2005

CA5 Affirms Matter of Roldan and Hernandez-Avalos (11/30/2005)
The court affirmed that state court guilty pleas to marijuana possession offenses are aggravated felony convictions for immigration purposes even if the person subsequently received deferred adjudication. (Salazar-Regino et al. v. Gonzales, 6/30/05). AILA Doc. No. 05113013.
Following Remand from the Supreme Court, CA5 Reviews Final Order Originally Challenged in Habeas Proceeding as a Petition for Review (10/7/2005)
The court withdrew and amended its prior decision, finding that habeas appeals pending in circuit court on REAL ID’s effective date are properly converted into petitions for review despite Congress’ silence on this issue. (Rosales v. BICE, 9/21/05). AILA Doc. No. 05100763.
Update on Status of Fifth Circuit Court of Appeals in New Orleans (Updated 9/12/05)(73 KB - 9/14/2005)
The Fifth Circuit's offices have issued updated instructions and filing information for pursuing matters including "true emergency matters, e.g., ... deportation matters with imminent and confirmed deportation dates..." AILA Doc. No. 05091460.
Following Remand from the Supreme Court, Fifth Circuit Reviews Final Order Originally Challenged in Habeas Proceeding (9/13/2005)
Stating that “§106 of the REAL ID Act has divested the district courts of jurisdiction over §2241 petitions attacking removal orders,” the court concluded that it was the “exclusive forum” to review petitioner’s final order challenge. (Rosales v. BICE, 8/16/05). AILA Doc. No. 05091362.
CA5 Finds Chinese Christian Failed to Show He Was Persecuted for His Religious Beliefs (9/12/2005)
The Court stated that it was unable to conclude that Petitioner was persecuted on account of his religion. The Court upheld BIA’s determination that Petitioner feared, not persecution, but prosecution for failing to register his church as required by Chinese law . (Li v. Gonzales, 8/9/05). AILA Doc. No. 05091263.
Update on Status of Fifth Circuit Court of Appeals in New Orleans (Updated 9/6/05)(14 KB - 8/31/2005)
The Fifth Circuit's offices are closed due to the effects of Hurricane Katrina. The court asks that no filings or documents be sent there at this time. Deadlines through Sept. 9 are automatically extended to Sept. 12, subject to further extension. AILA Doc. No. 05083172.
CA5 Upholds Finding That Petitioner’s Departure Constituted a Withdrawal of His Pending BIA Appeal (8/26/2005)
Because Petitioner “by his own free will” chose to sightsee in Southern Texas and did not pay attention to what an IJ concluded was an accidental departure from the US, the court held his actions sufficiently “voluntary” to withdrawal his pending appeal under 8 C.F.R. §1003.4. (Long v. Gonzales, 8/9/05). AILA Doc. No. 05082662.
CA5 Reverses Fraud Aggravated Felony Finding (8/15/2005)
The court held that Petitioner’s conviction for conspiracy to commit interstate transportation of stolen property was neither a fraud offense with loss of more than $10,000 to the victim, nor a conspiracy offense, and thus it was not an aggravated felony. (Omari v. Gonzales, 7/25/05). AILA Doc. No. 05081565.
Government Modifies Position on Application of Renteria-Gonzales in Fifth Circuit Cases Involving Vacated Convictions (8/8/2005)
In its opposition to an en banc rehearing petition, the government stated it wished to apply Matter of Pickering, not Renteria-Gonzalez, to Petitioner’s vacated conviction and terminate removal proceedings. Thus, the court denied the petition as moot. (Discipio v. Ashcroft, 7/13/05). AILA Doc. No. 05080863.
CA5 Addresses New INA Section 242(a)(2)(D) in Administrative Removal Case (7/21/2005)
The court held that new INA section 242(a)(2)(D) permitted review of Petitioner’s equal protection challenge to DHS’ discretion to place him, a non-LPR with an aggravated felony conviction, in either IJ removal proceedings or administrative removal proceedings (Flores-Ledezma v. Gonzales, 6/27/05). AILA Doc. No. 05072167.
CA5 Finds INA § 242(f) Not Applicable to Stay Requests (6/1/2005)
The court joined six other circuits in rejecting the government’s position that INA § 242(f) governs stay requests. The court held that stay requests continue to be governed by the four-factor test applied to preliminary injunctions. (Tesfamichael v. Gonzales, 5/24/05). AILA Doc. No. 05060167.
CA5 Reverses In Absentia Order Resulting from Petitioner’s Late Arrival (4/4/2005)
The court held that “it was legal error, and therefore an abuse of discretion, to hold that Petitioner's twenty-minute tardiness constituted a failure to appear.” (Alarcon-Chavez v. Gonzales, 3/14/05). AILA Doc. No. 05040464.
CA5 Confirms Jurisdiction Over MTR Denials; Grants Asylum in Falun Gong Case (4/4/2005)
The court held that it can review denials of motions to reopen because the AG’s discretion over them is not “specified" in the INA. Court also said BIA erred by not reopening to consider recent country condition records, and that Petitioner’s fear of future persecution was well-founded. (Yu Zahao v. Gonzales, 3/15/05). AILA Doc. No. 05040462.
CA5 Finds No Constitutional Interest in §212(c) Relief; Does Not Consider Statutory Interest (3/18/2005)
The court reasoned that the erroneous denial of §212(c) relief did not render Petitioner’s deportation proceeding unfair because he had no constitutionally protected due process right to such relief. The court did not consider whether Petitioner had a statutory right. (Nguyen v. Gonzales, 2/9/05). AILA Doc. No. 05031863.
CA5 Denies Chinese National's Claims to Asylum, Withholding & CAT Based on Partner's Forced Abortion (1/27/2005)
The Court held that Petitioner was not entitled to asylum, withholding of deportation or protection under the Convention Against Torture based on the fact that his “live-in” girlfriend was fined and forced to undergo an abortion pursuant to the Chinese government’s coercive population control policies. (Zhang v. Ashcroft, 12/29/04). AILA Doc. No. 05012767.

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2005