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2006

  • CA5 Rejects Asylum Claims of Eritrean-Ethiopian Couple Who Fear Separation (12/1/2006)
    The court rejected Petitioner wife’s claim that she would be persecuted in Eritrea and Petitioner husband’s claim that he suffered past persecution and feared future persecution in Ethiopia. The court found no legal authority that compels asylum for a married couple if deportation would separate them. (Tesfamichael v. Gonzales, 10/24/06)
    AILA Doc. No. 06120110.
  • CA5 Holds Unlawful Procurement of Naturalization is a Crime Involving Moral Turpitude (11/14/2006)
    The court held that unlawful procurement of naturalization, in violation of 18 USC §1425(a), is a crime involving moral turpitude. The court denied Petitioner’s request for concurrent relief under former INA §212(c) and current INA §240A(a). (Amouzadeh v. Winfrey, 10/5/06). AILA Doc. No. 06111460.
    AILA Doc. No. 06111460.
  • CA5 Holds BIA Erred in Ordering Petitioner Removed (10/19/2006)
    The court held that under INA §240(a)(1)-(3), only an IJ can order removal in the first instance. Therefore, the BIA erred in ordering Petitioner removed without remanding the case to the IJ for further proceedings. (James v. Gonzales, 09/05/06). AILA Doc. No. 06101915.
    AILA Doc. No. 06101915.
  • CA5 Discusses Constitutional Rights of Foreign Nationals Stopped at the Border (10/6/2006)
    The court held that foreign nationals who are physically present in the territorial U.S. but denied admission have a constitutional right to be free from false imprisonment and the use of excessive force by border patrol agents. (Martinez-Aguero v. Gonzalez, 08/04/06) AILA Doc. No. 06100669.
    AILA Doc. No. 06100669.
  • CA5 Holds No Jurisdiction to Review “Extreme Cruelty” Determination (9/5/2006)
    The court held that INA §242(a)(2)(B) barred jurisdiction to review the IJ’s discretionary determination that Petitioner had not suffered “extreme cruelty” at the hands of her U.S. citizen spouse and was therefore, not eligible for “special rule” cancellation of removal under INA §240A(b)(2)(A)(i)(I). (Wilmore v. Gonzales, 07/05/06). AILA Doc. No. 06090562.
    AILA Doc. No. 06090562.
  • CA5 Holds No Right to Procedural Protections in a Motion to Reopen Hearing (8/8/2006)
    Petitioner claimed the IJ violated his statutory and constitutional rights to a fair hearing on his motion to reopen. The court held that INA §240 governs removal proceedings, not motion to reopen proceedings, and that Petitioner has no constitutionally protected liberty interest in a discretionary motion to reopen. (Altamirano v. Gonzales, 1/5/06). AILA Doc. No. 06080861.
    AILA Doc. No. 06080861.
  • CA5 Holds AG’s Heightened Standard of Review for §209(c) Waivers Is Not Ultra Vires (7/31/2006)
    The court held that the AG’s imposition of a heightened standard of review to §209(c) waivers of inadmissibility that are sought by “violent criminals” was within the scope of his discretion as conferred by the INA and therefore, not ultra vires. (Jean v. Gonzales, 06/09/06). AILA Doc. No. 06073164.
    AILA Doc. No. 06073164.
  • CA5 Denies DHS Motion to Reconsider as Collateral Attack Barred by Res Judicata (7/21/2006)
    The court held that DHS’s motion to reconsider was a collateral attack barred by res judicata. The DHS motion argued that the BIA did not have jurisdiction to grant the prior motion to reopen and terminate proceedings. (Guevara v. Gonzales, 05/19/06). AILA Doc. No. 06072161.
    AILA Doc. No. 06072161.
  • CA5 Barred from Reviewing §212(c) Reversal; Affirms BIA Removal Order (6/13/2006)
    The court said it lacked jurisdiction to review the BIA’s reversal of an IJ grant of §212(c) relief. It also upheld the BIA’s act of ordering removal because, it concluded, the BIA was giving effect to the IJ’s original order of removability. (Delgado-Reynua v. Gonzales, 5/23/06). AILA Doc. No. 06061368.
    AILA Doc. No. 06061368.
  • CA5 Concludes Assault Was Not a Crime of Violence; Avoids Consideration of Cancellation of Removal (6/6/2006)
    Concluding that “offensive or provocative contact” does not necessarily involve the use of physical force required by 18 USC §16, the court found Petitioner’s assault conviction was not a crime of violence requiring removal and granted consideration of his claim for discretionary relief under INA §212(c). (Gonzalez-Garcia v. Gonzales, 02/14/06)
    AILA Doc. No. 06060672.
  • CA5 Rejects Colombian Asylum Case Based on Lack of Nexus (5/22/2006)
    The court found that Petitioner failed to establish a nexus between the persecution he suffered from the FARC and one of the statutory grounds for asylum. The court also found that Petitioner’s claim for Convention Against Torture relief also failed because the state action requirement was not met. (Tamara-Gomez v. Gonzales, 4/18/06)
    AILA Doc. No. 06052263.
  • CA5 Upholds Finding of Changed Country Conditions and Denies Humanitarian Asylum to Kosovar Muslim (5/8/2006)
    The court found that the evidence of changed conditions negated Petitioner’s individual fear of future persecution. It also found that the record did not compel the conclusion that the changes were transitory. The court concluded that Petitioner’s past harm was not severe enough to merit a grant of humanitarian asylum. (Shehu v. Gonzales, 3/17/06). AILA Doc. No. 06050877.
    AILA Doc. No. 06050877.
  • CA5 Upholds Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings (5/3/2006)
    Joining the Eight Circuit and rejecting the rationales of the First, Third, Ninth and Eleventh Circuits, the court upheld the validity of 8 CFR §1245.1(c)(8) as “a valid exercise of the Attorney General’s discretion under [INA §245(a)].” (Momin v. Gonzales, 4/24/06). AILA Doc. No. 06050360.
    AILA Doc. No. 06050360.
  • CA5 Holds That A Timely Motion to Reopen Does Not Automatically Toll the Voluntary Departure Period (Updated 9/21/06) (4/19/2006)
    The court held that the timely filing of a motion to reopen does not automatically toll the voluntary departure period, noting that a contrary ruling would allow an alien to exhaust administrative appeals and overstay the period of voluntary departure while “depriving the government of a speedy departure.” (Banda-Ortiz v. Gonzales, 3/28/06). AILA Doc. No. 06041960.
    AILA Doc. No. 06041960.
  • CA5 Vacates August 9, 2005 Decision Which Found that a Chinese Christian Failed to Show He Was Persecuted for His Religious Beliefs (4/14/2006)
    The court vacated its earlier decision reaffirming the BIA’s finding that a Chinese Christian asylum-seeker was not punished because of his religion, but because he violated the law regarding unregistered churches. (Li v. Gonzalez, 11/01/05). AILA Doc. No. 06041410.
    AILA Doc. No. 06041410.
  • CA5 Declines to Raise Venue Issue Sua Sponte (4/5/2006)
    While noting that venue was not proper under INA §242(b)(2) because petitioners’ immigration proceedings occurred outside the Fifth Circuit, the court held “[t]he unfairness of requiring the parties to relitigate anew in a different forum influence[d] [it] not to raise the non-jurisdictional venue issue sua sponte.” (Jama v. Gonzales, 11/15/05). AILA Doc. No. 06040570.
    AILA Doc. No. 06040570.
  • CA5 Finds Clock Stopping Provision May Not Be Applied Retroactively (4/5/2006)
    The court found that the stop-time rule did not apply retroactively to Petitioner’s 1989 theft conviction, a crime of moral turpitude, to end the accrual of continuous physical presence for purposes of relief under former §212(c). (Gonzalez-Garcia v. Gonzales, 11/15/05). AILA Doc. No. 06040569.
    AILA Doc. No. 06040569.
  • CA5 Rejects Claim to Suppress Evidence Obtained Through Special Registration (4/4/2006)
    The court said Petitioner failed to show the facts and law supported suppression. Also, to prevail on a challenge to an IJ’s denial of a continuance request to await a labor certification to pursue adjustment under INA §245(i), the court said petitioners must make some showing they meet the filing deadlines in the statue. (Ali v. Gonzales, 2/15/06). AILA Doc. No. 06040464.
    AILA Doc. No. 06040464.
  • CA5 Upholds Validity of NTA Signed By DHS Officer Who Is Not Authorized to Issue NTAs (2/17/2006)
    The court upheld the government’s interpretation 8 CFR §239.1 allowing unauthorized officers to initially sign and serve an NTA so long as the officer later obtains approval from an authorized official. (Ali v. Gonzales, 1/4/06). AILA Doc. No. 06021718.
    AILA Doc. No. 06021718.
  • CA5 Says It Can Review Legal and Constitutional Challenges to Orders Underlying Reinstatement Orders (2/17/2006)
    The court found INA §242(a)(2)(D) covers the bar to review of a prior order in INA §241(a)(5)) and, thus, permits review of legal and constitutional claims. But, the court dismissed the case because Petitioner failed to appeal the order in the prior proceedings. (Ramirez-Molina v. Ziglar, 1/12/06). AILA Doc. No. 06021717.
    AILA Doc. No. 06021717.
  • CA5 Joins Second and Fourth Circuits in Holding that Persons With Pre-IIRIRA Jury Convictions Are Not Eligible for §212(c) (2/17/2006)
    Adopting the Second Circuit’s rationale in Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003), the court held that IIRIRA’s repeal of relief under former §212(c) does not have impermissible retroactive effect on people with pre-IIRIRA jury trial convictions. (Hernandez-Castillo v. Gonzales, 1/12/06). AILA Doc. No. 06021714.
    AILA Doc. No. 06021714.
  • CA5 Finds IJ Abused Discretion by Failing to Grant Reopening for Lack of Notice (2/14/2006)
    Where hearing notice was sent by regular mail (not certified mail), the IJ erred by presuming effective service and by failing to give adequate evidentiary weight to the affidavits of Petitioner and counsel attesting to nondelivery. (Maknojiya v. Gonzales, 12/1/05). AILA Doc. No. 06021463.
    AILA Doc. No. 06021463.
  • CA5 Finds Clock Stopping Provision May Not Be Applied Retroactively (1/9/2006)
    The court found that the stop-time rule did not apply retroactively to Petitioner’s 1989 theft conviction, a crime of moral turpitude, to end the accrual of continuous physical presence for purposes of relief under former §212(c). (Gonzalez-Garcia v. Gonzales, 11/15/05). AILA Doc. No. 06010961.
    AILA Doc. No. 06010961.