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2004

  • CA3 on OIL Procedures Permitting Remand in Persecution Cases (11/23/2004)
    Under the new procedures, OIL, in consultation with EOIR and DHS, may remand cases involving persecution claims where the administrative record is out of date and not appropriate for judicial review. (Ambartsoumian v. Ashcroft, 11/1/04)
    AILA Doc. No. 04112365.
  • CA3 Remands for Panel Review of Novel Refugee Issue (10/29/2004)
    The court found petitioner’s contention that the INS must first terminate refugee status before initiating removal proceedings “consistent with the text and some of the legislative history of the INA” and that the BIA erred in affirming without opinion. (Smriko v. Ashcroft, 10/26/04)
    AILA Doc. No. 04102912.
  • CA3 Says Attempted Reckless Endangerment Is Not a CIMT (10/7/2004)
    The court reasoned that the actual intent for an attempt conviction was inconsistent with acting recklessly. “A person cannot intend to commit a criminally reckless act. He or she either acts recklessly or does not.” (Knapick v. Ashcroft, 9/17/04)
    AILA Doc. No. 04100765.
  • CA3 Says Delaware Sexual Contact Is Not An Aggravated Felony (10/6/2004)
    Employing the categorical approach, the court held that petitioner was not convicted of the aggravated felony of sexual abuse of a minor because the criminal statute at issue did not contain an element specifying the age of the victim. (Singh v. Ashcroft, 9/17/04)
    AILA Doc. No. 04100662.
  • CA3 Affirms Inadmissibility for Providing Material Support to Terrorists (10/6/2004)
    Over dissent, the court upheld the BIA’s conclusion that petitioner was inadmissible because he provided food and shelter to individuals who he knew or reasonably should have known had committed or planned to commit terrorist acts. (Singh-Kaur v. Ashcroft, 9/23/04)
    AILA Doc. No. 04100661.
  • CA3 Calls for Record Reform in Asylum Proceedings (9/13/2004)
    The court commented at length on a “disturbing trend" in which courts are forced to rely on evidence of country conditions in administrative records that is “grossly out-of-date” and urged Congress, DHS, and the BIA to take action to remedy the problem. (Berishaj v. Ashcroft, 8/5/04)
    AILA Doc. No. 04091370.
  • CA3 Finds Possession with Intent to Distribute May Not Be an Aggravated Felony (12/12/2003)
    The court found that a NJ conviction for possession of 28 grams of marijuana with intent to distribute may not be an aggravated felony, based on analogy to the federal statute which makes an exception for distribution of a small amount for no remuneration. (Wilson v. Ashcroft, 11/26/03)
    AILA Doc. No. 03121243.
  • CA3 Finds Controlled Substance Conviction Bars Judicial Review (8/13/2004)
    The court held that the fact that Petitioner was charged with and found removable for a controlled substance conviction barred judicial review under INA §242(a)(2)(C), even though he did not challenge that finding in the petition for review. (Douglas v. Ashcroft, 7/8/04)
    AILA Doc. No. 04081363.
  • CA3 Finds IJ Erroneously Disregarded Unauthenticated Evidence (8/9/2004)
    The court reversed the IJ’s adverse credibility determination which was based, in part, on the IJ’s failure to consider documentary evidence that did not meet the authentication requirements in 8 CFR §287.6. (Gui Cun Liu v. Ashcroft, 6/28/04)
    AILA Doc. No. 04080972.
  • CA3 Extends St. Cyr to Pre-IIRIRA Trial Convictions (8/9/2004)
    Holding that the Supreme Court’s decision in St. Cyr is not limited to guilty pleas, the court found that individuals who relied on the availability of §212(c) pre-IIRIRA to turn down a plea agreement and sustain a trial may apply for §212(c) relief. (Ponnapula v. Ashcroft, 6/28/04)
    AILA Doc. No. 04080971.
  • CA3 Holds False Tax Filing Is Not an Aggravated Felony (6/28/2004)
    The court held that a conviction for filing false tax returns does not fall within INA §101(a)(43)(M)(i), reasoning that (M)(ii), which classifies tax evasion as an aggravated felony, would be superfluous if (M)(i) were construed to apply to tax offenses. (Ki Se Lee v. Ashcroft, 5/19/04)
    AILA Doc. No. 04062861.
  • CA3 Finds No Jurisdiction to Extend or Reinstate Expired Voluntary Departure (6/23/2004)
    The court found no jurisdiction to extend or reinstate a period of voluntary departure that expired during pendency of an appeal, but a motion to stay the voluntary departure period based on inherent equitable powers may still apply. (Reynoso-Lopez v. Ashcroft, 5/25/04)
    AILA Doc. No. 04062364.
  • CA3 Finds No Jurisdiction to Review Denial of I-751 Waiver (5/25/2004)
    The court held that INA §242(a)(2)(B)(ii) barred jurisdiction to review the denial of an application for a waiver of the joint filing requirement for removal of conditions on permanent resident status under INA §216(c)(4). (Urena-Tavarez v. Ashcroft, 5/7/04)
    AILA Doc. No. 04052564.
  • CA3 Holds Parolees Are Subject to INA §238(b) (4/30/2004)
    Rejecting the argument that INA §238(b) should apply only to nonimmigrants, the court held that a parolee can be subject to administrative removal without a hearing. (Bamba v. Rile, 4/27/04)
    AILA Doc. No. 04043068.
  • CA3 Finds No Habeas Jurisdiction to Review BIA's Discretionary Denial of Asylum (4/12/2004)
    Consistent with a number of its sister circuits, the court upheld the BIA's discretionary denial of asylum, finding that discretionary determinations and factual findings are not within the scope of habeas review. (Bakhtriger v. Elwood, 3/10/04)
    AILA Doc. No. 04041264.
  • CA3 En Banc Panel Upholds AWO Procedure (1/5/2004)
    The en banc panel upheld the validity of the BIA's affirmance without opinion (AWO) process but reversed the IJ's denial of relief on credibility grounds. (Dia v. Ashcroft, 12/22/03)
    AILA Doc. No. 04010518.
  • CA3 Looks To Amount of Loss for Aggravated Felony Determination (1/5/2004)
    The court concluded that the amount of loss, not the amount of restitution, is the critical factor in determinating whether a conviction for a crime involving fraud or deceit is an aggravated felony. (Munroe v. Ashcroft, 12/16/03)
    AILA Doc. No. 04010517.
 
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