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2010

  • CA2 on BIA Jurisdiction to Reopen Under the Departure Bar(311 KB - 11/3/2010)
    The court held that the BIA did not err in concluding that the departure bar under 8 CFR §1003.2(d) divested it of jurisdiction to consider a sua sponte motion to reopen where the petitioner had already been removed. (Zhang v. Holder, 8/12/10) AILA Doc. No. 10110365.
  • CA2 Finds NY Conviction for Sexual Misconduct Is an Aggravated Felony(79 KB - 10/26/2010)
    A conviction for sexual misconduct under New York Penal Law §130.20(1) qualifies as “sexual abuse of a minor” and is an aggravated felony under INA §101(a)(43)(A). (Ghanzi v. Holder, 9/7/10) AILA Doc. No. 10102668.
  • CA2 on the Fugitive Disentitlement Doctrine(66 KB - 10/25/2010)
    The court held the government's motion to dismiss based on the fugitive disentitlement doctrine in abeyance, finding that the motion is more appropriately considered after the parties have fully briefed and argued the merits of the case. (Wu v. Holder, 8/04/10) AILA Doc. No. 10102561.
  • CA2 Transfers Petitions to District Courts for Habeas Review(102 KB - 10/18/2010)
    The REAL ID Act of 2005 did not divest district courts of habeas jurisdiction to consider petitioners’ claims that they were prevented by circumstances beyond their control from filing timely petitions for review. (Luna v. Holder, 9/03/10) AILA Doc. No. 10101863.
  • CA2 Finds BIA Engaged in Impermissible Fact-Finding in Cancellation Case(85 KB - 9/24/2010)
    The court vacated finding that the BIA impermissibly engaged in fact-finding and relied on unproven and disputed allegations as basis for its decision. (Padmore v. Holder, 6/15/10) AILA Doc. No. 10092463.
  • CA2 Interprets “Previously” as Used in INA §212(h)(84 KB - 9/24/2010)
    The court held that under §212(h), an alien who has been “previously” admitted to the U.S. as a lawful permanent resident refers to an alien who has been admitted at any time in the past, not merely upon the most recent admission. (Dobrova v. Holder, 6/9/10) AILA Doc. No. 10092462.
  • CA2 on Fraudulent VWP Applicants and Removal(61 KB - 5/25/2010)
    The court found that since Petitioner attempted entry using a fake passport from a Visa Waiver Program nation, his removal was properly administered under that program. (Shabaj v. Holder, 4/12/10) AILA Doc. No. 10052582.
  • CA2 Finds Ineffective Assistance of Counsel May Excuse Failure to Exhaust(281 KB - 5/12/2010)
    The court vacated the district court judgment and held that the administrative exhaustion requirement of INA §276(d)(1) can be excused when an alien has received ineffective assistance of counsel. (USA v. Cerna, 4/27/10) AILA Doc. No. 10051269.
  • CA2 on Lozada and Ineffective Assistance of Counsel(89 KB - 5/10/2010)
    The court upheld the BIA's denial of Petitioner’s motion to reopen based on ineffective assistance of counsel, finding that Petitioner failed to comply with the requirements of Lozada. (Debeatham v. Holder, 4/28/10) AILA Doc. No. 10051065.
  • CA2 Finds Limited Jurisdiction to Review Moral Character Determinations(89 KB - 5/10/2010)
    The court found jurisdiction to review a moral character determination made pursuant to INA §101(f)'s catchall provision where a "constitutional claim or question of law" is raised.(Sumbundu v. Holder, 4/7/10) AILA Doc. No. 10051060.
  • CA2 Finds INA §241(a)(5) Not Impermissibly Retroactive as Applied to Petitioner(107 KB - 3/12/2010)
    The court found that INA §241(a)(5) is not impermissibly retroactive as applied to Petitioner, does not deprive him of due process, and forecloses him from applying for certain additional types of relief. (Herrera-Molina v. Holder, 3/3/10) AILA Doc. No. 10031272.
  • CA2 Remands, Finds Errors in Consideration of Political Persecution Claim(125 KB - 3/12/2010)
    The court found that the treatment of Petitioner's claim of political persecution based on his act of reporting official corruption to an international human rights organization was based on substantial errors. (Carranza-Fuentes v. Holder, 3/2/10) AILA Doc. No. 10031271.
  • CA2 Remands on Issue of “Government Acquiescence” under CAT(73 KB - 3/12/2010)
    The court found that the BIA committed error in its review of the IJ’s factual findings and evidentiary record and remanded due to concerns with the BIA’s treatment of the “government acquiescence” standard under CAT (De La Rosa v. Holder, 2/25/10) AILA Doc. No. 10031270.
  • CA2 on “Continuous Physical Presence” and Cancellation of Removal(112 KB - 3/12/2010)
    The court found that for purposes of cancellation of removal eligibility, petitioner’s arrest and conviction for illegal entry interrupted the period of “continuous physical presence.” (Ascencio-Rodriguez v. Holder, 2/17/10) AILA Doc. No. 10031269.
  • CA2 Finds One-Year Absence Bar Applies Before and After Naturalization Interview(260 KB - 2/17/2010)
    The court held that INA §316 precludes the naturalization of Plaintiff finding that the one-year absence bar applied both to the period preceding and the period following the naturalization interview. (Gildernew v. Quarantillo, 2/4/10) AILA Doc. No. 10021767.
  • CA2 Gives Deference to BIA Holding on Asylum and Forced IUDs(258 KB - 2/17/2010)
    The court held that the BIA’s interpretation that involuntary insertion of an IUD is not “involuntary sterilization” and not a per se ground for granting asylum is entitled to deference. (Huang v. Holder, 1/12/10) AILA Doc. No. 10021766.
  • CA2 on Well-Founded Fear and Government’s Awareness of Banned Activities(64 KB - 1/25/2010)
    The court vacated the denial of asylum and remanded with instructions to provide Petitioner an opportunity to submit any additional evidence "as to the Chinese government's likely future awareness of his involvement with the CDP." (Ge v. Holder, 12/2/09) AILA Doc. No. 10012570.
  • CA2 Finds CT 2nd Degree Larceny Is an Aggravated Felony(104 KB - 1/25/2010)
    The court held that second-degree larceny in violation of Conn. Gen. Stat. §53a-123 is a “theft offense” under INA §101(a)(43)(G) and is therefore, an aggravated felony. (Almeida v. Holder, 12/8/09) AILA Doc. No. 10012569.
  • CA2 Finds Due Process Denial Where BIA Invoked Uncharged Removal Grounds(74 KB - 1/25/2010)
    The court vacated the BIA's order of removal finding Petitioner was deprived of due process when the BIA sua sponte invoked uncharged INA §101(a)(43)(U) as a basis for removal under section 237(a)(2)(A)(iii). (Pierre v. Holder, 12/8/09) AILA Doc. No. 10012567.
  • CA2 on Selective Enforcement Based on National Origin, Race, or Religion(90 KB - 1/25/2010)
    The court affirmed the order partially dismissing the complaint where there was no clearly established equal protection right to be free of selective enforcement of immigration laws at the time of detention. (Turkmen v. Ashcroft, 12/18/09) AILA Doc. No. 10012566.
  • CA2 Affirms Denial of Citizenship Based on Attempted Bank Fraud Conviction(84 KB - 1/25/2010)
    The court affirmed summary judgment, finding Plaintiff was statutorily barred from naturalizing because of his aggravated felony conviction of attempted bank fraud. (Ljutica v. Holder, 12/3/09) AILA Doc. No. 10012565.