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2004

  • CA3 Publicizes OIL Procedures Permitting Discretionary Remand in Persecution Cases with Stale Administrative Records (11/23/2004)
    Under the new procedures, OIL, in consultation with EOIR and DHS, may remand cases involving persecution claims where the administrative record is out of date and not appropriate for judicial review. (Ambartsoumian v. Ashcroft, 11/1/04). AILA Doc. No. 04112365.
  • CA3 Finds BIA’s Affirmation Without Opinion Erroneous and Remands for Panel Review of Novel Refugee Issue (10/29/2004)
    The court found petitioner’s contention that INS must first terminate refugee status before initiating removal proceedings was “consistent with the text and some of the legislative history of the INA” and that the BIA erred in streamlining this novel and substantial issue. (Smriko v. Ashcroft, 10/26/04). AILA Doc. No. 04102912.
  • CA3 Finds Attempted Reckless Endangerment is Not a Crime of Moral Turpitude (10/7/2004)
    The court reasoned that the requisite, actual intent for an attempt conviction was inconsistent with acting recklessly. “A person cannot intend to commit a criminally reckless act. He or she either acts recklessly or does not,” the court said. (Knapick v. Ashcroft, 9/17/04). AILA Doc. No. 04100765.
  • CA3 Holds That Delaware Sexual Contact Offense Is Not An Aggravated Felony (10/6/2004)
    Employing the categorical approach, the court held that petitioner was not convicted of the aggravated felony of sexual abuse of a minor because the criminal statute at issue did not contain an element specifying the age of the victim. (Singh v. Ashcroft, 9/17/04). AILA Doc. No. 04100662.
  • CA3 Affirms Inadmissibility Based on Providing Material Support to Terrorists (10/6/2004)
    The court upheld the BIA’s conclusion that petitioner was inadmissible because he provided food and shelter to individuals who he knew or reasonably should have known had committed or planned to commit terrorist activity. Judge Fisher wrote a strongly worded dissent. (Singh-Kaur v. Ashcroft, 9/23/2004). AILA Doc. No. 04100661.
  • CA3 Calls for Record Reform in Asylum Case (9/13/2004)
    The court commented at length on a “disturbing trend" in which courts are forced to rely on evidence of country conditions in administrative records that is “grossly out-of-date.” The court urged Congress, the DHS and the BIA to take action to remedy the problem. (Berishaj v. Ashcroft, 8/5/04). AILA Doc. No. 04091370.
  • CA3 Finds Possession with Intent to Distribute May Not Be an Aggravated Felony (12/12/2003)
    The Third Circuit found that a New Jersey conviction for possession of 28 grams of marijuana with intent to distribute may not be an aggravated felony, based on analogy to federal statute which makes exception for distribution of a small amount for no remuneration. (Wilson v. Ashcroft, 11/26/03). AILA Doc. No. 03121243.
  • CA3 Finds Removability Based on a Controlled Substance Conviction Bars Judicial Review (8/13/2004)
    The Third Circuit held that the fact that Petitioner was charged with and found removable for a controlled substance conviction barred judicial review under INA § 242(a)(2)(C), even though Petitioner was not challenging that finding in his petition for review. (Douglas v. Ashcroft, 7/8/2004). AILA Doc. No. 04081363.
  • CA3 Finds that IJ Erroneously Disregarded Evidence Not Authenticated under 8 C.F.R. § 287.6 (8/9/2004)
    The Third Circuit reversed an IJ’s adverse credibility determination which was based, in part, on the IJ’s failure to consider documentary evidence that did not meet the authentication requirements in 8 C.F.R. § 287.6. (Gui Cun Liu v. Ashcroft, 6/28/04). AILA Doc. No. 04080972.
  • CA3 Extends St. Cyr to Pre-IIRIRA Trial Convictions (8/9/2004)
    Holding that the Supreme Court’s decision in St. Cyr is not limited to guilty pleas, the Third Circuit found that individuals who, before the effective date of IIRIRA, relied on the availability of § 212(c) relief to affirmatively turn down a plea agreement and sustain a trial may apply for § 212(c) relief. (Ponnapula v. Ashcroft, 6/28/04). AILA Doc. No. 04080971.
  • CA3 Holds False Tax Filing Is Not Aggravated Felony under INA § 101(a)(43)(M)(i) (6/28/2004)
    In holding that petitioner's conviction for filing false tax returns did not fall within INA § 101(a)(43)(M)(i), the Court reasoned that subsection (M)(ii), which specifically classifies the offense of tax evasion as an aggravated felony, would be superfluous if (M)(i) were construed to apply to tax offenses. (Ki Se Lee v. Ashcroft, 5/19/04). AILA Doc. No. 04062861.
  • CA3 Holds that it Lacks Jurisdiction to Extend or Reinstate Expired Voluntary Departure Periods (6/23/2004)
    Finding that it lacks jurisdiction to extend or reinstate a period of voluntary departure that expired during pendency of an appeal, the Court held that such authority rests strictly with the Executive Branch. Motions to stay the voluntary departure period based on inherent equitable powers may still apply. (Reynoso-Lopez v. Ashcroft, 5/25/04). AILA Doc. No. 04062364.
  • CA3 Holds that Jurisdiction to Review the Denial of a Waiver of the Joint Petition Requirement in Marriage-Based Conditional Residency Case is Barred (5/25/2004)
    The Third Circuit held that the INA § 242(a)(2)(B)(ii) barred jurisdiction to review a denial of an application for a waiver of the joint filing requirement for removal of conditions on permanent resident status under INA § 216(c)(4). (Urena-Tavarez v. Ashcroft, 5/7/04). AILA Doc. No. 04052564.
  • CA3 Holds Parolees Subject to 238(b) (4/30/2004)
    Rejecting the argument that section 238(b) should apply to persons admitted as nonimmigrants only, and not to a parolee because he was not admitted into the U.S., the Third Circuit held that a parolee can be subject to administrative removal without a hearing. (Bamba v. Rile, 4/27/04). AILA Doc. No. 04043068.
  • CA3 Finds No Habeas Corpus Jurisdiction to Review BIA's Discretionary Denial of Asylum (4/12/2004)
    The Third Circuit upheld the BIA's discretionary denial of asylum, holding that discretionary determinations and factual findings are not within the scope of habeas corpus review. The Court also stated that its conclusion was consistent with decisions of the First, Second, Fourth, Fifth and Ninth Circuits. (Bakhtriger v. Elwood, 3/10/04). AILA Doc. No. 04041264.
  • En Banc CA3 Upholds AWO Procedure (1/5/2004)
    The Third Circuit,en banc, upheld the validity of the BIA's Affirmance Without Decision process. On the case's merits, the IJ's denial of relief on credibility grounds was reversed by the court. (Dia v. Ashcroft, 12/22/03). AILA Doc. No. 04010518.
  • CA3 Looks To Amount of Loss for Aggravated Felony Determination (1/5/2004)
    The Third Circuit concluded that the amount of loss, not the amount of restitution, is the critical factor in determinating whether a conviction for a crime involving fraud or deceit is an aggravated felony conviction. (Munroe v. Ashcroft, 12/16/03). AILA Doc. No. 04010517.