07 June 2010

IMMIGRATION LAW CASES

*Espinosa-Cortez v. US Attorney General * Castro v. US * Gor v. Holder * Berhane v. Holder * Hernandez v. Holder * Fesehaye v. Holder * Mendoza v. Holder * US v. Adame-Orozco * Ward v. U.S. Atty. Gen. FindLaw’s case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety. To view the full-text of cases you must sign in to FindLaw.com.

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.

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.

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. 




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.

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.

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.

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.

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.

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.

 

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