Deportation - Board of Immigration Appeals - BIA - removal - convention against torture - CAT - Immigration - detention - reopen - reconsider - INS - DHS



. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .	CASES ARCHIVES Follow these links to find cases of note in Deportation Defense which were decided in the previous years, or scroll down to find cases decided within the last few months. OCTOBER / NOVEMBER 2006 DECEMBER / JANUARY 2006/2007 FEBRUARY / MARCH 2007 APRIL / MAY 2007 JUNE / JULY 2007 AUGUST / SEPTEMBER 2007 OCTOBER / NOVEMBER 2007 DECEMBER 2007 / JANUARY 2008 FEBRUARY / MARCH 2008 APRIL / MAY 2008 JUNE / JULY 2008 AUGUST / SEPTEMBER 2008 OCTOBER / NOVEMBER / DECEMBER 2008 JANUARY - JUNE 2009 JUNE - DECEMBER 2009 CASES DECIDED IN FEDERAL COURT IN 2010 December 27, 2010 - December 31, 2010 United States Ninth Circuit, 12/29/2010 Cabaccang v. US Citizenship & Imm. Servs., No. 09-56089 In an action challenging the denial of plaintiffs' applications for adjustment of immigration status, summary judgment for defendants is vacated where a district court may not hear an alien's challenge to the government's denial of an application to adjust status when removal proceedings are simultaneously pending against the alien. Read more... United States Eleventh Circuit, 12/29/2010 Ibarra v. Swacina, No. 09-16393 In an action seeking review of the United States Citizenship and Immigration Services' denial of plaintiff's I-485 application for adjustment to legal permanent resident status, the dismissal of the action is affirmed where the district court did not err in concluding it lacked jurisdiction under the Administrative Procedure Act to review the denial of plaintiff's application for adjustment of status. Read more... December 20, 2010 - December 24, 2010 United States Seventh Circuit, 12/23/2010 Lin v. Holder, No. 10-1401 A Chinese citizen's petition for review of a BIA's affirmance of an IJ's denial of an application for asylum and withholding of removal based on his wife's alleged abortion, is denied where: 1) even if the abortion and sterilization certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon petitioner's wife; 2) petitioner has given no reason to disturb the IJ's adverse credibility finding as, petitioner failed to meet his burden of explaining to the IJ's satisfaction the inconsistencies in his testimony and documents; 3) petitioner was afforded an opportunity for a full and fair hearing; 4) although the petitioner failed to exhaust his claim of ineffective assistance of counsel, this claim is without merit; and 5) the failure to exhaust aside, petitioner's claim that the IJ should have determined whether he was competent to testify is rejected as, when an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation. Read more... United States Ninth Circuit, 12/22/2010 Ledezma-Garcia v. Holder, No. 04-35048 In a petition for review of petitioner's removal based on his 1988 conviction for sexually molesting a minor in Oregon, the petition is granted where: 1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and 2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation. Read more... United States Ninth Circuit, 12/22/2010 US v. Alvarez-Perez, No. 09-50334 Defendant's conviction of being a deported alien found in the United States in violation of 8 U.S.C. section 1326 is vacated where the Speedy Trial Act clock ran for 72 days before defendant's trial on January 20, 2009, and therefore the indictment was required to be dismissed. Read more... United States Tenth Circuit, 12/21/2010 Green v. Napolitano, No. 10-1156 In an action claiming that the revocation of petitioners' I-130 petition violated their constitutional due process rights because they never had the opportunity to confront or cross-examine petitioner's former spouse, the dismissal of the action for lack of jurisdiction is affirmed where 8 U.S.C. section 1252(a)(2)(B)(ii) stripped the district court of jurisdiction to review a section 1155 revocation. Read more... December 13, 2010 - December 17, 2010 United States First Circuit, 12/16/2010 Smith v. Holder, No. 08-2571 A Zimbabwean citizen's petition for review of a BIA's denial of his motion to reopen his removal proceedings is granted and remanded as the BIA committed errors of law in deciding that petitioner had not shown changed country conditions or made a prima facie case for relief, thereby abusing its discretion. Read more... United States First Circuit, 12/17/2010 US v. Ramos, No. 09-2251 In a prosecution of defendant for illegally transporting aliens in Charlestown, Massachusetts, district court's denial of defendant's motion to suppress is affirmed as, while in other situations there may be merit to the argument that a description of ethnic appearance is irrelevant and nothing more than impermissible profiling, the argument fails on the facts in this case, as the MBTA attempted to learn from the recent lessons of Madrid and has so trained its employees, and given the recent history of Middle East-originated terrorism, but also the explicit warning issued some eleven weeks prior, of future strikes by the same groups in the U.S., meant it was material for the officers to consider the risk of terrorist attacks on transit stations in major urban centers and that the person they were investigating had a Middle Eastern appearance. Read more... United States Second Circuit, 12/16/2010 Varughese v. Holder, No. 10-0467 In a petition for review of a final order of removal issued by the BIA, the petition is denied where: 1) Immigration and Nationality Act section 101(a)(43)(D), which defined an "aggravated felony" as a money laundering offense in which "the amount of the funds exceeded $10,000," 8 U.S.C. section 1101(a)(43)(D), captured only those violations of criminal statutes that use the specific word "funds"; and 2) because petitioner's money laundering conviction rendered him ineligible for admissibility to the U.S., he was similarly ineligible for adjustment of status. Read more... United States Fifth Circuit, 12/14/2010 Hakim v. Holder, No. 09-60549 In a petition for review of a Board of Immigration Appeals order finding that petitioner's money laundering conviction was for more than $10,000, and constituted a particularly serious crime under 8 U.S.C. section 1231(b)(3)(B)(ii), the petition is granted where the BIA applied an incorrect legal standard in its Convention Against Torture consideration, and the case needed to be decided under an "actual knowledge" or "willful blindness" standard. Read more... United States Ninth Circuit, 12/14/2010 Ocampo v. Holder, No. 06-71848 In a petition for review of a Board of Immigration Appeals (BIA) order denying as untimely petitioner's motion to reopen his immigration removal proceedings, the petition is denied where a removal order that grants voluntary departure becomes final upon the earlier of: 1) a BIA determination affirming the order; or 2) the expiration of the deadline to seek the BIA's review of the order, and not upon overstay of the voluntary departure period. Read more... United States Ninth Circuit, 12/14/2010 She v. Holder, No. 06-71794 In a petition for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from an Immigration Judge's (IJ's) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), the petition is granted in part where, although the IJ did not put it in so many words, the BIA improperly surmised that the IJ had properly made a finding of firm resettlement. However, the petition is denied in part where the BIA properly upheld the IJ's decision to pretermit petitioner's applications for withholding of removal and CAT relief. Read more... California Court of Appeal, 12/14/2010 Overhill Farms, Inc. v. Lopez, No. G042984 In a frozen food manufacturer's suit against its former employees and a community activist for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, extortion, and unfair competition, arising from a determination by the IRS that 231 of plaintiff's then-current employees had provided invalid social security numbers, trial court's grant of defendant's anti-SLAPP motion as to the unfair competition claim only is affirmed where: 1) although the defendants carried their burden of showing plaintiff's claims arose out of protected activity, plaintiff demonstrated a probability of prevailing on its claims because they are based on a provably false statement of fact; 2) the trial court did not err in refusing to strike plaintiff's remaining causes of action; and 3) defendants failed to demonstrate the trial court's evidentiary rulings amounted to reversible error. Read more... December 06, 2010 - December 10, 2010 United States Second Circuit, 12/06/2010 Rosario v. Holder, No. 09-3877 In a petition for review of the BIA's denial of petitioner's application for cancellation of removal as an abused spouse under the amended Immigration and Naturalization Act, the petition is dismissed where the BIA's decision raised no constitutional claims or questions of law. Read more... United States Second Circuit, 12/06/2010 Duarte-Ceri v. Holder, No. 08-6128 In a petition for review of the BIA's denial of petitioner's motion to reopen removal proceedings, the petition is held in abeyance and the matter is transferred to the district court where petitioner was still "under the age of eighteen years" when his mother was naturalized, but there had been no factual finding as to the actual timing of petitioner's birth, and thus a new hearing on the nationality claim was required. Read more... United States Sixth Circuit, 12/06/2010 Sanchez v. Holder, No. 09-3866 A Mexican citizen's petition for review of a BIA's dismissal of an IJ's denial of a motion to reopen deportation proceedings based on an in absentia deportation order entered nearly 11 years ago, is denied where: 1) for an alien to demonstrate the absence of notice under section 1252b(c)(3)(B), the alien must establish not only the lack of actual notice, but also that the lack of actual notice was due to some reason other than the alien's failure to provide a current address, and here, petitioner has not shown that his lack of notice was due to some reason other than his failure to provide a current address; and 2) because petitioner has failed to demonstrate that his lack of notice was due to some reason other than his failure to provide his current address, the issue of whether the BIA abused its discretion in denying petitioner's motion to reopen on the basis that it was timely does not fall within the ambit of 8 C.F.R. section 1003.23(b)(4)(iii)(A)(2). Read more... United States Ninth Circuit, 12/06/2010 US v. Rivera-Gomez, No. 08-10480 Defendant's illegal reentry sentence is vacated where the district court erred in determining that defendant's state resisting-arrest conviction could not be "relevant conduct" under U.S.S.G. section 1B1.3(a)(1)(A) as a matter of law, even if defendant intended to "avoid detection or responsibility" for his reentry offense. Read more... United States Ninth Circuit, 12/07/2010 US v. Lopez-Velasquez, No. 07-30241 In a prosecution for illegal reentry, the dismissal of the indictment is reversed where an immigration judge's (IJ) duty was limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing, and the IJ who presided over defendant's deportation fulfilled that duty. Read more... November 29, 2010 - December 03, 2010 United States Seventh Circuit, 12/02/2010 US v. Corona-Gonzalez, No. 09-3993 In a prosecution of defendant for drug and firearm related offenses, district court's imposition of a sentence of 300 months' imprisonment and a term of five years of supervised release is reversed and remanded as the district court committed plain error during defendant's sentencing hearing as there is nothing in the record to support the district court's statements at the sentencing hearing regarding defendant's prior removal and reentry into the United States, and this plain error affected defendant's substantial rights. Read more... United States Seventh Circuit, 12/03/2010 Samirah v. Holder, No. 08-1889 In a Jordanian citizen's petition for writ of mandamus seeking to direct the Attorney General to enable him to return to the United States for the purpose of reacquiring his status as an alien eligible for an adjustment of status, is affirmed as, under 8 U.S.C. section 1182(d)(5)(A), upon revocation of his advance parole, petitioner is entitled to return to the United States to press his application for adjustment of status. However, the district court's form of relief ordered is modified and remanded for the issuance of a mandamus commanding the Attorney General to take whatever steps are necessary to enable the petitioner to reenter the Untied States for the limited purpose of reacquiring the status. Read more... United States Seventh Circuit, 12/03/2010 US v. Perez-Molina, No. 10-2427 In a conviction of defendant for unlawful entry into the United States following removal, district court's imposition of 34-month sentence, more than twice as long as the high end of the applicable sentencing guideline range, is affirmed as, the district court adequately justified its above-guideline sentence and acted well within its discretion by imposing a higher sentence to deter the defendant from continued reentry and criminal activity in the United States. Read more... United States Ninth Circuit, 12/03/2010 Javhlan v. Holder, No. 06-71565 In a petition for review of a decision by the Board of Immigration Appeals (BIA) denying petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture, the petition is granted where the IJ erred in relying only on petitioner's unexplained detention in Mongolia to find that there was no past persecution, particularly in light of the frequent harassment and serious threats the Secret Police agents made to petitioner's life and safety. Read more... United States Eleventh Circuit, 12/01/2010 US v. Forey-Quintero, No. 09-15330 Defendant's conviction for being an alien, previously removed from the U.S., who was found in the U.S. without having obtained permission to reenter, is affirmed where the phrase "begins to reside permanently in the United States while under the age of eighteen years" contained in 8 U.S.C. section 1432(a)(5) required the status of a lawful permanent resident. Read more... November 22, 2010 - November 26, 2010 United States Seventh Circuit, 11/22/2010 Champion v. Holder, No. 09-3065 Nigerian citizen's petition for review of a BIA's affirmance of an IJ's denial of her application for cancellation of removal is granted as, although the BIA's findings with respect to petitioner's due process claims is affirmed as she had a full opportunity to present her case and the IJ did not consider improper information, the BIA's decision is vacated and remanded because petitioner's claim that the possibility of the deportation of the children's father would constitute an extremely unusual hardship was not addressed. Read more... United States Seventh Circuit, 11/24/2010 Liang v. Holder, No. 09-3713 Chinese citizen's petition for review of the BIA's denial of a motion to reopen and again apply for asylum, withholding of removal and CAT protection, is denied where: 1) the BIA gave a rational explanations for its conclusion that petitioner failed to show changed country conditions regarding China's "one-child" policy, in her home province since the time of her initial asylum hearing; and 2) the BIA's decision did not inexplicably depart from established policies or rest on an impermissible basis. Read more... United States Seventh Circuit, 11/24/2010 Mata-Guerrero v. Holder, No. 10-1664 Mexican citizen's petition for review of the BIA's affirmance of an IJ's denial of petitioner's application for a 212(c) waiver, on the ground that petitioner's failure to register as a sex offender was a crime of moral turpitude, is granted and remanded for the BIA to determine whether petitioner's conviction under Wisconsin Statute section 301.45(2)(a) was a crime of moral turpitude using the individualized inquiry required by the Attorney General in Silva-Trevino. If it is determined that petitioner's conviction was not a crime of moral turpitude, petitioner is entitled to have the government exercise its discretion based on his individual circumstances in deciding whether to grant him a section 212(c) waiver. Read more... November 15, 2010 - November 19, 2010 United States Seventh Circuit, 11/15/2010 Vahora v. Holder, No. 09-3033 Petition for review of a BIA's affirmance of an IJ's denial of petitioner's application for asylum and grant of a voluntary departure, brought by a native of India on the basis of his Muslim faith, is denied where: 1) the BIA's conclusions regarding petitioner's asylum eligibility are supported by substantial evidence as the petitioner has established neither that he was a victim of past persecution, nor that he has a well founded fear of future persecution on a country-wide basis; 2) petitioner has not established that the IJ abused his discretion in denying administrative closure; and 3) the IJ did not fail to inform the petitioner about relief because the possibility of relief was highly speculative on the record. Read more... Supreme Court of California, 11/15/2010 Martinez v. Regents of the Univ. of California, No. S167791 In a suit brought by U.S. citizens, who are or were students paying nonresident tuition at a California public university or college, claiming that they have been illegally denied exemption from nonresident tuition under California Education Code section 68130.5, in violation of 8 U.S.C. section 1623, 42 U.S.C. section 1983, the equal protection clause of the U.S. Constitution, the privileges and immunities clause of the Fourteenth Amendment, and other legal provisions, judgment of the court of appeal is reversed and remanded where: 1) because the exemption is given to all who have attended high school in California for at least three years, and not all who have done so qualify as California residents for purposes of in-state tuition, and because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, the exemption is not based on residence in California, and thus, section 68130.5 does not violate section 1623; and 2) plaintiffs' remaining challenges to section 68130.5 lack merit as section 68130.5 does not violate another federal statute, is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment. Read more... November 08, 2010 - November 12, 2010 United States Second Circuit, 11/08/2010 Lewis v. Holder, No. 09-2511 In a petition for review of an order of the BIA dismissing petitioner's appeal of the denial of her application for cancellation of removal, the petition is granted where the BIA's "reissuance" of a decision triggered a new thirty-day period to obtain judicial review. Read more... United States Fourth Circuit, 11/10/2010 Barnes v. Holder, No. 09-1782 Panamanian citizen's petition for review of a BIA's affirmance of an IJ's denial of his motion to terminate removal proceedings is denied as the interpretation of section 1239.2(f) adopted in Hidalgo, holding that removal proceedings may only be terminated pursuant to section 1239.2(f) where the DHS has presented an affirmative communication attesting to the alien's prima facie eligibility for naturalization, and applied by the BIA in this case, is neither clearly erroneous nor inconsistent with the regulation. Read more... United States Sixth Circuit, 11/08/2010 Camaj v. Holder, No. 09-3926 In a petition for review brought by a native and citizen of the former Yugoslavia of the BIA's affirmance of an IJ's denial of his motion to reopen proceedings after the issuance of an in absentia deportation order, the petition is denied where: 1) the service upon petitioner's counsel by certified mail fulfilled the notice requirement of section 1252(a)(2); and 2) petitioner's alternative claim that the IJ abused her discretion when she ordered him deported in absentia for failing to appear because he arrived only 40 minutes late to his hearing, and only six minutes after she had entered the order against him, is dismissed for lack of jurisdiction as petitioner presented this argument for the first time on appeal. Read more... United States Sixth Circuit, 11/08/2010 De la Paz v. Holder, No. 09-3229 Mexican citizen's petition for review of a final order of the Department of Homeland Security (DHS) reinstating an earlier order excluding petitioner from the country is denied where: 1) the petition is timely as it was filed 16 days after first obtaining the order the petitioner seeks to challenge; 2) sufficient evidence supports the DHS's conclusion that petitioner was subject to a prior order of removal; 3) although the DHS failed to comply with its own regulations before entering the reinstatement order, petitioner was not prejudiced by the failure; and 4) petitioner's claim of due process violation fails as she cannot show any prejudice from the alleged violation. Read more... United States Ninth Circuit, 11/09/2010 Dent v. Holder, No. 09-71987 In a petition for review of the BIA's order affirming the IJ's decision removing petitioner from the U.S., the petition is granted where, because petitioner was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and his defensive citizenship claim. Read more... United States Ninth Circuit, 11/09/2010 US v. Diaz-Lopez, No. 09-50604 Defendant's conviction for being a removed alien found in the U.S. is affirmed where: 1) a border patrol agent's testimony laid a sufficient foundation for the evidence against defendant to be admissible; and 2) testimony that a search of a computer database revealed no record of a matter did not violate the best evidence rule when it was offered without the production of an "original" printout showing the search results. Read more... United States Tenth Circuit, 11/09/2010 Porro v. Barnes, No. 10-6002 In an excessive force civil rights action, partial judgment for plaintiff is affirmed where: 1) the due process guarantee was the proper doctrinal prism through which to analyze the claims of federal immigration detainees who did not challenge the lawfulness of their detention but only the force used during that detention; and 2) to create a triable question of fact on the use of excessive force, a plaintiff must do more than show that the defendant county failed to adopt the most protective possible policy against the application of force. Read more... November 01, 2010 - November 05, 2010 United States First Circuit, 11/05/2010 US v. Fernandez-Cabrera, No. 09-2655 District court's imposition of a 33-month sentence upon a defendant convicted of illegal reentry into the United States is affirmed where: 1) here, the district court imposed a sentence within the GSR, which was agreed to by the parties and limned in the PSI report, and the parties default expectation should have been that the court would impose a within-the-range sentence, and thus, there was no special need for notice; and 2) district court's observation that the defendant had entered the United States illegally on five separate occasions and conclusion that a mid-range sentence was appropriate to promote respect for the law and to prevent recidivism, was a sufficient explanation to undergird the court's choice of a 33-month sentence. Read more... United States Third Circuit, 11/02/2010 Delgado-Sobalvarro v. Attorney General, No. 08-1679 Nicaraguan citizens' petition for review of the BIA's dismissal of their application for adjustment status is denied where: 1) the petitioners are not eligible to adjust status under section 245 on the basis of their section 236 conditional parole as a conditional parole under section 236 does not constitute parole into the United States for the purposes of adjustment of status under section 245; 2) petitioners' due process claims are rejected; and 3) petitioners cannot demonstrate prejudice from any delay in adjudicating the I-130 petitions. Read more... United States Fifth Circuit, 11/03/2010 US v. Cruz-Rodriguez, No. 09-40500 Defendant's sentence for illegal reentry into the U.S. is affirmed where: 1) the offense of willful infliction of corporal injury under California law was a crime of violence for the purpose of sentence adjustments under U.S.S.G. section 2L1.2(b)(1)(A)(ii); and 2) the California offense of making a criminal threat was not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. section 2L1.2(b)(1)(A)(ii), but the district court did not plainly err in holding that it was. Read more... United States Ninth Circuit, 11/01/2010 US v. Leal-Felix, No. 09-50426 Defendant's sentence for unlawful reentry into the U.S. of a removed alien is affirmed where, because there were prison sentences for each of defendant's prior traffic violations, the court properly calculated 2 points for each guilty-plea conviction under U.S.S.G. section 4A1.1(b). Read more... United States Ninth Circuit, 11/02/2010 Arredondo v. Holder, No. 08-73835 In a petition for review of the Board of Immigration Appeals (BIA) dismissal of petitioner's appeal from an Immigration Judge's (IJ's) decision denying cancellation of removal, the petition is granted where: 1) the BIA did not discuss the problem that petitioner's Idaho conviction was recorded in 1997, more than five years after petitioner entered this country; and 2) the court could not affirm the BIA on a ground upon which it did not rely. Read more... United States Ninth Circuit, 11/05/2010 Saavedra-Figueroa v. Holder, No. 05-75210 In a petition for review of the Board of Immigration Appeals (BIA)'s determination that petitioner was removable because he had been convicted of an aggravated felony and two crimes of moral turpitude, the petition is granted where: 1) the BIA's determination was not entitled to Chevron deference, because the BIA did not issue or rely on a precedential decision; and 2) although petitioner admitted both prior misdemeanor convictions, there was no record evidence of the factual allegations underlying his second conviction. Read more... United States Tenth Circuit, 11/05/2010 Garcia-Carbajal v. Holder, No. 09-9558 In a petition for review of a BIA order of removal, the petition is dismissed where petitioner did not raise the ground for review to the BIA, and petitioner did not exhaust his administrative remedies as the BIA did not: 1) clearly identify a claim, issue, or argument not presented by the petitioner; 2) exercise its discretion to entertain that matter; and 3) explicitly decide that matter in a full explanatory opinion or substantive discussion. Read more... October 25, 2010 - October 29, 2010 United States Second Circuit, 10/27/2010 Ahmed v. Holder, No. 09-4247 In a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's request for a waiver of inadmissibility under section 237(a)(1)(H) of the Immigration and Nationality Act, the petition is denied where the court lacked jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibity under § 237(a)(1)(H). Read more... United States Third Circuit, 10/26/2010 Thomas v. Attorney General, No. 08-4706 A Jamaican citizen's petition for review of BIA's dismissal of his appeal of an IJ's judgment finding him removable is granted where: 1) there exists jurisdiction over petitioner's petition for review of the BIA's original decision; and 2) petitioner's misdemeanor convictions for violating New York Law section 221.40 do not constitute drug trafficking crimes that qualify as aggravated felonies. Read more... United States Eighth Circuit, 10/28/2010 US v. Quintana, No. 09-2749 Defendant's conviction for re-entry by a deported alien following an aggravated felony conviction is affirmed where: 1) the district court did not abuse its discretion, much less commit plain error, in relying on an officer's affidavit without a hearing; 2) the Border Patrol made a sufficient showing of probable cause to believe that defendant was a deportable alien; and 3) the government did not need to prove that use of the IAFIS/IDENT system was the quickest means of investigation reasonably available to determine whether defendant was in the country illegally. Read more... United States Ninth Circuit, 10/26/2010 Edu v. Holder, No. 06-72609 In a petition for review of the Board of Immigration Appeals’ (BIA) denial of petitioner's application for deferral of removal under the Convention Against Torture (CAT), and from its denial of her motion to reopen, the petition is granted in part where there was no basis for returning petitioner to a country where she must either give up her appropriate political behavior or face a substantial risk of torture. Read more... United States Ninth Circuit, 10/26/2010 Gonzalez v. Arizona, No. 08-17094 In an action raising the questions whether Arizona Proposition 200 violated the Voting Rights Act, was unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or was void as inconsistent with the National Voter Registration Act (NVRA), judgment for defendants is affirmed in part where Arizona's polling place photo identification requirement did not violate the Fourteenth Amendment’s Equal Protection Clause. However, the ruling is reversed in part where the NVRA superseded Proposition 200's voter registration procedures, and Arizona’s documentary proof of citizenship requirement for registration was therefore invalid. Read more... United States Ninth Circuit, 10/26/2010 Teposte v. Holder, No. 08-72516 In a petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal of an Immigration Judge’s (IJ) order of removal based on a conviction of an aggravated felony, the petition is granted where the California offense of shooting at an inhabited dwelling or vehicle was not categorically a crime of violence as that term was defined in 18 U.S.C. section 16(b). Read more... United States Ninth Circuit, 10/27/2010 Mendoza v. Holder, No. 06-72865 In a petition for review of an order removing petitioner from the U.S., the petition is denied where petitioner's offense of robbery under California Penal Code section 211 was a crime involving moral turpitude (CIMT) for the purposes of Immigration and Nationality Act (INA) section 212(a)(2)(A)(i)(I). Read more... United States Ninth Circuit, 10/28/2010 Valadez-Munoz v. Holder, No. 06-72510 In a petition for review of the Board of Immigration Appeals' (BIA) dismissal of petitioner's appeal from the Immigration Judge's (IJ) order of removal, the petition is denied where: 1) the BIA did not improperly determine that petitioner had "falsely represented himself . . . to be a citizen of the United States" under 8 U.S.C. section 1182(a)(6)(C)(ii)(I); and 2) the BIA did not err when it determined that petitioner could not take advantage of the timely recantation doctrine. Read more... October 18, 2010 - October 22, 2010 United States Second Circuit, 10/20/2010 Wellington v. Holder, No. 09-4111 In a petition for review of the BIA's decision dismissing petitioner's appeal from the denial of her application for cancellation of removal, the petition is denied where a Certificate of Relief or similar state rehabilitative treatment did not preclude use of the underlying offense as a basis for removal under 8 U.S.C. section 1182(a)(2)(A)(i)(II) or as a basis for ineligibility for cancellation of removal under 8 U.S.C. section 1229b(b)(1), unless the relief was related to a procedural or substantive defect in the criminal proceedings Read more... United States Third Circuit, 10/22/2010 Ramos-Olivieri v. Attorney General, No. 09-2558 A Uruguayan citizen's petition for review of a BIA's dismissal of an appeal of an IJ's denial of a motion to reopen is denied where: 1) an evidentiary hearing was not called for and the Board acted within its discretion in denying his motion to reopen as petitioner does not even assert that he was eligible for any form of relief from removal prior to his marriage in March 2007; and 2) although an alien may seek reopening in order to apply for adjustment of status, the Board properly concluded that the petitioner is statutorily ineligible for such relief for a period of 10 years pursuant to 8 U.S.C. section 1229a(b)(7). Read more... United States Fifth Circuit, 10/20/2010 Bianco v. Holder, No. 09-60597 In a petition for review of the Board of Immigration Appeals' (BIA) affirmance of a final order of removal, the petition is denied where: 1) under 18 U.S.C. section 1227(a), a crime of domestic violence need not have as an element the domestic relation of the victim to the defendant; and 2) the BIA did not limit the remand in petitioner's case for the specific purpose of considering evidence demonstrating her date of admission to the U.S. Read more... United States Fifth Circuit, 10/20/2010 Rodriguez-Barajas v. Holder, No. 09-60351 In a petition for review of a decision of the Board of Immigration Appeals (BIA), arguing that the BIA erred in holding that it lacked jurisdiction to hear petitioner's appeal because he had voluntarily left the country while his habeas corpus petition was pending in federal court, the petition is granted where an alien subject to removal proceedings who voluntarily departs the U.S. after the BIA has issued a decision on his appeal, but while his habeas petition is pending, is not deemed to have withdrawn his appeal pursuant to 8 C.F.R. section 1003.4. Read more... United States Seventh Circuit, 10/22/2010 Pawlowska v. Holder, No. 09-3790 A Polish citizen's petition for review a BIA's affirmance of an IJ's denial of her requests for a continuance and voluntary departure, on the ground that she participated in a sting operation conducted by the former Immigration and Naturalization Service (INS), the FBI, and the Social Security Administration to fraudulently obtain permanent resident status, is dismissed for lack of jurisdiction as, under section 1252(a)(2)(B)(i), a continuance decision ancillary to an adjustment of status application, as well as the IJ's denial of petitioner's request for voluntary departure, bars judicial review. Read more... United States Eighth Circuit, 10/20/2010 US v. De Oliveira, No. 10-1281 Defendant's conviction and sentence for harboring illegal aliens are affirmed in part where: 1) the court had no reason to doubt the district court's factual determination that, had defendant's counsel coerced defendant into pleading guilty, defendant's very involved wife would have notified the lower court of the issue earlier; and 2) severe overcrowding together with lack of heat and furnishings presented an inherent health-and-safety risk to each of the occupants such that the application of an enhancement was warranted. However, the judgment is reversed in part where the workers' status as illegal aliens did not alone justify a vulnerable-victim enhancement under the facts of this case. Read more... United States Tenth Circuit, 10/19/2010 US v. Rendon-Alamo, No. 10-2089 Defendant's sentence for illegal reentry into the U.S. after a previous deportation is affirmed where: 1) in 2003, the Sentencing Commission added a commentary to U.S.S.G. section 2L1.2 defining the term "sentence imposed" to "include[] any term of imprisonment given upon revocation of probation, parole, or supervised release," and to "include" means "[t]o contain as a member of an aggregate"; and 2) thus, the district court's sentence was predicated on a correct calculation of the advisory Guidelines range. Read more... October 11, 2010 - October 15, 2010 United States First Circuit, 10/13/2010 Pena-Beltre v. Holder A petition for review, brought by a citizen of the Dominican Republic, of a final order of removal issued by the BIA is denied as the evidence of marriage fraud is so overwhelming that it hardly needs detailing, the government has more than met its burden of proof, and the BIA's and IJ's conclusions are amply supported by the evidence. Read more... United States First Circuit, 10/14/2010 Zhu v. Holder A Chinese citizen's petition for review of a BIA decision denying his motion to reopen removal proceedings based on a claim of changed country circumstances is denied as the BIA did not act in an arbitrary and capricious manner in denying petitioner's motion to reopen, but rather, it carefully considered all of the evidence on which the petitioner rested his case and provided a clear explanation of its reasoning in finding the evidence insufficient to support his motion to reopen. Read more... United States Third Circuit, 10/13/2010 Catwell v. Attorney General Petition for review of a decision of the BIA that vacated an IJ's decision granting cancellation of removal, and instead entered a final order of removal against petitioner to Guyana, is denied where: 1) petitioner possessed more than a small amount of marijuana in his 2003 Pennsylvania state law conviction for possession with intent to distribute 120.5 grams of marijuana, and thus, the BIA correctly concluded that petitioner was not eligible for cancellation of removal; 2) the BIA correctly deferred to the IJ's findings of fact; and 3) petitioner's constitutional challenge to former 8 U.S.C. section 1432 is without merit. Read more... United States Fifth Circuit, 10/15/2010 US v. Mata Defendant's sentence for transporting an undocumented alien for financial gain is affirmed where: 1) the district court did not err by applying the reckless-endangerment enhancement under section 2L1.1(b)(6) of the Sentencing Guidelines; and 2) the district court did not commit plain error by impermissibly delegating to a probation officer its judicial authority to determine whether defendant should be required to participate in a mental-health program as a condition of her supervised release. Read more... United States Seventh Circuit, 10/13/2010 US v. Aviles-Solarzano In a prosecution of defendant for reentering the United States after having been removed as an illegal alien, district court's imposition of a 70-month sentence based on defendant's prior conviction for aggravated battery is affirmed as the district court did not err in relying on a summary of the indictment in a presentence investigation report, because the defendant's lawyer did not question the accuracy of the summary in the report and the judge could reasonably assume that the defendant's lawyer was satisfied that the summary was accurate. Read more... October 04, 2010 - October 08, 2010 United States Third Circuit, 10/06/2010 Cheng v. Attorney General A Chinese citizen's petition for review of a BIA's dismissal of an appeal from an IJ's denial of petitioner's application for asylum and related relief is granted and remanded as, although the petitioner's contention that IUD insertion is tantamount to sterilization is rejected, the undisputed record evidence compels the conclusion that petitioner was persecuted on account of her resistance to China's coercive population control policies. Read more... United States Sixth Circuit, 10/05/2010 US v. Soto-Sanchez In a prosecution of defendant for illegal reentry into the United States after deportation, district court's application of a sixteen-level enhancement to defendant's offense level under U.S.S.G. section 2L1.2 based on his prior conviction for attempted kidnapping is affirmed as the six offenses punished by Michigan's former kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force, and as such, under the categorical approach, the court cannot look beyond the statute as defendant was necessarily convicted of a crime of violence within the meaning of U.S.S.G. section 2L1.2(b)(1)(A) when he pled guilty to attempted kidnapping in Michigan state court. Read more... United States Seventh Circuit, 10/07/2010 US v. Reyes-Hernandez In convictions of defendants for illegally re-entering the United States after being removed following their convictions for aggravated felony crimes, district court's refusal to consider imposing below-guidelines sentences and thereby refuting defendants' claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in "fast-track" districts is vacated and remanded as section 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. Read more... United States Seventh Circuit, 10/08/2010 Toure v. Holder Petition for review brought by a citizen of the Republic of the Congo of the BIA's affirmance of an IJ's denial of her application for asylum and related relief, as well as a denial of a motion to reopen, is denied as substantial evidence supported the BIA's findings and the BIA did not abuse its discretion in denying the petitioner's motion to reopen. Read more... United States Ninth Circuit, 10/04/2010 US v. Flores-Blanco Defendant's alien smuggling conviction is affirmed where: 1) the district court did not err either in its handling of a co-defendant's invocation of the Fifth Amendment privilege against self-incrimination or in its admission of evidence of prior bad acts by defendant; and 2) there was sufficient evidence to uphold defendant's conviction, as an aider and abettor, of bringing an unauthorized alien to the U.S., as well as his conspiracy conviction. Read more... United States Ninth Circuit, 10/05/2010 Cortez-Guillen v. Holder In a petition for review based on petitioner's removal from the U.S. due to his commission of a "crime of violence," the petition is granted where petitioner's Alaska "coercion" conviction did not necessarily equate with a federal "crime of violence." Read more... United States Ninth Circuit, 10/06/2010 US v. Garcia-Jimenez Defendant's sentence following his guilty plea to one count of being an illegal alien found in the U.S. after deportation is affirmed where the district court properly: 1) calculated defendant's criminal history category under the Sentencing Guidelines, adding two criminal history points under U.S.S.G. section 4A1.1(d), which requires additional points "if the defendant committed the instant offense while under any criminal justice sentence, including . . . parole"; and (2) added one criminal history point under U.S.S.G. section 4A1.1(e), which requires additional points "if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under [U.S.S.G. section 4A1.1](a)." Read more... United States Tenth Circuit, 10/05/2010 Dallakoti v. Holder In a petition for review of a decision of the Board of Immigration Appeals (BIA), which upheld an immigration judge's (IJ) denial of petitioner's application for asylum, restriction on removal, and protection under the Convention Against Torture (CAT), the petition is denied where a reasonable adjudicator would not be compelled to conclude that one of the central reasons the Maoists in petitioner's native country targeted petitioner was because of his family's or his own political beliefs. Read more... September 27, 2010 - October 01, 2010 United States Second Circuit, 09/29/2010 US v. Folkes Defendant's sentence for illegal reentry and aggravated identity theft is vacated where the district court erred in its calculation of defendant's Sentencing Guidelines range with respect to the illegal reentry count when it applied a 16-level enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(ii) after it concluded that defendant had reentered the U.S. after being deported for commission of a crime of violence. Read more... United States Third Circuit, 10/01/2010 De Leon-Ochoa v. Attorney General Petitioners' petitions for review of the BIA's denial of their applications for Temporary Protected Status (TPS) for failure to personally satisfy the statutory requirements of "continuous residence" and "continuous physical presence," are denied where: 1) petitioners are statutorily ineligible for TPS as petitioners have indisputably failed to personally satisfy the "continuous residence" and "continuous physical presence" requirements; and 2) substantial evidence supports the IJ and BIA's denial of a petitioner's application for asylum and he has identified no evidence to compel the conclusion that it is more likely than not that he will be tortured upon return to Honduras. Read more... United States Fifth Circuit, 09/29/2010 Bokhari v. Holder In a petition for review of the BIA's determination that petitioner was ineligible for adjustment of status, the petition is denied where: 1) the employment authorization provided to petitioner under 8 C.F.R. section 274a.12(b)(20) did not provide him with lawful immigration status; and 2) petitioner was in unlawful immigration status, as defined in 8 C.F.R. section 1245.1(d)(1)(ii), after June 10, 2003, and he unlawfully remained in the United States for more than 180 days thereafter. Read more... United States Eleventh Circuit, 09/28/2010 Todorovic v. US Atty. Gen. In a petition for review of the denial of petitioner's asylum application, the petition is granted where the IJ relied impermissibly on stereotypes about homosexuals, stereotypes which tainted the proceedings and prevented the court from conducting a meaningful review of the agency decision. Read more... September 20, 2010 - September 24, 2010 United States Fifth Circuit, 09/21/2010 US v. Meza Defendant's sentence for immigrant-trafficking is affirmed where the sentencing judge's reformulation of the sentence was permissible under 18 U.S.C. section 3582(c) and Federal Rule of Criminal Procedure 35(a) because there was no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished. Read more... United States Fifth Circuit, 09/22/2010 US v. Gamboa-Garcia Defendant's sentence for illegal re-entry after deportation is affirmed where the district court did not err in relying on the District Court of Arizona's prior determination that defendant's 2001 conviction was an aggravated felony, and it properly characterized her 2004 illegal re-entry conviction based on the earlier conviction. Read more... United States Seventh Circuit, 09/20/2010 Muratoski v. Holder A petition for review brought by a native and citizen of Macedonia of the BIA's denial of a motion to reconsider its earlier decision dismissing an appeal of an IJ's denial of an application for cancellation of removal is denied because petitioner failed to exhaust his administrative remedies on the sole issue he raised in the petition for review. Read more... United States Eighth Circuit, 09/22/2010 US v. Loaiza-Sanchez Defendants' sentence for conspiring to distribute, and possessing with intent to distribute a substantial quantity of methamphetamine is affirmed where: 1) a person's legal status as a deportable alien is not synonymous with national origin; and 2) the district court considered defendant's arguments for a downward variance but appropriately exercised its discretion in rejecting them. Read more... United States Ninth Circuit, 09/23/2010 Saval v. Holder In a petition for review of the Board of Immigration Appeals' decision denying asylum, withholding of removal, and relief under Article III of the Convention Against Torture, the petition is denied where: 1) one petitioner died in February 2007, and accordingly, his petition for review was moot; and 2) substantial evidence supported the IJ's adverse credibility finding. Read more... United States Ninth Circuit, 09/24/2010 US v. Ramos In defendant's appeal from the district court's denial of his motion to dismiss an indictment for unlawful reentry after a prior deportation in violation of 8 U.S.C. section 1326, which he collaterally attacked in his motion to dismiss, the order is affirmed where, although the prior, stipulated removal proceedings denied defendant due process of law and violated the applicable regulation, he suffered no prejudice as a result. Read more... September 13, 2010 - September 17, 2010 United States Second Circuit, 09/17/2010 Brooks v. Holder In a petition for review of an order of the Board of Immigration Appeals dismissing petitioner's appeal from the immigration judge's order of removal, the petition is denied where a New York State conviction of one count of criminal possession of a weapon in violation of N.Y. Penal Law section 265.03(1)(b) satisfied the definition of a "crime of violence" under 18 U.S.C. section 16 such that petitioner in deportation proceedings was removable and also ineligible for cancellation of removal. Read more... United States Third Circuit, 09/14/2010 Duhaney v. Attorney General A Jamaican citizen's petition for review of the BIA's decision finding the petitioner removable as an alien convicted of an aggravated felony is denied where: 1) the BIA did not err in ordering a remand as, under the circumstances, the BIA did not disregard its established precedent by remanding the case in a way that ultimately permitted the government to lodge additional charges of removability against petitioner; 2) the BIA did not deprive petitioner of his due process rights; 3) the government was not precluded from alleging new charges of removability following the vacatur of petitioner's 2000 conviction; and 4) petitioner's section 212(c) waiver does not extend to the ground for removability that underlies the instant order of removal as under the applicable regulations, the government was permitted to lodge new charges of removability, even based on convictions that were disclosed in his application. Read more... United States Sixth Circuit, 09/14/2010 Barakat v. Holder A Lebanese citizen's petition for review of a BIA's denial of his motion to terminate removal proceedings is granted as the BIA improperly put the burden on petitioner to prove that the state court's vacatur of his conviction was not for rehabilitative or immigration reasons, and the government failed to bear its burden of proving that petitioner's conviction was vacated for rehabilitative or immigration reasons. Read more... United States Eighth Circuit, 09/14/2010 Malonga v. Holder In a petition for review of the BIA's denial of petitioner's application for withholding of removal, the petition is granted where: 1) the court could not say the record shows more than periodic instances of mistreatment that did not rise to the level of persecution and other incidents that could not be clearly connected to a protected ground; 2) the court could not tell from the BIA's opinion whether it considered petitioner's political activities after he left the Congo; and 3) the BIA's pattern and practice analysis failed to account for the risks petitioner argued he would face as an actual or imputed political dissident. Read more... September 06, 2010 - September 10, 2010 United States First Circuit, 09/08/2010 Vanchurina v. Holder A couple's petition for review of a final order of removal of the BIA is denied where: 1) substantial evidence supports the BIA's finding that the nature and context of the petitioners' claim - one that entails criminal extortion and threats - did not establish grounds for asylum; and 2) substantial evidence supports the finding that the wife was not subjected to extortion on account of a protected ground. Read more... United States First Circuit, 09/09/2010 Vilela v. Holder A Brazilian citizen's petition for review of a BIA's final order of removal is denied as substantial evidence supported the IJ's and BIA's conclusions that petitioner failed to establish a nexus between the harm he had suffered and any protected ground, and failed to establish that what he suffered rose to the level of persecution. Read more... United States First Circuit, 09/09/2010 Chiang v. MBNA In plaintiff's suit against his credit card company claiming that the company, as a furnisher of credit information, violated section 1681s-2(b)(1) by failing to follow up on disputed delinquent payments with a further investigation, district court's grant of defendant's motion for summary judgment is affirmed as there is no evidence that a credit reporting agency, rather than just plaintiff himself, had ever contacted defendant concerning his objections. Read more... United States First Circuit, 09/10/2010 Huang v. Holder A Chinese citizen's petition for review of the BIA's affirmance of an IJ's denial of petitioner's application for asylum and withholding of removal is denied where: 1) the IJ's credibility determination was plainly predicated on reasoned consideration, explained cogently in the IJ's decision, and supported by the record; and 2) there was no error in BIA's finding that a remand was unnecessary since petitioner does not allege other resistance or claim that as a basis for his fear of returning to China. Read more... United States Second Circuit, 09/09/2010 Vartelas v. Holder In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceedings, the petition is denied where petitioner was not prejudiced by his attorneys' failure to argue that he was nonremovable based on his prior offenses. Read more... United States Third Circuit, 09/08/2010 Huang v. U.S. Attorney General A Chinese citizen's petition for review of a BIA's reversal of IJ's grant of asylum is granted where: 1) the BIA's final order of removal is vacated and remanded as the BIA's decision does not indicate that a full review took place in this case; 2) the BIA's denial of the motion to remand with respect to the certification is vacated. Read more... United States Third Circuit, 09/09/2010 Lozano v. City of Hazleton In plaintiffs' suit against the City of Hazleton to enjoin enforcement of ordinances that attempt to regulate employment of, and provision of rental housing to, certain aliens, district court's entry of permanent injunction against the city is affirmed in part, vacated in part and remanded where: 1) district court erred in reaching the merits of the challenge to the private cause of action provision because no plaintiff has standing to challenge that provision; 2) the employment provisions of the ordinances stand as an obstacle to the accomplishment and execution of IRCA's objective, and thus are preempted; and 3) the housing provisions of the city's ordinances are preempted regulations of immigration, and both field and conflict preempted by the INA. Read more... United States Sixth Circuit, 09/07/2010 Hamdi v. Napolitano In a severely disabled minor child's action under the Declaratory Judgment Act (DJA) and the Administrative Procedure Act (APA) to prohibit the Department of Homeland Security from removing his mother on the ground that the mother's removal violated his own constitutional rights as an American citizen, dismissal of the complaint for lack of jurisdiction is affirmed where: 1) the jurisdictional bar of 8 U.S.C. section 1252(g) does not apply to independent actions brought by a citizen child raising distinct constitutional rights; 2) the APA does not provide subject matter jurisdiction in this case; 3) a citizen child raising distinct constitutional rights may assert federal question subject matter jurisdiction; and 4) dismissal was proper because petitioner failed to state a constitutional claim upon which relief may be granted. Read more... United States Seventh Circuit, 09/07/2010 Mozden v. Holder A Polish family's petition for review of the BIA's affirmance of an IJ's finding the petitioners removable is denied where: 1) petitioners failed to establish lawful presence; 2) BIA did not abuse its discretion in denying a continuance; and 3) the BIA properly affirmed the IJ's finding that the mother did not qualify for consideration of cancellation of removal. Read more... United States Seventh Circuit, 09/08/2010 US v. Diaz-Jimenez In a prosecution of defendant for being present in the United States illegally, district court's imposition of a sentence of 21 months' imprisonment is reversed and remanded as there was a serious breach of the plea agreement that defendant be recommended a sentence at the bottom of the guidelines range of 18 months, and the defendant is also entitled to be resentenced by a different judge. Read more... United States Ninth Circuit, 09/08/2010 Vukmirovic v. Holder In a petition for review of the BIA's denial of petitioner's motion to reopen, the petition is granted where the case presented "exceptional circumstances" within the meaning of the controlling statute, 8 U.S.C. section 1252b(f)(2), and thus a remand for the asylum hearing the court held that petitioner was entitled to in 2004 was warranted. Read more... United States Ninth Circuit, 09/10/2010 US v. Espinoza-Morales Defendant's sentence for attempted reentry following deportation is vacated where neither defendant's prior conviction for sexual battery under California Penal Code section 243.4(a) or his conviction for penetration with a foreign object under California Penal Code section 289(a)(1) constituted a crime of violence warranting the U.S.S.G. section 2L1.2(b)(1)(A)(ii) enhancement. Read more... California Court of Appeal, 09/09/2010 People v. Laufasa Conviction of defendant for drug related crimes after he was caught at an international airport concealing about two pounds of methamphetamine is affirmed as defendant's argument, that the trial court lacked authority to impose a condition that he not reenter the country illegally if he is ever deported, is without merit. Read more... August 30, 2010 - September 03, 2010 United States First Circuit, 08/30/2010 Ghouri v. Holder A Pakistani citizen's petition for review of a BIA's decision affirming an IJ's denial of his application for asylum and related relief is denied in part and dismissed in part where: 1) petitioner's claim that he fears his brother-in-law will murder him and his wife in an honor killing because his wife converted from Sunni to Shia Islam when she married him, is dismissed for lack of jurisdiction as the claim of asylum is untimely; and 2) substantial evidence supports the determination that petitioner failed to show eligibility for withholding of removal and CAT protection. Read more... United States Second Circuit, 08/30/2010 Kurzberg v. Ashcroft In an action by five Israeli nationals who were illegally present in the United States on September 11, 2001, concerning certain alleged particulars of their arrest on that day and their confinement thereafter at the Metropolitan Detention Center in Brooklyn, dismissal of the action for failure to serve process is affirmed where: 1) plaintiffs failed to comply with Fed. R. Civ. P. 4(i) because they did not effect service on the U.S.; and 2) plaintiffs were afforded a reasonable time to cure their failure to serve, as is required by Rule 4(i). Read more... United States Second Circuit, 09/03/2010 Luna v. Holder Petitions for review of final orders of removal are transferred to the district court for further proceedings where: 1) although the petitions are untimely, the REAL ID Act did not divest district courts of habeas jurisdiction to consider petitioners' claims that they were prevented by circumstances beyond their control from filing timely petitions for review; and 2) thus, the circuit court need not decide whether the statutory 30-day filing requirement violates the Suspension Clause of the U.S. Constitution in cases in which an alien misses the deadline because of ineffective assistance of counsel or circumstances created by the government. Read more... United States Sixth Circuit, 09/01/2010 Mwasaru v. Napolitano A Kenyan citizen's appeal of a district court's order dismissing her petition for a writ of mandamus, seeking a court order compelling U.S. Immigration and Customs Enforcement to transfer her file to an immigration judge to commence removal proceedings, review by the IJ of the denial of adjustment status, and the issuance of a diversity visa should the IJ approve her application, is dismissed for lack of jurisdiction as section 1154 rendered petitioner ineligible for a DV-2007 visa as of midnight on September 30, 2007, and therefore, she is likewise ineligible for adjustment of status under section 1255 because no visa is immediately available. Read more... United States Seventh Circuit, 08/31/2010 Kone v. Holder Malian citizens' petition for review of BIA's denial of their application for asylum and related relief is granted, and the BIA's decision vacated and remanded as the BIA effectively only addressed half of petitioner's argument in concluding that petitioner could not assert a derivative claim based on potential hardship to her daughter, but failed to address her assertion that female genital mutilation of the daughter would also constitute direct persecution of her parents. Read more... United States Seventh Circuit, 09/01/2010 Lin v. Holder A Chinese couple's petition for review of a BIA's affirmance of an IJ's decision that petitioners were not entitled to asylum or withholding of removal and are eligible to be deported is denied as petitioners have not met their burden of demonstrating past persecution or a well founded fear of future persecution that if they return to China they will be persecuted on account of their opposition to and failure to comply with family planning policies. Read more... United States Ninth Circuit, 09/01/2010 Garcia v. Holder In a petition for review of the BIA's order denying petitioners' motion to reopen their removal proceedings, the petition is granted in part where the BIA erred by failing to exercise its discretion to consider or decline to consider petitioners' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by mother. However, the petition is denied in part where the BIA did not abuse its discretion in concluding that petitioners' daughter's new medical condition did not warrant reopening. Read more... United States Ninth Circuit, 09/01/2010 US v. Melchor-Meceno Defendant's sentence for illegally reentering the U.S. is affirmed where, because defendant's prior Colorado felony menacing conviction was categorically a crime of violence (as outlined in U.S.S.G. section 2L1.2), the district court properly applied the enhancement to defendant's sentence. Read more... United States Ninth Circuit, 09/02/2010 US v. Millis Defendant's conviction under 50 C.F.R. section 27.94(a) for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the U.S. is reversed where the term "garbage" within the context of the regulation was sufficiently ambiguous that the rule of lenity would apply in this case. Read more... United States Ninth Circuit, 09/02/2010 Lu v. Powell In an action under the Federal Tort Claims Act against the U.S. and various officials, claiming that an asylum officer demanded sexual favors in return for assisting with plaintiffs' asylum applications, dismissal of the action is affirmed in part where plaintiffs failed to point to any specific duty under the Fifth Amendment or any specific policy to support a claim of unconstitutional policymaking. However, the dismissal is reversed in part where the emotional distress suffered as a result of the demand for sexual favors was an injury distinct from the battery and could be proved by the plaintiffs. Read more... United States Ninth Circuit, 09/02/2010 Galindo-Romero v. Holder In a petition for review of an order of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal of an Immigration Judge's (IJ) decision terminating his formal removal proceedings, the petition is dismissed where the court lacked jurisdiction to decide the merits of petitioner's petition for review because the decisions of the BIA and IJ resulted in no final order of removal. Read more... United States Ninth Circuit, 09/02/2010 Camacho-Cruz v. Holder In a petition for review of the Board of Immigration Appeals' (BIA) denial of cancellation of removal because of petitioner's conviction for assault with a deadly weapon under Nevada state law, the petition is dismissed where petitioner’s conviction was categorically a crime of violence. Read more... United States Ninth Circuit, 09/03/2010 US v. Munoz-Camarena A sentence for attempted illegal re-entry after deportation is vacated and remanded for reconsideration in light of the Supreme Court's decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), which casts doubt on the district court's calculation of the recommended Guidelines sentence in this case. Read more... August 23, 2010 - August 27, 2010 United States First Circuit, 08/24/2010 Barsoum v. Holder An Egyptian citizen's petition for review of a BIA's final order of removal is denied where: 1) substantial evidence supported the BIA's and IJ's conclusion that, even if the harms petitioner has endured are assumed attributable to his religious beliefs, they did not rise to the level of persecution; 2) there is substantial evidence supporting BIA's finding that petitioner failed to demonstrate a well-founded fear of future persecution; and 3) there was no abuse of discretion in the BIA's denial of petitioner's motion to remand to consider changed country conditions on the basis of statements in the State Department reports. Read more... United States Third Circuit, 08/24/2010 Patel v. Attorney General An Indian citizen's petition for review of the BIA's final order affirming the denial of her application for cancellation of removal is dismissed as there is a lack of jurisdiction to review petitioner's claim that she met her burden of showing an exceptional hardship, because it challenges a discretionary determination and does not present a constitutional question or a question of law. Further, petitioner's motion for a stay of voluntary departure is denied as, in light of 8 C.F.R. section 1240.26(i), petitioner's voluntary departure terminated upon her filing of a petition for review. Read more... United States Sixth Circuit, 08/27/2010 Qu v. Holder BIA's reversal of IJ's grant of a Chinese citizen's application for asylum and order that the petitioner be removed from the U.S. to China is vacated and remanded where: 1) although petitioner seems to have made the requisite showing that she was a member of a particular social group of women in China who have been subjected to forced marriage and involuntary servitude for asylum purposes, the BIA did not make an explicit finding on the issue, but rather appeared to base its denial of asylum on the fact that petitioner was not targeted in part on account of her gender; and 2) BIA's denial of petitioner's claim for CAT is remanded for consideration of the merits. Read more... United States Eighth Circuit, 08/25/2010 Jerez v. Holder In a petition for review of a final order of reinstatement of removal entered by the Department of Homeland Security, the petition is denied where: 1) whether petitioner registered for ABC benefits in a timely manner was a purely factual issue over which the court lacked jurisdiction; and 2) 8 U.S.C. section 1231(a)(5) did not have an impermissible retroactive effect as applied to petitioner. Read more... United States Eighth Circuit, 08/27/2010 Saleheen v. Holder In a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's application for cancellation of removal, the petition is denied where the BIA plainly stated that it was exercising its discretion in denying relief to petitioner, and because that was so, the court had no jurisdiction unless petitioner raised colorable legal or constitutional claims, which she did not. Read more... United States Eighth Circuit, 08/27/2010 Toby v. Holder In a petition for review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge's (IJ) order of removal denying petitioner adjustment of status, waiver of inadmissibility, asylum, withholding of removal, and protection under the Convention Against Torture, the petition is denied where: 1) even if petitioner could prevail on her argument with respect to credibility, she failed to appeal independent alternative grounds for each form of relief she requested; and 2) the IJ weighed the equitable factors, none of which petitioner disputed, against her well-established ties to the U.S. and found they did not warrant a favorable exercise of discretion. Read more... United States Ninth Circuit, 08/23/2010 Singh v. Napolitano The denial of petitioner's habeas petition is affirmed where the Attorney General's decision in Compean II, which affirmed the Ninth Circuit's language in Lata and Dearinger, did not create "new duties" for petitioner with respect to his habeas petition. Read more... United States Ninth Circuit, 08/23/2010 Rodriguez v. Holder In a petition for review of the BIA's order that petitioner was removable pursuant to 8 U.S.C. section 1227(a)(2)(B)(i) based on his 2004 conviction for possession of less than 30 grams of concentrated cannabis, the petition is denied where the plain language of the personal use exception of section 1227(a)(2)(B)(i) did not apply to aliens who had more than one drug conviction. Read more... United States Ninth Circuit, 08/24/2010 Daas v. Holder In a petition for review of a decision of the Board of Immigration Appeals (BIA) finding petitioner ineligible for cancellation of removal on the ground that petitioner was convicted of an "aggravated felony," the petition is dismissed where petitioner's conviction for distributing listed chemicals (ephedrine and pseudoephedrine) with reasonable cause to believe they would be used to manufacture methamphetamine qualified as a "drug trafficking crime", and thus, constituted an "aggravated felony." Read more... United States Ninth Circuit, 08/25/2010 Kamalyan v. Holder In a petition for review brought by an Armenian Jehova's Witness challenging the Board of Immigration Appeals' (BIA) order adopting and affirming a decision of an immigration judge removing petitioner from the U.S., the petition is granted where any reasonable adjudicator would agree that the government did not establish a fundamental change in country conditions by a preponderance of the evidence. Read more... United States Eleventh Circuit, 08/24/2010 US v. Zaldivar Defendant's sentence for conspiracy to encourage or induce aliens to enter the U.S., knowing or in reckless disregard of the fact that such entry was or would be in violation of law, which conduct resulted in death, is affirmed where: 1) to apply the U.S.S.G. section 2L1.1(b)(7) enhancement it must be reasonably foreseeable to a defendant that his actions or the actions of any other member of the smuggling operation could create the sort of dangerous circumstances that would be likely to result in serious injury or death, and defendant's conduct met this requirement; and 2) the court of appeals could not state that the district court erred in denying defendant's request to find that he committed the offense for a reason "other than for profit." Read more... United States Eleventh Circuit, 08/27/2010 US v. Di Pietro Defendant's convictions for aiding and abetting four individuals in their violations of 8 U.S.C. section 1325(c), which imposes criminal liability on any individual who knowingly enters into a marriage for the purpose of evading federal immigration laws, are affirmed where a party to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. Read more... August 16, 2010 - August 20, 2010 United States First Circuit, 08/17/2010 Ayeni v. Holder A Nigerian citizen's petition for review of the BIA's denial of his application for cancellation of removal is denied in part and dismissed in part as petitioner's claim that the BIA applied an incorrect legal standard fails on the merits and his remaining claims are dismissed for lack of jurisdiction. Read more... United States Third Circuit, 08/16/2010 Restrepo v. Attorney General A Colombian citizen's petition for review of the BIA's removal order based on a determination that he committed an aggravated felony is denied where: 1) because petitioner's conviction falls within the ambit of "sexual abuse of a minor," which constitutes an aggravated felony under section 1101(a)(43), the court lacks jurisdiction to review the BIA's order; and 2) petitioner's claim that the removal proceedings brought against him are time-barred is rejected. Read more... United States Third Circuit, 08/20/2010 Gallimore v. Attorney General A Jamaican citizen's petition for review of BIA's final order of removal on the ground that petitioner's conviction alone rendered him ineligible for discretionary relief under INA section 212(c) is granted and remanded where: 1) because the BIA's analysis in all likelihood rests on an historically inaccurate premise, it cannot stand; and 2) alternatively, BIA's opinion fails adequately to explain its reasoning and appears incorrect as a matter of law. Read more... United States Sixth Circuit, 08/19/2010 Sakarapanee v. Dep't of Homeland Sec. District court's dismissal of a Thai citizen's petition contesting the United States Citizenship and Immigration Services' (USCIS) denial of his application for naturalization on the ground that he had previously sought and received an early discharge from the United States Navy based on his status as an alien, is affirmed as the plain language of INA section 329 defeats petitioner's proferred interpretation. Read more... United States Seventh Circuit, 08/17/2010 Issaq v. Holder An Iraqi citizen's petition for review of of BIA's denial of petitioner's application for withholding of removal and other findings is denied where: 1) a Report is not enough on its own to support a finding that any persecution petitioner, as an Assyrian Christian, would face would occur at the hands of government agents, or would otherwise be condoned by the government; 2) petitioner's residential burglary crime led to an aggregate of more than five years' imprisonment and was a "particularly serious" felony for purposes of section 1231(b)(3)(B); and 3) although the IJ erred in overlooking certain evidence in the Report, petitioner has not shown he was prejudiced by the error, and nothing in the record suggests that he was seeking a deferral of removal under the CAT. Read more... United States Seventh Circuit, 08/19/2010 Gutierrez-Berdin v. Holder A Mexican citizen's petition for review of a removal order is denied in part and dismissed in part where: 1) the IJ did not err in denying petitioner's motion to suppress Form I-213; 2) petitioner's claim that the IJ demonstrated bias and irreverence of a degree sufficient to deprive him of due process guaranteed by the Fifth Amendment is without merit; 3) because petitioner did not provide any evidence of legal status, the IJ appropriately found petitioner to be a removable alien; and 4) the BIA did not err in denying petitioner's motion to reopen and reconsider his case. Read more... United States Eighth Circuit, 08/17/2010 Camishi v. Holder In a petition for review of the Board of Immigration Appeals (BIA) decision dismissing petitioner's appeal from the Immigration Judge’s (IJ) order removing him from the U.S. to Albania, the petition is denied where, since the IJ denied the petition on an adverse credibility finding independent of the time bar, and the BIA affirmed the credibility finding, there was no prejudice and petitioner's due process rights under the Fifth Amendment were not violated. Read more... United States Ninth Circuit, 08/18/2010 Khadka v. Holder In a petition for review of the denial of petitioner's asylum application, the petition is granted in part where: 1) the IJ erred in finding petitioner's application to be frivolous because that finding was required to be based on evidence indicating that a material element of the claim was actually false; and 2) the IJ erred by not informing petitioner that he was considering making a frivolousness finding or otherwise giving petitioner sufficient opportunity to account for any of the alleged discrepancies and implausibilities in the record other than those few that supported the government's suspicions that a newspaper article was fabricated. Read more... United States Ninth Circuit, 08/20/2010 Ruiz-Diaz v. US In an action by a class of alien beneficiaries of special immigrant religious worker visa petitions, and organizations that employ religious workers, who maintained that 8 C.F.R. section 245.2(a)(2)(i)(B) was invalid under 8 U.S.C. section 1255(a), summary judgment for plaintiff is reversed where Congress conferred discretion on the Attorney General to devise regulations to implement section 1255(a), and the court could not say that the agency's interpretation was arbitrary, capricious, or manifestly contrary to the statute. Read more... United States Ninth Circuit, 08/20/2010 Fernandes v. Holder In a petition for review of the Board of Immigration Appeals’ decision denying his application for asylum and withholding of removal on the ground that he filed a fraudulent asylum application and was not credible, the petition is denied where: 1) the IJ's consideration of petitioner's motion to reopen did not violate the BIA's remand order; and 2) the BIA's adverse credibility determination was supported by substantial evidence. Read more... United States Ninth Circuit, 08/20/2010 Singh v. Clinton In an action challenging the State Department's termination of an immigrant visa registration for failure to file a timely application, summary judgment for defendant is reversed where 8 U.S.C. section 1153(g) required notice "to the alien" of eligibility. Read more... August 09, 2010 - August 13, 2010 United States Second Circuit, 08/12/2010 Zhang v. Holder In a petition for review of a decision by the Board of Immigration Appeals dismissing petitioner's appeal of an Immigration Judge's order, which terminated his reopened removal proceedings on the basis that he had already been removed from the U.S., the petition is denied where the BIA was entitled to deference regarding its interpretation of the regulation governing motions to reopen. Read more... United States Sixth Circuit, 08/11/2010 Japarkulova v. Holder A petition for review, by a citizen of the Kyrgyz Republic, of an order of the BIA denying her application for asylum is denied where: 1) although the Board erred by failing to provide a reasoned explanation for its conclusion that petitioner did not experience past persecution, the error was harmless; and 2) substantial evidence supports the Board's conclusion that petitioner did not establish a well-founded fear of future persecution. Read more... United States Seventh Circuit, 08/10/2010 Martinez-Buendia v. Holder A Colombian citizen's petition for review of a denial of her application for asylum and related relief is granted where: 1) the record in this case demonstrates that petitioner was persecuted in the past, and therefore has a legitimate fear of future persecution on account of her political beliefs; and 2) because the record compels the conclusion that petitioner was persecuted in the past on account of her political opinion, and therefore has a legitimate fear of future persecution on account of her political beliefs, the question of whether she also qualifies for asylum due to persecution on account of her membership in a social group need not be reached. Read more... United States Seventh Circuit, 08/11/2010 Mancillas-Ruiz v. Holder A petition for review of the BIA's affirmance of an IJ's ruling ordering petitioner removed to Mexico and finding that he was ineligible to apply for a waiver of removal under former section 212 of the INA because the aggravated felony crime of violence category under which the government sought the removal has no statutory counterpart under INA section 212(a) is denied as, once the BIA found that petitioner's crime was properly identified as an aggravated felony of violence, the only inquiry left was to determine if a substantially equivalent counterpart existed in section 212(a). Thus, defendant's argument that, although he is ineligible to apply for relief based on his crime of violence aggravated felony status, he should be allowed to apply on the alternate basis that the government also charged that his crimes were crimes involving moral turpitude is rejected as meritless. Read more... United States Eighth Circuit, 08/11/2010 Pafe v. Holder In a petition for review of the BIA's denial of petitioner's motion to reopen her case, the petition is denied where, even assuming the time limit was generally subject to equitable tolling, the BIA did not abuse its discretion in denying petitioner's motion to reopen. Read more... United States Ninth Circuit, 08/10/2010 Yepremyan v. Holder In a petition for review of a decision of the Board of Immigration Appeals (BIA) denying petitioner's motion to reopen for adjustment of status, the petition is denied where: 1) the day after Thanksgiving was a legal holiday for purposes of calculating time under Fed. R. App. P. 26(a); and 2) petitioner did not submit sufficient supporting documentation to show by clear and convincing evidence that her marriage was bona fide. Read more... United States Ninth Circuit, 08/12/2010 Martinez-Medina v. Holder In a petition for review of the BIA's denial of petitioners' motion to suppress, the petition is denied where: 1) the initial encounter between the deputy sheriff and petitioners did not violate petitioners' Fourth Amendment rights because it was consensual; and 2) even if a reasonable Oregon law enforcement officer should have known he lacked authority under his own state's law to apprehend aliens based solely on a violation of federal immigration law, that cannot serve as the basis for finding an egregious Fourth Amendment violation. Read more... August 02, 2010 - August 06, 2010 United States First Circuit, 08/05/2010 Santana-Medina v. Holder A petition for review brought by a citizen of the Dominican Republic of the BIA's denial of his application for cancellation of removal under 8 U.S.C. section 1229b(b) is dismissed for lack of jurisdiction as, by statute, orders regarding cancellation of removal are not subject to judicial review, unless the appeal raises a question of law or a constitutional claim. Here, petitioner's legal claim on appeal was not made before the IJ or BIA, and his other claims merely challenge the IJ's factual determinations. Read more... United States Second Circuit, 08/03/2010 Lecaj v. Holder In a petition for review of the order of the Board of Immigration Appeals (BIA) and the decision of the Immigration Judge (IJ) denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture, the petition is denied where: 1) the IJ reasonably designated -- and the BIA implicitly adopted -- Montenegro as the country of removal in accordance with 8 U.S.C. section 1231(b)(2)(D) and (E); 2) the State Department's report constituted substantial evidence of a fundamental change in Montenegrin country conditions sufficient to rebut any presumption of a well-founded fear of future persecution. Read more... United States Second Circuit, 08/04/2010 Wu v. Holder In the government's motion to dismiss petitioner's petition for review of his order of removal based on the fugitive entitlement doctrine, the motion is ordered held in abeyance where, in light of the considerations that informed the court’s discretionary power to dismiss pursuant to the fugitive disentitlement doctrine, such a motion was more appropriately considered after the parties have fully briefed and argued the merits of the case. Read more... United States Second Circuit, 08/06/2010 Argueta v. Holder In a petition for review of a decision by the Board of Immigration Appeals affirming the judgment of the immigration judge denying petitioner's application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, the petition is denied where the court found nothing in the applicable statutory and regulatory provisions that temporally limited the discretionary factors the agency may consider in deciding whether to grant cancellation of removal to an applicant who was statutorily eligible for that relief. Read more... United States Fifth Circuit, 08/06/2010 US v. Chavira Defendant's conviction for knowingly and willfully making a false statement to a Customs and Border Protection officer is vacated where: 1) there was evidence that defendant was in actuality not free to leave the interrogation that occurred; and 2) defendant's freedom of movement was severely restrained to the degree a reasonable person would associate with arrest when she made the statement at issue. Read more... United States Sixth Circuit, 08/02/2010 Ikharo v. Holder A Nigerian citizen's petition for review of the BIA's affirmance of an IJ's denial of an application for waiver of inadmissibility, asylum and related relief, and an order denying petitioner's motion to reconsider is denied where: 1) although petitioner has a plausible argument that the BIA's rejection of his pro se brief in the absence of his attorney's signature constituted a defect in his removal proceedings, he is unable to demonstrate that he was prejudiced by the existence of any such defect; and 2) petitioner has waived any challenge to the BIA's denial of his motion for reconsideration. Read more... United States Sixth Circuit, 08/02/2010 Mezo v. Holder In proceedings arising from an Iraqi citizen's motion to reopen, claiming that she received ineffective assistance of counsel, the BIA's denial is vacated and remanded as there is no evidence in the record to support the BIA's conclusion that petitioner's untimely filed appeal resulted from her own lack of diligence. Therefore, if the Board finds that petitioner received ineffective assistance of counsel and that she was prejudiced by the ineffective assistance, equitable tolling would apply and the motion to reopen would be timely. However, if the Board finds that petitioner did not receive ineffective assistance of counsel, equitable tolling would not apply and the motion to reopen would not be timely and the Board would lack jurisdiction to hear the motion to reopen. Read more... United States Seventh Circuit, 08/03/2010 US v. Li Conviction of defendant for harboring an alien for commercial advantage or private financial gain is affirmed where: 1) a reasonable jury could have concluded that defendant's inattentiveness reflected his knowledge or reckless disregard of the two aliens' illegal status; 2) the evidence supports an inference that defendant sought to conceal the aliens' presence; 3) evidence supported an inference that defendant derived financial advantage from the aliens' illegal status; 4) defendant's challenge to the jury instruction regarding the mens rea required to convict for harboring an alien is waived; and 5) given the potential punishment the district court could have assessed, the forfeiture of defendant's home is not so grossly disproportionate to the gravity of his convictions as to be excessive. Read more... United States Seventh Circuit, 08/06/2010 Aguilar-Mejia v. Holder A Mexican citizen's petition for review of BIA's removal order is dismissed where: 1) the court lacks jurisdiction to review the removal order as it was based, among other reasons, petitioner's prior conviction for possession of a controlled substance; and 2) petitioner did not preserve the individual persecution issue that there is a pattern or practice of persecution against individuals infected with AIDS. Read more... United States Seventh Circuit, 08/06/2010 Victor v. Holder A Pakistani individual's petition for review of a denial of his motion to reopen and reconsider the denial of his family's application for asylum and related relief is denied as, although section 1252(a)(2)(B)(ii) does not limit appellate courts' review of motions to reopen and reconsider to constitutional claims or questions of law, in light of the Supreme Court's decision in Kucana v. Holder, 130 S.Ct. 827 (2010), the BIA did not abuse its discretion in denying petitioner's motions to reconsider and reopen. Read more... United States Eighth Circuit, 08/02/2010 Sanchez v. Holder In a petition for review of an order of the Board of Immigration Appeals holding petitioner statutorily ineligible for cancellation of removal, the petition is denied where there was no statutory support for petitioner's argument that the burden of proof rested on the government in this case to prove his conviction of an aggravated felony when petitioner was removable on other grounds. Read more... United States Eighth Circuit, 08/04/2010 Garcia v. Holder In a petition for review of the decision of the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ) order of removal for having been convicted of a crime involving moral turpitude, the petition is denied where: 1) intent to deceive for the purpose of wrongfully obtaining a benefit was an essential element of 42 U.S.C. section 408(a)(7)(B); and 2) the mere fact that Congress chose to exempt a certain class of aliens from prosecution for certain acts did not necessarily mean that those acts do not involve moral turpitude in other contexts. Read more... United States Eighth Circuit, 08/04/2010 Renteria-Ledesma v. Holder In a petition for review of a decision by the Board of Immigration Appeals (BIA) that upheld the denial of the petitioners' applications for adjustment of status, filed pursuant to 8 U.S.C. section 1255(i), the petition is denied where the BIA's action based on the authority of In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which held that aliens inadmissible under 8 U.S.C. section 1182(a)(9)(C)(i)(I) are not eligible for adjustment of status under § 1255(i), was reasonable. Read more... United States Eighth Circuit, 08/05/2010 Ginters v. Frazier In an action for declaratory judgment asking the district court to declare unlawful the United States Citizenship and Immigration Service's (USCIS) denial of an I-130 Petition for Alien Relative and asking the district court to provide appropriate injunctive relief, the dismissal of the action is reversed where, in light of the Supreme Court's decision in Kucana, the jurisdictional bar of 8 U.S.C. section 1252(a)(2)(B)(ii) did not preclude judicial review of the denial of an I-130 petition. Read more... United States Eighth Circuit, 08/05/2010 Villanueva v. Holder In a petition for review of the BIA's denial of petitioner's motion to renew his application to adjust status to become a lawful permanent resident, the petition is denied where an alien that is inadmissible under 8 U.S.C. section 1182(a)(9)(C)(i)(I) is not eligible for adjustment of status pursuant to section 1255(i). Read more... July 26, 2010 - July 30, 2010 United States First Circuit, 07/29/2010 Ly v. Holder A Cambodian citizen's petition for review of a final order of the BIA upholding an IJ's denial of his request for asylum and related relief is denied as substantial evidence supported the BIA and IJ's findings that petitioner's fears of future harm were unrelated to a protected ground, and his remaining claims lack merit. Read more... United States Third Circuit, 07/29/2010 Pareja v. U.S. Attorney General A Mexican citizen's petition for review of BIA's final order of removal is granted in part, denied in part, dismissed in part, and remanded where: 1) the petition is denied insofar as it attacks Matter of Monreal and the BIA's interpretation of the cancellation of removal statute's hardship standard; 2) the petition is granted to the extent it relates to the BIA's consideration of the number of petitioner's qualifying relatives, and the matter is remanded to the BIA for the limited purpose of allowing it to clarify or to reconsider its application of Matter of Recinas to this case; and 3) the remainder of the petition is dismissed for lack of jurisdiction. Read more... United States Sixth Circuit, 07/30/2010 De la Paz v. Holder A Mexican citizen's petition for review of a reinstatement order by the Department of Homeland Security (DHS) is denied where: 1) the petition is timely as it was filed 16 days after first obtaining the order; 2) petitioner's sufficiency challenge is rejected as the 1996 document was an actual order and thus should be treated as the prior order of removal; 3) petitioner's claim that the procedures employed to reinstate her exclusion order violated due process fails; and 4) petitioner's challenge to her underlying 1996 removal order is rejected for lack of jurisdiction. Read more... United States Seventh Circuit, 07/26/2010 Borovsky v. Holder Petition for review, by a citizen of Ukraine, of an order of the BIA denying his application for withholding of removal and protection under the Convention Against Torture (CAT) is denied where: 1) although the BIA's apparent misunderstanding that Eighth Circuit law controlled does not undermine its primary ground of decision, that petitioner failed to show persecution under the standard for withholding of removal, the BIA's Eighth Circuit case citations did not affect the outcome; and 2) denial of petitioner's claims for withholding or removal and CAT protection is supported by reasonable, substantial, and probative evidence. Read more... United States Seventh Circuit, 07/29/2010 US v. Olmeda-Garcia In a prosecution of defendant for illegal re-entry into the United States, district court's imposition of a 64-month sentence is affirmed as the only potential error defendant identified is the district court's silence with respect to a possible disparity that could arise between defendant's sentence and those available to defendants in other districts, and here, defendant did not adequately develop this argument and the district court was entitled to hand down an otherwise procedurally and substantively sound sentence without discussing the point. Read more... United States Ninth Circuit, 07/26/2010 Afriyie v. Holder In a petition for review of the denial of petitioner's application for asylum and withholding of removal, concluding that he failed to show that the Ghanaian government was unable or unwilling to protect him and, in the alternative, that he could safely relocate in his home country, the petition is granted where the BIA made numerous factual errors in its "unable or unwilling" analysis, ignoring evidence favorable to petitioner, misstating petitioner's testimony, and improperly treating as irrelevant police reports made by individuals other than petitioner. Read more... United States Ninth Circuit, 07/26/2010 Rahimzadeh v. Holder In a petition for review of the immigration judge's (IJ) order, affirmed by the BIA, granting petitioner withholding of removal to Iran, but denying asylum from, and withholding of removal to, the Netherlands, the petition is denied where substantial evidence in the record supported the IJ's conclusion that petitioner failed to carry his burden to show the inability or unwillingness of Dutch authorities to provide certain protection. Read more... United States Ninth Circuit, 07/27/2010 Truong v. Holder In a petition for review of the denial of petitioners' asylum application, the petition is denied where: 1) petitioners' assertion that the court of appeals found past persecution in an earlier opinion, and that the immigration judge and BIA were powerless to subsequently find otherwise, was meritless; and 2) there was insufficient evidence that petitioners faced past persecution at the hands of the Italian government or forces that the Italian government was unable or unwilling to control. Read more... United States Eleventh Circuit, 07/27/2010 Garces v. US Atty. Gen. In a petition for review of the Board of Immigration Appeals' order dismissing petitioner's appeal from an immigration judge’s order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act, as an alien whom the Attorney General "knows or has reason to believe is or has been an illicit trafficker in any controlled substance," the petition is granted where the court did not require every alien seeking admission to the U.S. to produce evidence proving clearly and beyond a doubt that he is not a drug trafficker, unless there was already some other evidence -- some "reason to believe" -- that he was one. Read more... July 19, 2010 - July 23, 2010 United States First Circuit, 07/19/2010 Makalo v. Holder A Gambian citizen's petition for review of a decision by the BIA affirming an IJ's denial of his application for withholding of removal and related relief is denied as substantial evidence supported the IJ's and BIA's denial of relief as petitioner simply did not present significant credible evidence that he was wanted by Gambian authorities or that he was wanted for political reasons. Read more... United States First Circuit, 07/21/2010 Neves v. Holder On remand from the Supreme Court for reconsideration in light of Kucana v. Holder, a Brazilian citizen's petition for review of the BIA's denial of his second motion to reopen proceedings is denied where: 1) jurisdiction exists to review the BIA's decision to deny equitable tolling of the time and number limitations governing petitioner's second motion to reopen but not to review the BIA's refusal to exercise its sua sponte authority to reopen; and 2) even assuming arguendo that equitable tolling of these requirements is available, the BIA did not abuse its discretion in denying the motion, as BIA found that petitioner failed to show he had exercised due diligence in pursuing, reopening, and substantial evidence supported that factual determination. Read more... United States Seventh Circuit, 07/21/2010 Surganova v. Holder In a petition for review of the BIA's order denying petitioner's motion to terminate her removal proceedings and concluding that she was removable because her marriage was a sham, the petition is denied where: 1) the account she presented bore more than one reasonable interpretation, and the immigration judge did not adopt the one that she preferred; and 2) even if petitioner could show that the Immigration and Customs Enforcement agents' recollections were at times imperfect, it is unlikely that this would have called into question the validity of an agent's sworn statement. Read more... United States Ninth Circuit, 07/19/2010 Vega v. Holder In a petition for review of a decision of the Board of Immigration Appeals (BIA) denying petitioner's motion to reopen as untimely, the petition is denied where, to be timely, the motion to reopen had to be filed within 90 days of the BIA's initial merits determination, not within 90 days of the denial of petitioner's motion to reconsider. Read more... United States Tenth Circuit, 07/19/2010 Iliev v. Holder In a petition for review of a Board of Immigration Appeals (BIA) order holding petitioner ineligible for a hardship waiver under 8 U.S.C. section 1186a(c)(4)(B), the petition is denied in part and dismissed in part where: 1) the court lacked jurisdiction to review part of the petition because deciding it would require the court to pass on the BIA's credibility determinations and the weight the BIA gave to certain pieces of evidence; and 2) the BIA applied the correct legal standard when evaluating his eligibility for a good faith marriage waiver. Read more... July 12, 2010 - July 16, 2010 United States First Circuit, 07/13/2010 Ahmed v. Holder A married Pakistani couple's petition for review of the BIA's denial of their applications for withholding of removal and related relief is denied where: 1) there is no foundation on which the court may base a reversal of the BIA's determination that relief is unwarranted in the absence of specific and direct evidence bearing on the petitioners' circumstances; and 2) the BIA correctly concluded that the petitioners had failed to establish a clear probability of persecution on account of political opinion. Read more... United States First Circuit, 07/13/2010 Zajanckauskas v. Holder A ninety-five year old Lithuanian national's petition for review of BIA's affirmance of the IJ's decision to order his deportation from the U.S., on the ground that petitioner participated in the Nazi liquidation of the Jewish ghetto in Warsaw and misrepresented this fact to gain entry into the U.S. and while living in the U.S. for almost 60 years, is dismissed for lack of jurisdiction. Read more... United States First Circuit, 07/14/2010 Saysana v. Gillen A Laotian citizen's request for an award of attorneys' fees under the Equal Access to Justice Act, arising from a grant of his petition for habeas relief in his challenge to the BIA's conclusion that he was subject to the mandatory detention provision in 8 U.S.C. section 1226(c) is denied as, assessed in its totality, the government's position cannot be characterized as unjustified. Read more... United States Fourth Circuit, 07/12/2010 Lin v. Holder A Chinese citizen's petition for review of the BIA's denial of his application for asylum and related relief is granted as the IJ's adverse credibility determination was erroneously predicated on unrelated facts derived from another case, which is manifestly contrary to law and constitutes an abuse of discretion, and this was not harmless error. Read more... United States Fourth Circuit, 07/13/2010 Ni v. Holder A Chinese citizen's petition for review of a BIA's denial of his application for withholding of removal is denied in part and dismissed in part where: 1) petitioner cannot establish a claim for withholding of removal based solely on his wife's forced abortion; 2) BIA did not err in denying the claim as petitioner has not presented any evidence so compelling that no reasonable factfinder could fail to find that he has shown past persecution or fear of future persecution in his own right; and 3) petitioner's claim that he is entitled to remand in order to present additional evidence is dismissed for lack of jurisdiction. Read more... United States Fifth Circuit, 07/12/2010 Anderson v. Napolitano In a petition for review of the Department of Homeland Security's reinstatement of a removal order against petitioner pursuant to 8 U.S.C. section 1231(a)(5), the petition is denied where petitioner's passport stamp, which simply indicated she was admitted through an immigration check point, was not evidence that the Attorney General consented to petitioner applying for readmission. Read more... United States Fifth Circuit, 07/12/2010 Nolos v. Holder In a petition for review of the BIA's decision to uphold the immigration judge’s (IJ) order of removal and the BIA's subsequent denial of petitioner's separate motions to reconsider and to reopen, the petition is denied where: 1) given that petitioner's parents did not acquire U.S. citizenship by virtue of their birth in the Philippines when it was a U.S. territory, petitioner could not have derived U.S. citizenship from them and was therefore removable if he was found to have been convicted of an aggravated felony; and 2) given that petitioner's term of imprisonment was over one year, the record of conviction established that petitioner was convicted of a theft offense pursuant to 8 U.S.C. section 1101(a)(43)(G) and is removable as an aggravated felon under 8 U.S.C. section 1227(a)(2)(A)(iii). Read more... United States Sixth Circuit, 07/12/2010 Ferrans v. Holder A Colombian citizen's petition for review of a decision of the BIA finding him ineligible for relief from removal is denied as the explicit reference to section 1324a in section 1227(a)(3)(D) makes it clear that private employment is a "purpose or benefit" under the Immigration and Nationality Act, and as such, a false representation of citizenship by an alien for the purpose of obtaining private employment is a "purpose or benefit" under the Act, done, at the very least, for the "purpose" of evading section 1324a's provisions. Read more... United States Sixth Circuit, 07/16/2010 US v. Camacho-Arellano In a conviction of a Mexican citizen for unlawful reentry into the U.S. after deportation, district court's imposition of a fifty-seven months' imprisonment is vacated and remanded because defendant was sentenced before Kimbrough v. U.S. and because Kimbrough permits district court judges to impose a variance based on disagreement with the disparities created by the existence of "fast track" early-disposition programs for illegal-reentry cases in other jurisdictions. Read more... United States Seventh Circuit, 07/12/2010 Qiu v. Holder A Chinese citizen's petition for review of the BIA's affirmance of an IJ's denial of his application for asylum on the ground that petitioner failed to establish that he was subject to a well-founded fear of persecution upon return to China is granted as the evidence establishes that the State Department reports and petitioner's own credited testimony established that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police knew that he is a Falun Gong practitioner, that the practice of Falun Gong is outlawed in China, that the Chinese police know he practices Falun Gong, that China persecutes Falun Gong practitioners, and that the only way petitioner can avoid persecution is to cease the practice of Falun Gong or hope to evade discovery. Read more... United States Seventh Circuit, 07/14/2010 Marin-Rodriguez v. Holder A Mexican citizen's petition for review of the BIA's dismissal of petitioner's motion to reconsider an order of removal for lack of jurisdiction under section 1003.2(d), on the ground that petitioner had already been removed to Mexico, is granted as section 1003.2(d) is untenable as a rule about subject-matter jurisdiction as the Immigration and Nationality Act authorizes the Board to reconsider or reopen its own decision, and it does not make that step depend on the alien's presence in the United States. Read more... United States Seventh Circuit, 07/15/2010 Li v. Holder A Chinese citizen's petition for review challenging the validity of the BIA's denial of her motion to reconsider its order denying her application for asylum is granted and the denial vacated as the BIA overlooked critical facts such as Chinese officers using force to extract urine from the petitioner in enforcing China's one-child policy, jailing her until her family paid a fine equal to a third of her year's wages and feeding her tainted food in the jail, and the BIA unconvincingly denied having overlooked such facts. Read more... United States Seventh Circuit, 07/16/2010 Pathmakanthan v. Holder A petition for review of the BIA's affirmance of IJ's denial of the petitioner's application for asylum and related relief and denial of a motion to reopen based on changed circumstances in Sri Lanka is denied where: 1) petitioner has not shown that he had been subject to persecution or that he faces a well-founded fear of future persecution; and 2) BIA did not abuse its discretion in denying his motion to reopen. Read more... United States Ninth Circuit, 07/12/2010 Perdomo v. Holder In a petition for review of the Board of Immigration Appeals' (BIA) affirmance of the immigration judge's (IJ) order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT), the petition is granted where the BIA failed to apply both prongs of the Hernandez-Montiel definition to petitioner's claim that women in Guatemala constituted a particular social group, and because the BIA's decision was inconsistent with its own opinions in Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re C-A-, 23 I. & N. Dec. at 955. Read more... United States Ninth Circuit, 07/14/2010 Banuelos-Ayon v. Holder In a petition for review of a denial of petitioner's application for cancellation of removal, on the ground that petitioner's prior conviction under California Penal Code section 273.5(a) was categorically a crime of domestic violence, the petition is denied where the BIA's conclusion regarding petitioner's prior conviction was correct. Read more... United States Ninth Circuit, 07/14/2010 Jiang v. Holder In a petition for review of the Board of Immigration Appeals' (BIA) denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), the petition is granted in part where petitioner suffered persecution for demonstrating resistance to China's coercive population control policy. Read more... United States Ninth Circuit, 07/14/2010 Hernandez-Velasquez v. Holder In a petition for review of the Board of Immigration Appeals' (BIA) denial of petitioner's motion to reopen and reinstate proceedings, which the BIA construed as a motion to reissue its decision denying her administrative appeal, the petition is granted where the BIA abused its discretion in failing to discuss petitioner's declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the "weight and consequences" of that evidence in its denial of her motion to reopen. Read more... United States Eleventh Circuit, 07/12/2010 Imelda v. US Atty. Gen. In a petition for review of the Board of Immigration Appeals's (BIA) order affirming the immigration judge's (IJ) decision denying her application for asylum and withholding of removal under the Immigration and Nationality Act (INA), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the petition is granted where the government did not meet its burden of demonstrating a fundamental change in country conditions such that petitioner's life or freedom would not be threatened upon removal to Indonesia based on her religion. Read more... July 05, 2010 - July 09, 2010 United States First Circuit, 07/07/2010 Nako v. Holder A petition for review of a BIA's affirmance of IJ's denial of an Albanian family's request for asylum and related relief is denied where: 1) substantial evidence supported the BIA's and IJ's conclusion that fundamental changes in the Albanian political situation since 2001, when petitioner-father was last in Albania, rebutted the presumption that the father had a well-founded fear of future persecution by his Socialist Party adversaries; and 2) substantial evidence supported a conclusion that the evidence was insufficient for petitioner to make out a claim for CAT protection. Read more... United States First Circuit, 07/08/2010 Toribo-Chavez v. Holder A Mexican citizen's petition for review of the BIA's affirmance of an IJ's order of removal and a denial of his request for cancellation of removal is denied where: 1) there is substantial evidence to support the IJ's and BIA's finding that petitioner is removable, given the multiple marriage license and immigration forms that inaccurately reflected petitioner's marital history and children, as well his false testimony under oath that his current marriage was his first; and 2) the IJ's and BIA's denial of cancellation of removal is affirmed; and 3) petitioner has failed to establish any due process violation. Read more... United States First Circuit, 07/09/2010 Hakim v. Holder An Indonesian citizen's petition for review of the BIA's decision reversing a grant of applications for asylum and for withholding of removal is dismissed without prejudice as the petitioner filed a petition for judicial review before the IJ had been afforded the opportunity to determine his eligibility for voluntary departure, and if the court exercised jurisdiction in this case, it would be permitting petitioner to circumvent the voluntary departure regulation by allowing him to seek both voluntary departure and judicial review. Read more... United States Third Circuit, 07/08/2010 Kang v. Attorney General A Korean-Chinese citizen's petition for review of the BIA's order of removal is granted in part as, the BIA's reversal of the IJ, and determination that petitioner was not entitled to relief under CAT, was not supported by substantial evidence, but rather, the evidence compels the conclusion that it is more likely than not that petitioner will be tortured if returned to China, for providing food and shelter to North Korean refugees who had illegally entered China. Thus, the decision of the BIA is reversed and a remand is not necessary as the record evidence overwhelmingly supports the conclusion that the petition for withholding or removal under CAT should be granted. Read more... United States Third Circuit, 07/08/2010 Leslie v. Attorney General A Jamaican citizen's petition for review of a final order of removal of the BIA is granted and the BIA's decision vacated and remanded where: 1) when an agency promulgates a regulation protecting fundamental statutory or constitutional rights of parties appearing before it, the agency must comply with that regulation, and failure to comply will merit invalidation of the challenged agency action without regard to whether the alleged violation has substantially prejudiced the complaining party; 2) the IJ's failure to apprise petitioner of the availability of free legal services, as required under 8 C.F.R. section 1240.10(a)(2)-(3), renders invalid the subsequently entered removal order, without regard to petitioner's ability to demonstrate substantial prejudice. Read more... United States Sixth Circuit, 07/08/2010 Japarkulova v. Holder A Kyrgyz Republic's citizen's petition for review of the BIA's denial of her application for asylum is denied as, although the Board erred by failing to provide a reasoned explanation for its conclusion that petitioner did not experience past persecution based on her claims that she received death threats from the president's security minister, the error was harmless. Furthermore, substantial evidence supports the Board's conclusion that petitioner did not establish a well-founded fear of future persecution. Read more... United States Seventh Circuit, 07/09/2010 Umezurike v. Holder A Nigerian citizen's petition for review of the BIA's denial of his motion to reconsider its decision affirming the IJ's determination that the petitioner abandoned his opportunity to pursue asylum and related relief is denied as the immigration judge did not abuse her discretion in denying a continuance and finding that petitioner had abandoned his application for failure to comply with the fingerprinting requirements. Furthermore, petitioner's failure to timely file documentary evidence adds further support to the conclusion. Read more... United States Seventh Circuit, 07/09/2010 US v. Munoz In prosecutions of two defendants for participating in large document forgery operation known as the Leija Sanchez Organization, which provided false green cards, driver licenses, and social security numbers to illegal immigrants, district court's imposition of above-guidelines sentences for both defendants are affirmed and defendants' challenges to the substantive reasonableness of the sentences and other claims rejected. However, the district court's order mandating that one of the defendants participate in the Inmate Financial Responsibility Program is modified to make clear that participation in the program is voluntary. Read more... United States Ninth Circuit, 07/09/2010 Padilla-Romero v. Holder In a petition for review of the Board of Immigration Appeals (BIA) decision affirming the Immigration Judge's (IJ) decision holding petitioner statutorily ineligible for cancellation of removal, the petition is denied where the inclusion in 8 U.S.C. section 1229b(b)(1)(A) of an express requirement that an alien's period of continuous physical presence be "immediately preceding" the application for cancellation of removal did not undermine the court of appeals' interpretation of section 1229b(a)(1), because that section, when read as a whole and in the context of the definition of "lawfully admitted for permanent residence," was sufficiently clear that such additional text would be superfluous. Read more... United States Eleventh Circuit, 07/08/2010 Alvarado v. US Atty. Gen. In a petition for review of the BIA's final order of removal affirming the Immigration Judge's (IJ) decision to deny petitioners the opportunity to apply for voluntary departure pursuant to Immigration and Nationality Act section 240B(b)(1), the petition is granted where the IJ and the BIA misinterpreted the phrase "at the conclusion of a proceeding" in a way that improperly denied petitioners the opportunity the statute provided them to request voluntary departure. Read more... June 27, 2010 - July 02, 2010 United States Second Circuit, 07/02/2010 Costa v. Holder In a petition for review of an order of the BIA affirming the decision of an Immigration Judge that denied petitioner's motion to terminate and ordered him removed as an alien who had been convicted of an aggravated felony pursuant to section 101(a)(43)(F) of the Immigration and Nationality Act, the petition is denied where, under the court's decision in Chery v. Ashcroft, 347 F.3d 404, 408-09 (2d Cir. 2003), petitioner's conviction for violation of Connecticut General Statutes section 53a-71 constituted an aggravated felony pursuant to INA section 101(a)(43)(F).Read more... United States Third Circuit, 06/29/2010 Dwumaah v. Attorney General A petition for review brought by a citizen of Ghana of a final order of removal by the BIA is denied as substantial evidence supports the finding that DHS met its burden of proving that the petitioner falsely claimed citizenship on at least two occasions in connection with federal student loan applications.Read more... United States Third Circuit, 07/01/2010 Bhargava v. Attorney General An Indian citizen's petition for review of the BIA's affirmance of an IJ's denial of petitioner's motion to terminate removal proceedings and to certify his case to the BIA is denied as the Board affirmance of the IJ's decision finding that it lacked jurisdiction to review DHS's termination of petitioner's asylum status was not arbitrary or capricious or plainly erroneous or inconsistent with the regulation at issue.Read more... United States Fourth Circuit, 06/30/2010 Suisa v. Holder Israeli couple's petition for review of a decision by the BIA pretermitting consideration of their applications for adjustment of immigration status under section 245(i) of the INA is denied as, confronted with the question of whether section 1255(i) applies to grandfather the substituted beneficiaries of labor certifications, the Attorney General reasonably determined that only beneficiaries substituted before April 30, 2001, the date selected by Congress, may be eligible to apply for adjustment of status under section 1255(i), and therefore, 8 C.F.R. section 1245.10(j) is a valid exercise of the Attorney General's rulemaking authority.Read more... United States Fifth Circuit, 06/28/2010 Ogunfuye v. Holder In a petition for review of a final order of removal entered by the Board of Immigration Appeals (BIA), the petition is denied where: 1) because petitioner was an aggravated felon, the court had no jurisdiction to reach her argument that the lack of notice constituted "good cause" warranting a continuance; and 2) the immigration judge did not err in determining that it could not adjudicate petitioner's prima facie eligibility for naturalization.Read more... United States Seventh Circuit, 06/28/2010 Restrepo v. Holder A Colombian national's petition for review of a decision denying his application for asylum and related relief is denied where: 1) BIA's denial of application for asylum is unreviewable for lack of jurisdiction under 8 U.S.C. section 1158(a)(3); 2) the BIA did not err in concluding that petitioner had failed to make the necessary showing required for withholding of removal; and 3) because Convention Against Torture has a higher standard than withholding of removal, relief for petitioner on this claim is foreclosed as well.Read more... United States Seventh Circuit, 06/29/2010 Malave v. Holder A Nicaraguan citizen's petition for review of a decision ordering her removed from the U.S. after a finding that she had paid $1000 to her ex-husband to enter into a sham marriage for the purpose of obtaining an immigration benefit, is granted as, although section 202(f) of NACARA insulates from judicial review the decision whether to believe particular evidence of immigration fraud, before exercising this unreviewable power, the IJ must furnish the alien with compulsory process to seek the adverse witness's presence so that the truth of the writings may be tested.Read more... United States Seventh Circuit, 07/01/2010 Estrada-Ramos v. Holder A Mexican citizen's petition for review of BIA's affirmance of DHS's decision rendering invalid petitioner's move to permanent resident status, on the basis of a criminal conviction in California in 1991 that was later set aside pursuant to state law, is denied as petitioner's conviction must have been set aside for ameliorative purposes as he does not dispute that he was convicted of cocaine possession with intent to sell and he does not claim there was any defect in the California proceeding against him.Read more... United States Ninth Circuit, 06/28/2010 Lin v. Holder In a petition for review of the BIA's denial of petitioner's application for asylum and requested withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT), the petition is granted in part where petitioner established by clear and convincing evidence that he filed his asylum application within one year of arriving in the United States and that the case must be remanded to the BIA for consideration of his asylum claim on the merits. However, the petition is denied in part where the record did not compel the conclusion that the immigration judge erred in denying petitioner's request for withholding of removal.Read more... United States Ninth Circuit, 06/30/2010 Carlos-Blaza v. Holder In a petition for review of the immigration judge's order removing petitioner from the U.S. as an aggravated felon pursuant to 8 U.S.C. section 1227(a)(2)(A)(iii), the petition is denied where a bank employee who "knowingly stole, embezzled, and misapplied moneys" in the amount of $65,000 committed a crime that "involves fraud or deceit."Read more... United States Eleventh Circuit, 06/30/2010 US v. Garcia-Cordero Defendant's alien smuggling convictions are affirmed where, as applied to a defendant smuggling aliens, the "bring and present" requirement of 8 U.S.C. section 1324(a)(2)(B)(iii) did not violate the Fifth Amendment’s privilege against self-incrimination.Read more... Supreme Court of California, 07/01/2010 People v. Herrera In a prosecution of defendant for first degree murder, with a criminal street gang special circumstances and two gang-related enhancements, the Court of Appeal's reversal of trial court's decision to allow a deported witness's testimony to be read to the jury is reversed and remanded as the prosecution's showing of the witness's unavailability, which was based on undisputed testimony, satisfied constitutional and state law requirements.Read more... June 21, 2010 - June 25, 2010 U.S. 1st Circuit Court of Appeals, June 21, 2010 Larios v. Holder , No. 09-1869 A Guatemalan native's petition for review of a decision denying his application for asylum and related relief is denied as the IJ's decision to deny petitioner's asylum claim was well-reasoned and supported by substantial evidence and controlling precedent. Read more... U.S. 1st Circuit Court of Appeals, June 25, 2010 Diaz-Garcia v. Holder, No. 09-1681 A Colombian citizen's petition for review of a decision denying his applications for asylum and related relief is denied as the IJ's negative credibility assessment regarding petitioner's allegations that he was threatened by the FARC Guerrillas was amply supported by a specific and cogent explanation based on substantial evidence. Read more... U.S. 4th Circuit Court of Appeals, June 22, 2010 Ramirez v. Holder, No. 09-1629 Mexican citizens' petition for review of a decision dismissing their appeal of an IJ's denial of the husband's application for adjustment of status is denied as, under a Chevron analysis, the BIA's interpretation of sections 1182(a)(9)(C)(i)(I) and 1255(i) must be given deference, and thus, because petitioner is inadmissible under section 1182(a)(9)(C)(i)(I), he cannot adjust his status under section 1255(i). Read more... U.S. 5th Circuit Court of Appeals, June 21, 2010 US v. Velasquez-Torres, No. 09-40646 Defendant's sentence for illegal reentry by a deported alien is affirmed where, having admitted the fact of his deportation as stated in the presentence report, defendant could not argue that the district court improperly relied on that deportation. Read more... U.S. 5th Circuit Court of Appeals, June 25, 2010 Dale v. Holder, No. 08-60661 In a petition for review of a decision by the Board of Immigration Appeals (BIA) upholding petitioner's order of removal under 8 U.S.C. section 1101(a)(43)(F) for being convicted of an aggravated felony, the petition is granted where: 1) although the argument petitioner presented to the BIA was not identical to that which he raised in his petition for review, the arguments were sufficiently related to establish that he presented his ground for relief to the administrative agency in the first instance; and 2) the BIA erred as a matter of law in concluding that petitioner could not legally plead guilty to an attempted violation of N.Y. Penal Law 120.10(3) or (4). Read more... U.S. 6th Circuit Court of Appeals, June 21, 2010 Cruz-Samayoa v. Holder, No. 09-3824 Guatemalan natives' petition for review of a decision denying their applications for asylum and related relief is denied where: 1) the father is ineligible for asylum and withholding of removal as the BIA's conclusion that petitioner is not a "refugee" within the meaning of the INA is supported by substantial evidence; and 2) petitioner's two adult children have failed to show that they cannot reasonably and safely relocate within Guatemala to avoid potential harm. Read more... U.S. 9th Circuit Court of Appeals, June 22, 2010 Almaraz v. Holder, No. 08-74497 In a petition for review of the Board of Immigration Appeals' (BIA) denial of petitioner's motion to reopen and remand, the petition is denied where the adoption of an international trade agreement did not amount to changed country conditions that resurrected his late-filed motion. Read more... U.S. 9th Circuit Court of Appeals, June 25, 2010 US v. Buzo-Zepeda, No. 09-50190 Defendant's sentence for reentry into the U.S. following deportation is affirmed where a "Johnson waiver" in California state court had no effect on the determination of whether a defendant qualifies for a point increase under United States Sentencing Guidelines Manual section 4A1.1, Criminal History Category. Read more... June 14, 2010 - June 18, 2010 U.S. Supreme Court, June 14, 2010 Carachuri-Rosendo v. Holder, No. 09–60 The Fifth Circuit's denial of petitioner's petition for review of the BIA's order holding that petitioner was not eligible for cancellation of removal is reversed where second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. section 1101(a)(43) when, as in this case, the state conviction was not based on the fact of a prior conviction. Read more... U.S. 1st Circuit Court of Appeals, June 18, 2010 Aponte v. Holder, No. 09-2408 A citizen of the Dominican Republic's petition for review of a decision denying her motion to reopen removal proceedings is granted as the BIA abused its discretion by issuing an inadequately reasoned decision denying petitioner's motion to reopen. Read more... U.S. 2nd Circuit Court of Appeals, June 15, 2010 Padmore v. Holder, No. 09-0243 In a petition for review of an order of the BIA vacating the decision of an Immigration Judge granting petitioner's application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, the petition is granted where the BIA impermissibly engaged in factfinding and relied on unproven and disputed allegations as a basis for its decision. Read more... U.S. 5th Circuit Court of Appeals, June 16, 2010 Lopez-Dubon v. Holder, No. 08-60478 In a petition for review of the BIA's order denying petitioner's motion to reopen his case in order to seek adjustment of his immigration status, the petition is denied where: 1) the court of appeals had jurisdiction over the question of whether the notice provided to petitioner was insufficient because of his age at the time of his detention; 2) notice must be served on an adult only for aliens under 14 years of age; and 3) the BIA's factual finding that notice was properly served on petitioner was supported by substantial evidence. Read more... U.S. 6th Circuit Court of Appeals, June 15, 2010 Bonilla-Morales v. Holder, No. 09-3676 Honduras native's petition for review of a decision denying her application for asylum and related relief is denied where: 1) her asylum claim failed as she did not show that the mistreatment that she and her family suffered was "on account of" her membership in a purported social group, nor did she show was entitled to a presumption of a well-founded fear of future persecution by the "MS-13 gang"; 2) since petitioner did not meet the burden of showing future persecution for asylum purposes, she cannot meet the higher burden needed to qualify for the withholding of removal; and 3) she failed to establish that it is more likely than not that she will be tortured upon returning to Honduras given the significant time span over which past incidents of torture occurred. Read more... U.S. 6th Circuit Court of Appeals, June 16, 2010 Kwak v. Holder, No. 09-3681 Petition for review a decision of the BIA affirming an IJ's denial of a Korean citizen's application for a continuance of proceedings and entering an order of removal is denied where: 1) the BIA's conclusion that the IJ did not abuse its discretion in denying the continuance was consistent with prior jurisprudence; 2) the BIA did not abuse its discretion in denying the request for continuance despite the pendency of petitioner's I-601; 3) BIA did not abuse its discretion by considering the number and length of the continuances granted throughout petitioner's exclusion proceedings; and 4) BIA did not abuse its discretion in relying, in part, on the DHS's opposition to a continuance. Read more... U.S. 9th Circuit Court of Appeals, June 14, 2010 US v. Villavicencio-Burruel, No. 09-50204 Defendant's conviction for illegal reentry following deportation in violation of 8 U.S.C. section 1326, and for making false claims that he had U.S. citizenship in violation of 18 U.S.C. section 911, is affirmed where: 1) defendant did not comply with section 1326(d)(1)'s exhaustion requirement, and his waiver argument was inapposite and did not excuse the nonexhaustion; and 2) the admission of defendant's warrant of removal did not violate his Confrontation Clause rights. However, defendant's sentence is vacated on cross-appeal by the government where a conviction for making a criminal threat under Cal. Pen. Code section 422 was categorically a conviction for a crime of violence under U.S.S.G. section 2L1.2. Read more... U.S. 11th Circuit Court of Appeals, June 17, 2010 Xia v. U.S. Atty. Gen., No. 08-13849 In a petition for review of the BIA's decision affirming the denial, by an Immigration Judge (IJ), of petitioner's claims for asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and ordering her removal, the petition is denied where the totality of the record provided ample support for the IJ's specifically stated finding that petitioner's testimony regarding the critical events at issue was not credible. Read more... June 07, 2010 - June 11, 2010 U.S. 2nd Circuit Court of Appeals, June 09, 2010 Dobrova v. Holder, No. 09-2046 In a petition for review of the BIA's decision finding petitioner statutorily ineligible for a discretionary waiver of inadmissibility, the petition is denied where, under 8 U.S.C. section 1182, an alien who "has previously been admitted" to the U.S. as a lawful permanent resident denoted an alien who had been so admitted at any time in the indefinite past. Read more... U.S. 4th Circuit Court of Appeals, June 11, 2010 US v. Garcia-Ochoa , No. 09-4620 Conviction of defendant for falsely declaring that he was a "citizen or national of the United States" or a "lawful permanent resident" on I-9 Employment Eligibility Verification Forms is affirmed as the district court did not err in finding materiality as the defendant's misstatements were capable of influencing agency action in a number of ways and by a number of agencies. Read more... U.S. 5th Circuit Court of Appeals, June 09, 2010 US v. Andino-Ortega, No. 09-40498 Defendant's sentence for being unlawfully present in the United States following deportation is vacated where, because defendant's prior conviction for the offense of injury to a child, even where committed by an intentional act, did not require the use or attempted use of physical force, the offense did not meet the definition of a "crime of violence" necessary for imposition of the 16-level enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(ii). Read more... U.S. 7th Circuit Court of Appeals, June 08, 2010 US v. Arita-Campos , No. 09-2368 In a prosecution of defendant for illegal re-entry after being deported in violation of 8 U.S.C. section 1326(a), claiming that a 1994 order of deportation could not serve as the basis for the underlying offense as it was entered in absentia, district court's denial of defendant's motion to dismiss the indictment is affirmed as defendant cannot establish any of the elements required by section 1326. Read more... U.S. 7th Circuit Court of Appeals, June 10, 2010 Chen v. Holder , No. 09-2619 A Chinese citizen's petition for review of BIA's denial of her application for asylum is granted and remanded as the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion. Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is "at least one central reason" for the attempted arrest for filing suit against the local government for confiscating her father's land without just compensation. Read more... U.S. 7th Circuit Court of Appeals, June 11, 2010 US v. Rodriguez-Gomez , No. 08-3173 District court's imposition of an enhanced sentence of 100 months' imprisonment upon a defendant convicted of illegal re-entry is affirmed as the district court did not commit plain error in concluding that defendant's prior conviction for aggravated battery was a crime of violence. Read more... U.S. 7th Circuit Court of Appeals, June 11, 2010 Khan v. Holder , No. 09-1425 Pakistani citizens' petition for review from a removal order and a motion to stay removal pending resolution of the petition is denied and the government's motions to dismiss the petitions affirmed as the court lacks jurisdiction to review the merits of the question of whether the CBP officer correctly initiated expedited removal proceedings after determining that the petitioners intended to immigrate to the U.S. from Pakistan rather than temporarily visit. Read more... U.S. 9th Circuit Court of Appeals, June 11, 2010 Shin v. Holder, No. 06-73782 In a petition for review of the BIA's order finding petitioners ineligible for 8 U.S.C. section 1182(k) relief because they never possessed valid immigrant visas and were not "otherwise admissible" within the meaning of the statute, the petition is granted where section 212(k) expressly made relief available to non-citizens, like petitioners, who were deemed inadmissible for lacking a valid immigrant visa at the time of entry and were not inadmissible for any other reason. Read more... May 31, 2010 - June 04, 2010 U.S. 3rd Circuit Court of Appeals, June 02, 2010 Espinosa-Cortez v. US Attorney General, No. 08-4170 A Colombian national's petition for review of the BIA's affirmance of the IJ's denial of his application for asylum and related relief, on the ground that he had not shown that he would be persecuted on account of actual or imputed political beliefs if he were removed to Colombia, is granted as the BIA's conclusion that the Fuerzas Armadas Revolucionarias de Colombia's (FARC) threats were not centrally motivated by a political opinion the guerrillas imputed to petitioner was not supported by substantial evidence in the record. Read more... U.S. 5th Circuit Court of Appeals, June 03, 2010 Castro v. US, No. 07-40416 In an action under the Federal Tort Claims Act (FTCA) alleging that the government's negligence caused the wrongful deportation of plaintiff's son, dismissal of the action is affirmed where the government was protected from suit by 28 U.S.C. section 2680(a), the discretionary function exception of the FTCA. Read more... U.S. 6th Circuit Court of Appeals, June 04, 2010 Gor v. Holder, No. 08-3859 A petition for review of a removal order of an Indian citizen, entered on the ground that he is an alien convicted of child abandonment, is dismissed for lack of jurisdiction to review the original BIA decision as well as the denial of the motion to reopen sua sponte. Read more... U.S. 6th Circuit Court of Appeals, June 04, 2010 Berhane v. Holder , No. 09-3153 In an application for asylum and related relief by a citizen and a native of Ethiopia, BIA's affirmance of IJ's denial, on the ground that throwing rocks at the Ethiopian police constituted a serious nonpolitical crime, is vacated and remanded where: 1) a decision committed to the Attorney General's discretion by regulation does not satisfy the prerequisite that Congress specify by statute the Attorney General's discretion over an issue; and 2) the Board's determination that the criminal nature of petitioner's actions "outweighed their political components is without sufficient reasons. Read more... U.S. 8th Circuit Court of Appeals, June 04, 2010 Hernandez v. Holder, No. 08-2455 In a petition for rehearing of the Eighth Circuit's prior decision holding that the court lacked jurisdiction to review petitioner's challenge to BIA's denial of his request for continuance, the petition is denied where: 1) because an Immigration Judge's discretion to deny a request for a continuance arose from a regulation, 8 C.F.R. section 1003.29, the court possessed jurisdiction to consider the denial of petitioner's motion for continuance under Kucana; but 2) there was no abuse of discretion in the BIA's determination that petitioner had not met the good cause-standard where, in light of the uncertainty as to when the long-pending repapering regulation would be promulgated, he was essentially seeking an indefinite continuance. Read more... U.S. 8th Circuit Court of Appeals, June 04, 2010 Fesehaye v. Holder, No. 09-2799 In a petition for review of the BIA's denial of petitioner's application for asylum, withholding of removal and protection under the Convention against Torture, the petition is denied where: 1) even if the cumulation of petitioner's explanations could plausibly account for the significant inconsistencies in her asylum applications, the Immigration Judge (IJ) did not err by rejecting them; 2) the IJ gave an adequate explanation for the adverse credibility determination, that the determination was supported by substantial evidence, and that a reasonable adjudicator would not be compelled to reach a contrary conclusion. Read more... U.S. 9th Circuit Court of Appeals, June 02, 2010 Mendoza v. Holder, No. 08-71007 In a petition for review of the BIA's decision reversing an order of an Immigration Judge (IJ) and dismissing petitioner's appeal of the IJ's subsequent order of removal, the petition is denied where: 1) res judicata did not bar the government from using petitioner's 2003 shoplifting conviction because it did not bring it up in its first removal proceedings; and 2) the vacatur of petitioner's conviction for shoplifting in Arizona was for rehabilitative purposes and therefore, the government could use this conviction in his subsequent removal proceeding. Read more... U.S. 10th Circuit Court of Appeals, June 04, 2010 US v. Adame-Orozco, No. 09-3296 Defendant's conviction for illegally reentering the U.S. after a prior deportation is affirmed where defendant was never improperly deprived of the opportunity for judicial review in his federal deportation proceedings, because 8 U.S.C. section 1326(d) did not guarantee judicial review in state court of defendant's underlying state felony convictions. Read more... U.S. 11th Circuit Court of Appeals, June 03, 2010 Ward v. U.S. Atty. Gen., No. 09-11349 In an action seeking declaratory relief and a writ of mandamus requiring defendants to allow plaintiff to file a DS-230 application for immigrant visa status, summary judgment for defendants is affirmed where the death of a primary-beneficiary parent extinguishes his child's right to his immigrant visa status. Read more... May 24, 2010 - May 28, 2010 U.S. 1st Circuit Court of Appeals, May 26, 2010 Chi v. Holder , No. 09-2583 A Chinese native's petition for review a BIA's denial of a motion to reopen to allow him to seek an adjustment of his immigration status is denied where: 1) the BIA acted well within its discretion in denying the motion; 2) there is no basis for a due process claim; and 3) petitioner's claim that the government is equitably estopped from removing him because it failed to remove him in 1998 is rejected, as well as his request that the court redraft the statutory and regulatory scheme. Read more... U.S. 7th Circuit Court of Appeals, May 28, 2010 Rama v. Holder, No. 09-2156 A petition for review of BIA's affirmance of an IJ's denial of Albanian family's application for asylum and an order of removal is denied as the IJ's credibility determination is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Read more... U.S. 9th Circuit Court of Appeals, May 24, 2010 Jiang v. Holder, No. 08-73186 In a petition for review of the denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture, the petition is granted where petitioner suffered persecution for demonstrating resistance to China's coercive population control policy. Read more... U.S. 9th Circuit Court of Appeals, May 26, 2010 Segura v. Holder, No. 08-72062 In a petition for review of the BIA's order finding petitioner ineligible for relief under section 212(c) of the Immigration and Nationality Act, the petition is denied where: 1) petitioner failed to assert his challenge to the Immigration Judge's authority in his appeal to the BIA; and 2) because petitioner was erroneously admitted for permanent residence, he was not lawfully admitted for permanent residence, and thus was ineligible for section 212(c) relief. Read more... U.S. 9th Circuit Court of Appeals, May 26, 2010 US v. Orozco-Acosta, No. 09-50192 Defendant's conviction and sentence for illegally re-entering the U.S. following removal are affirmed where: 1) any doubt arising from the possibility that the governments record search was less comprehensive than the search conducted for a Certificate of Non-Existence of Record was allayed by the introduction of defendant's own sworn statement that he had not applied for permission to re-enter, as well as the arresting agent's testimony that defendant admitted that he lacked documents allowing him to be in the U.S. legally; 2) nothing in Melendez-Diaz was clearly irreconcilable with Bahena-Cardenas's holding that a warrant of removal is nontestimonial because it was not made in anticipation of litigation; 3) the jury instructions as a whole adequately presented defendant's theory of the case; and 4) the district court imposed a sentence in the middle of the Guidelines range after carefully and rationally considering the factors in 18 U.S.C. section 3553(a). Read more... Supreme Court of California, May 27, 2010 People v. Jacinto , No. S164011 In a prosecution of defendant for murder, court of appeal's reversal of trial court's decision granting defendant's motion to dismiss the charges is affirmed as, under the circumstances of this case, the deportation of a sole witness favorable to the defense did not violate defendant's federal and state constitutional rights to the compulsory attendance of witnesses in his favor. Read more... May 17, 2010 - May 21, 2010 U.S. 1st Circuit Court of Appeals, May 21, 2010 Dos Reis v. Holder, No. 09-2536 A Brazilian citizen's petition for review of an order of the BIA affirming an IJ's denial of his motion to reopen removal proceedings is denied as the petitioner has not shown a lack of notice sufficient, under 8 U.S.C. section 1229a(b)(5)(C)(ii), to justify reopening his removal proceedings. Read more... U.S. 6th Circuit Court of Appeals, May 20, 2010 US v. Jimenez , No. 08-6435 District court's imposition of a 30 month sentence upon a defendant convicted of illegally re-entering the U.S. after having previously been deported following an aggravated felony conviction is affirmed where: 1) district court did not commit procedural error by relying on evidence of prior convictions in assessing criminal history points; 2) defendant's claim that the district court's finding that she re-entered the U.S. in December 1997 and remained here continuously thereafter is not supported by a preponderance of the evidence; and 3) defendant's sentence, at the low end of the advisory sentencing guidelines range, is not substantively unreasonable. Read more... U.S. 7th Circuit Court of Appeals, May 17, 2010 Gatimi v. Holder, No. 08-3197 Plaintiffs' motion for attorneys' fees and costs under the Equal Access to Justice Act, arising from a reversal of the BIA's denial of their application for asylum and related relief, is denied as the government's position was substantially justified as a whole, and the request for an award of costs was untimely. Read more... U.S. 8th Circuit Court of Appeals, May 20, 2010 Litvinov v. Holder, No. 09-2351 In a petition for review of the BIA's order affirming the immigration judge's (IJ) denial of petitioners' application for asylum and withholding of removal, the petition is denied where: 1) the IJ's decision stated the accurate legal standard for asylum; 2) all that petitioners presented was generalized, subjective evidence that they genuinely feared persecution upon their return to Belarus; and 3) a reasonable fact finder would not be compelled to find that petitioners had a well-founded fear of persecution based on the evidence presented at the hearing. Read more... U.S. 9th Circuit Court of Appeals, May 19, 2010 Federiso v. Holder, No. 08-74792 In a petition for review of the BIA's denial of petitioner's application for waiver of removal, the petition is granted where an individual whose mother is a U.S. citizen continues to be "the son . . . of a citizen of the United States," as set forth at 8 U.S.C. section 1227(a)(1)(H)(i), after his mother's death. Read more... U.S. 9th Circuit Court of Appeals, May 20, 2010 Rivera-Cuartas v. Holder, No. 07-74999 In a petition for review of the BIA's order removing petitioner from the U.S., the petition is granted where Arizona Revised Statutes section 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, did not constitute an aggravated felony for the purposes of immigration law. Read more... May 10, 2010 - May 14, 2010 U.S. 6th Circuit Court of Appeals, May 11, 2010 Hassan v. Holder, No. 09-3243 Petition for review BIA's final orders in removal proceedings of a Palestinian Muslim couple, born and raised in Jurusalem, Israel, is granted and the decision of the BIA is affirmed in part and reversed in part where: 1) Board's decision rejecting petitioner's claim that the IJ should have recused herself is affirmed; 2) the judgment of the Board with respect to its ruling that the government met its burden of proving petitioners were married prior to their entry into the U.S. is reversed, and as such, the Board failed to provide a legally sufficient basis for finding petitioners removable; and 3) the Board's finding that the husband was removable under 8 U.S.C. section 1227(a)(3)(D) is reversed. Read more... U.S. 8th Circuit Court of Appeals, May 10, 2010 US v. Yang, No. 09-1572 Defendant's marriage fraud conviction is affirmed where the circumstantial evidence was sufficient to justify a reasonable jury's conclusion that defendant knowingly entered into a marriage for the purpose of evading the immigration laws, and that he knowingly entered into an agreement for that purpose. Read more... U.S. 9th Circuit Court of Appeals, May 10, 2010 Partap v. Holder, No. 05-75777 In a petition for review of the BIA's decision affirming an immigration judge’s denial of petitioner's claim for cancellation of removal and denying his motion to remand, the petition is denied where 1) petitioner’s unborn daughter did not meet the statutory definition of “child” in 8 U.S.C. section 1101(b)(1) at the time of his hearing before the immigration judge, and the BIA therefore did not err in determining that the unborn child was not a qualifying relative for purposes of cancellation of removal; and 2) because petitioner did not tender any evidence showing “exceptional and extremely unusual hardship,” the BIA did not abuse its discretion in declining to enter a remand order. Read more... U.S. 11th Circuit Court of Appeals, May 10, 2010 Ayala v. US Atty. Gen., No. 09-12113 In a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal, the petition is granted where the analysis of the BIA as to whether the mistreatment petitioner suffered rose to the level of persecution lacked "any review of the most important facts presented in this case." Read more... U.S. 11th Circuit Court of Appeals, May 12, 2010 Lapaix v. US Atty. Gen., No. 09-12488 In a petition for review of the BIA's decision affirming the immigration judge's (IJ) order denying petitioner's applications for asylum and withholding of removal, the petition is denied where: 1) petitioner was given the opportunity to testify or offer any evidence she or her counsel might have thought could have persuaded the IJ; 2) petitioner offered no explanation as to how her prior offense of aggravated battery with a deadly weapon was not a particularly serious crime; and 3) petitioner was not entitled to relief under the Convention Against Torture because she made no allegation of persecution at the hands of the government, nor any allegation of government acquiescence to outside forces. Read more... May 03, 2010 - May 07, 2010 U.S. Supreme Court, May 03, 2010 Hui v. Castaneda, No. 08–1529 In an action raising medical negligence claims against the U.S. under the Federal Tort Claims Act (FTCA) and the Bivens doctrine, a denial of defendants' motion to dismiss the Bivens claims is reversed where the immunity provided by 42 U.S.C. section 233(a) precludes Bivens actions against individual Public Health Service officers or employees for harms arising out of constitutional violations committed while acting within the scope of their office or employment. Read more... U.S. 7th Circuit Court of Appeals, May 03, 2010 Estrada v. Holder, No. 08-1226 Petition for review of the BIA's affirmance of an IJ's refusal to examine a Mexican citizen's challenge to the validity of a 1996 rescission of his lawful-permanent-resident status by the INS is granted and the rescission order vacated and remanded as petitioner's challenge to the sufficiency of the notice he received before the agency rescinded his permanent resident status was reviewable in his removal proceedings. However, district court's decision to dismiss petitioner's complaint for lack of subject matter jurisdiction is affirmed as the complaint filed in district court is the equivalent to a challenge to an order of removal within the meaning of 8 U.S.C. section 1252(a)(5), which permits judicial review only via a petition for review in the court of appeals. Read more... U.S. 7th Circuit Court of Appeals, May 04, 2010 Kucana v. Holder , No. 07-1002 On remand from the Supreme Court for a ruling on the merits after its holding that 8 U.S.C. section 1252(a)(2)(B) does not affect judicial review of situations in which immigration officials' discretion is specified by regulation rather than statute, and that a court of appeals also may set aside a decision in which the Board has abused its discretion in applying the law to the facts, Albanian citizen's petition for review of the BIA's refusal to reopen removal proceedings is denied as the Board's conclusion that the evidence did not show a material adverse change in country conditions between 2002 and 2006 did not constitute an abuse of discretion. Read more... U.S. 9th Circuit Court of Appeals, May 03, 2010 Kim v. Holder, No. 06-73415 In a petition for review of the BIA's order of removal, the petition is denied where: 1) the government proved petitioners' removability by clear and convincing evidence; and 2) petitioners lacked standing to assert their equal protection claim because they did not belong to the class of returning lawful permanent residents who were allegedly similarly situated to applicants for admission. Read more... U.S. 9th Circuit Court of Appeals, May 04, 2010 Casares-Castellon v. Holder, No. 05-76788 In a petition for review of the BIA's order deeming petitioner's timely-filed application for relief under former INA section 212(c), 8 U.S.C. section 1182(c) (repealed 1996), abandoned for failure to submit documents supporting his request for relief within the time prescribed, the petition is granted where 8 C.F.R. section 1003.31(c) plainly limited any waiver to the actual application or document not timely filed. Read more... April 26, 2010 - April 30, 2010 U.S. 2nd Circuit Court of Appeals, April 27, 2010 US v. Cerna, No. 09-1170 Defendant's conviction for illegal reentry into the U.S. is vacated where: 1) the district court's factual finding that defendant knowingly and intelligently waived his right to appeal his deportation order and so failed to exhaust his administrative remedies as required by 8 U.S.C. section 1326(d)(1) was clearly erroneous; and 2) ineffective assistance of counsel may be grounds to excuse the requirement of 8 U.S.C. section 1326(d)(1) that a defendant charged with illegal reentry who brings a collateral challenge to the prior deportation order must have exhausted administrative remedies in the immigration proceeding. Read more... U.S. 2nd Circuit Court of Appeals, April 28, 2010 Debeatham v. Holder, No. 09-0205 In a petition for review of a denial of petitioner's motion to reopen his removal proceedings, the petition is denied where petitioner failed to comply with the requirements of In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988), in asserting one of counsel's alleged errors and failed to show prejudice arising from the remaining alleged errors. Read more... U.S. 5th Circuit Court of Appeals, April 28, 2010 Bian v. Clinton, No. 09-10568 In an action seeking to compel the United States Department of Homeland Security, Citizenship and Immigration Services (USCIS) to adjudicate plaintiff's I-485 application for adjustment of immigration status, dismissal of the action for lack of subject matter jurisdiction is affirmed where, because plaintiff contested the USCIS's decision to adjudicate her application in compliance with regulations that were clearly within the agency's discretion to establish, the federal courts were without jurisdiction to entertain her claim. Read more... U.S. 7th Circuit Court of Appeals, April 28, 2010 Chen v. Holder , No. 08-2836 A Chinese national and citizen's petition for review of the BIA's affirmance of Immigration Judge's denial of his application for asylum and related relief, claiming that he has been or will be persecuted because of his family's resistance to China's one-child policy and his membership in social groups that include his family and the hei haizi (i.e., someone born in violation of China's one-child policy), is granted and the matter remanded where: 1) the agency's analysis of petitioner's asylum claim was incomplete as the BIA failed to address his claim of past persecution based on imputed political opinion as, although his mother's forcible sterilization does not automatically entitle him to a finding of past persecution, it may in combination with other evidence show that his family's resistance to China's population-control policy has been imputed to him; and 2) the BIA failed to consider the cumulative significance of the hardships visited upon petitioner and his family, ! and the future hardships he would face if returned, when evaluating his fear of future persecution. Read more... U.S. 7th Circuit Court of Appeals, April 28, 2010 US v. Sanchez , No. 09-2666 Conviction and sentence of an El Salvadoran national and citizen is affirmed as, defendant's claim that the district court abused its discretion by preventing him from arguing during closing that he was never properly removed from the U.S. because he was sent to the wrong country is rejected as the district court correctly determined at the hearing held during trial that the location to which defendant was removed is irrelevant to the ultimate determination of whether he violated 8 U.S.C. section 1326(a), for illegal reentry. Read more... U.S. 7th Circuit Court of Appeals, April 29, 2010 Raghunathan v. Holder, No. 08-2475 A Sri Lankan couple's (both ethnic Tamils) petition for review of the BIA's denial of a motion for reconsideration of an IJ's denial of petitioners' application for asylum and related relief is denied as petitioners have failed to show that the Board abused its discretion in denying their motion for reconsideration or that the Board erred in affirming the immigration judge's decision ordering their removal. Read more... U.S. 8th Circuit Court of Appeals, April 29, 2010 Bracic v. Holder, No. 08-2843 In Muslim Albanian's petition for review of the BIA's order denying petitioner's claims for asylum and withholding of removal, the petition is granted where: 1) the mistreatment that petitioner claimed to have suffered, when considered on a cumulative basis, compelled the conclusion that he suffered past persecution; and 2) further, the government failed to show by a preponderance of the evidence that conditions in Montenegro have changed to such an extent that a reasonable person in the petitioner's position would no longer have a well-founded fear of persecution. Read more... April 19, 2010 - April 23, 2010 U.S. 3rd Circuit Court of Appeals, April 22, 2010 Bradley v. US Attorney General, No. 08-4184 Petition for review, by a citizen and national of New Zealand, of a final removal order of the Department of Homeland Security, Immigration and Customs Enforcement, is denied where: 1) the evidence is more than sufficient to prove petitioner signed a VWP waiver; 2) petitioner cannot invalidate his removal order as he cannot demonstrate he was "substantially prejudiced" by his allegedly unknowing waiver; and 3) petitioner is not entitled to purse a marriage-based adjustment of status under 8 U.S.C. section 1255(c)(4), because although he was once statutorily eligible under section 1255(c)(4), he may not after the expiration of his 90-day stay, adjust his status as a defense to removal. Read more... U.S. 8th Circuit Court of Appeals, April 21, 2010 Azie v. Holder, No. 09-1346 In a petition for review of the denial of petitioner's application for asylum, withholding of removal, and Convention Against Torture (CAT) protection, the petition is denied where: 1) petitioner, through counsel, had ample opportunity at her hearing to raise her lack of comprehension or inability to coherently respond, but did not; and 2) the record reflected that the Immigration Judge's credibility finding was supported by specific, cogent reasons. Read more... U.S. 9th Circuit Court of Appeals, April 19, 2010 Vasquez v. Holder, No. 05-73714 In a petition for review of the BIA's denial of petitioner's application for an extreme hardship waiver of removal, the petition is granted where an alien whose legal status as the spouse of a citizen is later terminated because the marriage was fraudulent is eligible for discretionary relief from removal. Read more... U.S. 9th Circuit Court of Appeals, April 19, 2010 Singh v. Holder, No. 08-70434 In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the Immigration Judge (IJ) possessed the authority to require corroborating evidence; and 2) the IJ's conclusion that petitioner's uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper. Read more... U.S. 9th Circuit Court of Appeals, April 22, 2010 Hammad v. Holder, No. 07-72370 In a petition for review of the BIA's determination that petitioner was not entitled to permanent resident status, the petition is denied where: 1) 8 U.S.C. section 1186a(b) puts the burden of proof on the government to prove that his marriage was fraudulent; 2) given the numerous inconsistencies in his testimony, petitioner failed to carry his burden to prove that his marriage was bona fide; and 3) because petitioner's extreme hardship argument was based on the effect his removal would have on a family from his second marriage, which did not exist during his two-year conditional resident status, he did not qualify for a waiver on that ground. Read more... U.S. 9th Circuit Court of Appeals, April 23, 2010 Nunez-Reyes v. Holder, No. 05-74350 In a petition for review of the BIA's denial of petitioner's application for adjustment of status due to his marriage to a U.S. citizen and cancellation of removal, the petition is granted where the State of California dismissed prior charges against petitioner under California Penal Code section 1210.1, and thus those charges could not be used to render petitioner ineligible for cancellation of removal. Read more... U.S. 9th Circuit Court of Appeals, April 23, 2010 Sum v. Holder, No. 05-75776 In a petition for review of the BIA's denial of petitioner's application for an 8 U.S.C. section 212(h) waiver of removal because he was convicted of a qualifying offense after his admission as a lawful permanent resident (LPR), the petition is denied where, because petitioner was "admitted" as an LPR in the sense of being inspected and authorized at the port of entry, but later convicted, he was barred from section 212(h) relief. Read more... April 12, 2010 - April 16, 2010 U.S. 1st Circuit Court of Appeals, April 15, 2010 Anacassus v. Holder , No. 09-1463 Petition for review, BIA's denial of Haitian citizen's application for asylum, and related relief is denied, as substantial evidence supports the conclusion that petitioner's only credible, alleged incident of persecution was insufficient for purposes of establishing either past persecution or a well-founded fear of future persecution if he should return to Haiti. Read more... U.S. 1st Circuit Court of Appeals, April 15, 2010 Mendez-Barrera , No. 09-1903 Petition for review, BIA's denial of El Salvadorian citizen's application for asylum and related relief is denied where: 1) petitioner's argument that she was persecuted on account of her membership in a particular social group fails as substantial evidence supports the BIA's determination that the putative social group was not legally cognizable; 2) petitioner's claim for withholding of removal necessarily fails as she failed to carry her burden of persuasion for the asylum claim; and 3) the BIA did not err in denying petitioner's CAT claim. Read more... U.S. 2nd Circuit Court of Appeals, April 12, 2010 Shabaj v. Holder, No. 09-0558 In a petition for review of the BIA's order removing petitioner from the U.S., the petition is denied where petitioner's removal order was premised on his entry as an Italian national under the Visa Waiver Program, which waived any defense to removal other than asylum, and his removal was properly administered under that program. Read more... U.S. 3rd Circuit Court of Appeals, April 13, 2010 Zegrean v. U.S. Attorney General, No. 08-3714 BIA's affirmance of the Department of Homeland Security's denial of petitioner's application for naturalization, on the ground that a removal proceeding is pending, is affirmed as the petitioner has not established prima facie eligibility for naturalization under section 1239.2(f), and cannot do so as long as removal proceedings are pending against him. Read more... U.S. 3rd Circuit Court of Appeals, April 16, 2010 Johnson v. U.S. Attorney General , No. 07-2820 Petition for review, filed by a citizen of Guyana, of BIA's affirmance of IJ's denial of his application for cancellation of removal under the Special Rule for Battered Spouses, 8 U.S.C. section 1229b(b)(2), is dismissed for lack of jurisdiction as the extreme cruelty determination is discretionary and not subject to judicial review. Read more... U.S. 9th Circuit Court of Appeals, April 12, 2010 Lopez-Jacinde v. Holder, No. 07-72046 In a petition for review of the BIA's decision that held that petitioner's state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a "drug trafficking crime" which constituted an "aggravated felony" under federal law, rendering petitioner statutorily ineligible for cancellation of removal, the petition is denied where: 1) use of a firearm was not required for a state conviction to constitute an aggravated felony as a "drug trafficking crime"; and 2) the federal crime corresponding to Cal. Health & Safety Code section 11383(c)(1) did not require possession of a minimum amount of pseudoephedrine. Read more... U.S. 9th Circuit Court of Appeals, April 14, 2010 Joseph v. Holder, No. 05-74390 In a petition for review of the BIA's decision affirming an immigration judge's denial of petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture, the petition is granted where an Immigration Judge, who presides over the same petitioner's bond hearing and removal hearing, may not use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing. Read more... U.S. 9th Circuit Court of Appeals, April 15, 2010 Eneh v. Holder, No. 05-75264 In a petition for review of the BIA's denial of petitioner's application for asylum, withholding of removal, and withholding and deferral of removal under the Convention Against Torture, the petition is granted where the BIA's reasoning appeared to be at odds with the Immigration Judge's decision, petitioner's credible testimony, and judicially-noticeable facts. Read more... April 05, 2010 - April 09, 2010 U.S. 1st Circuit Court of Appeals, April 06, 2010 Mejilla-Romero v. Holder, No. 08-2336 Petition for review BIA's final order denying petitioner's application for asylum and related relief is denied as the BIA and the Immigration Judge considered all the relevant evidence of record and rejected petitioner's claims on a number of independently sufficient grounds, including his past persecution claim while living with his grandmother in Honduras, and claims of future persecution on account of his resistance to gang membership. Read more... U.S. 2nd Circuit Court of Appeals, April 07, 2010 Sumbundu v. Holder, No. 07-3736 In a petition for review of the BIA's decision affirming an Immigration Judge's (IJ) denial of cancellation of removal on the grounds that petitioners lacked moral character under the "catchall" provision of 8 U.S.C. section 1101(f), the petition is denied where: 1) the court had jurisdiction because petitioners raised constitutional claims or questions of law; but 2) intent to commit misconduct was relevant to an IJ's decision that a petitioner lacks good moral character; and 3) misrepresenting a "substantial sum" on a tax return may certainly be a factor in the IJ's moral character determination. Read more... U.S. 5th Circuit Court of Appeals, April 09, 2010 Toora v. Holder, No. 09-60073 In a petition for review of the BIA's denial of petitioner's motion to reopen his deportation hearing, the petition is denied where the departure bar, 8 C.F.R. section 1003.23(b)(1), applied to an alien who departed the U.S. after receiving notice of his deportation proceeding, but before the proceeding was completed and the Immigration Judge entered a deportation order. Read more... U.S. 7th Circuit Court of Appeals, April 06, 2010 Benaouicha v. Holder, No. 09-3083 Petition for review the BIA's affirmance of an immigration judge's order that petitioner be removed from the U.S. is affirmed as petitioner is ineligible for cancellation of removal under the abused spouse provisions as he cannot meet all five requirements under 8 U.S.C. section 1229b(b)(2). Read more... U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Moreno-Padilla, No. 08-4302 Defendant's illegal reentry sentence is affirmed where: 1) defendant failed to demonstrate the inaccuracy of the presentence report; 2) defendant's argument, raised only in a single paragraph in his pro se memorandum, was not sufficiently substantial to have warranted more overt consideration by the district court; and 3) the district court did a thorough job of addressing defendant's concerns about the harshness of the 16-level enhancement. Read more... U.S. 8th Circuit Court of Appeals, April 06, 2010 Lui v. Holder, No. 08-3651 In a petition for review of the BIA's order removing petitioners to Hong Kong, denying them relief from removal in the form of adjustment of status, and denying them the alternative relief of voluntary departure, the petition is denied where: 1) petitioners did not argue that they qualify for any exception to the exhaustion requirement as to their argument that the Immigration Judge improperly considered certain documents; and 2) although it was improper for the BIA to determine that petitioner had no qualifying relative, there was no reason to remand the matter because the improperly found fact was extraneous. Read more... U.S. 9th Circuit Court of Appeals, April 06, 2010 US v. Valencia-Barragan, No. 09-50018 Defendant's sentence for attempted reentry into the U.S. is affirmed where: 1) a conviction under Wash. Rev. Code section 9A.44.076(1) categorically constituted "sexual abuse of a minor" and was therefore a crime of violence warranting a sixteen-level increase; and 2) the district court did not impose a procedurally or substantively unreasonable sentence. Read more... U.S. 9th Circuit Court of Appeals, April 09, 2010 Mutuku v. Holder, No. 05-73609 In a petition for review of the BIA's dismissal of petitioner's appeal of the immigration judge's (IJ) denial of her claims for asylum, withholding of removal, and relief under the Convention Against Torture, the petition is granted in part where: 1) the IJ's adverse credibility finding was premised on a clearly erroneous factual finding; and 2) substantial evidence did not support the IJ's finding that conditions in Kenya had improved for members of the Democratic Party to such an extent that petitioner no longer had a well-founded fear of returning to Kenya. However, the petition is denied in part where the record did not compel a finding that petitioner would likely be tortured if she were to return to Kenya. Read more... U.S. 9th Circuit Court of Appeals, April 09, 2010 Ramirez-Villalpando v. Holder, No. 08-72102 In a petition for review of the BIA's decision affirming an order of removal based on petitioner's conviction for an aggravated felony, the petition is denied where petitioner's prior conviction for grand theft under California Penal Code section 487(a) qualified as an aggravated felony under the modified categorical approach. Read more... U.S. 11th Circuit Court of Appeals, April 09, 2010 Edwards v. Prime Inc., No. 09-11699 In an action under RICO and the Fair Labor Standards Act (FLSA) claiming that defendant restaurant franchise (Ruth's Chris Steak House) knowingly provided illegal aliens with names and social security numbers of American citizens to use for illegal employment, unlawfully took employees' tips, discriminated on the basis of race, and retaliated against employees who challenged those and other practices, dismissal of certain counts of the complaint is affirmed in part where: 1) plaintiffs failed to plead that defendants had actual knowledge that the unauthorized aliens who they allegedly hired had been "brought into the United States" in violation of 18 U.S.C. section 1324; 2) plaintiffs' mere use of the words "conspiracy" and "aiding and abetting" without any more explanation of the grounds of plaintiffs' entitlement to relief was insufficient; 3) the complaint did not plausibly allege that plaintiff was harassed because he was Caucasian; and 4) defendants were not strangers t! o the business relationships with which they allegedly interfered, and thus plaintiffs failed to state a tortious interference claim. However, the dismissal is reversed in part where the amended complaint adequately pleaded that defendants encouraged or induced an alien to reside in the United States, and either knew or recklessly disregarded the fact that the alien's residence here was illegal, in violation of 18 U.S.C. section 1324(a)(1)(A)(iv). Read more... March 29, 2010 - April 02, 2010 U.S. Supreme Court, March 31, 2010 Padilla v. Kentucky, No. 08–651 In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient. Read more... U.S. 3rd Circuit Court of Appeals, March 30, 2010 Patel v. Attorney Gen. of the US, No. 09-1066 In a petition for review of the BIA's decision upholding the denial of petitioner's motion to terminate removal proceedings, the petition is denied where the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act did not apply to an application for employment authorization submitted by the child of a Legal Immigration Family Equity Act adjustment-of-status applicant. Read more... U.S. 6th Circuit Court of Appeals, March 30, 2010 Elgharib v. Napolitano, No. 09-3029 Dismissal of a petition for a writ of prohibition challenging an in absentia removal order is affirmed as an alien's petition for a writ of prohibition that directly challenges his or her final order of removal on constitutional grounds is subject to the jurisdictional bars in 8 U.S.C. section 1252(a)(5) and (g), and general federal-question subject matter jurisdiction is not available in the district court under 28 U.S.C. section 1331. Contrary to petitioner's claim, the Constitution qualifies as "any other provision of law (statutory or nonstatutory)" under all subsections of section 1252. Read more... U.S. 6th Circuit Court of Appeals, March 30, 2010 Pablo-Sanchez v. Holder, No. 09-3301 Mexican family's petition for review of a BIA decision denying withholding of removal is denied where the BIA permissibly determined that petitioner-husband did not suffer mistreatment on account of his political opinions (petitioner was a former Green Party candidate for a seat in Mexico's Congress). Read more... U.S. 8th Circuit Court of Appeals, March 30, 2010 Nadeem v. Holder, No. 08-3829 In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the immigration judge’s adverse credibility finding, supported by specific and cogent reasons for disbelief, detailed the discredited information, undermined allegations of past persecution, and provided a proper basis for denying petitioner's claim for withholding of removal; and 2) petitioner failed to provide sufficient evidence that he would be subject to torture in Pakistan. Read more... U.S. 9th Circuit Court of Appeals, March 29, 2010 Ledezma-Garcia v. Holder, No. 03-73648 In a petition for review of the BIA's order removing petitioner from the U.S. based on his commission of an aggravated felony of sexually molesting a minor, the petition is granted where: 1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and 2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation. Read more... U.S. 9th Circuit Court of Appeals, March 31, 2010 Guerrero-Silva v. Holder, No. 05-77420 In a petition for review of the BIA's order removing petitioner from the U.S., the petition is dismissed where petitioner's drug conviction under California Health and Safety Code section 11361(b) qualified as a controlled substance offense under 8 U.S.C. section 1227(a)(2)(B)(i). Read more... U.S. 9th Circuit Court of Appeals, April 02, 2010 Morales-Izquierdo v. Dept. of Homeland Sec., No. 08-35965 In a habeas petition seeking review of the BIA's denial of petitioner's application to adjust his immigration status to that of a lawful permanent resident, the denial of the petition is affirmed where: 1) to permit petitioner's challenge to the denial of his adjustment-of-status application to proceed as a habeas corpus petition would be contrary to a central purpose of the REAL ID Act; 2) a Form I-212 waiver, even if granted, did not cure the inadmissibility of an alien who reentered the U.S. without inspection after a prior removal; and 3) petitioner had no constitutional right to reside in the U.S. simply because other members of his family were citizens or lawful permanent residents. Read more... March 22, 2010 - March 26, 2010 U.S. 8th Circuit Court of Appeals, March 22, 2010 Clifton v. Holder, No. 08-3726 In a petition for review of the BIA's order denying petitioner's motion to remand to the immigration judge (IJ) and dismissing her appeal of the IJ's denial of her motion to reopen removal proceedings, the petition is granted where the BIA abused its discretion by refusing to remand and reopen removal proceedings solely on the ground that the BIA lacked jurisdiction over an application for adjustment of status that had been filed with and was pending before United States Citizenship and Immigration Services. Read more... U.S. 8th Circuit Court of Appeals, March 25, 2010 Thimran v. Holder, No. 09-1749 In a petition for review of the BIA's order denying petitioner's request for a continuance and voluntary departure and ordering him removed, the petition is denied where the Immigration Judge's (IJ) decision not to grant a continuance did not amount to an abuse of discretion, considering that the IJ denied petitioner's request for a continuance after multiple I-130 petitions were denied, the case had been continued for over two years, and petitioner presented no obviously meritorious grounds for appeal. Read more... U.S. 9th Circuit Court of Appeals, March 25, 2010 Lee v. Holder, No. 07-71193 In a petition for review of the BIA's order removing petitioner from the U.S., the petition is denied where the IJ did not err in finding petitioner ineligible for U visa interim relief, a temporary form of relief that was previously made available to immigrant victims of crime, because only U.S. Citizenship and Immigration Services could grant such relief. Read more... U.S. 9th Circuit Court of Appeals, March 25, 2010 US v. Maciel-Alcala, No. 09-50038 Defendant's aggravated identity theft conviction is affirmed where the scienter element of 18 U.S.C. section 1028A required that the government prove only that defendant knew that the victim was a real person, living or deceased, when he procured a passport using the victim's birth certificate. Read more... U.S. 9th Circuit Court of Appeals, March 26, 2010 Chawla v. Holder, No. 05-74823 In a petition for review of the BIA's decision affirming a denial of petitioner's asylum application, the petition is granted where none of the reasons articulated by the Immigration Judge or BIA, considered either separately or in combination, provided a legitimate basis to question petitioner's credibility. Read more... U.S. 9th Circuit Court of Appeals, March 26, 2010 US v. Castro, No. 09-50164 Defendant's sentence for attempted reentry into the U.S. after removal is vacated where defendant's prior conviction under California Penal Code section 288(c)(1) categorically constituted neither "sexual abuse of a minor" nor "statutory rape" and therefore did not qualify as a crime of violence warranting a sixteen-level increase. Read more... March 15, 2010 - March 19, 2010 U.S. 4th Circuit Court of Appeals, March 17, 2010 Mirisawo v. Holder , No. 08-1704 Petition for review BIA's decision affirming an immigration judge's removal order to remove the petitioner from the United States to Zimbabwe is denied where: 1) the BIA's decision that petitioner did not suffer an economic deprivation sufficient to constitute past persecution is amply supported by the evidence; and 2) facts provide substantial evidence to support the BIA's conclusion that petitioner's fear was not objectively reasonable. Read more... U.S. 5th Circuit Court of Appeals, March 17, 2010 Claudio v. Holder, No. 08-61060 In a petition for review of the BIA's final order removing petitioner from the U.S., the petition is dismissed for lack of jurisdiction where a petitioner cannot exhaust his claims by raising all of them in a notice of appeal to the BIA, but addressing only some in a supporting brief, and petitioner failed to exhaust the claim that he was not removable. Read more... U.S. 9th Circuit Court of Appeals, March 16, 2010 Tamang v. Holder, No. 08-73550 In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the ineffectiveness of petitioner's former counsel's assistance was not plain on its face; 2) petitioner did not suffer any personal persecution, and his claim for asylum was time-barred; and 3) substantial evidence supported the Immigration Judge's finding that changed conditions in Nepal mitigated against any fear of persecution if petitioner returned to Nepal. Read more... March 08, 2010 - March 12, 2010 U.S. 1st Circuit Court of Appeals, March 11, 2010 Villa-Londono v. Holder, No. 09-1832 A Colombian National's request for review BIA's denial of her applications for withholding of removal and related relief is denied as the IJ's adverse credibility determination is supported by specific and persuasive findings. Moreover, with the petitioner's testimony discredited, there is very little evidence in the record to support petitioner's asylum claim. Read more... U.S. 4th Circuit Court of Appeals, March 08, 2010 Cervantes v. Holder , No. 09-1519 BIA's judgment affirming the IJ's rejection of petitioners' temporary protected status (TPS) applications and ordering them to voluntarily depart the United States is affirmed where: 1) the BIA did not err in determining that the petitioners are unable to satisfy the "continuous physical presence" requirement for TPS; and 2) BIA did not err in determining that the petitioners are unable to satisfy the TPS eligibility requirements because they have not continuously resided in the U.S. since December 30, 1998. Read more... U.S. 4th Circuit Court of Appeals, March 09, 2010 Sadhvani v. Holder , No. 08-1684 A petition for review by a native of Togo of the BIA's denial of his motion to reopen asylum application is denied as the BIA did not abuse its discretion in denying petitioner's motion based on the statutory requirement that one must be present in the United States to be eligible for asylum, and here, because petitioner was removed pursuant to a valid order of removal, he no longer can pursue his asylum application. Read more... U.S. 7th Circuit Court of Appeals, March 12, 2010 Juarez v. Holder, No. 08-1788 Petition for review BIA's decision that petitioners' untimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief is denied where: 1) the petitioners were given ample time to file their applications for relief and provide biometrics and did not have good cause for their delay; and 2) the IJ did not abuse his discretion in denying their motion for a continuance; and 3) IJ did not abuse his discretion in denying their requests for relief because of their failure to comply with these application prerequisites. Read more... U.S. 8th Circuit Court of Appeals, March 08, 2010 Freeman v. Holder, No. 09-1006 In a petition for review of the denial of petitioner's motion to reopen his removal proceedings, the petition is denied where: 1) since a 209(c) waiver only dealt with waiving grounds for inadmissibility for the purpose of seeking adjustment of status, the waiver petitioner placed in the record had no bearing on whether he was removable for his conviction; 2) petitioner was provided with ample notice of the consequences of a failure to appear; and 3) a proposed witness's testimony would not have changed the outcome of the case, and he was not denied due process. Read more... U.S. 8th Circuit Court of Appeals, March 09, 2010 Thu v. Holder, No. 09-1655 In a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief, the petition is denied where: 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Read more... U.S. 9th Circuit Court of Appeals, March 08, 2010 US v. Arias-Ordonez, No. 08-10259 In a prosecution for reentry following removal from the U.S., the dismissal of the indictment is affirmed where the order instructing defendant to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure. Read more... U.S. 9th Circuit Court of Appeals, March 08, 2010 US v. Molina, No. 09-10066 Defendant's sentence for transporting an illegal alien is affirmed where: 1) because there was no evidence of involuntariness, the district court properly admitted the hearsay evidence at defendant's sentencing hearing pursuant to a signed stipulation; and 2) the conflicting evidence weighed against a finding that defendant accepted responsibility for his actions. Read more... U.S. 9th Circuit Court of Appeals, March 09, 2010 Najmabadi v. Holder, No. 05-72401 In a petition for review of the BIA's order denying petitioner's motion to reopen her removal proceedings on the basis of changed conditions in Iran, the petition is denied where: 1) substantial evidence supported the Board's finding that the evidence petitioner submitted in her motion to reopen was not qualitatively different from the evidence presented at the original hearing; and 2) there was no evidence establishing that returnees from the U.S. would likely face persecution. Read more... U.S. 9th Circuit Court of Appeals, March 09, 2010 Tampubolon v. Holder, No. 06-70811 In a petition for review of the BIA's denial of petitioners' asylum application, the petition is granted in part where the BIA erred in failing to apply disfavored group analysis to petitioners' withholding claim because the record compelled a finding that Christians in Indonesia are a disfavored group. However, the petition is denied in part where the BIA's failure to address two irrelevant cases did not render the proceeding fundamentally unfair. Read more... U.S. 9th Circuit Court of Appeals, March 11, 2010 Tijani v. Holder, No. 05-70195 Petition for review of the BIA's denial of petitioner's asylum application is granted in part where the court was required to remand to the BIA to address the questions of whether petitioner would be in danger of persecution on account of his religion or would be entitled to other relief. However, the petition is denied in part where petitioner's credit card fraud in violation of Cal. Penal Code section 532a(1) constituted a crime of moral turpitude. Read more... U.S. 11th Circuit Court of Appeals, March 10, 2010 Vila v. US Atty. Gen., No. 08-16013 In a petition for review of the BIA's denial of petitioner's application for a waiver of inadmissibility, the petition is denied where, because petitioner's approved I-140 visa petition did not make him a lawful resident under section 212(h) when the Immigration and Naturalization Service formally approved his application for adjustment, petitioner did not lawfully reside continuously in the U.S. for the seven years preceding the initiation of his removal proceedings on October 25, 2003. Read more... California Appellate Districts, March 08, 2010 People v. Puluc-Sique, No. A123451 People's request to extend the appellate disentitlement doctrine (applicable to fugitives) to a criminal defendant who had been deported from the country by the ICE is denied as, absent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control. Read more... March 01, 2010 - March 05, 2010 U.S. 2nd Circuit Court of Appeals, March 02, 2010 Castro v. Holder, No. 08-4820 In a petition for review of a denial of petitioners' asylum application, the petition is granted where, instead of evaluating the claim against the backdrop of Guatemala's volatile political history, the Immigration Judge (IJ) short-circuited the analysis and dismissed petitioner's claim of political persecution by presuming that petitioner was targeted for his resistance to being recruited by corrupt officers, which the IJ believed to lack any political dimension, and for reporting the crimes of rogue police officers, which the IJ considered an occupational hazard of petitioner's job, and thus again non-political. Read more... U.S. 2nd Circuit Court of Appeals, March 03, 2010 Herrera-Molina v. Holder, No. 07-0985 In a petition for review of a February 23, 2007 decision of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), reinstating a prior order of deportation, the petition is denied where: 1) the reinstatement of removal statute, section 241(a)(5) of the Immigration and Naturalization Act, was not impermissibly retroactive as applied to petitioner, an alien who illegally reentered the U.S. and married a U.S. citizen prior to the statute's enactment; and 2) section 241(a)(5) foreclosed petitioner from applying for certain additional types of relief and section 241(a)(5) did not deprive him of due process. Read more... U.S. 4th Circuit Court of Appeals, March 05, 2010 Kporlor v. Holder , No. 08-2363 Petition for review of the BIA's denial of a Liberian citizen's applications for withholding of removal and related relief is denied where: 1) federal appellate courts lack jurisdiction under 8 U.S.C. section 1252(a)(2)(C) to review BIA denials of withholding of removal in cases involving crime of moral turpitude; and 2) the court lacks jurisdiction to review petitioner's CAT claim because he did not appeal the IJ's denial of the claim to the BIA and therefore, did not exhaust his administrative remedies. Read more... U.S. 5th Circuit Court of Appeals, March 02, 2010 Orosco v. Napolitano, No. 09-40004 In an action seeking a writ of habeas corpus to compel defendants to issue him a law enforcement certification showing his cooperation with law enforcement under 28 U.S.C. section 2241, dismissal of the complaint is affirmed where the language of section 1184(p) made it abundantly clear that the decision to issue a law enforcement certification is a discretionary one. Read more... U.S. 6th Circuit Court of Appeals, March 05, 2010 Urbina-Mejia v. Holder, No. 09-3567 Petition for review of a decision of the BIA denying petitioner's applications for withholding of removal is denied where: 1) the BIA erred in finding that petitioner was not a member of a particular social group for which he would likely be subject to persecution should he be returned to Honduras; 2) petitioner was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization; but 3) petitioner failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of the gang before coming to the United States. Read more... U.S. 7th Circuit Court of Appeals, March 05, 2010 Gonzalez-Balderas v. Holder , No. 09-1890 Petition for review of the BIA's decision denying petitioner's request to reapply for admission retroactive to the date of her second reentry is denied as an application for retroactive relief cannot be granted when the effect would be to lift a ten-year bar. Read more... U.S. 8th Circuit Court of Appeals, March 01, 2010 Lang v. Napolitano, No. 09-1285 In an action against Department of Homeland Security (DHS) officials seeking an order enjoining defendants from removing plaintiff and a writ of mandamus ordering defendants "to issue a Notice to Appear before an immigration judge," dismissal of the complaint is affirmed where: 1) the DHS's letter to plaintiff was a final administrative order of removal reviewable only in a court of appeals; and 2) at least in the absence of a legal or constitutional defect that could not be remedied by a direct petition for review, the order was final, and no court had jurisdiction over a claim to prevent execution of that order, either by collateral attack or by the imposition of further procedures. Read more... U.S. 8th Circuit Court of Appeals, March 04, 2010 Karim v. Holder, No. 08-3684 In a petition for review of the BIA's denial of petitioners' asylum application, the petition is denied where, even assuming that petitioner was credible and could establish past persecution, the court would not interfere with the decision because the record provided sufficient support for the factual finding that changed country conditions meant petitioner did not have a well-founded fear of future persecution. Read more... U.S. 9th Circuit Court of Appeals, March 01, 2010 US v. Reyes-Bosque, No. 08-50253 Defendants' convictions for aiding aggravated felon aliens to enter the U.S. and related offenses are affirmed where: 1) defendant did not present sufficient evidence to prove that he was an overnight guest in an apartment searched by police, and did not argue that he had standing to challenge the search on any other grounds; 2) the fact that defendant physically gave the landlord the rent payment was insufficient to establish that he had a legitimate expectation of privacy in another apartment; and 3) the agents who performed the search had an objectively reasonable basis for believing that there was an immediate need to protect the individuals in the apartment. Read more... U.S. 9th Circuit Court of Appeals, March 05, 2010 Lanuza v. Holder, No. 07-71943 In a petition for review of the BIA's decision pretermitting petitioners' applications for special rule cancellation of removal under Section 203 of the Nicaraguan and Central American Relief Act (NACARA), the petition is denied where: 1) the court lacked jurisdiction to determine petitioner's statutory eligibility for NACARA section 203 relief; and 2) the Immigration Jude did not violate petitioner's constitutional right to due process by depriving her of a full and fair hearing and a reasonable opportunity to present evidence on her behalf. Read more... February 22, 2010 - February 26, 2010 U.S. 1st Circuit Court of Appeals, February 24, 2010 Castro-Soto v. Holder, No. 08-1399 BIA's denial of a request by a citizen and national of the Dominican Republic for adjustment of status is affirmed as it was not plainly erroneous or inconsistent with the regulation for the BIA to find that petitioner had obtained all of the benefit due to him based on a 1992 petition, and that the petition was therefore extinguished and cannot now provide grandfathered status. Read more... U.S. 2nd Circuit Court of Appeals, February 25, 2010 Kone v. Holder, No. 08-1445 In a petition for review of a denial of petitioner's asylum application, the petition is granted where the BIA improperly shifted the burden of proof to petitioner to demonstrate future persecution, and failed to consider the relevant circumstances in finding petitioner less than credible. Read more... U.S. 2nd Circuit Court of Appeals, February 25, 2010 De La Rosa v. Holder, No. 09-3099 In a petition for review of the BIA's order denying petitioner's application for deferral of removal under the Convention Against Torture, the petition is granted where: 1) the BIA's "weight of the evidence" review of the Immigration Judge's findings did not conform to the dictates of 8 C.F.R. section 1003.1(d)(3)(i); and 2) without discussion, the BIA appeared to have improperly assumed that the activity of certain government actors overrode both the complicity of other government actors and the general corruption and ineffectiveness of the Dominican government in preventing unlawful killings. Read more... U.S. 4th Circuit Court of Appeals, February 23, 2010 Gao v. Holder , No. 07-2070 BIA's denial of Chinese petitioner's applications for withholding of removal and asylum based on her conviction for unlawful export of technology to China is affirmed where: 1) an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding; and 2) the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication. Read more... February 15, 2010 - February 19, 2010 U.S. 2nd Circuit Court of Appeals, February 17, 2010 Ascencio-Rodriguez v. Holder, No. 08-3058 In a petition for review of the BIA's order denying petitioner's application for cancellation of removal but granting his request for voluntary departure, the petition is denied where, for the purposes of cancellation of removal eligibility under 8 U.S.C. section 1229b(b)(1)(A), petitioner's arrest and conviction for illegal entry into the U.S. and his subsequent departure to Mexico interrupted his period of "continuous physical presence" in the U.S. Read more... U.S. 9th Circuit Court of Appeals, February 18, 2010 Kin v. Holder, No. 05-73079 In a petition for review of the BIA's denial of petitioners' asylum application, the petition is denied where the Immigration Judge's adverse credibility determination based on petitioners' demeanor was supported by substantial evidence. Read more... U.S. 9th Circuit Court of Appeals, February 18, 2010 Zettino v. Holder, No. 08-70390 In a petition for review of the BIA's denial of petitioner's asylum application, the petition is denied where: 1) because the court could not discover a sufficiently meaningful standard for evaluating the BIA's decision rejecting an untimely brief, it lacked jurisdiction to review petitioner's claim that the BIA abused its discretion in doing so; and 2) the proceedings were not so fundamentally unfair that petitioner was prevented from reasonably presenting his case. Read more... U.S. 9th Circuit Court of Appeals, February 19, 2010 Alvarez-Reynaga v. Holder, No. 08-70253 Petition for review of the BIA's order removing petitioner from the U.S. based on his felony conviction for receipt of a stolen vehicle in violation of section 496d(a) of the California Penal Code, the petition is denied where a conviction under that statute qualified categorically as a conviction for an aggravated felony. The court also holds that a conviction under such statute does not categorically constitute a crime involving moral turpitude. Read more... U.S. 11th Circuit Court of Appeals, February 19, 2010 Diallo v. U.S. Atty. Gen., No. 08-16507 In a petition for review of the BIA's order removing petitioner, a native of Guinea, from the U.S., the petition is granted and the ruling is vacated and remanded where: 1) a credible death threat made in person by one with the ability to carry out that threat rose to the level of persecution; and 2) a remand was required for the BIA to consider whether the government can rebut the presumption of future persecution with evidence of changed country conditions or petitioner's ability to relocate. Read more... February 08, 2010 - February 12, 2010 U.S. 5th Circuit Court of Appeals, February 09, 2010 US v. Castillo-Estevez, No. 09-40096 Defendant's sentence for illegal reentry into the U.S. after deportation is affirmed where the application of the 2008 Sentencing Guidelines to defendant was not a plain-error violation of the Ex Post Facto Clause because case law revealed a reasonable dispute regarding the ex post facto implications of retroactive application of the advisory guidelines. Read more... U.S. 6th Circuit Court of Appeals, February 10, 2010 Haider v. Holder, No. 08-4010 Algerian national's petition for review of a decision by the BIA denying his application for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) is granted in part and denied in part where: 1) the petition as to withholding of removal under the INA is granted and remanded as, assuming petitioner's testimony to be credible, the evidence compels a finding that police abused him based on an imputed political opinion; and 2) the petition with respect to withholding of removal under the CAT is denied as neither the actions of the Algerian police nor those of the GIA (Armed Islamic Group) amounted to torture. Read more... U.S. 7th Circuit Court of Appeals, February 11, 2010 Munoz de Real v. Holder , No. 09-1945 Petition for review of the BIA's decision affirming an IJ's denial of a Mexican national's motion to reopen removal proceedings based on intervening developments in the law (specifically, that a conviction of felony drunk driving was not a proper basis for removal) is denied as petitioner's motion to reopen was unquestionably time-barred. Read more... U.S. 8th Circuit Court of Appeals, February 12, 2010 US v. Fajardo-Fajardo, No. 09-1845 Defendant's conviction for illegal reentry into the U.S. is affirmed where: 1) 8 C.F.R. section 103.7(d) authorized Immigration and Customs Enforcement agents to certify records or the non-existence of records; and 2) defendant's corroborated confession was sufficient evidence to support the jury verdict. Read more... U.S. 9th Circuit Court of Appeals, February 10, 2010 Nunez v. Holder, No. 06-70219 In a petition for review of the BIA's order removing petitioner from the U.S. based on his commission of a crime of moral turpitude, the petition is granted where indecent exposure under section 314 of the California Penal Code is not categorically a crime of moral turpitude. Read more... February 01, 2010 - February 05, 2010 U.S. 1st Circuit Court of Appeals, February 04, 2010 Estrada v. State of Rhode Island, No. 09-1149 In plaintiffs' action challenging the constitutionality of the actions of a police officer during a traffic stop, summary judgment in favor of defendant is affirmed where: 1) the officer is entitled to federal and state qualified immunity for any possible constitutional violations that he may have committed in asking the van's passengers questions about their immigration status and in contacting ICE; 2) the officer is entitled to qualified immunity for alleged violations of state or federal laws surrounding the seizure of plaintiffs and their subsequent escort to ICE office; 3) officer is entitled to qualified immunity for both pat down searches under federal and state law; and 4) the officer is entitled to qualified immunity for all of the challenged actions with respect to the Rhode Island Racial Profiling Prevention Act. Read more... U.S. 2nd Circuit Court of Appeals, February 01, 2010 Azize v. Bureau of Citizenship & Imm. Servs., No. 05-4315 In a petition for review of a BIA order denying an application for cancellation of removal claiming that petitioner was improperly denied an opportunity to complete an application for naturalization, the case is remanded to the district court where the district court needed to determine the circumstances of petitioner's alleged failure to file tax returns, whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether petitioner would have proceeded to the point in the citizenship process where he would have become eligible to take the oath of allegiance. Read more... U.S. 2nd Circuit Court of Appeals, February 04, 2010 Gildernew v. Quarantillo, No. 08-6301 In an action seeking a declaratory judgment that plaintiff, an Irish national, was entitled to naturalize in the U.S., summary judgment for defendant is affirmed where: 1) the one-year absence bar in 8 U.S.C. section 1427(b) applied both to the period preceding the naturalization interview and the period following the interview; and 2) plaintiff was neither exempt from the continuous residence requirement, nor did he present a set of facts that would warrant an estoppel. Read more... U.S. 8th Circuit Court of Appeals, February 01, 2010 Tebyasa v. Holder, No. 08-3725 In a petition for review of the BIA's denial of Ugandan native's asylum application, the petition is denied where substantial evidence supported the BIA's determination that petitioner's testimony was not credible based on a lack of corroboration. Read more... U.S. 9th Circuit Court of Appeals, February 03, 2010 Corona-Mendez v. Holder, No. 08-72492 In a petition for review of the BIA's denial of petitioner-Mexican native's application for a waiver of removal, the petition is denied where the BIA correctly held that petitioner was not eligible for multiple waivers of removability and inadmissibility. Read more... U.S. 9th Circuit Court of Appeals, February 04, 2010 Aguilar-Ramos v. Holder, No. 07-70240 In a petition for review of the BIA's order dismissing petitioner's claim of ineffective assistance of counsel and denying his applications for relief under former Immigration and Nationality Act section 212(c) and the Convention Against Torture, the petition is granted in part where the failure of the Immigration Judge and BIA to consider evidence of country conditions constituted reversible error. However, the petition is denied in part where the Attorney General did not have authority to waive the grounds for petitioner's removal. Read more... U.S. 10th Circuit Court of Appeals, February 02, 2010 Chamber of Comm. of the US v. Edmondson, No. 08-6127 In an action claiming that provisions of the Oklahoma Taxpayer and Citizen Protection Act (the Act) were preempted by federal law, a preliminary injunction in favor of plaintiffs is affirmed in part where: 1) section 7(C) of the Act imposed sanctions "upon those who employ unauthorized aliens," and was thus preempted by 8 U.S.C. section 1324a(h)(2); and 2) by requiring verification of independent contractors, section 9 of the Act risked exposing contracting entities to liability under federal law, and thus section 9 was preempted as well. However, the order is reversed in part where section 7(B) of the Act was not preempted because no evidence suggested that federal standards concerning immigration and employment-verification would be compromised by the online monitoring system required by that section. Read more... January 25, 2010 - January 29, 2010 U.S. 1st Circuit Court of Appeals, January 27, 2010 Weng v. Holder , No. 09-1273 Chinese citizen's petition for review of the BIA's denial of a petition for asylum and related relief is denied as, although the IJ discussed some but not all of the documentary evidence petitioner introduced to support her claim of past religious persecution, the remaining evidence would not compel a factfinder to conclude that she had suffered past religious persecution or feared future persecution or that she was credible about her reasons for leaving China. Read more... U.S. 4th Circuit Court of Appeals, January 25, 2010 Marynenka v. Holder, No. 07-1792 A petition for review of the BIA's denial of petitioner-Belarusian citizen's application for asylum and related relief is granted and the decision vacated and remanded where the IJ committed substantial legal error in rejecting certain of petitioner's corroborating evidence. Read more... U.S. 4th Circuit Court of Appeals, January 25, 2010 Lee v. US Citizenship & Immigration Serv., No. 08-1659 In a Korean National's action under the Administrative Procedure Act challenging the validity of 8 C.F.R. section 245.10(j), following the denial of his application for adjustment of status by the District Director of the United States Citizenship & Immigration Services, dismissal of the action is affirmed as the district court did not have jurisdiction to entertain petitioner's challenge to the District Director's eligibility determination and subsequent denial of adjustment of status. Read more... U.S. 5th Circuit Court of Appeals, January 29, 2010 US v. Martinez-Rios, No. 08-40809 Defendant's conviction for illegally reentering the U.S. is affirmed where, although the district court erred in admitting a Certificate of Nonexistence of Record (CNR) without hearing the testimony of the records analyst who created it, there was sufficient evidence apart from the CNR to convict defendant. Read more... U.S. 6th Circuit Court of Appeals, January 25, 2010 Kellermann v. Holder , No. 08-3927 A petition for review of BIA's final order of removal of a German citizen is denied as, petitioner's convictions under 18 U.S.C. sections 371 and 1001 (making false statements to an agency of the U.S. and conspiracy for failure to provide accurate financial records in connection with a grant he received from the government) constituted aggravated felonies as defined at INA section 101(a)(43)(M)(i), rendering him ineligible for cancellation of removal. Read more... U.S. 7th Circuit Court of Appeals, January 28, 2010 Canto v. Holder, No. 08-4272 Petition for review of the BIA's finding that petitioner is deportable due to his conviction of counterfeiting over two decades ago is denied where: 1) 8 U.S.C. section 1101(a)(43) does not violate the equal protection component of the Due Process Clause; and 2) Immigration Code section 212(c) is not impermissibly retroactive as aliens who went to trial did not forgo any rights in reliance on the continued existence of the section. Read more... U.S. 8th Circuit Court of Appeals, January 25, 2010 Guillen-Hernandez v. Holder, No. 09-1279 In petitions for review of the BIA's denial of petitioners' asylum applications, the petitions are denied where: 1) the murders of petitioners' family members were not persecution within the meaning of 8 U.S.C. section 1101(a)(42)(A) because they were not committed by the government; and 2) petitioners did not claim they were persecuted on account of race, religion, nationality, or political opinion. Read more... U.S. 8th Circuit Court of Appeals, January 28, 2010 Averianova v. Holder, No. 08-3167 In a petition for review of the BIA's denial of petitioner's motion to reopen her removal proceedings, the petition is denied where: 1) petitioner provided no meaningful argument in her brief to support her claim that the BIA abused its discretion in denying her motion to reconsider; and 2) petitioner failed to demonstrate changed conditions in her native Uzbekistan. Read more... U.S. 9th Circuit Court of Appeals, January 26, 2010 US v. Juvenile Male, No. 07-50107 In defendant-juvenile's appeal from a proceeding in which he was found to be a juvenile delinquent, the order is affirmed in part where: 1) the U.S. Attorney may certify to the absence of state court jurisdiction under 18 U.S.C. section 5032 if he learns that the appropriate state prosecutor has decided not to prosecute a particular juvenile for the specific crime at issue; and 2) there was no violation of the Juvenile Justice and Delinquency Prevention Act's speedy trial provision because defendant caused the delay in the start of his trial by lying about his age. However, the order is reversed in part where, because defendant was, as the district court ultimately determined, a juvenile at the time of his arrest, he was entitled to the protections of 18 U.S.C. section 5033. Read more... U.S. 9th Circuit Court of Appeals, January 27, 2010 Velasco-Cervantes v. Holder, No. 08-73295 Petition for review of the BIA's dismissal of petitioner's appeal of an Immigration Judge's decision denying petitioner's petitions for asylum is denied where material witnesses for the government, such as petitioner, did not constitute a protected social group. Read more... U.S. 9th Circuit Court of Appeals, January 28, 2010 Esquivel-Garcia v. Holder, No. 07-70640 Petition for review of the BIA's denial of petitioner's requests for cancellation of removal, adjustment of status and voluntary departure is granted in part where the government needed to put forth reliable evidence to show that the petitioner was convicted of a disqualifying controlled substance offense. However, the petition is denied in part where there was sufficient evidence to support the Immigration Judge's finding that petitioner had possessed a disqualifying controlled substance, and that precluded adjustment of status. Read more... U.S. 11th Circuit Court of Appeals, January 27, 2010 US v. Caraballo, No. 09-10428 Defendant's alien smuggling conviction and sentence are affirmed where: 1) officers do not violate the Fourth Amendment simply by approaching an individual on the street or in some other public place and asking a question or asking for identification; 2) the government properly offered a redacted portion of a Form I-213 only to demonstrate that the aliens found on defendant's boat were deportable and inadmissible; and 3) the district court did not clearly err by applying the sentencing guideline enhancement for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person. Read more... January 18, 2010 - January 22, 2010 U.S. Supreme Court, January 20, 2010 Kucana v. Holder, No. 08–911 In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceedings, the court of appeals' denial of the petition is reversed where 8 U.S.C. section 1252(a)(2)(B)'s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. Read more... U.S. 5th Circuit Court of Appeals, January 22, 2010 US v. Pineda, No. 08-41301 The $100 special assessment portion of the district court's order revoking defendant's supervised release for illegal reentry into the U.S. is vacated where the district court erred in reimposing the unpaid assessment from defendant's sentence for a prior offense, because neither 18 U.S.C. section 3013 nor 18 U.S.C. section 3583, which concerned supervised release, sanctioned the imposition of a section 3013 assessment for revocation of a term of supervised release. Read more... U.S. 7th Circuit Court of Appeals, January 20, 2010 Bayo v. Napolitano, No. 07-1069 A Guinean citizen's petition for review of a Department of Homeland Security (DHS) administrative order of removal is denied where: 1) the government was entitled to select overstay under the terms of the Visa Waiver Program (VWP) as the ground for removing the petitioner; 2) an alien's waiver through the VWP of the due process rights to which he or she would otherwise be entitled must be done both knowingly and voluntarily, but here, petitioner cannot establish that he was prejudiced even if he had known what the waiver said; and 3) petitioner's adjustment-of-status application is barred by his valid VWP waiver or by the fact that, in the absence of a waiver, he never would have entered the United States in the first place. Read more... U.S. 8th Circuit Court of Appeals, January 20, 2010 Sanchez-Velasco v. Holder, No. 09-2131 In a petition for review of the BIA's denial of petitioner's application for cancellation of removal on the basis that he failed to prove that he had been continuously physically present in the U.S. for ten years, the petition is denied where: 1) petitioner failed to provide reasonably available corroborative evidence; and 2) petitioner lacked a protected due process interest in the ultimately discretionary relief of cancellation of removal. Read more... U.S. 9th Circuit Court of Appeals, January 19, 2010 US v. Palos-Marquez, No. 08-50498 Defendant's conviction for transportation of illegal aliens is affirmed where an in-person tip by an unidentified informant provided reasonable suspicion to support border patrol agents' investigatory stop of defendant's vehicle. Read more... U.S. 9th Circuit Court of Appeals, January 20, 2010 Coyt v. Holder, No. 05-77080 In a petition for review of the BIA's denial of petitioner's motion to reissue the BIA's decision and stay his removal, the petition is granted where the BIA may not deem a motion to reopen or reissue withdrawn by operation of law when the government removes a petitioner before the BIA has ruled on the motion. Read more... January 11, 2010 - January 15, 2010 U.S. 2nd Circuit Court of Appeals, January 12, 2010 Huang v. Holder, No. 08-5785 In a petition for review of the BIA's order denying petitioner's asylum application, the petition is denied where: 1) the BIA's conclusion that an involuntary IUD insertion was not an "involuntary sterilization" was permissible under Chevron; and 2) thus, the BIA's interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference. Read more... U.S. 7th Circuit Court of Appeals, January 15, 2010 Ortega v. Holder, No. 08-3642 In an action for a declaration of nationality pursuant to 8 U.S.C. section 1503(a), district court's grant of the government's motion to dismiss for lack of subject matter jurisdiction is reversed and remanded as the language of section 1503(a)(1), read within the context of section 1503(a) and also read in conjunction with related provisions of Title 8, makes it clear that Congress intended individuals to pursue one of two routes to establish claims for nationality. Specifically, individuals can file an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. section 1503(a). Read more... U.S. 8th Circuit Court of Appeals, January 12, 2010 Cherichel v. Holder, No. 08-3736 In a petition for review of the BIA's order denying petitioner's request for deferral of removal under the Convention Against Torture (CAT), the petition is denied where the CAT's specific intent element could not be satisfied by a showing that severe physical or mental pain or suffering is merely foreseeable. Read more... U.S. 8th Circuit Court of Appeals, January 15, 2010 Damkam v. Holder, No. 08-3808 In a petition for review of the BIA's denial of petitioner's asylum application, the petition is denied where the Immigration Judge cited several inconsistencies and omissions in the record, implausible testimony, and an absence of corroboration that reasonably justified a finding that petitioner's claims were not credible. Read more... U.S. 9th Circuit Court of Appeals, January 13, 2010 Baghdasaryan v. Holder, No. 05-72416 In a petition for review of the BIA's denial of petitioner's asylum application, the petition is granted where: 1) the evidence in the record would compel a reasonable factfinder to conclude that petitioner was mistreated because of his political opinion; and 2) the BIA needed to consider whether the threats, harassment, fines, detention, and beating that petitioner experienced rose to the level of persecution. Read more... U.S. 10th Circuit Court of Appeals, January 13, 2010 Carpio v. Holder, No. 08-9536 In a petition for review of the BIA's denial of petitioner's application for a conditional adjustment of status under 8 U.S.C. section 1255(d), the petition is granted where petitioner met the statutory requirement of being under twenty-one at the time he entered the U.S. A K-2 visa holder who timely applies for an adjustment of status under section 1255(d) must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated. Read more... January 04, 2010 - January 08, 2010 U.S. 3rd Circuit Court of Appeals, January 05, 2010 US v. Lopez-Reyes, No. 09-1243 District court's imposition of 46-months' imprisonment and three years of supervised release on a defendant convicted of illegally reentering the United States subsequent to a conviction for the commission of an aggravated felony is affirmed where: 1) it is apparent that the district court was aware of the discretionary nature of the Guidelines and its authority to impose a sentence outside of the prescribed range, but it had no obligation to exercise that discretion in favor of the defendant; and 2) defendant's sentence is substantively reasonable. Read more... U.S. 7th Circuit Court of Appeals, January 05, 2010 US v. Carrillo-Esparza, No. 08-3863 District court's imposition of 90-months' imprisonment on a defendant convicted of illegally re-entering the US with two prior convictions for aggravated felonies is affirmed as the district court implicitly considered and rejected defendant's argument for a reduced sentence and properly considered the sentencing factors in 18 U.S.C. section 3553(a). Read more... U.S. 7th Circuit Court of Appeals, January 06, 2010 Milanouic v. Holder, No. 08-3710 Board of Immigration Appeal's denial of an ethnic Serb's request for withholding of removal is affirmed as there is adequate evidence to support the IJ's determination that the removal of Slobodan Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution. Read more... U.S. 7th Circuit Court of Appeals, January 06, 2010 Haile v. Holder, No. 08-4187 Petition for review the Board of Immigration Appeal's denial of an Ethiopian citizen's request for asylum is granted and remanded as, from the correct premise that a change of citizenship incident to a change in national boundaries is not persecution per se, it does not follow that taking away a person's citizenship because of his religion or ethnicity is not persecution. And here, if Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans, and the analogy to the Nazi treatment of Jews is close enough to suggest that his denationalization was persecution and created a presumption that he has a well-founded fear of being persecuted should he be returned to Ethiopia. Read more... U.S. 9th Circuit Court of Appeals, January 04, 2010 Taslimi v. Holder, No. 05-71006 In a petition for review of the BIA's order finding petitioner statutorily ineligible for asylum, the petition is granted where the BIA was required to determine whether, in an exercise of discretion, petitioner merited a grant of asylum under 8 U.S.C. section 1158(b). Read more... U.S. 9th Circuit Court of Appeals, January 04, 2010 US v. Laurico-Yeno, No. 09-50093 Defendant's sentence for being a deported alien found in the U.S. is affirmed where the use of physical force against the person of another was an element of California Penal Code section 273.5, and thus defendant's prior violation of that statute was a categorical crime of violence under U.S.S.G. section 2L1.2. Read more... U.S. 9th Circuit Court of Appeals, January 05, 2010 Shrestha v. Holder, No. 08-74751 In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the record's demonstration that petitioner's unresponsiveness was a pattern throughout the hearing was one of the circumstances that the REAL ID Act entitled the BIA to consider in assessing petitioner's credibility; and 2) petitioner's inability to consistently describe the underlying events that gave rise to his alleged fear of persecution was an important factor that could be relied upon by the Immigration Judge in making an adverse credibility determination. Read more... U.S. 9th Circuit Court of Appeals, January 06, 2010 Vasquez-Hernandez v. Holder, No. 05-74392 In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceeding, the petition is denied where petitioner was statutorily ineligible under 8 U.S.C. section 1229b(b) for cancellation of removal based on his conviction for corporal injury to a spouse, an offense described in 8 U.S.C. section 1227(a)(2), and the petty offense exception in 8 U.S.C. section 1182(a)(2) was inapplicable. Read more... U.S. 9th Circuit Court of Appeals, January 07, 2010 Retuta v. Holder, No. 04-74855 Petition for review of the BIA's order removing petitioner from the U.S. based on a prior controlled substance offense is granted where 8 U.S.C. section 1101(a)(48)'s definition of "conviction" did not include criminal judgments whose only consequence was a suspended non-incarceratory sanction. Read more... U.S. 9th Circuit Court of Appeals, January 08, 2010 Singh v. Holder, No. 07-73792 In a petition for review of the BIA's denial of petitioner's application for a hardship waiver of the joint petition requirement for permanent residence, the petition is denied where: 1) the BIA considered hardship to all the family members discussed in petitioner's testimony; 2) because petitioner was a former permanent resident who lacked conditional status when he filed his second and third petitions requesting hardship waivers, he had no status to extend; and 3) even if the immigration judge erred in evaluating the evidence concerning hardship, his errors were rendered harmless by the BIA's de novo review. Read more... U.S. 10th Circuit Court of Appeals, January 05, 2010 US v. De La Cruz-Garcia, No. 08-2298 Defendant's sentence for illegal reentry of a removed alien is affirmed where a Colorado conviction for attempted sexual assault on a child was a "crime of violence" under the Sentencing Guidelines that warranted a sixteen-level sentencing enhancement. 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