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2008 - 2007

  • CA4 Finds IJ Erred in Denying Asylum as a Matter of Discretion(170 KB - 12/9/2008)
    The court set forth a list of non-exhaustive factors that IJs should consider when determining if an individual merits asylum as a matter of discretion. The court held that an IJ must demonstrate that she reviewed the record and balanced theses factors. The court found the IJ abused her discretion in failing to do so. (Zuh v. Mukasey, 11/25/08). AILA Doc. No. 08120963.
    AILA Doc. No. 08120963.
  • CA4 Concludes a Request for Stay of Removal is in Essence a Request for Injunctive Relief(170 KB - 11/18/2008)
    Petition for rehearing en banc is denied. The court interprets 8 U.S.C. § 1252(f)(2), which provides the standard for granting injunctions against the operation of immigration laws, to encompass stays of removal. (Teshome-Gebreegziabher v. Mukasey, 10/30/08). AILA Doc. No. 08111869.
    AILA Doc. No. 08111869.
  • CA4 Addresses “Approvable when Filed” Requirement of Grandfathering under 245(i)(178 KB - 9/23/2008)
    The court upheld the finding that the petitioner failed to demonstrate that his special immigrant religious worker visa petition was approvable when filed within the meaning of 8 CFR § 1245.10(a)(3). At issue was whether the petition was meritorious in fact. Ogundipe v. Mukasey (9/2/08). AILA Doc. No. 08092366.
    AILA Doc. No. 08092366.
  • CA4 Remands Asylum Case Due to Confidentiality Breach & Due Process Denial (9/16/2008)
    The court found that Petitioner established that her right to confidentiality under 8 CFR §208.6 was violated and that she was should be given the opportunity to present new claims for relief based on this breach. The court held that the IJ’s consideration of a State Department letter violated her right to due process. (Anim v. Mukasey, 8/11/08). AILA Doc. No. 08091666.
    AILA Doc. No. 08091666.
  • CA4 Finds INA §242(f)(2) Provides Controlling Standard for Motions to Stay Removal (7/18/2008)
    The court held that INA §242(f)(2) governs the standard for reviewing motions to stay removal. In order to grant a stay of removal, the court must find by clear and convincing evidence that execution of the removal order is prohibited as a matter of law. (Teshome-Gebreegziabher v. Mukasey, 6/16/08). AILA Doc. No. 08071863.
    AILA Doc. No. 08071863.
  • CA4 Holds Ineffective Assistance Not a 5th Amendment Due Process Violation (6/28/2008)
    The court held that retained counsel’s ineffectiveness in a removal proceeding cannot deprive a person of his Fifth Amendment right to a fundamentally fair hearing. The court reasoned that counsel was not a state actor and there was not sufficient nexus between the federal government and counsel’s ineffectiveness. (Afanwi v. Mukasey, 5/19/08). AILA Doc. No. 08062861.
    AILA Doc. No. 08062861.
  • CA4 Remands for Determination of Whether IUD Insertion is Persecution (4/2/2008)
    The court noted that the BIA had not issued a published, precedent decision addressing whether, and under what circumstances, the forced insertion and continued usage of an IUD would constitute persecution. The court faulted the BIA for its cursory conclusion, finding that the BIA had given it nothing to review. (Lin v. Mukasey, 2/20/08). AILA Doc. No. 08040274.
    AILA Doc. No. 08040274.
  • CA4 Holds CAT Factual Findings Not Reviewable; Adjustment Unavailable (4/2/2008)
    The court found that it lacked jurisdiction to review the CAT claim of Petitioner, who was convicted of an aggravated felony, because the issue on appeal was a factual determination by the BIA. The court held that Petitioner, who entered as a refugee and previously adjusted status, was unable to adjust status again. (Saintha v. Mukasey, 2/14/08). AILA Doc. No. 08040269.
    AILA Doc. No. 08040269.
  • CA4 Affords Chevron Deference to BIA’s Interpretation of “U.S. National” (10/12/2007)
    Applying Chevron deference, the court held that the BIA’s conclusion that a noncitizen may only acquire U.S. nationality by birth or naturalization is permissible, notwithstanding United States v. Morin, where the court held that a person who owes “permanent allegiance” to the U.S. qualifies as a U.S. national. (Fernandez v. Keisler, 9/26/07). AILA Doc. No. 07101264.
    AILA Doc. No. 07101264.
  • CA4 Strikes Down Regulation Barring Motions to Reopen Filed After A Person Is Removed (9/7/2007)
    The court held that the regulation barring motions to reopen filed after a person departs or is removed is invalid because it conflicts with the motion to reopen statute. The Board of Immigration Appeals has jurisdiction to adjudicate a motion to reopen filed post-departure. AILF appeared as amicus curiae in support of the petitioner. (William v. Gonzales, 9/6/07) AILA Doc. No. 07090771.
    AILA Doc. No. 07090771.
  • CA4 Rejects Asylum for Egyptian Army Deserter despite Confidentiality Breach (8/20/2007)
    The court held that the record did not contain any evidence that the Egyptian government would persecute Petitioner because of his marriage to a woman of Jewish descent or for any political opinions imputed to him on that basis. The court found that DHS’ breach of confidentiality was not a ground for asylum. (Abdel-Rahman v. Gonzales, 7/12/07) AILA Doc. No. 07082063.
    AILA Doc. No. 07082063.
  • CA4 Finds Exclusive District Court Jurisdiction Over Natz Applications Under INA §336(b) (8/7/2007)
    The court held that the timely filing of a request for a district court hearing on a naturalization application under INA §336(b) vests the district court with exclusive jurisdiction over the matter and deprives CIS of jurisdiction to adjudicate an application unless instructed to do so by the court. (Etape v. Chertoff, 8/2/07). AILA Doc. No. 07080767.
    AILA Doc. No. 07080767.
  • CA4 Finds Withholding Claim Cannot Be Based on Psychological Harm Alone (7/24/2007)
    The court held that to establish a claim for withholding an applicant cannot rely solely on psychological harm or the threat of such harm, but must establish injury or a threat of injury to the applicant’s person or freedom. The court rejected Petitioner’s withholding claim based the threat of FGM to her daughter. (Niang v. Gonzales, 6/12/07). AILA Doc. No. 07072465.
    AILA Doc. No. 07072465.
  • CA4 Upholds IJ’s Denial of Continuance Notwithstanding Pending Labor Certification (7/16/2007)
    The court held that the IJ did not abuse her discretion in refusing to grant a continuance where Petitioner’s wife was the beneficiary of a pending labor certification, because at the time he requested the continuance, Petitioner was not statutorily eligible for adjustment of status. (Lendo v. Gonzales, 7/10/07). AILA Doc. No. 07071671.
    AILA Doc. No. 07071671.
  • CA4 Overturns IJ’s Denial in Chinese One-Child Claim on Issue of Past Harm (6/29/2007)
    The court found that the IJ did not make an adverse credibility finding regarding Petitioner’s evidence of his past persecution, i.e. his wife’s forced abortion. The court noted that a determination that Petitioner’s well-founded fear was not believable does not defeat an asylum claim based on past persecution. (Lin-Jian v. Gonzales, 5/30/07). AILA Doc. No. 07062962.
    AILA Doc. No. 07062962.
  • CA4 Finds IJ’s Jurisdiction Over AOS Applications Encompasses INA §204(j) (3/8/2007)
    The court held that statutory jurisdiction over adjustment of status applications is unambiguously vested in the IJ and necessarily encompasses jurisdiction to determine whether an approved visa petition remains valid under INA §204(j), when the beneficiary changes employment. (Perez-Vargas v. Gonzales, 2/22/07). AILA Doc. No. 07030870.
    AILA Doc. No. 07030870.
  • CA4 Holds IJ’s Finding of 10% Risk of FGM Based on Speculation (2/13/2007)
    The court found that Petitioner’s testimony, which the IJ deemed credible, established that she was sold to a chieftain husband and that she would be forced to undergo FGM upon return to Niger. The court held that the IJ’s finding that Petitioner would only be at 10% risk of FGM was not supported by substantial evidence. (Haoua v. Gonzales, 1/5/07). AILA Doc. No. 07021363.
    AILA Doc. No. 07021363.
  • CA4 Finds “Hiding” Is Not a Reasonable Internal Relocation Option (1/19/2007)
    The court found that the Board’s conclusion that Petitioner could reasonably relocate internally was not supported by substantial evidence. The court concluded that no reasonable adjudicator could find that Petitioner was undisturbed while in hiding in her home country for a four-year period. (Bockou Essohou v. Gonzales, 12/15/06). AILA Doc. No. 07011961.
    AILA Doc. No. 07011961.