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2005

  • CA3 Finds IJ’s Adverse Credibility Determination Was Erroneous (12/12/2005)
    The Court found that even though it must afford substantial deference to an adverse credibility finding, the IJ’s determination did not pass muster. The Court found that the contradiction that the IJ saw between the doctor’s note and the Petitioner’s testimony was created by the IJ’s own strained interpretation of the note. (Butt, 11/23/05). AILA Doc. No. 05121260.
    AILA Doc. No. 05121260.
  • CA3 Addresses New INA §242(a)(2)(D) (11/30/2005)
    Pursuant to new INA §242(a)(2)(D), added by §106(a) of the REAL ID Act, the court concluded that it may review the merits of petitions for review filed by individuals with criminal convictions which raise legal or constitutional claims. (Papageorgiou v. Gonzales, 6/24/05). AILA Doc. No. 05113014.
    AILA Doc. No. 05113014.
  • CA3 Strikes Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings (10/24/2005)
    The court joined the First Circuit in holding that 8 C.F.R. §1245.1(c)(8) is invalid. The court reasoned that the regulation is based on an impermissible construction of INA §245(a), which authorizes parolees to adjust status. (Zheng v. Gonzales, 9/8/05). AILA Doc. No. 05102462.
    AILA Doc. No. 05102462.
  • CA3 Holds Filing Timely Motion to Reopen Tolls the Voluntary Departure Period (10/7/2005)
    Where Petitioner filed a motion to reopen prior to the expiration of the voluntary departure period granted under current INA §240B(d), the court held that “tolling applies during the period of time that the BIA deliberates.” (Kanivets v. Ashcroft, 9/7/05). AILA Doc. No. 05100767.
    AILA Doc. No. 05100767.
  • CA3 Finds Retroactive Application of Reinstatement Statute Improper (10/7/2005)
    The court found that §241(a)(5) could'nt be applied retroactively because it would eliminate Petitioner’s pre-existing right to apply for voluntary departure, which he possessed during his 1988 illegal re-entry (he self-deported in 1987). (Dinnal v. Gonzales, 9/1/05). AILA Doc. No. 05100764.
    AILA Doc. No. 05100764.
  • CA3 Finds BIA’s Rationale for Denying Asylum to Tanzanian Boy Scout Deficient (10/3/2005)
    The Court found that the BIA misinterpreted Petitioner’s evidence about street children and gave unwarranted weight to the fact that his parents were not persecuted. The Court also criticized the Attorney General’s arguments on appeal, finding them to be “disingenuous or embarrassingly naïve” and “myopic.” (Lusingo, 8/19/05). AILA Doc. No. 05100361.
    AILA Doc. No. 05100361.
  • CA3 Finds CAT Eligibility Is Established If the Cumulative Probability of Torture by Two Entities Exceeds 50% (10/3/2005)
    The Court found that the proper application of the Convention Against Torture (CAT) regulations merely requires the Sierra Leone Petitioner to prove it is more likely than not he faces torture by a public official (by the RUF and the government together ), and that the cumulative probability of torture exceeds 50%. (Kamara, 8/29/05). AILA Doc. No. 05100360.
    AILA Doc. No. 05100360.
  • CA3 Joins First Circuit, Striking Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings. (9/20/2005)
    The Court of Appeals for the Third Circuit has ruled that 8 C.F.R. § 245.1(c)(8) is invalid because it “contradicts the clear language and expressed intent” of Congress in INA § 245(a) to allow parolees to adjust status. This regulation bars all arriving aliens – which includes the majority of parolees – from adjusting status if they have been placed in removal proceedings.
    AILA Doc. No. 05092062.
  • CA3 Defines “Last Habitually Resided” Phrase in Refugee Definition, Finding it an Issue of First Impression (9/9/2005)
    The Court found that the IJ’s interpretation of “last habitually resided” in the refugee definition, based on the INA’s definition of “residence,” was permissible under Chevron. The Court agreed with IJ’s reliance on the length of time Petitioner stayed in Serbia, saying “habitual” means “long use.” (Paripovic v. Gonzales, 8/12/05). AILA Doc. No. 05090962.
    AILA Doc. No. 05090962.
  • CA3 Holds BIA’s Findings Were Unsupported by the Record and Ignored the Actual Basis of Asylum Claim (8/24/2005)
    The Court found that the BIA’s basis for rejecting Petitioner’s asylum claim were unsupported by the record and essentially ignored the focus of his claim. The BIA had argued that 1) general unrest in Colombia was not a basis for asylum and 2) Petitioner’s parents and brothers remained in Colombia unharmed. (Vente Vente v. Gonzales, 7/22/05). AILA Doc. No. 05082462.
    AILA Doc. No. 05082462.
  • CA3 Rejects Government Exhaustion Argument and Says Pennsylvania Simple Assault Not a Crime of Violence (8/15/2005)
    The court held that where a petitioner has raised only one claim, fully and fairly litigated by the petitioner, before the IJ and the BIA, the petitioner has exhausted that claim. Court also ruled that simple assault not a crime of violence in Pennsylvania. (Popal v. Gonzales, 7/29/05). AILA Doc. No. 05081564.
    AILA Doc. No. 05081564.
  • CA3 Holds Honduran Street Children Are Not a Cognizable Social Group for Asylum Purposes (8/10/2005)
    The Court found that the three main elements of Petitioner’s social group—poverty, homelessness and youth—were too vague and broad to be characteristics of a protected social group for asylum purposes. Denying the claim, the Court said that it must defer to Congress and the executive branch in immigration matters. (Escobar v. Gonzales, (7/29/05). AILA Doc. No. 05081062.
    AILA Doc. No. 05081062.
  • CA3 Addresses REAL ID’s Impact on Pending Habeas Appeals (8/8/2005)
    The court held: habeas appeals pending on 5/11/05 may be reviewed as petitions for review; although Petitioner’s IJ hearing was conducted in another circuit, the court did not transfer the case because it was already briefed and argued, and Petitioner “waited a long time for the resolution of his claims.” (Bonhometre v. Gonzales, 7/15/05). AILA Doc. No. 05080864.
    AILA Doc. No. 05080864.
  • CA3 Grants EAJA Fees For Winning Remand to the BIA (8/8/2005)
    Joining the Ninth and Seventh Circuits, the Third Circuit applied the rationale in Shalala v. Schaefer, 509 U.S. 292 (1993) and concluded that an immigration petitioner who wins remand to the BIA is a prevailing party for EAJA purposes regardless of whether the person ultimately prevails in immigration proceedings. (Johnson v. Gonzales, 7/25/05). AILA Doc. No. 05080862.
    AILA Doc. No. 05080862.
  • CA3 Orders New IJ to Hear Asylum Claim Due to Abusive Nature of Original IJ (7/13/2005)
    Court found that IJ’s and BIA’s findings on credibility, and the ability and willingness of the home government to protect Trokosi slaves, were not supported by substantial evidence. The Court ordered that the case be sent to a new IJ because the IJ who initially heard the case had engaged in brow beating and insensitive questioning. (Fiadjoe v. Gonzales, 6/14/05) AILA Doc. No. 05071364.
    AILA Doc. No. 05071364.
  • CA3 Criticizes BIA for “Paucity of Analysis” (7/7/2005)
    The Court found that Petitioner had suffered past persecution by the Albanian police who inflicted multiple beatings that caused serious injuries. Because the BIA failed to elaborate on its rationale for determining that Pet. had not met his burden of proof, the Court remanded the case for findings on corroboration and changed conditions. (Voci v. Gonzales, 6/6/05) AILA Doc. No. 05070768.
    AILA Doc. No. 05070768.
  • CA3 Overturns BIA by Applying Mixed Motive Analysis (6/7/2005)
    The Court rejected the argument that the child had not met his burden of proof because the motivation for his arrest was a legitimate law enforcement purpose. The Court held that an asylum applicant’s burden is to show that the persecution was motivated, in part, by one of the protected grounds, not that the ground was the sole motivation. (Singh v. Gonzales, 5/5/05) AILA Doc. No. 05060764
    AILA Doc. No. 05060764.
  • CA3 Overturns IJ’s Negative Credibility Determination in Asylum Claim of Chinese Pediatrician Who Exposed Practice of Infanticide (6/7/2005)
    The Court held that the IJ’s negative credibility determination was based on speculation and conjecture, not the evidence of record. The IJ’s finding was based on testimony and other evidence, including Petitioner’s distinction between infanticide and abortion, her contacts with a reporter, and the facts surrounding her escape from China. (Cao v. Gonzales, 5/12/05). AILA Doc. No. 05060760.
    AILA Doc. No. 05060760.
  • CA3 Finds that Continuous Physical Presence Clock Can Restart (6/1/2005)
    The court held that an individual who lawfully reentered the U.S. after committing a crime of inadmissibility may begin to accrue continuous physical presence for cancellation eligibility. (Okeke v. Gonzales, 5/18/05). AILA Doc. No. 05060166.
    AILA Doc. No. 05060166.
  • CA3 Finds Child of Parents Subject to Coercive Population Controls Is Not Eligible for Asylum Because His Interest in Birth of Additional Child is “Remote” (5/9/2005)
    The Court concluded that Petitioner could not establish eligibility for asylum by virtue of the harm his parents suffered as a result of China’s coercive population control methods. The Court also found the harm Petitioner suffered, including the destruction of his family home and economic harm to his family, did not amount to persecution. (Wang v. Gonzales, 4/27/05) AILA Doc. No. 05050976
    AILA Doc. No. 05050976.
  • CA3 Finds IJ’s Negative Credibility Determination Was Based on His “Unsupported Personal Opinion” of the Asylum-Seeker’s Claim (5/9/2005)
    The Court found that a Georgian asylum-seeker was entitled to have his asylum case remanded because the IJ’s negative credibility finding was not supported by substantial evidence. (Jishiashvili v. Atty. Gen. of U.S., 4/1/05). AILA Doc. No. 05050970.
    AILA Doc. No. 05050970.
  • CA3 Finds Deliberate Imposition of Severe Economic Disadvantage Amounts to Persecution (5/9/2005)
    The Court held that the economic restrictions faced by Petitioner were “severe” and, in the aggregate, amounted to persecution. The Court noted that Petitioner was fined 1200 yuan, blacklisted from any government employment, and had personal property confiscated. The case was remanded to the BIA for a credibility determination. (Li v. Atty. Gen. of U.S., 3/10/05). AILA Doc. No. 05050963.
    AILA Doc. No. 05050963.
  • CA3 Says Racial Slurs Not Proof of Persecution Motive; Robberies Do Not Amount to Past Persecution (4/11/2005)
    The Court upheld BIA decision, finding that use of racial slurs by Petitioners’ attackers was not adequate proof that the attackers were motivated by ethnicity. The Court also found that the two robberies did not amount to persecution because they resulted in only theft of property and minor injuries. (Lie v. Ashcroft, 2/7/05). AILA Doc. No. 05041167.
    AILA Doc. No. 05041167.
  • CA3 Holds IJ’s Determination that Petitioner Filed a “Frivolous” Asylum Application Violated Due Process (4/7/2005)
    The Court noted that a finding of “frivolousness” is one of the “most extreme provisions” under IIRAIRA because it permanently bars individuals from any immigration benefit. The Court held that because the IJ failed to comply with the statutory and regulatory requirements to make such a finding, she violated Pet’s right to due process. (Muhanna v. Gonzales, 3/3/05). AILA Doc. No. 05040769.
    AILA Doc. No. 05040769.
  • CA3 Finds Deadline for Reopening In Absentia Order Can Be Equitably Tolled for Fraud (4/4/2005)
    The court found that the 180-day time limit on filing a motion to reopen an in absentia order is analogous to a statute of limitations and, therefore, can be equitably tolled. The court found that misrepresentations about legal representation constitute a basis for equitable tolling. (Borges v. Gonzales, 3/30/05). AILA Doc. No. 05040463.
    AILA Doc. No. 05040463.
  • CA3 Holds That Relief Bar For Overstaying Voluntary Departure Does Not Apply to MTRs Filed Before Departure Date In Pre-IIRIRA Cases (3/18/2005)
    The court reasoned that the failure to act on a motion to reopen filed prior to the expiration of the voluntary departure period is an “exceptional circumstance.” The court rejected the BIA’s contrary holding in Matter of Shaar. (Barrios v. US AG, 2/25/05). AILA Doc. No. 05031864.
    AILA Doc. No. 05031864.
  • CA3 Finds IJ’s Conclusion That Asylum-Seeker was Not Victim of State - Sponsored Persecution Inconsistent With Record (3/14/2005)
    Court found IJ’s ruling against Petitioner on whether she was subjected to “state-sponsored” religious persecution in China inconsistent with record and not supported by substantial evidence. Petitioner was found to be a credible witness and her testimony cited many attacks by “police” and other “authorities.” (Wu v. Ashcroft, 01/04/05). AILA Doc. No. 05031463.
    AILA Doc. No. 05031463.
  • CA3 Says Lack of Authenticated Corroborating Documentation Is Not a Basis for Adverse Credibility Finding (3/11/2005)
    The Court found that the BIA improperly sustained the IJ’s denial of Petitioner’s application for asylum, where the denial was based on an adverse credibility finding, which in turn was based primarily on Petitioner’s failure to provide authenticated documents in corroboration of his claim. (Leia v. Ashcroft, 01/04/05). AILA Doc. No. 05031162.
    AILA Doc. No. 05031162.