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Cases & Decisions
CA3 Finds Record Suggests a Pattern of Persecution of Eritrean Pentecostals
The court found that the record suggested a pattern or practice of persecution of Pentecostals in Eritrea and remanded the case for further consideration. The court also held 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 Ferlise for Jumping Eagerly on Each Slip of the Tongue
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. The court also instructed the BIA on remand to consider whether conditions have changed in Georgia. (
Gabuniya v. Gonzales
, 9/19/06). AILA Doc. No. 06111013.
CA3 Finds “Fundamental Defect” in Reinstatement Proceedings
The court held that the INS’s failure to inform Appellant of his right to appeal his reinstatement order, combined with misleading language contained in the reinstatement notice of intent form was a fundamental defect which, if prejudicial, rendered the proceeding fundamentally unfair. (
U.S. v. Charleswell
, 08/01/06). AILA Doc. No. 06100666.
CA3 Finds “Criminal Deportees” to Haiti Not a Particular Social Group
The court held that the BIA properly relied on
Matter of J-E-
in denying CAT protection because Petitioner did not demonstrate the specific intent element for torture. The court also decided to follow the precedents of other circuit courts which have found 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
The court held that an offense must be an aggravated felony in order to be classified as a “particularly serious crime.” In evaluating Petitioner’s fraud conviction, the IJ erred in considering the loss attached to all of the charges, rather than the single count for which Petitioner was convicted. (
Alaka v. Att’y Gen. of the U.S.
, 07/18/06). AILA Doc. No. 06090561.
CA3 Finds Jurisdiction to Stay Voluntary Departure Period
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. The court held that a final order was affected when the BIA affirmed the IJ’s decision, not when the voluntary departure period expires. (
Obale v. Att’y Gen. of the U.S.
, 06/22/06). AILA Doc. No. 06082365.
CA3 Remands for Review by Three-Member BIA Panel
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. The court remanded the case to the BIA, holding that the Board member’s refusal to refer the case for review by a three-member panel was in error. (
Purveegiin v. Gonzales
, 06/01/06). AILA Doc. No. 06082364.
CA3 Finds Refugee Who Adjusts to LPR Status Is Subject to Removal
The court concluded that the INA allows for a person who entered the country as a refugee and later adjusted his status to a LPR to be placed in removal proceedings even though his refugee status was never terminated. In reaching this conclusion, the court gave deference to the BIA decision in Smriko. (
Romanishyn v. Atty. Gen. of U.S.
, 7/20/06). AILA Doc. No. 06082267.
CA3 Finds Gay Argentine Suffered Past Persecution by Police
The court concluded that the treatment Petitioner suffered at the hands of the Argentine police, which occurred at least 20 times over a period of several years, rose to the level of persecution, even though the harm he suffered did not cause 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
The court held that the BIA erred in ignoring the sole argument in Petitioner’s motion to reopen that he was no longer removable by virtue of his vacated conviction. The court remanded the case to the Board to determine whether the conviction still stood for immigration purposes. (
Cruz v. Gonzales
, 06/21/06). AILA Doc. No. 06080960.
CA3 Holds a Person Already Removed from the U.S. is Not “In Custody” for Habeas Jurisdiction
The court held that the district court lacked jurisdiction over a habeas corpus petition filed after the petitioner had been removed from the U.S. The court held that the individual was not “in custody” of DHS and therefore, did not satisfy the custodial requirement for habeas jurisdiction. (
Kumarasamy v. Att’y Gen. of the U.S.
, 06/23/06). AILA Doc. No. 06073163.
CA3 Finds Jurisdiction to Review IJ’s Denial of Motion to Continue
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 Attorney General. (
Khan v. Att’y Gen. of the U.S.
, 05/22/06). AILA Doc. No. 06072869.
CA3 Finds Harsh Prison Conditions in Haiti Are Not Torture
The court held that under the REAL ID Act it must vacate the district court’s decision and address the habeas petition as if it were raised in the first instance as a petition for review. The court found that the generalized allegations of prison conditions for criminal deportees 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
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). The court also rejected as inadequate the BIA’s explanation for rejecting Petitioners’ ineffective assistance of counsel claim and CAT claim. (
Filja v. Gonzales
, 5/12/06). AILA Doc. No. 06070771.
CA3 Finds No Jurisdiction to Review I-140 Revocation
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
The court found that the BIA mischaracterized the nature and degree of the threats faced by Petitioner and understated the effect of the threats. The court held that the BIA’s factual findings were not supported by substantial evidence and that Petitioner established a well-founded fear in Guatemala. (
Chavarria v. Gonzales
, 5/3/06). AILA Doc. No. 06060961.
CA3 Overturns IJ Ferlise’s Credibility Finding in Scathing Opinion
The court found that substantial evidence did not support the IJ’s conclusion that Petitioner’s father was alive. The court noted that the IJ relied on death certificates that he had excluded from evidence to support this conclusion and also failed to address or mention 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
The court found that it was clear that the IJ presumed Petitioner’s application to be without merit before a shred of testimony had been presented. The court stated that the belligerence of the questioning and the tension in the courtroom leapt off the pages of the record. 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 for Former INLA Member
The court concluded that the criminal bar to review did not apply and affirmed the BIA’s conclusions that Petitioner: (1) was removable for having engaged in terrorist activity under INA §237(a)(4)(B); (2) was ineligible for asylum and withholding; and (3) failed to establish eligibility for deferral of removal. (
McAllister v. Gonzales
, 4/10/06). AILA Doc. No. 06052273.
CA3 Rejects IJ’s Numerous Adverse Findings as Speculative, Insufficiently Developed or Defying Logic in Asylum Claim from Cote d’Ivoire
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 for requiring corroboration. The court also rejected the IJ’s adverse credibility finding. (
Toure v. Gonzales
, 4/5/06). AILA Doc. No. 06050962.
CA3 Says Repeal of Suspension of Deportation Not Impermissibly Retroactive to Persons Who Both Pleaded Guilty and Were Eligible for Relief Prior to Repeal
Relying on former INA §244(a)(2), which requires ten years continuous physical presence and good moral character following a deportable act, the court reasoned that Petitioner no reasonable expectation of applying for suspension immediately after he entered his guilty plea. (
Hernandez v. Gonzales
, 2/14/06). AILA Doc. No. 06040470.
CA3 Weakens Collateral Estoppel Doctrine
After INS failed to prove alienage in 1993, an IJ and habeas court held INS was collaterally estopped from relitigating it in 2001. Although the court found the doctrine 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; Affirms Finding that Pennsylvania Simple Assault Conviction is a COV
In a footnote, the court said that the BIA’s first order affirming removability but remanding to allow Petitioner to pursue relief from removal 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
The court found that the IJ clearly identified facts for which it was reasonable to expect corroboration. The court noted that under the REAL ID Act it could not reverse the IJ’s determination unless it was compelled to conclude that such corroborating evidence was unavailable. (
Chen v. Gonzales
, 12/29/05). AILA Doc. No. 06013012.
CA3 Decides When a Vacated Conviction Remains a Conviction
After first affirming district court APA jurisdiction over an adjustment denial, 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.
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