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2008

  • CA7 Upholds Frivolousness Finding in Pakistani Asylum Case(110 KB - 11/24/2008)
    CA7 held that a finding of frivolousness is not an exercise of discretion and thus it has jurisdiction to review the agency’s finding. it upheld the frivolousness finding, noting that Petitioner knew his allegations of murder of his wife and son were false. (Siddique v. Mukasey, 10/31/08)
    AILA Doc. No. 08112470.
  • CA7 Upholds Denial of Adjustment Due, in Part, to Asylum Fraud(109 KB - 11/24/2008)
    CA7 held that it lacks jurisdiction to review a denial of a continuance, unless denial would result in nullifying the statutory opportunity to adjust status. The court upheld the denial of the continuance based on past conduct (lying to the asylum officer). (Malik v. Mukasey, 10/23/08)
    AILA Doc. No. 08112469.
  • CA7 Relies on Airport/Credible Fear Interview to Uphold Adverse Credibility(156 KB - 11/24/2008)
    The court found the credible fear interviews reliable because a translator was present. Although Petitioner claimed she did not mention the forced abortion due to shame, the court held that the explanation did not overcome the level of deference due. (Xiao v. Mukasey, 10/27/08)
    AILA Doc. No. 08112466.
  • CA7 Upholds Adverse Credibility Finding Despite IJ Errors; 1 Judge Dissents(234 KB - 10/27/2008)
    The court held that notwithstanding the IJ’s mistakes, the balance of the evidence relied on by the IJ supported the adverse credibility finding. (Musollari v. Mukasey, 9/19/08)
    AILA Doc. No. 08102765.
  • CA7 Finds Aggravated Felony, although State Court Did Not Charge Petitioners as Repeat Offenders(406 KB - 10/9/2008)
    The court held that petitioners’ first and second statecourt convictions for simple drug possession amount to an “aggravated felony”, thus affirming the finding that they were statutorily ineligible for cancellation of removal. Judge Rovner dissents. (Fernandez v. Mukasey, 9/15/08)
    AILA Doc. No. 08100970.
  • CA7 Addresses Res Judicata Following Statutory Change in Law Regarding Aggravated Felonies(243 KB - 10/8/2008)
    The court held that res judicata did not bar proceedings based on the same sexual abuse of a minor conviction for which the petitioner was previously found not deportable because it would be inconsistent with IIRAIRA. (Alvear-Velez v. Mukasey, 9/2/08)
    AILA Doc. No. 08100866.
  • CA7 Upholds Adverse Credibility Finding, Denies Sierra Leonean Asylum Case (10/6/2008)
    The court rejected Petitioner’s arguments that 1) the IJ erred in refusing to admit country reports, 2) the BIA erred by taking administrative notice of a 1993 country report, and 3) the IJ exhibited bias. (Sankoh v. Mukasey, 8/13/08)
    AILA Doc. No. 08100665.
  • CA7 Finds that Denial of Continuance Renders Statutory Opportunity to Seek Adjustment a "Mere Illusion"(231 KB - 9/30/2008)
    CA7 remanded, finding that the IJ’s lack of jurisdiction to entertain adjustment applications was not a rational basis for denying the continuance request, and that the denial nullified the statutory right to apply for adjustment under the circumstances of the case. (Ceta v. Mukasey, 7/25/08)
    AILA Doc. No. 08093076.
  • CA7 Finds It Lacks Jurisdiction to Review a MTR Based on Changed Conditions (8/22/2008)
    The court found that, because discretionary decisions now may be reviewed when they entail constitutional claims or questions of law, there is nothing incongruous about the consolidation rule in INA §242(b)(6). (Kucana v. Mukasey, 7/7/08)
    AILA Doc. No. 08082268.
  • CA7 Remands Video Conference Asylum Hearing for Review of Key Evidence (8/22/2008)
    The court found that the use of video conferencing for immigration hearings facially comported with due process. The court held, however, that Petitioner was entitled to a new hearing because she was not able to review key evidence. (Raphael v. Mukasey, 7/2/08)
    AILA Doc. No. 08082264.
  • CA7 Finds Changed Conditions in Chinese One-Child Asylum Claim` (8/22/2008)
    The court held that Petitioner met her burden of showing changed conditions in the Fujian Province regarding the one-child policy and was entitled to have her removal proceeding reopened. (Lin v. Mukasey, 7/8/08)
    AILA Doc. No. 08082263.
  • CA7 Questions Reasonableness of Internal Relocation in Afghanistan (7/30/2008)
    CA7 found that substantial evidence did not support the IJ’s determination that an asylum seeker could reasonably relocate within Afghanistan to avoid future harm. The court noted no one explained how it would be possible for Petitioner to safely relocate. (Oryakhil v. Mukasey, 6/17/08)
    AILA Doc. No. 08073060.
  • CA7 Finds Illinois Domestic Battery is an Aggravated Felony Crime of Violence (7/18/2008)
    The court held that a conviction for domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) is a crime of violence under 18 USC §16(a) and is therefore an aggravated felony as defined by INA §101(a)(43)(F). (LaGuerre v. Mukasey, 5/20/08)
    AILA Doc. No. 08071865.
  • CA7 Finds IJ Erred in Rejecting Asylum Claim of Albanian Whistleblower (7/3/2008)
    CA7 found it premature for the IJ to only analyze Petitioner’s activities during his military service. The court also found that it was not decisive that the corruption of which Petitioner complained did not pervade every level of the Albanian government. (Haxhiu v. Mukasey, 3/19/08)
    AILA Doc. No. 08070366.
  • CA7 Criticizes NIV Form DS-156; Allows Petitioner to Proceed With §212(d)(3) Waiver (6/23/2008)
    Citing the “fatally flawed” Form DS-156 and the IJ's failure to advise Petitioner of all available avenues of relief, CA7 held that the BIA erred in finding Petitioner lost the opportunity to seek a waiver by not specifically requesting one in proceedings. (Atunnise v. Mukasey, 4/30/08)
    AILA Doc. No. 08062330.
  • CA7 Finds IJ Erred in Finding No Past Persecution in Romanian Claim (5/21/2008)
    The court held that the IJ applied an incorrect legal standard in determining that Petitioner had not suffered past persecution as a result of a genital beating. The court held that the IJ erred by requiring Petitioner to show he had been “seriously harmed.” (Irasoc v. Mukasey, 4/3/08)
    AILA Doc. No. 08052177.
  • CA7 Upholds Removability for Distribution of a Look-Alike Substance Under IL Law (5/21/2008)
    CA7 found sufficient connection between look-alike substances and actual controlled substances and held that a conviction for unlawful delivery of a look-alike substance in violation of Illinois law was a violation of a state law relating to a controlled substance. (Desai v. Mukasey, 3/28/08)
    AILA Doc. No. 08052176.
  • CA7 Rejects Modified Categorical Approach in CIMT Determination (5/21/2008)
    Citing Matter of Babaisakov, CA7 concluded that when classifying convictions under criteria beyond the criminal charge, such as whether the crime involves “moral turpitude,” the agency may consider evidence outside the charging papers and judgment of conviction.(Ali v. Mukasey, 4/4/08)
    AILA Doc. No. 08052174.
  • CA7 Addresses Deceit in Asylum Claims; Upholds Adverse Credibility Finding (5/21/2008)
    The court noted re the REAL ID Act that most claims can neither be confirmed nor refuted by documentary evidence, and that liars tend to give fewer details, finding substantial evidence supported the IJ’s determination. (Mitondo v. Mukasey, 4/24/08)
    AILA Doc. No. 08052173.
  • CA7 Relies on Pakistani Minor’s Airport Statement to Deny Asylum (5/21/2008)
    CA7 found material inconsistencies between Petitioner’s airport statement and his testimony at his asylum hearing. It noted that the airport interview had many markers of reliability, including transcript, questions about fear of return, and a translator. (Chatta v. Mukasey, 4/21/08).
    AILA Doc. No. 08052172.
  • CA7 Allows §212(h) Waiver for Possession of Drug Paraphernalia for Personal Use (4/17/2008)
    The court held Petitioner, who was convicted of possessing one marijuana pipe, was convicted of an offense that “relates to a single offense of simple possession of 30 grams or less of marijuana” and is therefore, eligible for a waiver under INA §212(h). (Barraza v. Mukasey, 3/13/08)
    AILA Doc. No. 08041766.
  • CA7 Finds Jurisdiction without Final Order; Holds 1-Yr. Bar Not Reviewable (4/10/2008)
    The court found that the absence of a final order of removal was not dispositive and looked to the statutory definition of “order of deportation.” The court, however, declined to review petitioners’ asylum denial based on the one-year deadline. (Jimenez-Viracacha v. Mukasey, 3/3/08)
    AILA Doc. No. 08041072.
  • CA7 Finds IL Conviction for Unlawful Possession of a Weapon by a Felon is an Aggravated Felony (4/3/2008)
    The court upheld the BIA’s conclusion that Petitioner’s conviction for unlawful possession of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a) is an offense “described in” 18 USC §922(g)(1) and is therefore, an aggravated felony. (Negrete-Rodriguez v. Mukasey, 3/3/08)
    AILA Doc. No. 08040362.
  • CA7 Reaffirms Valere and the §212(c) “Comparable Grounds” Test (3/7/2008)
    CA7 reaffirmed its holding in Valere v. Gonzales that removability for an aggravated felony involving sexual abuse of a minor is not waiveable under former INA §212(c) because there is no comparable ground of inadmissibility under INA §212(a). (Zamora-Mallari v. Mukasey, 1/24/08)
    AILA Doc. No. 08030768.
  • CA7 Disagrees with BIA on Multiple Simple Possession Convictions (2/22/2008)
    The court disagreed with the BIA in Matter of Carachuri-Rosendo. Had Plaintiff been prosecuted under federal law, he would have been treated as a felon by 21 USC §844(a) and was therefore, convicted of an aggravated felony. (United States v. Pacheco-Diaz, 1/29/08)
    AILA Doc. No. 08022265.
  • CA7 Finds IJ “Cared Little about the Evidence” in Nigerian CAT Claim (2/22/2008)
    The court found that the flaws in the IJ’s reasoning made it question the fairness of the hearing, and that the IJ failed to consider rebuttal evidence regarding whether Petitioner’s crimes were aggravated felonies. (Bosede v. Mukasey, 1/14/08)
    AILA Doc. No. 08022263.
  • CA7 Denied Claim Based on Identity Theft and Failure to Prove Homosexuality (2/21/2008)
    The court held that Petitioner’s convictions for identity theft were properly characterized as aggravated felonies. It also rejected his withholding claim based on homosexuality, due to incredible testimony and lack of corroborating evidence. (Eke v. Mukasey, 1/7/08)
    AILA Doc. No. 08022162.
 
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