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2010 - 2009

  • CA6 on Establishing Lack of Notice for Rescinding an In Absentia Order(79 KB - 12/27/2010)
    For purposes of rescinding an in absentia order under former INA §242B, the alien must not only establish lack of actual notice, but also that the lack of notice was due to a reason other than failure to provide a current address. (Sanchez v. Holder, 12/6/10) AILA Doc. No. 10122746.
    AILA Doc. No. 10122746.
  • CA6 Opines on “Mere Tardiness” as a Failure to Appear(66 KB - 12/27/2010)
    The court dismissed Petitioner’s claim as administratively unexhausted, but implored its colleagues that when a similar case is next presented, to hold that slight tardiness to one’s hearing does not qualify as a failure to appear. (Camaj v. Holder, 11/8/10) AILA Doc. No. 10122740.
    AILA Doc. No. 10122740.
  • CA6 Affirms Dismissal of Citizen Child’s Challenge to Mother’s Removal(80 KB - 12/13/2010)
    The court held that under INA §242(g) no federal court had the authority to review a removal order of a citizen child’s mother to determine whether a violation the child’s constitutional rights renders his mother’s removal order invalid. (Hamdi v. Napolitano, 9/7/10) AILA Doc. No. 10121366.
    AILA Doc. No. 10121366.
  • CA6 Finds INA Prohibits Issuance of Diversity Visas after Expiration of the Fiscal Year(49 KB - 12/13/2010)
    The court held that the appeal was moot, finding that INA §204 rendered petitioner ineligible for a DV-2007 visa as of midnight on 9/30/07 and, therefore, she was ineligible for adjustment because no visa was "immediately available." (Mwasaru v. Napolitano, 9/1/10) AILA Doc. No. 10121364.
    AILA Doc. No. 10121364.
  • CA6 Finds Military “Discharge on the Basis of Alienage” Bars Expedited Naturalization(228 KB - 12/8/2010)
    The court found that because petitioner accepted military "discharge on the basis of alienage," he was barred from naturalization under INA § 315(a) and was, therefore, ineligible for expedited naturalization under INA § 329(a). (Sakarapanee v. DHS, 8/19/10) AILA Doc. No. 10120867.
    AILA Doc. No. 10120867.
  • CA6 Finds Government Bears Burden of Proof on Vacatur of Convictions(235 KB - 12/8/2010)
    The court granted petition for review, finding that the BIA improperly put the burden on petitioner to prove that the state court’s vacatur of his conviction was not for rehabilitative or immigration reasons. (Barakat v. Holder, 8/18/10) AILA Doc. No. 10120866.
    AILA Doc. No. 10120866.
  • CA6 Vacates and Remands Chinese Gender-Based Asylum Claim(70 KB - 12/8/2010)
    The court remanded, holding that BIA failed to make an explicit finding on whether petitioner was a member of a particular social group, but appeared to base asylum denial on the fact that she was not targeted in part on account of her gender. (Qu v. Holder, 8/27/10) AILA Doc. No. 10120836.
    AILA Doc. No. 10120836.
  • CA6 Finds BIA Rejection of Pro Se Brief Did Not Prejudice Decision(86 KB - 12/8/2010)
    The court denied the petition for review, finding that the petitioner failed to demonstrate prejudice where the BIA rejected his pro se brief and he failed to resubmit the brief when he obtained counsel and filed the motion to reconsider. (Ikharo v. Holder, 8/2/10) AILA Doc. No. 10120835.
    AILA Doc. No. 10120835.
  • CA6 Finds Jurisdiction over Late-Filed Petition for Review(68 KB - 12/8/2010)
    The court found jurisdiction over a petition filed more than 30 days after the reinstatement order was entered, where the government withheld the order for seven months and Petitioner filed 16 days after obtaining it. (Villegas de la Paz v. Holder, 11/8/10) AILA Doc. No. 10120832.
    AILA Doc. No. 10120832.
  • CA6 on Ineffective Assistance of Counsel and Equitable Tolling(41 KB - 12/6/2010)
    The court remanded an ineffective of assistance of counsel claim in an asylum case, holding that the BIA abused its discretion in finding that petitioner did not show due diligence. (Mezo v. Holder, 8/2/10) AILA Doc. No. 10120661.
    AILA Doc. No. 10120661.
  • CA6 on False Representation of Citizenship to Procure Employment(32 KB - 12/6/2010)
    The court held that a false representation of citizenship by an alien for the purpose of obtaining private employment is a “purpose or benefit” under the INA, done, at the very least, for the “purpose” of evading §1324a’s provisions. (Ferrans v. Holder, 7/12/10) AILA Doc. No. 10120660.
    AILA Doc. No. 10120660.
  • CA6 Discusses Burden of Proving Petitioners Married Prior to Entry(69 KB - 6/1/2010)
    CA6 reversed the BIA judgment with respect to its ruling that the government met its burden of proving petitioners were married prior to their entry into the U.S. and its finding that petitioner was removable. (Hassan v. Holder, 05/11/10). AILA Doc. No. 10060164.
    AILA Doc. No. 10060164.
  • CA6 Finds Actions by Secretary of DHS within § 1252(g) Jurisdictional Bar(57 KB - 5/25/2010)
    CA6 affirmed dismissal for lack of jurisdiction, holding that an alien’s petition for a writ of prohibition that directly challenges his or her final removal order on constitutional grounds is subject to the jurisdictional bars. (Elgharib v. Napolitano, 03/30/10). AILA Doc. No. 10052560.
    AILA Doc. No. 10052560.
  • CA6 Finds Former Gang Member Part of Particular Social Group, Denies Petition(52 KB - 3/30/2010)
    CA6 held BIA erred and respondent was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization. Court denied petition finding him statutorily ineligible for withholding. (Urbina-Mejia v. Holder, 3/5/10). AILA Doc. No. 10033064.
    AILA Doc. No. 10033064.
  • CA6 Denies Petition for Rehearing in Persecutor Bar to Asylum Case(221 KB - 2/17/2010)
    CA6 panel denied petition for rehearing in case on the persecutor bar to asylum with Judge Martin dissenting. AILA filed an amicus brief urging the court to rehear the case and modify the persecutor bar section to reflect new case law (Parlak v. Holder, 11/24/09). AILA Doc. No. 10021773.
    AILA Doc. No. 10021773.
  • CA6 Affirms BIA Finding on Failure to Show Exceptional Circumstance for Missed Hearing(224 KB - 2/17/2010)
    CA6 affirmed BIA denial of motions to reopen, finding that even if petitioner’s motions were found to be timely, he would not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances. (Acquaah v. Holder, 12/18/09). AILA Doc. No. 10021774.
    AILA Doc. No. 10021774.
  • CA6 Grants Withholding under INA and Denies CAT Claim in Police Abuse Case(4314 KB - 2/17/2010)
    CA6 granted withholding of removal under INA and denied CAT claim, holding that evidence compels finding that Algerian police abused petitioner for suspected political affiliation and that the abuse constituted persecution. (Haider v. Holder (2/10/10).
    AILA Doc. No. 10021771.
  • CA6 Finds Convictions under 18 U.S.C. § 371 and 1001 Constitute Aggravated Felonies(235 KB - 2/17/2010)
    CA6 held that petitioner's convictions under 18 U.S.C. § 371 and 1001 for making and conspiracy to make false statements to a U.S. agency constituted aggravated felonies, rendering him ineligible for cancellation of removal. (Kellerman v. Holder (1/25/10). AILA Doc. No. 10021770.
    AILA Doc. No. 10021770.
  • CA6 Finds IJ Has Authority to Determine Frivolousness of a Time-Barred Asylum Application(228 KB - 10/29/2009)
    The court finds that IJs have the authority to make a frivolousness finding in the context of a time-barred asylum application. The court denies the petition for review. (Ghazali v. Holder, 10/29/09). AILA Doc. No. 09102961.
    AILA Doc. No. 09102961.
  • CA6 Holds that Section 1256(a) only Applies to Rescission Proceedings(81 KB - 10/2/2009)
    Court held Section 1256(a)’s statute of limitations only applies to rescission proceedings. Because petitioners were in removal proceedings due to fraud in their asylum applications and had no valid documents at the time of adjustment the five year limitation on rescission proceedings does not bar the government from removing Petitioner. (Stolaj v. Holder, 8/19/09). AILA Doc. No. 09100215.
    AILA Doc. No. 09100215.
  • CA6 Finds Evidence Supports IJ’s Ruling that Petitioner’s Marriage was Fraudulent(41 KB - 8/14/2009)
    The court finds that the petitioner’s removability was established by clear and convincing evidence, as sufficient evidence supports the IJ’s ruling that the petitioner entered into a fraudulent marriage for the purpose of gaining lawful admission into the U.S. (King v. Holder, 6/29/09). AILA Doc. No. 09081472.
    AILA Doc. No. 09081472.
  • CA6 Finds Auto Theft Is Not a Crime of Violence, Not an Aggravated Felony(68 KB - 8/10/2009)
    The court holds that auto theft, as defined in the California Penal Code § 487 (1989), is not a “crime of violence” under 18 U.S.C. § 16(b) and cannot serve as an “aggravated felony” warranting deportation of a permanent resident alien. Remands. (Nguyen v. Holder, 7/2/09). AILA Doc. No. 09081064.
    AILA Doc. No. 09081064.
  • CA6 Finds Conviction for Violating Federal Counterfeiting Statute is an Aggravated Felony(48 KB - 8/6/2009)
    Court dismisses petition for lack of jurisdiction. Finds that a conviction for violating 18 U.S.C. § 472 is an aggravated felony under the INA, thus the IJ and BIA properly concluded that the petitioner is removable. Holds that INA §101(a)(43)(R) covers a range of activities beyond those of counterfeiting or forgery itself. (Nwagbo v. Holder, 6/30/09). AILA Doc.No. 09080661.
    AILA Doc. No. 09080661.
  • CA6 Finds Conviction for Fraudulent Use of SSN or Identifying Information is CIMT(67 KB - 7/13/2009)
    The court upholds the BIA’s order finding the petitioner ineligible for voluntary departure. Concludes that the petitioner’s conviction in Mississippi state court for fraudulent use of a social security number or identifying information is a crime involving moral turpitude. (Serrato-Soto v. Holder, 5/28/09). AILA Doc. No. 09071365.
    AILA Doc. No. 09071365.
  • CA6 Strikes Down Widow Penalty (Updated 8/13/09)(61 KB - 8/13/2009)
    The court concludes that a “surviving alien-spouse” is a “spouse” within the meaning of the “immediate relative” provision of the INA. Counsel of record is Cathy Shibley. Decision courtesy of Brent Renison. (Lockhart v. Napolitano, 4/8/09. Amended 7/20/09). AILA Doc. No. 09040932.
    AILA Doc. No. 09040932.
  • CA6 Upholds Adverse Credibility Determination Based on Inconsistencies(81 KB - 3/13/2009)
    The court held the IJ’s adverse credibility determination was supported by substantial evidence, and denial of withholding of removal was warranted where credibility of applicant had not been established. The IJ properly focused on inconsistencies, discrepancies, and lack of corroborative evidence (Shan Sheng Zhao v. Mukasey, 1/16/09). AILA Doc. No. 09031373.
    AILA Doc. No. 09031373.
  • CA6 Finds No Counterpart in § 212(a) to Render Petitioner Eligible for § 212(c) Relief(284 KB - 3/11/2009)
    The court holds that because the petitioner is unable to establish grounds of inadmissibility that are comparable to the ground of removal/deportation filed against him, he is ineligible for INA § 212(c) relief. (Koussan v. Holder, 2/12/09). AILA Doc. No. 09031168.
    AILA Doc. No. 09031168.