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Cases & Decisions
CA7 Finds IJ Gave Full Opportunity to Seek Asylum; Rejects Equal Pro. Claim
The court held that Petitioner was given the opportunity to apply for asylum. The court found no merit to the argument that the IJ should have explained why he was not granted asylum when Petitioner withdrew his application. The court held it lacked jurisdiction to review whether NSEERS violated equal protection. (
Hussain v. Keisler
, 10/24/07). AILA Doc. No. 07120469.
CA7 Rejects Pakistani Asylum Claim Based on 1-Year Deadline & Lack of Nexus
The court held that the IJ did not commit legal error in finding that Petitioner failed to show extraordinary circumstances to excuse his delay in filing for asylum. The court found that the record supported the IJ’s finding that Petitioner failed to show that his fear of persecution was on account of a protected ground. (
Tariq v. Keisler
, 10/9/07). AILA Doc. No. 07110868.
CA7 Finds BIA Erred in Relying on Airport Interview to Deny Asylum Claim
The court noted an airport interviews is not always a reliable indicator of credibility. The court held that the BIA’s determination, that Petitioner’s claim became markedly more “egregious” because he failed to mention his homosexuality in his airport and credible fear interviews, was not based on substantial evidence. (
Moab v. Gonzales
, 9/13/07). AILA Doc. No. 07102365.
CA7 Finds IJ/BIA Failed to Address Critical Evidence in W/H & CAT Claim
The court upheld the IJ’s finding that Petitioner, a Yemeni citizen, did not suffer past persecution. With regard to Petitioner’s well-founded fear, the court found that the IJ and BIA overlooked key pieces of evidence including Petitioner’s testimony, DOS reports, and a letter from the Yemeni Human Rights Watch. (
Binrashed v. Gonzales
, 9/14/07). AILA Doc. No. 07102364.
CA7-Posner Issues Scathing Opinion Overturning Negative Credibility Finding
Judge Posner noted in his decision that an avalanche of asylum claims has placed unbearable pressures on a grossly understaffed Immigration Court. In reversing the IJ’s negative credibility finding in this case, Judge Posner found that while egregious failures by IJs could be understood, they could not be excused. (
Kadia v. Gonzales
, 9/7/07). AILA Doc. No. 07102363.
CA7 Finds No Jurisdiction to Review the IJ’s Continuance Denial
The court held that it lacked jurisdiction to review the IJ’s discretionary denial of Petitioner’s continuance. The IJ’s authority over continuances is derived from INA §240(a)(1), which confers plenary authority on IJs to conduct removal proceedings and is part of the relevant subchapter under INA §242(a)(2)(B)(ii). (
Ali v. Gonzales
, 9/14/07). AILA Doc. No. 07092668.
CA7 Upholds BIA’s Denial of MTR Based on Changed Personal Circumstances
The court agreed with the BIA that INA §240(c)(7)(C)(ii) allows for motions to reopen beyond the 90-day time limit based only on changed country conditions, not a change in personal circumstances. The court held that this interpretation is “sensible” and prevents an applicant from manufacturing an asylum case. (
Chen v. Gonzales
, 8/23/07). AILA Doc. No. 07092167.
CA7 Rejects BIA’s Finding that Applicant’s FGM Claim Was Not Well-Founded
The court held that Petitioner’s testimony was corroborated by an affidavit from her doctor and an affidavit from her and her father’s pastor in Nigeria verifying that her in-laws sought to have her undergo FGM. The court held that all the evidence the BIA relied on is consistent with having a well-founded fear. (
Oyekunle v. Gonzales
, 8/22/07). AILA Doc. No. 07092166.
CA7 Holds Government Responsible for Ensuring Delivery of Hearing Notice
The court held that Petitioner did not “thwart delivery” of his hearing notice by failing to inform INS that mail must be addressed “in care of” his brother-in-law with whom he was staying. INS was responsible for ensuring that the notice was properly addressed and delivered to the location provided. (
Peralta-Cabrera v. Gonzales
, 9/7/07). AILA Doc. No. 07091767.
CA7 Finds Economic Harm Did Not Amount to Persecution in One-Child Claim
The court found that despite the damage to Petitioner’s home, he had not demonstrated that his situation was sufficiently severe to constitute economic persecution. The court noted that Petitioner maintained employment, registered his son without paying a fine, and his two children attended public school. (
Zhang v. Gonzales
, 7/31/07). AILA Doc. No. 07090767.
CA7 Finds Detention and Beatings in Cameroon Amount to Persecution/Torture
The court held that Petitioner conclusively established that she suffered persecution on account of her political opinions. The court found that she suffered two severe beatings after voicing her opposition to the government. The court held that the beatings constituted torture and entitled her to CAT relief. (
Tchemkou v. Gonzales
, 7/31/07). AILA Doc. No. 07090766.
CA7 Finds IJ Denied Right to Present Evidence by Excluding Expert Opinion
The court held that the IJ’s refusal to consider the expert’s affidavit or testimony was a violation of Petitioner’s right to present evidence. The court found that the IJ’s reasoning flawed because the expert could have given his opinion regarding a political issue, and was not testifying as a document expert. (
Tadesse v. Gonzales
, 7/9/07). AILA Doc. No. 07080761.
CA7 Remands Chinese Claim for Ruling on Severity of Economic Sanctions
The court noted that the BIA is entitled to respond to the normal conditions in a nation and did not need to change every time different evidence was presented. The court, however, remanded the case for consideration of the financial penalties used when couples have two or more children and whether those amount to force. (
Chen v. Gonzales
, 6/11/07). AILA Doc. No. 07072466.
CA7 Finds Flaws in BIA’s Denial of Cameroonian FGM Asylum Claim
The court held that the BIA’s decision denying asylum was not supported by substantial evidence. The court found that the BIA disregarded key evidence specific to Petitioners’ claim, relied instead on general background evidence, and then faulted Petitioners for failing to offer specific evidence. (
Agbor v. Gonzales
, 5/25/07). AILA Doc. No. 07062966.
CA7 Holds Palestinian Is Citizen of Jordan Based on Admission at Hearing
The court upheld the IJ’s removal order to Jordan for a West Bank Palestinian. The court stated that it suspected that he was stateless, not a Jordanian citizen, based on West Bank history. Because his passport was not in the record and because he admitted he was a Jordanian citizen, the court upheld the IJ’s decision. (
Zahren v. Gonzales
, 5/17/07). AILA Doc. No. 07061164.
CA7 Remands Claim of Chinese Christian Where IJ Quizzed Applicant on Bible
The court reversed the adverse credibility determination holding that the IJ impermissibly relied on his perceived common knowledge about the Bible when he concluded that Petitioner had only a rudimentary knowledge of Christianity. The court also held that other findings by the IJ were not supported by the record. (
Jiang v. Gonzales
, 5/14/07). AILA Doc. No. 07061162.
CA7 Finds IJ Erred in Finding Salvadoran Asylum Applicant Is a Persecutor
The court found that the BIA and the courts had not addressed the question of whether mere presence at the scene of persecution constitutes participation in it. The court found that Petitioner’s trial for murder was a “farce” and that the law that would not compel the denial of asylum on the basis of the conviction. (
Doe v. Gonzales
, 4/17/07). AILA Doc. No. 07053162.
CA7 Says Pre-Conviction Detention May Be Counted Toward Prison Term for §212(c) Purposes (Updated 5/22/07)
The court denied the petition for review, holding that pre-conviction detention, which is credited as time served, may be counted toward the term of imprisonment when determining eligibility for §212(c) relief. (
Moreno-Cebrero v. Gonzales
, 5/10/07). AILA Doc. No. 07052164.
CA7 Finds BIA Abused Discretion in Denying MTR Ethiopian Asylum Claim
The court held that the BIA gave no reasoned explanation for its finding that Petitioner had not provided evidence of changed conditions in Ethiopia. The court also reasoned that Petitioner could prevail on a theory of future persecution, despite the IJ’s adverse credibility determination on past persecution. (
Gebreeyesus v. Gonzales
, 4/6/07). AILA Doc. No. 07051863.
CA7 Finds BIA’s Summary Dismissal Proper Where No Brief Was Filed
The court found that there was no error or abuse of discretion in BIA’s summary dismissal in the case of an applicant who indicated on her NOA that a brief would be filed and then failed to file a brief. The court declined to resolve the issue of which standard of review should be applied for BIA summary dismissals. (
Kokar v. Gonzales
, 3/1/07). AILA Doc. No. 07042768.
CA7 Vacates Asylum Denial Due to IJ’s Bias in Religious Persecution Case
The court found that the IJ departed from his judicial role and manifested a clear bias against Petitioners. The court held that Petitioners were denied a reasonable opportunity to be heard when they were labeled religious “zealots” by the IJ who also found that their exercise of religion was “offensive.” (
Floroiu v. Gonzales
, 4/2/07). AILA Doc. No. 07050863.
CA7 Clarifies DOL/DHS Authority in Employment-Based Adjudications
DHS improperly denied two I-140 petitions on the grounds that the beneficiaries’ bachelor’s degrees in agriculture and transportation were not sufficiently related to the position, when DOL had previously certified the position as requiring a bachelor’s degree in any field. (
Hoosier Care, Inc. v. Chertoff
, 4/11/07). AILA Doc. No. 07041764.
CA7 Overturns IJ’s Negative Credibility Finding Based on Minor Discrepancies
The court found that the IJ’s negative credibility determination was not based on a reasoned analysis of the evidence as a whole. The court stated that the IJ’s decision was based largely on unimportant discrepancies between Petitioner’s testimony and earlier versions of his story regarding irrelevant subjects. (
Adekpe v. Gonzales
, 3/14/07). AILA Doc. No. 07041663.
CA7 Cites “Significant, Unexplained Gaps” in Record to Support Recission of In Absentia Order
The court held that due to significant, unexplained gaps in the government’s record, the IJ’s conclusion that Petitioner failed to inform the asylum office of his change of address was not supported by substantial evidence. The IJ abused his discretion in refusing to rescind Petitioner’s in absentia removal order. (
Terezov v. Gonzales
, 3/15/07). AILA Doc. No. 07032663.
CA7 Refuses to Allow Late Filed Motion to Reopen for §212(c) Relief
Petitioner’s special motion to reopen for consideration of his application for §212(c) relief was filed after the April 26, 2005 deadline imposed by 8 CFR §1003.44(h). 8 CFR §1003.44(h) is a valid rule, properly formulated within the discretion of the Attorney General. The petition for review was denied. (
Johnson v. Gonzales
, 2/28/07). AILA Doc. No. 07032017.
CA7 Upholds IJ’s Adverse Credibility Finding in Ukrainian Asylum Claim
The court found that substantial evidence supported the IJ’s adverse credibility determination. The court noted that Petitioner was unable to explain an inconsistency in his testimony, that the omissions from his asylum application were significant, and that he failed to submit sufficient corroborating evidence. (
Shmyhelskyy v. Gonzales
, 2/15/07) AILA Doc. No. 07032012.
CA7 Upholds IJ’s Asylum Denial and Finds Expert’s Testimony Speculative
The court upheld the IJ’s adverse credibility assessment based on inconsistencies between Petitioner’s testimony and a newspaper article he submitted which stated that he left Albania for economic reasons. The court also found that Petitioner’s expert witness offered only generalized testimony that was speculative. (
Myslymi v. Gonzales
, 2/9/07). AILA Doc. No. 07031264.
CA7 Upholds Finding Due Process Not Violated; Posner Issues Scathing Dissent
The court acknowledged that the IJ conduct was hardly a model of patience and decorum, but held that the IJ’s approach did not impede Petitioner’s “reasonable opportunity” to be heard. The court also upheld the IJ’s adverse credibility determination finding that the record did not compel a contrary result. (
Apouviepseakoda v. Gonzales
, 2/2/07). AILA Doc. No. 07031261.
CA7 Finds IJ Ignored Evidence that Motive for Persecution Was Religion
The court found that the IJ’s conclusion that Petitioner was not persecuted because of his religion ignored the factual context in which the death threats and assaults occurred. The court held that the record compelled the conclusion that Petitioner, an Egyptian Coptic Christian, was persecuted because of his religion. (
Boctor v. Gonzales
, 1/24/07). AILA Doc. No. 07030862.
CA7 Finds IJ Ignored Significant Piece of Evidence re: Well-Founded Fear
The court found that the IJ ignored the most significant piece of evidence in finding that Petitioner lacked a well-founded fear, namely that the persecuting authorities believed that Petitioner was his identical twin brother. Due to this error, the court held that the IJ’s finding was unsupported by the record. (
Mema v. Gonzales
, 1/11/07). AILA Doc. No. 07022765.
CA7 Finds BIA Abused its Discretion in Denying MTR Ethiopian Asylum Case
The court found that the evidence submitted by Petitioner post dated his IJ hearing and the BIA’s ruling on direct appeal and was also material to his claim. The court held that the BIA abused its discretion in not specifically responding to the significant, material evidence submitted with his motion to reopen. (
Kebe v. Gonzales
, 1/19/07). AILA Doc. No. 07022764.
CA7 Overturns Holding that Bangladeshis Had Not Suffered Past Persecution
The court found that the IJ erred in concluding that the harm Petitioner and his family suffered at the hands of Muslim fundamentalists did not amount to past persecution. The court found that the IJ failed to give any reason for his conclusion and the court could not tell what definition of persecution the IJ used. (
Gomes v. Gonzales
, 1/11/07). AILA Doc.No. 07022363.
CA7 Upholds Admission of Embassy and Forensic Reports in Asylum Claim
The court noted that the sole test for admissibility of evidence is whether the evidence is probative and its admission is fundamentally fair. Using this test, the court found that the letter describing the Embassy’s investigation and the DHS forensic report were probative and that their admission was fundamentally fair. (
Doumbia v. Gonzales
, 1/4/07). AILA Doc. No. 07021370.
CA7 Rejects Retroactivity Argument Regarding §212(c)’s “Statutory Counterpart” Rule
The court found that 8 CFR §1212.3(f)(5), which allows deportees to invoke §212(c) if their deportable crime has a statutory counterpart to a ground of inadmissibility in §212(a), and Matter of Blake, which interpreted the “statutory counterpart” rule, was not impermissibly retroactive as applied to Petitioner. (
Valere v. Gonzales
, 1/11/07). AILA Doc. No. 07013169.
CA7 Holds Thai DEA Informant Denied Statutory Right to Present Asylum Evidence
The court held that Petitioner was denied her statutory and regulatory right to present evidence in support of her request for asylum. The IJ’s refusal to consider Petitioner’s rebuttal to evidence that she committed a serious non-political crime in Thailand resulted in an unfair hearing. (
Pronsivakulchai v. Gonzales
, 08/29/06). AILA Doc. No. 07012265.
CA7 Says NTA That Does Not Specify Date and Time of Hearing is Not Defective
The court held that Petitioner’s notice to appear, which did not specify the date and time of his hearing, taken together with the immigration court-issued hearing notice, satisfied the requirements of INA §239(a)(1) and did not deprive the immigration judge of jurisdiction over his case. (
Dababneh v. Gonzales
, 12/19/06). AILA Doc. No. 07012264.
CA7 Holds “Grandfathered” Status under INA §245(i) Does Not Preclude Removal
The court held that “grandfathered” status under INA §245(i) did not preclude Petitioner from being removed when a visa number was unavailable. The court further held that INA §242(g) bars jurisdiction to review Petitioner’s equal protection challenge. (
Hadayat v. Gonzales
, 08/15/06). AILA Doc. No. 07012263.
CA7 Upholds Denial of Asylum to Ukrainian Prosecutor and His Family
The court held that being a prosecutor is not an unchangeable or fundamental attribute, noting that Petitioner had resigned from his position. The court stated that it was Petitioner’s conduct as a prosecutor, and not his status as a member of such a purported social group that caused the alleged persecution. (
Pavlyk v. Gonzales
, 12/4/06). AILA Doc. No. 07011670.
CA7 Overturns Withholding Denial for Failure to Make Credibility Finding
The court found that it lacked jurisdiction to rule on the timeliness of Petitioner’s asylum claim. The court, however, overturned the denial of withholding for lack of corroboration because neither the IJ nor the BIA made an explicit credibility determination. (
Ikama-Obambi v. Gonzales
, 12/11/06). AILA Doc. No. 07011665.
CA7 Remands for “Federal Felony Approach,” but Rejects §209(c) Waiver
The court found that because it had adopted the “hypothetical federal felony approach” in a prior decision, Petitioner’s conviction for heroin possession would not be a bar to asylum. The court also upheld the BIA’s determination that Petitioner was no longer a refugee eligible to adjust his status under INA §209(c). (
Gutnik v. Gonzales
, 11/29/06). AILA Doc. No. 07010463.
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