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2006 - 2005

  • CA4 Holds Timely Motion to Reopen Does Not Automatically Toll Voluntary Departure (10/6/2006)
    The court held that the BIA did not err in denying Petitioner’s motion to reconsider its denial of his motion to reopen on the ground that he had overstayed his voluntary departure date. A timely filed motion to reopen does not automatically toll the voluntary departure period pending adjudication of the motion. (Dekoladenu v. Gonzales, 08/18/06) AILA Doc. No. 06100668.
    AILA Doc. No. 06100668.
  • CA4 Remands on Issue of Whether Well-Founded Fear Presumption Was Rebutted (9/8/2006)
    The court held that Petitioner was not eligible for humanitarian asylum, finding that the past persecution he suffered was not “the most atrocious abuse” required by its precedent decisions. The court remanded on the issue of whether the presumption of a well-founded fear, based on past persecution, was rebutted. (Naizgi v. Gonzales, 7/31/06). AILA Doc. No. 06090874.
    AILA Doc. No. 06090874.
  • CA4 Discusses Delivery Presumptions for Notices to Appear (8/15/2006)
    The court held that for purposes of rescinding an in absentia removal order, where a notice to appear is sent by regular mail, the BIA abused its discretion by requiring Petitioner to rebut the “strong presumption” of delivery for certified mail. (Nibagwire v. Gonzales, 06/13/06). AILA Doc. No. 06081566.
    AILA Doc. No. 06081566.
  • CA4 Vacates Removal Order Amid Discussion of “Date of Admission” Under INA §237(a)(2)(A)(i) (8/9/2006)
    The court held that the BIA erred in concluding that the “date of admission” under INA §237(a)(2)(A)(i), may include the date of adjustment to lawful permanent resident status, when a person has previously been inspected and admitted as a nonimmigrant visitor. (Aremu v. Gonzales, 06/19/06). AILA Doc. No. 06080961.
    AILA Doc. No. 06080961.
  • CA4 Overturns IJ’s Adverse Credibility Finding in Ethiopian Case (6/5/2006)
    The court found that Petitioner’s testimony in support of her asylum claim was not inherently implausible and that the IJ’s finding was unsustainable. The court held that the IJ did not provide a specific cogent reason for his adverse credibility finding and, therefore, it was not supported by substantial evidence. (Tewabe v. Gonzales, 4/26/06). AILA Doc. No. 06060569.
    AILA Doc. No. 06060569.
  • CA4 Holds IJ Erred as a Matter of Law in Finding that Petitioner Must Prove that Political Persecution Was the Sole Motive of the Government (5/3/2006)
    The court found that the IJ erred in holding Petitioner to an overly stringent legal standard, i.e. proving that political persecution was the Ethiopian government’s sole motive. The court held that the IJ, by failing to apply the “mixed motive” standard, erred as a matter of law and abused his discretion. (Menghesha v. Gonzales, 3/13/06). AILA Doc. No. 06050363.
    AILA Doc. No. 06050363.
  • CA4 Finds General Challenge to Denial of Adjustment is Not Reviewable (2/17/2006)
    Although it acknowledged that it would have jurisdiction to review a legal or constitutional challenge to the denial of an adjustment application (notwithstanding INA §242(a)(2)(B) and pursuant to INA §242(a)(2)(D)), the court found that Petitioner’s petition failed to present such a challenge. (Higuit v. Gonzales, 1/3/06). AILA Doc. No. 06021716.
    AILA Doc. No. 06021716.
  • CA4 Rejects Argument that Review of Denial of Motion to Remand for Non-LPR Cancellation is Barred (2/14/2006)
    Court points out that the BIA, in denying the motion to remand, did not actually consider or deny an application for cancellation of removal or the other form of discretionary relief enumerated in §242(a)(2)(B)(i). (Obioha v. Gonzales, 12/8/05). AILA Doc. No. 06021464.
    AILA Doc. No. 06021464.
  • CA4 Finds Credit Card Fraud Offense Not an Aggravated Felony Theft (9/13/2005)
    The court found the BIA’s conclusion that fraud offenses were subsumed in the definition of theft offenses ignored the historical distinction between these two offenses and, thus, was “contrary to the intention of Congress, as evidenced by its separate and different treatment of fraud.” (Soliman v. Gonzales, 8/22/05). AILA Doc. No. 05091360.
    AILA Doc. No. 05091360.
  • CA4 Says Involuntary Manslaughter is Not a Crime of Violence (8/8/2005)
    Applying the Supreme Court’s rationale in Leocal v. Ashcroft, the majority found that involuntary manslaughter is not a crime of violence because “it does not intrinsically involve a substantial risk that force will be applied ‘as a means to an end.’” (Bejarano-Urrutia v. Gonzales, 7/5/05). AILA Doc. No. 05080861.
    AILA Doc. No. 05080861.
  • CA4 Upholds BIA’s Finding that the Single Event of an Insertion of an IUD and a Fine of More than One Year’s Wages Does Not Amount to Persecution (6/7/2005)
    The Court noted that if Petitioner had alleged she suffered not only from its insertion, but the compelled usage of the IUD as well, these collectively might rise to the level of persecution. The Court also found that the fine imposed did not amount to persecution because it did not constitute a threat to life or liberty. One Judge dissented. (Li v. Gonzales, 5/2/05) AILA Doc No 05060762.
    AILA Doc. No. 05060762.
  • CA4 Holds that Untested Khat is Not a Controlled Substance (2/8/2005)
    The court reasoned that petitioner was not removable on the basis of controlled substance charges because: (1) khat is not listed as a controlled substance under the Controlled Substances Act; and (2) the khat that formed the basis of the charges was not tested to determine if it contained a controlled substance. (Argaw v. Ashcroft, 1/31/05). AILA Doc. No. 05020838.
    AILA Doc. No. 05020838.
  • CA4 Refuses EAJA Fees in Criminal Habeas Actions; Distinguishes Immigration Habeas Actions (2/8/2005)
    The court held that § 2241 habeas petitioners in criminal custody are not entitled to recover EAJA fees because such actions are not purely “civil actions.” Significantly, the court recognized that its rationale was not applicable to habeas petitions in the immigration context. (O’Brien v. Moore, 1/27/05). AILA Doc. No. 05020836.
    AILA Doc. No. 05020836.