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2004 - 2003

  • CA8 Affirms Removability Based on False Citizenship Claim on I-9 Form (10/8/2004)
    The court found that petitioner was removable under INA § 212(a)(6)(C)(ii)(I) for making a false claim to U.S. citizenship on Form I-9, but declined to consider whether employment is a "purpose or benefit" within the meaning of the statute because petitioner failed to exhaust that issue before the BIA. (Ateka v. Ashcroft, 9/24/04). AILA Doc. No. 04100860.
  • CA8 Remands Somalian Asylum Case (10/5/2004)
    The court held that the BIA erroneously held that petitioner could relocate to avoid persecution in Somalia and rejected the government’s argument that conditions in Somalia had “measurably improved.” (Awale v. Ashcroft, 9/13/04). AILA Doc. no. 04100570.
  • CA8 Affirms Denial of Asylum and Withholding and Dismisses Claim to Exclusion Proceedings Pursuant to INA § 242(g) (9/13/2004)
    The court affirmed the denial of petitioner’s applications based on China’s one-child policy and dismissed her procedural claim to entitlement to exclusion proceedings under INA § 242(g). (Jin Zhu S-Cheng v. Ashcroft, 8/12/2004). AILA Doc. No. 04091369.
  • CA8 Reverses BIA’s Refusal to Grant AOS Remand Based on Approved Visa Petition (8/13/2004)
    The court found that the BIA’s denial violated the governing statute and regulations because an approved visa petition sufficed to establish clear and convincing evidence that petitioner’s marriage was bona fide, thus making her eligible for adjustment of status. (Patel v. Ashcroft, 7/13/04). AILA Doc. No. 04081320.
  • CA8 Finds Reinstatement Has Impermissible Retroactive Effect (Updated 11/8/04) (8/13/2004)
    The Eighth Circuit held an individual who filed a labor certification application before 4/1/97 could not be subject to reinstatement of removal under INA § 241(a)(5), reasoning that such application would have impermissible retroactive effect because it would deprive him of his right to defend against deportation. (Lopez-Flores v. DHS, 10/28/2004). AILA Doc. No. 04081372.
  • CA8 Denies Motions for Stay of Voluntary Departure Filed After the Expiration of Such Period (8/12/2004)
    The Eighth Circuit held petitioner’s reliance on an earlier decision, Safaie v. INS, was “misplaced,” and that it lacked authority to stay the voluntary departure period where the request for a stay of the voluntary departure period was filed after expiration of the period. (Obleshchenko v. Ashcroft, 7/8/04); (Molathwa v. Ashcroft, 7/8/04). AILA Doc. No. 04081269.
  • CA8 Construes Motion for Stay of Removal to Include Motion to Stay Voluntary Departure Period (8/12/2004)
    The Eighth Circuit stayed a voluntary departure period on the showing that it was warranted under the same standards employed in reviewing stay of removal requests. The court also deemed a motion to stay removal filed prior to the expiration of the voluntary departure period to include a motion to stay that period. (Rife v. Ashcroft, 7/7/04). AILA Doc. No. 04081268.
  • CA8 Finds Reasonable Cause Warrants Reopening In Absentia Order (7/26/2004)
    The Eighth Circuit found that the combination of traffic, petitioner’s inability to locate the immigration court and her child’s illness constituted reasonable cause warranting reopening of her in absentia exclusion order. (De Jimenez v. Ashcroft, 6/7/2004). AILA Doc. No. 04072665.
  • CA8 Holds that It Lacks Authority to Review BIA Issuance of Affirmance Without Opinion (7/9/2004)
    When Petitioner argued that the BIA improperly employed its Affirmance Without Opinion (AWO) procedure to his case, the Court held that it lacked jurisdiction to review the claim. It said the "basic presumption of judicial review" is overcome where “agency action is deemed committed to agency discretion by law.” (Ngure v. Ashcroft, 5/17/04). AILA Doc. No. 04070910.
  • CA8 Denies Claim of Equitable Estoppel, Finding No Affirmative Misconduct (5/25/2004)
    In examining petitioner’s equitable estoppel claim against the INS, the Eighth Circuit Court noted that, to prevail, the petitioner must prove that the INS committed "affirmative misconduct." With little discussion, the Court held that petitioner’s allegations did not rise to the level of affirmative misconduct. (Varela v. Ashcroft, 5/13/04). AILA Doc. No. 04052565.
  • CA8 Finds Illegal Arrest, Death Threat, Government Inquiries Can Amount to Persecution (4/28/2004)
    The Eighth Circuit concluded that the BIA erred in finding that a Bolivian union activist's illegal arrest, a death threat from a military member, and the government's subesequent active search for him did not rise to the level of persecution. (Bellido v. Ashcroft, 4/22/04). AILA Doc. No. 04042865.
  • CA8 Finds IJ Curtailed Petitioner's Testimony and Grants Asylum (4/12/2004)
    The Eighth Circuit Court found that the petitioner suffered prejudice because he may have been found credible had the IJ not prevented him from presenting all the testimony relevant to his asylum claim. (Al Khouri v. Ashcroft, 4/1/04). AILA Doc. No. 04041271.
  • CA8 Affirms Asylum and Withholding Denials, Concluding Petitioner was Not Targeted for Persecution (4/12/2004)
    The Eighth Circuit affirmed the asylum and withholding denials, notwithstanding the petitioner's political activism and his having been beaten and briefly detained in mass rallies. The Court concluded that the petitioner was not deliberately target by authorities. Dissenting opinion published. (Eusebio v. Ashcroft, 3/25/04). AILA Doc. No. 04041263.
  • CA8 Affirms Denials of Asylum and Withholding, and Remands on CAT Claim (4/12/2004)
    The Eighth Circuit affirmed the denials for failure to establish a nexus to petitioner’s political opinion or imputed political opinion, and remanded the CAT claim on the question of whether the EPLF had the status of a recognized government at the time petitioner was considered to have deserted the EPLF forces. (Habtemicael v. Ashcroft, 3/9/04).
  • CA8 Remands Asylum Case for In-Country Relocation and Past Persecution Determinations (3/16/2004)
    The Eighth Circuit remanded the petitioner's case for consideration of 8 C.F.R. section 208.13(b)(3) on whether it would be reasonable to expect Petitioner to relocate within his home country. Additionally, the Court remanded for consideration of whether the petitioner suffered past persecution. (Hagi-Salad v. Ashcroft, 3/9/04). AILA Doc. No. 04031614.
  • CA8 Analyzes the Substantial Evidence Standard and Affirms Denial of Asylum (3/1/2004)
    The Court noted that it may not review the record and reach its own conclusion, but must assess only the reasonableness of the fact-finder’s conclusion. Finding that review "has always involved a large amount of deference to the relevant fact-finder," the Court held that substantial evidence supported the IJ’s denial of asylum. (Menendez-Donis v. Ashcroft, 02/19/04). AILA Doc. No. 04030269
  • CA8 Holds that Voluntary Departure Interrupts Continuous Physical Presence (1/28/2004)
    The Court held that departure from the United States pursuant to voluntary departure interrupts continuous physical presence for cancellation of removal eligibility, affirming Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002). (Palomino v. Ashcroft, 01/15/04). AILA Doc. No. 04012812.
  • CA8 Upholds AWO Procedure (1/5/2004)
    The Eighth Circuit upheld the BIA's Affirmance Without Decision process. On the merits, it affirmed the IJ's denial of asylum and withholding. (Loulou v. Ashcroft, 12/30/03). AILA Doc. No. 04050121.
  • CA8 Concludes that Ineffective Assistance of Counsel Did Not Constitute A Due Process Violation (11/7/2003)
    Where petitioner's counsel failed to file an application under INA section 212(h) for relief from removal, the Eighth Circuit held that there was no violation of due process by that ineffective assistance of petitioner's counsel because of the discretionary nature of the 212(h) application. (Nativi-Gomez v. Ashcroft, 09/26/03). AILA Doc. No. 03110713.
  • CA8: Doan v. INS (11/24/1998)
    Eighth Circuit ruling that a consular official's discretionary decision to grant or deny visa petition is generally not subject to judicial review.