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2006

  • CA8 Upholds Frivolousness Finding in Case of Eritrean Asylum Applicant (11/10/2006)
    The court held it was unnecessary to adopt any “emergent standards” for the regulation which defines a frivolous asylum application because all would be satisfied by the facts in the case. The court found it undisputed that petitioner had filed a false application, swore it was true, and lied to the IJ. (Kifleyesus v. Gonzales, 9/12/06). AILA Doc. No. 06111018.
    AILA Doc. No. 06111018.
  • CA8 Holds IJ Erred in Reopening Proceedings and Terminating Asylum (9/21/2006)
    The court held that the IJ abused her discretion in reopening proceedings without explaining whether the documents submitted in support of the motion were material and unavailable at the initial hearing. The IJ erred in terminating asylum based on documents that did not prove that Petitioner committed fraud. (Hailemichael v. Gonzales, 07/21/06). AILA Doc. No. 06092148.
    AILA Doc. No. 06092148.
  • CA8 Holds Expedited Removal Proceedings Not Retroactive (9/21/2006)
    The court held that the application of expedited removal procedures under INA §238(b) to Petitioner was not impermissibly retroactive. Petitioner’s failure to respond to the government’s NOI precluded court review of his due process claim. The court also held that Petitioner was not denied equal protection. (Gonzalez v. Chertoff, 07/20/06). AILA Doc. No. 06092178.
    AILA Doc. No. 06092178.
  • CA8 Holds Forensic Evidence of Document Fraud Not Always Necessary (9/19/2006)
    The court upheld the IJ’s determination that Petitioner’s testimony was not credible. The court also upheld the IJ’s determination that Petitioner’s corroborating documentation was fraudulent; holding that forensic evidence of fraud is not necessary where the documents bore readily identifiable indications of fraud. (Onsongo v. Gonzales, 8/10/06). AILA Doc. No. 06091914.
    AILA Doc. No. 06091914.
  • CA8 Finds Afghan Family Firmly Resettled Despite Expiration of Third Country Status (9/8/2006)
    The court held that the facts of the case constituted substantial evidence to support the IJ’s conclusion that the Afghan family was firmly resettled in Australia. The court found it irrelevant that the Australian government might not permit them re-entry after the family allowed their status in Australia to expire. (Sultani v. Gonzales, 7/27/06). AILA Doc. No. 06090876.
    AILA Doc. No. 06090876.
  • CA8 Finds Murder of Family, Rape of Wife and Detention Not Past Persecution (8/23/2006)
    The court found that the murder of Petitioner’s family by rebels years ago did not evidence a pattern of persecution tied to Petitioner. The court held that the rape of his wife by a leader of the security forces was an isolated criminal act. The court found two detentions he suffered did not amount to persecution. (Vonhm v. Gonzales, 7/20/06). AILA Doc. No. 06082362.
    AILA Doc. No. 06082362.
  • CA8 Holds No Jurisdiction to Review IJ’s Findings on Country Conditions (8/15/2006)
    The court held that Petitioner’s challenge of the IJ’s factual determination regarding country conditions in Afghanistan is not a reviewable “question of law” under INA §242(a)(2)(D). (Hanan v. Gonzales, 06/06/06). AILA Doc. No. 06081568.
    AILA Doc. No. 06081568.
  • CA8 Holds No INA §242(e)(2) Habeas Review of Reinstated Expedited Removal Order (7/31/2006)
    The court held that the habeas corpus review of expedited removal orders provided by INA §242(e)(2) is not available when an expedited order is reinstated because INA §241(a)(5) bars review of the underlying order of removal. (Ochoa-Carillo v. Gonzales, 05/01/06). AILA Doc. No. 06073160.
    AILA Doc. No. 06073160.
  • CA8: Finds Jehovah’s Witness Failed to Present Credible Evidence of Religious Persecution (7/17/2006)
    The court upheld the IJ’s finding that Petitioner failed to present credible evidence that she was a member of a group subject to a pattern of persecution in Eritrea. The court found that the issue was not whether she was a “true believer,” but whether she was similarly situated to others who had been persecuted. (Woldemichael v. Ashcroft, 6/5/06)
    AILA Doc. No. 06071764.
  • CA8 BIA Erred in Finding No Past Persecution (6/19/2006)
    The court found that the evidence submitted by Petitioner was sufficient to compel a finding that he suffered past persecution in Liberia. The court noted that Petitioner witnessed his father’s murder, his family home was burned, his personal property was destroyed and he was blacklisted by Charles Taylor’s forces. (Bah v. Gonzales, 5/12/06). AILA Doc. No. 06061965.
    AILA Doc. No. 06061965.
  • CA8 Finds IJ Erred in Failing to Determine Whether Ethiopian Asylum-Seeker Suffered Past Persecution (5/9/2006)
    The court noted that the IJ’s denial of asylum was based solely on his holding that Petitioner did not have a subjectively genuine fear of future persecution. The court held that the IJ did not state specific cogent reasons for disbelieving Petitioner’s past persecution testimony, as required. (Bushira v. Gonzales, 4/4/06). AILA Doc. No. 06050961.
    AILA Doc. No. 06050961.
  • CA8 Denies Petition for Review of Gay Asylum Applicant from Zimbabwe (4/24/2006)
    The Court held that the IJ’s decision that Petitioner failed to show past persecution was supported by substantial evidence. The Court also upheld that the IJ’s finding that Petitioner failed to establish a well-founded fear, despite the Zimbabwean government’s hostility toward homosexuals and that homosexuality is illegal. (Kimumwe v. Gonzales, 12/13/05). AILA Doc. No. 06042466.
    AILA Doc. No. 06042466.
  • CA8 Says Pre-IIRIRA Advance Parole Regulation is Not Ultra Vires to Suspension of Deportation Provision (4/19/2006)
    The court rejected Petitioner’s claim that the advance parole regulation, which mandated placement in exclusion proceedings and thus preventing him from seeking suspension of deportation, was ultra vires to the suspension provision “because the Attorney General's ability to suspend deportation is discretionary.” (Geach v. Chertoff, 3/3/06). AILA Doc. No. 06041965.
    AILA Doc. No. 06041965.
  • CA8 Holds That Whether A Marriage Is Entered Into In “Good Faith” Is A Non-reviewable Discretionary Determination (4/18/2006)
    The court concluded that because the IJ’s denial of a waiver of the joint petition requirement hinged on an adverse credibility determination, whether the marriage was entered into in “good faith” was a discretionary factual determination under INA §216(c)(4), and not reviewable under INA §242(a)(2)(B)(ii). (Suvorov v. Gonzales, 3/28/06). AILA Doc. No. 06041864.
    AILA Doc. No. 06041864.
  • CA8 Finds Asylum Applicant Waived His One-Year Deadline Due Process Claim and Failed to Establish a Pattern of Persecution in Indonesia (4/14/2006)
    The court held that under the REAL ID Act it has jurisdiction to review constitutional and legal questions, but that Petitioner waived his due process claim based on the one-year deadline by not raising it with the BIA. The court also held that he did not show a pattern or practice of persecution of Chinese Christians. (Wijono v. Gonzales, 3/8/06). AILA Doc. No. 06041418.
    AILA Doc. No. 06041418.
  • CA8 Reviews Denial of Motion to Rescind 1995 In Absentia Order for Lack of Notice of the Hearing (4/4/2006)
    The court refused to consider affidavits attesting to lack of notice to determine whether Petitioner overcame the presumption of effective service because they were not submitted to the IJ, the BIA was not obligated to consider them, and its review was limited to the “record on which the deportation order is based.” (Rodriguez-Cuate v. Gonzales, 2/24/06). AILA Doc. No. 06040460.
    AILA Doc. No. 06040460.
  • CA8 Upholds IJ’s Adverse Credibility Determination in Togolese Asylum Case (3/20/2006)
    The court concluded that the IJ’s adverse credibility determination was supported by substantial evidence. The court found that the IJ gave satisfactory reasons for his finding, including Petitioner’s lack of prominence in the opposition party and his claim that he ran his business while in hiding. (Mamana v. Gonzales, 2/8/06). AILA Doc. No. 06032018.
    AILA Doc. No. 06032018.
  • CA8 Upholds Decision that Catholic Indonesian Did Not Suffer Past Persecution and Does Not Have a Well-Founded Fear (3/6/2006)
    The court held that past persecution does not normally include unfulfilled threats of physical injury and concluded that the threats against Petitioner did not amount to persecution. The court also found the IJ did not err with regard to his well-founded fear finding because the harm feared was not nationwide. (Setiadi v. Gonzales, 3/3/06).
    AILA Doc. No. 06030662.
  • CA8 Rejects Identity Challenge in Reinstatement Case (3/1/2006)
    The court: (1) upheld the fingerprinting procedure used to confirm the Petitioner was previously ordered removed; (2) upheld the regulation permitting ICE officers to make reinstatement determinations; and (3) found that the reinstatement procedures did not violate Petitioner’s due process rights. (Ochoa-Carillo v. Gonzales, 2/15/06). AILA Doc. No. 06030163.
    AILA Doc. No. 06030163.
  • CA8 Lacks Jurisdiction Over Asylum Denial Based on One-Year Asylum Deadline (2/14/2006)
    The court said it lacked jurisdiction to review the denial of a hardship waiver application. The court also found that “extraordinary circumstances” did not exist to excuse an asylum application filed late. (Ignatova v. Gonzales, 12/19/05). AILA Doc. No. 06021467.
    AILA Doc. No. 06021467.