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2006 - 2005

  • CA10 Extends St. Cyr to Individuals Who Waived Appeal of Their Convictions Pre-IIRAIRA (10/6/2006)
    The court held that the application of IIRAIRA §304(b), which eliminated relief under INA §212(c), to individuals who proceeded to trial, but waived their right to appeal their aggravated felony convictions when §212(c) relief was potentially available, is impermissibly retroactive. (Hem v. Maurer, 08/18/06). AILA Doc. No. 06100610.
    AILA Doc. No. 06100610.
  • CA10 Finds Adverse Credibility Finding Not Supported by the Record (8/28/2006)
    The court held that the mere absence of corroborating evidence is not a sufficient basis for an adverse credibility finding, nor is the fact that Petitioner entered the country with a passport that had several missing pages. The court also rejected the IJ’s reliance on her sisters’ failure to testify on her behalf. (Solomon v. Gonzales, 7/21/06). AILA Doc. No. 06082867.
    AILA Doc. No. 06082867.
  • CA10 Amends Opinion Holding INA §245(i) Trumps §212(a)(9)(C)(i)(I) (8/25/2006)
    The court amended its opinion but continued to hold that Congress intended to permit §245(i) adjustment of status for persons “permanently” barred from admission for reentering or attempting to reenter the U.S. illegally after having been unlawfully present for an aggregate of more than one year. (Padilla-Caldera v. Gonzales, 06/19/06). AILA Doc. No. 06082561.
    AILA Doc. No. 06082561.
  • CA10 Refuses to Apply CA9 Law on Immigration Consequences of CA9 Conviction (8/23/2006)
    Although Petitioner was convicted within the jurisdiction of the Ninth Circuit, the court refused to apply Ninth Circuit law to determine whether his conviction stood for immigration purposes because his immigration proceedings took place in the Tenth Circuit. (Ballesteros v. Ashcroft, 06/14/06). AILA Doc. No. 06082369.
    AILA Doc. No. 06082369.
  • CA10 Discusses Grounds for Contesting Removal under the Visa Waiver Program (8/10/2006)
    The court held that the district director did not err in executing an order of removal against Petitioner, who entered the U.S. under the Visa Waiver Program, without first considering his self-petition for classification as a battered spouse and adjustment of status. (Schmitt v. Maurer, 06/20/06)
    AILA Doc. No. 06081069.
  • CA10 Considers Timeliness of Asylum Application under REAL ID Act (6/19/2006)
    The court held that the bar to review of one-year deadline claims was “abrogated” by the REAL ID Act to the extent a petitioner’s challenge to a timeliness determination raises a constitutional claim or a question or law. The court found it had jurisdiction and that the BIA erred in its interpretation of the statute. (Diallo v. Gonzales, 5/12/06). AILA Doc. No. 06061967.
    AILA Doc. No. 06061967.
  • CA10 Reverses Adverse Credibility Determination in FGM Asylum Case (5/22/2006)
    The court held that there was no logical explanation for the IJ’s determination that three documents submitted by Petitioner’s mother regarding her marital status were unreliable. The court also faulted the IJ and BIA for flawed reasoning in relying on incomplete and stale data from the Department of State. (Uanreroro v. Gonzales, 4/6/06). AILA Doc. No. 06052269.
    AILA Doc. No. 06052269.
  • CA10 Holds Mandatory 30-Day BIA Appeal Deadline Not Jurisdictional (5/19/2006)
    The court held that the BIA cannot review a late-filed appeal if a party objects. However, if the party fails to timely object to the late filing, the objection is forfeited and the BIA can hear the appeal. (Huerta v. Gonzales, 4/11/06). AILA Doc. No. 06051911.
    AILA Doc. No. 06051911.
  • CA10 Finds No Jurisdiction to Review One-Year Asylum Deadline And Errors in Transcript or Translation Did Not Violate Due Process (5/8/2006)
    The court cited INA § 208(a)(3), not the REAL ID Act, to support the finding that it lacked jurisdiction to review the one-year deadline argument. The court also held that Petitioner failed to show that errors in the translation or transcript violated his due process because he failed to show any prejudice. (Panjaitan v. Gonzales, 3/28/06). AILA Doc. No. 06050867.
    AILA Doc. No. 06050867.
  • CA10 Affirms VAWA Cancellation Denial (1/9/2006)
    The court held it lacked jurisdiction under INA §242(a)(2)(B) to review Petitioner’s claims that the BIA erred in finding she failed to establish “extreme cruelty” and denied her claim that BIA improperly required her to provide additional evidence about the incidents of marital rape on the merits. (Perales-Cumpean v. Gonzales, 11/25/05). AILA Doc. No. 06010963.
    AILA Doc. No. 06010963.
  • CA10 Finds No Past Persecution and Says Internal Relocation within Indonesia is Reasonable (11/22/2005)
    The Court found that two minor incidents eight years apart did not amount to past persecution. The Court also upheld the IJ’s finding that internal relocation to Christian cities or districts was possible within Indonesia. (Tulengkey, 10/13/05). AILA Doc. No. 05112260.
    AILA Doc. No. 05112260.
  • CA10 Finds Jurisdiction to Review Non-Discretionary Determinations Regarding Cancellation Eligibility (10/31/2005)
    The court held that INA § 242(a)(2)(B) does not bar review of non-discretionary statutory determinations for cancellation eligibility, and that the calculation of absence from the U.S. is such a non-discretionary determination. (Valdiva v. Gonzales, 9/13/05).
    AILA Doc. No. 05103163.
  • CA10 Says §245(i) Trumps §212(a)(9)(C)(I) (10/21/2005)
    The court held that Congress, in enacting the LIFE Act, intended people to adjust status under INA §245(i) even if they are subject to INA §212(a)(9)(C)(i)(I)’s “permanent” bar for having been unlawfully present for an aggregate period of over one year and then re-enter or attempt to reenter illegally. (Padilla-Caldera v. Gonzales, 10/18/05). AILA Doc. No. 05102140.
    AILA Doc. No. 05102140.
  • CA10 Holds Past FGM Constitutes Persecution and Adopts BIA’s Acosta Definition of Particular Social Group (10/17/2005)
    In remanding asylum claim by Senegalese woman, the Court held that past FGM constitutes persecution. The Court adopted the BIA’s definition of particular social group set forth in Acosta and remanded the case to the BIA to frame Petitioner’s particular social group and address other issues. (Niang, 9/8/05). AILA Doc. No. 05101771.
    AILA Doc. No. 05101771.
  • CA10 Declines to Adopt Definition of a Particular Social Group in Rejecting Asylum Claim of Honduran Debtors (6/7/2005)
    The Tenth Circuit held that regardless of which “particular social group” definition was applied in Petitioners’ case, being small businessmen, whose businesses were ruined by Hurricane Mitch, and who are indebted to private creditors, failed to meet any of the circuit courts’ tests. Petitioners were found ineligible for relief. (Cruz-Funez v. Gonzales, 5/2/05). AILA Doc. No. 05060761.
    AILA Doc. No. 05060761.
  • CA10 Overturns Negative Credibility Finding Because IJ Viewed Petitioner’s Claim “Through an American Lens” (4/11/2005)
    The Court found that the IJ made several unsupported assumptions about Algeria, demonstrating a view of the Algerian form of due process that was inconsistent with State Department reports. The Court further ordered that the BIA consider the Petitioner’s CAT claim, which the IJ had failed to do. (Chaib v. Ashcroft, 2/14/05). AILA Doc. No. 05041166.
    AILA Doc. No. 05041166.
  • CA10 Reverses District Court Dismissal of Mandamus Action on Jurisdictional Grounds (3/18/2005)
    Because Plaintiff alleged that INS failed to carry out the non-discretionary task of adjudicating his adjustment application, the court found that the district court had jurisdiction over his mandamus action. However, the court affirmed the district court’s dismissal on other grounds. (Rios v. Ziglar, 2/16/05). AILA Doc. No. 05031861.
    AILA Doc. No. 05031861.
  • CA10 Reverses Removal Order Based on Vacated Conviction Where Basis of Vacatur Unclear (3/14/2005)
    Because the record was unclear as to whether the vacatur of Petitioner’s conviction was merits-based or equity-based, the court found that INS failed to meet its burden of proving removability by “clear, unequivocal, and convincing evidence,” and reversed the removal order. (Cruz-Garza v. Ashcroft, 2/2/05). AILA Doc. No. 05031461.
    AILA Doc. No. 05031461.
  • CA10 Upholds Retroactive Application of Reinstatement Statute (2/8/2005)
    The court held that application of INA § 241(a)(5) would not have impermissible retroactive effect because petitioner was not eligible for adjustment of status before INA § 241(a)(5)’s April 1, 1997 effective date. (Fernandez-Vargas v. Ashcroft, 1/12/05). AILA Doc. No. 05020835.
    AILA Doc. No. 05020835.
  • CA10 Rejects Equal Protection Argument for Treatment of Lapsed Foreign Drug Conviction As a Disposition (1/13/2005)
    The Court found a rational basis for distinguishing Petitioner’s “lapsed” conviction for drug possession under Korean law from a ruling under the FFOA because: (1) Congress is less familiar with expungements under foreign law; and (2) the Petitioner received a longer period of probation than permitted under the FFOA. (Elkins v. Comfort, 12/20/04). AILA Doc. No. 05011372.
    AILA Doc. No. 05011372.