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2004

  • CA7 Finds the Numerical Limitation on Motions to Reopen Is Not Jurisdictional (12/14/2004)
    The court reasoned that successive motions to reopen “do not postpone the taking of an appeal to the court of appeals from the order of removal.” Thus, the court concluded that it could review the merits of the BIA’s denial of the petitioner’s fourth motion to reopen. (Joshi v. Ashcroft, 11/19/04)
    AILA Doc. No. 04121442.
  • CA7 Holds it Lacks Jurisdiction to Decide Whether Simple Possession is an AgFel (12/1/2004)
    The court found that petitioners' simple possession offenses constituted controlled substance offenses which, under INA § 242(a)(2)(C), independently deprived the court of jurisdiction to review whether the offenses were aggravated felonies. (Yanez-Garcia v. Ashcroft, 11/2/04)
    AILA Doc. No. 04120167.
  • CA7 Empowered to Stay Voluntary Departure in Permanent Rule Cases (10/7/2004)
    Joining CA6, 8, and 9, CA7 held “nothing in IIRAIRA divests us of the power to grant a stay tolling the time for departure until the completion of judicial review” if a motion to stay voluntary departure is filed before the date for departure.(Lopez-Chavez v. Ashcroft, 9/9/04)
    AILA Doc. No. 04100763.
  • CA7 Holds That Non-Compelled Departures Do Not Break Physical Presence for Cancellation Eligibility (10/5/2004)
    The court held that INA § 242(a)(2)(B) does not bar review of non-discretionary statutory eligibility requirements for discretionary relief, and that departures made without any threat of removal proceedings do not break continuous physical presence. (Morales-Morales v. Ashcroft, 9/15/04).
    AILA Doc. No. 04100569.
  • CA7 Finds IJ’s Refusal to Continue Removal Proceedings Violates INA § 245(i) (9/15/2004)
    The court found that the IJ violated INA § 245(i) when he denied petitioner’s continuance in order to have his labor certification processed. (Subhan v. Ashcroft, 9/7/04)
    AILA Doc. No. 04091567.
  • CA7 Awards EAJA Fees in Remand Case (9/13/2004)
    The court found that petitioner had prevailed for purposes of the Equal Access to Justice Act where the court remanded for reconsideration of her asylum application. It also granted lead counsel an enhanced hourly rate.(Muhur v. Ashcroft, 8/24/2004)
    AILA Doc. No. 04091366.
  • CA7 Reverses CAT Denial Based on Illegal Emigration from China (9/13/2004)
    The court discussed the merits of a Chinese petitioner’s claim that he would be detained and tortured for illegally emigrating from China without the permission of the government. The court remanded for consideration by a new IJ.(Yi-Tu Lian v. Ashcroft, 8/12/2004)
    AILA Doc. No. 04091365.
  • CA7 Reminds OIL that Courts Can Only Affirm on Grounds Actually Addressed By the BIA/IJ (8/24/2004)
    Invoking the well-established administrative principal that reviewing courts may only review the reasons set forth by the agency below, the court rejected the government’s request to affirm petitioner’s CAT denial based on grounds not relied on by the IJ. (Comollari v. Ashcroft, 8/10/2004)
    AILA Doc. No. 04082463.
  • CA7 Holds that Failure to Surrender for Deportation Constitutes Forfeiture of Judicial Review (8/13/2004)
    Finding that the “fugitive-disentitlement doctrine” applies to immigration cases, CA7 dismissed the petition for review because petitioners did not surrender pursuant to bag-and-baggage letters, after the court had granted them temporary stays of removal. (Sapoundjiev v. Ashcroft, 7/22/04)
    AILA Doc. No. 04081321.
  • CA7 Holds It Lacks Jurisdiction to Review Whether Asylum Application Was Timely Filed (8/13/2004)
    The court found that INA §208(a)(3) bars it from reviewing whether petitioner’s asylum application was filed within one year of arrival in the United States and, if not, whether he qualified for a changed or extraordinary circumstances exception to the deadline. (Zaidi v. Ashcroft, 7/26/04)
    AILA Doc. No. 04081374.
  • CA7 Upholds Asylum Denial Based on Adverse Credibility Determination (8/9/2004)
    In affirming the denials of asylum and withholding to a Nigerian woman who claimed she would be forced to undergo female genital mutilation if removed, the court found that the IJ’s adverse credibility determination was supported by the evidence. (Balogun v. Ashcroft, 7/1/2004)
    AILA Doc. No. 04080974.
  • In Video Hearing Held in Two Circuits, CA7 Holds Petition for Review is Filed in IJ's Location (8/9/2004)
    CA7 ruled that when an immigration hearing is simultaneously conducted in two different circuits as a result of video teleconferencing, INA § 242(b)(2) requires the filing of petitions for review in the circuit where the IJ was located and the order was issued. (Ramos v. Ashcroft, 6/15/2004)
    AILA Doc. No. 04080961.
  • CA7 Reveals Government Procedures for Notifying Local Immigration Officials of Stay Orders (7/9/2004)
    Noting the government’s failure to properly convey notice of a stay order, CA7 discussed the government’s procedures for communicating such stay orders to the appropriate local immigration office, and cited CA9's email notification system was cited as a model. (Dimitrov v. Ashcroft, 5/24/04)
    AILA Doc. No. 04070965.
  • CA7 Upholds Denials of Asylum and Withholding in FGM Case (5/24/2004)
    CA7 affirmed denials of asylum and withholding of removal, holding that petitioner's fear that her daughters would be subjected to FGM did not establish fear of persecution to herself, and that because the daughters are LPRs, they could remain in the U.S.(Olowo v. Ashcroft, 05/11/04)
    AILA Doc. No. 04052465.
  • CA7 Permits Adding of Spouse to Petition for Review in Asylum Claim (5/12/2004)
    The Seventh Circuit granted the motion to add petitioner's spouse's name to the Petition for Review in the narrow circumstance in which the spouse seeking derivative status was named in the petitioner's asylum application. (Miljkovic v. Ashcroft, 05/03/04)
    AILA Doc. No. 04051267.
  • CA7 Upholds IJ's Instruction to Unprepared Counsel to Proceed on Relief Applications (5/12/2004)
    The Court held that the phrasing of counsel's Motion to Expedite Hearing was the cause of any confusion regarding what would be heard at the expedited hearing, and thus there was no due process violation in the IJ's insistence on proceeding.(Kuschchak v. Ashcroft, 05/03/04)
    AILA Doc. No. 04051266.
  • CA7 Criticizes IJs, BIA for Failing to Adequately Explain Asylum Decisions (5/3/2004)
    In two consolidated cases, the Seventh Circuit chastises immigration judges and the Board for "continuing difficulty...in giving reasoned explanations for their decisions to deny asylum." (Guchsheknov v. Ashcroft, 4/29/04)
    AILA Doc. No. 04050363.
  • CA7 Holds That Judicial Review is Barred in Decision To Revoke Petition (5/3/2004)
    The Seventh Circuit held that the bar to judicial review at INA § 242(a)(2)(B)(ii) applies in the non-removal context, in this case a decision to revoke a previously-approved employment-based visa petition. (El-Khader v. Ashcroft, 4/29/04)
    AILA Doc. No. 04050361.
  • CA7 Finds Lack of Jurisdiction under INA Section 242(a)(2)(C) (4/27/2004)
    Finding that it lacked jurisdiction under INA § 242(a)(2)(C), CA7 held that the denial of discretionary relief presented no substantial constitutional claim which would override the statutory bar to jurisdiction.(Dave v. Ashcroft, 04/14/04)
    AILA Doc. No. 04042766.
  • CA7 Finds No Prejudice in Lack of Notice (2/23/2004)
    The District Director sent notice to petitioner to rescind LPR status obtained through the DV lottery due to alleged multiple entries. The IJ concluded he lacked jurisdiction to review the DD's decision. The Circuit Court found no prejudice. (Szczesny v. Ashcroft, 02/12/04)
    AILA Doc. No. 04022360.
  • CA7 Remands Case For Evaluation of Asylum Applicant's Language Proficiency (2/20/2004)
    Because the credible fear interview was conducted in a language not the applicant’s native, CA7 remanded for additional evidence on the applicant's proficiency in the language used in the credible fear interview. (Ememe v. Ashcroft, 02/12/04)
    AILA Doc. No. 04022011.
  • CA7 Finds that Probationary Disposition Meets the INA Definition of "Conviction" (2/2/2004)
    CA7 found that INA § 236(c) did not preclude review of petitioner’s habeas petition, but ruled against petitioner in holding that a probationary disposition does satisfy the INA definition of "conviction." (Gonzales v. O'Connell, 01/21/04)
    AILA Doc. No. 04020244.
  • CA7 Finds INA Definition of "Conviction" is Met, Regardless of Pending Appeal (2/2/2004)
    Citing to First and Fifth Circuit decisions, the Seventh Circuit held that an individual is considered “convicted” once a court enters a formal judgment of guilt, regardless of whether any direct appeal of the conviction is pending. ()Montenegro v. Ashcroft, 01/22/04)
    AILA Doc. No. 04020243.
  • CA7 Remands Two Asylum Cases and Reverses a Third (1/29/2004)
    Subsequent to CA7’s decision in Niam v. Ashcroft, in which Judge Posner sharply criticized the BIA and IJ, the Judge Posner again found faulty adjudications in three asylum cases, remanding two and reversing a third.
    AILA Doc. No. 04012947.
  • CA7 Severely Criticizes IJ and BIA Adjudications (1/23/2004)
    CA7 found that recent decisions suggest "a pattern of serious misapplication by the board and the immigration judges of elementary principles of adjudication." (Niam v. Ashcroft, 01/07/04)
    AILA Doc. No. 04012310.
  • CA7 Finds Fleuti Doctrine Superseded (1/6/2004)
    The Seveth Circuit upheld the denial of a suspension claim where the petitioner had made a 6-month trip to Mexico in 1990, finding that IIRAIRA superseded the Fleuti doctrine with respect to the continuity of physical presence. (Tapia v. Ashcroft, 12/16/03)
    AILA Doc. No. 04010613.
  • CA7 Finds Past Persecution Shifts Burden to Government (1/5/2004)
    CA7 reversed an IJ holding that well-founded fear of future persecution was not shown, finding that, where an Albanian couple demonstrated past persecution, the IJ should have shifted to the INS the burden of rebutting a presumptive fear of future persecution. (Bace v. Ashcroft, 12/18/03)
    AILA Doc. No. 04010522.
 
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