a denial of claims for withholding of removal under the INA and the CAT brought by wheelchair-bound, HIV-positive Haitian petitioner is granted and the matter remanded so that the IJ may squarely address petitioner's challenge to a "particularly serious crime" designation and his challenge based on the CAT involving a Haitian detention facility.
http://caselaw.lp.findlaw.com/data2/circs/3rd/053334p.pdf
U.S. 5th Circuit Court of Appeals
Abraham v. Singh (02/26/07 - No. 05-30860)
In a RICO lawsuit brought by Indian citizens who were recruited under false pretenses to become steelworkers in Louisiana, dismissal of the RICO claim is reversed where plaintiffs adequately pled a pattern of racketeering activity and stated claims under 18 U.S.C. section 1962(c) and (d).
http://caselaw.lp.findlaw.com/data2/circs/5th/0530860cv0p.pdf
U.S. 6th Circuit Court of Appeals
Alizoti v. Gonzales (02/26/07 - No. 05-4493; 06-3067)
In an asylum case, the BIA's denial of Albanian petitioner's motion to reopen and its denial of her motion to reconsider are affirmed where: 1) it was not possible to conclude that the BIA abused its discretion when it found that petitioner failed to present a prima facie case for relief in her motion to reopen; and 2) although the BIA has the discretion to waive procedural defects in the filing of motions, it did not abuse its discretion in refusing to do so with regard to the motion to reconsider.
http://caselaw.lp.findlaw.com/data2/circs/6th/054493p.pdf
U.S. 7th Circuit Court of Appeals
Johnson v. Gonzales (02/28/07 - No. 06-2281)
Petition for review of a denial of a motion to reopen and remand for consideration of petitioner's application for a waiver of deportation under now-repealed section 212(c) of the Immigration and Nationality Act is denied where: 1) petitioner did not have a liberty or property interest in a chance at wholly discretionary relief from removal, and publication of a proposed rule change gave petitioner adequate notice; 2) there was no abuse of discretion in the BIA's refusal to equitably toll the time limit for filing an application for section 212(c) relief; and 3) the rule establishing the time limit was procedural and within the Attorney General's grant of rule-making authority.
http://caselaw.lp.findlaw.com/data2/circs/7th/062281p.pdf
Kokar v. Gonzales (03/01/07 - No. 05-4641)
Petition for review of an IJ's denial of applications for asylum, withholding of removal and relief under the Convention Against Torture is denied over petitioner's arguments that: 1) the BIA failed to give adequate reasons for its decision to dismiss her appeal for procedural defects; and 2) under the circumstances presented here, the BIA's dismissal of the appeal violated due process.
http://caselaw.lp.findlaw.com/data2/circs/7th/054641p.pdf
U.S. 8th Circuit Court of Appeals
Lengkong v. Gonzales (03/01/07 - No. 06-1684)
Petition for review of a denial of asylum and related relief is denied where the decision was supported by substantial evidence, since petitioners failed to establish past persecution, and even if they did, the change in circumstances in Indonesia undermined their claim of future persecution based on their Christian faith.
http://caselaw.lp.findlaw.com/data2/circs/8th/061684p.pdf
Aziz v. Gonzales (03/01/07 - No. 06-1767)
Petition for review of a decision denying Iraqi application for asylum and related relief under the battered spouse provisions added to the Immigration and Nationality Act by the Violence Against Women Act (VAWA) is denied over claims that an IJ erred by: 1) finding her asylum petition frivolous; 2) improperly denying her asylum petition without fully considering her past persecution and well-founded fear of future persecution; 3) pretermitting and denying her application for VAWA cancellation; 4) failing to withhold removal under the INA and under the CAT; and 5) denying her due process.
http://caselaw.lp.findlaw.com/data2/circs/8th/061767p.pdf
U.S. 9th Circuit Court of Appeals
US v. Castillo-Basa (02/26/07 - No. 05-50768)
A conviction for perjury committed in connection with an illegal reentry trial is reversed where the Double Jeopardy Clause barred the government from trying a second time to attempt to show that defendant was afforded a deportation hearing at issue, and that his testimony to the contrary was untruthful.
http://caselaw.lp.findlaw.com/data2/circs/9th/0550768p.pdf
Malta-Espinoza v. Gonzales (03/02/07 - No. 04-71140)
A petition for review of an order of the BIA holding that petitioner's state-law conviction for stalking rendered him removable under applicable law is granted as the conviction for stalking did not qualify as an aggravated felony for removal purposes.
http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf
U.S. 10th Circuit Court of Appeals
Zamora v. Elite Logistics, Inc. (02/26/07 - No. 04-3205)
In a suit against a former employer under Title VII alleging it discriminated against plaintiff because of his race, summary judgment for the employer is affirmed where: 1) the en banc court was evenly divided as to a claim arising from defendant's suspension of plaintiff from work until he presented documentation establishing his right to work in the U.S.; and 2) plaintiff failed to present sufficient evidence establishing a genuinely disputed issue of fact as to whether or not defendant's proffered reason for subsequently firing him, after he requested an apology, was a pretext for discrimination.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=043205&exact=1
US v. Portillo-Vega (02/28/07 - No. 04-4194)
A conviction and sentence for illegal re-entry after deportation is affirmed where: 1) the district court did not abuse its discretion in precluding a duress defense based on a claim that defendant returned to the U.S. after threats by Mexican Federales due to his alleged cooperation with the DEA; and 2) a Booker claim is rejected.
http://laws.lp.findlaw.com/10th/044194.html
Here are some of the cases which were decided in Federal Court between 2/19/07 and 2/23/07 which affect immigration law.
U.S. 1st Circuit Court of Appeals
Eze v. Gonzales (02/23/07 - No. 04-2091)
BIA ruling that personal delivery to an alien of a notice of termination of temporary resident status satisfied 8 C.F.R. section 245a.2(u)(2)(i) is affirmed where the regulation mentions both personal delivery and certified mail as acceptable forms of service, and the alien was not prejudiced by the personal delivery.
http://laws.lp.findlaw.com/1st/042091.html
U.S. 2nd Circuit Court of Appeals
Yang v. Gonzales (02/22/07 - No. 03-4973)
Denial of application for asylum, withholding of removal and relief under the Convention Against Torture, is vacated as, by failing to give any consideration whatsoever to the findings of the Appellate Division in petitioner's counsel's disbarment proceeding, the BIA failed to give attention to matters significant enough to warrant attention.
http://caselaw.lp.findlaw.com/data2/circs/2nd/034973p.pdf
Abu-Hasirah v. Dep't of Homeland Sec. (02/22/07 - No. 04-0914)
Denial of motion to reopen proceedings for purposes of rescinding an in absentia order of removal is vacated as the petitioner's arrival at the removal proceeding 15 minutes late did not constitute a failure to appear within the meaning of 31 8 U.S.C. section 1229a(b)(5), and it was legal error for the agency to apply the in absentia statutory provisions to petitioner.
http://caselaw.lp.findlaw.com/data2/circs/2nd/040914p.pdf
U.S. 3rd Circuit Court of Appeals
Jeune v. Attorney Gen. of the US (02/20/07 - No. 05-3103)
A conviction under 35 Pa. Cons. Stat. Ann. section 780-113(a)(30) for the manufacture, delivery, or possession with intent to manufacture or deliver, of a controlled substance, without any additional facts, does not constitute an "aggravated felony" under the Immigration and Nationality Act (INA).
http://caselaw.lp.findlaw.com/data2/circs/3rd/053103p.pdf
Kibinda v. Attorney Gen. of the US (02/20/07 - No. 05-4237)
An Angolan citizen's petition for review challenging a denial of asylum and related relief is denied where substantial evidence supported an IJ's conclusion that petitioner had not established past persecution and did not have an objectively well founded fear of persecution, and the record did not compel a conclusion that petitioner was likely to be tortured if returned to Angola.
http://caselaw.lp.findlaw.com/data2/circs/3rd/054237p.pdf
U.S. 4th Circuit Court of Appeals
Perez-Vargas v. Gonzales (02/22/07 - No. 05-2313)
Order of BIA finding that an IJ lacks jurisdiction to determine whether an approved visa petition remains valid under applicable law, when the holder of the visa petition has changed employment, is vacated where this determination does lie within the jurisdiction of an IJ.
http://caselaw.lp.findlaw.com/data2/circs/4th/052313p.pdf
U.S. 6th Circuit Court of Appeals
Garcia-Flores v. Gonzales (02/23/07 - No. 05-3689)
An appeal from a denial of a motion to reopen deportation proceedings is dismissed where petitioner failed to report for removal despite a lawful order requiring him to do so while he was subject to the jurisdiction of the court, and thus dismissal was proper pursuant to the fugitive disentitlement doctrine.
http://caselaw.lp.findlaw.com/data2/circs/6th/053689p.pdf
U.S. 8th Circuit Court of Appeals
US v. Katkhordeh (02/22/07 - No. 06-1138)
Defendant's conviction for making a false statement of material fact on his visa application is affirmed where the evidence was sufficient to support the verdict.
http://caselaw.lp.findlaw.com/data2/circs/8th/061138p.pdf
US v. Torres-Villalobos (02/22/07 - No. 06-1876)
Warrants of deportation are not "testimonial" evidence that implicate the Confrontation Clause of the Sixth Amendment. A conviction for illegal reentry after deportation is affirmed over a challenge to the admission of evidence of two prior deportations, a prior conviction for illegal re-entry, warrants of deportation. Sentence is vacated as prior conviction for second-degree manslaughter was not a "crime of violence" under 18 U.S.C. section 16, or an "aggravated felony" under section 1326(b).
http://caselaw.lp.findlaw.com/data2/circs/8th/061876p.pdf
Aneyoue v. Gonzales (02/23/07 - No. 05-2924)
Petition for review of a decision by the BIA not to reconsider its prior denial of Liberian petitioner's motion to reopen her asylum case is denied where there was no abuse of discretion in the decision since, to the extent a post-hearing right to rehabilitate credibility may exist, it would not apply when an alien has more than one year's notice prior to a hearing that a document is fraudulent, and she fails to take any substantial steps to rectify or explain the alleged fraud during that time.
http://caselaw.lp.findlaw.com/data2/circs/8th/052924p.pdf
Yakovenko v. Gonzales (02/23/07 - No. 05-4123)
A petition for review of a denial of asylum and related relief is denied where: 1) the court lacked jurisdiction to review a determination that her asylum application was untimely; 2) an IJ's credibility findings were supported by specific and cogent reasons and were entitled to deference; and 3) even if petitioner had been deemed credible, her allegations of abuse by a college classmate and his accomplices failed to show it would be unsafe or unreasonable to relocate within the Ukraine.
http://caselaw.lp.findlaw.com/data2/circs/8th/054123p.pdf
Ramirez-Peyro v. Gonzales (02/23/07 - No. 06-1569)
In an asylum case claiming that if petitioner were returned to his native Mexico he would be harmed or killed in retaliation for his work as an informant for U.S. agents, a decision reversing a grant of CAT relief and ordering him removed is vacated and remanded where the BIA did not appear to apply the proper standard of review and engaged in its own factfinding.
http://caselaw.lp.findlaw.com/data2/circs/8th/061569p.pdf
U.S. 9th Circuit Court of Appeals
Ramadan v. Gonzales (02/22/07 - No. 03-74351)
In the context of asylum applications and the scope of jurisdiction under the Real ID Act to review an agency decision under 8 U.S.C. section 1158(a)(2), a federal court of appeals' jurisdiction over "questions of law" as defined in the Real ID Act includes not only "pure" issues of statutory interpretation, but also application of law to undisputed facts, or mixed questions of law and fact.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374351p.pdf
US v. Cruz-Escoto (02/23/07 - No. 05-50892)
A conviction and sentence for being a deported alien found in the U.S. without permission is affirmed over claims of error regarding: 1) the sufficiency of the evidence; 2) jury instruction; 3) exclusion of testimony of an impeachment witness; 4) introduction of evidence that he twice illegally entered the U.S.; 5) a Batson claim; and 6) an impermissible increase to his sentence above the statutory maximum.
http://caselaw.lp.findlaw.com/data2/circs/9th/0550892p.pdf
U.S. 11th Circuit Court of Appeals
Martinez Ruiz v. U.S. Attorney Gen. (02/20/07 - No. 05-15875)
Denial of application for asylum and request for withholding of removal is vacated on reconsideration as to the petition for withholding of removal as petitioner's kidnapping, physical assaults, and threatening phone calls rise to the level of persecution.
http://caselaw.lp.findlaw.com/data2/circs/11th/0515875pv1.pdf
Obasohan v. U.S. Attorney Gen. (02/23/07 - No. 05-13332)
Petition for review of determination that petitioner's prior conviction qualified as an aggravated felony under Section 101(a)(43)(M)(i) of the Immigration and Nationality Act is granted as the IJ and BIA erred by relying on conduct that was not charged, proven or admitted to determine that petitioner had been convicted of an aggravated felony.
http://caselaw.lp.findlaw.com/data2/circs/11th/0513332p.pdf
Here are some of the cases which were decided in Federal Court between 2/12/07 and 2/16/07 which affect immigration law.
U.S. 1st Circuit Court of Appeals
Attia v. Gonzales (02/16/07 - No. 06-1065)
Petition for review of denial of application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where the IJ's conclusion that petitioner did not suffer past persecution nor show a likelihood of future persecution was supported by substantial evidence.
http://laws.lp.findlaw.com/1st/061065.html
U.S. 4th Circuit Court of Appeals
Hussain v. Gonzales (02/16/07 - No. 05-2350)
Petition for review of denial of motions to reopen and to remand is denied over claim that the BIA erred by failing to mention or address petitioner's motion to remand in the order denying relief.
http://caselaw.lp.findlaw.com/data2/circs/4th/052350p.pdf
U.S. 5th Circuit Court of Appeals
US v. Uvalle-Patricio (02/12/07 - No. 05-40309)
A conviction for possession of blank immigration permits is affirmed where: 1) the phrase "any blank permit" in the statute of conviction, includes both genuine and false immigration documents; and 2) a challenge to certain evidentiary rulings failed because defendant failed to argue, let alone establish, that any harm resulted from the rulings.
http://caselaw.lp.findlaw.com/data2/circs/5th/0540309cr0p.pdf
US v. Gunera (02/13/07 - No. 05-20544)
A conviction for illegal presence in the U.S. is reversed where, having been returned more than five years following the date defendant was "found" in the U.S., the indictment against him was barred by the statute of limitations.
http://caselaw.lp.findlaw.com/data2/circs/5th/0520544cr0p.pdf
Salazar-Regino v. Trominski (02/14/07 - No. 03-41492)
On remand from the Supreme Court, the court determines that no remand is warranted as to one petitioner judgment, but the district court's judgment as to the remainder of petitioners is vacated and remanded to the BIA for further consideration in light of Lopez v. Gonzales, 549 U.S. ___, 127 S. Ct. 625 (2006).
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492cv1p.pdf
U.S. 7th Circuit Court of Appeals
Shmyhelskyy v. Gonzales (02/15/07 - No. 06-1550)
Petition for review of denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where there was substantial evidence supporting the IJ's adverse credibility determination.
http://caselaw.lp.findlaw.com/data2/circs/7th/061550p.pdf
U.S. 8th Circuit Court of Appeals
Ivanov v. Gonzales (02/12/07 - No. 06-1178)
A petition for review from a denial of asylum for Georgian petitioners, who had been previously granted asylum, is granted where an IJ improperly reopened the removal proceedings and terminated their asylum based on earlier fraud, because the DHS failed to establish that the information submitted in support of its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of petitioners' removal proceedings.
http://caselaw.lp.findlaw.com/data2/circs/8th/061178p.pdf
Pavlovich v. Gonzales (02/14/07 - No. 06-1171, 06-1172)
Husband and wife's petition for review of a denial of asylum and related relief is denied where substantial evidence supported an IJ's decisions to deny asylum and withholding of removal, and to designate Russia and Latvia as countries of removal.
http://caselaw.lp.findlaw.com/data2/circs/8th/061171p.pdf
Tamenut v. Gonzales (02/15/07 - No. 05-4418)
Petition for review of a BIA order finding that former asylum applicant's motion to reopen his proceedings was untimely, and declining to exercise its discretionary power to sua sponte reopen the matter, is affirmed where: 1) there was no abuse of discretion in the BIA's declining to exercise its discretionary power to reopen as petitioner's motion raised no new or exceptional circumstances; and 2) a due process argument was without merit.
http://caselaw.lp.findlaw.com/data2/circs/8th/054418p.pdf
U.S. 9th Circuit Court of Appeals
Chaidez v. Gonzales (02/14/07 - No. 02-71966)
A petition for review of a decision precluding petitioner from proceeding with his application for relief from removal is granted where the government did not meet its burden of demonstrating by clear, unequivocal, and convincing evidence that petitioner or a responsible person at his address signed a certified mail return receipt for his Order to Show Cause (OSC), for purposes of effective service.
http://caselaw.lp.findlaw.com/data2/circs/9th/0271966p.pdf
US v. Flores-Sanchez (02/15/07 - No. 06-10026)
A conviction and sentence for illegal reentry after deportation is affirmed over claims of error regarding: 1) denial of his motion to dismiss the indictments; 2) commencement of trial one day after his first appearance on a superseding indictment; 3) use of his prior convictions for sentence enhancement purposes; and 4) alleged consideration of incorrect information at the sentencing phase.
http://caselaw.lp.findlaw.com/data2/circs/9th/0610026p.pdf
Hernandez-Gil v. Gonzales (02/16/07 - No. 04-72303)
A petition for review of a denial of petitioner's application for cancellation of removal is granted where an IJ prejudicially erred in denying petitioner's motion for a continuance and violated his statutory right to counsel by proceeding with a merits hearing without his attorney being present.
http://caselaw.lp.findlaw.com/data2/circs/9th/0472303p.pdf
Here are some of the cases which were decided in Federal Court between 2/5/07 and 2/9/07 which affect immigration law.
U.S. 2nd Circuit Court of Appeals
Steevenez v. Gonzales (02/06/07 - No. 06-2114)
Petition for review of BIA decision is denied as petitioner failed to exhaust his administrative remedies in failing to challenge in his brief to the BIA the IJ's determinations that he can relocate in safety should he return to Indonesia, and that he is not entitled to relief under the Convention Against Torture.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062114p.pdf
U.S. 3rd Circuit Court of Appeals
Caroleo v. Gonzales (02/07/07 - No. 05-3762)
Petition for review of a decision denying petitioner's motion for a discretionary waiver of removal pursuant to section 212(c) of the Immigration and Nationality Act is denied where defendant's conviction of attempted murder was an aggravated felony "crime of violence" that has no statutory counterpart in a crime involving moral turpitude, for purposes of section 212(c) relief.
http://caselaw.lp.findlaw.com/data2/circs/3rd/053762p.pdf
U.S. 7th Circuit Court of Appeals
Sina v. Gonzales (02/07/07 - No. 05-2755)
Petition for review of denial of asylum application is denied where the IJ's adverse credibility determination was supported by substantial evidence and petitioner was unable to provide corroborating evidence after his credibility was questioned.
http://caselaw.lp.findlaw.com/data2/circs/7th/052755p.pdf
U.S. 9th Circuit Court of Appeals
Morales-Izquierdo v. Gonzales (02/06/07 - No. 03-70674)
A previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The statute dealing with reinstatement of removal orders and its implementing regulation comport with due process, and 8 C.F.R. section 241.8 is a valid interpretation of the INA.
http://caselaw.lp.findlaw.com/data2/circs/9th/0370674p.pdf
Bravo-Pedroza v. Gonzales (02/06/07 - No. 03-73999)
A petition for review of a removal order is granted where the Secretary of Homeland Security is barred by res judicata from initiating a second deportation case on the basis of a charge that he could have brought in an earlier case, when, due to a change of law that occurred during the course of the first case, he lost that case.
http://caselaw.lp.findlaw.com/data2/circs/9th/0373999p.pdf
Don v. Gonzales (02/09/07 - No. 03-74431)
Denial of Sri Lankan petitioners' applications for asylum and related relief based on alleged persecution by the Tamil Tigers terrorist group and a special government terrorist unit is affirmed where substantial evidence supported an adverse credibility determination.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374431p.pdf
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