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2008 - 2007

  • CA10 Upholds MTR Asylum Denial Based on Change in Personal Circumstances(114 KB - 12/8/2008)
    The court held that the BIA did not abuse its discretion in finding a failure to present any new material evidence of changed conditions in China regarding coercive population control measures. The court also held that a change in personal circumstances, a fourth pregnancy, could not support an untimely motion to reopen. (Wei v. Mukasey, 11/7/08). AILA Doc. No. 08120867.
    AILA Doc. No. 08120867.
  • CA10 Holds “Frivolous” Notice on Asylum Form Alone Complies with Statute(113 KB - 12/8/2008)
    The court concluded as a matter of law that the written notice of the penalty for filing a frivolous asylum application contained on form complied with INA §208(d)(4)(A) and provided Petitioner with the notice he was entitled to. The court held that it did not need to decide whether the IJ’s verbal notice was sufficient. (Ribas v. Mukasey, 11/4/08). AILA Doc. No. 08120865.
    AILA Doc. No. 08120865.
  • CA10 Finds AG’s Interpretation of Statue to Allow Indefinite Detention Reasonable(176 KB - 11/18/2008)
    The court vacates the grant of habeas and remands. It concludes that the AG’s reading of 8 U.S.C. § 1231(a)(6) as authorizing the detention beyond 90 days of limited classes of aliens avoids raising serious constitutional doubts, and is due deference notwithstanding the Supreme Court’s earlier contrary interpretation. (Hernandez-Carrera v. Carlson, 11/12/08). AILA Doc. No. 08111860.
    AILA Doc. No. 08111860.
  • CA10 Reverses Finding of No Past Persecution in Case of Armenian Journalist (9/16/2008)
    The court reversed the IJ’s finding that Petitioner’s mistreatment amounted to no more than hostile actions by people adversely affected by the news media. The court held that official retaliation against one who threatens to expose government corruption may, in certain circumstances, amount to persecution. (Hayrapetyan v. Muksey, 7/28/08). AILA Doc. No. 08091664.
    AILA Doc. No. 08091664.
  • CA10 Finds Mayan Poverty/Discrimination in Guatemala Not Basis for Asylum (8/22/2008)
    The court upheld the IJ’s denial of two asylum claims finding that the IJ clearly applied the Acosta test which was consistent with the BIA’s decision in Matter of T-Z- under circumstances involving general economic disadvantage, but no seizure or loss of property, assets or professional occupation or status. (Vicente-Elias v. Mukasey, 7/11/08). AILA Doc. No. 08082274.
    AILA Doc. No. 08082274.
  • CA10 Finds BIA Failed to Properly Apply the “Clearly Erroneous” Standard (8/22/2008)
    The court noted that under 8 CFR §1003.1(d)(3)(i), the BIA is required to review the IJ’s factual findings – including credibility determinations – for clear error, and only clear error. The court held that the BIA’s rigorous review of the IJ’s credibility determination exceeded the bounds of clear error review. (Kabba v. Mukasey, 7/1/08). AILA Doc. No. 08082271
    AILA Doc. No. 08082271.
  • CA10 Discusses Violation of Student Visa Status Under INA §214(m)(2) (7/18/2008)
    The court held that Petitioner did not “terminate or abandon” her course of study under INA §214(m)(2) when her private secondary school ceased operations and she was forced to attend a local public high school. Therefore, the court found Petitioner admissible for purposes of adjustment of status under INA §245(a). (Lee v. Mukasey, June 3, 2008). AILA Doc. No. 08071868.
    AILA Doc. No. 08071868.
  • CA10 Finds Petitioner Removable for False Claim to U.S. Citizenship on Form I-9 (5/21/2008)
    The court held that a person who misrepresents citizenship to obtain private employment does so for the “purpose” of evading INA §274A(a)(1)(A)’s prohibition on “a person or entity” knowingly hiring aliens who are not authorized to work, thus rendering him inadmissible under INA §212(a)(6)(C)(ii)(I). (Kechkar v. Gonzales, 7/11/07). AILA Doc. No. 08052179.
    AILA Doc. No. 08052179.
  • CA10 Dismisses Petition for Review Under the Fugitive Disentitlement Doctrine (4/3/2008)
    The court held that the fugitive disentitlement doctrine applies in immigration proceedings and dismissed the petition for review where Petitioner failed to report to DHS for a meeting to “discuss his intentions of departing the U.S.” under an order of removal and failed to provide DHS with a current address. (Martin v. Mukasey, 2/26/08). AILA Doc. No. 08040364.
    AILA Doc. No. 08040364.
  • CA10 Upholds Adverse Credibility Finding Due to Omissions on Asylum Form (4/2/2008)
    The court held that the IJ’s adverse credibility determination was “eminently reasonable.” The court found that if the torture Petitioner described actually occurred, it would defy common sense for Petitioner, who was assisted by counsel, to omit any mention of it in his application and supplemental letters. (Ismaiel v. Mukasey, 2/22/08). AILA Doc. No. 08040263.
    AILA Doc. No. 08040263.
  • CA10 Upholds Validity of Reinstatement Regulation at 8 CFR §241.8(a) (12/14/2007)
    The court upheld the reinstatement regulation at 8 CFR §241.8(a) as a valid interpretation of the INA. The court also held that it lacked jurisdiction to review constitutional claims or questions of law relating to an expedited removal order issued under INA §235(b)(1), that has been reinstated under §241(a)(5). (Lorenzo v. Mukasey, 11/20/07) AILA Doc. No. 07121434.
    AILA Doc. No. 07121434.
  • CA10 Says IJ’s Finding of Deportability Constitutes a “Final Order” Under INA §242(a)(1) (5/14/2007)
    The court held that an IJ must first either issue an order of removal or make a finding of deportability to confer it with appellate jurisdiction under INA §242(a)(1). The court also held that the BIA does not have the independent statutory authority to issue an order of removal in the first instance. (Sosa-Valenzuela v. Gonzales, 5/1/07). AILA Doc. No. 07051463.
    AILA Doc. No. 07051463.
  • CA10 Says INA §242(a)(2)(D) is Not an Independent Grant of Appellate Jurisdiction (5/14/2007)
    The court held that its authority to review constitutional claims and questions of law under INA §242(a)(2)(D) is constrained by INA §242(a)(1), which requires a final order of removal. Therefore, the court lacks jurisdiction to review the decision to revoke a visa without an accompanying final order of removal. (Hamilton v. Gonzales, 5/1/07). AILA Doc. No. 07051461.
    AILA Doc. No. 07051461.
  • CA10 Finds Reinstatement of Prior Removal Order Impermissibly Retroactive (5/3/2007)
    The court held that where a petitioner was deported, reentered, married a U.S. citizen and was granted adjustment of status prior to the effective date of IIRAIRA, DHS may not retroactively apply INA §241(a)(5) to reinstate a prior order of removal. (Valdez-Sanchez v. Gonzales, 4/23/07). AILA Doc. No. 07050370.
    AILA Doc. No. 07050370.
  • CA10 Refuses to Suppress Evidence of Unlawful Immigration Status (3/26/2007)
    The court held that a federal agent’s failure to provide a lawfully detained suspect a Miranda warning prior to inquiring about his immigration status does not require suppression of that status where fingerprint evidence subsequently confirms such status. (U.S. v. Lara-Garcia, 3/6/07). AILA Doc. No. 07032665.
    AILA Doc. No. 07032665.
  • CA10 Overturns Adverse Credibility Finding in Mauritanian Asylum Claim (2/27/2007)
    The court determined that it would only impute the IJ’s reasoning to the BIA if the BIA incorporated it expressly or by implication. The court held that the adverse credibility determination was not supported by substantial evidence, finding Petitioner’s testimony not contradictory and contained only a minor discrepancy. (Sarr v. Gonzales, 1/22/07). AILA Doc. No. 07022769.
    AILA Doc. No. 07022769.
  • CA10 Holds VWP Entrant Has No Right to Contest Removal Through Adjustment of Status (1/23/2007)
    The court held that a VWP entrant who overstays his authorized time and files for adjustment of status before the issuance of a removal order, has waived his right to contest the removal order through a renewed adjustment of status application or to otherwise seek review of the previously filed application. (Ferry v. Gonzales, 08/08/06) AILA Doc. No. 07012313.
    AILA Doc. No. 07012313.