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CASES DECIDED IN FEDERAL COURT IN JANUARY / FEBRUARY 2008

 

January 28-February 1, 2008

U.S. 1st Circuit Court of Appeals, January 29, 2008
Yosd v. Mukasey, No. 07-1390
Cambodian national's petition for review of a denial of asylum and related relief is denied where there was no due process violation in a remand for a second hearing, and an IJ's adverse credibility determination was supported by substantial evidence. Read more...

U.S. 1st Circuit Court of Appeals, January 31, 2008
Chikkeur v. Mukasey, No. 05-2893, 07-1798
Algerian citizens' petition for review of denials of their applications for asylum and related relief, as well as their motion to reopen, is denied where: 1) the IJ supportably found, on the record, that petitioners failed to demonstrate the requisite link between certain extortion and his political opinion or membership in a particular social group; and 2) there was no abuse of discretion in denying the motion to reopen. Read more...

U.S. 2nd Circuit Court of Appeals, January 28, 2008
Lin v. BCIS, No. 06-3905
Petition for review challenging denials of application for adjustment of status under the Chinese Student Protection Act and motion to reopen for consideration application for asylum, withholding of deportation, and relief under the Convention Against Torture is denied where: 1) the Immigration and Nationality Act section 245(i) does not provide an avenue for renewing or amending a CSPA application for adjustment of status that was previously denied as the applicant entered without inspection; and 2) the BIA did not abuse its discretion in declining to reopen to allow petitioner to pursue an application for asylum, withholding of removal, or CAT relief. Read more...

U.S. 2nd Circuit Court of Appeals, January 31, 2008
Yang v. Mukasey, No. 06-3872
Petition for review challenging denial of applications for adjustment of status and waiver of inadmissibility, and ordering her removed is dismissed where the court lacks jurisdiction over the decision to deny the adjustment of status based on independent, discretionary reasons. The remainder of the petition is denied. Read more...

U.S. 2nd Circuit Court of Appeals, February 01, 2008
Zheng v. Mukasey, No. 04-5027
Petition for review challenging finding that petitioner knowingly made a frivolous application for asylum, even though she withdrew the application before the IJ made a final determination, is granted and case is remanded to the BIA to clarify whether she is properly subject to the frivolousness bar. Read more...

U.S. 5th Circuit Court of Appeals, January 28, 2008
Tran v. Mukasey, No. 06-30361
8 U.S.C. section 1231(a)(6), as construed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), 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. Read more...

U.S. 6th Circuit Court of Appeals, January 30, 2008
Demjanjuk v. Mukasey, No. 07-3022
Former Nazi concentration camp guard's petition for review of a BIA decision holding that the Chief Immigration Judge was authorized to preside over petitioner's removal proceeding is denied as the Chief Immigration Judge clearly meets the statutory definition of "immigration judge." Read more...

U.S. 6th Circuit Court of Appeals, January 31, 2008
Al-Najar v. Mukasey, No. 05-4448
Petition for review of a decision denying petitioner asylum and related relief, and finding that he was removable due to a prior state conviction for possession of a controlled substance, is denied where a remand was unnecessary because petitioner's challenge to the state court conviction constituted an impermissible collateral attack, and he presented no other claims that would entitle him to relief. Read more...

U.S. 6th Circuit Court of Appeals, January 31, 2008
Salazar v. Mukasey, No. 07-3051
Petition for review of an order denying petitioner's motion for reconsideration of a dismissal of his appeal as untimely is granted and the matter remanded for further proceedings where the BIA abused its discretion by denying its authority to consider whether the circumstances presented by petitioner were "extraordinary or unique" as a basis for extending the deadline for his notice of appeal. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2008
US v. Christ, No. 07-1634
Conviction and sentence for conspiracy to commit visa fraud are affirmed over defendant's arguments that: 1) there was insufficient evidence to support his conviction; 2) the district court abused its discretion in admitting certain evidence and testimony; 3) the district court further erred by failing to give a missing witness instruction; and 4) the district court relied on improper facts in enhancing his offense level at sentencing, thereby rendering his sentence unreasonable. Read more...

U.S. 8th Circuit Court of Appeals, January 31, 2008
Guled v. Mukasey, No. 07-168, 07-2339
Somalian native's petition for review of a denial of a final order of removal, and a denial of his motion to reopen and reconsider, is denied over claims that: 1) legal errors committed by the IJ and BIA violated his due process rights; 2) the IJ misapplied the balancing test used to determine whether cancellation of removal is appropriate; 3) the IJ abused its discretion in denying his claim for asylum and in "failing to consider" his related claims for relief; and 4) it was an error of law for the BIA to rule he did not meet his burden to show proceedings should be reopened. Read more...

U.S. 11th Circuit Court of Appeals, January 28, 2008
Cisneros v. U.S. Attorney Gen., No. 07-11063
Petition for review of denial of motions to reopen removal proceedings based on exceptional circumstances is granted as the BIA abused its discretion in denying the motion to reopen. Read more...

 

 

 

January 21-January 25, 2008

U.S. 1st Circuit Court of Appeals, January 24, 2008
Jorgji v. Gonzales , No. 07-1571
Petition for review of the denial of applications for asylum, withholding of removal and protection under the Convention Against Torture is denied where, although a regulation excluding weekends and holidays from the one year filing deadline for asylum applications does not say that it operates only as to applications filed by hand, petitioners' application was insufficient since it did not demonstrate a well-grounded fear of future persecution and they did not show that the IJ compromised the fairness of the hearing and violated their due process rights. Read more...

U.S. 1st Circuit Court of Appeals, January 24, 2008
Hem v. Gonzales, No. 07-1775
Petition for review of a denial of an application for asylum, withholding of removal and protection under the Convention Against Torture is denied where substantial evidence supported the IJ's and BIA's rulings that petitioners' accounts of political persecution lacked credibility. Read more...

U.S. 2nd Circuit Court of Appeals, January 23, 2008
Zaman v. Mukasey, No. 07-0600
Petition for review challenging denial of application for withholding of removal and relief pursuant to the Convention Against Torture is denied where the IJ made the sort of explicit credibility finding required by Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000), and the adverse credibility determination was supported by substantial evidence. Read more...

U.S. 2nd Circuit Court of Appeals, January 25, 2008
Barco-Sandoval v. Gonzales, No. 06-0360
Petition for review of an order of the Board of Immigration Appeals, which denied petitioner's application for cancellation of removal under section 240A(b)(1) of the INA, is denied where: 1) the court lacks jurisdiction to review the agency's discretionary and factual determinations underlying the denial of petitioner's application for cancellation of removal; and 2) petitioner fails to raise any colorable constitutional claims or questions of law. Read more...

U.S. 5th Circuit Court of Appeals, January 24, 2008
US v. de Jesus-Ojeda, No. 05-41265
Defendants' sentences arising from an illegal alien smuggling scheme is affirmed where the evidence was sufficient to support the jury's findings and sentencing enhancements under U.S.S.G. section 2L1.1(b)(5) and (6) were properly applied as, based on the facts of the case, it was foreseeable by participants in the scheme conducted in South Texas in August that others involved in the endeavor would take the aliens on foot through brush and hostile terrain and that death or serious bodily injury might result. Read more...

U.S. 7th Circuit Court of Appeals, January 23, 2008
US v. Hernandez-Rivas, No. 06-2647
Conviction for illegal reentry and human-trafficking offenses is affirmed over defendant's arguments that: 1) the district court erred in finding that a police officer had reasonable suspicion and probable cause to stop the plaintiff's van; and 2) the district court abused its discretion when it refused to accept plaintiff's attempts to plead guilty. Read more...

U.S. 7th Circuit Court of Appeals, January 24, 2008
Zamora-Mallari v. Mukasey, No. 06-3717
Petitions for review of the denial of waivers of removability under section 212(c) of the Immigration and Nationality Act are denied where: 1) aliens charged with removability for an aggravated felony involving sexual abuse of a minor do not qualify for a section 212(c) waiver under the comparable grounds test; 2) because there is no comparable ground for inadmissibility, petitioners are not similarly situated to those found inadmissible under section 212(a) and therefore there was no equal protection violation; 3) the law of the case doctrine did not apply to one petitioner's case because the BIA never reached the merits of his section 212(c) petition; and 4) the court lacks jurisdiction to review the petitioners' challenges to the BIA's denials of their subsequent motions. Read more...

U.S. 9th Circuit Court of Appeals, January 22, 2008
Perez v. Mukasey, No. 06-73523
Petition for review of a removal order based on a conviction for misdemeanor assault is granted where: 1) fourth degree assault under Washington law is not categorically a "crime of violence"; and 2) the modified categorical approach did not establish that petitioner's conviction was based on a "crime of violence." Read more...

U.S. 9th Circuit Court of Appeals, January 23, 2008
Vizcarra-Ayala v. Mukasey, No. 06-73237
California Penal Code section 475(c) encompasses conduct involving real, unaltered documents and thus is not categorically an offense "relating to ... forgery" under INA section 101(a)(43)(R). Read more...

U.S. 9th Circuit Court of Appeals, January 24, 2008
Apolinar v. Mukasey, No. 04-73484, 04-75248
A petition for review of decisions, one of which dismissed petitioner's appeal of an IJ's denial of cancellation of removal and rejection of an ineffective assistance claim, and another denying her motion to reconsider its earlier decision, is granted and the matter remanded for a merits hearing on the cancellation of removal application. In cases where a petitioner's attorney has been suspended after failing to respond to prior charges of ineffective assistance, it would be futile for the petitioner to inform counsel of the accusations or file a complaint, and petitioner's failure to do so therefore did not bar her potentially meritorious ineffective assistance of counsel claim Read more...

U.S. 11th Circuit Court of Appeals, January 22, 2008
Djonda v. U.S. Attorney Gen., No. 06-11275
Petition for review challenging denial of application of asylum, withholding of removal, and relief under the United Nations Convention Against Torture is denied where the record does not compel a finding that petitioner suffered persecution or has a well-founded fear of persecution upon his return. Read more...

 

 

January 14-January 18, 2008

U.S. 3rd Circuit Court of Appeals, January 15, 2008
Yu v. Attorney Gen. of the US, No. 06-3933
In asylum proceedings brought by petitioners based on their fear that, because they had a second child while in the U.S., one or both of them would be forcibly sterilized for violating China's family planning regime if they were forced to return, petition for review of a denial of asylum and related relief is denied where substantial evidence supported a conclusion that petitioners' claimed fear of forcible sterilization was not objectively reasonable. Read more...

U.S. 5th Circuit Court of Appeals, January 15, 2008
US v. Troop, No. 06-40922
Denial of a motion to suppress evidence preceding defendant's conviction for conspiring to transport an alien is reversed, and the conviction vacated, where the district court erred when it ruled that exigent circumstances permitted Border Patrol agents' search of defendant's house without a warrant. Evidence that suspected aliens were tired and did not answer the door did not add up to a reasonable belief that the suspected aliens were in need of immediate medical aid. Read more...

U.S. 7th Circuit Court of Appeals, January 14, 2008
Bosede v. Mukasey, No. 06-1625
Petition for review of an application for withholding of removal relief under the Convention Against Torture is granted where the IJ's failure to consider evidence concerning the petitioner's drug convictions and likelihood of arrest upon return to his home country violated the petitioner's due process rights. Read more...

U.S. 7th Circuit Court of Appeals, January 16, 2008
US v. Gordon, No. 07-1714
Conviction and sentence for illegal reentry is affirmed over defendant's arguments that: 1) his entry was not surreptitious; 2) the government had constructive knowledge of his presence in the country, thus the prosecution was time-barred; and 3) his sentence was unreasonable. Read more...

U.S. 9th Circuit Court of Appeals, January 14, 2008
Cerezo v. Mukasey, No. 05-74688, 05-75213
A violation of California Vehicle Code section 20001(a), which criminalizes leaving the scene of an accident resulting in bodily injury or death, is not categorically a crime involving moral turpitude for purposes of 8 U.S.C. section 1227(a)(2)(A)(ii). Read more...

U.S. 9th Circuit Court of Appeals, January 14, 2008
Arreguin-Moreno v. Mukasey, No. 06-73014
In the context of immigration proceedings, time spent in pre-trial detention, which is credited as time served in a sentence imposed after conviction, is considered to be confinement as a result of a conviction within the meaning of 8 U.S.C. section 1101(f)(7). Read more...

U.S. 9th Circuit Court of Appeals, January 18, 2008
L.A. Closeout, Inc. v. Dep't of Homeland Sec., No. 06-56084
A decision affirming U.S. Citizenship and Immigration Services' (CIS) denial of plaintiff's application to adjust his status from a B-2 tourist visa to an H-1B visa for specialty occupation workers is affirmed over claims that: 1) CIS's use of an internal memorandum interpreting a regulation violated the notice and comment requirements of the APA; and 2) CIS's interpretation of the regulation contradicts the language of the regulation. Read more...

U.S. 11th Circuit Court of Appeals, January 15, 2008
Scheerer v. U.S. Attorney Gen., No. 06-14192, 06-15971
Petitions for review of denials of motion to reopen removal proceedings and motion to reconsider are denied over claims that: 1) an amendment to the governing regulation, similar to a regulation previously declared invalid, bars virtually all paroled aliens from applying for adjustment of status, and thus is contrary to the intent of section 245(a) of the Immigration and Nationality Act; 2) it was error to apply the regulation to this case; and 3) the BIA abused its discretion in denying the motions. Read more...

U.S. 11th Circuit Court of Appeals, January 17, 2008
Chen v. US Attorney Gen., No. 07-11562
Petition for review of denial of application for asylum and withholding of removal under the Immigration and Nationality Act is denied over claim that the BIA erred in upholding the IJ's finding that petitioner assisted in persecution and was therefore ineligible for relief. Read more...

U.S. 11th Circuit Court of Appeals, January 18, 2008
Hernandez v. U.S. Attorney Gen., No. 07-12420
Petition for review challenging decision finding petitioner removable as an aggravated felon on the basis of his simple battery conviction is denied as over petitioner's claims that: 1) his conviction does not constitute a crime of violence; and 2) he was not convicted of an aggravated felony as he was not sentenced to at least twelve months' imprisonment on his simple battery conviction. Read more...

 

 

 

January 07-January 11, 2008

U.S. 1st Circuit Court of Appeals, January 08, 2008
Tobon-Marin v. Mukasey, No. 07-1113
Petition for review of a denial of applications for asylum is denied where: 1) forced conscription into a rebel group would not constitute "persecution" for asylum purposes absent evidence that the group targeted petitioners as a means to punish them for their political beliefs; 2) the petitioners did not suffer severe or regular harm; and 3) the agency's determination that petitioners failed to establish an objectively reasonable fear of future persecution based on their political opinions was sufficiently supported by substantial record evidence. Read more...

U.S. 2nd Circuit Court of Appeals, January 07, 2008
Valenzuela Grullon v. Mukasey, No. 05-4622
Petition for review of order denying cancellation of removal is dismissed as petitioner failed to exhaust his administrative remedies, the exhaustion requirement is statutory and jurisdictional, and the jurisdictional defect cannot be excused on a ground of manifest injustice. (Amended opinion) Read more...

U.S. 2nd Circuit Court of Appeals, January 07, 2008
Ogunwomoju v. US, No. 06-3734, 06-4424
Dismissal of habeas petition is affirmed as a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. section 2254. Read more...

U.S. 2nd Circuit Court of Appeals, January 09, 2008
Picca v. Mukasey, No. 07-0180
Dismissal of appeal from IJ's order of removal is vacated where the BIA failed to follow its own regulations designed to safeguard an immigrant's right to counsel. Read more...

U.S. 7th Circuit Court of Appeals, January 07, 2008
Eke v. Mukasey, No. 06-3391
Petition for review of a denial of withholding of removal is denied over the petitioner's arguments that: 1) his convictions were not for crimes that fall within the definition of "aggravated felony"; 2) he should not have been required to provide corroborating evidence of his homosexuality; 3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and 4) his due process rights were violated when the IJ insisted on conducting the hearing on the merits by video conference. Read more...

U.S. 9th Circuit Court of Appeals, January 07, 2008
Fernandez v. Mukasey, No. 06-74228
In immigration proceedings involving devout Catholics, who attempted to conceive a child for many years but were unable to have a child due to their religious opposition to in vitro fertilization, petition for review arising from a denial of their application for cancellation of removal due to their lack of a qualifying relative is denied over claims that the application of the statutory requirements for cancellation of removal to them violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). Read more...

U.S. 9th Circuit Court of Appeals, January 09, 2008
US v. Calderon-Segura, No. 05-50820
A conviction and sentence for being a deported alien found in the U.S. is affirmed where: 1) a motion to dismiss the indictment was properly denied as defendant failed to show the requisite due process violation and prejudice to establish that his prior removal was "fundamentally unfair" under 8 U.S.C. section 1326(d)(3); 2) there was no error in the admission of expert testimony on fingerprint identification at trial; 3) there was no jury trial error as to a claim that an enhanced statutory maximum was erroneously applied; and 4) although there was indictment error in that regard, the error was harmless. Read more...

U.S. 11th Circuit Court of Appeals, January 11, 2008
Santamaria v. U.S. Attorney Gen., No. 06-16221
Denial of asylum application and order of removal are vacated where petitioner, a Colombian lawyer and political activist, suffered past persecution on account of her political opinion. Case is remanded and petitioner is entitled to the benefit of the rebuttable presumption that she has demonstrated a well-founded fear of future persecution. Read more...

 

 

December 31 - January 04, 2008

U.S. 3rd Circuit Court of Appeals, January 04, 2008
Jahjaga v. Attorney Gen. of the US, No. 06-2866, 06-3466
In proceedings for asylum and related relief, petitions for review brought by a citizen of Kosovo and a Macedonian native from denial of their motions to reissue are granted where: 1) because no statute provides that motions to reissue are solely within the BIA's discretion, the circuit court has jurisdiction to review their denial for abuse of discretion; and 2) the BIA's denials of motions to reissue the decisions of removal at issue were an abuse of discretion, as they were contrary to law. The matter is remanded to the BIA to determine what weight to accord to petitioners' claims of non-receipt of its opinions in determining whether the opinions were properly served, and to explain the reasoning and analysis it employs in reaching its decision. Read more...

 

 

 

December 24 - December 28, 2007

U.S. 1st Circuit Court of Appeals, December 26, 2007
Lumanauw v. Mukasey, No. 07-1308
Petition for review challenging denial of applications for asylum and withholding of removal is denied where: 1) for one petitioner, her asylum claim is time-barred and, moreover, this was essentially a child custody battle between estranged parents; and 2) the other petitioner failed to establish that, in fact, a reasonable person in her circumstances would have a basis to fear that harm would be inflicted. Read more...

U.S. 6th Circuit Court of Appeals, December 28, 2007
Ceraj v. Mukasey, No. 06-4148
Petition for review of a decision rejecting Albanian couple's claims for asylum and related relief is denied where: 1) substantial evidence supported an IJ's finding that petitioner's asylum application was frivolous; 2) substantial evidence supported a finding that he was not credible; 3) even if the IJ erred as to such determinations, substantial evidence supported a conclusion that petitioner was not entitled to asylum; and 4) consequently, withholding and CAT claims failed as well. Read more...

U.S. 8th Circuit Court of Appeals, December 26, 2007
Chen v. Mukasey, No. 06-3303
Petition for review of a denial of Chinese petitioner's claims for asylum, withholding of removal and relief under the Convention Against Torture is denied where an IJ's adverse credibility determinations were supported by substantial evidence, and consequently the IJ did not err in rejecting petitioner's testimony that he was wanted by the Chinese government because he had driven his mother to a Falun Gong practice. Read more...

U.S. 9th Circuit Court of Appeals, December 27, 2007
Arteaga v. Mukasey, No. 05-70368
El Salvadorian native's petition for review of a decision dismissing his appeal from an order finding him removable as an alien convicted of an aggravated felony and of an offense related to a controlled substance is dismissed in part and denied in part where: 1) petitioner did not qualify for withholding of removal as a member of a "social group" based on his indelible tattoos indicating his gang membership and his potential persecution by rival gang members; 2) the court lacked jurisdiction over the issue of whether a state conviction constituted an aggravated felony; 3) he is not a national of the United States; 4) he is not entitled to relief under the CAT; and 5) an IJ who presided over his hearing was not biased. Read more...

U.S. 9th Circuit Court of Appeals, December 28, 2007
Estrada-Rodriguez v. Mukasey, No. 06-75064
Resisting arrest under Arizona Revised Statutes section 13-2508 categorically constitutes a crime of violence. Read more...

 

 

December 17 - December 21, 2007

U.S. 2nd Circuit Court of Appeals, December 19, 2007
Niang v. Mukasey, No. 05-0136
Denial of application for asylum, withholding of removal, and relief under the Convention Against Torture is vacated in part where the agency cannot base an adverse credibility determination solely on a speculative finding that the applicant has submitted inauthentic documents in support of his application if an applicant's testimony is otherwise credible, consistent and compelling. Where an applicant for withholding of removal establishes past persecution, but the agency finds a fundamental change in country conditions, the agency must provide a reasoned basis, tethered in the record, for its changed country conditions determination unless undisputed historical facts support the conclusion that the applicant will not face persecution on removal. Read more...

U.S. 2nd Circuit Court of Appeals, December 20, 2007
Manuel Puello v. BCIS, No. 06-0735
Denial of petitioner's naturalization application by the BCIS is affirmed where: 1) Under the plain meaning of the definition of "conviction" in 8 U.S.C. section 1101(a)(48)(A), the entry of a "formal judgment of guilt...by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty; and 2) the 1990 amendments to the INA were not impermissibly applied retroactively to petitioner. Read more...

U.S. 3rd Circuit Court of Appeals, December 18, 2007
Thu v. Attorney Gen. US, No. 06-3499
Petition for review of a decision dismissing Burmese petitioner's appeal of a denial of his applications for asylum and related relief is granted and the matter remanded to the BIA where, for purposes of establishing a well-founded fear of persecution and a credibility determination, the IJ failed to consider all of the evidence in the record, including particularly the U.S. Department of State Country Report on Human Rights Practices in Burma. Read more...

U.S. 6th Circuit Court of Appeals, December 19, 2007
Shkulaku-Purballori v. Mukasey, No. 06-4062
A BIA decision denying Albanian petitioner's request for asylum and related relief is dismissed in part and affirmed in part where: 1) the circuit court lacked jurisdiction to review the denial of his asylum application; and 2) he could not meet the standard for qualifying for withholding of removal. Read more...

U.S. 6th Circuit Court of Appeals, December 19, 2007
Pascual v. Mukasey, No. 06-4327
Mayan Guatemalan's petition for review of a decision denying him asylum is denied where petitioner failed to establish past persecution on account of his political beliefs and, at any rate, he has no reasonable fear of future persecution based on changed country conditions. Read more...

U.S. 7th Circuit Court of Appeals, December 18, 2007
Hussain v. Mukasey, No. 07-2448
Denial of a petition for habeas corpus alleging that petitioner's detention pending removal proceedings deprived him of liberty without due process of law is affirmed where: 1) the immigration code bars the court from ordering the release of an alien pending judicial review of the order of removal; and 2) the principle that an alien may be released if, six months after the beginning of the removal period there is no significant likelihood of removal in the reasonably foreseeable future, does not apply when judicial review of the removal order is pending. Read more...

U.S. 8th Circuit Court of Appeals, December 21, 2007
Yang v. Mukasey, No. 06-3010
Petition for review of a denial of Laotian citizen's motion to reopen removal proceedings, in relation to his application for asylum and related relief, is dismissed in part and denied in part where: 1) to the extent petitioner challenged a denial of his first motion to reopen, the circuit court lacked jurisdiction over that issue; and 2) there was no abuse of discretion with regard to denial of a motion to reconsider. Read more...

U.S. 9th Circuit Court of Appeals, December 18, 2007
Iasu v. Smith, No. 06-55681
A decision dismissing for lack of subject matter jurisdiction Eritrean petitioner's challenge to his removability, and declining to transfer the petition to the Ninth Circuit is affirmed where: 1) the district court properly held that the REAL ID Act deprived courts of subject matter jurisdiction over the petition; 2) the district court correctly declined to transfer the case to the Ninth Circuit as the case was filed after the REAL ID Act's effective date; and 3) the REAL ID Act does not violate the Suspension Clause. Read more...

U.S. 9th Circuit Court of Appeals, December 19, 2007
US v. Berber-Tinoco, No. 06-50684
In a prosecution for unlawful re-entry into the U.S. after deportation, denial of defendant's motion to suppress statements and fingerprints which were taken pursuant to an arrest by Border Patrol officers is affirmed where: 1) there was reasonable suspicion for the stop; and 2) a judge's violation of Rule 605 of the Federal Rules of Evidence was harmless. Read more...

 

December 10 - December 14, 2007

U.S. 2nd Circuit Court of Appeals, December 12, 2007
Wala v. Mukasey, No. 06-0238
Petition for review of order to have petitioner removed on the grounds that his conviction for third-degree burglary was a crime involving moral turpitude is vacated as although the IJ and BIA properly concluded that petitioner pled to a burglary with the intent to commit larceny, it was improper for the BIA to have inferred from the plea colloquy that petitioner intended a larceny offense involving a permanent, rather than a temporary, taking of property for the purpose of determining whether petitioner committed a CIMT. Read more...

U.S. 2nd Circuit Court of Appeals, December 12, 2007
Sun v. BIA, No. 06-0101
Petition for review of denial of petitioner's claim for asylum as untimely and denial of his claim for withholding of removal on the merits is dismissed for lack of jurisdiction as to petitioner's asylum claim, and denied on claim for withholding of removal as: 1) the IJ's adverse credibility determination was based on substantial evidence; and 2) even if the IJ had found petitioner credible, petitioner is ineligible for withholding of removal to the extent that his claim of persecution is based on the alleged forced sterilization of his wife and his cousin. Read more...

U.S. 5th Circuit Court of Appeals, December 10, 2007
Moreira v. Mukasey, No. 06-60654
Petition for review of a removal order finding petitioner removable pursuant to 8 U.S.C. section 1227(a)(2)(A)(ii) is dismissed as the circuit court's jurisdiction limited its review to "final orders of deportation", and there was no final order of removal to review in this case at the time the petition for review was filed. Read more...

U.S. 5th Circuit Court of Appeals, December 10, 2007
Burke v. Mukasey, No. 06-60710
An order affirming Jamaican citizen's removal from the country as an alien convicted of an aggravated felony is denied over a claim that the offense for which he was convicted, criminal possession of stolen property in the third degree in violation of N.Y. Penal Law section 165.50, does not qualify as a "theft offense" within the meaning of 8 U.S.C. section 1101(a)(43)(G). Read more...

U.S. 5th Circuit Court of Appeals, December 13, 2007
US v. Rojas-Gutierrez, No. 06-50584
Every offense defined by California Penal Code section 220(a) qualifies as a crime of violence for the purpose of the Sentencing Guidelines because the statutory subsection is the common sense equivalent to the enumerated offense of aggravated assault. The ordinary, contemporary, and common meaning of aggravated assault includes "assault with intent to commit a felony." Read more...

U.S. 8th Circuit Court of Appeals, December 10, 2007
Averianova v. Mukasey, No. 06-3717, 06-3718
Petitions for review brought by Jewish citizens of Uzbekistan, of a denial of their applications for asylum and for withholding of removal, are denied where: 1) there was no error with regard to an adverse credibility finding; 2) petitioners failed to present sufficient evidence corroborating their Jewish ethnicity, and their past persecution or well-founded fear of future persecution on account of it; 3) there was no error in rejecting a claim for asylum based on the INS' alleged breach of confidentiality; and 4) their withholding claim failed for the same reasons. Read more...

U.S. 8th Circuit Court of Appeals, December 11, 2007
Alemu v. Mukasey, No. 06-3309
Ethiopian citizen's petition for review of the BIA's denial of her motion to reopen her removal proceedings is denied over a claim that an academic article concerning the effect of torture on members of her Oromo ethnic group demonstrated changed country conditions in Ethiopia, which would support granting an out-of-time motion to reopen. Read more...

U.S. 9th Circuit Court of Appeals, December 13, 2007
Toufighi v. Mukasey, No. 04-74010
Iranian citizen's petition for review of a denial of his motion to reopen his claims for asylum and withholding of removal is denied where: 1) a motion to reopen based upon his marriage and the birth of his children was barred as untimely; and 2) a motion to reopen based on changed circumstances was properly denied as the BIA did not err as a matter of law when it concluded that petitioner failed to establish that he would be persecuted for being a Christian, nor did it err in failing to consider other possible bases for reopening. Read more...

U.S. 9th Circuit Court of Appeals, December 13, 2007
Global Horizons, Inc. v. US Dep't of Labor, No. 07-55116
In an action brought by a labor contractor that provides temporary alien agricultural workers to U.S. farmers pursuant to the H-2A worker program, denial of plaintiffs' request for preliminary injunctive relief, arising from a Department of Labor notice that it was denying future H2-A labor certification applications from the company, is affirmed where there was no abuse of discretion in denying relief with regard to an ALJ's decision that found plaintiffs' request for a hearing untimely. Read more...

 

 

December 03 - December 07, 2007

U.S. 1st Circuit Court of Appeals, December 07, 2007
Lumanauw v. Mukasey, No. 07-1307
Petition for review of a denial of withholding of removal is denied where the record contained no conclusive evidence that any threat to petitioner upon her return to Indonesia would be motivated to any extent by her Christian beliefs. Read more...

U.S. 2nd Circuit Court of Appeals, December 04, 2007
Yan v. Mukasey, No. 04-4700
Petition for review challenging denial of petitioner's application for asylum and related relief is denied over claims that the IJ's adverse credibility finding was not supported by substantial evidence in the record, the IJ failed to explain why certain actions were implausible, and the IJ impermissibly interpreted those actions from his own point of view. Read more...

U.S. 2nd Circuit Court of Appeals, December 07, 2007
Xia v. Mukasey, No. 06-2959
Petition for review challenging denial of an application for asylum and related relief is denied over a claim that, since petitioner arranged to have an abortion in order to avoid adverse consequences, possibly including the harsh treatment and substandard medical conditions attributed to an abortion or sterilization at the hands of Chinese government cadres, she was thus subjected to a forced abortion under China's family-planning policy and is consequently a "refugee." Read more...

U.S. 6th Circuit Court of Appeals, December 03, 2007
Pepaj v. Mukasey, No. 06-3617
Petition for review of a BIA decision dismissing Albanian petitioner's appeal from an order denying her motion to reopen her removal proceedings is denied where: 1) petitioner failed to meet the requirements for bringing a claim of ineffective assistance of counsel; and 2) the circuit court lacked jurisdiction to review the BIA's determination that she did not show changed country conditions. Read more...

U.S. 7th Circuit Court of Appeals, December 06, 2007
US v Reyes-Sanchez, No. 05-4040
The government's motion to recall the court's earlier mandate requiring resentencing for a defendant convicted of illegal reentry into the U.S. is denied where an administrative error that allowed the defendant's release from prison and removal from the U.S. did not result in an injustice sufficient to warrant the recall of the original mandate. Read more...

U.S. 8th Circuit Court of Appeals, December 04, 2007
Zheng v. Mukasey, No. 06-3048
An alien under a final order of removal must successfully reopen under 8 U.S.C. section 1229a(c)(7)(C)(ii) in order to pursue an untimely or successive asylum application under 8 U.S.C. section 1158(a)(2)(D). Read more...

U.S. 8th Circuit Court of Appeals, December 04, 2007
Zacarias-Velasquez v. Mukasey, No. 06-3672
Petition for review of a denial of Guatemalan native's application for asylum and related relief is denied where: 1) for purposes of asylum and withholding relief, substantial evidence supported a determination that petitioner did not suffer past persecution and does not have a well-founded fear of future persecution in Guatemala; 2) for purposes of a CAT claim, he failed to allege that the Guatemalan government has or would likely torture him in the future; 3) there was no jurisdiction to review a cancellation of removal claim; and 4) a due process claim involving the IJ and interpreter's conduct failed. Read more...

U.S. 8th Circuit Court of Appeals, December 05, 2007
US v. Jaber, No. 06-3913
A conviction for false statements on naturalization and passport applications, unlawful procurement of naturalization, and use of false social security number is affirmed over claims that: 1) the district court lacked jurisdiction and venue to convict on the naturalization-related counts; and 2) it erred in denying his jury instruction for venue. Read more...

U.S. 9th Circuit Court of Appeals, December 03, 2007
Avila-Sanchez v. Mukasey, No. 06-70663
Petition for review of a BIA order denying Mexican native's special motion to reopen so that he could apply for a waiver of inadmissibility is denied where: 1) the provisions of 8 C.F.R. section 1003.44(k)(2) are constitutional and were not improperly applied to petitioner; and 2) the BIA did not err when it refused to allow a collateral attack on a prior proceeding. Read more...

U.S. 9th Circuit Court of Appeals, December 04, 2007
Sanchez v. Mukasey, No. 06-70396, 06-73026
A decision declining to remand or reopen petitioners case is remanded to the BIA to consider petitioners' request in light of new U Visa regulations as a request for a continuance, or to consider any joint motion for a stay or termination. Read more...

U.S. 9th Circuit Court of Appeals, December 06, 2007
Mendoza-Mazariegos v. Mukasey, No. 05-70163
Petition for review of a BIA order denying Guatemalan petitioner's application for cancellation of removal is granted where petitioner was denied his statutory right to counsel. Read more...

U.S. 9th Circuit Court of Appeals, December 07, 2007
Rivera v. Mukasey, No. 06-70028
Philippine native's petition for review from a denial of her application for asylum and withholding of removal is denied where: 1) substantial evidence supported the denial of asylum and withholding of removal as the IJ cited cogent and factually supported reasons to doubt petitioner's credibility, and those reasons struck at the heart of her claim; 2) a due process claim, based on an IJ's alleged bias, failed; 3) a claim that the BIA must grant more than 30 days for voluntary departure after the IJ had granted her 90 days, was meritless. Read more...

 

 

 

 

 

 

 

 

 

 

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