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2004 - 1998

  • CA2 Says CT Third Degree Larceny Is an Aggravated Felony (8/24/2004)
    The court held that third degree larceny under Connecticut General Statues §53a-124 is an aggravated felony theft offense under INA §101(a)(43)(G). (Abimbola v. Ashcroft, 8/5/2004) AILA Doc. No. 04082462.
  • CA2 Says DHS Cannot Revoke IV Petition After Beneficiary Enters the U.S. (8/17/2004)
    The court held that INA §205, which requires DHS to provide notice of its intent to revoke an immigrant visa petition before the beneficiary travels to the United States, exempts beneficiaries already in the U.S. (Firstland Int'l, Inc. v. Ashcroft, 8/2/04) AILA Doc. No. 04081763.
  • CA2 Rejects BIA Remand to Amend NTA (8/17/2004)
    The court held that the BIA erred in remanding to allow INS to amend the NTA to charge Petitioner with additional convictions where INS failed to establish that evidence of the other convictions was previously unavailable. (Johnson v. Ashcroft, 8/5/04) AILA Doc. No. 04081762.
  • CA2 Excuses Exhaustion Requirement to Remedy Unlawful Deportation (8/13/2004)
    The court excused Petitioner's failure to exhaust his administrative remedies where the basis of the removal order was nullified and manifest injustice would occur if the court failed to consider his meritorious claim. (Pichardo v. Ashcroft, 7/1/04) AILA Doc. No. 04081360.
  • CA2 Upholds BIA's AWO Procedure (8/13/2004)
    With very little discussion, the court held that the BIA’s affirmance without opinion (AWO) procedure does not constitute an abuse of discretion. (Xusheng Shi v. BIA, 7/1/04) AILA Doc. No. 04081373.
  • CA2 Rejects “No Liberty or Property Interest in Discretionary Relief” Argument (8/13/2004)
    The court rejected the government’s position that noncitizens have no protected liberty or property interest in obtaining discretionary relief, explaining that the argument erroneously relies on a property rights analysis from §1983 cases. (U.S. v. Copeland, 7/16/04) AILA Doc. No. 04081376.
  • CA2 Says St. Cyr Does Not Extend to Conviction After Trial (7/12/2004)
    The court held that the Supreme Court's decision in INS v. St. Cyr, that the repeal of §212(c) may not be applied retroactively to persons who pleaded guilty to deportable offenses, does not extend to persons convicted after trial. (Thom v. Ashcroft, 5/27/04) AILA Doc. No. 04017126.
  • CA2 Says AEDPA §440(d) May Have Impermissible Retroactive Effect (4/12/2004)
    The court held that AEDPA §440(d) may have an impermissible retroactive effect if applied to persons with pre-AEDPA aggravated felony jury trial convictions, and remanded to determine whether individual §212(c) reliance is required (Restrepo v. McElroy, 4/1/04). AILA Doc. No. 04041276.
  • CA2 Upholds BIA's Affirmance Without Opinion Procedure (3/30/2004)
    The court found that neither the INA nor the Constitution requires appeals to be adjudicated by a three-member panel, the procedures do not compromise review of IJ decisions, and individuals are afforded minimum due process protections. (Zhang v. Ashcroft, 3/24/04) AILA Doc. No. 04033069.
  • CA2 Rejects BIA Interpretation of CAT Requirements (3/4/2004)
    The court overruled the BIA in Matter of Y-L- to hold that CAT requires "only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it." (Khouzam v. Ashcroft, 2/24/04) AILA Doc. No. 04030460.
  • CA2 Says "Defeating a Tax" Is an Aggravated Felony Tax Offense (3/2/2004)
    The court found that attempting to evade or defeat a tax in violation of 26 USC §7201 is an aggravated felony relating to tax evasion under INA §101(a)(43)(M)(ii). (Evangelista v. Ashcroft, 2/23/04) AILA Doc. No. 04030261.
  • CA2 Remands Asylum Case for Consideration of Physical Abuse (3/1/2004)
    The court found that the BIA's decision was fatally flawed where it erroneously asserted that Petitioner had not been beaten and further instructed the agency to not place “excessive reliance” on the DOS report on remand. (Chen v. Ashcroft, 2/18/04) AILA Doc. No. 04030172.
  • CA2 Upholds Adverse Credibility Finding in Sri Lankan/Tamil Asylum Claim (2/13/2004)
    The court found that inconsistencies between Petitioner's testimony at trial and the information given during an airport statement supported the IJ's adverse credibility finding. (Ramsameachire v. Ashcroft, 2/3/04) AILA Doc. No. 04021372.
  • CA2 Finds Deportation Did Not Render Appeal Moot (2/13/2004)
    The court found that Petitioner's appeal was not rendered moot by deportation because the lifetime bar to re-entry is an ongoing collateral consequence and is an actual injury that could be redressed. (Swaby v. Ashcroft, 2/3/04) AILA Doc. No. 04021370.
  • CA2 Affirms Revocation of Former Nazi's U.S. Citizenship (2/6/2004)
    The court found that the government showed by clear, unequivocal, and convincing evidence that Defendant, on orders from the Nazis, assisted in the persecution of Jews during World War II and was ineligible for citizenship. (U.S. v. Reimer, 1/27/04) AILA Doc. No. 04020615.
  • CA2 on Retroactivity of AEDPA §440(d) (1/6/2004)
    The court found that AEDPA §440(d) was not applied in an impermissibly retroactive manner where the conduct occurred prior to the statute's effective date but the plea was entered after the effective date. (Khan v. Ashcroft, 12/9/03) AILA Doc. No. 04010611.
  • CA2 Orders Appointment of Counsel in Immigration Case (1/6/2004)
    The court ordered the appointment of counsel to brief the pro se Petitioner's advance parole claim and whether Petitioner's appeal was rendered moot based on his status as the spouse of an asylee. (Pozdniakov v. INS, 12/12/03) AILA Doc. No. 04010610.
  • CA2 Finds CT Statutory Rape Is an Aggravated Felony (12/3/2003)
    The court held that second-degree sexual assault (statutory rape) in violation of Connecticut General Statutes §53a-71 is an aggravated felony crime of violence. (Chery v. Ashcroft, 10/17/03) AILA Doc. No. 03120343.
  • CA2 Says BIA Erred in Considering Pre-Sentence Report (10/14/2003)
    The court found that the BIA erred in considering the pre-sentence report in determining whether Petitioner's conviction for unlawful imprisonment was an aggravated felony crime of violence. (Dickson v. Ashcroft, 9/9/03) AILA Doc. No. 03101411.
  • CA2 Says INS Need Not Provide Interpreters to SAW Applicants (7/15/1999)
    The court held that the Due Process Clause of the Fifth Amendment does not mandate that the government provide competent interpreters in the native languages of SAW applicants during legalization interviews. (Abdullah v. INS, 7/8/99) AILA Doc. No. 99071581.
  • CA2 Finds Habeas Jurisdiction for Aliens “in Custody” (9/29/1998)
    The court held that the federal courts have jurisdiction under 28 USC §2241 to grant writs of habeas corpus to aliens when those aliens are “in custody in violation of the Constitution or laws or treaties of the United States.” (Henderson v. INS, 9/18/98) AILA Doc. No. 98092880.
  • CA2 Dismisses Claims for Lack of Jurisdiction under INA §242(g) (5/8/1998)
    The court held that INA §242(g) divests it and the district court of jurisdiction to decide Plaintiffs’ claims which relate to "the decision of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." (Jean-Baptiste v. Reno, 5/8/98) AILA Doc. No. 98050880.
  • CA2 Says Petitioner Born in Philippines Is Not a USC (2/11/1998)
    The court held that Petitioner’s birth in the Philippines while that country was a United States territory does not confer United States citizenship upon her under the Fourteenth Amendment. (Valmonte v. INS, 2/11/98) AILA Doc. No. 98021180.