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2007

  • CA3 Finds BIA’s Denial of MTR Asylum Claim “Irrational and Arbitrary” (10/31/2007)
    The court held that the BIA acted arbitrarily by rejecting the motion to reopen despite granting an earlier motion in an unpublished decision that was materially indistinguishable. The court also found the BIA abused its discretion in finding that Petitioner had not shown prima facie eligibility for asylum. (Shardar v. Att’y Gen. of U.S., 9/19/107). AILA Doc. No. 07103160.
    AILA Doc. No. 07103160.
  • CA3 Finds Fabrication in Time-Barred Asylum Application Was Not “Material” (10/29/2007)
    The court held that because the asylum application was time-barred, the falsehood had neither the natural tendency, nor the capability of influencing the decision of the IJ or the BIA. The court concluded that the statement was not “material” and it was an error of law to conclude the application was frivolous. (Luciana v. U.S. Att’y Gen., 9/17/07). AILA Doc. No. 07102963.
    AILA Doc. No. 07102963.
  • CA3 Discusses Presumption of Receipt for Hearing Notices Sent by Regular Mail (10/29/2007)
    The court held that for purposes of rescinding an in absentia removal order, a strong presumption that the petitioner received the hearing notice applies only when the notice is sent by certified mail and that a weaker presumption of receipt applies when the notice is sent by regular mail. (Gonzalez v. Att’y Gen. of the U.S., 10/22/07). AILA Doc. No. 07102962.
    AILA Doc. No. 07102962.
  • CA3 Remands Honduran Gang Recruitment Case Due to Legal and Factual Errors (10/23/2007)
    The court held that the IJ erred by requiring Petitioner to prove that the government refused to protect him rather than that the government was unable or unwilling to protect him. The court found that the IJ erred in a number of other areas, including the disregard of several key pieces of evidence. (Valdiezo-Galdamez v. U.S. Att’y Gen., 9/7/07). AILA Doc. No. 07102361.
    AILA Doc. No. 07102361.
  • CA3 Finds Jurisdiction Over Legal and Constitutional Challenges to Reinstated Orders (10/16/2007)
    The court held that INA §242(a)(2)(D) permits jurisdiction to review constitutional claims and questions of law as they apply to final orders that have been reinstated under INA §241(a)(5). (Debeato v. Att’y Gen. of the U.S., 10/9/07). AILA Doc. No. 07101662.
    AILA Doc. No. 07101662.
  • CA3 Interprets “Actions Taken” Under IIRAIRA §321(c) (10/12/2007)
    The court held that “actions taken” under IIRAIRA §321(c) refers to orders and decisions of the immigration judge or BIA, which apply the “aggravated felony” definition under INA §101(a)(43) to determine the availability of relief from removal. (Biskupski v. Att’y Gen. of the United States, 9/25/07). AILA Doc. No. 07101266.
    AILA Doc. No. 07101266.
  • CA3 Affords 30-Day Grace Period for Narrow Class Seeking Judicial Review Post-REAL ID (9/17/2007)
    The Court held that criminal deportees who received a final order of removal but did not file a habeas petition in district court before REAL ID’s effective date, are afforded a 30-day grace period following the date of enactment—until June 11, 2005—to file a claim. (Kolkevich v. Att’y Gen. of the U.S., 9/6/07). AILA Doc. No. 07091761.
    AILA Doc. No. 07091761.
  • CA3 Holds Husband May Stand in Shoes of Wife in Coercive Pop. Control Case (8/6/2007)
    In addressing this question of first impression, the court upheld the BIA’s determination that one spouse’s qualifications for asylum may be imputed to the other spouse in coercive population control claims. The court accorded Chevron deference to the BIA and found Petitioners were eligible for asylum. (Chen v. Att’y Gen. of USA, 6/20/07) AILA Doc. No. 07080671.
    AILA Doc. No. 07080671.
  • CA3 Finds BIA Erred in Applying Ineffective Assistance of Counsel Standard (7/27/2007)
    The court held that the BIA abused its discretion in denying the motion to reopen filed by an asylum applicant from Guinea who received poor legal assistance from his attorney. The court used this case to “clarify the analytical framework for claims of ineffective assistance of counsel in removal proceedings.” (Fadiga v. Att’y Gen. of USA, 6/15/07). AILA Doc. No. 07072763.
    AILA Doc. No. 07072763.
  • CA3 Holds NY Conviction for Second-Degree Possession of a Weapon is a Crime of Violence (7/16/2007)
    The court held that a conviction for second-degree possession of a weapon in violation of New York Penal Law §265.03 is a crime of violence under 18 USC §16(b) and therefore, an aggravated felony. (Henry v. BICE, 7/11/07). AILA Doc. No. 07071669.
    AILA Doc. No. 07071669.
  • CA3 Holds Stop-Time Rule Does Not Permit New Period of Continuous Presence to Begin Following Crime (7/9/2007)
    For purposes of the stop-time rule, the court rejected the argument that the commission of a crime only ends one period of continuous presence and that a new one begins after the crime is committed. Petitioner’s continuous presence ended when he committed the offense of petty theft in 1985. (Briseno-Flores v. Att’y Gen. of the U.S., 6/26/07). AILA Doc. No. 07070964.
    AILA Doc. No. 07070964.
  • CA3 Overturns Adverse Credibility Finding in Nigerian Asylum Claim (5/31/2007)
    The court found that the inconsistencies cited by the IJ led it to conclude that the IJ failed to take into account persuasive evidence that not only explained the inconsistencies, but also supported Petitioner’s claim of persecution. The court also found that the IJ erred in finding a lack of corroborating evidence. (Chukwu v. Gonzales, 4/13/07). AILA Doc. No. 07053160.
    AILA Doc. No. 07053160.
  • CA3 Discusses Jurisdiction-Stripping and Transfer Provisions of REAL ID (5/3/2007)
    In the context of §106 of the REAL ID Act, the court held that only challenges that directly implicate a removal order may be properly transferred. To the extent that Petitioner sought declaratory and injunctive relief with respect to the denial of his I-730, the court remanded the case back to district court. (Nnadika v. Att’y Gen., 4/27/07). AILA Doc. No. 07050366.
    AILA Doc. No. 07050366.
  • CA3 Finds Jurisdiction to Review Asylum Claim by VWP Entrant (4/18/2007)
    The court held that a denial of a Visa Waiver Program entrant’s application for asylum, withholding of removal and relief under CAT constitutes a “final order of removal” within the meaning of INA §242(a)(1), and is therefore subject to review by the court of appeals. (Shehu v. Att’y Gen. of the U.S., 4/9/07). AILA Doc. No. 07041867.
    AILA Doc. No. 07041867.
  • CA3 Finds No Jurisdiction Over Challenge to the 1-Year Asylum Deadline Veiled as Due Process Claim (4/18/2007)
    The court rejected Petitioner’s attempt to recast his factual challenge as a due process claim and held that it lacked jurisdiction to review the BIA’s determination that Petitioner did not demonstrate extraordinary circumstances to excuse his failure to comply with the one-year asylum filing deadline. (Jarbough v. Att’y Gen. of the U.S., 4/11/07). AILA Doc. No. 07041866.
    AILA Doc. No. 07041866.
  • CA3 Upholds Asylum Denial of Angolan Army Officer (4/3/2007)
    The court held that Petitioner’s five-day detention during which he sustained an injury to his jaw did not amount to persecution. The court also found that Petitioner failed to establish a well-founded fear of persecution noting that the record showed Petitioner had always been valued and trusted by the Angola army. (Kibinda v. Gonzales, 2/20/07). AILA Doc. No. 07040363.
    AILA Doc. No. 07040363.
  • CA3 Extends St. Cyr to All Individuals Convicted of a Pre-IIRAIRA Aggravated Felony (3/26/2007)
    The court held that IIRAIRA’s repeal of §212(c) cannot be applied retroactively to preclude from relief otherwise eligible persons convicted of a pre-IIRAIRA aggravated felony, whether by plea or by trial, because the repeal attached new legal consequences to the conviction and resulting sentence. (Atkinson v. Att’y Gen. of the U.S., 3/8/07). AILA Doc. No. 07032661.
    AILA Doc. No. 07032661.
  • CA3 Remands for Analysis of “Particularly Serious Crime” Bar to CAT Relief (3/19/2007)
    The court remanded the case to the BIA, finding that the IJ failed to discuss why Petitioner’s conviction did not meet the requirements for an exception to the “particularly serious crime” presumption and improperly rejected Petitioner’s CAT claim without discussing evidence that he was likely to face torture. (Lavira v. U.S. Att’y Gen., 2/26/07). AILA Doc. No. 07031964.
    AILA Doc. No. 07031964.
  • CA3 Holds PA Controlled Substance Conviction is Not an Aggravated Felony (3/8/2007)
    The court held that a conviction under 35 Pa. Cons. Stat. Ann. §780-113(a)(30), which criminalizes the “manufacture, delivery or possession with intent to manufacture or deliver, a controlled substance” without any additional facts, cannot constitute an aggravated felony. (Jeune v. Att’y Gen. of U.S., 2/20/07). AILA Doc. No. 07030869.
    AILA Doc. No. 07030869.
  • CA3 Holds “Crime of Violence” Has No Statutory Counterpart for §212(c) Relief (3/8/2007)
    The court upheld Matter of Brieva, finding that Petitioner was not eligible for relief under former INA §212(c) because he was found removable for a “crime of violence” which has no statutory counterpart ground of exclusion. (Caroleo v. Gonzales, 2/7/07). AILA Doc. No. 07030868.
    AILA Doc. No. 07030868.
  • CA3 Joins Other Circuits in Rejecting BIA’s Matter of S-V- CAT Decision (2/20/2007)
    The court rejected the BIA’s conclusion that the acquiescence of a public official that must be established under CAT requires actual knowledge of the tortuous activity as required in Matter of S-V-. The court concluded that it is sufficient to show that the government is “willfully blind” to the activity. (Silva-Rengifo v. Gonzales, 1/9/07). AILA Doc. No. 07022061.
    AILA Doc. No. 07022061.
  • CA3 Finds No Constitutional Right to Asylum and Upholds IJ’s Asylum Denial (1/4/2007)
    The court held that there is no constitutional right to asylum. The court noted that given the discretionary nature of asylum, Petitioner’s argument that the delay violated due process must fail at the threshold. The court also held that the IJ’s adverse credibility finding was supported by substantial evidence. (Mudric v. Gonzales, 11/24/06). AILA Doc. No. 07010464.
    AILA Doc. No. 07010464.