2006 - 2005

CA6 Joins Two Other Circuits in Rejecting BIA’s In re S-V- CAT Decision (12/6/2006)
The court joined the Ninth and Second Circuits in holding that the BIA’s In re S-V- decision directly conflicts with Congress’s clear intent to include “willful blindness” in the definition of acquiescence. The court noted that its holding in Ali v. Reno made clear that “willful blindness” falls within the definition. (Amir v. Gonzales, 11/2/06). AILA Doc. No. 06120660.
AILA Doc. No. 06120660.
CA6 Finds FGM Fear for Daughters Still in Home Country Not Basis for Asylum (10/12/2006)
The court first found that the IJ’s adverse credibility finding was based on substantial evidence. With regard to Petitioner’s claim that she feared her daughters in Guinea would be subjected to FGM, the court found her claim was distinguishable from Abay, noting that Petitioner chose to leave her daughters in Guinea. (Bah v. Gonzales, 9/8/06). AILA Doc. No. 06101260.
AILA Doc. No. 06101260.
CA6 Invalidates Conviction For Failure to Prove Vacatur Solely for Immigration Purposes (Updated 11/14/06) (9/21/2006)
The court remanded the case to the BIA to vacate Petitioner’s order of removal. The court held that the government had not met its burden of establishing by clear and convincing evidence that Petitioner’s conviction remained valid for immigration purposes. (Pickering v. Gonzales, 10/04/06). AILA Doc. No. 06092174.
AILA Doc. No. 06092174.
CA6 Finds Limited Jurisdiction to Review Denial of Time-Barred Asylum (9/5/2006)
The court held that it lacks jurisdiction to review the denial of a time-barred asylum application unless a constitutional claim or question of law is raised in accordance with INA §242(a)(2)(D). (Almuhtaseb v. Gonzales, 07/14/06). AILA Doc. No. 06090563.
AILA Doc. No. 06090563.
CA6 Refuses to Impute Parents’ Fraudulent Conduct to Their Minor Child (8/9/2006)
The court held that, for purposes of establishing inadmissibility under INA §212(a)(6)(c)(i), the BIA’s decision to impute the parents’ fraudulent conduct to their minor child is impermissible and an unreasonable interpretation of the INA. (Singh v. Gonzales, 06/21/06). AILA Doc. No. 06080962.
AILA Doc. No. 06080962.
CA6 Reverses IJ’s Negative Credibility Finding in Pro Se Appeal (6/19/2006)
The court found that the IJ’s adverse credibility determination was not supported by substantial evidence. The court held, inter alia, that the IJ erred in discounting the documents submitted, in finding that Petitioners lied under oath, and in finding they failed to provide additional evidence of sterilization. (Chen v. Gonzales, 5/10/05). AILA Doc. No. 06061966.
AILA Doc. No. 06061966.
CA6 Finds IJ Violated Petitioner’s Due Process Rights by Relying on Hearsay Department of State Memoranda (5/9/2006)
The court found that the IJ’s reliance on two DOS memoranda to conclude that Petitioner’s documents were fraudulent violated Petitioner’s due process rights and vacated the IJ’s finding of a frivolous asylum claim. The court also held the IJ’s adverse credibility finding was unsupported by substantial evidence. (Alexandrov v. Gonzales, 4/4/06). AILA Doc. No. 06050960.
AILA Doc. No. 06050960.
CA6 Remands Mauritanian Asylum Case for BIA to Consider Country Reports and Address Petitioner’s Explanations for Discrepancies (5/8/2006)
The court found that a remand of the case was appropriate in light of the recent coup in Mauritania, country reports, and the mistreatment of the Fulani minority by government forces. The court held that the IJ and BIA erred in failing to explain why they did not believe Petitioner’s explanations for discrepancies. (N’Diom v. Gonzales, 3/24/06). AILA Doc. No. 06050866.
AILA Doc. No. 06050866.
CA6 Upholds “Frivolous” Determination by IJ and Finds Asylum Applicant Waived His Due Process Claim (4/14/2006)
The court held that the IJ’s adverse credibility finding was supported by substantial evidence. The court found that substantial evidence supported the IJ’s finding that Petitioner filed a frivolous application based on his submission of fraudulent documents. The court also found that he waived his due process claim. (Sterkaj v. Gonzales, 3/3/06). AILA Doc. No. 06041420.
AILA Doc. No. 06041420.
CA6 Finds Jurisdiction to Review Continuance Denial and Remand Denial but Says No Jurisdiction to Review Voluntary Departure Denial (4/4/2006)
As to the continuance denial, the court distinguished between IJs and the AG for purposes of INA §242(a)(2)(B)(iii)’s jurisdiction bar, holding the bar applies when the IJ is performing duties delegated by the Attorney General but not when the IJ carries out duties conferred by the INA. (Abu-Khaliel v. Gonzales, 2/1/06). AILA Doc. No. 06040465.
AILA Doc. No. 06040465.
CA6 Upholds BIA’s Denial of Motion to Reopen but Finds BIA Erred about a Deadline Exception (3/24/2006)
The court held that the BIA erred in finding that Petitioner’s divorce was a change in circumstances that was an exception to the filing deadline. The court held that it did not constitute changed conditions in Jordan. The court concluded that she failed to meet the 90-day deadline and denied her motion to reopen. (Haddad v. Gonzales, 2/9/06). AILA Doc. No. 06032421.
AILA Doc. No. 06032421.
CA6 Heightens the Prejudice Showing Required to Prevail on Ineffective Assistance of Counsel Claims Based on Prior Counsel’s Failure to Seek Judicial Review (2/23/2006)
The court held that “the lost opportunity to appeal an adverse decision in a removal proceeding, because of ineffective assistance of counsel, cannot form the basis of a due process claim unless the appeal itself would have succeeded.” (Sako v. Gonzales, 1/20/06). AILA Doc. No. 06022368.
AILA Doc. No. 06022368.
CA6 Reviews District Court Challenge to I-130 Denial Based on Prior Visa Petition Denial For Marriage Fraud (2/23/2006)
Addressing exhaustion of administrative remedies, APA and Article III standing, and finality, the court held: (1) the I-130 denial was not final because petitioner chose to appeal to the BIA; and (2) the challenge to the denial of the prior visa petition based on marriage fraud did not violate the APA or the INA. (Bangura v. Hansen, 1/18/06). AILA Doc. No. 06022364.
AILA Doc. No. 06022364.
CA6 Finds “Indiscriminate Abuse” against Demonstrators Does Not Amount to Persecution (12/19/2005)
The Court found that a reasonable adjudicator would not be compelled to find that Petitioner suffered past persecution. The Court found that the injuries she suffered at demonstrations were the result of civil unrest between political factions, not political persecution. The Court also held she did not have a well-founded fear. (Skirko, 11/4/05). AILA Doc. No. 05121960.
AILA Doc. No. 05121960.
CA6 Holds State Felony Simple Possession Convictions Are Not Aggravated Felonies in Criminal Re-entry Case (10/24/2005)
The court held that state felony drug offenses that do not contain a drug trafficking element must be punishable as a felony under federal law to constitute an aggravated felony under the INA. (United States v. Palacios-Suarez, 7/25/04). AILA Doc. No. 05102464.
AILA Doc. No. 05102464.
CA6 Upholds IJ’s Asylum Denial Due to Use of Fraudulent Article and IJ’s Finding that Application Was “Frivolous” (10/17/2005)
The Court held that Petitioner’s submission of the fraudulent newspaper article in support of a key element in his asylum claim was sufficient support for the IJ’s adverse credibility finding. The Court also upheld the IJ’s finding that Petitioner’s asylum application was “frivolous.” (Selami v. Gonzales, 9/16/05). AILA Doc. No. 05101770.
AILA Doc. No. 05101770.
CA6 Finds Young, Attractive Albanian Women Do Not Constitute a Particular Social Group (10/4/2005)
Petitioner argued that as a young, attractive woman in Albania she risked being kidnapped and forced into prostitution. The Court rejected the Petitioner’s social group argument, finding that the group was too generalized for asylum purposes and that it was ill-defined. (Rreshpja v. Gonzales, 8/15/05). AILA Doc. No. 05100461.
AILA Doc. No. 05100461.
CA6 Questions IJ’s Objectivity in Adverse Credibility Ruling (8/16/2005)
Raising concerns about the IJ’s objectivity, the Court found that the alleged inconsistencies and deficiencies found by the IJ and BIA “come nowhere close” to supporting the conclusion that Petitioner’s persecution claim was false. (Mece v. Gonzales, 7/20/05). AILA Doc. No. 05081664.
AILA Doc. No. 05081664.
CA6 Says BIA Credibility Determination Was Not Based on Substantial Evidence (8/16/2005)
The Court ruled that the BIA’s three reasons for finding Petitioner not credible were not supported by substantial evidence. The Court found that the inconsistencies cited by the Board either did not go to the heart of Petitioner’s claim, were corrected at the start of the hearing, or were non-existent. (Pergega v. Gonzales, 7/28/05). AILA Doc. No. 05081662.
AILA Doc. No. 05081662.
CA6 Addresses REAL ID “Transitional Rule Cases” Provision and New INS §242(a)(2)(D) (Updated 11/7/05) (11/7/2005)
The court found that §106(d) of the REAL ID Act places transitional rule cases under the set of judicial review rules applicable to removal cases and §106(a), which added new INA §242(a)(2)(D), expands the court's direct review of removal orders over legal and constitutional questions. (Elia v. Gonzales, 7/22/05). AILA Doc. No. 05081661.
AILA Doc. No. 05081661.
CA6 Construes Motion for Stay of Removal as Motion to Stay Voluntary Departure Period (7/21/2005)
The court held that a motion for a stay of removal filed during the pendency of a petition for review will be construed to include a motion to stay voluntary departure provided the motion for a stay of removal is filed prior to the expiration of the voluntary departure period. (Macotaj v. Gonzales, 6/24/05). AILA Doc. No. 05072169.
AILA Doc. No. 05072169.
CA6 Rules IJ’s Off-Record Conversation with Her Albanian Clerk Is a Due Process Violation, but Finds No Prejudice to Albanian Asylum Applicant (7/13/2005)
The Court upheld IJ’s negative credibility determination in Albanian asylum case, but also found that IJ abandoned role as a neutral arbiter due to her off-record conversation with her Albanian clerk, amounting to a due process violation. The Court, however, found no prejudice to Petitioner and denied his claims for relief. (Vasha v. Gonzales, 6/14/05) AILA Doc. No. 05071360.
AILA Doc. No. 05071360.
CA6 Finds Adverse Credibility Determination Not Supported by Substantial Evidence; Stays Decision for Motion to Reopen (7/7/2005)
The Court rejected the BIA’s rationale that Petitioners are required to provide an exhaustive, detailed list of their activities in the asylum application. The Court found fundamentally changed conditions in Albania, but stayed its decision to allow the BIA to consider a motion to reopen based on “other serious harm” Petitioners might face. (Liti v. Gonzales, 6/3/05). AILA Doc 05070766.
AILA Doc. No. 05070766.
CA6 Reverses BIA’s Finding that Albanian Political Activists Failed to Establish Past Persecution (6/13/2005)
The Court found that the IJ’s and BIA’s determination that Petitioners did not suffer persecution was not supported by substantial evidence. The Court found that the harm, including physical abuse, verbal harassment, searches of their home, and death threats compelled a finding that Petitioners were subjected to past persecution. (Gilaj v. Gonzalez, 5/9/05). AILA Doc. No. 05061361.
AILA Doc. No. 05061361.
CA6 Rejects Inadequate Interpreter Argument by Asylum Seekers (5/9/2005)
The Court upheld the negative credibility determination of the IJ based on numerous inconsistencies in the Petitioners’ testimony, asylum applications, and previous statements. Additionally, the Court found that the isolated interpretation problems did not prejudice the Petitioners’ because they did not affect the outcome of their case. (Gishta v. Gonzales, 3/15/05). AILA Doc No 05050971.
AILA Doc. No. 05050971.
CA6 Holds IJ Erred in Denying Iraqi Family CAT Relief; Remands Claim to BIA After Finding Changed Country Conditions (5/9/2005)
The Court found that the IJ ignored, without explanation, the arrest warrant issued for the principal Petitioner and the torture he suffered in the past at the hands of the Iraqi government. The Court held, based on the record, that the Petitioners were eligible for CAT, but remanded due to changed country conditions. (Namo v. Gonzales, 3/17/05). AILA Doc. No. 05050966.
AILA Doc. No. 05050966.
CA6 Upholds IJ’s Negative Credibility Determination; Remands for Specific Credibility Determination on CAT Claims (4/11/2005)
The Petitioner sought asylum, withholding and CAT relief based on several incidents of arrest, imprisonment and torture he suffered. The IJ concluded his testimony was not credible. The Sixth Circuit held that because the IJ failed to make a specific credibility finding regarding torture, his case should be remanded. (Singh v. Ashcroft, 2/8/05). AILA Doc. No. 05041162.
AILA Doc. No. 05041162.
CA6 Holds that Illinois Sex Abuse Conviction is an Aggravated Felony (4/4/2005)
The court affirmed its jurisdiction to determine whether an offense constitutes an aggravated felony and thus, is covered by the criminal bar to review in INA § 242(a)(2)(C). The court also concluded that Petitioner’s sexual abuse conviction constitutes a crime of violence and, therefore, an aggravated felony. (Patel v. Ashcroft, 3/8/05). AILA Doc. No. 05040466.
AILA Doc. No. 05040466.
CA6 Reverses BIA’s Finding that Iraqi Woman Abandoned LPR (4/4/2005)
The court acknowledged Petitioner’s lack of ties to the United States but found that they were not determinative of whether she abandoned LPR status because the motivation for Petitioner’s absence from the country was “to protect her family from a dictatorial regime with an infamous human rights record.” (Hana v. Gonzales, 3/14/05). AILA Doc. no. 05040460.
AILA Doc. No. 05040460.
CA6 Holds Ohio Simple Possession Conviction Not an Aggravated Felony (3/18/2005)
The court concluded that an Ohio state drug conviction for simple possession of heroin was not a "drug trafficking crime" and, thus, not an "aggravated felony" under INA § 101(a)(43)(B) using either the “hypothetical felony” or “guideline” approach, because the maximum possible sentence did not exceed one year. (Chi Jing Liao v. Rabbett, 2/7/05). AILA Doc. No. 05031862.
AILA Doc. No. 05031862.
CA6 Remands Iranian CAT Denial (2/8/2005)
The court held that the BIA’s failure to address the Department of State Country Reports on Human Rights Practices in Iran or its highly relevant decision in Matter of G-A-, 23 I. & N. Dec. (BIA 2002) (en banc) (discussing human rights abuses in Iran) warranted remand. (Mostafa v. Ashcroft, 1/24/05). AILA Doc. No. 05020834.
AILA Doc. No. 05020834.
CA6 Rejects Challenge to Removability Due to Petitioner’s Failure to Exhaust; Holds Ex Post Facto Clause Does Not Apply to Civil Immigration Proceedings (1/27/2005)
The Court rejected Petitioner’s claim that his domestic violence conviction occurred prior to the effective date of IIRIRA (and so did not render him removable as charged) since it wasn’t raised before the IJ or BIA; it also held that applying IIRIRA to this case would not violate the Ex Post Facto clause or due process. (Csekinek v. INS, 12/15/04). AILA Doc. No. 05012766.
AILA Doc. No. 05012766.
CA6 Holds That An IJ’s Finding Regarding Alien’s “Last Entry Date” And/Or Back Tax Returns Are Insufficient to Establish Continuous Physical Presence under INA § 240A(b)(1)(A) (1/24/2005)
The Court found that continuous physical presence was not established for purposes of cancellation of removal under INA § 240A(b)(1), even though the IJ had determined that the last entry occurred in 1985, and/or that back tax returns had been submitted for all of the years in question. (Santana-Albarran v. Ashcroft, 01/10/05). AILA Doc. No. 05012469.
AILA Doc. No. 05012469.

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