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Cases & Decisions
CA7 Finds No Past Persecution or Well-Founded Fear in Albanian Asylum Claim
The court found that a two-week detention under primitive conditions did not constitute past persecution. The court also found that the threats against Petitioner did not compel a finding of past persecution. Lastly, the court held that given the change in the political climate, he had not shown a well-founded fear. (
Bejko v. Gonzales
, 11/13/06). AILA Doc. No. 06121561.
AILA Doc. No. 06121561.
CA7 Holds Reinstatement of Removal Trumps §245(i) Adjustment of Status
The court held that INA §241(a)(5), which provides for reinstatement of a prior order of removal for illegal reentrants, plainly bars a previously removed individual who has illegally reentered the U.S. from adjustment of status under INA §245(i). (
Lino v. Gonzales
, 11/6/06). AILA Doc. No. 06120662.
AILA Doc. No. 06120662.
CA7 Upholds AG Decision in
Matter of Jean
, Remands CAT Claim
The court rejected Petitioner’s argument that
Matter of Jean
is inconsistent with and unauthorized by INA §209(c), a provision which allows the AG to waive grounds of inadmissibility. Regarding the CAT claim, the court found the BIA ignored key evidence and erroneously concluded that Petitioner had not suffered past harm. (
Ali v. Achim
, 11/6/06). AILA Doc. No. 06120563.
AILA Doc. No. 06120563.
CA7 Finds No Persecution Per Se of Midgan Clan Members in Somalia
The court held that Petitioner had not satisfied the objectively reasonable standard applicable in “pattern or practice” persecution cases. The court found that although the Midgan are not treated well in Somalia, their poor treatment is not a systemic or organized effort to kill, imprison or severely injure them. (
Ahmed v. Gonzales
, 11/2/06). AILA Doc. No. 06120561.
AILA Doc. No. 06120561.
CA7 Criticizes IJ But Upholds Asylum Denial of Moroccan Christian Convert
The court found that the IJ overstepped the bounds of a neutral arbiter and noted that the significant number of asylum cases involving intemperate judges should sound a warning bell to DOJ. The court, however, upheld the IJ’s determination that Petitioner does not have a well-founded fear of persecution in Morocco. (
Chakir v. Gonzales
, 10/19/06). AILA Doc. No. 06120111.
AILA Doc. No. 06120111.
CA7 Finds Government Had Burden to Show Changed Conditions in Kosovo
The court noted that the IJ fully credited Petitioner’s testimony and concluded that he had been persecuted in the past. The court found that the IJ erred in holding that Petitioner had not presented sufficient evidence to support his claim that he feared future persecution if he returned to Kosovo. (
Balliu v. Gonzales
, 10/27/06). AILA Doc. No. 06111465.
AILA Doc. No. 06111465.
CA7 Remands Asylum Claim for Analysis of Social Group Argument
The court found that the Petitioner’s social group was “former” employees of the Attorney General’s Office. The court held a remand was appropriate because the IJ misunderstood Petitioner’s claim and failed to explain his conclusion that Petitioner would not be persecuted if returned to Colombia. (
Sepulveda v. Gonzales
, 10/2/06). AILA Doc. No. 06111015.
AILA Doc. No. 06111015.
CA7 Finds No Jurisdiction After BIA Reopens Proceedings on its Own Motion
The court held that where the BIA reopens proceedings on its own motion, subsequent to the filing of a petition for review, the petition must be dismissed for lack of jurisdiction because there is no longer a reviewable final order. (
Gao v. Gonzales
, 9/25/06). AILA Doc. No. 06110260.
AILA Doc. No. 06110260.
CA7 Rejects IJ’s Denial of Togolese Asylum Claim on Several Grounds
The court found a number of errors that required a remand to the BIA. Those reasons included unreasonable inferences drawn by the IJ, the IJ’s lack of expertise on conditions in Togo, and the IJ’s finding that the harm suffered by Petitioner did not amount to persecution. (
Kantoni v. Gonzales
, 8/28/06). AILA Doc. No. 06100663.
AILA Doc. No. 06100663.
CA7 Finds BIA Erred in Denying Iraqi Christian’s Religious Persecution Case
The court found no reason to disagree with the IJ’s denial of Petitioner’s claim of persecution for political opinion, but concluded the BIA erred in denying Petitioner’s religious and ethnic persecution claims without discussion. The court also took judicial notice of recent harassment of Christians. (
Youkhana v. Gonzales
, 8/22/06). AILA Doc. No. 06092268.
AILA Doc. No. 06092268.
CA7 Finds IJ’s Adverse Credibility Finding in Togolese Case Speculative
The court held that the IJ’s skeptism, utterly unsupported by any facts in the record, did not form a valid basis for a negative credibility determination. The court found that the IJ’s negative credibility determination could not be upheld because it was not supported by specific cogent reasons. (
Ayi v. Gonzales
, 8/21/06). AILA Doc. No. 06092262.
AILA Doc. No. 06092262.
CA7 Declines to Extend Asylum to Boyfriends of Women Forced to Have Abortions
The court held that the inconsistencies the IJ identified were not significant and that a reasonable factfinder would be compelled to accept Petitioner’s explanations. The court held, however, that he had not suffered past persecution and refused to extend refugee status to boyfriends of women forced to undergo abortions. (
Chen v. Gonzales
, 8/8/06). AILA Doc. No. 06091913.
AILA Doc. No. 06091913.
CA7 Reverses IJ’s Adverse Credibility Finding in Forced Abortion Case
The court found that the IJ’s credibility finding was not supported by substantial evidence because it was based on minor discrepancies, speculation, and irrelevant facts. The court also held that the IJ erred by requiring corroboration because the IJ failed to follow the pre-REAL ID Act standard set forth in Diallo. (
Kwok v. Gonzales
, 7/25/06). AILA Doc. No. 06090567.
AILA Doc. No. 06090567.
CA7 Refuses to Apply Fugitive Disentitlement Doctrine to Person in Custody
The court denied the government’s motion to dismiss under the fugitive disentitlement doctrine because Petitioner had surrendered to immigration authorities and remained in DHS custody. (
, 07/17/06). AILA Doc. No. 06090564.
AILA Doc. No. 06090564.
CA7 Remands Asylum Claim For Lack of Analysis of in BIA Decision
The court found that, where the BIA’s one-sentence opinion assumed that Petitioner was credible and but found that he had not met his burden of proof, the opinion lacked sufficient analysis to support the conclusion that the IJ and BIA’s errors were harmless. (
Pramatarov v. Gonzales
, 7/27/06). AILA Doc. No. 06082866.
AILA Doc. No. 06082866.
CA7 Remands for Reconsideration of Evidence of Removability
At the government’s request, the court remanded the case to the BIA to reconsider its decision finding Petitioner removable as charged. The IJ erred in concluding that the Attorney General Guidelines for INS undercover operations, which were established prior to INS’s reorganization, did not apply to DHS. (
Pieniazek v. Gonzales
, 06/05/06). AILA Doc. No. 06082366.
AILA Doc. No. 06082366.
CA7 Holds IJ’s Refusal to Continue Hearing Resulted in Denial of Due Process
The court held that Petitioner’s hearing on the merits was fundamentally unfair. The improper withdrawal of Petitioner’s attorney, the attorney’s retention of Petitioner’s documents, and the IJ’s refusal to continue Petitioner’s hearing amounted to a denial of due process. (
Gjeci v. Gonzales
, 06/15/06). AILA Doc. No. 06081567.
AILA Doc. No. 06081567.
CA7 Relies on DOS Profile on Abortion Certificates to Uphold Asylum Denial
Although the court found errors in the IJ’s adverse credibility determination, it held that the IJ based his finding on one ground sufficient to support the ruling. The court held that the IJ properly relied on the DOS Profile in finding that the Chinese government does not issue certificates for involuntary abortions. (
Huang v. Gonzales
, 7/14/06). AILA Doc. No. 06081062.
AILA Doc. No. 06081062.
CA7 Recommends Agency Hire Country Experts for Asylum Cases
The court remanded a Liberian asylum claim because the IJ’s decision was not supported by substantial evidence. The court held that an IJ is not an expert on conditions in any given country, and a priori views are no substitute for evidence. The court recommended that the agency have an expert for each country. (
Banks v. Gonzales
, 7/5/06). AILA Doc. no. 06081061.
AILA Doc. No. 06081061.
CA7 Reviews Petition for Review Filed Beyond 30-Day Deadline
Relying on the plain language of REAL ID §106(c), the court held that, where Petitioner’s habeas corpus petition was pending in district court on May 11, 2005, it could review the BIA’s 1997 decision even though Petitioner did not file a petition for review of that decision within the 30-day deadline. (
Medellin-Reyes v. Gonzales
, 1/24/06). AILA Doc. No. 06080167.
AILA Doc. No. 06080167.
CA7 Holds No Jurisdiction to Review Denial of Motion to Reopen
The court held, for purposes of INA §242(a)(2)(D), the IJ’s application of the “continuous physical presence” standard to the facts was not a “question of law” and while denial of due process may give rise to a “constitutional claim”, no due process claim existed because “extreme hardship” is a discretionary element. (
Cevilla v. Gonzales
, 05/01/06). AILA Doc. No. 06072870.
AILA Doc. No. 06072870.
CA7 Finds IJ Erred in Not Allowing Testimony of 3 Witnesses in Asylum Case
Because the IJ continued the case to a day on which he knew that Petitioner’s witnesses would be unavailable, the IJ denied Petitioner the opportunity to present corroborating evidence and refused to “receive and consider material and relevant evidence, “ as required by INA §240(b)(4)(B) and 8 CFR §1240.1(c). (
Boyanivskyy v. Gonzales
, 6/9/06). AILA Doc. No. 06072777.
AILA Doc. No. 06072777.
CA7 Holds IJ Improperly Relied on Forged Document to Deny Asylum
The court held that absent a reason to believe that the applicant knew or suspected that the document was a forgery, proof that the document was a forgery would not be evidence that the asylum applicant was lying. The court also found that the inconsistencies relied on by the IJ were insignificant. (
Hanaj v. Gonzales
, 5/3/06). AILA Doc. No. 06060962.
AILA Doc. No. 06060962.
CA7 Finds Cooperating Criminal Defendant Not A Social Group
The court found that Petitioner’s fear of persecution was based on a personal dispute that could not give rise to a claim for asylum. The court held that, like countless criminal defendants, she chose to cooperate with prosecutors in the hope of receiving a reduced sentence and such choices carry the risk of retribution. (
Wang v. Gonzales
, 4/28/06). AILA Doc. No. 06060570.
AILA Doc. No. 06060570.
CA7 Rejects Asylum Claim of Assyrian Christian from Iraq
The court held that the Petitioner did not establish past persecution based on one of the five grounds. Regarding her fear of future harm, the court found that her fear of the former regime did not support asylum and her other arguments could not be considered because they had not been made to the IJ or BIA. (
Margos v. Gonzales
, 4/5/06). AILA Doc. No. 06052272.
AILA Doc. No. 06052272.
CA7 Grants DOJ’s Motion to Remand Chinese Asylum Case
The court held that an agency may request a remand without confessing error to reconsider its previous opinion. The court noted that it has been critical of recent decisions by the BIA in asylum matters and that DOJ might want the Board to have an opportunity to reconsider some of its asylum decisions. (
Ren v. Gonzales
, 3/9/06). AILA Doc. No. 06052266.
AILA Doc. No. 06052266.
CA7 Holds IJ Improperly Required Corroborating Evidence in Asylum Case
The court noted that an asylum claim of a credible applicant cannot be denied solely because the applicant failed to submit corroborating evidence. The court found that the IJ did not make an express credibility finding and never explained why it was reasonable to expect corroborating evidence. (
Diallo v. Gonzales
, 3/9/06). AILA Doc. No. 06052260.
AILA Doc. No. 06052260.
CA7 Overrules IJ’s Finding that Albanian Asylum-Seeker Did Not Suffer Past Persecution
The court held that the IJ’s finding that Petitioner was not a victim of persecution on account of his political activity was not supported by substantial evidence. The court noted that since past persecution was shown, the burden should have shifted to the government to establish the lack of a well-founded fear. (
Cecaj v. Gonzales
, 3/15/06). AILA Doc. No. 06051910.
AILA Doc. No. 06051910.
CA7 Finds Petitioner Eligible for Asylum Based on his Remarried Wife’s Forced Abortion
The court held that the IJ violated the “rule of the case” doctrine by making new adverse credibility determinations. The court found that the IJ’s negative credibility finding was unsupported and Petitioner was eligible for asylum based on his wife’s forced abortion, despite her remarriage. (
Zhang v. Gonzales
, 1/19/06). AILA Doc. No. 06050810.
AILA Doc. No. 06050810.
CA7 Finds Military Conscription is Not Persecution; Upholds IJ Refusal to Allow Expert Telephonic Testimony
The court held that neither military conscription of Petitioner, a Serbian Muslim, nor incidents involving Petitioner’s Christian wife and children, constituted persecution. The court also found that the IJ’s refusal to allow an expert to testify telephonically was not arbitrary. (
Djedovic v. Gonzales
, 3/23/06). AILA Doc. No. 06050874.
AILA Doc. No. 06050874.
CA7 Holds BIA Did Not Abuse Its Discretion by Denying Motion to Reopen South African Asylum Case
The court upheld the BIA’s ruling that Petitioners failed to demonstrate due diligence in filing their motions to reopen. The court also found that Petitioners failed to show that conditions in South Africa had changed for persons of Indian ancestry between the time of the BIA’s decision and the motion to reopen. (
Patel v. Gonzales
, 3/30/06). AILA Doc. No. 06050870.
AILA Doc. No. 06050870.
CA7 Upholds Denial of Withholding of Removal Based on Changed Conditions in Uganda
The court found that the past harm suffered by Petitioner was not sufficient to show entitlement to withholding of removal. The court also found that, based on the record, it was impossible to predict that a renewal of hostilities is imminent or that Petitioner would be at risk if country conditions deteriorate. (
Kobugabe v. Gonzales
, 3/15/06). AILA Doc. No. 06050364.
AILA Doc. No. 06050364.
CA7 Takes Jurisdiction in One-Year Deadline Case but Upholds IJ’s Denial of Asylum and Withholding of Removal
While the court concluded that it had jurisdiction under the REAL ID for appellate review of constitutional claims and questions of law, it held that the BIA’s error was harmless because circumstances in Zimbabwe have remained “business as usual.” The court upheld the IJ’s withholding and CAT denial. (
Mabasa v. Gonzales
, 3/15/06). AILA Doc. No. 06050362.
AILA Doc. No. 06050362.
CA7 Rules Habeas Challenges to Detention Must Name Warden As Custodian-Respondent
The court rejected Petitioner’s contention that the Attorney General, DHS Secretary, and/or ICE Field Officer Director were appropriate custodians-respondents to a habeas petition challenging present physical confinement. (
Kholyavskiy v. Achim
, 4/17/06). AILA Doc. No. 06050213.
AILA Doc. No. 06050213.
CA7 Urges Litigants to Focus on Statutory and Regulatory Arguments before Raising Constitutional Claims
Rejecting the asylum applicant’s due process claim, the court reframed the claim as a denial of his right under INA §240(b)(4)(B) to a reasonable opportunity to present evidence on his own behalf and denied relief, citing Petitioner’s failure to indicate what other evidence he would have presented given more time. (
Rehman v. Gonzales
, 3/20/06). AILA Doc. No. 06041966.
AILA Doc. No. 06041966.
CA7 Holds a Petition for Review That Only Impacts Duration of Inadmissibility Is Ripe and Aggravated Discharge of a Firearm Is Crime of Violence
Where Petitioner conceded removability for a firearms offense but disputed the offense was a crime of violence, the court considered whether the case was ripe for judicial review. It concluded it was ripe because resolution would determine the length of Petitioner’s future inadmissibility. (
Quezada-Luna v. Gonzales
, 3/3/06). AILA Doc. No. 06041063.
AILA Doc. No. 06041063.
CA7 Vacates Removal Order Against AOS Eligible Alien
In a decision highly critical of the government’s handling of immigration cases, the court vacated an order of removal against a noncitizen who complied with all the requirements of an adjustment application and was merely awaiting the adjudication of his U.S. citizen wife’s visa petition. (
Benslimane v. Gonzales
, 11/30/05). AILA Doc. No. 06040567.
AILA Doc. No. 06040567.
CA7 Overturns Adverse Credibility Finding of Albanian Asylum Applicant
The court held that the IJ erred in finding Petitioner’s testimony was implausible, inconsistent with a Department of State country profile and inconsistent with other documentary evidence. The court also found that the IJ erred in characterizing the police report offered by Petitioner as unreliable. (
Shtaro v. Gonzales
, 1/24/06). AILA Doc. No. 06022360.
AILA Doc. No. 06022360.
CA7 Rejects IJ’s Negative Credibility Finding and Remands for Consideration of Whether Threatened Deportation Amounts to Persecution
The court, criticizing the behavior of the IJ, held that the IJ’s negative credibility determination was not supported by cogent reasons. The court also found that the IJ failed to consider Petitioner’s claim that the Eritrean government’s threat to denaturalize and deport her amounted to past persecution. (
Giday v. Gonzales
, 1/5/06). AILA Doc. No. 06020861.
AILA Doc. No. 06020861.
CA7 Upholds IJ’s Negative Credibility Finding and Rejects Due Process Argument
The court held that the IJ’s negative credibility finding was entitled to deference and that the IJ was not compelled to accept Petitioner’s explanation for the inconsistencies in his story. Although the court found it had jurisdiction to hear Petitioner’s due process claim under the REAL ID Act, it rejected the claim. (
Feto v. Gonzales
, 1/4/06). AILA Doc. No. 06020860.
AILA Doc. No. 06020860.
CA7 Finds Error in Allowing Government’s Document Expert to Testify in Albanian Asylum Case
The court, in finding that the government’s document expert should not have been permitted to testify, held that “junk science” has no place in administrative proceedings. The court criticized the government’s witness for lacking language expertise and speculating on the production of Albanian documents. (
Pasha v. Gonzales
, 12/29/05). AILA Doc. No. 06012566.
AILA Doc. No. 06012566.
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