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2008 - 2007

  • CA6 Upholds Negative Credibility Finding Based on Blatant Overstatement(96 KB - 12/9/2008)
    The court found that the failure to include every detail in an asylum application should not be fatal to an asylum claim. Nevertheless, the court held that Petitioner’s blatant overstatement of the dangers faced by relatives in the Ivory Coast was sufficient to support the IJ’s negative credibility determination. (Kaba v. Mukasey, 11/13/08). AILA Doc. No. 08120964.
    AILA Doc. No. 08120964.
  • CA6 Finds a Birth of Two US Children Cannot Support MTR Asylum Claim(88 KB - 11/4/2008)
    The court joined 5 of its sister circuits in upholding the BIA’s determination that, after a removal order is final for 90 days or more, the exclusive avenue for relief is a motion to reopen and an additional asylum application is permissible if supported by changed country conditions, not changed personal circumstances. (Zhang v. Mukasey, 10/8/08). AILA Doc. No. 08110468.
    AILA Doc. No. 08110468.
  • CA6 Finds that an Aggravated Felony Crime of Violence is not Equivalent to §212(a) CIMT(88 KB - 11/3/2008)
    Court concludes the Cambodian petitioner is not eligible for INA§ 212(c) relief, as an aggravated felony crime of violence ground for removal is not substantially equivalent to a CIMT ground for exclusion such that the two could be statutory counterparts. Also, finds he did not qualify for withholding. (Thap v. Mukasey, 10/15/08). AILA Doc. No. 08110369.
    AILA Doc. No. 08110369.
  • CA6 Reverses Adverse Credibility Finding for Relying on AO’s Assessment(103 KB - 10/27/2008)
    The court held that the substantial evidence did not support the BIA’s adverse credibility finding because it was based on an Asylum Officer’s (AO’s) Assessment to Refer which lacked standard indicia of reliability. The court found that the BIA made a key factual mistake and that the evidence compelled a reversal. (Koulibaly v. Mukasey, 9/4/08) AILA Doc. No. 08102762.
    AILA Doc. No. 08102762.
  • CA6 Rejects Finding That Two State Misdemeanor Drug Convictions Constitute an Aggravated Felony (8/26/2008)
    The court held that under the hypothetical federal-felony approach, two state misdemeanor drug possession convictions cannot combine to constitute an aggravated felony recidivist offense where the second misdemeanor conviction makes no reference to the first misdemeanor conviction. (Rashid v. Mukasey, 6/26/08). AILA Doc. No. 08082665.
    AILA Doc. No. 08082665.
  • CA6 Rejects Chinese Withholding and CAT Claims Based on U.S. Born Children (6/28/2008)
    The court noted that children born outside of China are not counted for purposes of China’s population control policies continues to be accepted by the BIA, as well as other appeals courts. The court held that Petitioner failed to demonstrate that the evidence compelled a different conclusion. (Huang v. Mukasey, 4/25/08). AILA Doc. No. 08062863.
    AILA Doc. No. 08062863.
  • CA6 Finds “Personal Dispute” with UAE Prince Not Basis for Asylum (6/26/2008)
    The court found substantial evidence supported the IJ’s conclusion that Petitioner was an angry investor, not a political dissident, when he confronted a United Arab Emirates Prince and called him a thief. The court held that asylum is not available to an applicant who fears retribution solely over a personal matter. (Zoarab v. Mukasey, 5/6/08). AILA Doc. No. 08062664.
    AILA Doc. No. 08062664.
  • CA6 Finds No §245(i) Adjustment for Persons Inadmissible Under INA §212(a)(9)(C)(i)(I) (4/2/2008)
    The court held that persons who are inadmissible for reentering without inspection following more than one year of unlawful presence under INA §212(a)(9)(C)(i)(I), are ineligible for adjustment under INA §245(i) because §245(i) does not provide for an exception to inadmissibility under that subsection. (Ramirez-Canales v. Mukasey, 2/27/08). AILA Doc. No. 08040266.
    AILA Doc. No. 08040266.
  • CA6 Remands for Reconsideration of Late Appeal Filed Via Fedex (2/22/2008)
    The court remanded the case to the BIA to reconsider whether “extraordinary and unique circumstances” – namely a six day delay by Federal Express – excused the untimely filing of Petitioner’s appeal. (Salazar v. Mukasey, 1/31/08). AILA Doc. No. 08022264.
    AILA Doc. No. 08022264.
  • CA6 Upholds IJ’s Frivolousness Finding in Albanian Asylum Claim (2/21/2008)
    The court held that substantial evidence supported the IJ’s finding that Petitioner’s claim was frivolous. The court found that Petitioner received adequate warning about the consequences of filing of frivolous application and was accorded sufficient opportunity to account for discrepancies in his various applications. (Ceraj v. Mukasey, 12/28/07). AILA Doc. No. 08022163.
    AILA Doc. No. 08022163.
  • CA6 Upholds Findings of No Nexus and Changed Conditions in Guatemala (1/17/2008)
    The court declined to resolve the issue of whether an imputed political opinion may be the basis for an asylum claim, finding that Petitioner failed to establish that his persecutors had acted on account of his opinion, imputed or otherwise. The court also held that his claim failed due to changed country conditions. (Pascual v. Mukasey, 12/19/07). AILA Doc. No. 08011771.
    AILA Doc. No. 08011771.
  • CA6 Discusses “Admission” for Purposes of Removal Under INA §237(a)(2)(A)(i) (12/28/2007)
    The court held that for purposes of INA §237(a)(2)(A)(i), there is only one “lawful admission,” based on physical, legal entry into the U.S., not the subsequent attainment of a different legal status. Therefore, where a person was previously inspected and admitted, adjustment of status does not constitute an admission. (Zhang v. Mukasey, 11/29/07). AILA Doc. No. 07122866.
    AILA Doc. No. 07122866.
  • CA6 Finds No Abuse of Discretion in Denial of Continuance Pending I-130 Motion to Reopen (12/14/2007)
    The court held that the BIA did not abuse its discretion in upholding the IJ’s denial of a continuance pending adjudication of Petitioner’s I-130 motion to reopen, where Petitioner had previously been given seven months, but failed to submit any evidence in support of the continuance request. (Ilic-Lee v. Mukasey, 11/19/07) AILA Doc. No. 07121433.
    AILA Doc. No. 07121433.
  • CA6 Upholds Discretionary Denial of Asylum Due to 3 DUI Convictions (12/4/2007)
    The court held that the IJ may consider an asylum applicant’s convictions for an offense like DUI, regardless of whether it is a crime of moral turpitude or a particularly serious crime. The court held that the IJ did not abuse his discretion in denying asylum because of Petitioner’s three DUI convictions. (Kouljinski v. Keisler, 10/16/07). AILA Doc. No. 07120460.
    AILA Doc. No. 07120460.
  • CA6 Finds No Jurisdiction to Review VWP Entrant’s Request for Adjustment of Status (9/4/2007)
    The court held that a VWP entrant who remains in the U.S. beyond the period of stay authorized and subsequently files for adjustment of status has waived the right to seek review of the denied adjustment of status application, as well as the right to contest a removal order through a renewed adjustment application. (Lacey v. Gonzales, 8/21/07). AILA Doc. No. 07090463.
    AILA Doc. No. 07090463.
  • CA6 Remands Asylum Denial in Iraqi Case and Criticizes Conduct of IJ Chase (8/6/2007)
    The court held that, based on the IJ’s conduct and its effect on Petitioner’s ability to testify accurately, it could not conclude that the IJ’s adverse credibility finding was based on substantial evidence. The court found that this is the rare case where a remand is required because of the IJ’s bias and hostility. (Elias v. Gonzales, 6/15/07). AILA Doc. No. 07080672.
    AILA Doc. No. 07080672.
  • CA6 Finds Chinese Labor Activist Was Persecuted for His Political Opinion (7/27/2007)
    In reversing the IJ, the court found that Petitioner was persecuted not merely as a striker protesting his potential loss of employment, but as a political activist attempting to expose corruption by government officials and to protect workers’ interests. In reaching this conclusion the court relied on a DOS report. (Bu v. Gonzales, 6/15/07). AILA Doc. No. 07072761.
    AILA Doc. No. 07072762.
  • CA6 Finds IJ Jurisdiction Over Portability Determinations Under INA §204(j) (7/5/2007)
    The court held that IJs have jurisdiction over I-140 portability determinations under INA §204(j). The court also held that in the context of an adjustment application, the IJ had authority to consider whether Petitioners were inadmissible for misrepresentation, even though that ground was not charged in the NTA. (Matovski v. Gonzales, 6/15/07). AILA Doc. No. 07070563.
    AILA Doc. No. 07070563.
  • CA6 Reverses IJ’s Adverse Credibility Finding; Recommends New IJ on Remand (6/22/2007)
    The court found that the IJ focused on irrelevant and arguably nonexistent inconsistencies in making his adverse credibility finding. The court also found that the IJ and BIA erred by not considering the letters submitted by Petitioner which show a continued fear despite changed conditions in his home country. (Mapouya v. Gonzales, 5/18/07). AILA Doc. No. 07062266.
    AILA Doc. No. 07062266.
  • CA6 Upholds Asylum Denial but Finds Gov’t Lacks Unbridled Discretion in MTR (5/18/2007)
    The court upheld the adverse credibility findings, holding that it could not conclude that the evidence compelled a contrary conclusion. Regarding the denial of the motion to remand based on Petitioner’s marriage to a US citizen, the court rejected the government’s argument that Velarde gives it unbridled discretion. (Sarr v. Gonzales, 4/19/07). AILA Doc. No. 07051861.
    AILA Doc. No. 07051861.
  • CA6 Upholds Neg. Credibility Finding; Rejects Use of Minor Inconsistencies (4/16/2007)
    The court concluded that there was sufficient inconsistency in the record to support the IJ’s adverse credibility determination in this Tunisian asylum case, in light of the extremely deferential standard of review. The court noted, however, that many alleged inconsistencies were irrelevant or not inconsistent. (Ben Hamida v. Gonzales, 3/7/07). AILA Doc. No. 07041661.
    AILA Doc. No. 07041661.
  • CA6 Dismisses Appeal Under Fugitive Disentitlement Doctrine (3/19/2007)
    After filing the petition for review, Petitioner failed to report for removal despite a lawful order requiring him to do so. The court dismissed Petitioner’s appeal of the BIA’s denial of his motion to reopen under the fugitive disentitlement doctrine. (Garcia-Flores v. Gonzales, 2/23/07). AILA Doc. No. 07031966.
    AILA Doc. No. 07031966.
  • CA6 Finds No Abuse of Discretion in BIA Denial of Motions to Reopen and Reconsider (3/19/2007)
    The court held that absent any evidence of an I-130, Petitioner failed to establish prima facie eligibility for adjustment of status in her motion to reopen. Because new evidence was introduced in a motion to reconsider, the motion will be treated as a second motion to reopen which is barred by statute and regulation. (Alizoti v. Gonzales, 2/26/07)
    AILA Doc. No. 07031965.
  • CA6 Says Filing a Petition for Review Does Not Toll Motion to Reconsider Deadline (2/13/2007)
    The court held that the filing of a petition for review does not toll the 30-day deadline for motions to reconsider under INA §240(c)(6)(B). To hold otherwise, would make INA §242(b)(6), which requires consolidation of multiple petitions for review, devoid of meaning. (Randhawa v. Gonzales, 1/30/07). AILA Doc. No. 07021366.
    AILA Doc. No. 07021366.
  • CA6 Finds No Abuse of BIA Discretion in Denying Special Motion to Reopen (1/12/2007)
    The court held that the BIA did not abuse its discretion in denying Petitioner’s special motion to reopen, filed under 8 CFR §1003.44. The court agreed with the BIA’s finding that there were no proceedings to reopen after Petitioner “accidentally” executed an outstanding deportation order. (Mansour v. Gonzales, 12/14/06). AILA Doc. No. 07011272.
    AILA Doc. No. 07011272.