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2011

  • CA3 Says BIA Erred in Making Unqualified Conclusions on CAT “Acquiescence”(318 KB - 12/7/2011)
    The court found that the BIA incorrectly concluded that a number of specific circumstances cannot constitute government acquiescence and that it improperly ignored evidence of the likelihood of torture. (Pieschacon-Villegas v. Att’y Gen. of the U.S., 12/5/11) AILA Doc. No. 11120762.
    AILA Doc. No. 11120762.
  • CA3 Finds Pennsylvania Sexual Assault Is a Crime of Violence(177 KB - 12/1/2011)
    The court held that sexual assault, in violation of 18 Pa. Cons. Stat. §3124.1, raises a substantial risk of the intentional use force and is therefore an aggravated felony crime of violence under 18 USC §16(b). (Aguilar v. Att’y Gen. of the U.S., 11/29/11) AILA Doc. No. 11120161.
    AILA Doc. No. 11120161.
  • CA3 Remands Asylum Claim of Guatemalan Government Witness(578 KB - 11/30/2011)
    Although the Guatemalan government was willing to protect Petitioner in exchange for her testimony in a murder trial, the fact that it relocated her to Mexico is an admission that it could not actually protect her. (Garcia v. Att’y Gen. of the U.S., 11/28/11). AILA Doc. No. 11113047
    AILA Doc. No. 11113047.
  • CA3 Remands for BIA to Consider Change in Power in Guinea(44 KB - 11/22/2011)
    Declining to take judicial notice of the change in power in Guinea, the court remanded the case to the BIA to consider the possible effect of the change in government on Petitioner’s claims for relief. (Nbaye v. Att’y Gen. of the U.S., 10/20/11) AILA Doc. No. 11112266.
    AILA Doc. No. 11112266.
  • CA3 Finds IJ Failed to Act as Neutral Arbiter; Reverses Adverse Credibility(226 KB - 11/16/2011)
    The court found that Petitioner’s due process rights were violated when government counsel was unprepared at the merits hearing and the IJ took over cross-examination and ceased functioning as a neutral arbiter. (Abulashvili v. Att’y Gen. of the U.S., 11/15/11) AILA Doc. No. 11111667.
    AILA Doc. No. 11111667.
  • CA3 Rejects “Social Visibility” and “Particularity” Concepts in Asylum(364 KB - 11/9/2011)
    The court found that the addition of social visibility and particularity to the BIA’s social group definition is inconsistent with prior decisions and rejected it without a reason for adopting the requirements. (Valdiviezo-Galdamez v. Att’y Gen. of the U.S., 11/8/11) AILA Doc. No. 11110941.
    AILA Doc. No. 11110941.
  • CA3 on the Meaning of “Has Committed” under the Stop-Time Rule(67 KB - 10/28/2011)
    The court found that “has committed” in INA §240A(d)(1)(B) means the stop-time rule is triggered by conduct occurring on a particular date, or conduct that runs up to the date when the seventh year of residency ends. (Santos-Reyes v. Att’y Gen. of the U.S., 10/26/11) AILA Doc. No. 11102863.
    AILA Doc. No. 11102863.
  • CA3 Says Rescission Bar Does Not Apply to LPR Status Obtained Through Consulate(125 KB - 10/11/2011)
    The court held that the five-year statute of limitations on rescission of LPR status under INA §246(a) does not apply where Petitioner obtained status through consular processing, not adjustment of status. (Malik v. Att’y Gen. of the U.S., 10/4/11; amended 10/7/11) AILA Doc. No. 11101160.
    AILA Doc. No. 11101160.
  • CA3 Says Ten-Year Bar to Admissibility Trumps §245(i) Adjustment(196 KB - 9/23/2011)
    The court gave deference to the BIA’s reasonable statutory interpretation that the ten-year bar under INA §212(a)(9)(B)(i)(II) precludes adjustment of status under INA §245(i) and denied the petition for review. (Cheruku v. Att’y Gen. of the U.S., 9/22/11) AILA Doc. No. 11092362.
    AILA Doc. No. 11092362.
  • CA3 Sets Standard for Determining Whether LPR May Be Treated as an Applicant for Admission(88 KB - 9/9/2011)
    The court held that the standard for determining whether an LPR should be treated as an applicant for admission, and thus paroled for prosecution, is probable cause to believe he has committed a crime under INA §212(a)(2). (Doe v. Att’y Gen. of the U.S., 9/8/11) AILA Doc. No. 11090960.
    AILA Doc. No. 11090960.
  • CA3 Says INA §236(c) Only Authorizes Detention for a Reasonable Time(203 KB - 9/6/2011)
    The court held that INA §236(c) authorizes detention only for a reasonable period of time at which point the Fifth Amendment Due Process Clause requires the government to show that continued detention is required to further the statute’s purpose. (Diop v. ICE, 9/1/11) AILA Doc. No. 11090633.
    AILA Doc. No. 11090633.
  • CA3 Says BIA Erred in Failing to Liberally Construe Pro Se Notice of Appeal(138 KB - 8/26/2011)
    The court held that the BIA erred in dismissing Petitioner’s appeal as moot, and that the Board should have liberally construed the petition which incorrectly identified the IJ’s interlocutory ruling as the subject of appeal. (Higgs v. Att’y Gen. of the U.S., 8/25/11) AILA Doc. No. 11082671.
    AILA Doc. No. 11082671.
  • CA3 Says IJ Must Consider All Hashmi-Rajah Factors before Denying Continuance(84 KB - 8/26/2011)
    Where Petitioner had an approved visa petition, the court found that the BIA erred in denying his motion to reconsider the denial of a continuance request based primarily on lack of visa availability and timing considerations. (Simon v. Holder, 8/17/11) AILA Doc. No. 11082664.
    AILA Doc. No. 11082664.
  • CA3 on Legitimation and Derivative Citizenship under Former INA §321(a)(3)(35 KB - 8/26/2011)
    The court found that under Cape Verde law, Petitioner is legitimated regardless of the fact that his natural father took no formal steps to assert paternity and is therefore, not eligible for derivative citizenship. (Brandao v. Att’y Gen. of the U.S., 8/16/11) AILA Doc. No. 11082662.
    AILA Doc. No. 11082662.
  • CA3 Vacates and Remands LGBT Asylum Case Finding Flawed BIA Analysis(101 KB - 8/24/2011)
    The court remanded an LGBT asylum case, finding that the BIA incorrectly evaluated the petitioner's claim as though it was based on individualized persecution and erred in its analysis of changed country conditions. (Izquierdo v. Atty’ General of the U.S. 8/24/11) AILA Doc. No. 11082432.
    AILA Doc. No. 11082432.
  • CA3 Rejects Departure Bar at 8 CFR §1003.2(d)(176 KB - 8/4/2011)
    The court held that the departure bar under 8 CFR §1003.2(d) is inconsistent with INA §§240(c)(6)(A) and (7)(A) which permits an alien to file one motion to reopen and one motion to reconsider without geographic limitation. (Espinal v. Att’y Gen. of the U.S., 8/3/11) AILA Doc. No. 11080425.
    AILA Doc. No. 11080425.
  • CA3 Says No Exception for Extended Absence from U.S. for Cancellation of Removal(96 KB - 7/26/2011)
    The court found no humanitarian exception to the stop-time rule and upheld the denial of Petitioners’ cancellation applications despite the fact that they did not intend to stay outside the U.S. for more than 90 days. (Flores-Nova v. Att’y Gen. of the U.S., 7/25/11) AILA Doc. No. 11072663.
    AILA Doc. No. 11072663.
  • CA3 on Jurisdiction over Requests for Consent to Reapply for Admission(141 KB - 7/1/2011)
    The court held that the immigration judge does not have jurisdiction to consider a request for consent to reapply for admission under INA §212(a)(9)(C)(ii) because Congress delegated that authority to DHS. (Sarango v. Att’y Gen. of the U.S., 6/30/11) AILA Doc. No. 11070165.
    AILA Doc. No. 11070165.
  • CA3 Directs BIA to Grant Withholding to Uzbek Nationals(256 KB - 6/22/2011)
    The court directed the BIA to grant withholding of removal without remand finding that despite two opportunities, the BIA failed to support its conclusion that Petitioners are a danger to the U.S. with substantial evidence. (Yusupov v. Att’y Gen. of the U.S., 6/16/11) AILA Doc. No. 11062246.
    AILA Doc. No. 11062246.
  • CA3 Says Qualified Immunity Protects ICE Officials from Bivens Claim(228 KB - 6/22/2011)
    Reversing the district court’s denial of the government’s motion to dismiss, the court found that Plaintiffs failed to allege a plausible Bivens claim against four ICE officials in connection with “Operation Return to Sender.” (Argueta v. ICE, 6/14/11) AILA Doc. No. 11062244.
    AILA Doc. No. 11062244.
  • CA3 Says Withdrawal of Application for Admission Interrupted Physical Presence(286 KB - 5/11/2011)
    Upon return from a trip to Canada, Petitioner knowingly withdrew his application for admission in lieu of a formal admissibility determination, such that his continuous presence was terminated for cancellation purposes. (Demandstein v. Att’y Gen. of the U.S., 2/24/11) AILA Doc. No. 11051163.
    AILA Doc. No. 11051163.
  • CA3 Adopts Harmless Error Test Where BIA Applied Wrong Standard of Review(83 KB - 4/25/2011)
    The court adopted a harmless error analysis and concluded that the BIA’s erroneous de novo review of the IJ’s factual findings was not only harmless, but was, if anything, favorable to Petitioner. (Yuan v. Att’y Gen. of the U.S., 4/22/11) AILA Doc. No. 11042539.
    AILA Doc. No. 11042539.
  • CA3 Finds Limited Jurisdiction over Decision to Deny Sua Sponte Reopening(191 KB - 4/7/2011)
    The court has jurisdiction over the denial of a sua sponte motion to recognize when the BIA has made an error of law. The BIA erred in finding that Petitioner’s health issues were irrelevant to his persecution claim. (Pllumi v. Att’y Gen. of the U.S., 4/6/11) AILA Doc. No. 11040732.
    AILA Doc. No. 11040732.
  • CA3 Remands for Analysis of Evidence of Forced Abortion(171 KB - 3/28/2011)
    The court held that the IJ/BIA erred in focusing solely on the date of Petitioner’s abortion set forth in her husband’s asylum claim, while failing to consider corroborating evidence of the date presented in her own claim. (Dong v. Att’y Gen. of the U.S., 3/25/11) AILA Doc. No. 11032838.
    AILA Doc. No. 11032838.
  • CA3 Upholds Denial of Chinese Family Planning Asylum Claim(116 KB - 3/21/2011)
    The court found that Petitioners did not demonstrate a well-founded fear of persecution based on the birth of their two U.S. citizen children, or that they would be subjected to fines rising to the level of persecution. (Chen v. Att’y Gen. of the U.S., 3/18/11) AILA Doc. No. 11032164.
    AILA Doc. No. 11032164.
  • CA3 on Prosecution vs. Persecution(183 KB - 2/2/2011)
    The court denied the petition for review, finding insufficient evidence that the prosecution of Petitioner by the Chinese government for assisting illegal immigrants from North Korea would be based on his political opinion. (Li v. Att’y Gen. of the U.S., 2/1/11) AILA Doc. No. 11020265.
    AILA Doc. No. 11020265.
  • CA3 Finds Tampering with Evidence an Aggravated Felony and Particularly Serious Crime(314 KB - 1/27/2011)
    The court held that tampering with physical evidence in violation of New York Penal Law §215.40(2) is an aggravated felony under INA §101(a)(43)(S) and a particularly serious crime rendering Petitioner ineligible for withholding of removal. (Denis v. Holder, 1/26/11) AILA Doc. No. 11012763.
    AILA Doc. No. 11012763.