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

CASES DECIDED IN FEDERAL COURT IN OCTOBER / NOVEMBER

November 26 - November 30, 2007

U.S. 1st Circuit Court of Appeals, November 27, 2007
Segran v. Mukasey, No. 07-1295
Petition for review of a denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where the IJ's adverse credibility finding was supported by substantial evidence. Read more...

U.S. 1st Circuit Court of Appeals, November 27, 2007
Aguilar v. U.S. Immigration & Customs Enforcement, No. 07-1819
In a suit against the U.S. Immigration & Customs Enforcement Division of the Department of Homeland Security alleging violation of constitutional and statutory rights resulting from a raid of a factory employing undocumented workers, dismissal of the suit is affirmed where some of the petitioners' claims were unpreserved, some were subject to a jurisdictional bar, and others were not actionable. Read more...

U.S. 1st Circuit Court of Appeals, November 29, 2007
Wang v. Mukasey, No. 06-2749
Petition for review of a denial of an application for asylum, withholding of removal, and relief under the Convention Against Torture is denied where the petitioner did not have an objective fear of persecution and waived her argument for a remand based on changed circumstances. Read more...

U.S. 1st Circuit Court of Appeals, November 29, 2007
Tjong v. Gonzales, No. 07-1167
Petition for review of a final order of removal denying petitioner's second motion to reopen his removal proceedings is denied where the new evidence petitioner presented in support of his motion was either not new or fell short of the evidentiary burden relevant to his reiterated claims. Read more...

U.S. 2nd Circuit Court of Appeals, November 27, 2007
Grullon v. Mukasey, No. 05-4622
Petition for review challenging denial of cancellation of removal is dismissed as petitioner failed to appeal the IJ's order to the BIA and, thus his administrative remedies are unexhausted. The exhaustion requirement is statutory and jurisdictional. Read more...

U.S. 2nd Circuit Court of Appeals, November 28, 2007
Delgado v. Mukasey, No. 05-4393
Petition for review challenging denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is granted where: 1) the BIA improperly denied Petitioner's application without considering whether she had a well-founded fear of future persecution on account of imputed political opinion; and 2) respondent's denial of petitioner's CAT claim must be vacated as respondent appears to have misstated the record, and the its application of the law does not seem to comport with recent rulings. Read more...

U.S. 2nd Circuit Court of Appeals, November 29, 2007
Wang v. BIA, No. 06-5554
Petition for reiview challenging denial of motion to reopen removal proceedings as untimely is denied as the BIA did not err in determining that petitioner had not exercised due diligence in pursuing the reopening of his case based on a claim of ineffective assistance of counsel. Read more...

U.S. 2nd Circuit Court of Appeals, November 30, 2007
Liu v. INS, No. 03-4803
Petition for review of denial of asylum is dismissed for lack of jurisdiction, and petition for review of the withholding of removal and Convention Against Torture claims is granted where the IJ's adverse credibility determination was not supported by substantial evidence as the IJ's finding that petitioner's testimony was insufficiently detailed was flawed. The BIA should decide in the first instance whether petitioner's withholding of removal claim survives Shi Liang Lin v. US Dep't of Justice, 494 F.3d 296 (2d Cir. 2007). (On Rehearing) Read more...

U.S. 6th Circuit Court of Appeals, November 29, 2007
Zhang v. Mukasey, No. 06-3665
An adjustment of status does not constitute an "admission" for purposes of 8 U.S.C. section 1227(a)(2)(A)(i), which provides for removability of non-citizens convicted of a crime involving moral turpitude carrying a penalty of incarceration for one year or more, that was committed within five years of admission to the U.S. There is only one "first lawful admission," and it is based on physical, legal entry into the U.S., not on the attainment of a particular legal status. Read more...

U.S. 9th Circuit Court of Appeals, November 27, 2007
Vatyan v. Mukasey, No. 04-72386
An immigration petitioner may seek to authenticate a public document by any established means, including through the petitioner's own testimony if consistent with the Federal Rules of Evidence. Read more...

U.S. 9th Circuit Court of Appeals, November 29, 2007
Chaly-Garcia v. US, No. 05-35715
In a suit brought by plaintiff against the United States and officials seeking relief as a class member under the class action settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (ABC), which involved asylum applicants from El Salvador and Guatemala, summary judgment for defendants is reversed as plaintiff is a member of the ABC class and is entitled to the benefits of the agreement in the case. Read more...

U.S. 9th Circuit Court of Appeals, November 30, 2007
Gonzales v. Dep't of Homeland Sec., No. 07-35021
An order granting preliminary injunctive relief to a class of aliens, enjoining defendants from denying certain applications for permission to reapply for admission into the U.S., or from acting on any denied applications, is vacated and remanded pursuant to a binding decision issued by the BIA, which rendered plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers. Read more...

November 19 - November 23, 2007

U.S. 2nd Circuit Court of Appeals, November 19, 2007
Gao v. Mukasey, No. 06-4746
Petition for review of a BIA order denying Chinese petitioner's motion to reopen his removal proceedings as untimely is granted where the BIA did not adequately consider petitioner's evidence of changed country conditions. Read more...

U.S. 2nd Circuit Court of Appeals, November 20, 2007
Mufied v. Mukasey, No. 06-0396
Petition for review challenging denial of withholding of removal is granted where the BIA considered only whether the petitioner had established that he would be singled out for persecution and did not consider the petitioner's claim that there is a pattern or practice of persecution of Christians in Indonesia. Read more...

U.S. 6th Circuit Court of Appeals, November 19, 2007
Ilic-Lee v. Mukasey, No. 06-3494, 06-4089
Serbian citizen's petition for review of BIA decisions affirming an IJ's denial of petitioner's motion for continuance, vacating the IJ's denial of petitioner's motion to reopen, and denying petitioner's direct motion to reopen, is denied where: 1) there was no abuse of discretion in affirming the denial of the motion for a continuance or in the finding regarding the motion to reopen; and 2) although petitioner provided some evidence of a legal marriage, it was insufficient to establish that the marriage was bona fide and was not strong enough to show that the BIA abused its discretion. Read more...

U.S. 8th Circuit Court of Appeals, November 19, 2007
Diallo v. Mukasey, No. 07-1237
A petition for review of a denial of an application for asylum and related relief is dismissed in part and denied in part over claims that the BIA erred in: 1) upholding an IJ's adverse credibility determination; and 2) upholding the IJ's finding that changed country conditions precluded a determination petitioner would face persecution if removed to her native country of Sierra Leone. Read more...

U.S. 9th Circuit Court of Appeals, November 19, 2007
Grigoryan v. Keisler, No. 05-77020
Armenian citizen's petition for review of a denial of her motion to reopen removal proceedings on the ground of ineffective assistance of counsel is denied in part and granted in part, and the matter is remanded with instructions for the BIA to consider a claim that she was entitled to benefit from a presumption of prejudice, and that she demonstrated plausible grounds for relief when she submitted evidence that her fear of persecution had an objective basis. Read more...

U.S. 9th Circuit Court of Appeals, November 21, 2007
Barragan-Lopez v. Mukasey, No. 05-73883
An Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. section 13-1002(A) and (B)(2), and section 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of 8 U.S.C. section 1227(a)(2)(A)(i). Read more...

U.S. 10th Circuit Court of Appeals, November 20, 2007
Lorenzo v. Mukasey, No. 06-9505
Mexican citizen's petition for review of a reinstatement order, which revived a November 1998 order removing petitioner from the U.S., is denied over claims that: 1) the original removal order was legally defective and thus not subject to reinstatement; 2) DHS, in reinstating her prior order of removal, failed to comply with 8 C.F.R. section 241.8; and 3) the procedure established by 8 C.F.R. section 241.8(a) fails to comport with both 8 U.S.C. section 1229a(a)(1) and the Due Process Clause of the Fifth Amendment. Read more...

November 12 - November 16, 2007

U.S. 5th Circuit Court of Appeals, November 14, 2007
Martinez v. Mukasey, No. 06-60039
Petition for review of IJ and BIA decisions finding petitioner removable, finding him ineligible for cancellation of removal, and summarily affirming such findings is denied where: 1) the IJ did not commit reversible error in ruling that petitioner's offense constituted an aggravated felony; and 2) the BIA properly applied its streamlined review procedures. Read more...

U.S. 7th Circuit Court of Appeals, November 16, 2007
Mekhael v. Mukasey, No. 06-4285
Christian Lebanese citizen's petition for review of a denial of a motion to reopen asylum proceedings is granted and the matter remanded where the BIA failed to give reasoned consideration to post-hearing evidence, including the 2006 war between Israel and Hezbollah, as well as increased violence against Christians in Lebanon following the publication in Denmark of cartoons caricaturing the Prophet Muhammad. Read more...

U.S. 9th Circuit Court of Appeals, November 15, 2007
Sissoko v. Rocha, No. 02-56751, 03-55667
In an action brought raising Fourth Amendment-based damages claim for false arrest, summary judgment for plaintiff is affirmed in part, but vacated in part and remanded where the district court lacked jurisdiction over plaintiffs' claim because it "aris[es] from the decision or action by the Attorney General to commence [removal] proceedings." Read more...

November 5 - November 9, 2007

U.S. 2nd Circuit Court of Appeals, November 07, 2007
Rhodes v. Keisler, No. 05-4134
BIA's order that petitioner be removed, entered after reversing IJ's termination of removal proceedings, is vacated as BIA lacks the authority to issue a removal order. Read more...

U.S. 5th Circuit Court of Appeals, November 05, 2007
Saba-Bakare v. Chertoff, No. 06-20641
In an action brought by a Nigerian citizen seeking a de novo review of his previously denied naturalization application pursuant to 8 U.S.C. section 1421(c), and seeking a declaratory judgment that he was prima facie eligible for naturalization, dismissal of his case for lack of subject matter jurisdiction to grant the relief plaintiff requested is affirmed over claims that: 1) jurisdiction exists under section 1421(c); 2) jurisdiction exists under 8 U.S.C. section 1447(b); 3) the district court has jurisdiction to issue a declaratory judgment on the issue of his prima facie eligibility for naturalization; and 4) absent review by the district court at this time, the prima facie eligibility issue will be unreviewable by any court. Read more...

U.S. 5th Circuit Court of Appeals, November 06, 2007
Perez-Munoz v. Keisler, No. 06-60440
Petition for review of a denial of petitioner's motion for rehearing of an earlier order finding him removable from the country is dismissed where: 1) petitioner's conviction for injury to a child under Texas Penal Code section 22.04(a)(3) amounted to a crime of violence and thus an aggravated felony; 2) thus, the BIA properly denied the motion for rehearing; and 3) consequently, there was no jurisdiction as to the appeal. Read more...

U.S. 5th Circuit Court of Appeals, November 07, 2007
Giri v. Keisler, No. 06-60569
The fugitive disentitlement doctrine may be invoked to dismiss a petition for review of a BIA decision by a fugitive alien. Petition for review of a dismissal of Nepalese family's appeal from a denial of their application for asylum and related relief is dismissed pursuant to the fugitive disentitlement doctrine, which is found to be applicable in this case. Read more...

U.S. 5th Circuit Court of Appeals, November 08, 2007
US v. Castillo-Morales, No. 07-40053
A sentence for illegal reentry is affirmed where there was no error in a 16-level offense enhancement as relevant Florida court documents indicated that defendant committed the "crime of violence" of "burglary of a dwelling," as enumerated in U.S.S.G. section 2L1.2. Read more...

U.S. 7th Circuit Court of Appeals, November 09, 2007
Zheng v. Mukasey, No. 07-3673
A motion seeking a stay of petitioner's removal to China pending review of the dismissal of his original asylum claim and a denial of his motion to reopen the asylum proceedings is denied as: 1) the motion was untimely as far as the original asylum claim was concerned; and 2) petitioner failed to establish that he was entitled to a stay as to the other claim. Read more...

U.S. 9th Circuit Court of Appeals, November 05, 2007
Hanna v. Keisler, No. 04-73960
Petition for review of a denial of Iraqi native's request for asylum is granted and the matter remanded for further proceedings as: 1) the BIA assumed petitioner suffered past persecution on account of his religion; 2) thus, the burden was on the government to show changed country conditions; and 3) a holding that the fall of the Ba'ath party removed any fear of future persecution was not supported by substantial evidence. Read more...

U.S. 10th Circuit Court of Appeals, November 06, 2007
Thongphilack v. Gonzales, No. 06-9575
Petition for review of an order denying petitioner's motion to reopen removal proceedings, brought after he was ordered removed to Laos in absentia, is denied where: 1) an IJ did not abuse his discretion in denying petitioner's motion to reopen as petitioner failed to demonstrate that he did not receive notice in accordance with applicable statutes; 2) written notice of a change of address is required and any oral notice petitioner may have given to the IJ was insufficient to overcome the presumption that he received the notice of his removal hearing; and 3) the absence of a transcript of the removal hearing in the administrative record has no effect in this case. Read more...

October 29 - November 2, 2007

U.S. 1st Circuit Court of Appeals, October 29, 2007
Journal v. Gonzales, No. 07-1109
Petition for review of a denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where petitioner had not shown past persecution and had not demonstrated that his fear of future persecution was objectively reasonable. Read more...

U.S. 1st Circuit Court of Appeals, October 29, 2007
Ouk v. Gonzales, No. 07-1413
Petition for review of a denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where a reasonable fact-finder would not be compelled to conclude that petitioner met his burden of proof to establish eligibility for asylum. Read more...

U.S. 1st Circuit Court of Appeals, November 01, 2007
Butt v. Gonzales, No. 06-2135
Petition for review of a denial of an application for asylum is denied where the IJ and the BIA relied upon substantial record evidence to support the determination that the petitioners had failed to prove either past persecution or a well-founded fear of future persecution. Read more...

U.S. 1st Circuit Court of Appeals, November 02, 2007
Parvez v. Keisler, No. 06-1849
Petition for review of a denial of a motion to reopen proceedings is denied where: 1) petitioner's due process claim was a disguised challenge to fact finding, thus the court had no jurisdiction; 2) petitioner did not sufficiently establish a prima facie entitlement to asylum; and 3) petitioner did not establish that the BIA had a regulatory or statutory obligation to rule on a motion to stay voluntary departure. Read more...

U.S. 5th Circuit Court of Appeals, October 31, 2007
US v. Gutierrez-Bautista, No. 06-40486
A sentence for being unlawfully present in the U.S. after deportation is affirmed over claims that: 1) a prior Georgia offense was not a drug trafficking offense, for purposes of a sentence enhancement under the U.S.S.G.; 2) 8 U.S.C. section 1326(b)(1) and (2) are facially unconstitutional; and 3) those provisions are unconstitutional as applied to defendant. (Substituted opinion) Read more...

U.S. 6th Circuit Court of Appeals, October 29, 2007
Morgan v. Keisler, No. 06-3505
Denial of petitioner's application for a waiver of inadmissibility and an order of removal is affirmed where: 1) section 321 of IIRIRA applied retroactively to petitioner's plea of guilty to aggravated assault in June of 1996 and, as a result, rendered it an aggravated-felony conviction for immigration purposes, effective as of the date of his plea; 2) he was therefore not eligible for INA section 212(c) relief; and 3) as petitioner had no expectation of section 212(c) relief at the time he pled guilty, the court had no reason to decide whether his conviction has a statutory counterpart in section 212(a). Read more...

U.S. 6th Circuit Court of Appeals, November 02, 2007
Mohammed v. Keisler, No. 06-3591
Petition for review of an order denying Pakistani Shia Muslim's application for asylum and related relief is denied as, for purposes of demonstrating persecution on the basis of religion under the INA: 1) a Sunni mosque incident, during which petitioner was beaten, was not targeted action; 2) police mistreatment of petitioner was not severe enough to constitute persecution; and 3) withholding and CAT claims failed as well. Read more...

U.S. 7th Circuit Court of Appeals, October 31, 2007
Bolante v. Keisler, No. 07-2550
A motion for release on bail by an asylum applicant is denied where: 1) a grant of a bail would conflict with the Attorney General's non-reviewable discretion to deny parole to asylum-seekers; and 2) the petitioner's entry visa was revoked prior to his arrival in the U.S., thus he was not lawfully admitted to the U.S. for constitutional purposes, and had no right to be released. Read more...

U.S. 8th Circuit Court of Appeals, November 02, 2007
Ixtlilco-Morales v. Keisler, No. 06-4123
Petition for review of a denial of Mexican native's application for asylum and related relief, alleging a fear of persecution based on his homosexuality and HIV-positive status, is denied over claims that: 1) the BIA committed a number of errors in determining that a presumption of a well-founded fear of future persecution was rebutted by a fundamental change in circumstances; 2) even if petitioner did not have a well-founded fear of future persecution, the BIA should have granted him "humanitarian asylum" based on the severity of his past persecution; and 3) the BIA erred in denying withholding and CAT claims. Read more...

U.S. 9th Circuit Court of Appeals, November 02, 2007
Rebilas v. Keisler, No. 05-76988
In the context of immigration and removability as an aggravated felon, Arizona's statutory definition of attempted public sexual indecency to a minor under ARS sections 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. section 1101(a)(43)(A) and (U). Read more...

October 22 - October 26, 2007

U.S. 1st Circuit Court of Appeals, October 26, 2007
Lopes v. Keisler, No. 07-1352
Petition for review of a removal order is denied where the BIA did not err in determining that petitioner's particular conviction for assault under Rhode Island law was a crime of violence. Read more...

U.S. 3rd Circuit Court of Appeals, October 22, 2007
Santana-Gonzales v. Attorney Gen. of the US, No. 06-2965
Matter of Grijalva's, 21 I&N Dec. 27 (BIA 1995) strict evidentiary standard, a strong presumption of receipt, applies only when a notice from an Immigration Court or the INS (or Department of Homeland Security) is sent by certified mail, and a weaker presumption applies when such a notice is sent by regular mail. Read more...

U.S. 5th Circuit Court of Appeals, October 22, 2007
Sung v. Keisler, No. 06-60539
Immigration and Naturalization Act section 204(j) involves an adjustment of status determination, and thus an IJ has jurisdiction to determine whether an approved visa qualifies for portability pursuant to section 204(j), including the jurisdiction to make the factual finding necessary to ascertain whether employment classifications are the same or similar as required by the statute. Read more...

U.S. 5th Circuit Court of Appeals, October 25, 2007
Hyder v. Keisler, No. 06-60644
Pakistani native's petition for review of a denial of his application for cancellation of removal from the United States is denied as misuse of a social security number in violation of 42 U.S.C. section 408(a)(7)(A) falls within the definition a crime involving moral turpitude, for purposes of ineligibility for a grant of cancellation of removal. Read more...

U.S. 5th Circuit Court of Appeals, October 25, 2007
Rios-Valenzuela v. Dep't of Homeland Sec., No. 06-50710
Dismissal of a suit seeking a declaratory judgment that plaintiff is a citizen of the United States is affirmed where the district court properly dismissed for lack of jurisdiction because "the issue" of plaintiff's citizenship "arose by reason of, or in connection with" his removal proceeding. Read more...

U.S. 7th Circuit Court of Appeals, October 23, 2007
US v. Pacheco-Diaz, No. 05-2264
Sentence for illegal reentry is affirmed over defendant's arguments that: 1) a prior Illinois conviction for simple possession of marijuana was insufficient to trigger an eight-level enhancement; 2) the district court misapprehended the scope of its discretion when it declined to further reduce his sentence for acceptance of responsibility; and 3) his sentence was unreasonable because the court failed to meaningfully consider the unwarranted disparity between his sentence and the sentences of similarly situated defendants in fast-track jurisdictions. Read more...

U.S. 7th Circuit Court of Appeals, October 24, 2007
Mohammad Hussain v. Keisler, No. 06-2932
Petition for review of an order of voluntary departure is denied where: 1) petitioner filed an asylum application but later withdrew it in exchange for a longer period of voluntary departure; and 2) the court lacks jurisdiction over petitioner's claim that his obligation to register pursuant to the National Security Entry-Exit Registration System led to the initiation of removal proceedings against him and violated his right to equal protection of the laws. Read more...

U.S. 9th Circuit Court of Appeals, October 24, 2007
US v. Salazar-Lopez, No. 06-50438
In the context of a defendant convicted of being a previously removed alien found in the U.S., the dates of a previous felony conviction and of a previous removal from the U.S., must be alleged in the indictment and proved to a jury for the defendant to be subject to an increased sentence under 8 U.S.C. section 1326(b). Further, such an error, in a context that affects only sentencing, is subject to harmless error analysis. Read more...

U.S. 11th Circuit Court of Appeals, October 23, 2007
Calle v. U.S. Attorney Gen., No. 06-14672
Petition for review of denial of motion for reconsideration of the BIA's denial of motion to reopen is denied over claim that the BIA abused its discretion in denying as numerically barred petitioner's motion to reconsider the denial of her motion to reopen. Read more...

U.S. 11th Circuit Court of Appeals, October 25, 2007
Lopez v. U.S. Attorney Gen., No. 06-12907
In case where petitioner was threatened by members of FARC's urban militia in Colombia, petition for review challenging denial of asylum and withholding of removal is granted in part where: 1) petitioner claims that she testified, and showed through the country reports, that authorities in Colombia would have been unable or unwilling to protect her from FARC; and 2) the BIA should address the issue of futility on remand. Read more...

October 15 - October 19, 2007

U.S. 1st Circuit Court of Appeals, October 16, 2007
Kho v. Gonzales, No. 06-2306
Petition for review of a denial of an application for withholding of removal is denied where: 1) the court rejects the Ninth Circuit's "disfavored group" analysis; 2) there is no compelling evidence that the BIA erred in finding no pattern or practice of persecution; 3) aliens are not entitled to a presumption of credibility on review in courts of appeal if there is no express credibility determination made by an IJ; 4) the BIA explicitly addressed the issue of past persecution and provided an adequate basis with which to review its decision; and 5) substantial evidence in the record supported the BIA's finding of no past persecution and its reading of the country conditions reports. Read more...

U.S. 2nd Circuit Court of Appeals, October 19, 2007
Cyrus v. Keisler, No. 05-4194
Petition for review challenging denial of petitioner's motion to reopen removal proceedings so that he could apply for a waiver of inadmissability under former section 212(c) of the INA, in conjunction with an application for adjustment of status under section 245(a) of the INA, is denied and dismissed in part as: 1) the BIA was correct in determining that petitioner is not eligible for a waiver of inadmissibility and was therefore not entitled to reopening pursuant to 8 C.F.R. section 1003.44; and 2) the circuit court lacked jurisdiction to review a decision not to sua sponte reopen petitioner's removal proceedings pursuant to 8 C.F.R. section 1003.2(a). Read more...

U.S. 6th Circuit Court of Appeals, October 16, 2007
Kouljinski v. Keisler, No. 06-4016
Petition for review of a decision denying Jewish Russian native's application for asylum and withholding of removal is denied as: 1) an IJ may properly consider an alien's convictions for driving under the influence of alcohol in making a discretionary denial of asylum; and 2) petitioner failed to show that he is "more likely than not" to face persecution or torture were he to return to Russia. Read more...

U.S. 9th Circuit Court of Appeals, October 16, 2007
Ahmed v. Keisler, No. 04-76246
Petition for review, brought by a native of Bangladesh, of a denial of his application for asylum and related relief is granted where: 1) since petitioner credibly testified that he suffered past persecution on account of his political opinion and social group, and because there was more than a ten percent chance that if returned to Bangladesh he will suffer future persecution on such bases, he was statutorily eligible for asylum; and 2) a finding that petitioner was not entitled to withholding of removal was not supported by substantial evidence, as the government failed to rebut the applicable presumption of entitlement to withholding relief. Read more...

U.S. 10th Circuit Court of Appeals, October 16, 2007
US v. Romero-Hernandez, No. 05-2154
A sentence for illegal reentry following removal for commission of an aggravated felony is affirmed over defendant's claim that the district court erroneously applied an adjustment under under U.S.S.G. section 2L1.2(b)(1)(A)(ii) because his prior state conviction was not a crime of violence. Read more...

U.S. 11th Circuit Court of Appeals, October 16, 2007
Niftaliev v. U.S. Attorney Gen., No. 06-12708
Denial of petition for withholding of removal, finding that the petitioner did not suffer past persecution, is reversed where the record compelled a finding of past persecution based upon the cumulative effect of: 1) the discrimination petitioner suffered in the Ukraine due to his mixed ethnicity; 2) the numerous beatings, arrests, searches, and interrogations he endured after speaking out against the Ukrainian government; 3) the 15-day period he spent in detention, deprived of food, beaten, and threatened at gunpoint; and 4) the beatings and threats he received from Ukrainian officials after he fled to Argentina. Read more...

October 08 - October 12, 2007

U.S. 1st Circuit Court of Appeals, October 11, 2007
Ortiz Araniba v. Gonzales, No. 06-2650
Petition for review of a denial of an application for asylum and withholding of removal is denied where the BIA's determination that the government of El Salvador was willing and able to control petitioner's potential persecutors was supported by substantial evidence. Read more...

U.S. 2nd Circuit Court of Appeals, October 10, 2007
Elbahja v. Keisler, No. 06-2671
Petition for review challenging denial of petitioner's request to continue removal proceedings in order to permit adjudication of his pending application for labor certification is denied as it does not constitute an abuse of discretion for an IJ to decline to grant multiple continuances in order to permit adjudication of a removable alien's pending labor certification. Read more...

U.S. 3rd Circuit Court of Appeals, October 09, 2007
Debeato v. Attorney Gen. of the US, No. 05-3235
The REAL ID Act, specifically 8 U.S.C. section 1252(a)(2)(D), permits the circuit court to exercise jurisdiction over legal and constitutional challenges to final orders of removal, including those final orders that the Attorney General has reinstated pursuant to section 1231(a)(5). Also, where a petitioner's collateral attack on a removal order raises only a "question of law" within the meaning of section 1252(a)(2)(D), a gross miscarriage of justice is found only when "the individual should not have been deported based on the law as it existed at the time of the original deportation." Read more...

U.S. 6th Circuit Court of Appeals, October 09, 2007
Lazar v. Gonzales, No. 06-3380
Petition for review of a decision declaring Iraqi native petitioner's asylum application frivolous is denied as: 1) petitioner could not blame his former counsel for material misrepresentations he made in his asylum application; 2) petitioner was given an opportunity to explain the discrepancies between his asylum application and his hearing testimony; 3) his due process rights were not infringed; 4) petitioner did not timely retract his false statements; and 5) there was no basis for a remand to the BIA. Read more...

U.S. 7th Circuit Court of Appeals, October 09, 2007
Tariq v. Keisler, No. 06-2518
Petition for review of a denial of application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) there was no legal error in the IJ's determination that changed circumstances had not affected petitioner's asylum application; 2) petitioner had not demonstrated a clear probability of persecution; and 3) any error in the BIA's denial of petitioner's motion to supplement the record on appeal was harmless. Read more...

U.S. 7th Circuit Court of Appeals, October 10, 2007
Potdar v. Keisler, No. 06-2441
Petition for review of an order vacating an earlier order to reopen removal proceedings is denied where the court did not have jurisdiction to review the denial of petitioner's motion for a continuance. Read more...

U.S. 9th Circuit Court of Appeals, October 09, 2007
Quintero-Salazar v. Keisler, No. 04-73128
Cal. Penal Code section 261.5(d), which criminalizes engaging in intercourse with a minor who is under 16 years of age when the perpetrator is 21 years of age or older, is not categorically a crime involving moral turpitude within the meaning of 8 U.S.C. section 1182(a)(2)(A)(i)(I) for purposes of making an alien removable. Read more...

U.S. 9th Circuit Court of Appeals, October 10, 2007
Martinez-Merino v. Keisler, No. 05-74776
Petition for review of an order reinstating petitioner's removal from the country is denied as petitioner has not alleged the deprivation of any constitutional or statutory right to be free from the restraint imposed by the reinstatement order. Read more...

October 01 - October 05, 2007

U.S. 1st Circuit Court of Appeals, October 01, 2007
Tum v. Gonzales, No. 06-1387
Petition for review of a denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) the court lacks jurisdiction to review the BIA and IJ's determinations that petitioner's asylum application was not timely filed and that she did not qualify for an exception to the filing deadline; 2) petitioner did not show that she had suffered past persecution or was likely to suffer future persecution; and 3) petitioner did not show that it was more likely than not that she would be tortured upon return to her country of origin. Read more...

U.S. 1st Circuit Court of Appeals, October 02, 2007
Palma-Mazariegos v. Gonzales, No. 05-2248
Petition for review of a denial of a motion to reopen immigration proceedings is denied where the motion to reopen was for the purpose of acting on an application for adjustment of status, yet was not accompanied by that application. Read more...

U.S. 1st Circuit Court of Appeals, October 04, 2007
Echevarria v. Gonzales, No. 06-2144
Petition for review of a denial of an adjustment of status during removal proceedings is denied where petitioner did not qualify for a grandfather clause for applicants who entered the U.S. illegally but were the beneficiaries of pending visa petitions, since the claimed visa petition was not approvable when it was filed. Read more...

U.S. 2nd Circuit Court of Appeals, October 02, 2007
Noble v. Keisler, No. 05-3915
Petition for review challenging BIA decision vacating grant of application for waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act is dismissed where jurisdiction is lacking to review an exercise of discretion by the BIA. Read more...

U.S. 2nd Circuit Court of Appeals, October 03, 2007
Osorio-Pedreros v. Gonzales, No. 06-3172
Petition for review of BIA's refusal to grant a continuance of petitioner's removal proceedings pending appeal to the BIA from district director's denial of I-130 immigrant visa petition is denied where the BIA was within its discretion in denying the continuance on the ground that petitioner offered no meaningful argument as to his likelihood of success on appeal. Read more...

U.S. 7th Circuit Court of Appeals, October 04, 2007
Sanchez v. Keisler, No. 06-2745
Petition for review of a denial of a motion to reopen removal proceedings based on a provision of the Violence Against Women Act is granted where petitioner's original counsel rendered ineffective assistance by abandoning the VAWA theory for no reason, which meant that the BIA's exercise of its discretion was based upon an incomplete record. Read more...

U.S. 8th Circuit Court of Appeals, October 04, 2007
Garcia-Mateo v. Keisler, No. 06-3647
A petition for review of a denial of a motion to reopen removal proceedings is denied as petitioner has no constitutionally protected liberty or property interest in the discretionary relief of voluntary departure, whether pre- or postconclusional, and thus she could not establish that she had a right to due process in the proceedings to obtain this relief. Read more...

U.S. 10th Circuit Court of Appeals, October 01, 2007
US v. Mancera-Perez, No. 06-2059
A sentence for illegal reentry into the U.S. by an alien previously deported for an aggravated felony is affirmed where: 1) defendant invited any error regarding the length of his sentence, although the court does not find that there was any such error; and 2) other claims made for the first time on appeal were waived. Read more...

California Appellate Districts, October 01, 2007
In re Jose C., No. D049525
In an appeal arising after a juvenile court declared 16-year-old defendant a ward and sentenced him pursuant to a true finding as to an allegation that defendant committed the federal crime of bringing aliens into the United States, and therefore that he fell within the court's jurisdiction under Welfare and Institutions Code section 602, the judgment is affirmed over a claim that the state court had no jurisdiction over him because the sole basis of the juvenile petition was a federal crime. Read more...

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