Featured Issue: U.S. Immigration Courts under Trump 2.0

CA1 Says IIRIRA Amendment to §212(h) Applies Retroactively

The court found it was the intent of Congress to amend §212(h) under IIRIRA to preclude individuals convicted of aggravated felonies who were in exclusion or deportation proceedings as of the date of enactment. (Gutierrez-Castillo v. Holder, 6/4/09)

CA1 Finds No Jurisdiction to Review BIA’s Due Diligence Finding

The court found no jurisdiction to review the BIA’s finding that Petitioner lacked due diligence in seeking reopening based on ineffective assistance of counsel, where no constitutional claim or question of law was raised. (Neves v. Holder, 6/4/09)

EOIR Posts Immigration Judge Benchbook Online

DOJ press release announcing that EOIR posted the “Immigration Judge Benchbook” online.

BIA Remands for Enumeration of Ground Relied Upon for Withholding Claim

The BIA remands for further fact-finding and for the IJ to readdress the withholding claim related to FGM in light of the framework set out by the Attorney General in Matter of A-T-. Matter of A-T-, 25 I&N Dec. 4 (BIA 2009)

AILA Praises Decision by Attorney General to Withdraw Matter of Compean

On June 3, 2009, Attorney General, Eric Holder, vacated the decision in Matter of Compean regarding claims of ineffective assistance of counsel. AILA is grateful for this restoration of a basic constitutional process and due process, in the immigration court system.

CA9 Finds Conviction for Abuse of Cohabitant is not Categorically a CIMT

The court holds the California conviction for abuse of a cohabitant is not categorically a crime involving moral turpitude (CIMT). Remands for a determination under the modified categorical approach as to whether the offense is a CIMT. (Morales-Garcia v. Holder, 6/3/09)

Attorney General Vacates Decision in Matter of Compean

Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

DOJ Press Release Regarding AG Holder's Decision to Withdraw Matter of Compean

A 6/3/09 DOJ press release announces Attorney General Eric Holder's decision to vacate Matter of Compean, as well as his intention to initiate a new rulemaking process for regulations to govern claims of ineffective assistance of counsel in removal proceedings.

Vera Institute on Justice and EOIR Provide Report on the Legal Orientation Program

The Vera Institute of Justice and EOIR provided the Phase III report on the Legal Orientation Program (LOP), including an evaluation, performance, and outcome measurement report and the role of LOP in affecting case processing times.

Immigration Law Advisor, May 2009 (Vol. 3, No. 5)

Immigration Law Advisor with an article on assistance in persecution under duress and Negusie v. Holder, federal court activity for April 2009, an article on recent court decisions on visa eligibility, waivers, and marriage fraud, recent BIA precedent decisions, and a regulatory update.

AILA Amicus Brief Urges IJ Role in Conditions for Release from Custody

AILA amicus brief in Matter of Hilario Antonio Garcia Garcia arguing that an IJ has the power to modify conditions of electronic monitoring, curfew, and other reporting requirements.

EOIR Issues Revised Information Collection on Form EOIR-29

EOIR published a revised information collection on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals From a Decision of a USCIS Officer. Comments are due 7/28/09. (74 FR 25773, 5/29/09)

CA5 Remands Carachuri-Rosendo Following Supreme Court Ruling

Following the Supreme Court’s reversal, the court granted the petition for review and remanded, finding Petitioner not ineligible for cancellation of removal based on a recidivist state misdemeanor drug possession conviction. (Carachuri-Rosendo v. Holder, 5/29/09)

BIA Remands Domestic Violence Asylum Case Held in Abeyance for More than Six Years

In an unpublished decision, the BIA remands asylum case back to IJ based on Matter of R-A- after holding case in abeyance for over six years, for submission of new evidence and arguments. Courtesy of Christopher Helt.

CA6 Finds Conviction for Fraudulent Use of SSN or Identifying Information is CIMT

CA6 upholds the finding that petitioner ineligible for voluntary departure and concludes petitioner’s conviction in Mississippi state court for fraudulent use of a social security number or identifying information is a crime involving moral turpitude. (Serrato-Soto v. Holder, 5/28/09).

CA1 Finds No Jurisdiction to Review Denial of Sua Sponte Reopening

The court found no jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte and dismissed the petition for review. (Peralta v. Holder, 5/28/09)

CA7 Concludes Conviction for Sexual Abuse of a Minor Constituted Aggravated Felony

The court considers whether petitioner's “sexual abuse of a minor” in violation of Ind. Code § 35-42-4-9(b), is an aggravated felony. Concludes that the conduct required for conviction categorically constitutes sexual abuse of a minor under INA § 101(a)(43). (Gaiskov v. Holder, 5/28/09)

CA9 Addresses Imputation of Five-Year Residence Requirement for Cancellation and Brand X

Court holds that, for purposes of satisfying the 5 years of lawful permanent residence required under INA § 240A(a)(1), parent’s status as LPR is imputed to unemancipated minor child residing with parent. Finds BIA’s reliance on Brand X is misplaced. (Escobar v. Holder, 5/27/09).

ICE and Nursing Mothers–To Bond or Not To Bond

A week ago I was contacted by a reporter in North Carolina who became involved in a story about a undocumented immigrant. The undocumented immigrant has been in the United States for 13 years, was the mother of five U.S. Citizen children, ranging in age from 9 1/2 to 9 months. She was taken into [&#

CA8 Finds No Abuse of Discretion in BIA Refusal to Remand Despite New Material Facts

The court finds it has jurisdiction to review the BIA’s decision for abuse of discretion. BIA refused to grant motion to remand where the request to reopen provided a completely new basis of seeking cancellation of removal (Vargas v. Holder, 5/20/09)

Memo on Adjudicating Forms I-212 for Aliens Inadmissible under INA 212(a)(9)(C) or Subject to Reinstatement under 241(a)(5) in Light of Gonzalez v.