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2011

  • CA2 Finds District Court Erred in Derivative Citizenship Case(41 KB - 12/29/2011)
    The court found that the district court erred in relying on an unenforceable custody award to determine the Petitioner did not derive citizenship from his father, and vacated and remanded the case to the district court. (Garcia v. ICE, 12/29/11)
    AILA Doc. No. 11122964.
  • CA2 Says NY Third-Degree Promoting Prostitution Is Not an Aggravated Felony(27 KB - 9/28/2011)
    The court held that a violation of NY Penal Law §§20.00 and 230.25, for promoting prostitution in the third degree, is not an aggravated felony under INA §101(a)(43)(K)(i). (Prus v. Holder, 9/28/11)
    AILA Doc. No. 11092864.
  • CA2 Says Petitioner’s Undocumented Husband Was “Available” to Testify(97 KB - 9/26/2011)
    The court held that Petitioner’s undocumented husband was “available” to testify despite his fear of apprehension, noting that he would have been eligible for derivative asylum status and had every incentive to testify on his wife’s behalf. (Chen v. Holder, 9/23/11)
    AILA Doc. No. 11092663.
  • CA2 Says Firm Resettlement Inquiry Is Not Limited to Post-Persecution Ties(28 KB - 9/20/2011)
    The court held that the firm resettlement inquiry requires consideration of all ties established by an alien in a third country before entering the U.S., including ties formed prior to the persecution giving rise to the asylum claim. (Tchitchui v. Holder, 9/19/11)
    AILA Doc. No. 11092060.
  • CA2 Refuses to Dismiss Based on Fugitive Disentitlement Doctrine(272 KB - 7/25/2011)
    Comparing the facts to Gao v. Holder where it applied the fugitive disentitlement doctrine to dismiss the case, the court found Gao’s case “extreme” and Petitioner’s case more “normal” and denied the government’s motion to dismiss. (Wu v. Holder, 7/19/11)
    AILA Doc. No. 11072570.
  • CA2 Awards EAJA Fees in Colombian Asylum Case(41 KB - 7/11/2011)
    The court found that the BIA committed significant errors of law that prejudiced Petitioners’ case such that the position of the government was not substantially justified. The court awarded $9,690 in fees and $751.04 in costs. (Gomez-Beleno v. Holder, 7/7/11)
    AILA Doc. No. 11071163.
  • CA2 on Priority Date Retention under the CSPA(37 KB - 7/1/2011)
    The court found that the Child Status Protection Act, INA §203(h)(3), does not entitle an alien to retain the priority date of an aged-out family preference petition if the petition cannot be “converted to [an] appropriate category.” (Li v. Renaud, 6/30/11)
    AILA Doc. No. 11070163.
  • CA2 on Burden of Proof and Evidence of Good Faith Marriage(61 KB - 6/8/2011)
    The court held that the burden is on the alien to prove a good faith marriage for waiver of the joint removal of conditions and that the IJ did not err in attaching significance to the couple’s post-marriage actions. (Boluk v. Holder, 6/7/11)
    AILA Doc. No. 11060832.
  • CA2 Remands for BIA Clarification on the Concept of Legitimation(284 KB - 6/1/2011)
    In a case involving a claim for derivative citizenship, the court remanded to the BIA to clarify how it interprets “legitimation” under INA §101(c)(1) and to explain how its understanding of legitimation applies to Jamaican law. (Watson v. Holder, 5/31/11)
    AILA Doc. No. 11060160.
  • CA2 Asks BIA to Reconsider Continuance for Arriving Alien(31 KB - 5/27/2011)
    In a case involving an arriving alien adjustment of status, the court found that the BIA erred in denying Petitioner’s continuance on the ground that it lacked jurisdiction to adjudicate adjustment applications for arriving aliens. (Freire v. Holder, 5/27/11)
    AILA Doc. No. 11052764.
  • CA2 on “Parole” in the Adjustment of Status Context(63 KB - 4/28/2011)
    The court held that the requirement that an alien be “paroled into the United States” in order to seek adjustment of status under INA §245(a) is not satisfied by the alien’s release on “conditional parole” under INA §236(a)(2)(B). (Cruz-Miguel v. Holder, 4/27/11)
    AILA Doc. No. 11042862.
  • CA2 Says 30-Day PFR Deadline Does Not Violate Suspension Clause(100 KB - 3/4/2011)
    The court found that the motion to reopen is an effective substitute for habeas review, the motion to reopen process cannot be unilaterally terminated by the government, and agency denials are subject to meaningful judicial review. (Luna & Thompson v. Holder, 3/3/11)
    AILA Doc. No. 11030431.
  • CA2 Finds No Due Process Violation in Service of NTA on Minor(25 KB - 3/1/2011)
    The court held that a defect in the service of a notice to appear on a minor alien under 8 CFR §103.5a(c)(2)(ii), standing alone, does not implicate the minor alien’s fundamental rights. (Nolasco v. Holder, 2/25/11)
    AILA Doc. No. 11030166.
  • CA2 on Illegal Entry and Reinstatement of Removal(15 KB - 3/1/2011)
    The court upheld the reinstatement of removal under INA §241(a)(5), rejecting Petitioner’s argument that her re-entry into the United States using another person’s passport did not constitute an illegal entry for reinstatement purposes. (Beekhan v. Holder, 2/25/11)
    AILA Doc. No. 11030163.
  • CA2 Asks BIA to Clarify “Aggravating Circumstances” Standard in Forced IUD Case(143 KB - 2/2/2011)
    The court vacated Matter of M-F-W-, and remanded to the BIA to articulate the standard it applied in determining that aggravating circumstances did not exist to raise Petitioner’s forced IUD insertion to the level of persecution. (Wong v. Holder, 2/1/11)
    AILA Doc. No. 11020261.
  • CA2 Finds New York Penal Law §263.05 Is an Aggravated Felony(78 KB - 1/31/2011)
    The court held that New York Penal Law §263.05, use of a child in a sexual performance, is not divisible, and any conviction under it is categorically an aggravated felony offense involving sexual abuse of a minor. (Oouch v. Holder, 1/28/11)
    AILA Doc. No. 11013162.
  • CA2 Finds No Proof that VWP Entrant Waived Right to Contest Removal(259 KB - 1/27/2011)
    The court declined to adopt a presumption that a person cannot enter on a visa waiver without automatically waiving the right to contest removal, and remanded, finding the record silent as to whether Petitioner actually waived his right. (Galluzzo v. Holder, 1/26/11)
    AILA Doc. No. 11012761.
  • CA2 Upholds BIA Denial of Chinese Family Planning Claim(263 KB - 1/26/2011)
    The court found that the harm inflicted on Petitioner, who was punched repeatedly by family planning officials and detained for two days after his wife was taken away for an abortion, did not rise to the level of persecution. (Liu v. Holder, 1/24/11)
    AILA Doc. No. 11012660.
  • CA2 Clarifies Prior Holding on Cancellation of Removal Stop-Time Rule(254 KB - 1/19/2011)
    The court clarified that language in prior case law indicating that the stop-time rule is triggered on the date the alien commits a predicate offense, not upon conviction, is not dicta and precludes Petitioner’s contrary argument. (Baraket v. Holder, 1/18/11)
    AILA Doc. No. 11011973.
 
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