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2005

  • CA3 Finds IJ’s Adverse Credibility Determination Was Erroneous (12/12/2005)
    The court found that even though it must afford substantial deference to the IJ's adverse credibility finding, the contradiction between the doctor’s note and the petitioner’s testimony was created by the IJ’s own strained interpretation of the note. (Butt v. Gonzales, 11/23/05)
    AILA Doc. No. 05121260.
  • CA3 Addresses New INA §242(a)(2)(D) (11/30/2005)
    Pursuant to new INA §242(a)(2)(D), added by §106(a) of the REAL ID Act, the court concluded that it may review the merits of petitions for review filed by individuals with criminal convictions which raise legal or constitutional claims. (Papageorgiou v. Gonzales, 6/24/05)
    AILA Doc. No. 05113014.
  • CA3 Strikes Down Regulation Barring “Arriving Aliens” From Adjusting In Proceedings (10/24/2005)
    The court joined the First Circuit in holding that 8 CFR §1245.1(c)(8) is invalid, reasoning that the regulation is based on an impermissible construction of INA §245(a), which authorizes parolees to adjust status. (Zheng v. Gonzales, 9/8/05)
    AILA Doc. No. 05102462.
  • CA3 Holds Timely Filed MTR Tolls Voluntary Departure (10/7/2005)
    Where Petitioner filed a motion to reopen prior to the expiration of the voluntary departure period granted under current INA §240B(d), the court held that “tolling applies during the period of time that the BIA deliberates.” (Kanivets v. Ashcroft, 9/7/05)
    AILA Doc. No. 05100767.
  • CA3 Finds Retroactive Application of Reinstatement Statute Improper (10/7/2005)
    The court found that §241(a)(5) could not be applied retroactively because it would eliminate Petitioner’s pre-existing right to apply for voluntary departure, which he possessed during his 1988 illegal re-entry. (Dinnal v. Gonzales, 9/1/05)
    AILA Doc. No. 05100764.
  • CA3 Finds BIA’s Rationale for Denying Asylum to Tanzanian Boy Scout Deficient (10/3/2005)
    The court found that the BIA misinterpreted Petitioner’s evidence about street children and gave unwarranted weight to the fact that his parents were not persecuted. (Lusingo v. Gonzales, 8/19/05)
    AILA Doc. No. 05100361.
  • CA3 Finds CAT Eligibility Is Established If the Cumulative Probability of Torture Exceeds 50% (10/3/2005)
    The court found that the proper application of the CAT regulations merely requires the petitioner to prove it is more likely than not he faces torture and that the cumulative probability of torture exceeds 50%. (Kamara v. Gonzales, 8/29/05)
    AILA Doc. No. 05100360.
  • CA3 Defines “Last Habitually Resided” in Refugee Definition (9/9/2005)
    The court found that the IJ’s interpretation of “last habitually resided” based on the INA’s definition of “residence,” was permissible and agreed with IJ’s reliance on the length of time Petitioner stayed in Serbia, saying “habitual” means “long use.” (Paripovic v. Gonzales, 8/12/05)
    AILA Doc. No. 05090962.
  • CA3 Holds BIA’s Findings Were Unsupported by the Record (8/24/2005)
    The court found that the BIA’s basis for rejecting Petitioner’s claim was unsupported by the record and that the BIA impermissibly focused on general unrest in Colombia and the fact that Petitioner’s parents and brothers remained in Colombia unharmed. (Vente Vente v. Gonzales, 7/22/05)
    AILA Doc. No. 05082462.
  • CA3 Says Pennsylvania Simple Assault Is Not a Crime of Violence (8/15/2005)
    The court ruled that a conviction in Pennsylvania for simple assault is not a crime of violence and is therefore, not an aggravated felony. (Popal v. Gonzales, 7/29/05)
    AILA Doc. No. 05081564.
  • CA3 Holds Honduran Street Children Are Not a Cognizable Social Group (8/10/2005)
    The court found that the three main elements of Petitioner’s social group—poverty, homelessness and youth—were too vague and broad to be characteristics of a protected social group for asylum purposes. (Escobar v. Gonzales, (7/29/05)
    AILA Doc. No. 05081062.
  • CA3 Addresses REAL ID’s Impact on Pending Habeas Appeals (8/8/2005)
    The court held that habeas appeals pending on 5/11/05 may be reviewed as petitions for review and declined to transfer the case notwithstanding the fact that the IJ hearing was conducted in another circuit because the case had been briefed and argued. (Bonhometre v. Gonzales, 7/15/05)
    AILA Doc. No. 05080864.
  • CA3 Grants EAJA Fees For Winning Remand to the BIA (8/8/2005)
    Joining other circuits, the Third Circuit applied the rationale in Shalala and concluded that a petitioner who wins remand to the BIA is a prevailing party for EAJA purposes regardless of whether the person ultimately prevails in immigration proceedings. (Johnson v. Gonzales, 7/25/05)
    AILA Doc. No. 05080862.
  • CA3 Orders New Hearing Due to Abusive Nature of Original IJ (7/13/2005)
    The court found that IJ's findings on credibility and the willingness of the government to protect Trokosi slaves were not supported by substantial evidence, and ordered a new hearing where the IJ engaged in brow beating and insensitive questioning. (Fiadjoe v. Gonzales, 6/14/05)
    AILA Doc. No. 05071364.
  • CA3 Criticizes BIA for “Paucity of Analysis” (7/7/2005)
    The court found that Petitioner had suffered past persecution by the Albanian police who inflicted multiple beatings that caused serious injuries, and remanded the case for findings on corroboration and changed conditions. (Voci v. Gonzales, 6/6/05)
    AILA Doc. No. 05070768.
  • CA3 Overturns BIA by Applying Mixed Motive Analysis (6/7/2005)
    The court rejected the argument that the child had not met his burden of proof where the motivation for his arrest was based in part on a legitimate law enforcement purpose, noting that persecution need not be motivated solely by a protected ground. (Singh v. Gonzales, 5/5/05)
    AILA Doc. No. 05060764.
  • CA3 Overturns Negative Credibility Finding Against Chinese Pediatrician Who Exposed Infanticide (6/7/2005)
    The court held that the IJ’s negative credibility finding was based on speculation and conjecture surrounding evidence including Petitioner’s distinction between infanticide and abortion, her contacts with a reporter, and the facts surrounding her escape. (Cao v. Gonzales, 5/12/05)
    AILA Doc. No. 05060760.
  • CA3 Finds that Continuous Physical Presence Clock Can Restart (6/1/2005)
    The court held that an individual who lawfully reentered the U.S. after committing a crime that renders him or her inadmissible may begin to accrue continuous physical presence for cancellation of removal. (Okeke v. Gonzales, 5/18/05)
    AILA Doc. No. 05060166.
  • CA3 Finds Child of Parents Subject to Coercive Population Controls Is Not Eligible for Asylum (5/9/2005)
    The court concluded that Petitioner could not establish eligibility for asylum by virtue of the harm his parents suffered as a result of China’s coercive population control methods because his interest in the birth of the additional child is remote. (Wang v. Gonzales, 4/27/05)
    AILA Doc. No. 05050976.
  • CA3 Says IJ’s Negative Credibility Finding Was Based on His “Unsupported Personal Opinion” (5/9/2005)
    The court found that a Georgian asylum-seeker was entitled to have his asylum case remanded because the IJ’s negative credibility finding was not supported by substantial evidence. (Jishiashvili v. Atty. Gen. of U.S., 4/1/05)
    AILA Doc. No. 05050970.
  • CA3 Finds Deliberate Imposition of Severe Economic Disadvantage Is Persecution (5/9/2005)
    The court held that the economic restrictions faced by Petitioner, which included a 1200 yuan fine, blacklisting from government employment, and confiscation of personal property, were severe and amounted to persecution in the aggregate. (Li v. Atty. Gen. of U.S., 3/10/05)
    AILA Doc. No. 05050963.
  • CA3 Says Racial Slurs Not Proof of Ethnic Persecution (4/11/2005)
    The court found that use of racial slurs by Petitioners’ attackers was not adequate proof that the attackers were motivated by ethnicity, and that two robberies did not amount to persecution because they resulted in only theft of property and minor injuries. (Lie v. Ashcroft, 2/7/05)
    AILA Doc. No. 05041167.
  • CA3 Says IJ’s Frivolousness Finding Violated Due Process (4/7/2005)
    Noting that a finding of frivolousness is extreme because it permanently bars individuals from any immigration benefit, the court held that the IJ violated Petitioner's due process rights by failing to comply with legal requirements to make such a finding. (Muhanna v. Gonzales, 3/3/05)
    AILA Doc. No. 05040769.
  • CA3 Finds Deadline for In Absentia MTR Can Be Equitably Tolled (4/4/2005)
    The court found that the 180-day time limit on filing a motion to reopen an in absentia order can be equitably tolled and that misrepresentations about legal representation constitute a basis for equitable tolling. (Borges v. Gonzales, 3/30/05)
    AILA Doc. No. 05040463.
  • CA3 Says Voluntary Departure Overstay Bar Does Not Apply to MTRs Filed Before Departure Date In Pre-IIRIRA Cases (3/18/2005)
    The court reasoned that the failure to act on a motion to reopen filed prior to the expiration of the voluntary departure period is an “exceptional circumstance,” rejecting the BIA’s contrary holding in Matter of Shaar. (Barrios v. U.S. Att'y Gen., 2/25/05)
    AILA Doc. No. 05031864.
  • CA3 Finds IJ’s Conclusions on Asylum Inconsistent with Record (3/14/2005)
    The court found that the IJ’s ruling against Petitioner on whether she was subjected to “state-sponsored” religious persecution in China was inconsistent with record and not supported by substantial evidence. (Wu v. Ashcroft, 1/4/05)
    AILA Doc. No. 05031463.
  • CA3 Finds Lack of Authenticated Corroborating Documentation Is Not a Basis for Adverse Credibility (3/11/2005)
    The court found that the BIA improperly sustained the IJ’s adverse credibility finding which was based primarily on Petitioner’s failure to provide authenticated documents in corroboration of his claim. (Leia v. Ashcroft, 1/4/05)
    AILA Doc. No. 05031162.
 
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