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2006

  • CA7 Finds No Past Persecution or Well-Founded Fear in Albanian Asylum Claim (12/15/2006)
    The court found that threats and a two-week detention under primitive conditions did not constitute past persecution. It also 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.
  • CA7 Holds Reinstatement of Removal Trumps §245(i) Adjustment of Status (12/6/2006)
    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.
  • CA7 Upholds AG Decision in Matter of Jean, Remands CAT Claim (12/5/2006)
    CA7 rejected Petitioner’s argument that Matter of Jean is inconsistent with INA §209(c), which allows the AG to waive grounds of inadmissibility. Re the CAT claim, it found the BIA ignored key evidence and erred in not finding past harm. (Ali v. Achim, 11/6/06)
    AILA Doc. No. 06120563.
  • CA7 Finds No Persecution Per Se of Midgan Clan Members in Somalia (12/5/2006)
    The court held that Petitioner had not satisfied the objectively reasonable standard applicable in “pattern or practice” persecution cases, finding that although the Midgan are not treated well in Somalia, their poor treatment is not a systemic or organized effort.(Ahmed v. Gonzales, 11/2/06)
    AILA Doc. No. 06120561.
  • CA7 Criticizes IJ But Upholds Asylum Denial of Moroccan Christian Convert (12/1/2006)
    CA7 found that the IJ overstepped the bounds of neutrality and noted that the number of asylum cases involving intemperate judges should sound a warning bell. The court, however, upheld the determination of lack of well-founded fear of persecution in Morocco. (Chakir v. Gonzales, 10/19/06)
    AILA Doc. No. 06120111.
  • CA7 Finds Government Had Burden to Show Changed Conditions in Kosovo (11/14/2006)
    The court noted that the IJ fully credited Petitioner’s testimony and concluded that he had been persecuted in the past,and found that the IJ erred in holding insufficient evidence of fear o future persecution if Petitioner returned to Kosovo.(Balliu v. Gonzales, 10/27/06)
    AILA Doc. No. 06111465.
  • CA7 Remands Asylum Claim for Analysis of Social Group Argument (11/10/2006)
    The court found that the Petitioner’s social group was “former” employees of the Attorney General’s Office and remanded because the IJ 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.
  • CA7 Finds No Jurisdiction After BIA Reopens Proceedings on its Own Motion (11/2/2006)
    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.
  • CA7 Rejects IJ’s Denial of Togolese Asylum Claim on Several Grounds (10/6/2006)
    The court found a number of errors that required a remand to the BIA, including 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.
  • CA7 Finds BIA Erred in Denying Iraqi Christian’s Religious Persecution Case (9/22/2006)
    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. (Youkhana v. Gonzales, 8/22/06)
    AILA Doc. No. 06092268.
  • CA7 Finds IJ’s Adverse Credibility Finding in Togolese Case Speculative (9/22/2006)
    The court held that the IJ’s skeptism, unsupported by any facts in the record, did not form a valid basis for a negative credibility determination. (Ayi v. Gonzales, 8/21/06)
    AILA Doc. No. 06092262.
  • CA7 Declines to Extend Asylum to Boyfriends of Women Forced to Have Abortions (9/19/2006)
    The court held that the inconsistencies the IJ identified were not significant. The court held, however, that Petitioner 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.
  • CA7 Reverses IJ’s Adverse Credibility Finding in Forced Abortion Case (9/5/2006)
    CA7 rejeced the IJ’s credibility finding because it was based on minor discrepancies, speculation, and irrelevant facts. It also held that the IJ erred by requiring corroboration because the IJ failed to follow the pre-REAL ID Act standard in Diallo.(Kwok v. Gonzales, 7/25/06)
    AILA Doc. No. 06090567.
  • CA7 Refuses to Apply Fugitive Disentitlement Doctrine to Person in Custody (9/5/2006)
    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. (Gutierrez-Almazan, 07/17/06)
    AILA Doc. No. 06090564.
  • CA7 Remands Asylum Claim For Lack of Analysis of in BIA Decision (8/28/2006)
    The court found that, where the BIA’s one-sentence opinion assumed that Petitioner was credible 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.
  • CA7 Remands for Reconsideration of Evidence of Removability (8/23/2006)
    CA7 remanded for the BIA to reconsider its decision finding Petitioner removable. 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.
  • CA7 Holds IJ’s Refusal to Continue Hearing Resulted in Denial of Due Process (8/15/2006)
    CA7 held that the hearing on the merits was fundamentally unfair in light of 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. (Gjeci v. Gonzales, 06/15/06)
    AILA Doc. No. 06081567.
  • CA7 Relies on DOS Profile on Abortion Certificates to Uphold Asylum Denial (8/10/2006)
    Although CA7 found errors in the adverse credibility determination, it held that the IJ based his finding on one ground sufficient to support the ruling: the DOS Profile showing that the Chinese government does not issue certificates for involuntary abortions. (Huang v. Gonzales, 7/14/06)
    AILA Doc. No. 06081062.
  • CA7 Recommends Agency Hire Country Experts for Asylum Cases (8/10/2006)
    The court remanded a Liberian asylum claim, noting 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.
  • CA7 Reviews Petition for Review Filed Beyond 30-Day Deadline (8/1/2006)
    Relying on REAL ID §106(c), CA7 held that, where Petitioner’s habeas corpus petition was pending in district court on 5/11/05, it could review the BIA’s 1997 decision even though the petition for review was not filed within the 30-day deadline. (Medellin-Reyes v. Gonzales, 1/24/06)
    AILA Doc. No. 06080167.
  • CA7 Holds No Jurisdiction to Review Denial of Motion to Reopen (7/28/2006)
    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 no due process claim existed because extreme hardship is a discretionary element. (Cevilla v. Gonzales, 05/01/06)
    AILA Doc. No. 06072870.
  • CA7 Finds IJ Erred in Not Allowing Testimony of 3 Witnesses in Asylum Case (7/27/2006)
    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."(Boyanivskyy v. Gonzales, 6/9/06)
    AILA Doc. No. 06072777.
  • CA7 Holds IJ Improperly Relied on Forged Document to Deny Asylum (6/9/2006)
    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. (Hanaj v. Gonzales, 5/3/06)
    AILA Doc. No. 06060962.
  • CA7 Finds Cooperating Criminal Defendant Not A Social Group (6/5/2006)
    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, noting that she chose to cooperate with prosecutors in the hope of receiving a reduced sentence. (Wang v. Gonzales, 4/28/06)
    AILA Doc. No. 06060570.
  • CA7 Rejects Asylum Claim of Assyrian Christian from Iraq (5/22/2006)
    CA7 held that the Petitioner did not establish past persecution based on one of the five grounds. It also 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 below.(Margos v. Gonzales, 4/5/06)
    AILA Doc. No. 06052272.
  • CA7 Grants DOJ’s Motion to Remand Chinese Asylum Case (5/22/2006)
    CA7 held that an agency may request a remand without confessing error to reconsider its previous opinion, noting that it has been critical of recent decisions by the BIA in asylum matters and that DOJ might want to have an opportunity to reconsider some decisions.(Ren v. Gonzales, 3/9/06)
    AILA Doc. No. 06052266.
  • CA7 Holds IJ Improperly Required Corroborating Evidence in Asylum Case (5/22/2006)
    CA7 noted that an asylum claim of a credible applicant cannot be denied solely for lack of 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.
  • CA7 Overrules IJ’s Finding that Albanian Asylum-Seeker Did Not Suffer Past Persecution (5/19/2006)
    CA7 rejected the IJ’s finding that Petitioner was not a victim of persecution on account of his political activity, noting 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.
  • CA7 Finds Petitioner Eligible for Asylum Based on his Remarried Wife’s Forced Abortion (5/8/2006)
    The court held that the IJ violated the “rule of the case” doctrine by making new adverse credibility determinations, and that 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.
  • CA7 Finds Military Conscription is Not Persecution; Upholds IJ Refusal to Allow Expert Telephonic Testimony (5/8/2006)
    The court held that neither military conscription of a Serbian Muslim nor incidents involving his 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.
  • CA7 Holds BIA Did Not Abuse Its Discretion by Denying Motion to Reopen South African Asylum Case (5/8/2006)
    CA7 upheld the BIA’s rulings that Petitioners failed to demonstrate due diligence in filing their motions to reopen and failed to show that conditions in South Africa had changed for persons of Indian ancestry between the time of the decision and the motion. (Patel v. Gonzales, 3/30/06)
    AILA Doc. No. 06050870.
  • CA7 Upholds Denial of Withholding of Removal Based on Changed Conditions in Uganda (5/3/2006)
    CA7 found that the past harm was not sufficient to show entitlement to withholding of removal. It also found that 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.
  • CA7 Takes Jurisdiction in One-Year Deadline Case but Upholds IJ’s Denial of Asylum and Withholding of Removal (5/3/2006)
    CA7 concluded that it had jurisdiction under REAL ID for appellate review of constitutional claims and questions of law, but the BIA’s error was harmless because circumstances in Zimbabwe have remained “business as usual.”(Mabasa v. Gonzales, 3/15/06)
    AILA Doc. No. 06050362.
  • CA7 Rules Habeas Challenges to Detention Must Name Warden As Custodian-Respondent (5/2/2006)
    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.
  • CA7 Urges Litigants to Focus on Statutory and Regulatory Arguments before Raising Constitutional Claims (4/19/2006)
    Rejecting the asylum applicant’s due process claim, CA7 reframed the claim as a denial of his right to a reasonable opportunity to present evidence and denied relief, citing failure to indicate what other evidence would have been presented given more time.(Rehman v. Gonzales, 3/20/06)
    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 (4/10/2006)
    Where Petitioner conceded removability for a firearms offense but disputed the offense was a crime of violence, the court concluded the case was ripe for judicial review because resolution would determine the length of Petitioner’s future inadmissibility. (Quezada-Luna v. Gonzales, 3/3/06)
    AILA Doc. No. 06041063.
  • CA7 Vacates Removal Order Against AOS Eligible Alien (4/5/2006)
    Criticizing the government’s handling of such cases, CA7 vacated an order of removal against a noncitizen who complied with all the requirements for 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.
  • CA7 Overturns Adverse Credibility Finding of Albanian Asylum Applicant (2/23/2006)
    The court held that the IJ erred in finding Petitioner’s testimony was implausible, inconsistent with a DOS country profile and inconsistent with other evidence.(Shtaro v. Gonzales, 1/24/06)
    AILA Doc. No. 06022360.
  • CA7 Remands for Consideration of Whether Threatened Deportation Amounts to Persecution (2/8/2006)
    CA7 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.
  • CA7 Upholds IJ’s Negative Credibility Finding and Rejects Due Process Argument (2/8/2006)
    The court held that the IJ’s negative credibility finding was entitled to deference. 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.
  • CA7 Finds Error in Allowing Government’s Document Expert to Testify in Albanian Asylum Case (1/25/2006)
    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.(Pasha v. Gonzales, 12/29/05)
    AILA Doc. No. 06012566.
 
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