22 December 2008
IMMIGRATION CASE LAW

RECENT DECISIONS IN IMMIGRATION LAW

U.S. 2nd Circuit Court of Appeals, December 16, 2008
Mora v. Mukasey, No. 07-3194
Petition for review is denied where the BIA reasonably found that aliens who are inadmissible because they entered the U.S. unlawfully after accruing more than a year of prior unlawful presence are foreclosed from adjusting their status under 8 U.S.C. section 1255(i) on the basis of approved immigrant visa applications.

U.S. 2nd Circuit Court of Appeals, December 18, 2008
Martinez v. Mukasey, No. 07-3031
Where Petitioner’s state drug conviction could have been for nonremunerative transfer of as little as two grams of marijuana, his conviction is the equivalent of a federal misdemeanor under the Controlled Substances Act and therefore not an aggravated felony under the INA.

U.S. 2nd Circuit Court of Appeals, December 19, 2008
Samuels v. Chertoff, No. 052646.
In an immigration matter, petition for review of decision ordering deportation and denying petitioner’s application for relief pursuant to Immigration and Nationality Act section 212(h), 8 U.S.C. section 1182(h), is granted where it was not clear that the Board of Immigration Appeals (BIA) correctly applied Section 1212.7(d) to petitioner’s application.

U.S. 3rd Circuit Court of Appeals, December 19, 2008
Evanson v. Attorney Gen. of the US, No. 07-2509
Petition for review of a BIA order finding petitioner removable for having committed an aggravated felony, contrary to an IJ’s finding and grant of cancellation of removal, is granted where the BIA erred in failing to apply the modified categorical approach set forth in applicable Supreme Court precedent, and thus it erred when it considered petitioner’s sentencing document to determine whether he had been convicted of an aggravated felony.

U.S. 8th Circuit Court of Appeals, December 15, 2008
Bhosale v. Mukasey, No. 07-3505
Petition for review of a denial of relief in an asylum case brought by a married couple from India is denied where substantial evidence supported a finding that the evidence failed to establish past persecution, and petitioners were not likely to face future persecution if they returned to India, as they could safely relocate within India.

California Appellate Districts, December 16, 2008
Mendoza v. Ruesga, No. D051603
In a matter of first impression involving claim against defendant-immigration consultant for violation of the immigration consultants act (ICA), breach of fiduciary duty and intentional infliction of emotional distress, judgment in favor of plaintiffs awarding them damages for breach of fiduciary duty, civil penalties, and attorney fees while barring recovery of treble damages and damages under unclean hands is reversed in part and affirmed in part where: 1) as a matter of law the unclean hands doctrine was inapplicable to plaintiffs’ cause of action under the ICA because it was based on defendant’s violation of statutes intended to protect consumers; 2) there is a right to a jury trial on an ICA cause of action for damages and the ICA specifically provides that a consumer may recover compensatory damages from an immigration consultant and allows for injunctive relief; and 3) conduct by an immigration consultant giving rise to relief under the ICA may also give rise to punitive damages for breach of fiduciary duty or intentional infliction of emotional distress.

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