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2010 - 2009

  • CA3 Finds INA §236 Conditional Parolees Are Not “Paroled” for Purposes of Adjustment(78 KB - 12/27/2010)
    The court held that an alien released on conditional parole under INA §236 is not “paroled into the United States” for purposes of eligibility for adjustment of status under INA §245. (Delgado-Sobalvarro v. Att’y Gen. of the U.S., 11/2/10) AILA Doc. No. 10122736.
  • CA3 Finds NY Drug Convictions Do Not Qualify as Aggravated Felonies(140 KB - 12/22/2010)
    The court held that the petitioner’s open guilty plea to misdemeanor convictions under NY Penal Law § 221.40 did not establish that he was convicted of drug trafficking crimes that qualified as an aggravated felonies. (Thomas v. U.S. Att’y Gen., 10/26/10) AILA Doc. No. 10122244.
  • CA3 Finds PA Drug Conviction Qualifies as Aggravated Felony(108 KB - 12/20/2010)
    CA3 affirmed the BIA’s decision that the petitioner’s PA state law conviction for possession with intent to distribute 120.5 grams of marijuana was an “aggravated felony,” and did not fall within the exception under 21 U.S.C. § 841(b)(4). (Catwell v. Holder, 10/13/10) AILA Doc. No. 10122077.
  • CA3 Remands Asylum Case on Chinese Population Control Policies(203 KB - 12/20/2010)
    CA3 held that the evidence compels the conclusion that the petitioner was persecuted on account of her resistance to China’s coercive population control policies under INA §101(a)(42) and remanded the asylum case to the BIA. (Cheng v. U.S. Att’y Gen., 10/6/10) AILA Doc. No. 10122065.
  • CA3 on Res Judicata and 212(c) Waiver Application(105 KB - 12/6/2010)
    The court held that res judicata did not bar the government from lodging new removability charges based on convictions it had not previously raised and that petitioner’s 212(c) waiver did not apply to the instant removal order. (Duhaney v. U.S. Att’y Gen., 9/14/10) AILA Doc. No. 10120666.
  • CA3 on BIA Standards of Review in Asylum Cases(161 KB - 12/6/2010)
    The court held that the BIA interpretation of §1003.(d)(3) in In re A-S-B- cannot stand and that an IJ’s forecasting of future events constitutes fact-finding that the BIA must review under the clearly erroneous standard. (Huang v. U.S. Att’y Gen., 9/8/10) AILA Doc. No. 10120664.
  • CA3 Finds Lack of Jurisdiction to Grant Stay of Voluntary Departure(81 KB - 12/6/2010)
    The court held that under 8 C.F.R. § 1240.26(i), it cannot stay a grant of voluntary departure after a petitioner seeks judicial review because the grant has already terminated. (Patel v. U.S. Att’y Gen., 8/24/10) AILA doc. No. 10120663.
  • CA3 on Conditional LPR Eligibility for §212(c) Relief(105 KB - 12/6/2010)
    The court remanded the case for the BIA to clarify whether it considered the date that petitioner was first admitted as a conditional permanent resident in its finding that he was ineligible for §212(c) relief (Gallimore v. U.S. Att’y Gen., 8/20/10) AILA Doc. No. 10120662.
  • CA3 Defines the Aggravated Felony of "Sexual Abuse of a Minor"(333 KB - 12/3/2010)
    The court held that a conviction under N.J. State Ann. §2C:14-3(a) constituted the aggravated felony of “sexual abuse of a minor” under INA §101(a)(43) and that removal proceedings are not time-barred. (Restrepo v. Atty’ General of the U.S., 8/16/10) AILA Doc. No. 10120321.
  • CA3 Finds No Jurisdiction to Review DHS Asylum Termination(245 KB - 11/3/2010)
    The court held that the IJ and BIA did not err in determining that the immigration judge lacked jurisdiction to review DHS’ termination of Petitioner’s asylum status. (Bhargava v. Holder, 7/1/10) AILA Doc. No. 10110360.
  • CA3 Strikes a Blow to State and Local Efforts to Regulate Immigration(475 KB - 9/10/2010)
    The court struck down two Pennsylvania local ordinances as unconstitutional on federal preemption grounds. The municipal laws attempted to regulate the employment of and provision of rental housing to unauthorized aliens. (Lozano v. City of Hazleton, 9/9/10) AILA Doc. No. 10091060.
  • CA3 Remands for Clarification or Reconsideration of Hardship in Cancellation Case(340 KB - 9/8/2010)
    CA3 found that the BIA may have impermissibly applied Matter of Recinas, focusing on the number of qualifying relatives for hardship purposes instead of the hardship to Petitioner’s sole qualifying relative. (Pareja v. U.S. Att’y Gen., 7/29/10). AILA Doc. No. 10090871.
  • CA3 Grants CAT Claim, Finding BIA Ignored Majority of Petitioner’s Evidence(287 KB - 9/8/2010)
    CA3 reversed and granted withholding of removal under CAT, finding that BIA ignored majority of evidence that petitioner presented and holding that it is more likely than not that petitioner would be tortured if returned to China. (Kang v. U.S. Att’y General, 7/8/10). AILA Doc. No. 10090870.
  • CA3 Remands Asylum Case on Imputed Political Opinion(296 KB - 9/8/2010)
    CA3 remanded asylum case, finding that BIA’s conclusion that FARC’s threats were not motivated by a political opinion imputed to petitioner is not supported by substantial evidence. (Espinosa-Cortez v. U.S. Attorney General, 6/2/10). AILA Doc. No. 10090869.
  • CA3 Finds IJ Failure to Advise on Free Legal Services Availability Invalidates Removal Order(115 KB - 7/9/2010)
    CA3 vacated and remanded, holding that IJ’s failure to advise respondent of availability of free legal services, as required under 8 C.F.R. § 1240.10(a)(2)-(3), renders subsequent removal order invalid. (Leslie v. Attorney General of the United States, 07/09/10). AILA Doc. No. 10070965.
  • CA3 Upholds BIA Interpretation of § 1239.2(f) on Prima Facie Naturalization Eligibility(247 KB - 5/12/2010)
    CA3 denied petition and deferred to BIA interpretation that § 1239.2(f) requires DHS to present affirmative communication on prima facie naturalization eligibility before termination of removal proceedings. (Zegrean v. Attorney General of the United States, 04/13/10). AILA Doc. NO. 10051268.
  • CA3 Remands, Finding BIA Erred in Review of CAT Decision(64 KB - 5/10/2010)
    CA3 remanded, holding that BIA erred in reviewing the finding of a probability of torture de novo and not under a “clearly erroneous” standard. (Kaplun v. Attorney General of the United States, 04/09/10). AILA Doc. No. 10051071.
  • CA3 Finds “Extreme Cruelty” Determination Discretionary(28 KB - 5/10/2010)
    CA3 agreed with CA10, CA5, CA7, holding that “extreme cruelty” determination for cancellation of removal under the Special Rule for Battered Spouses is discretionary and not subject to judicial review. (Johnson v. Attorney General of the United States, 04/16/10). AILA Doc. No. 10051069.
  • CA3 on INA Confidentiality Provisions and LIFE Act Family Unity Benefits Applications(26 KB - 5/10/2010)
    CA3 denied petition, finding confidentiality provisions of INA §245A(c)(5) inapplicable to an application for employment authorization submitted by the child of a LIFE Act adjustment of status applicant. (Patel v. Attorney General of the United States, 03/30/10). AILA Doc. No. 10051067.
  • CA3 on VWP Waivers and Removal Orders (Updated 5/6/10)(94 KB - 5/6/2010)
    CA3 held that, although petitioner was once statutorily eligible for marriage-based adjustment of status, he may not, after expiration of his 90-day VWP stay, adjust his status as a defense to removal. (Bradley v. Attorney General of the United States, 04/29/10). AILA Doc. No. 10052933.
  • CA3 Sustains Debarment for H-1B Employer's Failure to Make Displacement Inquiry of Secondary Employer(72 KB - 4/19/2010)
    CA3 concluded that debarment is required where an H-1B employer fails to make the necessary displacement inquiry of a secondary employer, and that there is no requirement of scienter. (Cyberworld Enterprise Technologies, Inc. v. Napolitano, 04/12/10). AILA Doc. No. 10041975.
  • CA3 Finds BIA Ignored Many Atrocities Petitioner Subjected to in Asylum Case(54 KB - 1/25/2010)
    CA3 remanded asylum case finding BIA failed to consider many atrocities to which petitioner was subjected; testimony that she will be killed if she is returned to Liberia, and why; and documentary evidence (Sheriff v. Attorney General of the United States, 11/24/09). AILA Doc. No. 10012571.
  • CA3 Rejects Silva-Trevino Approach in Jean-Louis v. Holder(187 KB - 10/6/2009)
    The court concluded that the petitioner was not convicted of a crime involving moral turpitude (CIMT), and applied its established methodology for analyzing CIMT, rather than the approach recently adopted by the Attorney General in Silva Trevino. (Jean-Louis v. Holder, 10/6/09). AILA Doc. No. 09100668.
  • CA3 Remands Past Persecution Claim To BIA(94 KB - 9/30/2009)
    The Court remanded, holding that the BIA’s Denial of Petitioner’s past persecution claim was not supported by substantial evidence, where Petitioner presented evidence that she witnessed a brutal assault on a family member. (Camara v. Attorney General of the United States, 09/04/09). AILA Doc. No. 09093063.
  • CA3 Finds Appellant Failed to Prove Written Waiver of Rights in Deportation Proceeding was Invalid(102 KB - 4/15/2009)
    The court denies the appeal concluding that when challenging the validity of a written waiver of rights in a deportation proceeding, the alien bears the burden of proving that the waiver is invalid. Also finds that the appellant failed to demonstrate the prerequisites for collaterally attacking his deportation. (Richardson v. United States, 3/4/09). AILA Doc. No. 09041560.
  • CA3 Vacates Reinstatement Determination, Remands Because of Factual Challenge(76 KB - 3/12/2009)
    Petitioner’s legal challenge to reinstatement procedures fails. However, the court vacates and remands to ICE because of petitioner’s claim on the merits. Among petitioner’s claims is that prior deportation order was invalidated by federal district court. (Ponta-Garcia v. Attorney General of the United States, 2/20/09). AILA Doc. No. 09031264.
  • CA3 Finds Surviving Spouse Does Not Qualify as an Immediate Relative(106 KB - 3/10/2009)
    The court grants the govt.’s motion to dismiss and reverses the District Ct.’s order that USCIS process the surviving spouse’s I-130 and I-485. Concludes that a foreign national married to a U.S. citizen does not remain an “immediate relative” if the couple is married less than two years when the citizen spouse dies. (Robinson v. Napolitano, 2/2/09). AILA Doc. No. 09031069.