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2008

  • CA11 Denies Asylum to Eritrean Army Deserter Based on Lack of Credibility(335 KB - 12/8/2008)
    The court held that the record did not compel a finding of past persecution because substantial evidence supported the IJ’s and BIA’s adverse credibility finding. The court also found that Petitioner failed to prove he would be forced to serve in the military or punished upon return. One judge dissented. (Mohammed v. U.S. Att’y Gen., 11/5/08) AILA Doc. No. 08120868.
  • CA11 Remands for Reconsideration of Continuance Based on Pending I-140/I-485(88 KB - 9/29/2008)
    Unpublished. Court remanded with instructions to vacate the removal order and for full reconsideration of a request for continuance until pending I-I40/I-485 are adjudicated. It found that the IJ denied the continuance based on 11th circuit case law at the time, prior to the decisions in Zafar II, Merchant and Haswanee. (Matter of Jivan, 9/19/08). AILA Doc. No. 08092974.
  • CA11 Finds Rehabilitative Vacaturs were Effective to Remove Non-Controlled Substance Convictions in 1997(71 KB - 9/17/2008)
    Unpublished decision. The court granted petition for review and remanded case to the IJ for a factual determination as to whether "omnopon" is a controlled substance. Court states that in 1997 rehabilitative vacaturs were effective to remove the consequences of non-controlled substance convictions for immigration purposes. Courtesy of Geoffrey Hoffman and Ira Kurzban. AILA Doc. No. 08091760.
  • CA11 Finds No Jurisdiction to Review BIA’s Refusal to Reopen Sua Sponte (7/18/2008)
    The court held that it lack jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen under 8 CFR §1003.2(a) because the decision to reopen proceedings sua sponte is an action “committed to agency discretion by law” under the Administrative Procedures Act. (Lenis v. United States Att’y Gen., 5/5/08). AILA Doc. No. 08071866.
  • CA11 Vacates Earlier Asylum Decision; Removes “Courage” Language (7/2/2008)
    The court vacated its Jan. 11, 2008 decision (AILA InfoNet Doc. No. 08022164). It reissued substantially the same decision, adding 3 additional paragraphs and deleting 3 sentences. The court removed the language: “Courage does not negate fear.” It continued to hold that that Petitioner had a subjective fear. (Santamaria v. U.S. Att’y Gen., 4/22/08). AILA Doc. No. 08070263.
  • CA11 Finds No Jurisdiction to Review Claims by Person Previously Removed for Drug Conviction (5/21/2008)
    The court dismissed the petition for review for lack of jurisdiction under INA §242(a)(2)(C), where Petitioner had been previously removed for a crime relating to a controlled substance, despite the fact that he was presently ordered removed for his presence in the U.S. without having been admitted or paroled. (Acosta v. U.S. Att’y Gen., 4/16/08). AILA Doc. No. 08052159.
  • CA11 Rejects Togolese Asylum Claim Based on Brief Detention (3/7/2008)
    The court sua sponte vacated its earlier decision, making no substantive changes. The court upheld the BIA’s finding that Petitioner failed to establish that his 36-hour detention amounted to past persecution. Likewise, the court upheld the BIA’s determination that Petitioner did not have a well-founded fear. (Djonda v. U.S. Att’y Gen., 1/22/08) AILA Doc. No. 08030777.
  • CA11 Finds BIA Abuse of Discretion for Failure to Follow Precedent in Denying In Absentia Motion (3/7/2008)
    The BIA’s failure to follow its own precedent or offer a reasoned explanation for failing to do so when ruling on Petitioner’s motion to reopen was an abuse of discretion. 8 CFR §1003.23(b)(4)(ii), which limits petitioners to one motion to reopen an in absentia order, permits one motion per in absentia order. (Cisneros v. U.S. Att’y Gen., 1/28/08). AILA Doc. No. 08030775.
  • CA11 Finds Persecutor Bar Applies to Guard at Forced Abortion Facility (2/21/2008)
    The court held, in agreement with is sister circuits, that the standard for determining whether an asylum applicant is ineligible for asylum and withholding due to assistance or participation in persecution is a whether his or her conduct was active, direct and integral to the underlying persecution. (Chen v. U.S. Att’y Gen., 1/17/08). AILA Doc. No. 08022165.
  • CA11 Finds “Courage Does Not Negate Fear” in Colombian Asylum Claim (2/21/2008)
    The court vacated the IJ’s finding that Petitioner, a Colombian lawyer, failed to show a well-founded fear. The court found that she had shown past persecution and was entitled to a rebuttable presumption. The court held that substantial evidence did not support the IJ’s lack of subjective fear finding. (Santamaria v. U.S. Att’y Gen.,1/11/08). AILA Doc. No. 08022164.
  • CA11 Upholds Regulation Governing Jurisdiction Over Adjustment for Arriving Aliens (2/7/2008)
    The court held that 8 CFR §1245.2(a)(1), which vests USCIS with jurisdiction over most adjustment of status applications by arriving aliens in removal proceedings, is consistent with the statutory framework concerning adjustment applications and is a valid interpretation of INA §245(a). (Scheerer v. Chertoff, 1/15/08). AILA Doc. No. 08020769.
  • CA11 Holds Georgia Simple Battery is an Aggravated Felony “Crime of Violence” (2/7/2008)
    The court held that a conviction for simple battery in violation of Ga. Code Ann. §16-5-23(a)(2), which criminalizes the act of intentionally causing physical harm to another, is an aggravated felony “crime of violence” under INA §101(a)(43)(F). (Hernandez v. U.S. Att’y Gen., 1/18/08). AILA Doc. No. 08020768.