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Cases & Decisions
CA2 Vacates Adverse Credibility and Persecutor Bar in Russian Claim
(176 KB - 12/8/2008)
The court could not determine the basis for the adverse credibility determination and remanded. The court also held that substantial evidence did not support the persecutor bar. (
Balachova v. Mukasey
, 11/12/08). AILA Doc. No. 08120863.
AILA Doc. No. 08120863.
CA2 Upholds 3-Part Test for Asylum Based on More than One Child
(636 KB - 11/24/2008)
The court found that the well-founded fear requirement for more than one child in China must be decided on a case-by-case basis and that the BIA’s three-step evidentiary analysis did not increase the burden of proof. (
Shao v. Mukasey
, 10/10/08). AILA Doc. No. 08112467.
AILA Doc. No. 08112467.
CA2 Finds Connecticut First Degree Larceny Is a CIMT
(128 KB - 11/24/2008)
The court held that Connecticut first degree larceny for “defrauding a public community,” is a crime involving moral turpitude. (
Mendez v. Mukasey
, 11/6/08). AILA Doc. No. 08112461.
AILA Doc. No. 08112461.
CA2 Finds BIA Failed to Make Individualized Analysis of Changed Conditions
(162 KB - 11/4/2008)
The court held that the BIA failed to address the evidence of continued persecution of Serbian minorities in Montenegro and failed to conduct an individualized analysis of changed conditions. (
Alibasic v. Mukasey
, 10/17/08). AILA Doc. No. 0811047.
AILA Doc. No. 0811047.
CA2 on Burden of Proof in Abandonment of Status Determination
(173 KB - 10/30/2008)
The court found that because the petitioner left the country as an LPR, the sole question is whether she abandoned that status during her trip abroad, which DHS bore the burden of proving by clear, unequivocal and convincing evidence. (
Matadin v. Mukasey
, 10/8/08). AILA Doc. No. 08103064.
AILA Doc. No. 08103064.
CA2 Finds APA Jurisdiction to Review LPR Rescission Claims
(254 KB - 10/30/2008)
The court found that Petitioner’s complaint alleging that she was granted LPR status, which was subsequently rescinded without mandatory procedures, stated two APA claims upon which relief could be granted. (
Sharkey v. Quarantillo
, 9/3/08). AILA Doc. No. 08103063.
AILA Doc. No. 08103063.
CA2 Finds Removal Proceedings Preclude Court’s Ability to Grant Naturalization
(237 KB - 10/29/2008)
The court found that the district court properly dismissed the petitioner’s 8 USC §1447(b) claim for failure to state a claim on which naturalization relief could be granted while removal proceedings were pending. (
Ajlani v. Chertoff
, 10/7/08). AILA Doc. No. 08102962.
AILA Doc. No. 08102962.
CA2 Finds BIA Erred in Aggravated Felony Analysis
(209 KB - 10/22/2008)
The court vacated the finding that in determining whether an offense was committed for commercial advantage, the inquiry need not be restricted to the “elements” needed for conviction. (
Gertsenshteyn v. DOJ
, 9/25/08). AILA Doc. No. 08102267.
AILA Doc. No. 08102267.
CA2 Remands for Standards on Continuances for Labor Certification Adjudication
(142 KB - 10/21/2008)
The court found that it could not adequately consider whether the BIA abused its discretion in denying a motion for continuance without standards explicating when continuances for labor certification are permissible. (
Rajah v. Mukasey
, 9/24/08). AILA Doc. No. 08102164.
AILA Doc. No. 08102164.
CA2 Rejects Changed Personal Circumstances for MTR
The court found that the BIA did not abuse its discretion in denying Petitioners’ motions to reopen, finding the birth of additional children to be a change in personal circumstances, not country conditions under 8 CFR §1003.2(c)(3)(ii). (
Jin v. Mukasey
, 8/15/08) AILA Doc. No. 08101464.
AILA Doc. No. 08101464.
CA2 Addresses Seizure and Exclusion of Evidence under
(141 KB - 10/7/2008)
The court concluded that the petitioners were not seized within the meaning of the fourth amendment, so it need not consider what role race played in the stop or whether it was sufficiently egregious to justify suppression. (
Pinto-Montoya v. Mukasey
, 8/26/08) AILA Doc. No. 08100760.
AILA Doc. No. 08100760.
CA2 Refuses to Review Reinstatement Order
(131 KB - 10/6/2008)
The court held that
forecloses a challenge to the reinstatement regulations and found that a collateral attack on a prior reinstatement order is statutorily barred. (
Miller v. Mukasey
, 8/21/08) AILA Doc. No. 08100669.
AILA Doc. No. 08100669.
CA2 Remands for Clarification on Notice to Minors
(133 KB - 10/1/2008)
The court remanded to the BIA to provide clarification of the statutory and regulatory framework regarding serving notice to minors, particularly those released to a responsible adult under 8 CFR §236.3(a). (
Llanos-Fernandez v. Mukasey
, 7/22/08) AILA Doc. No. 08100171.
AILA Doc. No. 08100171.
CA2 Finds §240 Proceedings Separate from Reinstatement Statute
(138 KB - 10/1/2008)
The court refused to vacate the reinstatement order, finding that the requirement of an IJ hearing does not apply to illegal re-entrants because INA §241(a)(5) is an alternative to the procedures mandated by INA §240. (
Garcia-Villeda v. Mukasey
, 7/8/08). AILA Doc. No. 08100170.
AILA Doc. No. 08100170.
CA2 Finds BIA Erred in Changed Country Conditions Analysis
The court found that the inference that Petitioner no longer had a well-founded fear was based entirely on a report that detailed general improvements in the Congo though conflict persisted in Petitioner’s hometown. (
Passi v. Mukasey
, 7/23/08) AILA Doc. No. 08091662.
AILA Doc. No. 08091662.
CA2 Finds Credibility Precedent Abrogated by REAL ID Act
The court found that its prior holding in
, that an IJ may not base credibility on collateral inconsistencies and omissions, was abrogated by the REAL ID Act and that an IJ may rely on any inconsistency or omission. (
Lin v. Mukasey
, 7/21/08) AILA Doc. No. 08091661.
AILA Doc. No. 08091661.
CA2 Upholds Validity of Reinstatement Regulation at 8 CFR §241.8
The court held that 8 CFR §241.8, which allows an immigration officer to reinstate a prior order of removal, is a valid interpretation of the reinstatement provision at INA §241(a)(5). (
Garcia-Villeda v. Mukasey
, 7/8/08) AILA Doc. No. 08082664.
AILA Doc. No. 08082664.
CA2 Finds Jurisdiction to Review “Particularly Serious Crime” Determination
The court found jurisdiction to review whether Petitioner was convicted of a “particularly serious crime” for purposes of asylum and withholding because the determination is not within the discretion of the Attorney General. (
Nethagani v. Mukasey
, 7/9/08) AILA Doc. No. 08082272.
AILA Doc. No. 08082272.
CA2 Remands CAT Claim Due to IJ’s Remarks about Homosexuality
The court found that the IJ’s comments were disrespectful to Petitioner and reflected an impermissible reliance on preconceived notions about homosexuality. (
Ali v. Mukasey
, 6/18/08) AILA Doc. No. 08080162.
AILA Doc. No. 08080162.
CA2 Remands Adverse Credibility Finding In Falun Gong Case
The court remanded the case in light of its recent decisions indicating that certain inquiries or findings are necessary before the agency can hold that vague or unauthenticated evidence is not credible. (
Li v. Mukasey
, 6/13/08) AILA Doc. No. 08072868.
AILA Doc. No. 08072868.
Matter of A-T-
; Remands FGM Cases
The court held that the BIA erred in the application of the withholding regulations when it denied relief to three women who had experienced past FGM. The court declined to follow the reasoning and holding of
Bah v. Mukasey
, 6/11/08) AILA Doc. No. 08072265.
AILA Doc. No. 08072265.
CA2 Remands for Finding on Persecutor’s Awareness of U.S. Activities
The court remanded Petitioner's withholding claim for the IJ to consider whether authorities were aware or were likely to become aware of Petitioner’s political activities in the U.S. (
Leng v. Mukasey
, 6/6/08) AILA Doc. No. 08072264.
AILA Doc. No. 08072264.
CA2 Rejects Res Judicata to Bar Second Removal Proceedings
The court held that res judicata did not bar new proceedings based on a robbery conviction when Petitioner's first proceedings were based on a firearms conviction because the second suit was based on a separate set of factual predicates. (
Channer v. DHS
, 5/30/08) AILA Doc. No. 08071862.
AILA Doc. No. 08071862.
CA2 Remands, Finds Petitioner Did Not Waive His Right to Appeal
The court held that while accepting an IJ’s decision as final can serve as an effective waiver of appeal, the record did not support the conclusion that Petitioner or counsel understood the nature of the waiver. (
Ali v. Mukasey
, 5/2/08) AILA Doc. No. 08070262.
AILA Doc. No. 08070262.
CA2 Says IJ May Accept Late Filed Supporting Asylum Docs
The court held that where an asylum applicant has demonstrated good cause for failure to timely file documents and a likelihood of substantial prejudice, the IJ may depart from the deadline imposed by relevant local rules. (
Dedji v. Mukasey
, 5/8/08) AILA Doc. No. 08062862.
AILA Doc. No. 08062862.
CA2 Finds Criminal Stop-Time Rule Not Impermissibly Retroactive
The court held that the stop-time rule was not impermissibly retroactive as applied to Petitioner, whose proceedings were initiated post-IIRIRA, but the criminal conduct occurred pre-IIRIRA. (
Martinez v. INS
, 4/23/08) AILA Doc. No. 08062359.
AILA Doc. No. 08062359.
CA2 Remands for Reconsideration of Derivative Citizenship Claim
The court held that an inexplicable delay in processing a parent’s naturalization application should not defeat a derivative citizenship claim. (
Poole v. Mukasey
, 3/27/08) AILA Doc. No. 08052164.
AILA Doc. No. 08052164.
CA2 on Adjustment of Status Filed by Arriving Aliens
The court held that the BIA erred in denying Petitioners’ motions for lack of jurisdiction and wrongly assumed that the arriving aliens intended to pursue their adjustment applications in removal proceedings rather than before USCIS. (
Ni v. BIA
, 3/14/08) AILA Doc. No. 08050541.
AILA Doc. No. 08050541.
CA2 Rejects Vagueness Challenge to INA Stalking Provision
The court held that INA §237(a)(2)(E)(i), which renders deportable a person who has been convicted of a crime of stalking, is not void for vagueness on its face or as applied to Petitioner. (
Arriaga v. Mukasey
, 3/27/08) AILA Doc. No. 08050540.
AILA Doc. No. 08050540.
CA2 Rejects IMMACT90 and AEDPA §212(c) Retroactivity Arguments
The court rejected Petitioner’s retroactivity arguments where he admitted guilt to a felony pre-IMMACT90, but pleaded guilty post-IMMACT90 and because he was ineligible for §212(c) relief, even under pre-AEDPA law. (
Singh v. Mukasey
, 3/14/08) AILA Doc. No. 08041770.
AILA Doc. No. 08041770.
CA2 Remands Issue of Whether Forcible IUD Insertion Constitutes Persecution
The court remanded to the BIA to articulate a consistent position on whether and under what conditions forced insertion of an IUD constitutes persecution. (
Jiang v. BCIS
, 3/14/08) AILA Doc. No. 08041762.
AILA Doc. No. 08041762.
CA2 Remands Asylum Case Due to Confidentiality Breach and False Documents
The court held that the BIA erred in concluding that the government had not violated the confidentiality regulation when it disclosed Petitioner’s name to the Macedonian authorities. (
Corovic v. Mukasey
, 3/7/08) AILA Doc. No. 08041062.
AILA Doc. No. 08041062.
CA2 Remands Frivolous Finding where Applicant Recanted before Final Decision
The court remanded where the applicant admitted filing a materially false asylum application, but withdrew it before the IJ made a final determination on the application. (
Zheng v. Mukasey
, 2/1/08) AILA Doc. No. 08040360.
AILA Doc. No. 08040360.
CA2 Discusses Definition of “Conviction” in Context of Juvenile Offense
The court rejected Petitioner’s argument had he been prosecuted under federal law, his juvenile conviction would not have counted for immigration purposes and held that his state conviction qualified as a “conviction” under the INA. (
Savchuck v. Mukasey
, 3/4/08) AILA Doc. No. 08040258.
AILA Doc. No. 08040258.
CA2 Remands for Individualized Showing of Reliance on §212(c) Availability
The court held that a
claim of reliance, if proven, would make AEDPA’s bar to §212(c) for aggravated felons impermissibly retroactive as applied, even though Petitioner's conviction was on appeal when AEDPA took effect. (
Walcott v. Chertoff
, 2/28/08). AILA Doc. No. 08040279.
AILA Doc. No. 08040279.
CA2 on Ineffective Assistance of Counsel Through Paralegal
The court held that the BIA’s logic that a lawyer’s bad advice concerning a hearing date can constitute “exceptional circumstances” for purposes of reopening an in absentia order, also applies to the communication of a paralegal. (
Aris v. Mukasey
, 2/20/08). AILA Doc. No. 08040278.
AILA Doc. No. 08040278.
CA2 Finds BIA Applied Improper Presumption of Receipt to Notice Sent by Regular Mail
The court held that the burden of proof to overcome the “slight presumption” of receipt of NTAs sent by regular mail is significantly lower than the “substantial and probative” burden in the context of certified mail. (
Silva-Carvalho Lopes v. Mukasey,
2/21/08) AILA Doc. No. 08040276.
AILA Doc. No. 08040276.
CA2 Adopts 30 Day Grace Period for Certain Post-REAL ID Petitions for Review
The court held that where a final order of removal was issued prior to REAL ID's enactment, a petition for review will be considered timely filed if filed within 30 days of May 11, 2005. (
Ruiz-Martinez v. Mukasey
, 2/14/08) AILA Doc. No. 08040260.
AILA Doc. No. 08040260.
CA2 Remands for Reconsideration of MTR Based on
The court found no 4th Amendment violation in the detention and interrogation of Petitioner at a mobile checkpoint but held that the BIA may not deny a motion to reopen under
solely on the fact of DHS’s objection. (
Melnitsenko v. Mukasey
, 2/6/08) AILA Doc. No. 08030779.
AILA Doc. No. 08030779.
CA2 Says §212(a)(9)(C)(i)(II) Trumps §245(i) Adjustment
The court held that a person inadmissible under INA §212(a)(9)(C)(i)(II) is ineligible for §245(i) adjustment of status and inadmissibility under that subsection may not be waived by 8 CFR §212.2. (
Delgado v. Mukasey
, 2/7/08) AILA Doc. No. 08030778.
AILA Doc. No. 08030778.
CA2 Finds No §245(i) Adjustment for CSPA Applicants Who Entered Without Inspection
The court found reasonable the BIA’s holding that INA §245(i) does not provide an avenue for renewing or amending a CSPA application for adjustment that was previously denied because the applicant entered without inspection. (
Lin v. BCIS
, 1/28/08) AILA Doc. No. 08030766.
AILA Doc. No. 08030766.
CA2 Upholds IJ’s Negative Credibility Finding Based on False PPP Card
The court found that the IJ’s determination that Petitioner’s Pakistani Peoples Party card was invalid was a proper basis for discrediting his testimony. (
Zaman v. Mukasey
, 1/23/08) AILA Doc. No. 08022767.
AILA Doc. No. 08022767.
CA2 on “Formal Judgment of Guilt” Under INA §101(a)(48)(A)
The court held that the entry of a “formal judgment of guilt … by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty. (
Puello v. BCIS
, 12/20/07) AILA Doc. No. 08012966.
AILA Doc. No. 08012966.
CA2 Overturns Adverse Credibility Finding Due to Speculation re: Documents
The court held that the IJ’s speculation regarding Petitioner’s identity document from Mauritania and refugee document from Senegal could not support an adverse credibility finding. (
Niang v. Mukasey
, 12/19/07) AILA Doc. No. 08011769.
AILA Doc. No. 08011769.
CA2 Finds Asylum Applicant’s Testimony Inherently Implausible
The court held that a finding of implausibility must be based on more than bald speculation and that the IJ permissibly relied on testimony and record facts to infer that Petitioner’s story was implausible. (
Yan v. Mukasey
, 12/4/07) AILA Doc. No. 08010864.
AILA Doc. No. 08010864.
CA2 Says Abortion Not “Forced” if Officials Unaware of Pregnancy
The court upheld the BIA’s finding that an abortion is not “forced” unless the harm for the refusal to abort would amount to persecution and that because the government was not aware of the pregnancy, there was no threatened harm. (
Xia v. Mukasey
, 12/7/07) AILA Doc. No. 08010863.
AILA Doc. No. 08010863.
CA2 Remands on Issue of “Pattern or Practice” of Persecution of Christians
The court remanded where the BIA considered only whether Petitioner had been singled out for persecution and did not consider his claim that there was a pattern or practice of persecution of Christians in Indonesia. (
Mufied v. Mukasey
, 11/20/07) AILA Doc. No. 08010862.
AILA Doc. No. 08010862.
CA2 Says No Jurisdiction to Review Timeliness of Asylum
The court reversed its previous decision and held that it lacked jurisdiction to review the IJ’s determination on the timeliness of Petitioner’s asylum application. (
Liu v. INS
, 11/30/07) AILA Doc. No. 08010861.
AILA Doc. No. 08010861.
CA2 Remands Asylum Claim of Colombian Kidnapped by FARC
The court remanded the case because of the BIA’s flawed reasoning that kidnapping could not amount to persecution. (
Delgado v. Mukasey
, 11/28/07) AILA Doc. No. 08010860.
AILA Doc. No. 08010860.
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