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2007

  • CA5 Finds TX Conviction of Injury to a Child by Act is a Crime of Violence (12/7/2007)
    The court held that Petitioner’s conviction under Texas Penal Code §22.04(a)(3), is a crime of violence because “in the ordinary case,” when a defendant is charged with causing bodily injury to a child by intentional act, the perpetrator uses or risks the use of physical force in committing the offense. (Perez-Munoz v. Keisler, 11/6/07). AILA Doc. No. 07120768.
    AILA Doc. No. 07120768.
  • CA5 Dismisses Petition for Review Under the Fugitive Disentitlement Doctrine (12/7/2007)
    The court invoked the fugitive disentitlement doctrine to dismiss the petition for review of the BIA’s decision where the Petitioners failed to report to ICE for removal and have remained at large. (Giri v. Keisler, 11/7/07). AILA Doc. No. 07120767.
    AILA Doc. No. 07120767.
  • CA5 Finds Misuse of a Social Security Number a Crime Involving Moral Turpitude (10/29/2007)
    The court held that Petitioner’s conviction of misuse of a social security number obtained by fraud in violation of 42 USC §408(a)(7)(A) is a crime involving moral turpitude, rendering him ineligible for cancellation of removal under INA §240A(b). (Hyder v. Keisler, 10/25/07). AILA Doc. No. 07102968.
    AILA Doc. No. 07102968.
  • CA5 Holds IJ Has Jurisdiction Over Portability Determinations Under INA §204(j) (10/29/2007)
    The court held that immigration judges have jurisdiction to determine whether an approved employment-based visa qualifies for portability under INA §204(j). (Sung v. Keisler, 10/22/07). AILA Doc. No. 07102967.
    AILA Doc. No. 07102967.
  • Fifth Circuit Reverses Position in Natz Delay Case Walji; Court Agrees with AILA Amicus Brief (9/17/2007)
    In a rare turnabout, the Fifth Circuit granted the petition for rehearing and reversed itself in Walji v. Gonzales. The court thus opened the door for naturalization applicants to seek judicial remedies for government delays. AILA submitted an amicus brief in support of the rehearing petition. (Walji v. Gonzales, 9/14/07). AILA Doc. No. 07091772.
    AILA Doc. No. 07091772.
  • CA5 Finds Abortion Was Forced, Not Voluntary, and Grants Withholding (9/7/2007)
    The court held that Petitioner’s abortion was forced because a reasonable person in her position would objectively view the threats for refusing the abortion to be genuine and that the harm, if carried out, would rise to the level of persecution. The court found that she qualified for withholding as a matter of law. (Zhu v. Gonzales, 7/23/07). AILA Doc. No. 07090765.
    AILA Doc. No. 07090765.
  • CA5 Remands to BIA to Allow Government to Withdraw Charge of Removability (9/4/2007)
    The court vacated its prior opinion and remanded the case to the BIA to allow the government to withdraw the charge of removability for a controlled substance conviction which was vacated for substantive reasons and is therefore, no longer a “conviction” for immigration purposes under Pickering. (Gaona-Romero v. Gonzales, 8/21/07). AILA Doc. No. 07090461.
    AILA Doc. No. 07090461.
  • CA5 Holds Reinstatement Not Impermissibly Retroactive as Applied to Spouse of LPR (7/9/2007)
    The court held that reinstatement of a prior removal order under INA §241(a)(5) was not impermissibly retroactive as applied to Petitioner. Although Petitioner’s I-130 was approved pre-IIRAIRA, a visa was not available and Petitioner could not demonstrate a vested right to adjustment before IIRAIRA’s effective date. (Rosa v. Gonzales, 6/25/07). AILA Doc. No. 07070967.
    AILA Doc. No. 07070967.
  • CA5 Holds Texas Hit and Run Constitutes a Crime Involving Moral Turpitude (7/9/2007)
    The court held that Petitioner’s conviction for failure to stop and render aid following a fatal car accident in which he was involved under Texas Transportation Code §550.021 constitutes a crime involving moral turpitude. (Garcia-Maldonado v. Gonzales, 6/29/07). AILA Doc. No. 07070966.
    AILA Doc. No. 07070966.
  • CA5 Finds Jurisdiction to Issue Stays of Voluntary Departure (7/9/2007)
    The court held that once the Attorney General has granted voluntary departure, the court has jurisdiction to stay the voluntary departure period to preserve the status quo pending its review of the underlying order of removal. (Sierra Vidal v. Gonzales, 6/27/07). AILA Doc. No. 07070965.
    AILA Doc. No. 07070965.
  • CA5 Discusses 120-Day Clock for Naturalization Adjudications Under INA §336(b) (7/5/2007)
    The court held that when a CIS naturalization examination is premature because the mandatory FBI security investigation is not complete, the 120-day time period of INA §336(b) does not begin to run until CIS receives the FBI’s “definitive response,” as required by 8 CFR §335.2(b). (Walji v. Gonzales, 6/19/07). AILA Doc. No. 107070562.
    AILA Doc. No. 07070562.
  • CA5 Remands for BIA Consideration of Nunc Pro Tunc §212(c) Relief (6/29/2007)
    The court held that the BIA reasonably determined the length of Petitioner’s term of imprisonment by using the date of the BIA’s second denial of relief following reopening of the case. However, the court remanded the case to the BIA for consideration of Petitioner’s request for nunc pro tunc §212(c) relief. (Romero-Rodriguez v. Gonzales, 6/4/07). AILA Doc. No. 07062964.
    AILA Doc. No. 07062964.
  • CA5 Finds No Equal Protection Violation in Refusing to Give Effect to Foreign Expungement (6/29/2007)
    The court held that the BIA did not violate Petitioner’s right to equal protection by refusing to treat his foreign conviction, which had been expunged under England’s Rehabilitation of Offenders Act, in the same manner as it would have treated a conviction expunged under the FFOA. (Danso v. Gonzales, 6/15/07). AILA Doc. No. 07062963.
    AILA Doc. No. 07062963.
  • CA5 Holds Hardship Waiver Under INA §216(c)(4)(A) Does Not Require Good Faith Marriage (6/11/2007)
    The plain language of INA §216(c)(4)(A) indicates that an extreme hardship waiver of the joint filing requirement to remove the conditions on permanent resident status does not also require a showing of a good faith marriage. (Waggoner v. Gonzales, 5/30/07). AILA Doc. No. 07061161.
    AILA Doc. No. 07061161.
  • CA5 Finds False Testimony Regarding Address Does Not Bar Good Moral Character (5/31/2007)
    The court held that Petitioner’s false testimony to an asylum officer regarding his address was not made with the subjective intent of obtaining immigration benefits and therefore, cannot preclude him from establishing good moral character under INA §101(f)(6), for purposes of cancellation of removal. (Gonzalez-Maldonado v. Gonzales, 5/25/07). AILA Doc. No. 07053161.
    AILA Doc. No. 07053161.
  • CA5 Allows Retroactive Application of IIRAIRA’s Change to Aggravated Felony Definition (5/3/2007)
    The court held that the IJ’s post-IIRAIRA decision denying Petitioner relief from removal was an “action taken,” as described in IIRAIRA §321(c), which compelled the IJ to utilize the retroactive definition and find Petitioner’s conviction for harboring aliens to constitute an aggravated felony. (Garrido-Morato v. Gonzales, 4/24/07). AILA Doc. No. 07050367.
    AILA Doc. No. 07050367.
  • CA5 Holds Counsel’s Advice Not to Appear Warrants Rescission of In Absentia Order (4/23/2007)
    The court held that the BIA abused its discretion in refusing to rescind Petitioner’s in absentia order. The BIA failed to follow its own precedent holding that a failure to appear, which results from erroneous advice provided by an attorney or representative, may constitute an “exceptional circumstance.” (Galvez-Vergara v. Gonzales, 4/16/07). AILA Doc. No. 07042364.
    AILA Doc. No. 07042364.
  • CA5 Affirms its Decision Holding Unauthorized Use of a Vehicle is a “Crime of Violence” (3/27/2007)
    The court affirmed its prior decision in U.S. v. Galvan-Rodriguez that unauthorized use of a vehicle is a “crime of violence” and denied the petition for review because Petitioner was removable and ineligible for relief under the law in effect at the time of his plea. (Brieva-Perez v. Gonzales, 3/19/07). AILA Doc. No. 07032773.
    AILA Doc. No. 07032773.
  • CA5 Upholds BIA’s Reasoning in Matter of Brieva-Perez on §212(c) Comparability (3/27/2007)
    The court found no error in the BIA’s determination that Petitioner was ineligible for relief under former INA §212(c) because the ground of removability charged, an aggravated felony crime of violence, does not have a statutory counterpart ground of inadmissibility under INA §212(a). (Vo v. Gonzales, 3/19/07). AILA Doc. No. 07032772.
    AILA Doc. No. 07032772.
  • CA5 Upholds §212(c) Statutory Counterpart Holding in Matter of Blake (3/27/2007)
    The court held that the crime of aggravated sexual assault of a child, an aggravated felony, does not have a comparable ground of inadmissibility under INA §212(a) as required by 8 CFR §1212.3(f)(5), but remanded the case to the BIA to allow Petitioner the opportunity to apply for adjustment of status. (Avilez-Granados v. Gonzales, 3/19/07). AILA Doc. No. 07032768.
    AILA Doc. No. 07032768.
  • CA5 Finds No Jurisdiction to Review Visa Revocation Under INA §205 (3/26/2007)
    The court held that the decision of the Secretary of Homeland Security to revoke a visa under INA §205 is purely discretionary and may not be reviewed by the court of appeals in accordance with INA §242(a)(2)(B)(ii). (Ghanem v. Upchurch, 3/6/07). AILA Doc. No. 07032662.
    AILA Doc. No. 07032662.
  • CA5 Reverses Illegal Reentry Conviction Under INA §276 (2/27/2007)
    Petitioner’s 2004 indictment for illegal reentry under INA §276 was barred by the five-year statute of limitations. The court found that the government could reasonably be attributed with actual knowledge of Petitioner’s illegal presence as of Sept. 28, 1999 and that he was therefore, “found in” the U.S. as of that date. (U.S. v. Gunera, 2/13/07). AILA Doc. No. 07022763.
    AILA Doc. No. 07022763.
  • CA5 Vacates District Court Decision in Light of Supreme Court’s Decision in Lopez (2/27/2007)
    The court vacated the district court’s decision and remanded the case to the BIA for further consideration in light of Lopez v. Gonzales, 127 S.Ct. 625 (2006), where the Supreme Court held that held that a drug conviction that qualifies as a state felony, but not a federal felony, is not an aggravated felony. (Salazar-Regino v. Trominski, 2/13/07). AILA Doc. No. 07022762.
    AILA Doc. No. 07022762.
  • CA5 Remands for Determination of Reliance on Continued Availability of §212(c) Relief (2/13/2007)
    The court granted the petition for review and remanded the case to the BIA to determine whether Petitioner affirmatively decided to postpone her §212(c) application to increase her chances of success and therefore, reasonably relied on the continued availability of §212(c) relief. (Carranza-De Salinas v. Gonzales, 1/23/07). AILA Doc. No. 07021364.
    AILA Doc. No. 07021364.
  • CA5 Reverses IJ’s Determination That Petitioner’s Asylum Application Was Untimely (1/31/2007)
    The court rejected the IJ’s finding that 8 CFR §208.4(a)(2)(ii), which plainly states that an asylum application received outside of the one year filing deadline shall be deemed timely filed if the application was mailed within the one year period, only applies to applications that are never received by the agency. (Nakimbugwe v. Gonzales, 1/5/07). AILA Doc. No. 07013168.
    AILA Doc. No. 07013168.
  • CA5 Says Stop-Time Rule of INA §240A(d) May Be Applied Retroactively (1/12/2007)
    The court held that Congress’s intent that the stop-time rule be applied retroactively to transitional cases was clearly conveyed in IIRAIRA §309(c)(5). The court joined the Ninth Circuit in extending the retroactive application of §240A(d) in removal proceedings commenced after IIRAIRA’s effective date. (Heaven v. Gonzales, 12/14/06). AILA Doc. No. 07011267.
    AILA Doc. No. 07011267.
  • CA5 Holds BIA Abused its Discretion in Denying Motion to Reopen Based on IAC (1/12/2007)
    The court held that the BIA’s denial of Petitioner’s motion to reopen based on ineffective assistance of counsel was an abuse of discretion. The BIA’s conclusion that counsel’s admission that Petitioner falsely claimed U.S. citizenship was strategic and therefore, not ineffective, was unsupported by the evidence. (Mai v. Gonzales, 12/13/06). AILA Doc. No. 07011266.
    AILA Doc. No. 07011266.