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2006

  • CA11 Overturns IJ’s Finding that Asylum Applications Were Frivolous (11/30/2006)
    The court determined that an IJ has authority to enter a ruling of frivolousness for an asylum application that has been found to be untimely filed. The court then concluded that the IJ and BIA failed to make findings establishing frivolousness and failed to provide an opportunity to address inconsistencies. (Mingkid v. U.S. Atty. Gen., 10/26/06). AILA Doc. No. 06113061.
  • CA11 Remands Religious Persecution Claim of Jehovah’s Witness from Georgia (11/10/2006)
    The court found that the IJ and BIA did not give reasoned consideration to the claim and did not make adequate findings. The court concluded that Petitioner’s commitment to his faith in the U.S. and whether he adopted the faith in his homeland show little about whether he suffered persecution in Georgia. (Mezvrishvili v. U.S. Atty. Gen., 10/17/06). AILA Doc. No. 06111017.
  • CA11 Finds that IJ Can Reopen Proceedings After Removal (10/24/2006)
    The court held that even though Petitioner had already been removed, the IJ retained jurisdiction to reopen in absentia proceedings to address whether Petitioner had received notice of the hearing. 8 CFR §1003.23(b)(4) permits a motion to reopen based on lack of notice to be filed “at any time.” (Contreras-Rodriguez v. U.S. Att’y Gen., 08/29/06). AILA Doc. No. 06102461.
  • CA11 Finds Exhaustion Necessary for Issues Raised Sua Sponte by BIA (10/17/2006)
    The court refused to review a claim that had not been presented to the BIA, even though the BIA has considered it sua sponte. The court held that the exhaustion doctrine exists to avoid premature interference with administrative processes and to allow the agency to consider the relevant issues. (Amaya-Artunduaga v. U.S. Atty. Gen., 9/11/06). AILA Doc. No. 06101761.
  • CA11 Finds Jurisdiction to Review Continuance Denial (10/17/2006)
    The court held that the discretionary bar to judicial review at INA §242(a)(2)(B)(ii) did not apply because denials of motions to continue are not statutorily-proscribed discretionary acts ‘specified under [the relevant] subsection’ to the Attorney General.” (Zafar v. US Att’y Gen., 08/24/06). AILA Doc. No. 06101760.
  • CA11 Finds IJ May Rely on Irrelevant Inconsistencies under REAL ID Act (10/12/2006)
    The court dismissed Petitioner’s argument that the inconsistencies cited by the IJ for his negative credibility determination were “trivial” and “irrelevant.” The court found that, under the REAL ID Act, the trier of fact may base a credibility determination on “any inaccuracies or falsehoods.” (Chen v. U.S. Atty. Gen., 9/8/06). AILA Doc. No. 06101261.
  • CA11 BIA Erred in Denying Motion to Reopen Colombian Asylum Case (8/28/2006)
    The court found that the evidence offered by the Petitioner in her motion to reopen was unavailable at the time of her previous hearing and called into question the credibility of a witness who was material to the IJ’s assessment of her claim. The court concluded the BIA erred in denying the motion. (Verano-Velasco v. U.S. Atty. Gen., 7/24/06). AILA Doc. No. 06082869.
  • CA11 Holds BIA Abused its Discretion in Summarily Dismissing Appeal (8/15/2006)
    The court held that where the notice of appeal sets forth the basis of appeal, the BIA abused its discretion in summarily dismissing the appeal solely because Petitioners indicated that they would file a supporting brief, but failed to file a brief or offer an explanation for not doing so. (Esponda v. U.S. Att’y Gen., 06/28/06)
  • CA11 Reverses District Court’s Award of EAJA Fees and Costs (8/11/2006)
    The court held that where a lawsuit acts as a “catalyst,” prompting the government to act, and resulting in dismissal of the case, the plaintiffs were not “prevailing parties” entitled to an award of costs and attorney’s fees under EAJA. (Morillo-Cedron, 06/21/06)
  • CA11 Holds a Timely Filed Motion to Reopen Tolls Voluntary Departure Period (8/11/2006)
    The court held that a timely filed motion to reopen tolls the period of voluntary departure, to afford the opportunity for a ruling on the merits of the motion, without jeopardizing eligibility for benefits sought by overstaying the voluntary departure period. (Ugokwe v. Att’y Gen., 06/28/06). AILA Doc. No. 06081160.
  • CA11 Discusses Meaning of “Lawfully Admitted” in the 212(c) Context (7/31/2006)
    The court held that Petitioner was not eligible for relief under INA §212(c) because he was not “lawfully admitted” for permanent resident status when INS erroneously granted his adjustment of status application in spite of his conviction involving a controlled substance. (Savoury v. U.S. Att’y Gen., 05/25/06). AILA Doc. No. 06073161.
  • CA11 Holds Five-Day Detention of Falun Gong Member Not Persecution (7/28/2006)
    The court found that although under certain circumstances detention may rise to the level of persecution, Petitioner’s five-day detention during which he was unharmed did not compel the conclusion that Petitioner suffered past persecution. The court also held that he failed to establish a well-founded fear. (Zheng v. U.S. Atty. Gen., 6/14/06). AILA Doc. No. 06072863.
  • CA11 Finds Colombian Failed to Show Persecution “On Account of” Political Opinion (6/19/2006)
    The court held that, viewed in the light most favorable to the findings of fact of the IJ, the record did not compel a finding that Petitioner suffered past persecution on account of her political activity. The court also found that Petitioner’s subjective fear of persecution was not objectively well-founded. (Silva v. U.S. Atty. General, 5/5/06). AILA Doc. No. 06061968.
  • CA11 Finds IJ Failed to Give Reasoned Decision in Asylum Claim (6/5/2006)
    The court held that the IJ failed to render a reasoned decision in light of Petitioner’s credible testimony and other evidence submitted. The court noted that the IJ provided no response to the inference that Petitioner, a Christian from Indonesia, was targeted by Muslim men because of her Chinese ethnicity. (Tan v. U.S. Atty. Gen., 5/1/06). AILA Doc. No. 06060568.
  • CA11 Upholds Denial of Asylum, Withholding and CAT Claims (5/22/2006)
    The court held that it had jurisdiction to hear the appeal because one of Petitioner’s convictions was vacated based on a finding that his rights were violated. The court then held it lacked jurisdiction to review his asylum claim due to the one-year deadline bar and upheld the IJ’s denial of withholding and CAT. (Alim v. Gonzales, 4/19/06). AILA Doc. No. 06052266.
  • CA11 Concludes Informants Are Not a Particular Social Group (5/22/2006)
    The court applied Chevron deference to the BIA’s definition of particular social group in Matter of Acosta. Following other circuits, the court agreed with the BIA’s holding that non-criminal defendants working against the Cali cartel in Colombia are not a particular social group for asylum purposes. (Castillo-Arias v. Gonzales, 4/20/06)
  • CA11 Strikes Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings. (4/17/2006)
    In Scheerer v. U.S. Attorney General, __ F.3d __, 2006 U.S. App. LEXIS 9278 (11th Cir. April 13, 2006), the Eleventh Circuit has joined the First, Third and Ninth Circuits, and struck down 8 C.F.R. § 1245.1(c)(8) because it violates § 245(a) of the Immigration and Nationality Act (INA). AILA Doc. No. 06041710.
  • CA11 Holds DHS Failed to Meet Its Burden of Showing Relocation within Colombia Was Reasonable for Family Fleeing the FARC (2/8/2006)
    The court found that the burden was on DHS to show that internal relocation was reasonable because the BIA presumed past persecution. The court concluded that the record compelled a finding that the FARC operates country-wide and the BIA failed to consider whether Petitioners could find safe haven. (Arboleda v. U.S. Atty. Gen., 1/3/06). AILA Doc. No. 06020869.