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2007

  • CA11 Finds Motion to Reconsider a MTR Denial Not Subject to Numerical Bar (12/4/2007)
    The court found that the plain language of §1003.2(b)(2) does not prohibit the filing of a second motion to reconsider if it is for a different BIA decision. It also held that the facts in this case did not merit a remand to the agency. (Calle v. U.S. Att’y Gen., 10/23/07)
    AILA Doc. No. 07120462.
  • CA11 Remands CAT Claim of Haitian with AIDS who Fears Torture in Prison (10/31/2007)
    The court found that the BIA erred in failing to consider Petitioner’s argument that he is entitled to CAT relief because he would be singled out for torture in Haitian prisons because of his AIDS-related mental illness. (Jean-Pierre v. U.S. Att’y Gen., 9/19/07)
    AILA Doc. No. 07103161.
  • CA11 Finds Harm Suffered by Colombian Applicant Amounted to Persecution (10/15/2007)
    CA11 held that the harm Petitioner suffered (threats and attempted attacks over an 18-month period that culminated in being stopped on the roadway and threatened at gunpoint by members of FARC who broke his nose) amounted to persecution as a matter of law. (Marin v. U.S. Att’y Gen., 9/6/07)
    AILA Doc. No. 07101561.
  • CA11 Upholds Matter of S-L-L-; Rejects Unmarried Father’s Asylum Claim (9/17/2007)
    The court concluded that the BIA’s decision in Matter of S-L-L-, to deny derivative protection to unmarried fathers of aborted children, is not unreasonable. (Yang v. Gonzales, 8/8/07)
    AILA Doc. No. 07091765.
  • CA11 Finds Attempted Murder is Persecution in Colombian Asylum Case (8/27/2007)
    The court held that the record in the case compelled the conclusion that Petitioner suffered past persecution. The court found that intentionally being shot at in a moving car by two men on motorcycles qualifies as “extreme” under any definition. (Sanchez Jimenez v. U.S. Att’y Gen., 7/17/07)
    AILA Doc. No. 07082762.
  • CA11 Finds Attack by FARC Was Motivated by Petitioner’s Political Opinion (8/7/2007)
    CA11 upheld the conclusion that the attack on Petitioner was politically motivated and was not a random criminal act. It later granted the government’s petition for rehearing and amended its decision to find no jurisdiction over one claim. (Lopez v. U.S. Att’y Gen., 7/6/07)
    AILA Doc. No. 07080764.
  • CA11 Remands Denial of MTR by Chinese Asylum Applicant with 2 USC Children (8/7/2007)
    The court held that in light of the record, it was arbitrary and capricious for the BIA to find that Petitioner failed to establish a prima facie case for asylum or withholding based on the birth of two children in the US. (Li v. U.S. Att’y Gen., 6/18/07)
    AILA Doc. No. 07080763.
  • CA11 Finds No Nexus in Asylum Claim of Colombian Dentist (7/16/2007)
    The court held that the record supported the conclusion that Petitioner was threatened for his refusal to provide dental services, which lacks a nexus between political opinion and persecution. (Rodriguez-Morales v. U.S. Att’y Gen., 6/6/07)
    AILA Doc. No. 07071674.
  • CA11 Overturns IJ and Finds Ukrainian Azerbajani Suffered Past Persecution (6/29/2007)
    The court found that it was clear that the protests, beatings, arrests, searches, interrogations, imprisonments and death threats amounted to persecution. The court found that the IJ erred in focusing on the lack of corroboration. (Niftaliev v. U.S. Att’y Gen., 5/25/07)
    AILA Doc. No. 07062972.
  • CA11 Finds Applicants Suffered Past Persecution; No Withholding for Spouse (6/22/2007)
    CA11 concluded that the cumulative effect of two attacks, continuing threatening phone calls, and vandalism to a car amounted to past persecution, but that under withholding there are no derivative benefits for spouses, unlike for asylum grantees. (Delgado v. U.S. Atty. Gen., 5/25/07)
    AILA Doc. No. 07062269.
  • CA11 Rejects Colombian Asylum Claim for Failure to Show Nexus (6/22/2007)
    CA11 found there was no dispute that the FARC had persecuted Petitioners, in part, because they were wealthy and refused to pay a war tax, but that this did not mean that Petitioners’ fear of persecution was on account of political opinion. (Cardona Rivera v. U.S. Att’y Gen, 5/23/07)
    AILA Doc. No. 07062268.
  • CA11 Holds Adjustment of Status Under INA §245(i) is Discretionary (4/18/2007)
    The court held that the Attorney General may deny a §245(i) adjustment application as a matter of discretion, even if the applicant is statutorily eligible. (Usmani v. U.S. Att’y Gen., 4/10/07)
    AILA Doc. No. 07041869.
  • CA11 Vacates Opinion in Colombian Kidnapping Case Removing Key Language (4/3/2007)
    CA11, upon sua sponte reconsideration, vacated its prior decision, see AILA InfoNet Doc. No. 07011962, and substituted an almost identical opinion in its place. The court removed key language that “being held against one’s will” is “clearly persecution. (Ruiz v. U.S. Atty. Gen., 2/20/207)
    AILA Doc. No. 07040364.
  • CA11 Reverses IJ’s Finding that Petitioner Was Convicted of an Aggravated Felony (3/20/2007)
    CA11 held that the IJ erred in concluding that the restitution order was evidence of the loss needed to transform a fraud conviction into an aggravated felony. The restitution order was based on facts that were not charged, proven or admitted. (Obasohan v. U.S. Att’y Gen., 2/23/07)
    AILA Doc. No. 07032018.
  • CA11 Holds IJ Abused Discretion in Denying Continuance Where Petitioner Has Pending I-140 and I-485 (1/23/2007)
    The court held that it was an abuse of discretion to deny Petitioner’s motion for continuance where Petitioner had an I-140 visa petition and concurrently filed I-485 adjustment of status application pending with DHS. (Merchant v. U.S. Att’y Gen., 08/25/06)
    AILA Doc. No. 07012312.
  • CA11 Says IJ Abused Discretion in Refusing to Grant Continuance for 245(i) Beneficiary (1/23/2007)
    The court held that the IJ abused his discretion in refusing to continue a case where Petitioner had an approved labor certification, a pending visa petition and an immediately available visa number. (Haswanee v. U.S. Att’y Gen., 12/8/06)
    AILA Doc. No. 07012311.
  • CA11 Finds Being Held against One’s Will for Extended Period Is Persecution (1/19/2007)
    The court found that the BIA erred when it found that the cumulative effect of the beatings, threatening phone calls and kidnapping did not amount to persecution, and noted that being held against one’s will for 18 days was “clearly persecution.” (Ruiz v. U.S. Atty. Gen., 12/21/06)
    AILA Doc. No. 07011962.
  • CA11 Finds Habeas Proceedings Appropriate Means for Challenging the Existence of a Removal Order (1/10/2007)
    CA11 held that INA §242(a)(5),making a petition for review the “sole and exclusive” means of review of an order of removal, does not apply where the existence of a removal order is challenged. The court remanded to the district court for habeas proceedings. (Madu v. U.S. Att’y Gen., 12/1/06)
    AILA Doc. No. 07011063.
 
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