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2006

  • CA3 Finds Pattern of Persecution of Eritrean Pentecostals (12/15/2006)
    The court found that the record suggested a pattern or practice of persecution of Pentecostals in Eritrea and that the IJ committed legal error in finding that Petitioner could not prevail on his CAT claim because his claim for asylum was denied. (Ghebrehiwot v. Atty. Gen., 11/3/06)
    AILA Doc. No. 06121562.
  • CA3 Criticizes IJ for Jumping Eagerly on Each Slip of the Tongue (11/10/2006)
    The court held that the IJ’s adverse credibility determination and determination that, if credible, Petitioner’s testimony did not establish past persecution, were not supported by substantial evidence. (Gabuniya v. Gonzales, 9/19/06)
    AILA Doc. No. 06111013.
  • CA3 Finds “Fundamental Defect” in Reinstatement Proceedings (10/6/2006)
    The court held that the INS’s failure to inform Appellant of his right to appeal his reinstatement order, combined with misleading language in the reinstatement notice was a fundamental defect which, if prejudicial, rendered the proceeding fundamentally unfair. (U.S. v. Charleswell, 8/1/06)
    AILA Doc. No. 06100699.
  • CA3 Finds “Criminal Deportees” to Haiti Not a Particular Social Group (9/8/2006)
    The court held that the BIA properly denied CAT protection because Petitioner did not demonstrate the specific intent element for torture and joined other circuits in finding that criminal deportees are not a social group. (Toussaint v. Atty. Gen. of U.S., 7/26/06)
    AILA Doc. No. 06090877.
  • CA3 Discusses “Particularly Serious Crime” Bar to Withholding of Removal (9/5/2006)
    The court held that an offense must be an aggravated felony in order to be classified as a particularly serious crime and that the IJ erred in failing to consider only the loss attached to the fraud count for which Petitioner was convicted. (Alaka v. Att’y Gen. of the U.S., 7/18/06)
    AILA Doc. No. 06090561.
  • CA3 Finds Jurisdiction to Stay Voluntary Departure Period (8/23/2006)
    The court found jurisdiction to grant a stay of the voluntary departure period because there is no indication that Congress intended to eliminate such jurisdiction. (Obale v. Att’y Gen. of the U.S., 6/22/06)
    AILA Doc. No. 06082365.
  • CA3 Remands for Review by Three-Member BIA Panel (8/23/2006)
    The court found that the decision of a single BIA member to forego panel review is not “committed to agency discretion” and is therefore, subject to judicial review. (Purveegiin v. Gonzales, 6/1/06)
    AILA Doc. No. 06082364.
  • CA3 Finds Refugee Who Adjusts to LPR Status Is Subject to Removal (8/22/2006)
    The court concluded that the INA allows for a person who entered the country as a refugee and later adjusted his status to LPR to be placed in removal proceedings even though his refugee status was never terminated. (Romanishyn v. Atty. Gen. of U.S., 7/20/06)
    AILA Doc. No. 06082267.
  • CA3 Finds Gay Argentine Suffered Past Persecution by Police (8/15/2006)
    The court found that the treatment Petitioner suffered at the hands of the police, which occurred at least 20 times over several years, was persecution, even though he did not suffer severe injuries nor was he ever detained more than 12 hours. (Maldonado v. Atty. Gen. of U.S., 7/18/06)
    AILA Doc. No. 06081571.
  • CA3 Remands for Determination of Whether Vacated Conviction Stands for Immigration Purposes (8/9/2006)
    The court held that the BIA erred in ignoring Petitioner's sole argument that he was no longer removable by virtue of his vacated conviction and remanded the case to the Board to determine whether the conviction still stands for immigration purposes. (Cruz v. Gonzales, 6/21/06)
    AILA Doc. No. 06080960.
  • CA3 Holds a Person Already Removed from the U.S. Is Not “In Custody” for Habeas Jurisdiction (7/31/2006)
    The court held that the district court lacked jurisdiction over a habeas petition filed after the petitioner had been removed from the U.S. because he was not “in custody” of DHS. (Kumarasamy v. Att’y Gen. of the U.S., 6/23/06)
    AILA Doc. No. 06073163.
  • CA3 Finds Jurisdiction to Review IJ’s Denial of Motion to Continue (7/28/2006)
    The court held that INA §242(a)(2)(B)(ii) does not bar jurisdiction to review the IJ’s denial of a motion to continue because the authority to grant continuances is not “specified under [the relevant] subchapter” to be in the discretion of the AG. (Khan v. Att’y Gen. of the U.S., 5/22/06)
    AILA Doc. No. 06072869.
  • CA3 Finds Harsh Prison Conditions in Haiti Are Not Torture (7/7/2006)
    The court held that the generalized allegations of prison conditions for criminal deportees in Haiti raised by Petitioner do not rise to the level of torture. (Francois v. Gonzales, 5/19/06)
    AILA Doc. No. 06070772.
  • CA3 Finds BIA Erred in Not Reopening Due to Changed Conditions (7/7/2006)
    The court found that the BIA committed an error of law when it held that Petitioners’ motion to reopen based on changed conditions was time barred under 8 CFR §1003.2(c)(3)(ii). (Filja v. Gonzales, 5/12/06)
    AILA Doc. No. 06070771.
  • CA3 Finds No Jurisdiction to Review I-140 Revocation (7/7/2006)
    The court found that INA §242(a)(2)(B)(ii) bars review of a decision under INA §205 to revoke approval of an I-140 visa petition because the words “may,” “at any time” and “deems” in INA §205 vest the AG with discretion. (Jilin Pharmaceutical USA v. Chertoff, 5/10/06)
    AILA Doc. No. 06070767.
  • CA3 Finds BIA Mischaracterized Evidence and Remands Asylum Claim (6/9/2006)
    The court found that the BIA mischaracterized the nature and degree of the threats faced by Petitioner and held that he established a well-founded fear in Guatemala. (Chavarria v. Gonzales, 5/3/06)
    AILA Doc. No. 06060961.
  • CA3 Overturns IJ’s Credibility Finding in Scathing Opinion (5/31/2006)
    The court found that substantial evidence did not support the IJ’s conclusion that Petitioner’s father was alive noting that the IJ relied on death certificates that he had excluded from evidence and that he failed to address newspaper articles regarding the death. (Shah v. Gonzales, 4/28/06)
    AILA Doc. No. 06053166.
  • CA3 Finds Petitioner Was “Ground to Bits” by IJ Ferlise (5/31/2006)
    The court found that it was clear that the IJ presumed petitioner’s application to be without merit before testimony was presented from the belligerence of the questioning. The case was remanded to a different IJ. (Cham v. Gonzales, 4/28/06)
    AILA Doc. No. 06053164.
  • CA3 Affirms Removability Based on Terrorist Activity of Former INLA Member (5/22/2006)
    The court concluded that the criminal bar to review did not apply and affirmed the BIA’s conclusions that Petitioner was removable for engaging in terrorist activity under INA §237(a)(4)(B) and was ineligible for asylum, withholding, and deferral of removal. (McAllister v. Gonzales, 4/10/06)
    AILA Doc. No. 06052273.
  • CA3 Rejects IJ’s Numerous Adverse Findings as Speculative in Asylum Claim from Cote d’Ivoire (5/9/2006)
    The court held that substantial evidence did not support the IJ’s finding that the harm to Petitioner was not sufficiently severe to constitute persecution, and the IJ failed to apply the BIA’s three-part inquiry on corroboration. (Toure v. Gonzales, 4/5/06)
    AILA Doc. No. 06050962.
  • CA3 on Retroactivity of Suspension of Deportation (4/4/2006)
    Relying on former INA §244(a)(2), which requires ten years continuous physical presence and good moral character following a deportable act, the court found that Petitioner had no reasonable expectation of suspension after he entered his guilty plea. (Hernandez v. Gonzales, 2/14/06)
    AILA Doc. No. 06040470.
  • CA3 Weakens Collateral Estoppel Doctrine (3/15/2006)
    Although the court found the doctrine of collateral estoppel generally applies in immigration cases, it does not apply “where a clearly deportable alien continues to commit criminal acts after initial proceedings are terminated.” (Duvall v. AG, 2/7/06)
    AILA Doc. No. 06031562.
  • CA3 Notes that BIA Decision Ordering Remand Is Not Final (2/17/2006)
    In a footnote, the court said that the BIA’s first order affirming removability but remanding to allow Petitioner to pursue relief was not final for purposes of judicial review until remand proceedings were completed and the BIA ruled on the second appeal. (Singh v. Gonzales, 1/3/06)
    AILA Doc. No. 06021712.
  • CA3 Upholds Asylum Denial Based on Lack of Corroboration (1/30/2006)
    The court found that the IJ clearly identified facts for which it was reasonable to expect corroboration and noted that under the REAL ID Act it could not reverse the IJ’s determination unless it concluded that corroborating evidence was unavailable. (Chen v. Gonzales, 12/29/05)
    AILA Doc. No. 06013012.
  • CA3 Decides When a Vacated Conviction Remains a Conviction (1/18/2006)
    The court concluded that the BIA may reasonably draw a distinction between convictions vacated based on “substantive” or “rehabilitative” grounds, and established a categorical test to guide this determination. (Pinho v. Gonzales, 12/20/05)
    AILA Doc. No. 06011864.