Set Text Size:

S

S

S

2008

  • CA5 Finds it Lacks Jurisdiction to Review Denial of Motion Seeking Equitable Tolling(81 KB - 9/24/2008)
    The court held that it has no legal standard by which to judge the BIA's ruling and thus lacks jurisdiction to review the denial of a time- and number-barred motion to reopen seeking equitable tolling on the basis of ineffective assistance of counsel, because the BIA has complete discretion to deny untimely MTRs. (Ramos-Bonilla v. Mukasey, 9/18/08). AILA Doc. No. 08092467.
    AILA Doc. No. 08092467.
  • CA5 Upholds Validity of Heightened Hardship Standard Under 8 CFR §212.7(d) (7/18/2008)
    The court held that 8 CFR §212.7(d), which requires a showing of exceptional and extremely unusual hardship for §212(h) waivers involving “violent or dangerous crimes,” is a permissible construction of the statute and is not ultra vires. (Pimentel v. Mukasey, 6/4/08). AILA Doc. No. 08071864.
    AILA Doc. No. 08071864.
  • CA5 Holds Misprision of a Felony Necessarily Involves Fraud or Deceit (6/23/2008)
    The court held that misprision of a felony under 18 USC §4 necessarily involves fraud or deceit for purposes of INA §101(a)(43)(M)(i). Therefore, Petitioner, who did not dispute that the amount of loss resulting from his misprision conviction exceeded $10,000, was convicted of an aggravated felony. (Patel v. Mukasey, 4/29/08). AILA Doc. No. 08062378.
    AILA Doc. No. 08062378.
  • CA5 Finds Filing a False Tax Return is an Aggravated Felony Under INA §101(a)(43)(M)(i) (6/23/2008)
    The court held that INA §101(a)(43)(M) does not limit aggravated felony tax offenses to tax evasion, as referenced in subsection (M)(ii), and that filing a false tax return in violation of 26 USC §7206(1) is an aggravated felony under subsection (M)(i) if it involves a loss exceeding $10,000. (Arguelles-Olivares v. Mukasey, 4/22/08). AILA Doc. No. 08062377.
    AILA Doc. No. 08062377.
  • CA5 Remands Case Involving False Claim to U.S. Citizenship to Gain Admission to University (5/22/2008)
    The court remanded the case to the BIA for reconsideration, in light of Theodros v. Gonzales, whether falsely claiming U.S. citizenship in order to gain admission to a private university’s part-time program is a bar to admissibility under INA §212(a)(6)(C)(ii). (Ismail v. Gonzales, 8/16/07). AILA Doc. No. 08052262.
    AILA Doc. No. 08052262.
  • CA5 Upholds Removal of Petitioner for Falsely Claiming U.S. Citizenship to Gain Private Employment (5/21/2008)
    The court held that private sector employment is a “purpose or benefit” under the INA and that therefore, a person who falsely claims U.S. citizenship in order to gain such employment is inadmissible under INA §212(a)(6)(C)(ii)(I) and removable under INA §237(a)(3)(D)(i). (Theodros v. Gonzales, 6/25/07). AILA Doc. No. 08052167.
    AILA Doc. No. 08052167.
  • CA5 Says Exhaustion May Require Sua Sponte Motion Where New Issue Arises Outside 90-Day Period (5/5/2008)
    The court held that where the BIA has never been given the opportunity to consider an issue but has the means to remedy it, and where the 90-day period for motions to reopen has passed, the issue must first be presented to the BIA in the form of a sua sponte motion before relief may be sought in federal court. (Toledo-Hernandez v. Mukasey, 3/12/08). AILA Doc. No. 08050535.
    AILA Doc. No. 08050535.
  • CA5 Allows §212(h) Waiver for Persons Who Adjust Post-Entry to LPR Status (4/17/2008)
    The court held that persons who adjust post-entry to LPR status, who are then convicted of an aggravated felony, are not barred from seeking a waiver under INA §212(h). The court also rejected Petitioner’s hybrid offense argument and concluded that his bank fraud conviction constituted an aggravated felony. (Martinez v. Mukasey, 3/11/08). AILA Doc. No. 08041771.
    AILA Doc. No. 08041771.
  • CA5 Says District Court Has Jurisdiction to Review I-130 Denials (4/2/2008)
    The court held that a decision regarding the validity of a marriage for purposes of an I-130 visa petition is not discretionary within the meaning of INA §242(a)(2)(B), and is therefore, subject to judicial review. (Ayanbadejo v. Chertoff, 2/8/08). AILA Doc. No. 08030261.
    AILA Doc. No. 08040261.
  • CA5 Says No “Dangerousness” Exception to Zadvydas’ Indefinite Detention Bar for Mentally Ill (3/7/2008)
    The court held that INA §241(a)(6), as construed by Zadvydas v. Davis, does not authorize the continued and potentially indefinite detention of a removable alien based on a determination by the government that the alien’s mental illness renders him a dangerous risk to the community. (Tran v. Mukasey, 1/28/08). AILA Doc. No. 08030767.
    AILA Doc. No. 08030767.
  • CA5 Holds NY Penal Law §165.50 is an Aggravated Felony Theft Offense (1/8/2008)
    The court held that third-degree criminal possession of stolen property in violation of NY Penal Law §165.50 is an aggravated felony “theft offense” within the meaning of INA §101(a)(43)(G). (Burke v. Mukasey, 12/10/07). AILA Doc. No. 08010869.
    AILA Doc. No. 08010869.
  • CA5 Dismisses Habeas Petition Filed During Pendency of BIA Appeal (1/8/2008)
    Because jurisdiction under INA §242 is limited to “final orders of removal,” the court lacked jurisdiction over Petitioner’s habeas petition which was filed while his BIA appeal was pending. The court also had no jurisdiction to review the IJ’s order of removal independently and dismissed the petition for review. (Moreira v. Mukasey, 12/10/07). AILA Doc. No. 08010868.
    AILA Doc. No. 08010868.