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2007

  • CA1 Finds Family Planning Persecution Claim Speculative (12/28/2007)
    The court upheld the denial of asylum, finding the BIA justifiably relied on a DOS report indicating that fees levied on unwed mothers were merely for social compensation, and in some cases the fees had abolished or relaxed. (Wang v. Mukasey, 11/29/07) AILA Doc. No. 07122867.
    AILA Doc. No. 07122867.
  • CA1 Upholds Dismissal of Claims Arising From New Bedford, MA Raid (12/14/2007)
    The court held that INA §242(b)(9) barred jurisdiction over Petitioners’ right to counsel and procedural due process claims, finding the claims “arose from” removal because they are part of the fabric of removal proceedings. (Aguilar v. ICE, 11/27/07) AILA Doc. No. 07121431.
    AILA Doc. No. 07121431.
  • CA1 Finds No Past Harm or Well-Founded Fear, but Faults IJ on Credibility (12/4/2007)
    Though expressing concern over the IJ’s muddled credibility finding, the court found that because Petitioner recounted only one instance of physical abuse, the record did not compel a conclusion of past persecution or a well-founded fear. (Ouk v. Keisler, 10/29/07) AILA Doc. No. 07120467.
    AILA Doc. No. 07120467.
  • CA1 Rejects Salvadoran Gang-Based Asylum Claim (11/8/2007)
    The court upheld the denial of asylum, finding that the IJ and BIA’s conclusion that the Salvadoran government was willing and able to confront Petitioner’s potential persecutor was supported by substantial evidence. (Ortiz-Araniba v. Keisler, 10/11/07) AILA Doc. No. 07110867.
    AILA Doc. No. 07110867.
  • CA1 Rejects “Disfavored Group” Doctrine in Indonesian Asylum Case (11/8/2007)
    The court rejected the “disfavored group” doctrine, noting that the regulations do not require the agency to automatically credit group discrimination to an individual, and that Congress had not delegated authority to the courts to do so. (Kho v. Keisler, 10/16/07) AILA Doc. No. 07110866.
    AILA Doc. No. 07110866.
  • CA1 Finds Rhode Island Assault Is a Crime of Violence (10/29/2007)
    The court held that a conviction for assault under Rhode Island Gen. Laws §11-5-3 is a crime of violence within the meaning of 18 USC §16(a) and is therefore, an aggravated felony for purposes of removal under INA §237(a)(2)(A)(iii). (Lopes v. Keisler, 10/26/07) AILA Doc. No. 07102961.
    AILA Doc. No. 07102961.
  • CA1 on Due Process and the 1-Year Asylum Deadline (10/23/2007)
    The court joined its sister circuits in holding that the bar to judicial review of a determination that an asylum application was not timely filed does not violate due process. (Hana v. Gonzales, 9/17/07) AILA Doc. No. 07102363.
    AILA Doc. No. 07102363.
  • CA1 Finds Fleuti Doctrine Irrelevant to Admission of Returning LPRs (9/26/2007)
    The court held that the Fleuti doctrine, that permitted “innocent, brief and casual” departures for LPRs, was abrogated by IIRIRA which created the concept of “admission” and set forth new criteria for returning LPRs. (Perez de Vega v. Gonzales, 9/17/07) AILA Doc. No. 07092671.
    AILA Doc. No. 07092671.
  • CA1 Says LPR Who Obtained Status by Fraud Is Ineligible for Cancellation (9/17/2007)
    The court found that Petitioner, who failed to disclose an arrest on his adjustment of status application, was never “lawfully admitted for permanent residence” and was therefore ineligible for cancellation of removal. (Mejia-Orellana v. Gonzales, 9/6/07) AILA Doc. No. 07091762.
    AILA Doc. No. 07091762.
  • CA1 Rejects Colombian Asylum Claim for Lack of Nexus to a Protected Ground (8/27/2007)
    The court upheld the IJ’s finding that whoever was threatening Petitioner targeted her because of greed, not her political opinion or membership in a particular social group. (Lopez de Hinacapie v. Gonzales, 7/17/07) AILA Doc. No. 07082760.
    AILA Doc. No. 07082760.
  • CA1 Overturns IJ’s Adverse Credibility Finding in Cambodian Asylum Case (8/20/2007)
    The court reversed the IJ’s adverse credibility finding, where the IJ’s description of Petitioner’s testimony was inaccurate and Petitioner corrected a discrepancy almost immediately, before it was brought to her attention. (Heng v. Gonzales, 7/12/07) AILA Doc. No. 07082065.
    AILA Doc. No. 07082065.
  • CA1 Says Filing of Motion to Reopen Does Not Stay Voluntary Departure (8/7/2007)
    The court held that the timely filing of a motion to reopen does not toll the voluntary departure period, and that the granting of a motion to reopen does not “retroactively nullify” the prior violation of a voluntary departure order. (Chedad v. Gonzales, 7/31/07) AILA Doc. No. 07080768.
    AILA Doc. No. 07080768.
  • CA1 Finds Persecutor Bar Requires Culpable Knowledge of Atrocity (6/29/2007)
    The court held that the persecutor bar should not apply to Petitioner, a former lieutenant in the Peruvian military, if his version of his state of mind is accepted, that is, if he had no knowledge of the murder of civilians. (Castaneda-Castillo v. Gonzales, 5/23/07) AILA Doc. No. 07062961.
    AILA Doc. No. 07062961.
  • CA1 Dismisses Petitioner’s Res Judicata Claim for Lack of Jurisdiction (4/2/2007)
    The court dismissed Petitioner’s res judicata claim as untimely, refusing to create a “grace period” for filing a petition for review under the REAL ID Act. (Fontes v. Gonzales, 3/30/07) AILA Doc. No. 07040260.
    AILA Doc. No. 07040260.
  • CA1 Finds No Well-Founded Fear, but Holds IJ Erred in Excluding Evidence (2/27/2007)
    The court found that the IJ erred in rejecting two documents solely because they were not in conformity with the authentication regulation, where the regulation was not applicable because the documents were not official records. (Jiang v. Gonzales, 1/23/07) AILA Doc. No. 07022760.
    AILA Doc. No. 07022760.
  • CA1 Holds §212(c) Cannot Waive Deportability for a “Crime of Violence” (2/13/2007)
    The court upheld the BIA’s approach in Matter of Brieva, and held that Petitioner, who was deportable for having committed a crime of violence, was ineligible for §212(c) relief because there is no counterpart ground of exclusion. (Kim v. Gonzales, 11/16/06) AILA Doc. No. 07021367.
    AILA Doc. No. 07021367.
  • CA1 Orders BIA to Consider Sibling’s Grant of Asylum on Remand (1/31/2007)
    In an Indonesian asylum claim, the court remanded, finding that the BIA failed to address whether the grant of asylum to Petitioner’s brother was material, where the brothers had similar claims. (Ticoalu v. Gonzales, 12/28/06) AILA Doc. No. 07013165.
    AILA Doc. No. 07013165.
  • CA1 Finds DHS Rebutted Presumption of Well-Founded Fear in Cambodian Claim (1/19/2007)
    The court held that where a DOS report demonstrates fundamental changes in specific circumstances that form the basis of the presumptive well-founded fear, the report is, in and of itself, sufficient to rebut the presumption. (Chreng v. Gonzales, 12/19/06) AILA Doc. No. 07011963.
    AILA Doc. No. 07011963.
  • CA1 Remands §212(h) Waiver Denial (1/10/2007)
    The court vacated the denial of Petitioner’s motion to reconsider and remanded the case for clarification of the BIA’s rationale for accepting the IJ’s denial of Petitioner’s §212(h) waiver. (Onwuamaegbu v. Gonzales, 12/6/06). AILA Doc. No. 07011061.
    AILA Doc. No. 07011061.