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Cases & Decisions
CA2 Says Affluent Guatemalans Are Not a Particular Social Group
The court held that the BIA’s rulings that social groups require a certain degree of “social visibility” and that the definition of social group must have particular and well-defined boundaries were “sufficient and affirmable.” (
Ucelo-Gomez v. Mukasey
, 11/21/07). AILA Doc. No. 07122868.
CA2 Refuses to Waive Exhaustion Requirement Under INA §242(d)(1)
The court held that the exhaustion requirement under INA §242(d)(1) is jurisdictional and Petitioner’s failure to exhaust his administrative remedies cannot be excused on grounds of futility or manifest injustice. (
Valenzuela Grullon v. Mukasey
, 11/27/07). AILA Doc. No. 07122865.
CA2 Says BIA Abused Discretion in Denying MTR in Chinese Family Planning Case
The court found that the documents submitted in support of the motion to reopen were strikingly similar to the documents in
Shou Yung Guo
, and that the BIA did not indicate that it “paid any attention to the documents at all.” (
Gao v. Mukasey
, 11/19/07) AILA Doc. No. 07121439.
CA2 Rejects BIA Authority to Enter Removal Orders in the First Instance
The court vacated the BIA removal order which was entered following reversal of the IJ’s decision to terminate, finding that the BIA does not have the authority to issue removal orders in the first instance. (
Rhodes-Bradford v. Keisler
, 11/7/07). AILA Doc. No. 07120766.
Matter of J-E-
, Finds Haitian Prison Conditions Not Torture
The court held that the failure to maintain standards of diet, hygiene, and living space in prison does not constitute torture unless conditions are sufficiently extreme and intentionally inflicted. (
Pierre v. Gonzales
, 9/11/07). AILA Doc. No. 07102964.
Matter of Smriko
, Finds Refugees May Be Removed
The court joined the Third and Ninth Circuits in finding no immunity from removal for refugees. The court noted that even if Petitioner had retained refugee status after adjustment he would be subject to removal for drug trafficking. (
Maiwand v. Gonzales
, 9/11/07). AILA Doc. No. 07102360.
CA2 Upholds IJ’s Refusal to Grant Continuance Pending Adjudication of Labor Certification
The court held that the immigration judge did not abuse his discretion in declining to grant multiple continuances in order to permit adjudication of Petitioner’s pending application for labor certification. (
Elbahja v. Keisler
, 10/10/07). AILA Doc. No. 07101663.
CA2 Overturns "Persecutor of Others" Finding
The court held that there must be some evidence that Petitioner engaged in conduct that assisted in the persecution of another and that the link between Petitioner's activities and the arrest of any individual was too attenuated. (
Gao v. Gonzales
, 9/4/07). AILA Doc. No. 07101661.
CA2 Remands, Says BIA Erred in Evaluating Family-Based Social Group Claim
The court concluded that the IJ and BIA erred both in their incomplete characterization of Petitioner’s proposed social group and in their failure to evaluate her claim according to the
Vumi v. Gonzales
, 8/31/07). AILA Doc. No. 07101263.
CA2 Says BIA Must Give Opportunity to Rebut Administrative Notice
The court held that the BIA erred when it failed to give Petitioner notice and the opportunity to rebut its intention to consider as administratively noticed the fact that the Mislosevic regime had been dismantled. (
Burger v. Gonzales
, 8/17/07). AILA Doc. No. 07101262.
CA2 Says IJ Erred in Relying on Restitution Order in Analysis of Crime
The court held that the IJ improperly relied on a restitution order in finding Petitioner’s fraud conviction was an aggravated felony but properly concluded that making false statements to acquire a firearm is a removable offense. (
Dulal-Whiteway v. DHS
, 9/19/07). AILA Doc. No. 07092670.
CA2 Remands to BIA to Give Effect to JRAD
The court held that a JRAD protects from removal based on charges under IIRAIRA’s expanded aggravated felony definition because Congress placed no JRAD limit on the retroactivity of the expanded definition. (
Nguyen v. Chertoff
, 9/13/07). AILA Doc. No. 07092669.
CA2 Rejects Humanitarian Asylum for Lack of Physical/Mental Harm
The court found no evidence of long-lasting physical or mental effects of the persecution Petitioner suffered, which included physical attacks, the rape of his wife in his presence, and burning his house to the ground. (
Jalloh v. Gonzales
, 8/17/07). AILA Doc. No. 07091866.
CA2 Asks BIA for Position on Forced IUD Insertion
The court remanded for the BIA to articulate its position concerning whether, and under what conditions, forced insertion of an IUD constitutes persecution. (
Zheng v. Gonzales
, 8/10/07). AILA Doc. No. 07091764.
CA2 Remands for Clarification of Asylum Frivolousness Guidelines
The court vacated the findings of frivolousness and remanded to allow the BIA to interpret and apply the relevant statutes and regulations governing frivolousness under the BIA's standards in
Matter of Y-L-
Yang v. Gonzales
, 7/31/07). AILA Doc. No. 07090764.
CA2 Remands for Interpretation of “Approvable When Filed” for §245(i) Purposes
The court retained jurisdiction to consider whether the IJ abused her discretion in denying Petitioner's request for a continuance, but remanded to the BIA to determine whether Petitioner was grandfathered for purposes of INA §245(i). (
Butt v. Gonzales
, 8/23/07). AILA Doc. No. 07090462.
CA2 Finds IJ’s Analysis Deficient in Bangladeshi Asylum Claim
The court held that the IJ’s finding that Petitioners failed to show past persecution was deficient in its consideration of claims in the aggregate and included errors in the analysis of several incidents and economic harm. (
Manzur v. DHS
, 7/16/07). AILA Doc. No. 07082761.
CA2 Refuses to Exercise Power to Remand Forced Sterilization Claim
The court declined to remand Petitioner’s case, using its inherent power, based on new documents from another case regarding forced sterilization of unmarried women. (
Ni v. Gonzales
, 7/12/07). AILA Doc. No. 07082064.
CA2 Finds No Jurisdiction to Review Discretionary Denial of Voluntary Departure
The court held that it lacked jurisdiction to review the IJ’s discretionary and factual determinations underlying the denial of Petitioner’s application for voluntary departure. (
Carcamo v. DOJ
, 8/2/07). AILA Doc. No. 07080766.
CA2 Remands for Determination of Whether Defected KGB Agents Constitute PSG
The court noted that it was not its task to determine in the first instance whether “defected KGB agents” constitute a particular social group and remanded to the BIA. (
Koudriachova v. Gonzales
, 6/26/07). AILA Doc. No. 07080670.
CA2 Expands on “Question of Law” Under INA §242(a)(2)(D)
The court held that a question of law under INA §242(a)(2)(D) includes claims that the IJ applied an erroneous legal standard in making a discretionary determination and that the IJ based his decision on a misstatement of record facts. (
Khan v. Gonzales
, 7/26/07). AILA Doc. No. 07073163.
CA2 Says No Per Se Refugee Status for Spouses of Family Planning Victims
The en banc court held that IIRAIRA §601(a), which amended the definition of refugee, is unambiguous and clearly does not extend automatic refugee status to spouses or partners of victims of coercive family planning policies. (
Lin v. DOJ
, 7/16/07). AILA Doc. No. 07073061.
CA2 Upholds BIA Refusal to Terminate Based on Amended Conviction
The court held that the BIA did not err in refusing to terminate proceedings based on Petitioner’s amended conviction because it was secured solely to avoid immigration consequences and was not based on a procedural or substantive defect. (
Saleh v. Gonzales
, 7/17/07). AILA Doc. No. 07072464.
CA2 Upholds Negative Credibility Due to Similar I-589 in Different Case
The court held that an IJ may consider “inter-proceeding” similarities in asylum applications in making a credibility determination and found that the IJ was reasonable in relying on these similarities because of his rigorous approach. (
Ye v. Gonzales
, 6/6/07). AILA Doc. No. 07071668.
CA2 Remands to Consider Whether Extraordinary Circumstances Justify Delay in Appeal
The court held that the Supreme Court’s decision in
Bowles v. Russell
does not require it to overrule
Sun v. DOJ
which held that extraordinary or unique circumstances may justify the untimely filing of a BIA appeal. (
Khan v. Gonzales
, 7/10/07). AILA Doc. No. 07071667.
CA2 on Solicitation Where a Drug Crime Is the Intended Objective
The court held that Petitioner was inadmissible for a controlled substance violation as a result of his solicitation conviction under NY Penal Law §100.05(1), because the solicitation had a drug crime as its intended objective. (
Mizrahi v. Gonzales
, 6/27/07). AILA Doc. No. 07070963.
CA2 Remands to Allow Petitioner to Respond to Administratively Noticed Facts
The court held that the BIA abused its discretion in denying Petitioner’s motion to reopen based solely on administratively noticed facts, without giving Petitioner an opportunity to rebut the inferences drawn from those facts. (
Chhetry v. DOJ
, 6/20/07). AILA Doc. No. 07070561.
CA2 on “Lawfully Admitted for Permanent Residence” in §212(c) Context
The court held that a person who obtains lawful permanent resident status by fraud or mistake has not been “lawfully admitted for permanent residence” for purposes of relief under former INA §212(c). (
De La Rosa v. DHS
, 6/13/07). AILA Doc. No. 07062960.
, Remands for Determination of Whether Deportable Offenses Could Qualify as CIMTs
The court held that the BIA erred in focusing on the grounds of deportation, rather than the particular offenses, to determine §212(c) eligibility. (
Blake v. Carbone
, 6/1/07). AILA Doc. No. 07061160.
CA2 Denies §212(c) Relief Notwithstanding Concurrent AOS
The court held that AEDPA §440(d) barred Petitioner, who was deportable for an aggravated felony, from relief under former INA §212(c) notwithstanding a concurrent adjustment application. (
Ruiz-Almanzar v. Ridge
, 5/8/07). AILA Doc. No. 07052162.
CA2 Upholds BIA’s Adverse Credibility Finding after Stipulated Remand
The court concluded that the BIA’s adverse credibility finding was not prohibited by the terms of CA2's stipulated remand, the regulatory scheme governing remands, or due process considerations. (
Belortaja v. Gonzales
, 4/27/07). AILA Doc. No. 07051860.
CA2 Dismisses Petition Transferred from District Court for Lack of Jurisdiction
The court found that transfer was not available under REAL ID because the petition was not pending when the Act became effective, the petition was untimely, and no constitutional issues were raised. (
Wang v. DHS
, 4/19/07). AILA Doc. No. 07042363.
CA2 Rejects Adverse Credibility Based on Non-Record Evidence
The court found that the IJ mischaracterized Petitioners' testimony and improperly relied on non-record evidence from a previous hearing for which there was no transcript. (
Gao v. BIA
, 3/28/07). AILA Doc. No. 07042362.
CA2 Upholds Denial of Cameroonian Asylum Claim Based on Suspect Document
The court held that the IJ’s adverse credibility determination was supported by Petitioner’s submission of a suspect document and rested on permissible inferences, not bald speculation. (
Siewe v. Gonzales
, 3/13/07). AILA Doc. No. 07041660.
CA2 Finds Sexual Assault Was Motivated by Protected Ground
The court found that the beatings and sexual assault were motivated in part by an imputed political opinion and Petitioner’s Tamil ethnicity and that the assault cannot be viewed as simply a criminal act. (
Rizvie v. Gonzales
, 2/28/07). AILA Doc. No. 07041060.
CA2 Dismisses Appeal under the Fugitive Disentitlement Doctrine
The court found that Petitioner ignored an order that he surrender for deportation and continued to reside unlawfully in the U.S. as a fugitive from justice and dismissed the petition for review finding no equitable factors. (
Gao v. Gonzales
, 3/20/07) AILA Doc. No. 07032767.
CA2 Finds Late Arrival to Court Did Not Constitute a Failure to Appear
The court held that Petitioner’s arrival to court 15 minutes late was “brief and innocent” and did not constitute a failure to appear under INA §240(b)(5)(A). (
Abu-Hasirah v. DHS
, 2/22/07). AILA Doc. No. 07031962.
CA2 Remands for Reconsideration Following Disbarment of Attorney
The court held that in rejecting Petitioner’s claim of ineffective assistance, the BIA erred in failing to address the fact that Petitioner’s counsel was disbarred after the IJ proceedings. (
Yang v. Gonzales
, 2/22/07). AILA Doc. No. 07031960.
CA2 Finds Jurisdiction to Review Timeliness of Asylum Application
The court found that it had jurisdiction to review whether any rational trier of fact would be compelled to conclude that Petitioner provided clear and convincing evidence that he timely filed his asylum application. (
Liu v. Gonzales
, 1/30/06). AILA Doc. No. 07030861.
CA2 Upholds Determination that Advance Parolee Is an “Arriving Alien”
The court held that Petitioner, who departed and reentered the U.S. on advance parole while his adjustment application was pending, was properly treated as an “arriving alien” in removal proceedings after his adjustment was denied. (
Ibragimov v. Gonzales
, 1/25/07). AILA Doc. No. 07021362.
CA2 Finds No Abuse of Discretion in Refusal to Rescind In Absentia Order
The court found that Petitioner’s uncorroborated affidavit of non-receipt containing a material misstatement of fact was insufficient to overcome the presumption of receipt of his hearing notice. (
Bhanot v. Chertoff
, 1/22/07). AILA Doc. No. 07021361.
CA2 Expands its Interpretation of “Questions of Law” under INA §242(a)(2)(D)
The court granted rehearing and held that while the term “questions of law” is not limited to issues of statutory construction, it may not review challenges to factual determinations or the exercise of discretion. (
Chen v. DOJ
, 12/7/06). AILA Doc. No. 07013167.
CA2 Refuses to Accord
Deference to BIA Single-Member Nonprecedential Decision
The court remanded to the BIA for a precedential opinion on the definition of “lawfully resided continuously” for purposes of a waiver of inadmissibility under INA §212(h). (
Rotimi v. Gonzales
, 1/3/07). AILA Doc. No. 07013166.
CA2 Holds IJ Erred in Denying Motion to Rescind In Absentia Order
The court held that the IJ erred by failing to adequately explain why Petitioner failed to rebut the presumption of receipt and by conflating his claims for rescission on grounds of nonreceipt and exceptional circumstances. (
Alrefae v. Chertoff
, 12/14/06). AILA Doc. No. 07012261.
CA2 Remands for BIA Consideration of Hardship Waiver under INA §216(c)(4)(A)
The court held that for purposes of a hardship waiver under INA §216(c)(4)(A), the BIA’s conclusion that only factors that arose during the period of conditional residency may be considered is contrary to 8 CFR §216.5(e)(1). (
Singh v. DOJ
, 8/29/06). AILA Doc. No. 07012262.
CA2 Finds Mauritanian Asylum Applicant Not Firmly Resettled in Mali
The court held that the IJ erroneously placed the burden of proof regarding the question of resettlement on the Petitioner and that the IJ’s firm resettlement conclusion was not supported by substantial evidence. (
Makadji v. Gonzales
, 12/5/06). AILA Doc. No. 07011763.
CA2 Remands for Individualized Showing of Reliance on Availability of §212(c) Relief
The court remanded to the BIA to determine whether Petitioner relied on the continuing availability of §212(c) relief when he delayed filing an affirmative §212(c) application following his conviction by jury trial prior to IIRAIRA. (
Wilson v. Gonzales
, 12/7/06). AILA Doc. No. 07011269.
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