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Cases & Decisions
CA2 Holds Pre-Conviction Time Served Counts Toward §212(c)’s Five-Year Bar
The court held that Petitioner was ineligible for relief under former INA §212(c) because he served more than five years for an aggravated felony, including pre-conviction detention. (
Spina v. DHS
, 11/28/06) AILA Doc. No. 06122863.
AILA Doc. No. 06122863.
CA2 Overturns IJ’s Finding that Albanian Failed to Show Past Persecution
The court noted that a minor beating or any physical degradation designed to cause pain or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground. (
Gjolaj v. BCIS
, 11/9/06) AILA Doc. No. 06121563.
AILA Doc. No. 06121563.
CA2 on Delivery Presumption for Challenging In Absentia Orders
The court held that for purposes of challenging an in absentia removal order, a presumption of receipt attaches to an NTA that is properly addressed and sent according to normal office procedures. (
Silva-Carvalho Lopes v. Gonzales
, 11/2/06) AILA Doc. No. 06120661.
AILA Doc. No. 06120661.
CA2 Remands Issue of Whether Two Children in China Is a Basis for Asylum
The court remanded the question of whether having more children than Chinese law allows, standing alone, may serve as a basis for asylum, noting that the question is not clearly answered by the statutory definition of refugee. (
Shao v. BIA
, 10/12/06) AILA Doc. No. 06111414.
AILA Doc. No. 06111414.
CA2 Remands Due to New Documents on Forced Sterilization
The court found that despite earlier rulings, documents presented in a recent case suggest that there may in fact be an official policy of forced sterilization in the Fujian province, which may undermine the reliance of DOS reports. (
Lin v. Gonzales
, 10/30/06) AILA Doc. No. 06111480.
AILA Doc. No. 06111480.
CA2 Says Persecution Does Not Require Serious Injury
The court found that the BIA does not require applicants claiming persecution to show permanent or serious injury and held that persecution encompasses a variety of adverse treatment including non-physical forms of harm. (
Edimo-Doualla v. Gonzales
, 9/19/06) AILA Doc. No. 06111014.
AILA Doc. No. 06111014.
CA2 Holds INA §242(b)(2) Dictates Venue, Not Jurisdiction
The court held that it was not compelled to transfer the petition for review to the circuit where Petitioner’s immigration proceedings were held because INA §242(b)(2) is a venue provision, not a jurisdictional mandate. (
Moreno-Bravo v. Gonzales
, 9/12/06). AILA Doc. No. 06101990.
AILA Doc. No. 06101990.
CA2 Says Stay of Voluntary Departure Must Be Explicitly Requested
The court refused to stay voluntary departure where Petitioners moved for a stay of removal before their voluntary departure period expired, but did not explicitly request a stay of voluntary departure. (
Iouri v. Ashcroft
, 9/13/06). AILA Doc. No. 06101913.
AILA Doc. No. 06101913.
CA2 Holds Issue Exhaustion Is Not Required by INA §242(d)(1)
The court held that INA §242(d)(1) does not make issue exhaustion a statutory jurisdictional requirement and that failure to exhaust specific issues may be waived by the Attorney General. (
Zhong v. DOJ
, 8/8/06). AILA Doc. No. 06101315.
AILA Doc. No. 06101315.
CA2 Finds Jurisdiction to Stay BIA’s Order of Voluntary Departure
The court held that INA §242(a)(1) permits it to stay a BIA order of voluntary departure, and that a BIA order granting voluntary departure with an alternate order of removal is a final order subject to judicial review. (
Thapa v. Gonzales
, 8/16/06) AILA Doc. No. 06101265.
AILA Doc. No. 06101265.
CA2 Criticizes BIA for Not Deciding CPC Cases in Timely Manner
The court remanded the case for the BIA to determine whether Petitioner’s status as a boyfriend and father would allow him to qualify as a refugee based on China’s coercive population control (CPC) policies. (
Pan v. U.S. Att'y Gen.
, 5/23/06) AILA Doc. No. 06070773.
AILA Doc. No. 06070773.
CA2 Says IJ Applied Wrong Legal Standard in Albanian Asylum Case
The court found that the IJ’s own words – “the respondent[s have] not met their burden of showing that they would be persecuted upon their return” – demonstrate that he imposed an improperly heightened burden. (
Karaj v. Gonzales
, 9/5/06) AILA Doc. No. 06101262.
AILA Doc. No. 06101262.
CA2 Says IJ Erred in Using Husband’s I-589 to Deny Wife’s Claim
The court found that the IJ erred by preferring assertions in the husband’s application to those in the wife's and then arbitrarily using the assertions to find her not credible. (
Bao v. Gonzales
, 8/22/06) AILA Doc. No. 06100568.
AILA Doc. No. 06100568.
CA2 Finds Violation of Asylum Applicant’s Right to Confidentiality
The court held that the government violated 8 CFR §208.6 and rejected its post hoc rationale for the breach. The court also held that the adverse credibility finding, based on a consular report, was not supported by substantial evidence. (
Lin v. Gonzales
, 8/3/06) AILA Doc. No. 06091915.
AILA Doc. No. 06091915.
CA2 Says Torture Does Not Include Deprivation of Property
The court reviewed the CAT regulations and found no indication that the definition of torture was intended to encompass destruction, thefts, expropriations, or other deprivations of property. (
Jo v. Gonzales
, 7/27/06) AILA Doc. No. 06090566.
AILA Doc. No. 06090566.
CA2 Finds No Jurisdiction to Review Denial of §212(i) Waiver
The court held that for purposes of a waiver under INA §212(i), a finding of a lack of extreme hardship is a discretionary determination, which is barred from judicial review under INA §242(a)(2)(B)(i). (
Zhang v. Gonzales
, 7/12/06) AILA Doc. No. 06090162.
AILA Doc. No. 06090162.
CA2 Finds Record Shows Worsening Conditions in Belarus
The court held that the IJ and BIA erred in overlooking evidence that conditions in Belarus deteriorated between 1996 and 2000 and remanded the withholding claim. (
Serafimovich v. Ashcroft
, 7/17/06) AILA Doc. No. 06082361.
AILA Doc. No. 06082361.
CA2 Asks BIA to Clarify Standards for Economic Persecution
The court remanded for the BIA to clarify the standard it applied in determining that Petitioner’s treatment did not constitute economic persecution. (
Mirzoyan v. Gonzales
, 7/20/06) AILA Doc. No. 06082266.
AILA Doc. No. 06082266.
CA2 Overturns Adverse Credibility Finding in Forced Sterilization Case
The court held that the IJ’s finding that Petitioner failed to testify about his wife’s sterilization at his first asylum hearing did not support the IJ’s adverse credibility determination. (
Kim v. Gonzales
, 7/19/06) AILA Doc. No. 06082264.
AILA Doc. No. 06082264.
CA2 Remands for BIA to Develop Standards on “Frivolousness”
The court found that substantial evidence supported the negative credibility finding but remanded the IJ’s finding of frivolousness and asked the BIA to formulate standards for deciding when an asylum seeker’s application is frivolous. (
Liu v. DOJ
, 7/11/06) AILA Doc. No. 06081063.
AILA Doc. No. 06081063.
CA2 Reverses IJ’s Fake Document Finding in Chinese Asylum Claim
The court held that the IJ engaged in speculation and made improper inferences in concluding that Petitioner’s 1989 and 1998 marriage certificates were fake. (
Li v. INS
, 6/29/06) AILA Doc. No. 06080864.
AILA Doc. No. 06080864.
CA2 Remands Chinese Asylum Claim Due to IJ Bias and Hostility
The court found that apart from flaws in the adverse credibility finding, remand was required because of the IJ’s apparent bias and hostility, noting that the IJ’s questioning was inappropriate and indicated a bias toward Chinese witnesses. (
Huang v. Gonzales
, 6/29/06) AILA Doc. No. 06080862.
AILA Doc. No. 06080862.
CA2 Finds No Jurisdiction to Review BIA Decision to AWO
The court held that it lacked jurisdiction to review the determination of a single BIA panel member to affirm a decision of the immigration judge without opinion, rather than refer the case for review by a three-member panel. (
Kambolli v. Gonzales
, 5/26/06) AILA Doc. No. 06072868.
AILA Doc. No. 06072868.
CA2 Resolves Timing Issue for MTRs Based on Changed Conditions
The court held that for purposes of a motion to reopen based on changed country conditions, the date the record was closed by the IJ is the date prior to which any evidence must be unavailable. (
Norani v. Gonzales
, 6/16/06) AILA Doc. No. 06072866.
AILA Doc. No. 06072866.
CA2 Reconciles Case Law on BIA Remands
The court reconciled two precedent decisions on when remand to the BIA would be futile finding that remand is not appropriate when the court is confident that the agency would reach the same result upon a reconsideration cleansed of errors. (
Lin v. Gonzales
, 6/28/06) AILA Doc. No. 06072865.
AILA Doc. No. 06072865.
CA2 Remands Where BIA Granted Relief to Spouse on Same Facts
The court remanded to ensure that the denial of the wife's claim was not arbitrary in light of its grant of relief to the husband, where husband and wife feared persecution based on the birth of two children in the U.S. (
Zhang v. Gonzales
, 6/21/06) AILA Doc. No. 06072864.
AILA Doc. No. 06072864.
CA2 on Equitable Tolling of MTRs and Jurisdiction to Review Sua Sponte Decisions
The court held that the BIA did not abuse its discretion in refusing to equitably toll the time period on motions to reopen and that it had no jurisdiction to review the BIA’s discretionary decision not to reopen the case sua sponte. (
Ali v. Gonzales
, 5/12/06) AILA Doc. No. 06072162.
AILA Doc. No. 06072162.
CA2 Finds IJ/BIA Erred in Not Determining Applicant’s Nationality
The court held that an applicant’s nationality is a threshold issue in determining eligibility for asylum and that the IJ and the BIA erred in failing to determine Petitioner’s nationality. (
Wangchuck v. DHS
, 5/15/06) AILA Doc. No. 06070774.
AILA Doc. No. 06070774.
CA2 Rejects Adverse Credibility Finding
The court held that Petitioner’s testimony was not vague where he provided details about his duties with the police force and his involvement in the Democratic Party in Albania and was not asked for additional details. (
Shurdho v. Gonzales
, 6/1/06) AILA Doc. No. 06070770.
AILA Doc. No. 06070770.
CA2 Says Adverse Credibility Rests on Unsupported Assumptions
The court found that part of the IJ’s adverse credibility determination rested on unsupported assumptions about how Burma’s military regime operates. (
Htin v. BCIS
, 6/1/06) AILA Doc. No. 06070769.
AILA Doc. No. 06070769.
CA2 Remands for Consideration of Imputed Political Opinion
The court held that the IJ and BIA erred in reasoning that because Petitioner was not directly harmed by the Ethiopian government, he did not have a well-founded fear and that the IJ and BIA failed to take into account imputed political opinion. (
Maidal v. INS
, 6/5/06) AILA Doc. No. 06070768.
AILA Doc. No. 06070768.
CA2 Says Presumption Arising from I-589 Signature Is Rebuttable
The court held that when challenging the accuracy of an asylum application signed under penalty of perjury, the IJ must evaluate the petitioner's explanations and determine whether the presumption under 8 CFR §208.3(c)(2) has been rebutted. (
Pang v. BCIS
, 5/3/06) AILA Doc. No. 06061461.
AILA Doc. No. 06061461.
CA2 Finds Jurisdiction to Review VWP Asylum Claim
The court found jurisdiction to review the denial of Petitioner’s asylum claim even though her visa waiver case did not occur in a removal proceeding because the denial of her claim was the functional equivalent of a removal order. (
Kanacevic v. INS
, 5/5/06) AILA Doc. No. 06061460.
AILA Doc. No. 06061460.
CA2 Affirms BIA’s Decision in
Matter of Vargas
The court held that first degree manslaughter in violation of New York Penal Code §§125.20(1) or (2) is a crime of violence under 18 USC §18(b) and is therefore, an aggravated felony under INA §101(a)(43)(F). (
Vargas-Sarmiento v. Gonzales
, 5/8/06) AILA Doc. No. 06061367.
AILA Doc. No. 06061367.
CA2 Finds No Jurisdiction to Review BIA "Brief Order"
The court held that it lacks jurisdiction to review the BIA’s denial of Petitioner's motion seeking review of a discretionary adjustment denial and challenging the BIA’s decision to affirm an appeal by a “brief order.” (
Guyadin v. Gonzales
, 5/30/06) AILA Doc. No. 06061360.
AILA Doc. No. 06061360.
CA2 Sets Time Limit for BIA to Issue “Social Group” Decision
Noting that the BIA has not decided whether affluent Guatemalans are a particular social group, the court remanded and gave the BIA 49 days to respond. (
Ucelo-Gomez v. Gonzales
, 5/9/06) AILA Doc. No. 06060963.
AILA Doc. No. 06060963.
CA2 Upholds Adverse Credibility in Chinese Forced Abortion Case
The court upheld the adverse credibility finding where the material inconsistencies between Petitioner’s application and testimony were so self-evident, the IJ/BIA did not have to give Petitioner an opportunity to respond. (
Ye v. Gonzales
, 5/2/06) AILA Doc. No. 06060572.
AILA Doc. No. 06060572.
CA2 Rejects BIA’s Finding of Changed Circumstances in Mauritania
The court found that the BIA relied on an outdated DOS report, accepted the report’s general statements, did not make an individualized assessment of Petitioner’s situation, and failed to consider evidence contradicting the report. (
Tambadou v. Gonzales
, 5/3/06) AILA Doc. No. 06060567.
AILA Doc. No. 06060567.
CA2 Rejects Adverse Credibility in Chinese Asylum Case
The court held that the IJ mischaracterized Petitioner’s testimony, improperly discredited documents, failed to apply the proper test for corroboration, and improperly speculated about Petitioner’s ability to have more children. (
Lin v. Gonzales
, 4/12/06) AILA Doc. No. 06052276.
AILA Doc. No. 06052276.
CA2 Finds No Abuse of Discretion in Denial of CAT Claim
The court found jurisdiction to review the denial of a continuance, upheld the IJ’s adverse credibility determination as supported by substantial evidence, and held that the BIA did not abuse its discretion in refusing to remand. (
, 4/18/06) AILA Doc. No. 06052268.
AILA Doc. No. 06052268.
CA2 Finds Changed Conditions in Pakistani Christian Case
The court held that the BIA abused its discretion in refusing to reopen based on worsening country conditions and that an applicant may prevail on future persecution despite an adverse credibility determination as to past persecution. (
Paul v. Gonzales
, 4/6/06) AILA Doc. No. 06052267.
AILA Doc. No. 06052267.
CA2 Rejects Adverse Credibility Determination in Russian Asylum Claim
The court found that six of the seven bases given by the IJ for his adverse credibility determination were erroneous, and noted that the IJ’s decision contained misstatements of Petitioner’s testimony and flawed reasoning. (
Pavlova v. INS
, 3/14/06) AILA Doc. No. 06052261.
AILA Doc. No. 06052261.
CA2 Finds No Well-founded Fear of Persecution in China
The court denied asylum where Petitioner based his claim on the fear that he would be arrested and sent to a labor camp for twice distributing pro-democracy flyers when he was 16 years old. (
Lin v. Gonzales
, 3/17/06) AILA Doc. No. 06050871.
AILA Doc. No. 06050871.
CA2 Says IJ Erred in Denying Asylum for Lack of Doctrinal Knowledge
The court held that the IJ erred in finding Petitioner lacked credibility due to his limited knowledge of Christian doctrine without assessing the genuineness of his Christian beliefs. (
Rizal v. Gonzales
, 3/21/06) AILA Doc. No. 06050868.
AILA Doc. No. 06050868.
CA2 Affirms Dismissal of State Tort Action Brought By Q-2 Visa Holders
The court affirmed the dismissal of a case brought against the program administrator of The Irish Peace Process Cultural and Training Program for tort violations after their employer accused them of being national security threats. (
Murray v. Northrop Grumman
, 4/10/06) AILA Doc. No. 06050361.
AILA Doc. No. 06050361.
CA2 Vacates Conviction for Illegal Re-entry After Deportation
The court held that the IJ and BIA’s erroneous information on the availability of §212(c) was “a powerful deterrent from seeking judicial relief,” which deprived Petitioner of a realistic opportunity to obtain review. (
U.S. v. Lopez
, 4/4/06) AILA Doc. No. 06050160.
AILA Doc. No. 06050160.
CA2 Discusses Subtle Inconsistencies and Credibility Determinations
In a case of first impression, the court held that where an inconsistency is not self-evident, an IJ may not rely on it without first bringing it to the attention of the applicant and giving the applicant the opportunity to explain. (
Xue v. BIA
, 2/21/06) AILA Doc. No. 06041419.
AILA Doc. No. 06041419.
CA2 Says Women Sold into Marriage in China Is a Social Group
The court found that women who have been sold into marriage and who live in a part of China where forced marriages are considered valid and enforceable is a particular social group for purposes of asylum. (
Gao v. Gonzales
, 3/3/06) AILA Doc. No. 06041417.
AILA Doc. No. 06041417.
CA2 Finds No Jurisdiction to Review Denial of Adjustment and §212(h) Waiver
The court held that INA §242(a)(2)(B)(i) barred review of the denial of an application for adjustment of status and §212(h) waiver because such denials are committed to the Attorney General’s discretion. (
Bugayong v. INS
, 3/15/06) AILA Doc. No. 06041062.
AILA Doc. No. 06041062.
CA2 Says No Jurisdiction to Review Smuggling Waiver
The court held INA §242(a)(2)(B)(ii) barred review of the denial of a smuggling waiver under INA §212(d)(11) because such denials are committed to the Attorney General’s discretion. (
Saloum v. Gonzales
, 2/6/06) AILA Doc. No. 06040462.
AILA Doc. No. 06040462.
CA2 Rejects Untimely Motion to Reopen
The court held that Petitioner did not qualify for an exception for untimely motions because he did not show changed conditions in China and his ineffective assistance of counsel claim was raised 20 months after the BIA’s decision. (
Chen v. Gonzales
, 2/13/06) AILA Doc. No. 06032423.
AILA Doc. No. 06032423.
CA2 Upholds Adverse Credibility, Says Remand Would Be Futile
The court found that the IJ misstated evidence and erred in speculating that Petitioner was not a Sikh but still held that there were ample grounds to support adverse credibility and that remand would be futile. (
Singh v. BIA
, 2/14/06) AILA Doc. No. 06032422.
AILA Doc. No. 06032422.
CA2 Rejects "Safe Haven" Finding
The court overturned the IJ’s safe haven finding where it was issued three days after the repeal of the regulation that allowed for a discretionary denial on that basis. (
Tandia v. Gonzales
, 2/7/06) AILA Doc. No. 06032019.
AILA Doc. No. 06032019.
CA2 Says BIA Erred in Denying MTR, But Remand Would Be Futile
The court noted that the BIA erred in denying a motion to reopen by failing to assess whether country conditions had changed, but found that remand would be futile because the BIA addressed the error in denying the motion to reconsider. (
Alam v. Gonzales
, 2/17/06) AILA Doc. No. 06031765.
AILA Doc. No. 06031765.
CA2 Says IJ Must Inquire Into Fear of Sterilization as Basis for CAT
The court noted that neither it nor the BIA had determined whether forced sterilization amounts to torture and that it was error for the IJ to conclude that Article III of CAT was inapplicable where the IJ made no individual inquiry. (
Ni v. BIA
, 2/13/06) AILA Doc. No. 06031744.
AILA Doc. No. 06031744.
CA2 Upholds Denial of MTR in Chinese Family Planning Case
The court held that the BIA did not abuse its discretion because it considered and rejected evidence of changed country conditions, and further concluded that remand would be futile. (
Wang v. BIA
, 2/17/06) AILA Doc. No. 06031763.
AILA Doc. No. 06031763.
CA2 Denies Motion to Reinstate Petition for Review
The court acknowledged its authority to reinstate a petition for review “where manifest injustice would otherwise result,” however, it denied the motion because it concluded the petition for review was meritless. (
Valbrun v. Gonzales
, 2/22/06) AILA Doc. No. 06031561.
AILA Doc. No. 06031561.
CA2 Adopts “Totality of the Circumstances” Test for Firm Resettlement Determination
The court adopted a totality of the circumstances test and concluded that the IJ’s finding of firm resettlement was not supported by substantial evidence. (
Sall v. Gonzales
, 2/3/06) AILA Doc. No. 06030964.
AILA Doc. No. 06030964.
CA2 Upholds Denial of MTR in Ethnic Albanian Asylum Claim
The court held that the DOS report contained only general statements, but the BIA did not err in finding no well-founded fear. The court was troubled, however, by the BIA’s taking of administrative notice of improved conditions in Macedonia. (
Adjin v. Gonzales
, 2/9/06) AILA Doc. No. 06030963.
AILA Doc. No. 06030963.
CA2 Says IJ Erred, But Upholds Negative Credibility Finding
The court held that the IJ erred in finding that Petitioner’s testimony lacked detail, but nonetheless concluded that the IJ’s denial of asylum was supported by substantial evidence. (
Qyteza v. Gonzales
, 2/2/06) AILA Doc. No. 06030962.
AILA Doc. No. 06030962.
CA2 Finds IJ Abused His Discretion in Denying Asylum in Forced Sterilization Case
The court held that the IJ abused his discretion by not considering the totality of the circumstances, relying instead on findings that part of Petitioner’s story was false and he had used a smuggler. (
Huang v. INS
, 1/25/06) AILA Doc. No. 06022361.
AILA Doc. No. 06022361.
CA2 Lacks Jurisdiction to Review Hardship Determination for Cancellation
Joining several other circuits, the court held that INA §242(a)(2)(B)(i) barred it from reviewing the purely discretionary determination of whether a person demonstrated hardship to merit cancellation of removal. (
De La Vega v. Gonzales
, 1/27/06) AILA Doc. No. 06021713.
AILA Doc. No. 06021713.
CA2 Upholds Adverse Credibility, Concedes Other Panel Might Have Found Otherwise
In a Chinese family planning case, the court held that the IJ’s implausibility finding was supported by substantial evidence, but noted that other panels could have decided differently. (
Chen v. Gonzales
, 1/12/06) AILA Doc. No. 06021020.
AILA Doc. No. 06021020.
CA2 Remands Withholding, Finds IJ Ignored Testimony
The court remanded Petitioner's claim of withholding from the Republic of Georgia because the IJ failed to consider the harm Petitioner suffered. (
Ivanishvili v. Gonzales
, 1/5/06) AILA Doc. No. 06020872.
AILA Doc. No. 06020872.
CA2 Says Transporting Women to Forced Abortions Is Assisting in Persecution
The court found that the IJ correctly concluded that Petitioner’s actions in transporting captive women to undergo forced abortions was assistance in persecution and therefore, a bar to asylum. (
Xie v. Gonzales
, 1/5/06) AILA Doc. No. 06020870.
AILA Doc. No. 06020870.
CA2 Addresses “Materiality” of Misrepresentation
The court held that a misrepresentation is material if it “has a natural tendency to influence or was capable of influencing” the ageny’s decision. (
Monter v. Gonzales
, 11/14/05) AILA Doc. No. 06010960.
AILA Doc. No. 06010960.
CA2 Uses Airport Interview to Uphold Negative Credibility Finding
The court noted that it exercises caution when reviewing airport statements, but found no indication that Petitioner’s statement was coerced, truncated, or mistranslated. (
Guan v. Gonzales
, 12/23/05) AILA Doc. No. 06012565.
AILA Doc. No. 06012565.
CA2 Discusses One-Year Asylum Deadline and “Last Arrival"
(77 KB - 1/18/2006)
The court found Petitioner's asylum application untimely and concluded that the term "last arrival in the United States" should not include return on parole after a brief trip abroad. (
Joaquin-Porras v. Gonzales
, 1/18/06) AILA Doc. No. 06011890.
AILA Doc. No. 06011890.
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