11 December 2008
Immigration Case Summaries

Recent Immigration Case Law

U.S. 1st Circuit Court of Appeals, December 01, 2008
Fustaguio Do Nasciemento v. Mukasey, No. 072608
Petition for review of decision denying petitioner’s motion to reopen her deportation proceedings is denied where: 1) petitioner failed to account for either the five-year delay in filing her first motion to reopen or the subsequent three-year lapse before the filing of her second motion; 2) the Board of Immigration Appeals made a reasonable factual determination that petitioner failed to demonstrate sufficient diligence to justify equitably tolling the motions deadline; and 3) therefore the court lacked authority to review the BIA’s denial of relief. .

U.S. 1st Circuit Court of Appeals, December 05, 2008
Khan v. Mukasey, No. 081112
Petition for review of decision denying petitioner’s applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) is denied where substantial evidence in the record supported the finding that petitioner proved neither past persecution nor a likelihood of future persecution.

U.S. 2nd Circuit Court of Appeals, December 03, 2008
Severino v. Mukasey, No. 074126
Petition for review of a final order of removal by the Board of Immigration Appeals (BIA) is denied in part and dismissed in part where: 1) petitioner’s status was terminated by law in March 1999; 2) petitioner was therefore ineligible for cancellation of removal; and 3) the burden of proof rested on petitioner in the proceedings before the immigration judge.

U.S. 2nd Circuit Court of Appeals, December 04, 2008
U.S. v. Connolly, No. 063139
Conviction for illegal reentry into the U.S. as a convicted felon in violation of 8 U.S.C. section 1326(b)(2) is affirmed over claim of error that the charge should have been vacated because defendant had established the requisite showing for United States citizenship under 8 U.S.C. section 1403 based on the fact that his biological father was a U.S. citizen and a member of the Army Reserves at the time of defendant’s birth in Panama.

U.S. 2nd Circuit Court of Appeals, December 05, 2008
Aliyev v. Mukasey, No. 071093
Petition for review of decision denying petitioners asylum, withholding of removal and relief under the Convention Against Torture is granted and the Board of Immigration Appeals’ order is vacated where: 1) the BIA failed to use the proper legal framework, i.e., mixed-motive analysis, and likely failed to consider material evidence supporting petitioner’s claim; and 2) petitioner’s testimony, deemed credible in light of the BIA’s reversal of the Immigration Judge’s non-credibility finding, provided ample ground for the conclusion that the BIA was not supported by substantial evidence in its finding that petitioner did not show that the government was unwilling to protect him from private persecution.

U.S. 3rd Circuit Court of Appeals, December 05, 2008
Khouzam v. Attorney Gen. US, No. 07-2926
In an appeal by an Egyptian national seeking to avoid removal, grant of petition for habeas relief is vacated, and petition for review of removal order is granted, where: 1) the district court lacked jurisdiction to entertain the habeas petition after Congress expressly removed such jurisdiction; 2) the petition for review was subject to federal appellate jurisdiction; 3) the lawfulness of DHS’s termination of petitioner’s deferral of removal based on diplomatic assurances by Egypt that he would not be tortured if returned there was a justiciable issue not subject to the political question doctrine or the rule of non-inquiry; 4) a procedure for making an individualized determination, in every case, as to whether particular diplomatic assurances were sufficient to permit removal under the Foreign Affairs Reform and Restructuring Act was not unreasonable; 5) no statutory or regulatory provision either afforded or prohibited procedures to challenge diplomatic assurances; 6) as ! an alien already granted statutory relief from removal, petitioner was entitled to due process prior to removal; and 7) petitioner was not afforded due process to challenge the diplomatic assurances upon which termination or deferral of removal was based.

U.S. 8th Circuit Court of Appeals, November 28, 2008
Bah v. Cangemi, No. 08-1705
In proceedings arising after petitioner successfully petitioned under 28 U.S.C. section 2241 for release from his detention in an immigration case, a denial of petitioner’s request for attorney’s fees under the Equal Access to Justice Act is affirmed where the district court did not abuse its discretion in finding that that the government’s position regarding the detention and the litigation had been substantially justified.

U.S. 9th Circuit Court of Appeals, December 01, 2008
Aguilera-Montero v. Mukasey, No. 06-72956
Petition for review of the BIA’s dismissal of petitioner’s appeal of a denial of his application for adjustment of status is denied where: 1) petitioner is an inadmissible alien and no statutory basis exists to waive his inadmissibility, and thus he could not adjust his status to that of a lawful permanent resident; and 2) neither a state pardon nor his equal protection claim could overcome the fact that Congress has expressly declined to provide a waiver for an inadmissible alien convicted of a crime relating to a controlled substance.

U.S. 9th Circuit Court of Appeals, December 04, 2008
Valencia v. Mukasey, No. 04-76571
Petition for review of a BIA decision affirming petitioner’s order of removal on the basis of a 1984 California conviction for transporting heroin is denied where there is no requirement that an alien be advised of the availability of relief from deportation where there is no apparent eligibility to receive it.

U.S. 9th Circuit Court of Appeals, December 05, 2008
Love Korean Church v. Chertoff, No. 07-55093
Revocation of a visa petition filed by a church on behalf its choir director is vacated and remanded where the revocation rested on an interpretation of 8 C.F.R. section 204.5(m)(2) that was inconsistent with the regulation and on factual findings that were unsupported by substantial evidence.

U.S. 11th Circuit Court of Appeals, December 04, 2008
Lin v. U.S. Attorney Gen., No. 0614404
Petition to review final order denying petitioner’s claims for asylum and withholding of removal under the Immigration and Naturalization Act (INA) is affirmed where the evidence did not compel a finding that petitioner suffered past persecution or had a well-founded fear of persecution on account of his political opinion or any protected ground.

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