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2005

  • CA2 on Economic Persecution (12/19/2005)
    The court upheld the IJ’s determination that the economic harm suffered by Petitioner, including dismissal from a university and employment in a factory for over 20 years, did not constitute persecution. (Damko v. Gonzales, 11/30/05) AILA Doc. No. 05121963.
    AILA Doc. No. 05121963.
  • CA2 Finds Significant Errors in IJ's Denial of Asylum (12/19/2005)
    The court held that the IJ relied on speculation, failed to consider all of the significant evidence and placed undue reliance on the fact that the Petitioner’s documents were not authenticated. (Lin v. Gonzales, 11/4/05) AILA Doc. No. 05121962.
    AILA Doc. No. 05121962.
  • CA2 Says Airport Interviews Must Be Viewed with Caution (12/9/2005)
    In rejecting the IJ’s adverse credibility finding, the court found that airport interviews may be perceived by asylum-seekers as coercive or threatening and that the BIA must recognize that applicants may not be entirely forthcoming. (Latifi v. Gonzales, 10/17/05) AILA Doc. No. 05120960.
    AILA Doc. No. 05120960.
  • CA2 Addresses REAL ID Act Jurisdiction Issues (12/7/2005)
    The court concluded that habeas petitions pending in circuit courts on 5/11/05 should be treated as petitions for review and suggested that Suspension Clause problems might arise if direct review was not an adequate substitute for habeas. (Gittens v. Menifee, 11/2/05) AILA Doc. No. 05120712.
    AILA Doc. No. 05120712.
  • CA2 Vacates Denial of MTR In Absentia Proceedings (11/30/2005)
    The court held that the IJ abused her discretion in construing Petitioner’s motion to reopen in absentia proceedings as triggering the procedural requirements of ineffective assistance of counsel claims. (Twum v. Gonzales, 6/8/05) AILA Doc. No. 05113015.
    AILA Doc. No. 05113015.
  • CA2 Says IJ Relied on “Impoverished View” of Political Opinion (11/21/2005)
    The court found that the IJ erred in holding that opposition to government extortion cannot serve as a basis for an asylum claim based on political opinion. (Zhang v. Gonzales, 11/13/2005) AILA Doc. No. 05112162.
    AILA Doc. No. 05112162.
  • CA2 Finds Adverse Credibility Fatally Undercuts CAT Claim (11/21/2005)
    The court upheld the IJ’s adverse credibility finding and found that it was reasonable for the IJ to conclude that Petitioner’s lack of credibility fatally undermined her claims for asylum, withholding and CAT. (Yang v. Gonzales, 10/11/05) AILA Doc. No. 05112160.
    AILA Doc. No. 05112160.
  • CA2 Rejects Adverse Credibility in Chinese Asylum Claim (10/25/2005)
    The court found that Petitioner’s testimony about his wife’s forced abortion was not, as the IJ claimed, “scant of details,” and that the IJ’s finding that Petitioner’s documents were fabricated was not supported by the evidence. (Chen v. Gonzales, 9/23/05) AILA Doc. No. 05102563.
    AILA Doc. No. 05102563.
  • CA2 Asks BIA to Decide if Bar for Overstaying Voluntary Departure May Be Tolled (10/24/2005)
    The court remanded and directed the BIA to decide whether Congress intended to permit courts, in their equitable discretion, to grant exceptions to the 10-year bar imposed for failure to comply with a voluntary departure order. (Zmijewska v. Gonzales, 10/6/05) AILA Doc. No. 05102461.
    AILA Doc. No. 05102461.
  • CA2 Rules Definitively That Imputed Political Opinion Is a Ground for Asylum (10/17/2005)
    The court, in reversing the IJ’s denial of asylum, found that the IJ erred in failing to consider that a political opinion was imputed to Petitioner by Chinese authorities. (Gao v. Gonzales, 9/9/05) AILA Doc. No. 05101769.
    AILA Doc. No. 05101769.
  • CA2 Says No Prima Facie Showing for Certain CAT Motions to Reopen (10/17/2005)
    The court found that the CAT regulations on motions to reopen do not require applicants to establish a prima facie CAT case if their case was pending on or after March 22, 1999. (Guo v. Gonzales, 9/7/05) AILA Doc. No. 05101764.
    AILA Doc. No. 05101764.
  • CA2 Rejects International Law Argument in §212(h) Case (10/7/2005)
    The court found that international law does not require “compassionate hearings” under INA §212(h) for LPRs whose criminal conduct pre-dated IIRIRA's enactment. (Guaylupo-Moya v. Gonzales, 9/12/05) AILA Doc. No. 05100765.
    AILA Doc. No. 05100765.
  • CA2 Reminds Agency That Asylum Process Is Not a Search for a Reasons to Deport (10/5/2005)
    The court held that the IJ disregarded relevant evidence and applied the wrong legal standards when reviewing the evidence presented by a part-Jewish family from Belarus. (Poradisova v. Gonzales, 8/16/05) AILA Doc. No. 05100561.
    AILA Doc. No. 05100561.
  • CA2 Finds BIA Erred in Denying Remand of Chinese One-Child Asylum Claim (10/3/2005)
    The court found that the new evidence, including the availability of the wife to testify regarding forced abortion, medical records, and a birth certificate for the second child, was material and not available at the time of the hearing. (Cao v. Gonzales, 8/31/05) AILA Doc. No. 05100362.
    AILA Doc. No. 05100362.
  • CA2 Rejects Family Planning Claim from Fujian Province (9/12/2005)
    The court found that Petitioner failed to meet his burden of proof where his native Fujian province has a relatively lax family planning policy that permits a second child if the first child is a girl. (Huang v. Gonzales, 8/29/05) AILA Doc. No. 05091261.
    AILA Doc. No. 05091261.
  • CA2 Says BIA Erred in Failing to Consider China Country Report (9/7/2005)
    The court found significant error in the BIA’s failure to consider the country report submitted by a Chinese asylum applicant where the report corroborated his fear of persecution based on his Christian religion. (Chen v. Gonzales, 8/2/05) AILA Doc. No. 05090760.
    AILA Doc. No. 05090760.
  • CA2 Rejects Asylum Claim Based Solely on Mother’s Forced Sterilization (8/24/2005)
    The court stated that just as parents are not eligible for asylum based on coercive population control measures practiced on their children, the children of parents who are victims of this policy are also not per se eligible. (Chen v. Gonzales, 8/5/05) AILA Doc. No. 05082463.
    AILA Doc. No. 05082463.
  • CA2 Says Parents and In-Laws Do Not Qualify for Asylum Based on Family Planning Policies (8/24/2005)
    The court denied asylum to Chinese nationals whose daughters-in-law were subjected to coercive population control methods, finding that an individual’s right to procreate does not extend to their parents and in-laws. (Feng Yuan v. Gonzales, 7/26/05) AILA Doc. No. 05082460.
    AILA Doc. No. 05082460.
  • CA2 on Chevron Deference in the Context of BIA Summary Affirmance (8/15/2005)
    The court held that an IJ's ruling on an issue of law that has been summarily affirmed by the BIA is not entitled to Chevron deference. (Shi Liang Lin v. Gonzales, 7/29/05) AILA Doc. No. 05081562.
    AILA Doc. No. 05081562.
  • CA2 Finds IJ/BIA Failed to Address Nationality in Tibetan Asylum Claim (8/11/2005)
    The court held that both the IJ and BIA erred in failing to address the threshold question of Petitioner’s nationality, where Petitioner was born in India to Tibetan parents and raised in a refugee camp in India. (Dhoumo v. BIA, 7/27/05) AILA Doc. No. 05081164.
    AILA Doc. No. 05081164.
  • CA2 Finds Chinese Asylum Applicant’s Testimony “Replete with Inconsistencies” (8/5/2005)
    The court found that the IJ’s negative credibility determination was supported by substantial evidence due to Petitioner's inconsistent statements and denied the asylum claim based on forced sterilization. (Lin v. Ashcroft, 6/14/05) AILA Doc. No. 05080560.
    AILA Doc. No. 05080560.
  • CA2 Rejects Asylum Claim, Finds Improved Conditions in Kosovo (7/13/2005)
    The court found that Petitioner’s fear of retribution for refusing to serve amounted to past persecution, but upheld the IJ’s finding that conditions had improved in Kosovo, such that there was no reasonable fear of future persecution. (Islami v. Gonzales, 6/23/05) AILA Doc. No. 05071362.
    AILA Doc. No. 05071362.
  • CA2 Delivers FOIA Victory to Plaintiff Organizations (6/3/2005)
    The court found that the Freedom of Information Act requires disclosure of a 2002 memorandum explaining DOJ’s position that state and local law enforcement may lawfully enforce the civil provisions of immigration law. (National Council of La Raza v. DOJ, 5/31/05) AILA Doc. No. 05060360.
    AILA Doc. No. 05060360.
  • CA2 Says False Statement to Asylum Officer Is “False Testimony” (5/4/2005)
    The court gave deference to Matter of R-S-J-, and found that false statements made under oath in an asylum interview is false testimony, thus precluding Petitioner from demonstrating good moral character. (Medina v. Gonzales, 4/14/05) AILA Doc. No. 05050414.
    AILA Doc. No. 05050414.
  • CA2 Finds Immigration Detention Habeas Qualifies for EAJA Fees (5/4/2005)
    The court held that a habeas petition challenging immigration detention qualifies as a "civil action" for the purposes of EAJA fee recovery and that an interim order of release pending appeal can confer prevailing party status. (Vacchio v. Gonzales, 4/18/05) AILA Doc. No. 05050413.
    AILA Doc. No. 05050413.
  • CA2 Says No Review of MTR Denial Where Removal Order Based on Certain Convictions (1/27/2005)
    The court held that INA §242(a)(2)(C) precludes review of the BIA's denial of Petitioner’s motion to reopen where the underlying order of removal was based on Petitioner’s controlled substance/aggravated felony convictions. (Durant v. INS, 12/16/04) AILA Doc. No. 05012763.
    AILA Doc. No. 05012763.
  • CA2 Grants Nunc Pro Tunc Relief to Afford Opportunity to Apply for §212(c) Relief (1/13/2005)
    The court granted Petitioners the opportunity to apply for 212(c) relief where they were wrongly denied the opportunity and had accumulated more than five years of imprisonment for aggravated felonies. (Edwards v. INS, Falconi v. INS, 12/17/04) AILA Doc. No. 05011370.
    AILA Doc. No. 05011370.