CASES DECIDED IN FEDERAL COURT IN AUGUST / SEPTEMBER 2007

September 24 - September 28, 2007

U.S. 1st Circuit Court of Appeals, September 27, 2007
Sunoto v. Gonzales, No. 06-1366
Petition for review of a denial of an application for asylum, withholding of removal and voluntary departure is denied where petitioner failed to exhaust his administrative remedies for most of his claims, and the IJ did not lack a sufficient basis in the record for an adverse credibility finding. Read more...

U.S. 1st Circuit Court of Appeals, September 27, 2007
Guillaume v. Gonzales, No. 06-1547
Petition for review of an application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where 1) the court lacks jurisdiction over his asylum claim; 2) the CAT claim was abandoned; and 3) the BIA's rejection of the withholding of removal claim was supported by substantial evidence. Read more...

U.S. 1st Circuit Court of Appeals, September 27, 2007
Ferdinandus v. Gonzales, No. 07-1166
Petition for review of a denial of an application for asylum and withholding of removal is denied where the court lacks jurisdiction over the petitioners' asylum application because the BIA's timeliness determination is not reviewable, and petitioners had not established past persecution or a likelihood of future persecution. Read more...

U.S. 3rd Circuit Court of Appeals, September 25, 2007
Biskupski v. Attorney Gen. of the US, No. 06-1887
In the context of the applicability of the new definitions of aggravated felony to immigration cases commenced prior to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), "actions taken" in section 321(c) of IIRIRA refers to orders and decisions of an IJ or the BIA which apply the "aggravated felony" definitions in 8 U.S.C. section 1101(a)(43) to determine the availability of hardship relief. Read more...

U.S. 4th Circuit Court of Appeals, September 26, 2007
Fernandez v. Keisler, No. 06-2209
Petition for review challenging order of removal is denied as petitioner does not qualify as a national of the U.S. under the BIA's interpretation of the Immigration and Nationality Act, and the BIA's interpretation is not arbitrary, capricious, or manifestly contrary to the statute. Read more...

September 17 - September 21, 2007

U.S. 1st Circuit Court of Appeals, September 17, 2007
Perez De Vega v. Gonzales, No. 06-1813
Petition for review of a determination of inadmissibility and a denial of cancellation of removal is denied where: 1) the purpose, duration, and nature of a legal permanent resident's departure from the U.S. are irrelevant to the legal determination of whether she must undergo the admission process upon her return; and 2) the evidence contained in the record clearly and convincingly supports the IJ's finding that petitioner was convicted of a crime amounting to an aggravated felony. Read more...

U.S. 1st Circuit Court of Appeals, September 17, 2007
Hana v. Gonzales, No. 06-2137
Petition for review of a denial of applications for asylum, withholding of removal and protection under the Convention Against Torture is denied where: 1) petitioner did not point to a legal or constitutional defect in the decision that there were no extraordinary circumstances justifying his delayed application for asylum, thus the panel has no jurisdiction to review the denial; 2) the judicial review bar does not represent a due process violation; and 3) the BIA's findings that petitioner failed to show that he was likely to face persecution or torture upon return to his home country were supported by substantial evidence. Read more...

U.S. 1st Circuit Court of Appeals, September 19, 2007
Zeru v. Gonzales, No. 06-1399
Petition for review of the denial of an application for asylum, withholding of removal, voluntary departure, and relief under the Convention Against Torture is denied over petitioners' arguments that: 1) the IJ erred in its adverse credibility determination; 2) they suffered from ineffective assistance of counsel during the appeal of the asylum proceedings; and 3) the BIA erred in discounting newly presented evidence in denying a motion to reopen. Read more...

U.S. 1st Circuit Court of Appeals, September 21, 2007
Cruz-Camey v. Gonzales, No. 06-2590
Petition for review of a BIA order vacating an IJ's grant of petitioner's application for cancellation of removal is dismissed for lack of jurisdiction insofar as it challenged the BIA's discretionary decision to deny cancellation, and denied on the merits since an IJ's order cancelling removal implicitly includes a threshold determination that the petitioner is otherwise subject to removal, and a BIA reversal of cancellation simply reinstates the IJ's implicit order of removability. Read more...

U.S. 2nd Circuit Court of Appeals, September 19, 2007
Dulal-Whiteway v. US Dep't of Homeland Sec., No. 05-3098
Order of removal on grounds that petitioner's conviction for making false statements in connection with the acquisition of a firearm was a firearm offense rendering him removable, and that his conviction for fraud in connection with unauthorized access devices was an aggravated felony also rendering him removable, is vacated to the extent the IJ erred in finding petitioner removable for the fraud offense as it was improper for the IJ and BIA to have relied upon a restitution order to determine that petitioner was convicted of an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000. Read more...

U.S. 2nd Circuit Court of Appeals, September 20, 2007
Zheng v. Gonzales, No. 05-5741
Petition for review challenging denial of petitioner's motion to reopen his asylum proceedings is denied where the BIA did not abuse its discretion in determining that the petitioner failed to demonstrate changed country conditions. Read more...

U.S. 3rd Circuit Court of Appeals, September 17, 2007
Luciana v. Attorney Gen. of the US, No. 05-3544
Petition for review of an order denying native Indonesian's applications for asylum and related relief is granted where, as a matter of law, a single fabricated incident in petitioner's time-barred asylum application did not render the application frivolous for purposes of rendering her permanently ineligible for any and all benefits under the INA. Read more...

U.S. 3rd Circuit Court of Appeals, September 19, 2007
Shardar v. Attorney Gen. of the US, No. 06-1238
Petition for review of an order denying Bangladesh native's motion to reopen removal proceedings is granted where the BIA abused its discretion in arbitrarily and capriciously finding that: 1) new evidence did not show a change in country conditions for purposes of allowing a motion to reopen to be brought; and 2) new and prior evidence in the record together failed to make out a prima facie case for asylum. Read more...

U.S. 6th Circuit Court of Appeals, September 18, 2007
Bilali v. Gonzales, No. 06-4050
A petition for review of a denial of petitioner's motion for reconsideration arising from adjustment of status proceedings is denied as an IJ's prior determination regarding whether petitioner's marriage was bona fide was not a final judgment on the merits, but merely the first step in a procedure that expressly provides for further inquiry into the validity of the marriage before a final determination is made. Read more...

U.S. 7th Circuit Court of Appeals, September 20, 2007
Wang v. Keisler, No. 05-1780
Petition for review of the denial of an application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where the IJ's determination that the petitioners were not credible, had not suffered past persecution and had not demonstrated a well-founded fear of future persecution was supported by substantial evidence. Read more...

U.S. 9th Circuit Court of Appeals, September 18, 2007
Kawashima v. Gonzales, No. 04-74313
Japanese natives' petitions for review of removal orders are denied in part and granted in part where: 1) for purposes of constituting a removable offense, petitioner-husband's conviction for subscribing to a false statement on a tax return qualified as an "aggravated felony" under the relevant immigration laws; 2) however, petitioner-wife's conviction for aiding and assisting in the preparation of a false tax return did not qualify as such; and 3) there was no error in denying husband's motion to reopen as untimely. Read more...

U.S. 9th Circuit Court of Appeals, September 19, 2007
Navarro-Lopez v. Gonzales, No. 04-70345
Petition for review of a final order of removal is granted as petitioner's conviction under California Penal Code section 32 for accessory after the fact was not a conviction for a crime involving moral turpitude, for purposes of rendering him inadmissible and ineligible for cancellation of removal. Read more...

U.S. 9th Circuit Court of Appeals, September 19, 2007
Melendez v. Gonzales, No. 05-73581
An alien may not avoid the immigration consequences of a drug conviction as a "first time offender" when, as the result of a previous arrest for drug possession, he was granted "pretrial diversion" under a state rehabilitation scheme that did not require him to plead guilty. Read more...

U.S. 11th Circuit Court of Appeals, September 19, 2007
Jean-Pierre v. U.S. Attorney Gen., No. 06-13359
In case involving a gravely ill AIDS patient claiming he will be tortured in jail if he is removed to Haiti as a criminal alien, petition for review challenging denial of application for withholding of removal is granted where thee BIA failed to consider the heart of petitioner's claims that certain conduct carried out in Haiti is torture. Read more...

September 10 - September 14, 2007

U.S. 1st Circuit Court of Appeals, September 14, 2007
Tendean v. Gonzales , No. 06-1735
Petition for review of a denial of a request for asylum, withholding of removal, and protection under the Convention Against Torture is denied where, even assuming that petitioner has shown past persecution, substantial evidence supports the BIA's findings that petitioner could avoid future persecution by relocating to an area outside his former village, and that it is reasonable to expect petitioner to do so. Read more...

U.S. 1st Circuit Court of Appeals, September 14, 2007
Lin v. Gonzales, No. 06-2155
Petition for review of a denial of application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where substantial evidence supported the BIA's determination that petitioner lacked credibility. Read more...

U.S. 1st Circuit Court of Appeals, September 14, 2007
Kozak v. Gonzales, No. 07-1169
Petition for review of a denial of a motion to reopen removal proceedings is granted where the BIA applied an inappropriate legal standard in determining whether or not petitioner had received notice of the removal hearing. Read more...

U.S. 2nd Circuit Court of Appeals, September 11, 2007
Pierre v. Gonzales, No. 05-3260
Petition for review challenging denial of application for withholding of removal under the Convention Against Torture is denied over claims that: 1) petitioner has shown a sufficient likelihood that he will be tortured if he is deported to Haiti, as all Haitians who are deported from the U.S. for criminal conduct are imprisoned indefinitely, and as prison conditions prevailing in Haiti amount to torture; 2) the BIA's decision in In re J-E-, 23 I. & N. Dec. 291 (B.I.A. 2002), which held that a Haitian petitioner faced with this detention is not entitled to CAT relief, was wrong; and 3) petitioner's case is distinguishable from In re J-E5 as his medical conditions will be inadequately treated in the Haitian prisons. Read more...

U.S. 2nd Circuit Court of Appeals, September 11, 2007
Chen v. US Attorney Gen., No. 06-3594
Petition for review challenging denial of motion to reopen is denied over claim that petitioner did not receive the asylum decision and removal order in the mail and she therefore seeks reissuance of the decision so that the time for petitioning for review of the asylum decision will run anew from the date of reissuance. Read more...

U.S. 2nd Circuit Court of Appeals, September 11, 2007
Maiwand v. Gonzales, No. 05-6055
Petition for review challenging denial of application for a waiver of inadmissibility, request for relief under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and motion to terminate removal proceedings is dismissed as to those arguments that raise no constitutional claim, question of law, or to the extent the petition seeks review of the correctness of the IJ's fact-finding. All other remaining claims are denied. Read more...

U.S. 2nd Circuit Court of Appeals, September 13, 2007
Nguyen v. Chertoff, No. 053250
Petition for review challenging order holding petitioner removable under the expanded 1996 definition of aggravated felony is granted despite a judicial recommendation against deportation entered at the time of petitioner's 1989 conviction for the qualifying felony, where the relevant statutory texts support his JRAD defense, even though petitioner is certainly now deportable as an aggravated felon. Read more...

U.S. 7th Circuit Court of Appeals, September 13, 2007
Moab v. Gonzales, No. 06-2710
Petition for review of a denial of an application for asylum, withholding of removal and protection under the Convention Against Torture is granted where the BIA's determination that petitioner's account of harm became more egregious throughout the proceedings was not supported by substantial evidence. Read more...

U.S. 7th Circuit Court of Appeals, September 14, 2007
Ali v. Gonzales, No. 06-3240
Petition for review of a denial of a request for a continuance and subsequent motion for reconsideration is dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality Act (INA) generally precludes judicial review of continuance decisions of immigration judges; and 2) selective prosecution claims by aliens are largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of discrimination were insufficient to invoke the exception for outrageous cases. Read more...

U.S. 7th Circuit Court of Appeals, September 14, 2007
BinRashed v. Gonzales, No. 06-2939
Petition for review of a denial of requests for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture is granted and the matter remanded where the IJ and BIA disregarded critical and probative evidence in support of petitioner's claims. Read more...

U.S. 8th Circuit Court of Appeals, September 13, 2007
US v. Solis-Bermudez, No. 06-3548
Conviction and sentence based on guilty plea to illegally reentering the U.S. after defendant was deported subsequent to his conviction for commission of an aggravated felony is affirmed as the district court did not abuse its discretion by varying upward and imposing a 60-month non-Guidelines sentence. Read more...

U.S. 9th Circuit Court of Appeals, September 12, 2007
Marmolejo-Campos v. Gonzales, No. 04-76644
Petition for review of the dismissal of an appeal from an order of removal is denied where a violation of the Arizona Revised Statutes for aggravated DUI involving actual driving by an individual who knows that they are prohibited from driving is a crime involving moral turpitude. Read more...

U.S. 11th Circuit Court of Appeals, September 11, 2007
US v. Maturin, No. 07-10481
Conviction and sentence based on guilty plea to illegally reentering the U.S. after having previously been deported is affirmed over claim that defendant is not subject to a 17-month sentence enhancement as the term of imprisonment for his offense ended more than 15 years before his reentry. Read more...

September 03 - September 07, 2007

U.S. 1st Circuit Court of Appeals, September 06, 2007
Yu v. Gonzales, No. 06-2179
Petition for review of a final order of removal is denied where the record provided sufficient support for the IJ's adverse credibility determination and the denial of relief. Read more...

U.S. 1st Circuit Court of Appeals, September 06, 2007
Mejia-Orellana v. Gonzales, No. 06-2454
Petition for review of a denial of a cancellation of removal is denied where an alien who has acquired lawful permanent resident status by fraud or misrepresentation has not been lawfully admitted and so is ineligible for a cancellation of removal. Read more...

U.S. 2nd Circuit Court of Appeals, September 04, 2007
Gao v. US Attorney Gen., No. 06-3285
Petition for review challenging decision finding petitioner statutorily ineligible for asylum or withholding of removal on the basis of the persecutor bar is granted as the IJ erred in concluding that petitioner was statutorily barred from obtaining asylum or withholding of removal on the basis that he had "assisted" in the persecution of others. Read more...

U.S. 3rd Circuit Court of Appeals, September 06, 2007
Kolkevich v. Attorney Gen. of the US, No. 06-2624
The REAL ID Act (RIDA) section 106(c) should be read to permit the transfer from a district court to a court of appeals not only of those habeas petitions that were pending in the district court at the time RIDA became law, but also those that could have been brought in a district court prior to RIDA's enactment, but were not. Further, the 30-day time limit in 8 U.S.C. section 1252(b)(1) should not be interpreted as applying to those aliens who received final orders of removal prior to the enactment of RIDA, but who did not file a petition for review directly in a court of appeals until after the enactment of RIDA. A petition for review of a removal order is dismissed as, despite the holdings above, petitioner did not have an unlimited time to file his appeal, he did not file for review within 30 days of RIDA's enactment and, thus, the court of appeals was without jurisdiction. Read more...

U.S. 3rd Circuit Court of Appeals, September 07, 2007
Valdiviezo-Galdamez v. Attorney Gen. of the US, No. 06-2080
A petition for review of a denial of Honduran citizen's applications for asylum and related relief is granted where: 1) the IJ's grounds for denying the asylum claim were unsupported by substantial evidence, and a remand was proper for further proceedings and findings; 2) consequently, denial of a withholding claim is also vacated; and 3) as the IJ ignored relevant evidence, and in light of the current standard for proving government "acquiescence" to torture, a remand was required for a CAT claim. Read more...

U.S. 4th Circuit Court of Appeals, September 06, 2007
William v. Gonzales, No. 06-1284
Petition for review of an order denying a motion to reopen immigration proceedings that was filed after petitioner had been removed from the U.S. is granted and the order vacated where the regulation the BIA relied on to deny the motion lacks authority and is invalid since it conflicts with 8 U.S.C. 1229a(c)(7)(A) by restricting the availability of motions to reopen to those aliens who remain in the U.S. Read more...

U.S. 5th Circuit Court of Appeals, September 05, 2007
US v. Balderas-Rubio, No. 06-41153
A sentence for illegal reentry into the United States following deportation is affirmed where the district court did not err in determining that defendant's prior conviction for "Indecency or Lewd Acts with a Child Under the Age of Sixteen," in violation of Oklahoma law, constituted "sexual abuse of a minor" for purposes of the "crime of violence" sentencing enhancement under the Sentence Guidelines. Read more...

U.S. 7th Circuit Court of Appeals, September 07, 2007
Peralta-Cabrera v. Gonzales, No. 06-2254
Petition for review of a denial of a motion to reopen removal proceedings is granted where, because the government is the party in the best position to know how to properly address correspondence to an alien, once an alien satisfies his duty under the INA and provides an address where he can be contacted, it is the government's responsibility to ensure that mail is properly addressed so that it can be delivered to the location the alien provided. Read more...

U.S. 7th Circuit Court of Appeals, September 07, 2007
Kadia v. Gonzales, No. 06-1299
Petition for review of a denial of asylum is granted where petitioner's evidentiary hearing was too unreliable to enable the court to conclude that a credibility determination based on the hearing was supported by substantial evidence. Read more...

U.S. 8th Circuit Court of Appeals, September 05, 2007
US v. Chettiar, No. 06-3516
A sentence for knowingly hiring ten or more unlawful aliens is remanded for further proceedings to permit the district court to identify in greater detail the grounds for a downward variance, as the present record was insufficient to conduct a meaningful review of whether the district court gave significant weight to any improper or irrelevant factor. Read more...

U.S. 9th Circuit Court of Appeals, September 04, 2007
Ortega-Cervantes v. Gonzales, No. 05-70605
Aliens who are "conditional[ly] parole[d]" pursuant to 8 U.S.C. section 1226(a) are not necessarily "paroled into the United States" for purposes of being eligible for adjustment of status pursuant to 8 U.S.C. section 1255(a). Read more...

U.S. 9th Circuit Court of Appeals, September 04, 2007
US v. Torres-Flores, No. 05-50898
A conviction and sentence for bringing an unauthorized alien to the United States without presenting him for inspection at the port of entry is affirmed in part and vacated as to the sentence where the district court did not err in refusing to give a lesser-included-offense instruction to the jury; but 2) the district court erred in finding that defendant was subject to a sentencing enhancement under U.S.S.G. section 2L1.1(b)(5), for transporting an alien in a manner creating a "substantial risk of death or serious bodily injury." Read more...

U.S. 9th Circuit Court of Appeals, September 04, 2007
Jordison v. Gonzales, No. 04-71026
Petition for review of an order of removal is granted where petitioner's conviction under California Penal Code section 452(c) for "recklessly set[ting] fire to . . . a structure or forest land" was not a "crime of violence" under 18 U.S.C. section 16(b). Read more...

U.S. 9th Circuit Court of Appeals, September 04, 2007
He v. Gonzales, No. 05-74930
The birth of children outside the country of origin is a change in personal circumstances that is not sufficient to establish changed circumstances in the country of origin within the regulatory exception to late-filed or successive motions to reopen under 8 C.F.R. section 1003.2(c)(3)(ii). Read more...

U.S. 11th Circuit Court of Appeals, September 06, 2007
Mejia v. US Attorney Gen., No. 06-11985
Denial of application for asylum and withholding of removal under the Immigration and Nationality Act is vacated where the applicant suffered past persecution, and remanded for determination of whether the persecution was on account of the applicant's political opinion. Read more...

August 27 - August 31, 2007

August 20 - August 24, 2007

U.S. 1st Circuit Court of Appeals, August 24, 2007
Melhem v. Gonzales, No. 06-2658
Petition for review of the denial of an application for asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) the court lacks jurisdiction to review the BIA's determination that the application for asylum was time-barred; 2) the IJ's adverse credibility determination was sufficiently supported by the record; 3) petitioner failed to provide sufficient evidence that his fear of future persecution is well-founded; and 4) petitioner presented no credible evidence to support his CAT claim. Read more...

U.S. 2nd Circuit Court of Appeals, August 23, 2007
Butt v. Gonzales, No. 05-3270
Denial of petitioner's request for a continuance while his employer's application for a labor certification was pending is vacated and remanded for the BIA to consider antecedent questions regarding petitioner's eligibility for adjustment of status. Read more...

U.S. 3rd Circuit Court of Appeals, August 21, 2007
Cespedes-Aquino v. US, No. 06-1550
A petition for review of a denial of relief for petitioner under section 212(c) of the Immigration and Nationality Act is denied as, because petitioner's conviction for an aggravated felony occurred after the repeal of section 212(c), he was ineligible to claim a benefit under the statute. Read more...

U.S. 5th Circuit Court of Appeals, August 20, 2007
US v. Sanchez-Ramirez, No. 06-40968
A non-Guideline sentence for conspiring to transport illegal aliens and aiding and abetting in the transportation of the illegal aliens is affirmed over a claim that defendant's sentence was unreasonable. Read more...

U.S. 5th Circuit Court of Appeals, August 21, 2007
Gaona-Romero v. Gonzales, No. 03-60842
In removal proceedings, a petition for rehearing en banc is denied as moot because the underlying decision is vacated and remanded to the BIA so that the government may follow through on its pledge to withdraw the charge of removability under section 1182(a)(2)(A)(i)(II) based on its concession that petitioner should not be removed on the basis of his vacated controlled substances conviction. Read more...

U.S. 7th Circuit Court of Appeals, August 22, 2007
Oyekunle v. Gonzales, No. 06-4239
Petition for review of a denial of asylum is granted where the BIA's conclusion that the petitioner lacked a well-founded fear of persecution was not supported by the evidence. Read more...

U.S. 7th Circuit Court of Appeals, August 22, 2007
Floroiu v. Gonzales, No. 06-1333
Motion for an award of attorney's fees and costs after a successful petition for review of a denial of immigration relief is granted where the government's position on appeal was not substantially justified because it relied on a record developed by a biased decisionmaker. The award is modified to reflect the statutory maximum rate for a fee award where the attorney's blanket statement of the difficulty of the issues presented and the years of experience of the practitioner involved were insufficient to justify piercing the statutory ceiling. Read more...

U.S. 7th Circuit Court of Appeals, August 23, 2007
Chen v. Gonzales, No. 06-3189
Petition for review of a denial of an application for asylum is denied where an asylum application based on a change in personal circumstances that is filed after the entry of a removal order and after the deadline to file a motion to reopen removal proceedings has passed is evaluated under the rules for an untimely reopening of removal proceedings, which do not take a change in personal circumstances into account. Read more...

U.S. 7th Circuit Court of Appeals, August 24, 2007
Holy Virgin Protection Cathedral v. Chertoff, No. 06-3387
In a challenge to the denial of an immigrant visa by a religious organization seeking to obtain the visa for an employee under the special immigrant provisions for religious workers, dismissal of the suit is affirmed where a decision by the Secretary of Homeland Security to revoke a previously approved visa is one that is specified to be in the discretion of the Secretary, thus the court lack jurisdiction to hear the case. Read more...

U.S. 8th Circuit Court of Appeals, August 24, 2007
Holder v. Gonzales, No. 06-3307
Liberian citizen's petition for review of an order of removal is denied over claims that: 1) the BIA's determination that his appeal was untimely was erroneous; 2) the BIA abused its discretion by determining that there were no "unique circumstances" that justified an exception despite the appeal being untimely; 3) the BIA's regulations regarding timing and delivery of appeals violated his due process rights; and 4) his equal protection rights were violated by a requirement that notices of appeal be filed only in Virginia. Read more...

U.S. 9th Circuit Court of Appeals, August 21, 2007
Gomez v. Gonzales, No. 06-70941
A denial of petitioners' motion for leave to file a late brief and denial of their application for cancellation of removal is remanded for reconsideration as the BIA's order did not offer "some reasoned explanation" for denying the motion for leave to file a late brief, which was based on a claim that the brief was late due to a mail carrier's failure to deliver the notice of the briefing schedule to the correct address. Read more...

U.S. 9th Circuit Court of Appeals, August 24, 2007
Mejia v. Gonzales, No. 04-74001, 04-76214
The adoption of a rule designed to guide Immigration Judges in deciding whether to grant waivers of inadmissibility to the U.S. based on certain criminal grounds was a permissible exercise of the Attorney General's authority and the regulation may be applied to convictions that became final before the effective date of the regulation. Read more...

U.S. 9th Circuit Court of Appeals, August 24, 2007
Singh v. Gonzales, No. 05-16005
A narrow claim of ineffective assistance of counsel in connection with a post-administrative filing of an appeal with the court of appeals does not require review of an order of removal, and thus falls outside the jurisdiction-stripping provisions of the REAL ID Act. Read more...

August 13 - August 17, 2007

U.S. 1st Circuit Court of Appeals, August 17, 2007
Guerrero-Santana v. Gonzales, No. 06-2364
Petition for review of a denial of a motion to reopen a removal proceeding is denied over petitioner's arguments that: 1) his due process rights were violated because of ineffective assistance of counsel; and 2) the ineffective legal representation entitled him to equitable tolling of a missed filing deadline. Read more...

U.S. 6th Circuit Court of Appeals, August 16, 2007
Davis v. US, No. 06-4514
In an action seeking a declaratory judgment to determine the amount of financial support that plaintiff owes to his wife, from whom he is legally separated, under an Affidavit of Support that the government required him to file on her behalf when she immigrated to the U.S., dismissal of the complaint is affirmed as: 1) the district court did not err in dismissing the complaint for lack of subject matter jurisdiction; 2) the complaint was barred under the Rooker-Feldman doctrine; and 3) and there was no error in an alternative finding that plaintiff lacked standing for his claim. Read more...

U.S. 8th Circuit Court of Appeals, August 15, 2007
US v. Garcia-Medina, No. 06-3528
A sentence for illegal reentry after deportation is affirmed over a claim that the district court's sentence enhancement was improper under the Sentencing Guidelines because the record failed to establish a prior drug-trafficking offense. Read more...

U.S. 8th Circuit Court of Appeals, August 17, 2007
Purwantono v. Gonzales, No. 06-2083
Petition for review of a denial of Muslim Indonesian native's application for asylum and withholding of removal is denied insofar as the court had jurisdiction over the claims as: 1) the court lacked jurisdiction to review a determination that the asylum application was untimely; 2) an argument, that the statutory time limit on applications for asylum cannot be enforced because it conflicts with the United Nations Convention Relating to the Status of Refugees, is meritless; 3) substantial evidence supported an IJ's rejection of a claim for withholding of removal; and 4) substantial evidence supported denying a CAT claim. Read more...

U.S. 9th Circuit Court of Appeals, August 13, 2007
Im v. Gonzales, No. 05-70027
Petition for review of a denial of Cambodian petitioners' applications for asylum and related relief is granted where: 1) petitioner's acts of opening an assigned cell door prior to interrogation as a prison guard decades ago did not assist in the persecution of others; and 2) the IJ had found that petitioner had established both past persecution and a well-founded fear of future persecution. Read more...

U.S. 9th Circuit Court of Appeals, August 13, 2007
Gulla v. Gonzales, No. 04-70957
Petition for review of a denial of Catholic Iraqi petitioner's request for asylum based on discretionary grounds is granted as the IJ abused his discretion in denying asylum as the IJ failed to properly balance favorable factors against factors identified as negative. Read more...

U.S. 9th Circuit Court of Appeals, August 16, 2007
Estrada-Espinoza v. Gonzales, No. 05-75850
In the context of immigration proceedings, a violation of California Penal Code section 261.5(c), one of California's statutory rape provisions, constitutes "sexual abuse of a minor" within the meaning of 8 U.S.C. section 1101(a)(43)(A). Read more...

U.S. 9th Circuit Court of Appeals, August 17, 2007
Ghahremani v. Gonzales, No. 04-71072, 04-75361
Petition for review of denials of Iranian native's motions to reconsider and reopen his immigration proceedings is denied as to the motion to reconsider, but granted as to the motion to reopen where the BIA abused its discretion in denying the motion as untimely despite petitioner's demonstrated due diligence in learning of his original counsel's possible ineffectiveness. Read more...

August 06 - August 10, 2007

U.S. 5th Circuit Court of Appeals, August 08, 2007
US v. Morales-Martinez, No. 06-40467
A sentence for illegal re-entry is vacated where the district court improperly calculated defendant's sentencing guideline range by applying a sixteen-level sentencing enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense. Read more...

U.S. 7th Circuit Court of Appeals, August 08, 2007
Patel v. Gonzales, No. 06-3077
Petition for review of the denial of a second motion to reopen based on a claim of ineffective assistance of counsel is denied where the BIA did not abuse its discretion in concluding that petitioner had not complied with its procedural prerequisites for claiming ineffective assistance of counsel. Read more...

U.S. 7th Circuit Court of Appeals, August 09, 2007
US v. Are, No. 06-2802
Dismissal of an indictment for the crime of being "found in" the United States after deportation is reversed where: 1) the date on which the immigration agency "should have discovered" the alien is irrelevant, for purposes of the limitations period; and 2) the indictment at issue was timely whether the limitations period commenced when immigration authorities actually "discovered" defendant's presence, identity, and status or when they arrested him, interrupting his illegal conduct. Read more...

U.S. 8th Circuit Court of Appeals, August 07, 2007
Abdelwase v. Gonzales, No. 05-3056
Petition for review of a denial of asylum and related relief for an Eritrean citizen is denied where: 1) petitioner was not "actually prejudiced" by an alleged lack of due process; 2) there was no abuse of discretion in denials of asylum and withholding relief as the administrative record adequately supported an IJ's adverse credibility finding, and she failed to show a well-founded fear, or clear probability of, persecution on account of a protected ground; and 3) a CAT claim was properly considered. Read more...

U.S. 8th Circuit Court of Appeals, August 07, 2007
Vue v. Gonzales, No. 06-3515
In deportation proceedings, denial of a special motion to reopen for consideration of relief under repealed section 212(c) of the INA is affirmed as: 1) the crime which made petitioner deportable does not have a statutory counterpart in section 212(a) of the Immigration Act, and thus petitioner was not eligible for section 212(c) relief and his equal protection claim failed; 2) petitioner could not establish that he would have been eligible for section 212(c) relief when he pled guilty; and 3) his challenge to the BIA's interpretation of a regulation failed. Read more...

U.S. 8th Circuit Court of Appeals, August 10, 2007
Thiam v. Gonzales, No. 06-2921
Petition for review of a BIA order finding petitioner removable and dismissing her appeal is denied as substantial evidence supported an IJ's findings that petitioner was not credible, that she had left the country, and that she was removable. Read more...

U.S. 9th Circuit Court of Appeals, August 08, 2007
Hernandez-Ortiz v. Gonzales, No. 04-71509
Injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claim were perceived when the petitioner was a child. Petition for review of a denial of requests for asylum and withholding of removal brought by Guatemalan natives of Mayan descent is granted where: 1) the IJ erred as a matter of law in failing to look at the events at issue from petitioners' perspective, nor measure the degree of their injuries by their impact on children of their ages; 2) the IJ's credibility findings were not supported by substantial evidence; and 3) the IJ's "alternative" analysis and findings were similarly erroneous. Read more...

U.S. 9th Circuit Court of Appeals, August 09, 2007
Hernandez de Anderson v. Gonzales, No. 05-74132
Petition for review of a dismissal by the BIA of petitioner's appeal from an order of removal is granted where the BIA's holding, that she was ineligible to apply for suspension of deportation under former INA section 244(a)(2), was an impermissibly retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Read more...

U.S. 10th Circuit Court of Appeals, August 07, 2007
US v. Vera-Flores, No. 06-1128
An appeal of a sentence for possession of a firearm by an illegal alien is dismissed where defendant's removal from the United States mooted his appeal. Read more...

July 30 - August 03, 2007

U.S. 1st Circuit Court of Appeals, July 31, 2007
Chedad v. Gonzales , No. 05-2782
Petition for review of an IJ order pretermitting petitioner's application for adjustment of status and declaring him removable from the U.S. after he overstayed a period of voluntary departure is denied over petitioner's arguments that: 1) the filing of a motion to reopen tolled the running of the voluntary departure period; and 2) the BIA's allowance of the motion to reopen stripped the voluntary departure order of any legal significance. Read more...

U.S. 1st Circuit Court of Appeals, July 31, 2007
Lopez-Reyes v. Gonzales, No. 06-2505
Petition for review of the denial of petitioner's motion to administratively close or stay her removal proceedings is denied where: 1) petitioner did not raise her argument that government counsel incorrectly withheld consent to her motion before the BIA, thus she did not exhaust her administrative remedies on the claim; and 2) there was no colorable claim that the denial of petitioner's motion violated her due process rights. Read more...

U.S. 2nd Circuit Court of Appeals, July 31, 2007
Yang v. Gonzales, No. 06-2735, 06-3224
Petitions for review of findings that petitioners were not credible and had filed frivolous asylum applications are granted in part to vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in Y-L-, 24 I. & N. Dec. 151. Read more...

U.S. 2nd Circuit Court of Appeals, August 01, 2007
Barco-Sandoval v. Gonzales, No. 06-0360
Petition for review of denial of application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act is dismissed as the court of appeals lacks jurisdiction to review the agency's discretionary and factual determinations underlying the denial of petitioner's application for cancellation of removal, and petitioner fails to raise any colorable constitutional claims or questions of law. Read more...

U.S. 2nd Circuit Court of Appeals, August 02, 2007
Carcamo v. U.S. Dep't of Justice, No. 05-2467
Petition for review of denial of application for voluntary departure under Section 240B of the Immigration and Nationality Act is dismissed where the court of appeal lacks jurisdiction to review the IJ's discretionary and factual determinations underlying the denial of petitioner's application, and petitioner fails to raise any colorable constitutional claims or questions of law. Read more...

U.S. 2nd Circuit Court of Appeals, August 02, 2007
Camara v. Dep't of Homeland Sec., No. 06-3977
Petition for review of denial of application for a waiver of inadmissibility under Section 212(i) of the Immigration and Nationality Act is dismissed as the court of appeal lacks jurisdiction to review the IJ's discretionary and factual determinations underlying the denial of petitioner's application for a waiver of inadmissibility, and petitioner fails to raise any constitutional claims or questions of law. Read more...

U.S. 4th Circuit Court of Appeals, August 02, 2007
Etape v. Chertoff, No. 06-1916, 06-1990
Dismissal of petitions under 8 U.S.C. section 1447(b) in federal court based on mootness, which petitions were filed before the U.S. Bureau of Citizenship and Immigration Services denied petitioners' naturalization applications, is reversed as section 1447(b) vests exclusive jurisdiction in the district court, depriving the CIS of jurisdiction to adjudicate an application unless instructed to do so by the district court. Read more...

U.S. 7th Circuit Court of Appeals, July 30, 2007
Tarraf v. Gonzales, No. 06-2835
Petition for review of denial of petitioner's application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) the application for asylum was not filed within the one year deadline; 2) the IJ and BIA conclusions that petitioner's testimony was not credible and did not demonstrate past persecution were supported by substantial evidence; and 3) the court does not have jurisdiction over petitioner's claim that the IJ denied him due process of law by summarily rejecting his request for CAT relief without applying the proper standards since the claim was not presented to the BIA. Read more...

U.S. 7th Circuit Court of Appeals, July 31, 2007
Tchemkou v. Gonzales, No. 06-2638
Petition for review of a denial of asylum application is granted where the record compels the conclusion that petitioner suffered past persecution and will suffer future persecution if returned to Cameroon, and the record establishes that petitioner has endured torture and likely will endure additional torture if returned to Cameroon. Read more...

U.S. 7th Circuit Court of Appeals, July 31, 2007
Zhang v. Gonzales, No. 05-3340
Petition for review of asylum, withholding of removal, and relief under the Convention Against Torture is denied where the evidence does not compel a conclusion that petitioner suffered past persecution based on a political opinion and petitioner did not establish a likelihood of future persecution. Read more...

U.S. 8th Circuit Court of Appeals, August 03, 2007
Makatengkeng v. Gonzales, No. 06-1630
Petition for review of a denial of an application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where petitioner had not demonstrated past persecution or a well-founded fear of persecution, and the BIA did not abuse its discretion in denying petitioner's motion to reopen since petitioner's new evidence was not material to his claims. Read more...

U.S. 9th Circuit Court of Appeals, August 03, 2007
Vargas-Hernandez v. Gonzales, No. 04-73343
Petition for review of the BIA's dismissal of an appeal from the IJ's order of removal is dismissed where petitioner's prosecution and conviction in California as an adult precluded the IJ and the BIA from treating his conviction as a juvenile adjudication, thus his 1991 voluntary manslaughter conviction made him removable as an aggravated felon for having committed a crime of violence and the court does not have jurisdiction to review the order of removal. The petition is denied where petitioner could not show prejudice from the denial of a continuance to pursue his adjustment of status application, and the IJ did not exclude evidence, preclude testimony, or otherwise prevent Vargas from fully presenting his request for a section 212(c) waiver, and her decision was not based on an improper bias against Vargas or his attorney. Read more...

U.S. 10th Circuit Court of Appeals, July 30, 2007
US v. Carrasco-Salazar, No. 06-2311
Sentence for unlawful reentry by an alien previously convicted of an aggravated felony is affirmed where defendant waived his objection to a 16-level enhancement by indicating to the district court that it had been resolved, and the sequence of events demonstrated that the waiver was knowing and voluntary. Read more...

U.S. 10th Circuit Court of Appeals, July 31, 2007
US v. Arrevalo-Olvera, No. 06-2291
Sentence for reentry of a deported alien previously convicted of an aggravated felony is affirmed over defendant's argument that the district court erred in refusing to consider his request for a variance below the applicable guideline range until the court had first satisfied itself that a sentence within the range would be unreasonable. Read more...

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