Set Text Size:

S

S

S

2008

  • CA7 Upholds Frivolousness Finding in Pakistani Asylum Case(110 KB - 11/24/2008)
    The court held that a finding of frivolousness is not an exercise of administrative discretion and, therefore, it has jurisdiction to review the agency’s finding. The court upheld the IJ and BIA’s finding regarding frivolousness noting that Petitioner knew his allegations of the murder of his wife and son were false. (Siddique v. Mukasey, 10/31/08). AILA Doc. No. 08112470.
  • CA7 Upholds Denial of Adjustment Due, in Part, to Asylum Fraud(109 KB - 11/24/2008)
    The court held that it lacked jurisdiction to review a denial of a motion for a continuance, unless denial would result in nullifying the statutory opportunity to adjust status. The court upheld the denial of the continuance based on past conduct (lying to the asylum officer) and failure to meet the burden of proof. (Malik v. Mukasey, 10/23/08). AILA Doc. No. 08112469.
  • CA7 Relies on Airport/Credible Fear Interview to Uphold Adverse Credibility(156 KB - 11/24/2008)
    The court found the airport and credible fear interviews were reliable because a translator was present and Petitioner seemed to have understood the questions. Although Petitioner claimed she did not mention the forced abortion to due shame, the court held that the explanation did not overcome the level of deference due. (Xiao v. Mukasey, 10/27/08). AILA Doc. No. 08112466.
  • CA7 Upholds Adverse Credibility Finding Despite IJ Errors; 1 Judge Dissents(234 KB - 10/27/2008)
    The court held that notwithstanding the IJ’s mistakes, the balance of the evidence relied on by the IJ supported the adverse credibility finding. The court found that the IJ rightly noted that Petitioner’s testimony regarding the Democratic Party’s loss of power was inconsistent with what is known about Albania. (Musollari v. Mukasey, 9/19/08) AILA Doc. No. 08102765.
  • CA7 Finds Aggravated Felony, although State Court Did Not Charge Petitioners as Repeat Offenders(406 KB - 10/9/2008)
    The court held that petitioners’ first and second state-court convictions for simple drug possession amount to an “aggravated felony” under INA § 101(a)(43)(B), thus affirming the finding that they were statutorily ineligible for cancellation of removal. Judge Rovner dissents. (Fernandez v. Mukasey, 9/15/08). AILA Doc. No. 08100970.
  • CA7 Addresses Res Judicata Following Statutory Change in Law Regarding Aggravated Felonies(243 KB - 10/8/2008)
    The court held that res judicata did not bar the proceedings based on the same conviction for which the petitioner was previously found not to be deportable because it would be inconsistent with IIRIRA and Congress’ intent that aliens convicted of sexual abuse of a minor merit removal regardless of when their convictions occurred. (Alvear-Velez v. Mukasey, 9/2/08). AILA Doc. No. 08100866.
  • CA7 Upholds Adverse Credibility Finding, Denies Sierra Leonean Asylum Case (10/6/2008)
    The court rejected Petitioner’s arguments that 1) the IJ erred in refusing to admit country reports, 2) the BIA erred by taking administrative notice of a 1993 country report, and 3) the IJ exhibited bias. The court found no credible evidence of past persecution and no evidence establishing a well-founded fear. (Sankoh v. Mukasey, 8/13/08). AILA Doc. No. 08100665.
  • CA7 Finds that Denial of Continuance Renders Statutory Opportunity to Seek Adjustment a "Mere Illusion"(231 KB - 9/30/2008)
    The court remanded, finding that the IJ’s lack of jurisdiction to entertain adjustment applications was not a rational basis for denying the continuance request, and that the denial operated to nullify the statutory right to apply for adjustment under the circumstances of the case. (Ceta v. Mukasey, 7/25/08). AILA Doc. No. 08093076.
  • CA7 Finds It Lacks Jurisdiction to Review a MTR Based on Changed Conditions (8/22/2008)
    The court considered whether §242(a)(2)(B)(ii) applies when the agency’s discretion is specified by a regulation rather than a statute. The court reasoned that because discretionary decisions can now be reviewed for constitutional claims or questions of law, the jurisdictional bar applies to motions to reopen. (Kucana v. Mukasey, 7/7/08). AILA Doc. No. 08082268.
  • CA7 Remands Video Conference Asylum Hearing for Review of Key Evidence (8/22/2008)
    The court found that the use of video conferencing for immigration hearings facially comported with due process. The court found that such use does not deny the right to representation. The court held, however, that Petitioner was entitled to a new hearing because she was not able to review key evidence. (Raphael v. Mukasey, 7/2/08). AILA Doc. No. 08082264.
  • CA7 Finds Changed Conditions in Chinese One-Child Asylum Claim` (8/22/2008)
    The court held that Petitioner met her burden of showing changed conditions in the Fujian Province regarding the one-child policy and was entitled to have her removal proceeding reopened. The court instructed the BIA to determine on remand the penalties likely to be imposed and whether relocation is possible. (Lin v. Mukasey, 7/8/08) AILA Doc. No. 08082263.
  • CA7 Questions Reasonableness of Internal Relocation in Afghanistan (7/30/2008)
    The court found that substantial evidence did not support the IJ’s determination that Petitioner, an asylum seeker, could reasonably relocate within Afghanistan to avoid future harm. The court noted that neither the IJ nor the BIA explained how it would be possible for Petitioner to safely relocate. (Oryakhil v. Mukasey, 6/17/08) AILA Doc. No. 08073060.
  • CA7 Finds Illinois Domestic Battery is an Aggravated Felony Crime of Violence (7/18/2008)
    The court held that a conviction for domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) is a crime of violence under 18 USC §16(a) and is therefore an aggravated felony as defined by INA §101(a)(43)(F). (LaGuerre v. Mukasey, 5/20/08). AILA Doc. No. 08071865.
  • CA7 Finds IJ Erred in Rejecting Asylum Claim of Albanian Whistleblower (7/3/2008)
    The court found that it was premature for the IJ to conclude his analysis by only examining Petitioner’s activities during his military service. The court also found that it was not decisive that the corruption of which Petitioner complained did not pervade every level of the Albanian government. (Haxhiu v. Mukasey, 3/19/08). AILA Doc. No. 08070366.
  • CA7 Criticizes NIV Form DS-156; Allows Petitioner to Proceed With §212(d)(3) Waiver (6/23/2008)
    Citing the “fatally flawed” Form DS-156 and the immigration judge’s failure to advise Petitioner of all available avenues of relief, the court held that the BIA erred in finding that Petitioner lost the opportunity to seek a waiver under INA §212(d)(3) by not specifically requesting such relief in proceedings. (Atunnise v. Mukasey, 4/30/08). AILA Doc. No. 08062330.
  • CA7 Finds IJ Erred in Finding No Past Persecution in Romanian Claim (5/21/2008)
    The court held that the IJ applied an incorrect legal standard in determining that Petitioner had not suffered past persecution as a result of a genital beating to which he was subjected. The court held that the IJ erred by requiring Petitioner to show he had been “seriously harmed.” (Irasoc v. Mukasey, 4/3/08). AILA Doc. No. 08052177.
  • CA7 Upholds Removability for Distribution of a Look-Alike Substance Under IL Law (5/21/2008)
    The court found a sufficient connection between look-alike substances and actual controlled substances and held that a conviction for unlawful delivery of a look-alike substance in violation of Illinois law was a violation of a state law relating to a controlled substance for purposes of INA §212(a)(2)(A)(i)(II). (Desai v. Mukasey, 3/28/08). AILA Doc. No. 08052176.
  • CA7 Rejects Modified Categorical Approach in CIMT Determination (5/21/2008)
    Citing Matter of Babaisakov, 24 I&N Dec. 306 (2007), the court concluded that when deciding how to classify convictions under criteria that go beyond the criminal charge, such as whether the crime involves “moral turpitude,” the agency may consider evidence outside the charging papers and judgment of conviction. (Ali v. Mukasey, 4/4/08). AILA Doc. No. 08052174.
  • CA7 Addresses Deceit in Asylum Claims; Upholds Adverse Credibility Finding (5/21/2008)
    The court noted that this was the first case in which it was addressed credibility under the READ ID Act. The court found that most claims can neither be confirmed nor refuted by documentary evidence. The court found that liars tend to give fewer details and that substantial evidence supported the IJ’s determination. (Mitondo v. Mukasey, 4/24/08). AILA Doc. No. 08052173.
  • CA7 Relies on Pakistani Minor’s Airport Statement to Deny Asylum (5/21/2008)
    The court found that there were material inconsistencies between Petitioner’s airport statement and his testimony at his asylum hearing. The court noted that the airport interview had many markers of probative value and reliability, including a transcript, numerous questions about his fear of return, and a translator. (Chatta v. Mukasey, 4/21/08). AILA Doc. No. 08052172.
  • CA7 Finds IJ Erred in Finding No Past Persecution in Romanian Claim (5/7/2008)
    The court held that the IJ applied an incorrect legal standard in determining that Petitioner had not suffered past persecution as a result of a genital beating to which he was subjected. The court held that the IJ erred by requiring Petitioner to show he had been “seriously harmed.” (Irasoc v. Mukasey, 4/3/08). AILA Doc. No. 08050765.
  • CA7 Allows §212(h) Waiver for Possession of Drug Paraphernalia for Personal Use (4/17/2008)
    The court held Petitioner, who was convicted of possessing one marijuana pipe, was convicted of an offense that “relates to a single offense of simple possession of 30 grams or less of marijuana” and is therefore, eligible for a waiver under INA §212(h). (Barraza v. Mukasey, 3/13/08). AILA Doc. No. 08041766.
  • CA7 Finds Jurisdiction without Final Order; Holds 1-Yr. Bar Not Reviewable (4/10/2008)
    The court found that the absence of a final order of removal was not dispositive and looked to the statutory definition of “order of deportation.” The court, however, declined to review Petitioners’ asylum denial based on the one-year deadline because they had failed to raise a question of law on appeal. (Jimenez-Viracacha v. Mukasey, 3/3/08). AILA Doc. No. 08041072.
  • CA7 Finds IL Conviction for Unlawful Possession of a Weapon by a Felon is an Aggravated Felony (4/3/2008)
    The court upheld the BIA’s conclusion that Petitioner’s conviction for unlawful possession of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a) is an offense “described in” 18 USC §922(g)(1) and is therefore, an aggravated felony as defined by INA §101(a)(43)(E)(ii). (Negrete-Rodriguez v. Mukasey, 3/3/08). AILA Doc. No. 08040362.
  • CA7 Reaffirms Valere and the §212(c) “Comparable Grounds” Test (3/7/2008)
    The court reaffirmed its holding in Valere v. Gonzales, and held that persons charged with removability for an aggravated felony involving sexual abuse of a minor, do not qualify for a waiver under former INA §212(c) because there is no comparable ground of inadmissibility under INA §212(a). (Zamora-Mallari v. Mukasey, 1/24/08). AILA Doc. No. 08030768.
  • CA7 Disagrees with BIA on Multiple Simple Possession Convictions (2/22/2008)
    The court disagreed with the BIA in Matter of Carachuri-Rosendo. Had Plaintiff been prosecuted under federal law, he would have been treated as a felon by 21 USC §844(a) and was therefore, convicted of an aggravated felony. Whether Plaintiff was charged in state court as a recidivist was irrelevant. (United States v. Pacheco-Diaz, 1/29/08). AILA Doc. No. 08022265.
  • CA7 Finds IJ “Cared Little about the Evidence” in Nigerian CAT Claim (2/22/2008)
    The court found that the flaws in the IJ’s reasoning made it question the fairness of the hearing. The court found that the IJ failed to consider rebuttal evidence regarding whether Petitioner’s crimes were aggravated felonies. The court noted that the IJ’s cavalier attitude was reflected throughout his opinion. (Bosede v. Mukasey, 1/14/08). AILA Doc. No. 08022263.
  • CA7 Denied Claim Based on Identity Theft and Failure to Prove Homosexuality (2/21/2008)
    The court held that Petitioner’s convictions for identity theft were properly characterized as aggravated felonies. With regard to his withholding claim based on homosexuality, the court upheld the agency finding that he failed to meet his burden of proof due to his incredible testimony and lack of corroborating evidence. (Eke v. Mukasey, 1/7/08). AILA Doc. No. 08022162.