CASES DECIDED IN FEDERAL COURT IN JUNE / JULY 2007

July 23 - July 27, 2007

U.S. 2nd Circuit Court of Appeals, July 26, 2007
Khan v. Gonzales, No. 05-4905
Petition for review of denial of motion for reconsideration in petitioner's application for a waiver of deportability pursuant to former section 212(c) of the Immigration and Nationality Act is denied in part and dismissed in part over claim that the IJ applied the wrong standard and unambiguously misstated pertinent facts. Read more...

U.S. 2nd Circuit Court of Appeals, July 27, 2007
US v. Cuevas, No. 03-1143
Sentence imposed after defendant was extradited from the Dominican Republic and pled guilty to conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine, conspiracy to launder money, and money laundering is remanded as the sentence was imposed prior to the Supreme Court's decision in U.S. v. Booker, 543 U.S. 220 (2005) and must be reconsidered. Read more...

U.S. 7th Circuit Court of Appeals, July 23, 2007
Koutcher v. Gonzales, No. 07-2610
A motion for a stay of removal is denied where the motion failed to set forth any information in support of the criteria that a petitioner seeking a stay of removal pending judicial review must demonstrate. Read more...

U.S. 7th Circuit Court of Appeals, July 26, 2007
Aung v. Gonzales, No. 06-3148
Petition for review of a denial of a request for asylum, withholding of removal and deferral of removal under the Convention Against Torture is denied where the IJ's adverse credibility determination was supported by substantial evidence, and the failure of petitioner's asylum claim precluded success on the remaining claims. Read more...

U.S. 8th Circuit Court of Appeals, July 25, 2007
Mejia-Perez v. Gonzales, No. 06-2033
Petition for review of a denial of an asylum application is denied where the DHS's failure to process petitioner's asylum application for nine years did not constitute affirmative misconduct, thus the government cannot be estopped from denying his application. Read more...

U.S. 9th Circuit Court of Appeals, July 23, 2007
Muradin v. Gonzales, No. 03-74587
Petition for review of an order of removal is reversed where the IJ did not address petitioner's claim that he was persecuted because he belonged to a particular social group, and substantial evidence supported petitioner's eligibility for relief under the Convention Against Torture. Read more...

U.S. 9th Circuit Court of Appeals, July 26, 2007
Morgan v. Gonzales, No. 05-74378
In a petition for writ of habeas corpus challenging a final order of removal on grounds that the government had promised petitioner permanent resident status in exchange for cooperation in a drug prosecution, the petition is denied where plaintiff failed to make out colorable claims for either a due process violation based on estoppel principles or a substantive due process violation under the state-created danger doctrine. Read more...

U.S. 11th Circuit Court of Appeals, July 24, 2007
Djonda v. U.S. Attorney Gen., No. 06-11275
Petition for review of denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where the record does not compel a finding that petitioner suffered or is likely to suffer upon his return more than minor physical abuse and brief detention. Read more...

July 16 - July 20, 2007

U.S. 1st Circuit Court of Appeals, July 17, 2007
Lopez de Hincapie v. Gonzales, No. 06-2259
Petition for review of a denial of an application for asylum, withholding of removal and relief under the Convention Against Torture is denied where no sufficient nexus existed between threats the petitioner received and a protected ground for asylum, and petitioner did not show that torture was likely to occur if she returned to Colombia or that the prospective torturers were either state actor or that state authorities were complicit in the prospective torture. Read more...

U.S. 2nd Circuit Court of Appeals, July 16, 2007
Lin v. US Dep't of Justice, No. 02-4611, 02-4629, 03-40837
In case involving BIA holding that an individual whose spouse has been forced to abort a pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population control program could automatically qualify for asylum as a "refugee" under section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, such holding is incorrect. The BIA failed to acknowledge language in section 601(a) that is unambiguous and does not extend automatic refugee status to spouses or unmarried partners of individuals section 601(a) expressly protects. (On rehearing en banc) Read more...

U.S. 2nd Circuit Court of Appeals, July 17, 2007
Saleh v. Gonzales, No. 05-5909
Petition for review of denial of petitioner's motion to terminate removal proceedings, finding him removable, and denying his application for relief is denied as the amendment of petitioner's conviction to effectively expunge it was secured solely to aid petitioner in avoiding immigration consequences and was not based on any procedural or substantive defect in the original conviction. Read more...

U.S. 2nd Circuit Court of Appeals, July 17, 2007
Chambers v. Gonzales, No. 06-0804
Petition for review of BIA decision ordering removal on the grounds that the petitioner knowingly assisted the attempted entry of an illegal alien is denied over claim that the BIA erred in finding that petitioner knowingly assisted her former boyfriend's attempted illegal entry into the U.S. and that irrespective of whether she knew he could not legally enter, her actions were insufficient to constitute an affirmative act of assistance under 8 U.S.C. section 1182(a)(6)(E)(i). Read more...

U.S. 3rd Circuit Court of Appeals, July 19, 2007
US v. Hernandez-Gonzalez, No. 06-1998
In appeal by prosecution of sentence imposed on defendant after his U.S. following deportation, sentence is vacated as the date that the offense commenced, for purposes of calculating the criminal history score, is the date that defendant entered the U.S., not the date that he was found in the U.S. by immigration authorities. Read more...

U.S. 4th Circuit Court of Appeals, July 16, 2007
Dankam v. Gonzales, No. 06-1277
Petition for review of denial of applications for political asylum, withholding of removal, and relief under the Convention Against Torture is denied as: 1) the IJ concluded properly concluded that petitioner was not statutorily eligible for asylum; 2) there was substantial evidence the IJ's adverse credibility finding; 3) petitioner failed to show independent evidence of past persecution; 4) the IJ offered sufficiently cogent reasons to support the adverse credibility determination; 5) petitioner's failure to establish eligibility for asylum necessarily means she cannot demonstrate eligibility for withholding of removal under the INA; and 6) substantial evidence supports denial of CAT relief based on petitioner's failure to carry her burden of proof. Read more...

U.S. 6th Circuit Court of Appeals, July 18, 2007
Badwan v. Gonzales, No. 05-4412; 06-3404
Petition for review of orders denying an application for adjustment of status and a motion to reopen is granted where the IJ abused his discretion in denying petitioner's unopposed motion for a continuance to present evidence in support of his application for adjustment of status. Read more...

U.S. 8th Circuit Court of Appeals, July 19, 2007
Singh v. Gonzales, No. 06-2594
Petition for review of a denial of application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where the IJ offered an adequate explanation for her findings that petitioners were not credible. Read more...

U.S. 8th Circuit Court of Appeals, July 20, 2007
Awad v. Gonzales, No. 06-2795
Petition for review of an order of removability is denied where the IJ did not err in concluding that petitioner's conviction for a misdemeanor firearm offense under fish and game law constituted grounds for removal. Read more...

U.S. 9th Circuit Court of Appeals, July 17, 2007
US v. Jenkins, No. 06-50049
Dismissal of defendant's indictment for alien smuggling based on the appearance of vindictive prosecution is affirmed where: 1) because the government could have prosecuted defendant for alien smuggling well before she presented her theory of defense at a marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness; and 2) an assertion that the government's case against defendant was much stronger after her in-court admission of alien smuggling did not suffice to dispel the appearance of vindictiveness. Read more...

U.S. 9th Circuit Court of Appeals, July 18, 2007
Hadera v. Gonzales, No. 05-70496
Petition for review of an order of removal is granted and the matter is remanded to the IJ for a redetermination of the country of removal under 8 U.S.C. section 1231(b)(2)(E) as the IJ erred in designating Ethiopia as the country of removal. Read more...

U.S. 9th Circuit Court of Appeals, July 18, 2007
US v. Diaz-Luevano, No. 05-50129
Conviction and sentence for illegal reentry are affirmed and the court of appeals clarifies that an alien's prior physical removal remains one of the bases for sentence enhancement under 8 U.S.C. section 1326 and United States Sentencing Guideline section 2L1.2. Read more...

U.S. 9th Circuit Court of Appeals, July 19, 2007
Singh v. Gonzales, No. 04-72701
Petition for review of a denial of petitioner's motion to reissue a previous BIA opinion after petitioner alleged that he did not receive a copy of the opinion within the appeals period is granted where the BIA did not address the effect of petitioner and counsel's affidavits of nonreceipt on the BIA's presumption of mailing. Read more...

U.S. 11th Circuit Court of Appeals, July 17, 2007
Jimenez v. U.S. Attorney Gen., No. 06-15492
Denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is vacated as to one petitioner's asylum application and order of removal where he suffered past persecution for his political opinion, and vacated as to the other petitioner's application for withholding of removal and order of removal as it was denied based on the IJ's determination that the first petitioner was ineligible for asylum. Read more...

July 09 - July 13, 2007

U.S. 1st Circuit Court of Appeals, July 12, 2007
Heng v. Gonzales, No. 06-1479
Petition for review of a denial of claims for asylum and withholding of removal is granted where the IJ's grounds for an adverse credibility determination were inadequate, both alone and in combination. Read more...

U.S. 2nd Circuit Court of Appeals, July 10, 2007
Khan v. Gonzales, No. 06-2995
Petition for review of a motion to reconsider an earlier order dismissing an appeal from an in absentia order of removal is granted where: 1) the Supreme Court's recent decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), does not require overruling the 2nd Circuit decision in Zhong Guang Sun v. U.S. Dep't of Justice, 421 F.3d 105 (2d Cir. 2005), which held that extraordinary or unique circumstances may excuse the untimely filing of an appeal with the BIA; and 2) there are indications that the BIA did not consider whether petitioner had established such extraordinary or unique circumstances. Read more...

U.S. 2nd Circuit Court of Appeals, July 10, 2007
Batista v. Gonzales, No. 06-3717
Petition for review of a BIA decision reversing an IJ's grant of a waiver of inadmissibility is denied where the BIA's construction of the statutory term "son" to exclude a nephew was reasonable, notwithstanding the fact that the nephew was treated by his aunt as though he were her son. Read more...

U.S. 2nd Circuit Court of Appeals, July 12, 2007
Ni v. Gonzales, No. 04-0042
Petition for review of denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where the IJ's determination that petitioner's testimony was not credible was supported by substantial evidence. Read more...

U.S. 2nd Circuit Court of Appeals, July 13, 2007
Chambers v. Gonzales, No. 06-0804
Petition for review challenging order of removal on the grounds that petitioner knowingly assisted the attempted entry of an illegal alien is denied over petitioner's claim that the BIA erred in finding that she knowingly assisted her former boyfriend's attempted illegal entry into the U.S. and that irrespective of whether she knew he could not legally enter the U.S., her actions were insufficient to constitute an affirmative act of assistance within the meaning of the statute. Read more...

U.S. 3rd Circuit Court of Appeals, July 11, 2007
Henry v. Bureau of Immigration & Customs Enforcement, No. 05-3064
Possession of a loaded firearm with intent to use the same unlawfully against another, as described in New York Penal Law section 265.03, constitutes a crime of violence under 18 U.S.C. section 16(b) and, therefore, an aggravated felony supporting removal. Read more...

U.S. 4th Circuit Court of Appeals, July 10, 2007
Lendo v. Gonzales, No. 05-1715
Petition for review of denial of motion to continue removal proceedings is denied where petitioner was not eligible for adjustment of status when he sought a continuance, and the IJ did not abuse her discretion in refusing to continue petitioner's removal proceedings indefinitely to await a decision on his wife's labor certification application. Read more...

U.S. 4th Circuit Court of Appeals, July 11, 2007
US v. Soriano-Jarquin, No. 05-4962
Conviction for re-entering the U.S. after deportation is affirmed over defendant's claims that: 1) a Virginia State Police officer violated his Fourth Amendment rights by requesting identification from him while he was a passenger in a lawfully stopped vehicle; 2) his Fourth and Fifth Amendment rights were violated when the government produced another man, rather than him, at his preliminary hearing; 3) his re-indictment after dismissal of his first indictment for clerical error violated his Sixth Amendment right to a speedy trial; and 4) Department of Homeland Security regulations governing the testimony of agency employees interfered with his attempt to call an immigration agent as a defense witness, in violation of his Sixth Amendment rights to confrontation of witnesses and compulsory process. Read more...

U.S. 4th Circuit Court of Appeals, July 12, 2007
Abdel-Rahman v. Gonzales, No. 06-1619
Petition for review of denial of application for asylum and withholding of removal is affirmed over claims that the BIA erred in deciding that: 1) petitioner had not established a well-founded fear of persecution on the basis of his actual or imputed political opinions; and 2) a disclosure to Egyptian officials by the Department of Homeland Security that he was applying for asylum in this country failed to establish an independent ground for relief. Read more...

U.S. 7th Circuit Court of Appeals, July 09, 2007
Tadesse v. Gonzales, No. 06-3265
Petition for review of a denial of asylum is granted where the IJ never gave petitioner an opportunity to rebut the government's expert testimony regarding an Ethiopian deportation order and wrongfully disregarded petitioner's corroborating evidence. Read more...

U.S. 8th Circuit Court of Appeals, July 09, 2007
Ikenokwalu-White v. Gonzales, No. 05-3920, 06-2861
In immigration proceedings, petitions for review of denials of petitioner-mother's request for a continuance, and of the BIA's revocation of an immediate relative petition and denial of petitioner-son's motion to reopen, are denied where: 1) the court lacked jurisdiction to review the denial the motion to continue a removal hearing; and 2) the court also lacked jurisdiction to review the immediate relative petition case filed by the son. Read more...

U.S. 9th Circuit Court of Appeals, July 09, 2007
Abebe v. Gonzales, No. 05-76201
Petition for review of a decision finding petitioner ineligible to apply for discretionary relief from removal under former section 212(c) of the INA is denied in part over claims that the BIA's interpretation of former section 212(c) must be rejected because: 1) it is invalid as a matter of statutory construction; 2) it violates principles of equal protection; and 3) it is impermissibly retroactive as applied to him. Read more...

U.S. 11th Circuit Court of Appeals, July 12, 2007
Yang v. U.S. Attorney Gen., No. 06-15742
Petition for review of denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is dismissed in part and denied in part over claims that the BIA's: 1) disparate treatment of lawfully married couples from traditionally married couples from China violated the Equal Protection Clause; 2) adverse credibility finding is not supported by the record; 3) decision that petitioner's and his putative wife's marriage was not a spousal relationship was an unreasonable interpretation of the refugee statute and the C-Y-Z- decision; and 4) conclusion that petitioner had not been persecuted for resisting China's coercive population control program was not supported by the record. Read more...

July 02 - July 06, 2007

U.S. 5th Circuit Court of Appeals, July 03, 2007
Hongyok v. Gonzales, No. 05-61169
Petition for review of a decision denying Thai petitioner withholding of removal and protection under the Convention Against Torture (CAT) is denied where the BIA's conclusion, that petitioner failed to meet her burden to prove that she personally would more likely than not be subject to persecution in Thailand, was supported by substantial evidence. The court does not address the BIA's legal conclusion that escaped sex slaves are not a protected social group. Read more...

U.S. 7th Circuit Court of Appeals, July 05, 2007
Fedosseeva v. Gonzales, No. 06-3216
Petition for review of a denial of asylum and withholding of removal is denied where a claim of statelessness is not grounds for asylum, and substantial evidence supported the IJ's ruling that petitioner did not suffer past persecution or have an objectively reasonable fear of future persecution. Read more...

U.S. 8th Circuit Court of Appeals, July 03, 2007
US v. Torres-Lona, No. 06-4013
A conviction for making a materially false statement to federal immigration officers is affirmed over a claim of erroneous denial of a motion to suppress where the district court did not err in determining defendant's post-Miranda false statement to immigration officers should not be suppressed. Read more...

U.S. 8th Circuit Court of Appeals, July 05, 2007
Sholla v. Gonzales, No. 06-2925
Petition for review of a denial of applications for asylum and related relief, in which petitioner alleged that he was the victim of political persecution in Albania, is granted and the matter remanded where the evidence would compel any reasonable fact finder to conclude that petitioner suffered past persecution as a result of his political beliefs. Read more...

U.S. 9th Circuit Court of Appeals, July 06, 2007
US v. Ruiz-Chairez, No. 05-10226
An enhanced sentence for being found in the U.S. after having been previously deported is affirmed over an equal protection challenge as the Sentencing Commission did not act arbitrarily in treating a felon like defendant, who is convicted of being found in the U.S. after having been previously deported, more severely than a felon who is convicted of a different crime and has the same priors for enhancement purposes. Read more...

U.S. 10th Circuit Court of Appeals, July 03, 2007
Nasious v. Two Unknown B.I.C.E. Agents, No. 07-1105
Dismissal with prejudice under Fed. R. Civ. P. 41(b) of an inmate's civil rights complaint for damages is reversed as there was no indication that the district court had considered the applicable factors for dismissing the case with prejudice, and the appellate court was unable to assess the propriety of the dismissal on its own independent assessment. Read more...

U.S. 11th Circuit Court of Appeals, July 02, 2007
Frech v. US Attorney Gen., No. 06-11276
Petition for review of denial of petitioner's motion to change venue and his application for adjustment of status pursuant to Section 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997 is denied over claim that petitioner was denied due process as a result of the denial of a change in venue, and that the IJ failed to apply the correct legal standard in adjudicating his application for waivers of inadmissibility. Read more...

U.S. 11th Circuit Court of Appeals, July 06, 2007
Lopez v. U.S. Attorney Gen., No. 06-12907
Petition for review of denial of asylum, withholding of removal, and relief under the Convention Against Torture is granted where: 1) an attack on petitioner in Colombia by members of FARC was politically motivated; and 2) was one in a series of threats against her for her humanitarian activities for the Liberal Party. The case must be remanded to allow the IJ to decide whether the threats and attack amount to persecution, and to require petitioner to show she is unable to avail herself of the protection of her home country. Read more...

Jume 25 - June 29, 2007

U.S. 1st Circuit Court of Appeals, June 27, 2007
Sipayung v. Gonzales, No. 06-2305
Petition for review of a denial of applications for asylum and withholding of removal is denied where the court does not have jurisdiction over the BIA's determination that the asylum claim was untimely, and petitioner did not show past persecution or a probability of future persecution. Read more...

U.S. 2nd Circuit Court of Appeals, June 25, 2007
Chen v. Gonzales, No. 04-1389
Petition for review challenging denial of motion for reconsideration of the denial of petitioner's motion to reopen is denied over alternative claims that: 1) the pending petition for review before this Court rendered the BIA's decision non-final, and therefore the 90-day period had not yet begun to run; 2) the pending petition for review before this Court equitably tolled the 90-day period; and 3) alternatively, the BIA should have granted the motion on humanitarian grounds notwithstanding its untimeliness. Read more...

U.S. 2nd Circuit Court of Appeals, June 26, 2007
Koudriachova v. Gonzales, No. 03-4811
Petition for review of orders dismissing application for asylum and denying motion to reconsider is granted as to the decision dismissing petitioner's appeal, as it contains significant ambiguities and potential misunderstandings of the relevant legal standards. Read more...

U.S. 2nd Circuit Court of Appeals, June 27, 2007
Mizrahi v. Gonzales, No. 05-0010
Petition for review of an order of removal is denied over claim that the BIA erred in ruling that petitioner's 2002 New York State conviction for fourth-degree solicitation to sell drugs in violation of the state's generic solicitation statute rendered him inadmissible to the U.S. Read more...

U.S. 3rd Circuit Court of Appeals, June 26, 2007
Briseno-Flores v. Attorney Gen. of the US, No. 05-5323
A petition for review of a decision denying petitioner suspension of deportation under the statute in effect at the time he applied for such relief is denied where: 1) 8 U.S.C. section 1229b(d)(1)(B) applies to petitioner's request for suspension of deportation under 8 U.S.C. section 1254(a)(1); 2) the BIA's interpretation of the language of section 1229b(d) was reasonable; 3) petitioner was not eligible for suspension of deportation as he did not achieve the required seven years of continuous physical presence immediately preceding the date of his application. Read more...

U.S. 5th Circuit Court of Appeals, June 25, 2007
Rosa v. Gonzales, No. 05-60231
A decision reinstating a previous removal order under 8 U.S.C. section 1231(a)(5) is affirmed where the application of section 1231(a)(5) was not impermissibly retroactive in the case. Read more...

U.S. 5th Circuit Court of Appeals, June 25, 2007
Theodros v. Gonzales, No. 05-60980
Petition for review of a decision, which found petitioner removable and denied his application for status adjustment because he had made a false claim to U.S. citizenship to gain employment, is denied where: 1) sufficient evidence clearly supported an IJ's finding that petitioner falsely represented to employers that he was a U.S. citizen; and 2) the BIA reasonably found that private sector employment was a "purpose or benefit" under 8 U.S.C. section 1227(a)(3)(D). Read more...

U.S. 5th Circuit Court of Appeals, June 27, 2007
Vidal v. Gonzales, No. 07-60070
Once the attorney general has granted an alien voluntary departure, the court of appeals has jurisdiction to toll the period of voluntary departure, already granted by the agency, pending review of the underlying removal decision. Read more...

U.S. 7th Circuit Court of Appeals, June 27, 2007
Leguizamo-Medina v. Gonzales, No. 06-4039
Petition for review of a removal order is dismissed for lack of jurisdiction where petitioner's brief did not present any question of law. Read more...

U.S. 8th Circuit Court of Appeals, June 27, 2007
Bartolo-Diego v. Gonzales, No. 06-1642
Petition for review of a denial of Guatemalan petitioner's claim for asylum and related relief is denied where: 1) the appeals court lacked jurisdiction to review the asylum claim; 2) withholding of removal was properly denied as the evidence of past persecution did not compel the conclusion that petitioner was persecuted based on a protected classification; 3) the record did not compel a conclusion that there is a clear probability that petitioner will face future persecution should he be removed to Guatemala; and 4) petitioner failed to establish that it is more likely than not that he would be tortured if returned to Guatemala. Read more...

U.S. 9th Circuit Court of Appeals, June 25, 2007
Singh v. Gonzales, No. 05-55933
A habeas petition is "pending" in the district court within the meaning of the REAL ID Act's (RIDA) transfer provision when the notice of appeal was not filed at the time RIDA was enacted, but was filed within the sixty day limitations period for filing a timely appeal of a habeas petition under Federal Rules of Appellate Procedure 4(a)(1)(B). Petition for review of a denial of Indian citizen's petition for writ of habeas corpus, which challenged a denial of his motion to reopen removal proceedings, is denied where: 1) the motion to reopen was untimely; and 2) petitioner was not entitled to equitable tolling because of his lack of due diligence. Read more...

U.S. 10th Circuit Court of Appeals, June 26, 2007
US v. Spear, No. 06-1296
In a criminal matter involving a defendant who worked as a federal immigration employee responsible for the intake of certain immigration applications, and who kept the accompanying fees but threw the applications in the trash, a sentence for embezzlement of government funds in excess of $1,000 is reversed and remanded where defendant's position lacked the authority and discretion required for the abuse of public trust sentence enhancement. Read more...

Texas Criminal Court of Appeals, June 27, 2007
Vannortrick v. State of Texas, No. 0923-06, 0924-06
When the trial court fails to admonish a defendant about the immigration consequences of his guilty plea, a silent record on citizenship, or a record that is insufficient to determine citizenship, establishes harm by the standard of Rule of Appellate Procedure 44.2(b). Read more...

Texas Criminal Court of Appeals, June 27, 2007
Fakeye v. State of Texas, No. 0514-06
In a criminal case involving a plea to organized criminal activity wherein the trial court failed to admonish appellant of the deportation consequences of his plea, a court of appeals decision holding that a trial court's failure to correctly admonish defendant was harmful error, and remanding the case, is affirmed where the court of appeals performed a proper analysis of the record to determine whether appellant was harmed by the trial court's error, and its decision to reverse and remand was proper. Read more...

Jume 18 - June 22, 2007

U.S. 1st Circuit Court of Appeals, June 22, 2007
Babani v. Gonzales, No. 06-2016
Petition for review of denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is denied where petitioner offered no evidence of a connection between official mistreatment and her political beliefs. Read more...

U.S. 2nd Circuit Court of Appeals, June 19, 2007
Nwogu v. Gonzales, No. 06-2169
Petition for review of denial of a motion for the BIA to reconsider its decision dismissing petitioner's untimely appeal from the IJ's removal order, is denied over petitioner's claim that he placed his appeal papers in the mail more than one week before the deadline for appeal from the IJ decision. Read more...

U.S. 2nd Circuit Court of Appeals, June 20, 2007
Chhetry v. US Dep't of Justice, No. 06-3416
Denial of motion to reopen is vacated as the BIA exceeds its allowable discretion when, in denying a motion to reopen based solely on facts of which it took administrative notice, it fails to give the petitioner an opportunity to rebut the inferences it drew from those noticed facts. Read more...

U.S. 3rd Circuit Court of Appeals, June 20, 2007
Chen v. Attorney Gen. of the US, No. 05-4011
A petitioner may qualify for asylum on the basis of a well-founded fear that his spouse may face forced abortion or sterilization. Read more...

U.S. 5th Circuit Court of Appeals, June 18, 2007
Fuentes-Cruz v. Gonzales, No. 06-60456
Petition for review of a denial of an application for cancellation of removal is dismissed where the IJ and BIA properly found that petitioner's conviction of the Texas offense of Unlawful Transport under Tex. Penal Code Ann. section 20.05 is a crime involving moral turpitude. Read more...

U.S. 5th Circuit Court of Appeals, June 19, 2007
Walji v. Gonzales, No. 06-20937
When a U.S. Citizenship and Immigration Services (CIS) examination is premature because a mandatory security investigation is not complete, the 120-day time period of 8 U.S.C. section 1447(b) that allows for judicial adjudication of the matter, does not begin to run until CIS receives the FBI's "definitive response" described in 8 C.F.R. section 335.2(b). Read more...

U.S. 6th Circuit Court of Appeals, June 21, 2007
US v. Ossa-Gallegos, No. 05-5824
"Tolling" is not a "condition" in the sense in which the term is used in 18 U.S.C. section 3583(d), and therefore, courts do not have authority under section 3583(d) to issue special "conditions" of supervised release which toll the period for which deported aliens are subject to supervised release. Consequently, the practice of tolling a period of supervised release for a deported offender is not authorized by sentencing statutes. Read more...

U.S. 7th Circuit Court of Appeals, June 21, 2007
Gutierrez-Almazan v. Gonzales, No. 05-4494
Petition for review of a removal order is granted and the matter remanded to the BIA where the court is unable to determine from the BIA's conclusory statement whether it abused its discretion by refusing to accept petitioner's late brief. Read more...

U.S. 8th Circuit Court of Appeals, June 21, 2007
Gebresadik v. Gonzales, No. 06-2420
Petition for review of a denial of Ethiopian petitioner's application for asylum and related relief is denied where: 1) there was sufficient evidence to support an IJ's conclusion that because petitioner failed to meet her burden of proof, she is not eligible for asylum; 2) consequently she was ineligible for withholding relief; and 3) the conclusions that supported denying asylum and withholding also supported denying CAT claims. Read more...

U.S. 9th Circuit Court of Appeals, June 21, 2007
Moreno-Morante v. Gonzales, No. 05-75376
A United States citizen grandchild, in the lawful custody of non-citizen grandparents, does not meet the statutory definition of "qualifying relative" for the purpose of cancellation of removal. Read more...

U.S. 10th Circuit Court of Appeals, June 20, 2007
Gradiz v. Gonzales, No. 06-9534
An order of removal based on petitioner's conviction for an aggravated felony is affirmed over his claims that his deferred plea agreement was not a conviction under 8 U.S.C. section 1228, and that the crime to which he pleaded was not an aggravated felony subject to deportation. Read more...

U.S. 11th Circuit Court of Appeals, June 18, 2007
Li v. U.S. Attorney Gen., No. 06-15148
Denial of motion to reopen removal proceedings is vacated as the BIA abused its discretion when it refused to reopen petitioner's removal proceedings after she established a prima facie case of eligibility for withholding of removal, with evidence showing that the Chinese government considers foreign-born children of Chinese nationals equivalent to children born in China for purposes of the one-child policy by sterilization. Read more...

Jume 11 - June 15, 2007

U.S. 1st Circuit Court of Appeals, June 13, 2007
Pena-Muriel v. Gonzales, No. 05-1937
Refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where: 1) a statutory change did not alter a regulation prohibiting a motion to reopen after the removal subject had left the U.S.; and 2) the denial of the motion to reopen did not violate due process. Read more...

U.S. 2nd Circuit Court of Appeals, June 13, 2007
De La Rosa v. Dep't of Homeland Sec., No. 06-2363
Decision pretermitting an application for a waiver of inadmissibility under section 212(c) of the Immigration and Naturalization Act is affirmed as a lawful permanent resident who has procured her status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212(c). Read more...

U.S. 2nd Circuit Court of Appeals, June 14, 2007
Fong Chen v. Gonzales, No. 06-1010
In case involving one-child policy in Changle City, in the Fujian Province of the People's Republic of China, and forced sterilization after birth of second child, petition for review of denial of untimely motion to reopen removal proceedings is granted as a petitioner who submits only the 2003 decisions from the Changle City Family-Planning Board and Fujian Province Department of Family-Planning Administration but not the Q & A for Changle City Family-Planning Information Handbook, are sufficient to present to the BIA the same alleged policy discussed in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). Read more...

U.S. 2nd Circuit Court of Appeals, June 15, 2007
Colaianni v. INS, No. 05-3384
Petition for review challenging denial of petitioner's claim that he is a U.S. citizen and therefore not subject to removal is denied as: 1) petitioner's citizenship claim is invalid; and 2) application of former sections 320-322 of the Immigration & Nationality Act does not violate his Fifth Amendment right to equal protection. Read more...

U.S. 3rd Circuit Court of Appeals, June 15, 2007
Fadiga v. Attorney Gen. USA, No. 05-4910
An alien claiming ineffective assistance of counsel in removal proceedings must, in addition to showing that his lawyer committed unprofessional errors, show that there was a "reasonable likelihood that the result would have been different if the error[s] ... had not occurred." A petition for review of a final order of removal as to his claims for withholding under the INA and protection under the CAT is granted where the BIA abused its discretion in denying petitioner's motion to reopen/remand based on a claim of ineffective assistance. Read more...

U.S. 4th Circuit Court of Appeals, June 12, 2007
Niang v. Gonzales, No. 06-1470
Denial of application for withholding of removal is affirmed where petitioner's claim focuses solely on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is subjected to female genital mutilation, and there is no derivative withholding claim recognized for petitioner's daughter. Read more...

U.S. 6th Circuit Court of Appeals, June 15, 2007
Matovski v. Gonzales, No. 05-4534
A BIA decision finding petitioners-Macedonian citizens deportable is reversed in part pursuant to a claim that the BIA erred when it ruled that an IJ lacked jurisdiction to adjudicate the portability of petitioner's I-140 form under 8 U.S.C. section 1154(j) in a removal proceeding. Read more...

U.S. 6th Circuit Court of Appeals, June 15, 2007
Bu v. Gonzales, No. 05-4663
A decision denying petitioner asylum is remanded for further proceedings where: 1) the IJ misapprended the nature of petitioner's claim that he had suffered past persecution in his native China based on political opinion; and 2) substantial evidence failed to support the denial of asylum. Read more...

U.S. 6th Circuit Court of Appeals, June 15, 2007
Elias v. Gonzales, No. 06-3366
In an asylum case brought by petitioner, a native of Iraq and a Chaldean Christian, petition for review of a BIA decision dismissing petitioner's appeal from an oral decision of an IJ is granted and the decision vacated where the circuit court could not conclude that an adverse credibility determination was supported by substantial evidence due to the IJ's behavior during the hearing, specifically, due to the IJ's exhibiting apparent bias and hostility toward petitioner. Read more...

U.S. 7th Circuit Court of Appeals, June 11, 2007
Chen v. Gonzales, No. 06-3980
Denial of an application for asylum is vacated and the case remanded to the BIA to consider: 1) what financial exactions are normally used in Fujian province in China as part of its family planning system; 2) how those consequences should be classified under the legal standard that separates inducement and encouragement from "force," which immigration law treats as persecution; and 3) new evidence placed before the BIA by the 2nd Circuit. Read more...

U.S. 9th Circuit Court of Appeals, June 12, 2007
Singh v. Gonzales, No. 03-74390
A petition for review brought by a Sikh citizen of India challenging a final order of deportation is granted and the matter remanded where an IJ erred in denying applications for asylum and related relief, solely on the basis of an adverse inference drawn from petitioner's refusal to allow access to a Canadian immigration file under his name. Read more...

U.S. 9th Circuit Court of Appeals, June 14, 2007
Goel v. Gonzales, No. 05-70298, 05-74006
Indian citizen's petition for review of a final order of removal and a denial of a motion to reopen is denied as: 1) polygraph evidence provides no adequate basis for reopening a removal decision because it is not evidence that was previously unavailable within the meaning of the applicable regulation; and 2) an original negative credibility finding was supported by substantial evidence. Read more...

U.S. Federal Circuit Court of Appeals, June 15, 2007
Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep't of Homeland Sec., No. 2006-1528
An order transferring immigration bond agency's claims against the government to the United States Court of Federal Claims is vacated where the agency's claims were not Tucker Act claims for monetary relief, and thus, the Court of Federal Claims lacked jurisdiction. Read more...

Jume 4 - June 8, 2007

U.S. 1st Circuit Court of Appeals, June 06, 2007
Lemus v. Gonzales, No. 06-1628
Petition for review of a denial of a motion to reopen removal proceedings is denied where the petitioner offered materials designed to persuade the BIA that its original assessment of country conditions was incorrect rather than arguing that country conditions have worsened since the BIA ordered her removal. Read more...

U.S. 1st Circuit Court of Appeals, June 06, 2007
US v. Earle, No. 06-1727
Conviction and sentence for illegal reentry of a deported alien are affirmed over defendant's arguments that: 1) his right to confrontation under the Sixth Amendment was violated by the admission at trial of a Certificate of Nonexistence of a Record; 2) the district court erred in refusing to instruct the jury that it must find that his prior deportation was lawful beyond a reasonable doubt; 3) the district court erred in imposing a 16-level enhancement under the Sentencing Guidelines for a prior deportation after conviction of a "crime of violence"; and 4) his sentence was in excess of the applicable statutory maximum because the fact that he had previously been convicted of an aggravated felony was not found by the jury beyond a reasonable doubt. Read more...

U.S. 1st Circuit Court of Appeals, June 07, 2007
Pan v. Gonzales, No. 06-2166
Petition for review of a denial of an application for asylum, withholding of removal, or protection under the Convention Against Torture is denied where: 1) the court does not have jurisdiction to review a determination that the petitioner did not file his asylum application within the one year limit; 2) petitioner's legal challenge to the time limit holding was merely a disguised factual challenge; 3) the IJ's adverse credibility determination was supported by substantial evidence; and 4) the petitioner abandoned his claim for relief under the CAT. Read more...

U.S. 2nd Circuit Court of Appeals, June 06, 2007
Peralta-Taveras v. Gonzales, No. 06-2125
Petition for review of denial of applications for waiver of deportation under former section 212(c) of the INA, and cancellation of removal under section 240A(a) of the INA is denied as the IJ correctly concluded that petitioner cannot obtain relief from deportation through simultaneous consideration of his applications for cancellation of removal under section 240A and a waiver under section 212(c). (Amended) Read more...

U.S. 2nd Circuit Court of Appeals, June 06, 2007
Ye v. US Dep't of Justice, No. 05-0170
Petition for review of denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture is denied over primary claim that the IJ, Judge, in finding petitioner incredible, impermissibly relied upon "striking similarities" between petitioner's affidavit and an affidavit filed by a different alien in a separate case. Read more...

U.S. 5th Circuit Court of Appeals, June 04, 2007
Romero-Rodriguez v. Gonzales, No. 05-60661
In the context of an alien's ineligibility to apply for a waiver of removal under INA section 212(c) if they have "served...a term of imprisonment of at least 5 years", the BIA may determine the length of an alien's term of imprisonment by using the date of the BIA's subsequent denial following the reopening of the case. Read more...

U.S. 5th Circuit Court of Appeals, June 04, 2007
Said v. Gonzales, No. 05-60907
A Palestinian refugee's petition for review of a decision of the BIA is dismissed as the court of appeals had no jurisdiction to review the BIA's discretionary decisions regarding waiver of removal based on extreme hardship to a U.S. citizen relative or spouse. Read more...

U.S. 6th Circuit Court of Appeals, June 05, 2007
Garza-Moreno v. Gonzales, No. 06-3562, 06-4024
8 U.S.C. section 1252 does not strip the court of appeals of jurisdiction to review the denial of an administrative closure. A petition for review of a BIA order to have petitioners removed is dismissed in part and denied in part over claims that: 1) they were denied due process by various problems with the proceedings before the IJ and the BIA; 2) the BIA erred in denying cancellation of removal; and 3) the BIA abused its discretion by refusing to administratively close the case. Read more...

U.S. 7th Circuit Court of Appeals, June 06, 2007
Alimi v. Gonzales, No. 06-3199
After issuance of a removal order for a legal permanent resident who had engaged in alien smuggling, petition for review is denied where: 1) petitioner did not make a substantial argument that she was denied a constitutional right to due process in her removal proceeding; 2) petitioner did not demonstrate that the proceeding failed to comply with the applicable statutory standards; 3) petitioner could not demonstrate prejudice on her due process or statutory claims; and 4) no prejudice occurred when petitioner was not fully advised of her rights during the proceeding. Read more...

U.S. 9th Circuit Court of Appeals, June 04, 2007
Abdala v. Immigration & Naturalization Serv., No. 06-55774
In proceedings arising after petitioner was ordered removed to Somalia as a result of his criminal convictions, petitioner's appeal from a denial of his habeas petition is dismissed as moot where, because petitioner's habeas claims challenged only the length of his detention, as distinguished from the lawfulness of the deportation order, his grievance could no longer be remedied once he was deported. Read more...

U.S. 9th Circuit Court of Appeals, June 06, 2007
Tang v. Gonzales, No. 04-70804
Petition for review of a denial of Chinese petitioner's application for asylum and withholding of removal, which alleged that an abortion performed on his wife constituted persecution by the Chinese government as a forced abortion, is granted where: 1) petitioner established that his s wife underwent a forced abortion within the meaning of 8 U.S.C. section 1101(a)(42)(B), and was therefore statutorily eligible for asylum; and 2) victims of forced abortion, like victims of forced sterilization, are statutorily entitled to withholding of removal. Read more...

U.S. 9th Circuit Court of Appeals, June 07, 2007
Reynoso-Cisneros v. Gonzales, No. 05-71803
A petition for review of a BIA order denying petitioner's motion to reopen exclusion proceedings is granted where: 1) petitioner filed her motion to reopen after she departed the U.S. under an exclusion order and, thus, after the completion of immigration proceedings; and 2) consequently, the BIA erred in concluding it lacked jurisdiction over the motion to reopen. Read more...

U.S. 11th Circuit Court of Appeals, June 06, 2007
Morales v. U.S. Attorney. Gen., No. 06-14911
Petition for review of order of removal is denied where: 1) the record does not compel reversal of the BIA's finding that petitioner failed to demonstrate a nexus between his political opinion and his persecution, as required for asylum relief or withholding of removal; and 2) petitioner testified that the authorities were helpful in protecting him from the guerrillas, the record does not compel a finding that the authorities acquiesced to any alleged torture, as required for CAT relief. Read more...

New York Court of Appeals, June 07, 2007
Cubas v. Martinez, No. 74
Dismissal of challenge to policy of respondent department of motor vehicles that no driver's licenses be issued to applicants who lack valid social security numbers, unless they prove they are ineligible for SSNs, is affirmed except as to declaratory judgment that respondent's one year six month policy is within his authority and enforceable, which is deleted. Read more...

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