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

CASES DECIDED IN FEDERAL COURT IN APRIL / MAY 2007

May 28-Jume 1, 2007

U.S. 2nd Circuit Court of Appeals, June 01, 2007
Blake v. Carbone, No. 05-2988, 05-4188, 05-2643, 05-4382
Petitions for review of orders holding deportees ineligible for relief under former section 212(c) of the Immigration and Nationality Act because their aggravated felony ground of deportation lacked a counterpart ground of exclusion are granted as, under the equal protection principle enunciated in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), each petitioner's eligibility for a section 212(c) waiver must turn on whether similarly situated lawful permanent residents in removal proceedings are given similar treatment. Read more...

U.S. 3rd Circuit Court of Appeals, May 30, 2007
Abdelfattah v. US Dep't of Homeland Sec., No. 06-4106
In the context of an action brought under the Freedom of Information Act (FOIA) and the test for evaluating whether material withheld pursuant to FOIA Exemption 7 qualifies as "records or information compiled for law enforcement purposes," an agency seeking to invoke Exemption 7 does not have to identify a particular individual or incident as the object of an investigation into a potential violation of law or security risk. However, Exemption 7 still requires an agency to demonstrate that the relationship between its authority to enforce a statute or regulation and the activity giving rise to the requested documents is based upon information sufficient to support at least a colorable claim of the relationship's rationality. Read more...

U.S. 4th Circuit Court of Appeals, May 30, 2007
Lin-Jian v. Gonzales, No. 05-1693
Petition for review of denial of application for relief from removal via political asylum, withholding of removal, and protection under the Convention Against Torture is reversed as to claims for asylum and withholding of removal as petitioner may establish eligibility by demonstrating that his wife was forced to undergo an abortion or that he himself has a well-founded fear of sterilization or other persecution if he returns to China. Read more...

U.S. 5th Circuit Court of Appeals, May 30, 2007
Waggoner v. Gonzales, No. 05-60625
Petition for review of a BIA ruling that petitioner-Fiji native was statutorily ineligible for an extreme hardship waiver based on a finding that her marriage was not entered into in good faith is granted as the plain language of the applicable statute does not require a good faith marriage to obtain an extreme hardship waiver. Read more...

U.S. 9th Circuit Court of Appeals, May 29, 2007
Covarrubias v. Gonzales, No. 03-74661
Alien smuggling as defined in 8 U.S.C. section 1182(a)(6)(E)(i), does not ends once the alien crosses the border, but continues until the initial transporter who brings the alien to the U.S. ceases to transport the alien. Petition for review of the BIA's dismissal of petitioner's appeal from a denial of his application for suspension of deportation is denied where substantial evidence supported the BIA's finding that petitioner was statutorily ineligible to prove good moral character because he had engaged in alien smuggling. Read more...

U.S. 9th Circuit Court of Appeals, May 29, 2007
Kharana v. Gonzales, No. 04-71335
A defendant who pleads guilty to fraudulently appropriating more than $10,000 but subsequently makes her victims whole has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony, for purposes of section 101(a)(43)(M)(i) of the Immigration and Nationality Act (INA). Read more...

May 21-May 25, 2007

U.S. 1st Circuit Court of Appeals, May 23, 2007
Castaneda-Castillo v. Gonzales, No. 05-2384
In an en banc decision, denial of asylum by reason of having assisted or otherwise participated in persecution is vacated where culpable knowledge of the persecution is required for the persecutor bar to apply, and the IJ's and BIA's adverse credibility findings were vulnerable on grounds of reasoning and/or evidentiary support. Read more...

U.S. 1st Circuit Court of Appeals, May 25, 2007
Feliz v. Gonzales, No. 06-1579
Petition for review of a removal order is denied where, while the court had jurisdiction over petitioner's continuance claim, the petitioner never asked for or otherwise indicated clearly to the IJ that he sought a continuance. Read more...

U.S. 1st Circuit Court of Appeals, May 25, 2007
Mewengkang v. Gonzales, No. 06-1976
Petition for review of a denial of withholding of removal is denied where the IJ's credibility determination was supported by substantial evidence and petitioner failed to point out any evidence in the record suggesting that he would be persecuted on account of his religion if he were returned to Indonesia. Read more...

U.S. 2nd Circuit Court of Appeals, May 22, 2007
Peralta-Taveras v. Gonzales, No. 06-2125
Petition for review challenging denial of applications for waiver of deportation under former section 212(c) of the INA, and cancellation of removal under current section 240A(a) is denied over claim of ambiguous Congressional intent as to the application of section 240A(a) to a petitioner who is also eligible for section 212(c) relief. Read more...

U.S. 2nd Circuit Court of Appeals, May 24, 2007
Iouri v. Ashcroft, No. 02-4992
Petition for review of denial of application for asylum, withholding of return, and relief under the Convention Against Torture, and also denial of motion to reopen proceedings for purposes of adjusting petitioners' status to lawful permanent residents, is denied over claims that: 1) the BIA erred by failing to take into account their advanced age in assessing their credibility; and 2) petitioners' voluntary departure period should be deemed stayed, tolled, or otherwise extended by their having timely filed for a petition for review and moved for a stay of deportation in their underlying asylum case. The INS District Director might well consider exercising his or her discretion under pre-IIRIRA regulatory authority to grant a nunc pro tunc extension of voluntary departure so that petitioners may adjust their status to lawful permanent residents. Read more...

U.S. 4th Circuit Court of Appeals, May 21, 2007
Markovski v. Gonzales, No. 05-2317
In case involving Macedonian citizen who entered the U.S. on a K-1 fiance visa, got married in good faith, filed for adjustment of status, but divorced prior to adjudication of his petition, and where the former wife failed to forward petitioner's mail to his new address, resulting in his failure to appear for his interview, an order granting voluntary departure, but refusing to adjust status despite petitioner's new employment, is upheld over primary claim that the INA should be interpreted to permit his application to adjust status based on employment. Read more...

U.S. 5th Circuit Court of Appeals, May 23, 2007
US v. Rodarte-Vasquez, No. 04-50224
Defendants' convictions for illegal reentry after deportation are affirmed but their sentences vacated where application of the 2003 Sentencing Guidelines, as opposed to the 2002, constituted an ex post facto violation. The court rejects defendants' primary claim that sentencing guidelines offense-level enhancements, imposed as a result of defendants' prior alien-smuggling convictions, were improper in light of Booker. Read more...

U.S. 5th Circuit Court of Appeals, May 25, 2007
Gonzales-Maldonado v. Gonzales, No. 05-60924
Petition for review of a decision finding petitioner statutorily ineligible for cancellation of removal and voluntary departure is granted where petitioner did not give false testimony about his address for the purpose of obtaining immigration benefits. Read more...

U.S. 6th Circuit Court of Appeals, May 22, 2007
Jaber v. Gonzales, No. 05-3882
A petition for review of a decision by the BIA denying petitioner's motion to reopen a prior removal decision is dismissed for lack of jurisdiction where: 1) petitioner had not filed a petition for review of the BIA's determination on whether to reopen; and 2) the district court did not transfer petitioner's challenge to the BIA's final determination on whether to reopen, but only transferred a challenge to the initial removal decision. Read more...

U.S. 7th Circuit Court of Appeals, May 23, 2007
Singh v. Gonzales, No. 06-3177
Petition for review of a denial of withholding of removal and relief under the Convention Against Torture is denied where petitioner's retraction of statements made in a sworn affidavit gave the IJ good reason to doubt his credibility, and petitioner offered no evidence to explain the discrepancy. Read more...

U.S. 7th Circuit Court of Appeals, May 23, 2007
Tandia v. Gonzales, No. 06-2471
Petition for review of a denial of asylum, withholding of removal and relief under the Convention Against Torture is granted where the IJ's credibility determination rested on erroneous conclusions and the IJ failed to support the determination that petitioner's testimony was not corroborated by evidence in the record. Read more...

U.S. 7th Circuit Court of Appeals, May 25, 2007
Agbor v. Gonzales, No. 06-2015
Petition for review of a denial of asylum is granted and the underlying decision vacated where both the IJ and the BIA disregarded critical evidence in the petitioners' favor, and their reasons for discounting the petitioners' fears of persecution after refusing to undergo female circumcision were problematic. Read more...

U.S. 8th Circuit Court of Appeals, May 21, 2007
Tun v. Gonzales, No. 06-1477
A petition for review of denial of Burma native's application for asylum and related relief is granted where: 1) there was no jurisdiction to review a determination that the asylum application was untimely; but 2) denial of withholding and Convention Against Torture claims for relief was error as improper and prejudicial exclusion of evidence coupled with unreliable translation denied petitioner a fair hearing in violation of his due process rights under the Fifth Amendment. Read more...

U.S. 9th Circuit Court of Appeals, May 21, 2007
Saravia-Paguada v. Gonzales, No. 05-73098
A petition for review, brought by a legal permanent resident who was convicted of several felonies, challenging a decision pretermitting relief under former INA section 212(c) is affirmed over claims that: 1) time served pursuant to the recidivist statute should not have been counted for purposes of a statutory bar on relief; and 2) in the alternative, applying the statutory bar to petitioner's 1988 sentence had an impermissibly retroactive effect on the criminal conduct underlying his convictions. Read more...

U.S. 9th Circuit Court of Appeals, May 23, 2007
US v. Sandoval-Sandoval, No. 06-30370
Defendant's conviction for illegal reentry of a deported alien is affirmed over challenges to: 1) an order compelling a set of fingerprint exemplars; and 2) the district court's reliance at sentencing on a California court "abstract of judgment" as evidence of the length of a prior sentence that he served in state prison. Read more...

U.S. 9th Circuit Court of Appeals, May 24, 2007
Gama Puga v. Chertoff, No. 05-16902
In an action arising from removal proceedings, dismissal of Mexican citizen's habeas petition for lack of jurisdiction under the REAL ID Act is affirmed on the grounds that petitioner failed to exhaust the administrative remedies that were available to him, and thus his claim was not properly before the district court. Read more...

U.S. 9th Circuit Court of Appeals, May 24, 2007
US v. Dang, No. 04-17529
The Department of Homeland Security's regulation pertaining to assessment of good moral character in naturalization proceedings passes constitutional muster and is not ultra vires as to its governing statute. Read more...

U.S. 9th Circuit Court of Appeals, May 25, 2007
Landin-Zavala v. Gonzales, No. 04-70765
A petition for review of denial of Mexican citizen's application for cancellation of removal is denied over meritless claim that neither his formal order of exclusion nor his voluntary return to Mexico subsequent to apprehension by the U.S. border patrol later that month ended his continuous physical presence in the U.S. for purposes of the cancellation of removal statute. Read more...

U.S. 11th Circuit Court of Appeals, May 23, 2007
Rivera v. U.S. Attorney Gen., No. 06-10209
Petitions for review of denials of applications for asylum and withholding of removal are denied, as the record does not compel the conclusion that petitioners' fear of persecution is on account of their political opinion when their persecutors have murdered members of their family for their refusal to pay a "war tax" to a Marxist paramilitary organization, the Sixth Front of the Revolutionary Armed Forces of Colombia. Read more...

U.S. 11th Circuit Court of Appeals, May 25, 2007
Delgado v. US Attorney Gen., No. 05-16419
Petition for review of orders of removal, denials of asylum, and withholding of removal is granted in part as to withholding claims of two petitioners where they, father and son, were attacked by unknown assailants as a result of the father's political opinions and, thus, establish past persecution. Read more...

U.S. 11th Circuit Court of Appeals, May 25, 2007
Niftaliev v. US Attorney Gen., No. 06-12708
Denial of petition for withholding of removal is reversed where, since the record compels a finding that the petitioner suffered from past persecution, he is entitled to the benefit of the rebuttable presumption described in 8 C.F.R. section 208.16(b)(1)(i). Read more...

U.S. Federal Circuit Court of Appeals, May 23, 2007
Rhodes v. Merit Sys. Prot. Bd., No. 2006-3340
In proceedings arising from a challenge to the Department of Homeland Security's failure to restore petitioner to duty after an acquittal of criminal charges that formed the basis of his indefinite suspension from the agency, dismissal of petitioner's appeal is reversed as an AJ erred in determining that it lacked jurisdiction over the appeal. The imposition of an indefinite suspension and the failure to terminate such indefinite suspension are not the same "matter" according to 5 U.S.C. section 7121(e). Read more...

May 14-May 18, 2007

U.S. 1st Circuit Court of Appeals, May 15, 2007
Molina de Massenet v. Gonzales, No. 06-1610
Petition for review of a denial of petitioner's second motion to reopen her removal proceedings is denied where there was no abuse of discretion in the IJ's decision to prevent petitioner from proceeding with a second I-751 petition to remove conditions on her residency status after finding that petitioner had already filed a prior I-751 that was rejected due to marriage fraud, and that petitioner herself had admitted the fraud. Read more...

U.S. 5th Circuit Court of Appeals, May 15, 2007
US v. Martinez, No. 05-20330
A conviction for being an illegal alien in possession of firearms is reversed where the district court erred in denying a motion to suppress the firearms at issue because a vehicle stop was not supported by reasonable suspicion, and guns found in a subsequent search had to be suppressed under the fruit of the poisonous tree doctrine. Read more...

U.S. 6th Circuit Court of Appeals, May 18, 2007
Mapouya v. Gonzales, No. 06-3042
A petition for review of a denial of Congolese native's application for asylum and related relief is granted where: 1) the IJ made an erroneous adverse credibility finding on the asylum question, and the negative determination permeated and infused the IJ's subsequent findings and conclusions on petitioner's additional requests for relief; and 2) thus, the IJ's order lacked adequate legal analysis and reasoning to support its ultimate conclusions. Read more...

U.S. 7th Circuit Court of Appeals, May 14, 2007
Jiang v. Gonzales, No. 06-3142
Petition for review of a denial of application for asylum, withholding of removal, and protection under the Convention against Torture is granted and remanded for a new removal hearing where the IJ's reasons for rejecting petitioner's testimony were not supported by substantial evidence. Read more...

U.S. 7th Circuit Court of Appeals, May 17, 2007
Zahren v. Gonzales, No. 06-1301
Petition for review of a denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where the IJ ordered petitioner, a former Palestinian resident of Hebron, removed to Jordan, where he held dual citizenship. Thus, the likelihood of his persecution in Hebron was irrelevant, and petitioner at no point in the proceedings argued that he would be subject to persecution in Jordan. Read more...

U.S. 9th Circuit Court of Appeals, May 15, 2007
Pedroza-Padilla v. Gonzales, No. 03-74640
A waiver of inadmissibility under the Immigration Reform and Control Act does not also waive the legalization requirement that an alien have resided continuously in the United States since January 1, 1982. Read more...

U.S. 9th Circuit Court of Appeals, May 17, 2007
Montes-Lopez v. Gonzales, No. 05-76297
The Board of Immigration Appeals (BIA) errs when it fails on appeal to consider and decide claims that IJ proceedings suffered from procedural irregularity. A petition for review of a denial of El Salvadorian citizen's application for asylum and related relief is granted where the BIA erred by failing to address petitioner's claim that he was denied his right to counsel at proceedings before an immigration judge (IJ). Read more...

U.S. 9th Circuit Court of Appeals, May 17, 2007
Chaidez v. Gonzales, 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. (Amended opinion) Read more...

May 07-May 11, 2007

U.S. 1st Circuit Court of Appeals, May 09, 2007
Rodrigues-Nascimento v. Gonzales, No. 06-1438
Petition for review of a denial of a petition for adjustment of status and motion for voluntary departure are denied where the court lacked jurisdiction since petitioner did not raise a constitutional claim or question of law concerning his petition for adjustment of status, and where petitioner waived his arguments against the denial of voluntary departure by not raising them before the BIA. Read more...

U.S. 2nd Circuit Court of Appeals, May 08, 2007
Ruiz-Almanzar v. Ridge, No. 05-4380
Holding that petitioner is ineligible for relief under Immigration and Nationality Act section 212(c) is affirmed as petitioner, a deportable alien, is ineligible for this relief, notwithstanding the fact that he also seeks to apply for an adjustment of his immigration status. Read more...

U.S. 2nd Circuit Court of Appeals, May 10, 2007
Barnaby-King v. US Dep't of Homeland Sec., No. 06-1740
Petition for review of denial of petitioner's applications for a waiver under section 212(i) of the Immigration and Nationality Act and adjustment of status under 8 U.S.C. section 1255(i) is denied over claims that: 1) the IJ erred in denying petitioner's section 212(i) waiver and adjustment of status applications by applying an "erroneous standard of law"; 2) the IJ deprived her of due process and abused his discretion by denying her motion for a continuance; and 3) the IJ's adverse credibility finding was in error. Read more...

U.S. 7th Circuit Court of Appeals, May 10, 2007
Moreno-Cebrero v. Gonzales, No. 05-4105
Petition for review of a denial of petitioner's request for a waiver of removal under section 212(c) of the Immigration and Nationality Act is denied where detention prior to a criminal conviction is counted as part of a term of imprisonment in determining the eligibility of a removable alien under former INA section 212(c). Read more...

U.S. 8th Circuit Court of Appeals, May 07, 2007
Hassan v. Gonzales, No. 05-2084
A petition for review of a denial of an asylum claim by Somalian citizen is granted where: 1) petitioner did not waive her asylum claim under the fugitive disentitlement doctrine when she departed in compliance with IJ and BIA order and her pursuit of legal remedies while in Canada does not frustrate execution of judgment; 2) female genital mutilation rises to level of persecution and was performed on account of her gender and thus sge satisfied burden of showing past persecution; 3) the BIA failed to shift the burden of proof to the government to show that a change of conditions eliminated petitioner's fear of future persecution; and 4) necessarily, a derivative asylum claim required a remand. Read more...

U.S. 8th Circuit Court of Appeals, May 09, 2007
US v. Torres-Villalobos, 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 certain disputed evidence, but the sentence is vacated where defendant's prior conviction in Minnesota 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). Read more...

U.S. 9th Circuit Court of Appeals, May 07, 2007
Lolong v. Gonzales, No. 03-72384
Where an IJ has previously determined that an alien is removable but grants cancellation of removal, a BIA decision to reverse the cancellation of removal reinstates the initial finding of removability, which, under the relevant statute, is effectively an order of removal for purposes of jurisdiction for review. Previous precedent to the contrary is overruled. On the merits, a petition for review of a decision denying Indonesian ethnic Chinese Christian petitioner's application for asylum and granting her voluntary departure is denied as substantial evidence supported the BIA's denial of her asylum claim. Read more...

U.S. 9th Circuit Court of Appeals, May 07, 2007
US v. Lopez, No. 05-50415
The offense of bringing an alien to the United States in violation of 8 U.S.C. section 1324(a)(2) is a continuing offense that terminates when the initial transporter who brings the alien to the United States drops off the alien at a location in this country. Any prior decisions adopting or suggesting a different rule are overruled. Read more...

U.S. 9th Circuit Court of Appeals, May 08, 2007
Juarez-Ramos v. Gonzales, No. 05-72472, 05-75364
An expedited removal order interrupts an alien's continuous physical presence in this country for purposes of cancellation of removal relief under 8 U.S.C. section 1229b(b)(1). Read more...

U.S. 9th Circuit Court of Appeals, May 08, 2007
US v. C.M., No. 05-50585
An adjudication of delinquency of a juvenile Mexican national for transporting illegal aliens and related counts is reversed, and the juvenile information dismissed, where: 1) the juvenile was deprived of his rights under the Juvenile Delinquency Act (JDA) to immediate notification and prompt arraignment, and to the advice and counsel of a responsible adult prior to interrogation; and 2) a resulting confession was highly prejudicial and should not have been used against him to initiate his proceedings. Read more...

April 30-May 4, 2007

U.S. 1st Circuit Court of Appeals, May 04, 2007
Mahmoud v. Gonzales, No. 06-1369
Petition for review of a denial of a motion to reopen removal proceedings and adjust petitioner's status after his marriage to a U.S. citizen is denied where the IJ's discretionary denial of the request for adjustment of status was neither irrational nor arbitrary. Read more...

U.S. 8th Circuit Court of Appeals, May 02, 2007
US v. Yu, No. 06-1273
A conviction and sentence for conspiracy to transport illegal aliens and conspiracy to launder money is affirmed over claims that: 1) the court erred in denying a suppression motion; 2) the prosecutor engaged in misconduct; 3) the court should have held a competency hearing; and 4) his sentence is unreasonable. Read more...

U.S. 8th Circuit Court of Appeals, May 02, 2007
Lubale v. Gonzales, No. 06-3540
A petition for review of a denial of a motion to reconsider arising from a denial of an application for asylum and related relief is affirmed over claims that: 1) the fact that his wife had a stillborn son constituted exceptional circumstances for a failure to depart voluntarily; and 2) his counsel's failure to file the motion to reopen prior to the expiration of the voluntary departure period amounts to ineffective assistance in violation of due process. Read more...

U.S. 10th Circuit Court of Appeals, May 01, 2007
Hamilton v. Gonzales, No. 05-9560
An appeal from a decision by the Bureau of Immigration Appeals (BIA) affirming the revocation of an immigrant visa is dismissed as the circuit court lacks jurisdiction to review a visa revocation decision. Read more...

U.S. 10th Circuit Court of Appeals, May 01, 2007
Sosa-Valenzuela v. Gonzales, No. 05-9582
For purposes of appellate jurisdiction under 8 U.S.C. section 1252(a)(1) and section 1101(a)(47)(A): 1) an immigration judge must first either issue an order of removal or make a finding of deportability to confer the circuit court with appellate jurisdiction; and 2) the BIA does not have the independent statutory authority to issue an order of removal in the first instance. Read more...

April 23-April 27, 2007

U.S. 1st Circuit Court of Appeals, April 27, 2007
Royal Siam Corp. v. Chertoff, No. 06-1947
In a civil action resulting from the denial of a petition for renewal of a nonimmigrant specialty occupation visa, summary judgment for the government is affirmed over plaintiff's arguments that: 1) a restaurant manager position qualifies as a specialty occupation and the CIS, in failing to reach this conclusion, acted arbitrarily; 2) the marriage fraud bar does not apply in cases involving nonimmigrant visas; and 3) the government forfeited any right to deny the visa based on specialty occupation or marriage fraud by approving the original visa petition. Read more...

U.S. 2nd Circuit Court of Appeals, April 27, 2007
Belortaja v. Gonzales, No. 04-4665
Denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is upheld as the BIA's adverse credibility determination: 1) was not outside the scope of a prior stipulation and order directing remand; 2) did not violate applicable regulations; 3) did not deprive petitioner of his Fifth Amendment right to due process; and 4) was supported by substantial evidence. Read more...

U.S. 3rd Circuit Court of Appeals, April 27, 2007
Nnadika v. Attorney Gen. of the US, No. 05-3915
In the context of the REAL ID Act and the applicability of its jurisdiction-stripping and transfer provisions, only challenges that directly implicate an order of removal are properly the subject of transfer under the REAL ID Act. Read more...

U.S. 5th Circuit Court of Appeals, April 24, 2007
Garrido-Morato v. Gonzales, No. 05-60555
A petition for review of a BIA decision, which found that petitioner was ineligible for discretionary hardship relief from deportation because in 1996 she was convicted by her plea of guilty for harboring aliens, is denied over primary claims of error regarding the retroactivity of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amendments that made harboring aliens an aggravated felony. Read more...

U.S. 8th Circuit Court of Appeals, April 24, 2007
Ivanov v. Gonzales, No. 06-1178
A petition for review from a decision reopening petitioners' removal proceedings and terminating their asylum is granted where the IJ abused his discretion by granting DHS's motion to reopen pursuant to 8 C.F.R. section 1003.23(b)(3) as the agency failed to establish that the evidence submitted with its motion to reopen was not only material, but was also unavailable and undiscoverable prior to the conclusion of petitioners' removal proceedings. Read more...

U.S. 9th Circuit Court of Appeals, April 24, 2007
US v. Olmos-Esparza, No. 06-50276
Section 2L1.2 of the 2003 Sentencing Guidelines contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements. Read more...

U.S. 10th Circuit Court of Appeals, April 23, 2007
Valdez-Sanchez v. Gonzales, No. 05-9506
In the context of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), where Petitioner was ordered excluded, reentered, married a U.S. citizen, and was granted an adjustment of status prior to the effective date of IIRIRA, DHS may not retroactively apply section 241(a)(5) to reinstate a previous removal order. Read more...

Here are some of the cases which were decided in Federal Court between 4/16/07 and 4/20/07 which affect immigration law.

U.S. 1st Circuit Court of Appeals, April 19, 2007
Alsamhouri v. Gonzales, No. 05-2800
Petition for review of a final order of removal is denied where the denial of a request for a continuance to give petitioner additional time to file an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) was not an abuse of discretion given the IJ's amply supported findings that petitioner understood the filing deadline but failed to diligently proceed with the application. Read more...

U.S. 1st Circuit Court of Appeals, April 19, 2007
Raza v. Gonzales, No. 06-1672
Petition for review of a BIA decision denying petitioner's motion to reopen a removal proceeding is denied where the BIA's ruling that the motion was numerically and temporally barred contained no abuse of discretion or error of any kind. Read more...

U.S. 2nd Circuit Court of Appeals, April 16, 2007
Elkimya v. Dep't of Homeland Sec., No. 05-2984
Motion for bail pending petition for review of BIA's decision affirming IJ's order of removal is denied as petitioner has failed to demonstrate the requisite "extraordinary circumstances" under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). Read more...

U.S. 2nd Circuit Court of Appeals, April 19, 2007
Wang v. Dep't of Homeland Sec., No. 06-3298
Habeas petition under 28 U.S.C. section 2241 challenging final order of removal, and filed more than a year after section 106 of the REAL ID Act of 2005 foreclosed the use of habeas corpus to review removal orders, is dismissed as: 1) transfer to the court of appeals was not available under the REAL ID Act because the petition was not pending when the Act became effective; 2) transfer was impermissible since the petition was untimely; 3) petitioner has alleged no facts that would make dismissal constitutionally suspect; and 4) since district courts may no longer review removal orders via habeas corpus, the case cannot be transferred back to the district court. Read more...

U.S. 5th Circuit Court of Appeals, April 16, 2007
Galvez-Vergara v. Gonzales, No. 04-60729
Petitions for review of a denial of petitioner's motion to reopen his removal proceedings after he was ordered removed in absentia is granted where the BIA abused its discretion in failing to address applicable precedent on a claim that the advice of an attorney not to appear at an immigration proceeding constituted an exceptional circumstance beyond the alien's control. Read more...

U.S. 5th Circuit Court of Appeals, April 17, 2007
US v. Sanchez, No. 06-20193
A sentence for conspiracy to transport undocumented aliens within the U.S. is vacated pursuant to the government's claim of error where the sentence unreasonably failed to reflect the statutory sentencing factors set forth in 18 U.S.C. section 3553(a). Read more...

U.S. 5th Circuit Court of Appeals, April 18, 2007
US v. Hernandez-Martinez, No. 06-40271
A revocation sentence is affirmed over a claim that defendant was impermissibly sentenced for an uncharged illegal reentry rather than for his underlying drug offense. Under plain error review, defendant could not establish that the district court used an improper sentencing consideration. Read more...

U.S. 6th Circuit Court of Appeals, April 19, 2007
Sarr v. Gonzales, No. 05-4558
Petition for review of a denial of petitioner's requests for asylum, withholding of removal, and related relief is denied over claims that: 1) he proved by sufficient evidence that he had suffered past persecution in Senegal and that country conditions have not changed sufficiently to alleviate the threat of future persecution if he were to be returned there; and 2) he was denied due process by an IJ's adverse credibility finding and by the BIA's refusal to adjudicate certain of his requests for relief. Read more...

U.S. 7th Circuit Court of Appeals, April 17, 2007
Doe v. Gonzales, No. 03-3671
Petition for review of the denial of a former El Salvadoran soldier's asylum application is granted and the denial vacated and remanded where: 1) petitioner's mere presence during an act of persecution did not constitute assistance in the act; 2) petitioner's attempts to cover-up the persecution did not amount to participation in the persecution; 3) the legitimacy of petitioner's conviction for the persecution could be reviewed in his immigration proceeding since the trial that produced the conviction was a travesty of justice; and 4) the immigration judge disregarded all evidence of petitioner's fear of persecution upon return to El Salvador. Read more...

U.S. 8th Circuit Court of Appeals, April 17, 2007
Alvarado v. Gonzales, No. 06-1034
A petition for review of a decision finding petitioner removable and statutorily ineligible for cancellation of removal is denied as he was convicted of possession of firearms and ammunition by an unlawful user of a controlled substance under 18 U.S.C. Sec. 922(g)(3), and thus, he was an aggravated felon for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue. Read more...

Here are some of the cases which were decided in Federal Court between 4/9/07 and 4/13/07 which affect immigration law.

U.S. 2nd Circuit Court of Appeals, April 13, 2007
Elkimya v. Department of Homeland Sec., No. 05-2984
Motion for bail pending consideration of petition for review of a BIA decision affirming order of removal is denied as petitioner has failed to demonstrate the requisite extraordinary circumstances for bail pending consideration of petition for review. Read more...

U.S. 3rd Circuit Court of Appeals, April 09, 2007
Shehu v. Attorney Gen. of the US, No. 05-5072
Petition for review of a denial of Albanian citizen's application for asylum and related relief is denied where although the circuit court has jurisdiction to review the BIA's denial of a Visa Waiver Program (VWP) applicant's petition for asylum, withholding of removal, and relief under the CAT, the evidence supported the findings underlying the denial of relief for petitioner. Read more...

U.S. 3rd Circuit Court of Appeals, April 11, 2007
Jarbough v. Attorney Gen. of the US, No. 06-1081
A petition for review of a denial of Syrian citizen's application for asylum and related relief is dismissed in part, and denied in part where: 1) the circuit court lacked jurisdiction to review his claim that extraordinary circumstances excused the late filing of his asylum application; 2) substantial evidence supported the BIA's denial of withholding of removal; and 3) an IJ's rulings and conduct did not violate the Due Process Clause. Read more...

U.S. 3rd Circuit Court of Appeals, April 13, 2007
Chukwu v. Attorney Gen. of the US, No. 05-4068
Nigerian citizen's petition for review of a denial of asylum and related relief is granted and the matter remanded where an IJ erred in making an adverse credibility finding as he failed to take into account record evidence that explained many of the discrepancies on which the adverse finding was based, and the IJ did not determine whether it was reasonable to expect petitioner to produce corroboration of the facts which the IJ found should have been corroborated. Read more...

U.S. 7th Circuit Court of Appeals, April 11, 2007
Hoosier Care, Inc. v. Chertoff, No. 06-3562
Denial of petition for classification of two aliens as eligible for "employer-based" immigration is reversed where the Department of Homeland Security (DHS) erroneously determined that the minimum qualifications for the open positions were not appropriate. Such a determination is the responsibility of the Department of Labor, and DHS is limited to determining whether or not an applicant meets the minimum qualifications. Read more...

U.S. 7th Circuit Court of Appeals, April 13, 2007
Fonseca-Sanchez v. Gonzales, No. 06-2387
Petition for review of Citizenship and Immigration Service denial of interim relief under the "U" visa statute is dismissed for lack of jurisdiction where petitioner failed to exhaust her administrative remedies by not claiming a right to interim "U" visa relief prior to Immigration and Customs Enforcement's issuance of a Final Administrative Removal Order. Read more...

U.S. 8th Circuit Court of Appeals, April 12, 2007
Xiong v. Gonzales, No. 06-2007
An alien who enters the U.S. as a refugee, subsequently adjusts his status to a permanent lawful resident, and is thereafter convicted of an aggravated felony or a crime of moral turpitude may be placed in removal proceedings, even though his refugee status was never terminated. Read more...

U.S. 11th Circuit Court of Appeals, April 10, 2007
Usmani v. US Attorney Gen., No. 06-13843
Petition for review of a denial of adjustment of status is denied where the Attorney General has the discretion to deny adjustment of status even where the applicant is statutorily eligible for adjustment. Read more...

Here are some of the cases which were decided in Federal Court between 4/2/07 and 4/6/07 which affect immigration law.

U.S. 5th Circuit Court of Appeals, April 05, 2007
Soriano v. Gonzales, No. 06-60537
Any alien seeking admission to the U.S. who participates in a scheme to aid other aliens in an illegal entry is inadmissible under the language of 8 U.S.C. section 1182, regardless of whether the assisting individual was present at the border crossing. A petition for review of a decision holding petitioner inadmissible to the U.S. as an alien smuggler under the Immigration and Nationality Act is denied over claims that the BIA based its holding on an erroneous interpretation of the statute and that the holding was not supported by substantial evidence. Read more...

U.S. 6th Circuit Court of Appeals, April 05, 2007
Tapia-Martinez v. Gonzales, No. 05-4413
Petition for review of a denial of petitioner's second motion to reopen her removal proceedings is denied where: 1) the BIA did not abuse its discretion in denying petitioner's second motion to reopen as numerically barred; 2) whether or not equitable tolling applies to numerical limitations on motions to reopen, petitioner failed to establish due diligence in pursuing a complaint against either her former or current counsel; 3) she is statutorily ineligible for cancellation of removal, adjustment of status, and voluntary departure; and 4) the BIA properly exercised its single-member review provision. Read more...

U.S. 7th Circuit Court of Appeals, April 02, 2007
Floroiu v. Gonzales, No. 06-1333
Denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is reversed where the IJ departed from its judicial role and manifested a clear bias against the petitioners that constituted a denial of due process. Read more...

U.S. 7th Circuit Court of Appeals, April 05, 2007
Skorusa v. Gonzales, No. 06-2719
Petition for review of a denial of application for adjustment of status is denied where the IJ did not violate petitioner's statutory rights under the Immigration and Nationality Act ("INA") or his constitutional right to due process by not granting a continuance to obtain evidence in the possession of the FBI. Read more...

U.S. 7th Circuit Court of Appeals, April 06, 2007
Gebreeyesus v. Gonzales, No. 06-2407
Petition for review of a denial of a motion to reopen claims for asylum, withholding of removal, and relief under the Convention Against Torture is granted where the BIA did not consider petitioner's evidence and did not explain why her new evidence was insufficient to change the outcome of the proceedings. Read more...

U.S. 8th Circuit Court of Appeals, April 02, 2007
Tostado v. Carlson, No. 05-1053
An order denying petitioner's application for cancellation of removal is reversed where, based on the recent decision in Lopez v. Gonzalez, 127 S.Ct. 625 (2006), his state-law convictions for possession of marijuana and cocaine were not aggravated felonies for purposes of the Immigration and Naturalization Act (INA). Read more...

U.S. 8th Circuit Court of Appeals, April 02, 2007
Shahinaj v. Gonzales, No. 06-1573
Petition for review of a denial of Albanian citizen's application for asylum and related relief is granted, and the decision vacated, where the IJ's credibility findings, adopted and modified by the BIA, were not supported by the record. Read more...

U.S. 8th Circuit Court of Appeals, April 02, 2007
Poniman v. Gonzales, No. 06-2145
Petition for review of a decision denying petitioner's motion to reopen his removal proceedings on the basis of new, previously unavailable evidence regarding changed conditions in Indonesia is denied where the BIA did not abuse its discretion in denying the motion as the new evidence presented did not show that relocation within Indonesia would be unreasonable. Read more...

U.S. 8th Circuit Court of Appeals, April 02, 2007
Kebede v. Gonzales, No. 06-2172
Petition for review of denial of Ethiopian mother and son's application for asylum and related relief is denied where the BIA did not err in finding that petitioners had failed to establish either past persecution or a well-founded fear of future persecution. Read more...

U.S. 10th Circuit Court of Appeals, April 03, 2007
Torres de la Cruz v. Maurer, No. 06-9515
A petition for review challenging a removal order is dismissed in part for lack of jurisdiction, and denied in part over meritless claims that: 1) the immigration court's interpretation of 8 U.S.C. section 1229b(d)(1), the so-called "stop-time" rule, violated his right to due process and equal protection; and 2) his removal proceedings violated the Vienna Convention and an INS regulation on consular notification rights. Read more...

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