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Potdar v. Kiesler, No. 06-2441 (10/10/07)

Petition for Review, order of Bd. of Immigration Appeals. Petition
denied. Petition for review of an order vacating an earlier order to
reopen removal proceedings is denied where the court did not have
jurisdiction to review the denial of petitioner's motion for a
continuance.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s
order denying alien's request to reopen and terminate exclusion hearing
in order to allow alien to proceed on his application for adjustment to
permanent resident status. Alien's motion to reopen was essentially
request for continuance of exclusion proceedings, which, under Ali,
precludes any review of denial by Ct. of Appeals.

Tariq v. Keisler, No. 06-2518 (10/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of Pakistan) where alien alleged that he and
his family were persecuted by creditor while in Pakistan, and that he
would be subject to future persecution based on his Western upbringing
if forced to return to native country. Alien's asylum petition, which
was filed more than 1 year after alien reached age of majority, was
untimely. Moreover, alien could not base application for withholding of
removal on acts of creditor where: (1) creditor was mere private
citizen; (2) alien could not demonstrate that harm done by creditor was
on account of alien's membership in particular social group; and (3)
alien failed to present evidence that his Western upbringing would cause
individuals in Pakistan to attribute any political opinion to him.

Ali v. Gonzales, No. 06-3240 Petition for review of a denial of a
request for a continuance and subsequent motion for reconsideration is
dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping
provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality
Act (INA) generally precludes judicial review of continuance decisions
of immigration judges; and 2) selective prosecution claims by aliens are
largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of
discrimination were insufficient to invoke the exception for outrageous
cases. (9/14/07)

Moab v. Gonzales, No. 06-2710 (9/13/07). Petition for Review, Order of
Bd. Of Immigration Appeals. Petition granted.

Record failed to support Bd.’s finding that alien was not credible in
his asylum and withholding of removal applications where alien alleged
that he endured beatings in his native country (Liberia) because he was
homosexual. While Bd.’s credibility determination was based largely on
fact that alien failed to mention his homosexuality in airport
interview, airport interviews are not always reliable indicators of
credibility, and alien’s alleged homosexuality was consistently
mentioned in his asylum application.

Kadia v. Gonzales, No. 06-1299 (9/7/07). Petition for Review, Bd. of
Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum petition by alien (native
of Cameroon) who alleged that he would be persecuted because of his
political beliefs if forced to return to native country. While IJ found
alien to be incredible based on perceived inconsistencies between his
testimony and his statements made in asylum application, Ct. determined
that said inconsistencies either pertained to trivial facts or were not
in fact inconsistent statements. IJ also improperly questioned alien by
failing to give alien full opportunity to explain events supporting his
asylum claim.

Peralta-Cabrera v. Gonzales, No. 06-2254 (9/7/07). Petition for Review,
Order of Bd. of Immigration Appeals. Petition granted.

Bd. erred in denying alien's motion to reopen asylum proceedings based
on contention that alien was entitled to new hearing because he never
received notice of asylum hearing and because deportation order was
entered in absentia. Record showed that notice was sent via certified
mail to address given by alien, but that, pursuant to post office
policy, post office never attempted to deliver said notice because it
was not addressed to alien "in care of" actual home owner. Ct. further
found that govt., which was aware that alien was staying temporarily
with home owner, had responsibility to ensure that notice would be
delivered in compliance with postal policy.

Kaharudin v. Gonzales, No. 06-3576 (8/31/07). Petition for Review, Order
of Bd. of Immigration Appeals. Petition denied.

Record supported IJ's denial of asylum and withholding of removal
request by alien (native of Indonesia) in claim alleging that
individuals in Indonesia called alien derogatory names, threw rocks and
spat on her, and attempted to touch her buttocks on account of her
Chinese ethnicity. Alien's asylum petition (which was filed 3 years
after her entry in U.S) was untimely, and alleged conduct did not rise
to level of persecution.

Garcia v. Gonzales, No. 06-3275 (8/31/07) Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record supported IJ's denial of asylum claim by alien (native of
Columbia) where alien claimed that he suffered persecution when members
of insurgent group (FARC) threatened him because he had offered
assistance to impoverished widows and orphans. Members of FARC were not
governmental actors, and alien failed to show that Columbian govt.
either condoned actions of FARC or was unwilling to protect alien.
Moreover, alien failed to establish well-founded fear of future
persecution in absence of evidence that Columbian govt. would not
continue to protect alien.

Chen v. Gonzales, No. 06-3189 (8/23/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Bd. did not err in denying asylum petition by alien (native of China)
alleging that he would be subjected to forced sterilization if required
to return to China. Instant petition had been filed after previous
asylum request alleging different grounds had been denied, and after
90-day deadline for filing motion to reopen prior removal proceedings
had expired. Moreover, alien could not assert his marriage to US citizen
as suitable changed circumstance so as to permit filing of instant
second asylum request under 8 USC sec. 1229a(c)(7)(C)(ii) since said
statute permits said filings only for changed circumstances arising in
native country.

Patel v. Gonzales, No. 06-3077 (8/8/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Bd. did not err in denying alien's motion to reopen removal proceedings
after IJ ordered alien removed in absentia for having missed scheduled
hearing. While alien argued that his three prior attorneys were
ineffective for failing to take measures to adequately explain reasons
for missed hearing, alien failed to fulfill requirements under Lozada
with respect to either notifying prior attorneys of said ineffective
assistance of counsel claim, or filing affidavit setting forth detailed
account of actions former counsel agreed to perform on behalf of alien.

Tchemkou v. Gonzales, No. 06-2638 (7/31/07). Petition for Review, Order
of Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum request by alien (native
of Cameroon) alleging that officials in Cameroon severely beat and
imprisoned her on two occasions on account of her political beliefs.
While govt. argued that harassment experienced by alien did not reach
level of persecution since incidents were unrelated over eight-year
period, alien need not establish that incidents concern same issue to
establish persecution. Moreover, instant beatings that caused alien to
be hospitalized over extended period of time were sufficient to
establish persecution.

Zhang v. Gonzales, No. 05-3340 (7/31/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of China) who alleged he was persecuted on
account of his resistance to China's involuntary population control
policies. While alien sufficiently established link between destruction
of his home and his failure to pay fines imposed by Chinese officials
for having child out of wedlock and having child prior to issuance of
permit, said destruction was not sufficiently severe to establish
economic persecution claim where: (1) destruction was not irreparable;
(2) alien's two children were enrolled in Chinese public school without
payment of fine; and (3) alien was gainfully employed as construction
worker while in China.

Tarraf v. Gonzales, No. 06-2835 (7/30/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record supported IJ's denial of asylum claim by alien (native of
Lebanon) where alien claimed that he left his native country because he
had been subject to beatings by members of Hezbollah who wanted to
recruit him to join its cause. IJ could properly base denial on
discrepancies between alien's testimony and statements made in his
asylum application regarding nature and extent of most serious
allegation of persecution, as well as his failure to provide details
surrounding his allegations of torture.

Tadesse v. Gonzales, No. 06-3265 (7/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum petition by alien (ethnic
Eritrean, citizen of Ethiopia) where alien alleged that Ethiopian
officials severely beat her and forced her to leave Ethiopia based on
her Eritrean ethnicity. IJ improperly refused to consider expert opinion
as to validity of alleged Ethiopian document indicating that alien had
been forced to leave Ethiopia, and thus IJ could not base asylum denial
on alien's use of fraudulent document. Record also did not support IJ's
finding that alien's testimony was implausible.

Fedosseeva v. Gonzales, No. 06-3216 (7/5/07). Petition for Review, Order
of Bd. of Immigration Appeals. Petition denied.

IJ did not err in denying asylum petition by alien where alien alleged
that she was "stateless" because she used Soviet Union passport in 1993
to leave Latvia without acquiring citizenship from either Latvia or
Russia. Fact that alien may have been "stateless" was not ground for
granting asylum petition, and alien otherwise gave inconsistent
testimony to support her claim that she endured past persecution in
Latvia, or that she held objective fear of future persecution.

Gutierrez-Almazan v. Gonzales, No. 05-4494 (6/21/07). Petition for
Review, Order of Bd. of Immigration Appeals. Case remanded.

Remand was required in appeal of Bd. order denying alien's pro se motion
to file his brief that was 2 days late in appeal from IJ's order finding
that alien had forfeited right to seek sec. 212(c) waiver in removal
proceedings based on alien's guilty plea to underlying charge of
criminal sexual assault of minor. Bd. failed to articulate adequate
basis for denial of alien's motion, and record otherwise suggested that
Bd. had treated inconsistently other extension requests by alien.

Chen v. Gonzales, No. 06-3980 (6/11/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted.

Record failed to contain sufficient evidence to support IJ's denial of
asylum request by alien (native of China) alleging that she would be
forced to undergo sterilization should she be forced to return to China
due to her wish to have more than her current two children. J.
Easterbrook finds that Chinese women who have had children in the US do
not face a substantial risk of either compulsory abortions or
sterilization upon being returned to China. Affidavits that related
personal experiences or tales about sterilizations in Fujian would not
establish that a person in Chen's position faces a material risk that
this would happen to her. Remand was required for Bd. to determine
actual birth-control policy of Fujian province in terms of either forced
sterilization or extent of economic sanctions for having more than two
children.

Zahren v. Gonzales, No. 06-1301 (5/17/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (West Bank Palestinian) even though alien argued that
he would be subjected to death threats if forced to return to his
homeland due to his conversion to Christianity. Conditions of alien's
homeland were irrelevant where (in absence of alien's designation of
return country) removal order specified that return would be to Jordan,
and where record was otherwise silent as to whether alien would suffer
future persecution in that country. Alien could, though, seek to reopen
proceedings should Jordan not accept alien and DHS attempts to return
alien to West Bank.

Jiang v. Gonzales, No. 06-3142 (5/14/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum and withholding of
removal requests by alien (native of China) where IJ's conclusion that
alien's claim that he was persecuted for his religious beliefs was not
credible was improperly based on IJ's own speculation and conjecture as
to how much people in China actually should know about Christianity.

Fonseca-Sanchez v. Gonzales, No. 06-2387 (4/13/07). Petition for Review,
Order of Bd. of Immigration Appeals. Petition dismissed.

Ct. of Appeals lacked jurisdiction to consider appeal of Citizen and
Immigration Service (CIS) denial of alien's request for interim relief
under "U" visa statute to avoid removal order. Ct. of Appeals'
jurisdiction under 8 USC sec. 1252 is limited to direct review of final
orders of removal and matters decided by Immigration and Customs
Enforcement (ICE) in course of removal proceedings, and Ct. lacked
jurisdiction since: (1) alien's request for interim relief came after
ICE's issuance of Final Administration Removal Order (FARO); and (2)
alien failed to rebut charges in Notice of Intent or assert request for
interim relief prior to issuance of FARO.

Skorusa v. Gonzales, No. 06-2719 (4/5/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition dismissed.

In hearing on alien's application for adjustment of status, IJ did not
err in failing to direct DHS to turn over videotape of alien's attempt
to illegally purchase permanent resident stamp, even though IJ's denial
of application was based on alien's attempted purchase of said stamp.
While alien argued that failure to produce said videotape denied him
ability to present all relevant evidence at his hearing, alien's counsel
made no request for continuance to obtain said videotape, and alien was
otherwise able to cross-examine DHS witness. Moreover, IJ could properly
find that DHS did not violate terms of subpoena when it failed to
produce said videotape where record showed that DHS did not actually
possess said videotape.

Floroiu v. Gonzales, No. 06-1333 (4/2/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted.

Bd. erred in affirming IJ's denial of request for withholding of removal
submitted by aliens (natives of Romania) based on claim that they would
suffer from religious persecution as Seventh-day Adventists if forced to
return to Romania. IJ demonstrated bias against aliens by basing denial
in part on improper observation that aliens were religious zealots who
encouraged negative treatment/harassment from religious majority due to
aliens' persistent evangelical attempts within native country.

Sharashidze v. Gonzales, No. 06-2661 (3/16/07). Petition for Review,
Order of Bd. of Immigration Appeals. Petition denied.

Bd. did not err in deporting petitioner, asylee from Georgia, based on
petitioner's Illinois conviction for indecent solicitation of sex act
with minor where said conviction qualified as "aggravated felony" as
defined under 8 USC sec. 1101(a)(43)(A). Ct. rejected petitioner's claim
that govt. offered insufficient evidence that Illinois conviction
involved minor.

Adekpe v. Gonzales, No. 05-3951 (3/14/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted.

Record failed to contain sufficient evidence to support IJ's denial of
asylum application of alien (native of Togo) where basis for denial was
IJ's finding that alien's claim that he was persecuted on account of his
political beliefs was not credible. Majority of inconsistencies in
alien's testimony cited by IJ did not pertain to core facts supporting
alien's persecution claim, and IJ failed to consider alien's version of
facts in light of evidence as whole.

Johnson v. Gonzales, No. 06-2281 (2/28/07). Petition for Review, Order
ofBd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support Bd.'s order deporting
alien based on alien's guilty plea to 1992 drug conspiracy charge where
said conviction qualified as "aggravated felony" for purposes of
supporting deportation order. Moreover, alien was not entitled to seek
waiver relief under sec. 212(c) of INA since: (1) sec. 440(d) of AEDPA
precluded alien from obtaining said relief; (2) Executive Office for
Immigration Review enacted rule setting deadline of April 26, 2005 for
filing motions seeking consideration of sec. 212(c) relief for those
aliens who pleaded guilty to offenses that qualified as "aggravated
felonies" prior to 1996 enactment of AEDPA; and (3) alien's February 24,
2006 motion for consideration of 212(c) waiver relief was too late.

Apouviepseakoda v. Gonzales, No. 05-3752 (2/2/07). Pet. for Review,
Order of Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum,
withholding of removal and CAT relief when IJ found that alien (native
of Togo) not credible with respect to claims of physical abuse and
persecution by native officials. Alien's claim of physical beating was
inconsistent with photographs of alien, and alien's ability to go to and
from Togo even after alleged beating belied alien's claim that she was
persecuted on account of her association with opposition political
party. Moreover, record suggested that any persecution was of alien's
husband and not alien. (Dissent filed.)

Boctor v. Gonzales, No. 05-2530 (1/24/07). Appeal, Petition for Review,
Order of Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum and withholding of
removal claims by alien (Coptic Christian) where alien alleged that he
was persecuted by Muslim extremists in his native country of Egypt.
While IJ found that persecution was not based on alien's religion,
record showed that physical assaults and death threats were based on
assailants' anger at conversion of alien's wife from Islam to
Christianity. On remand, govt. has burden to show either that alien's
fear of future persecution is unfounded or that alien could relocate to
other parts of Egypt to avoid similar persecution.

Kebe v. Gonzales, No. 05-4437 (1/19/07). Petition for Review, Order of
Bd. of Immunization Appeals. Petition granted.

Bd. erred in denying alien's motion to reopen asylum proceedings where
alien (native of Ethiopia) alleged that he was persecuted and feared
future persecution based on his membership in opposition political
party. Remand was required since alien presented new evidence of changed
country conditions following 2005 elections with respect to native
govt.'s alleged imprisonment, torture and killing of members of
opposition political parties, and Bd. failed to discuss or analyze
alien's new evidence of govt.'s increased opposition.

Valere v. Gonzales, No. 05-2968 (1/11/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Bd. did not err in finding that alien was removable based on his guilty
plea to crime of sexual abuse of minor, and that alien was not entitled
to any waiver of said removal. Alien was removable based upon his
conviction and was not eligible for sec. 212(c) waiver of removal since
there was no statutory counterpoint to instant offense in enumerated
grounds for inadmissibility in sec. 212(a) of INA.

Gomes v. Gonzales, Nos. 03-3020 & 04-1018 Cons. (1/11/07). Petition for
Review, Order of Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum claim by alien (native of
Bangladesh) who alleged that certain Muslim fundamentalists in native
country persecuted him on account of his Christian religion. IJ had not
explained his conclusion that alien failed to establish that he had been
targeted because of his religious beliefs even though alien testified
concerning various attacks while in route to religious meetings, and
heads of Christian organizations gave corroborative statements.
Moreover, IJ gave undue weight to State Dept. report indicating
relatively few instances of religious persecution.

Mema v. Gonzales, No. 05-2570 (1/11/07). Petition for Review, order of
Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum request by alien (native
of Albania) alleging that officials from native country persecuted him
in retaliation for his and his family's association with opposition
political party. IJ's negative credibility determination of alien's
claim was not based on specific cogent reason, and IJ also failed to
address as part of alien's fear of future persecution claim evidence
that said authorities had persecuted alien's identical twin brother.

Guevara v. Gonzales, No. 05-2696 (1/8/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Bd. did not apply wrong legal standard when it reversed IJ's order
finding that alien was removable due to existence of his state sexual
assault conviction, but that alien was entitled to discretionary waiver
of removal on grounds of rehabilitation and economic hardship. While Bd.
ultimately found that alien was not entitled to waiver, relative weight
of alien's rehabilitation was not "factfinding" subject to clearly
erroneous standard of review, but rather was matter of discretion
subject to de novo review by Bd. Ct. also rejected alien's claim that
power to enter waiver decision rested solely with IJ, and not with Bd.

Doumbia v. Gonzales, No. 05-4683 (1/4/07). Petition for Review, order of
Bd. of Immigration Appeals. Petition denied.

IJ did not err in considering results of State Department investigation
into validity of three summons proffered by alien or in considering DHS
forensic report that concluded that alien's membership card in political
party was forgery when denying alien's asylum request. Both pieces of
evidence were probative, and alien presented no evidence to raise doubt
about validity of said evidence other than to provide unsubstantiated
assertion that author of investigation report was biased. Moreover,
record supported IJ's finding that alien was not credible.

Dababneh v. Gonzales, No. 05-4001 (12/19/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition denied.

IJ had requisite jurisdiction to initiate alien's removal proceeding
even though instant Notice to Appear, filed within six weeks of alien's
10th anniversary of entry into U.S., did not specify date and time of
his initial hearing. Govt. filed Notice to Appear with Immigration Court
within relevant 10-year period and sent alien specific information
regarding date and time of hearing on next day. Fact that govt. used two
documents to initiate removal proceedings and to provide alien with
specific date for hearing was jurisdictionally immaterial.

Ikama-Obambi v. Gonzales, No. 06-1402 (12/11/06). Petition for Review,
Order of Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of request by alien (native of
Congo) for withholding of removal even though IJ doubted truth of
alien's claim that her father was head of opposition party in Congo.
Remand was required since IJ failed to make explicit negative
credibility finding so as to support IJ's demand that alien supply
corroboration regarding her claim as to her father's political
activities.

Padilla v. Gonzales, No. 05-2697 (12/7/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition dismissed.

Ct. of Appeals treated alien's appeal from Dist. Ct.'s denial of his
habeas petition seeking order directing Dept. of Homeland Security to
terminate its removal proceedings as petition for review from Bd. of
Immigration Appeals. Moreover, Ct. of Appeals dismissed said petition
for lack of jurisdiction since: (1) alien sought order finding that he
was now admissible to U.S. where state court had vacated two prior
convictions that formed basis for removal; and (2) alien was required to
exhaust his administrative remedies in terms of filing with Bd. of
Immigrations Appeals motion to reopen removal proceedings based on
vacated state convictions prior to seeking review with Ct. of Appeals.

Pavlyk v. Gonzales, No. 05-4444 (12/4/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Ct. of Appeals lacked jurisdiction to consider Bd.'s denial of alien's
asylum request where IJ found that said claim was untimely as being
filed more than one year after alien entered U.S. Moreover, alien
(prosecutor living in Ukraine) failed to show that he was entitled to
withholding of removal stemming from any alleged threats he received
while performing his prosecutor duties since said threats allegedly made
by private citizen was not based on his political opinion or his
membership in social group.

Gutnik v. Gonzales, No. 05-3007 (11/29/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition granted and denied in part and
rem'd.

Alien (native and citizen of Ukraine) was entitled to consideration of
his asylum claim where IJ erred in finding that such consideration was
foreclosed due to alien's state conviction for heroin possession, which
IJ believed was "aggravated battery" under 8 USC sec. 1227(a)(2)(A)(ii).
Under Gonzales-Gomez, 441 F.3d 532, alien's conviction could not be
viewed as aggravated battery since said crime was only punishable as
misdemeanor at federal level. Moreover, on remand Bd. must consider
whether alien's four convictions for retail theft and heroin possession
outweighed his fear of future persecution if forced to return to
Ukraine.

Bejko v. Gonzales, No. 05-3872 (11/13/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
claim by alien (native of Albania) even though alien alleged that he was
subjected to arrest and incarceration by native country officials based
on his membership in minority political party. Alleged arrest and
two-week incarceration were insufficient to establish persecution by
native officials where alien was given minimum level of food and water
and did not require medical attention upon his release. Moreover,
alleged threat to alien's home by third-party did not otherwise
establish past persecution where there was no corroborative evidence to
show that threat would have been carried out. Also, State Dept. reports
refuted alien's claim that he would be subjected to future persecution
upon any return to native country.

Pjetri v. Gonzales, No. 05-3871 (11/13/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition dismissed.

Ct. of Appeals lacked jurisdiction to consider appeal of Bd.'s denial of
asylum request by alien (native of Albania) alleging that he was victim
of persecution based on his membership in Association of Politically
Persecuted Persons in Albania. Alien failed to exhaust his
administrative remedies by neglecting to present to Bd. of Appeals his
current arguments on appeal, i.e., IJ's alleged failure to inform him of
his right to have counsel, to present evidence or to seek relief from
removal.

Ali v. Achim, Nos. 05-1194 et al. Cons. (11/6/06). Petitions for Review,
Orders of Bd. of Immigration Appeals. Petitions granted and denied in
part and rem'd.

Bd. did not err in finding that alien's Wisconsin conviction for
substantial battery with intent to cause substantial bodily harm
constituted "particularly serious crime" so as to make him ineligible
for asylum and withholding of removal. However, record supported alien's
claim seeking deferral of removal under Convention Against Torture where
alien experienced series of incidents of clan-based harm and torture in
native country. Remand, though, was required to determine whether alien,
if returned to Somalia, would face said torture at instigation or
consent of public officials.

Ahmed v. Gonzales, No. 05-2071 (11/2/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Bd. did not err in affirming IJ's denial of asylum request by alien
(member of Midgan clan in Somalia) even though alien argued that he was
victim of past persecution and held well-founded fear of future
persecution. Alien failed to establish that he suffered past persecution
where record shows that alien was never actually harmed or was
threatened for reasons unrelated to his clan membership. Alien also
failed to show that members of his clan were subjected to systematic
effort to kill or severely injure them.

Balliu v. Gonzales, No. 04-1468 (10/27/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition granted.

In an asylum case involving a claim that Serbian officials persecuted
petitioner in retaliation for his participation in a pro-Albanian
political organization, a petition for review of an order of removal is
granted where the immigration judge misallocated the burden of
demonstrating a well-founded fear of future persecution.

Bd. erred in affirming IJ's denial of asylum request by alien (native of
Kosovo) who claimed that Serbian officials persecuted him in retaliation
for his participation in pro-Albanian political organization. IJ
improperly placed burden on alien to establish that current conditions
in native country continued to present threat to him where IJ had
previously found alien credible as to claims of past persecution.

Ahmed v. Gonzales, No. 05-3965 (10/16/06). Pet. for Review, Order of Bd.
of Immigration Appeals. Petition granted. Bd. erred in affirming I.J.
order denying alien's request for continuance of removal proceedings
where alien alleged that he needed more time to pursue adjustment of
status to become permanent resident based on either family-based visa
petition or on labor certification process. Reason given by I.J. for
denial of continuance, i.e., that alien had not yet started labor
certification process was insufficient because it failed to address
effect of alien's family-based visa petition. Fact that at time of
removal hearing alien had not applied for adjustment of status based on
family-related petition because immigrant visa was not immediately
available to him was irrelevant.

Petrov v. Gonzales, No. 05-4696 (10/6/06). Petition for Review, Order of
Bd. of Immigration Appeals. Appeal dismissed. Ct. of Appeals lacked
jurisdiction to consider alien's appeal of Bd.'s order refusing alien's
request for withholding of removal where basis for Bd.'s order was
alien's conviction on immigration fraud charge that constituted
"aggravated felony" under 8 USC sec. 1252(a)(2)(C). Ct. rejected alien's
claim that his conviction qualified for treatment as not "particularly
serious crime" under 8 USC sec. 1231(b)(3)(B)(ii) that would have made
him eligible for withholding of removal.

Ayi v. Gonzales, No. 05-3320 (8/21/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition granted. Record failed to support
IJ's denial of asylum request by alien (native of Togo) based on claim
that alien was held in captivity and tortured by govt. officials on
account of his political activity. IJ based negative credibility
findings on speculation and on improper requirement that alien establish
knowledge of govt. officials as to aliens' ghostwriting activities even
though alien participated in other opposition activities, and where
alien otherwise established that he was author of opposition articles.
Fact that alien had hiatus from political activity did not diminish
claim that he was victim of persecution.

Youkhana v. Gonzales, No. 04-1820 (8/22/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition granted. Record failed to
contain sufficient evidence to support IJ's denial of asylum request by
alien (native of Iraq) where alien alleged that he was persecuted on
account of his political activities and Christian religion. While
changed country conditions supported denial as to alien's political
activities, remand was required because IJ failed to examine said
request based on alien's religion. Moreover, various State Dept. reports
suggested that Iraqi govt. was not able to protect Christians from
harassment.

Gutierrez v. Gonzales, No. 05-2011 (8/16/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition denied. Record contained
sufficient evidence to support Bd.'s removal order even though said
evidence came from alien's application for permanent residency that had
no chance of being successful. Ct. rejected alien's argument that govt.
should have been equitably estopped from deporting him because it
committed affirmative misconduct when it accepted obviously deficient
application rather than returning it unfiled to alien.

Hadayat v. Gonzales, No. 04-4195 (8/15/06). Petition for Review, Order
of Bd. of Immigration Appeals. Petition denied. In removal proceedings
based on alien's overstay of visitor visa, Bd. did not err in denying
alien's motion for reconsideration of denial of alien's motion to reopen
removal proceedings where alien, who had previously prevailed in visa
petition, had initially agreed to voluntary departure, but failed to
leave country by departure deadline. Departure deadline is not stayed
pending resolution of motion to reopen, and unavailability of visa was
sufficient ground for Bd. to affirm IJ's removal order and denial of
alien's motion to reopen removal proceedings.

Chen v. Gonzales, No. 04-1126 (8/8/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied. Record contained sufficient
evidence to support IJ's denial of asylum request by alien (Chinese
native) alleging that he feared persecution for resisting govt.'s
one-child policy if forced to return to China. Alien's expulsion from
school for voicing opposition to birth-control policy was insufficient
by itself to constitute past persecution, and alien could not use
girlfriend's forced abortion to support his claim of past persecution.

Pramatarov v. Gonzales, No. 05-2138 (7/27/06). Petition for Review,
Order of Bd. of Immigration Appeals. Petition granted. Record failed to
support Bd.'s denial of alien's asylum request where alien had alleged
that he had been persecuted in Bulgaria because of his Roma ethnicity.
IJ's finding that alien was not credible was based on factual error,
speculation and errors of logic, and record suggested that Bulgarian
govt. officials complied with beatings allegedly suffered by alien.

Huang v. Gonzales, No. 05-1711 (7/14/06). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied. Record contained sufficient
evidence to support IJ's denial of alien's asylum request based on claim
that Chinese officials forced alien's wife to undergo involuntary
abortion. IJ was entitled to find that alien's testimony was not
credible where, according to State Dept. report, hospital certificate
used by alien to support claim of forced abortion actually indicated
that subject abortion was voluntary.

O'Sullivan v. U.S. Citizenship and Immigration Services, No. 05-2943
(7/6/06). Appeal, N.D. Ill., E. Div. Aff'd. Dist. Ct. did not err in
affirming denial of alien's petition for naturalization that had been
filed during pendency of removal proceedings even though alien qualified
for treatment as veteran who served during period of military
hostilities. Basis for removal was existence of cocaine distribution
conviction that prevented alien from establishing "good moral character"
element in naturalization petition, and aggravated felony bar in 8 USC
sec. 1101(f)(8) applies to wartime veterans seeking naturalized
citizenship.

Gonzales-Gomez v. Achim (March 22, 2006) (U.S. Supreme Court Transcript, Lopez v. Gonzalez)

The 7th Circuit rejected Yanez. Download 7th Circuit case

Court limits deportation for drug crimes-Lopez v. Gonzales December 05, 2006

  • Majority opinion
  • Dissent

    The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime
    that is a felony under state law but only a misdemeanor under federal
    law is not kind the kind of offense that triggers potential deporation.
    Justice David H. Souter wrote the opinion for the Court in Lopez v.
    Gonzales (05-547). Justice Clarence Thomas dissented.

Issue: whether a state-law felony that would be punishable only as a
misdemeanor by federal law is nevertheless an “aggravated felony” ?

Posner: "The “yes” answer, here urged by the government, is a strained
reading of the statutory language, is inconsistent with the government’s
general position regarding the definition of “aggravated felony,” is
inconsistent with the interest in uniform standards for removal, and is
inconsistent with the legislative history. The only consistency that we
can see in the government’s treatment of the meaning of “aggravated
felony” is that the alien always loses.

Allowing cancellation of removal to depend on how severely a particular
state punishes drug crimes would have the paradoxical result of allowing
states, in effect, to impose banishment from the United States as a
sanction for a violation of state law. For then if a state made the
possession of one marijuana cigarette a felony, which it is perfectly
entitled to do, it would be in effect annexing banishment from the
United States to the criminal sanction. States do not have the power to
banish people from the United States."

Posner applied the April 2005 district court ruling, 372 F. Supp. 2d
1062; 2005, that the Hypothetical Federal Felony approach applied;  a
state drug conviction was an aggravated felony only if the elements of
the crime would constitute a felony under federal drug laws. "Aggravated
felony," as defined under 8 U.S.C.S. ß  1101(a)(43)(B) of the INA,
included a "drug trafficking crime" as defined in 18 U.S.C.S. ß  924(c),
which in turn was defined as any felony punishable under the Controlled
Substances Act (CSA), 21 U.S.C.S. ß  801 et seq. The CSA generally
punished first-time simple possession as a misdemeanor. The legislative
history of 18 U.S.C.S. ß  924(c) and the INA did not indicate that
Congress intended for minor drug possession convictions to be aggravated
felonies. Also, the uniformity requirement under U.S. Const. art. I, ß 
8, cl. 4 weighed against reliance on varying state laws.

Petitioner Gonzales-Gomez entered the United States from Mexico without
inspection in January 1989 and became a lawful permanent resident of the
United States on September 12, 1995. On November 29, 2000,
Gonzales-Gomez was convicted of unlawful possession of a controlled
substance, namely cocaine. Under Illinois law, Gonzales-Gomez's drug
conviction for unlawful possession is classified as a felony. See 720
ILCS 570/402(a).

On February 12, 2001, the Immigration and Naturalization Service
("INS"), now the Department of Homeland Security, Immigration and
Customs Enforcement, charged Gonzales-Gomez with deportability, for
having been convicted of a violation related to a controlled substance.
See 8 U.S.C. § 1227(a)(2)(B)(i). Subsequently, the INS added an
additional charge, alleging that Gonzales-Gomez was also deportable for
having been convicted of an "aggravated felony" based upon the Illinois
felony conviction. 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is
convicted of an aggravated felony at any time after admission is
deportable . . ."); § 1101(a)(43)(B) (defining "aggravated felony" to
include "a drug trafficking crime (as defined in section 924(c) of Title
18)"). After hearings on his case, the immigration judge found that
Gonzales-Gomez had been convicted of unlawful possession of a controlled
substance and, therefore, was subject to deportation. The judge also
found that following the BIA's decision in In re Yanez-Garcia, 23 I&N
Dec. 390 (BIA 2002), Gonzales-Gomez's state drug conviction is
considered a drug trafficking crime, as defined in section 924(c) of
Title 18, and, therefore, an aggravated felony. Accordingly,the
immigration judge found that Gonzales-Gomez was ineligible to apply for
relief from removal. See 8 U.S.C. § 1229b(a)(3) (allowing certain
permanent residents to apply for relief from removal, but excluding
those who have been convicted of an "aggravated felony").

Gonzales-Gomez filed a timely notice of appeal to the BIA, which
affirmed the decision of the immigration judge without opinion.
Gonzales-Gomez then filed an appeal to the Seventh Circuit, which issued
an order transferring the case to our court in light of their recent
decision in Yanez-Garcia and Masok v. Ashcroft, 388 F.3d 280 (7th Cir.
2004) (holding that a circuit court does not have jurisdiction to
determine on a petition for review whether a state law felony drug
possession conviction is an "aggravated felony," rendering an alien
ineligible for cancellation of removal on a petition for review, and
transferring the case to the district court where jurisdiction exists in
a petition for writ of habeas corpus).

Applying to Hypothetical Federal Felony approach to the instant case,
the District court found that under the federal analog, Gonzales-Gomez
was guilty of a simple possession of a controlled substance under 21
U.S.C. § 844. That crime is categorized as a misdemeanor under federal
law because it is punishable by up to one year in prison. Id., 18 U.S.C.
§ 3559(a). Because Gonzales-Gomez's crime does not constitute an
aggravated felony, he was eligible to apply for cancellation of removal
under 8 U.S.C. § 1229b(a)(3), and the immigration judge and the BIA
erred in finding Gonzales-Gomez ineligible for such relief.

Robledo-Gonzales v. Ashcroft, No. 02-2475 (7/25/03). Appeal, N.D. Ill.,
E. Div. Aff'd. (7th Cir.2003)

1. Dist. Ct. did not err in dismissing alien's habeas petition seeking
release from incarceration on ground that deportation order underlying
his conviction was contrary to law; alien failed to name as respondent
warden of facility where alien was incarcerated at time of filing of
petition. Ct. rejected alien's argument that Attorney General should
have been considered legal custodian because he controls deportation and
criminal processes for enforcement of immigration laws.

2. Bd. of Immigration Appeals also did not err in denying alien's
motion to reopen proceedings on grounds that Bd. erred when it denied
alien's application for discretionary relief under §212(c); denial was
warranted since Ct. of Appeals, as opposed to Bd., is appropriate forum
to consider said issue. Moreover, basis for Bd.'s denial (i.e., 8 CFR
§ 3.44, which precludes from applying for §212(c) relief aliens with
final orders of deportation who illegally return to U.S.) did not
violate Equal Protection Clause.

Gill v. Ashcroft, No. 02-2994 (7/8/03). Petition for Review, Order of
Bd. of Immigration Appeals. Appeal dism'd. (7th Cir.2003).

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal
order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior
Illinois state court conviction for possession of cocaine that was
ultimately dismissed upon alien's successful completion of probation
period; under 8 USC §1101(a)(48)(A), alien's state court proceeding
qualified as "conviction" that precluded alien from applying for
discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He
was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f)
provides that, if a first offender completes this probation without
incident, “the court shall discharge the person and dismiss the
proceedings against him.” The statute continues: A disposition of
probation is considered to be a conviction for the purposes of imposing
the conditions of probation and for appeal, however, discharge and
dismissal under this Section is not a conviction for purposes of this
Act or for purposes of disqualifications or disabilities imposed by law
upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that
“ 410 probation” was a “conviction” under the text of §1101(a)(48)(A). The
7th Circuit declined to follow the holding of Lujan- Armendariz, "which
elevated an abandoned administrative practice over a statutory text."
222 F.3d 728 (9th Cir. 2000).

Two principal problems: How to classify diversionary dispositions such
as “410 probation” that impose some restraint on liberty but withhold
formal adjudication of guilt; second, how to classify convictions later
expunged or covered by some other device for restoring the person’s
civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board
held that the criteria of §1101(a)(48)(A) apply to all offenders, no
matter how they would have been treated if they had been charged in
federal court. The 7th Circuit adopted the Board’s "straightforward"
application of §1101(a)(48)(A), which abolished, for purposes of
immigration law, any distinction between the treatment of deferred
dispositions in first and successive drug-possession offenses. The Board
has declined to acquiesce in Lujan-Armendariz and will not apply it
outside the ninth circuit.

Bhatt v. Bd. of Immigration Appeals, U.S. INS, U.S. Department of
Justice, No. 02-1803 (5/12/03). Appeal, N.D. Ill., E. Div. Rem'd with
directions. (7th Cir. 2003).

Dist. Ct. erred in denying on merits defendant's motion to dismiss
plaintiff-alien's mandamus action seeking to compel defendant to hear
plaintiff's motion to reconsider defendant's order affirming plaintiff's
deportation; Dist. Ct. lacked jurisdiction under 8 USC §1252(g) to
consider plaintiff's request of mandamus relief.

For all practical purposes, Bhatt’s mandamus action to compel
the BIA to reconsider its decision is no different from an appeal from
the BIA’s decision to adjudicate—or, in this case, not to adjudicate—his
motion to reconsider. See, e.g., Chapinski v. Ziglar, 278 F.3d 718 (7th
Cir. 2002) (noting that where “judicial review of a decision to commence
proceedings is barred, it follows that section 1252(g) also precludes
judicial review of the Attorney General’s decision not to commence
removal proceedings”). As this Court recently noted in Gomez-Chavez v.
Perryman
, 308 F.3d 796 (7th Cir. 2002), Bhatt “may not avoid the §
1252(g) bar by the simple expedient of recharacterizing a claim as one
challenging a refusal to act.”

Awad v. Ashcroft, No. 02-1744 (5/02/03). Petition for Review, Order of
Bd. of Immigration Appeals. Aff'd. Seventh Circuit.

Bd. did not abuse discretion in denying alien's request to reopen her
suspension of deportation application; Ct.of Appeals lacked jurisdiction
to consider whether alien met seven-year continuous physical presence
requirement since alien failed to raise issue before Bd. Moreover, Bd.
could properly deny alien's motion to reopen where alien's 3-sentence
argument in support of her claim that return to native country would
subject her to future persecution failed to establish prima facie case
of eligibility for asylum.

Gomez-Diaz v. Ashcroft, No. 02-1446 (4/7/03). Petition for Review, Bd.
of Immigration Appeals. Aff‚d Seventh Circuit

Bd. did not err in affirming IJ decision holding that alien was
removable due to his 1979 (burglary) and 1992 (possession of narcotics
with intent to deliver while armed) convictions, which qualified as
"aggravated felonies"; while alien asserted that he was no longer alien
pursuant to terms of Child Citizenship Act, alien was not covered under
said Act since he was already over 18 years old at time of Act's
effective date. Moreover, Bd. could properly look to alien's 1979 and
1992 convictions to determine his eligibility for removal even though
said convictions occurred before enactment of IIRIRA.

MANDAMUS ACTION

Bhatt v. Bd. of Immigration Appeals, U.S. INS, U.S. Department of
Justice No. 02-1803 (5/12/03). Appeal, N.D. Ill., E. Div. Rem'd with
directions.Seventh Circuit.

Dist. Ct. erred in denying on merits defendant's motion to dismiss
plaintiff-alien's mandamus action seeking to compel defendant to hear
plaintiff's motion to reconsider defendant's order affirming plaintiff's
deportation; Dist. Ct. lacked jurisdiction under 8 USC §1252(g) to
consider plaintiff's request of mandamus relief.

Ahmed v. Dept. of Homeland Security, No. 02-1467 (5/10/03). Appeal, N.D.
Ill., E. Div. Aff‚d. as modified. Seventh Circuit.

Dist. Ct. did not err in dismissing alien's mandamus action seeking to
compel INS to process her visa application under diversity visa program;
at time alien had filed mandamus action INS did not have power to grant
visa application because said program had expired.

Gomez-Chavez v. Perryman, Nos. 01-3068 & 01-3454 Cons.
(7th Cir.10/24/02) Decision of I.N.S. Affirmed. Dist. Ct. did not err in finding
that it lacked jurisdiction under 8 USC §1252(g) to consider alien's
mandamus action seeking to compel INS to adjust his status by acting on
his I-212 application for permission to reapply for admission into U.S.
and thereby avoid summary removal consequences arising out of alien's
violation of prior removal order; 8 USC §1252(g) bars judicial review of
discretionary decisions to execute removal orders
, and alien did not
dispute that he had met all requirements under 8 USC §1231(a)(5) for
summary removal.

Hakim Iddir, et al. v. Perryman, District Director, Chicago INS; COLIN L. POWELL, in his official
capacity as United States Secretary of State; UNITED STATES DEPARTMENT
OF STATE; and the UNITED STATES OF AMERICA, Defendants--Appellees. 301
F.3d 492; 2002 U.S. App. LEXIS 15654 May 15, 2002, Argued August 6,
2002, Decided

District courts have mandamus jurisdiction to "compel an officer or
employee of the United States or any agency thereof to perform a duty
owed to the plaintiff." 28 U.S.C. § 1361. Mandamus relief will be
granted if the plaintiff can demonstrate that the three enumerated
conditions are present: (1) a clear right to the relief sought; (2) that
the defendant has a duty to do the act in question; and (3) no
other adequate remedy is available. Scalise v. Thornburgh, 891 F.2d 640,
648 (7th Cir. 1989).

Each of the immigrants applied for permanent resident visas through the
DV Lottery Program and all were denied visas, primarily because the INS
failed to adjudicate their cases within the mandatory time period.
The immigrants filed two separate actions for writs of mandamus with the
district court to compel the INS to adjudicate their cases, and the
district courts denied the writs. Affirming the denial, the court held
initially that the district court had jurisdiction to hear the writs
because the INS had not adjudicated the immigrants' cases and thus had
not reached a judgment and decision or action. 8 U.S.C.S. §
1252(a)(2)(B)(i) only barred review of INS discretionary decisions that
granted or denied relief. The court held that the writs of mandamus were
properly denied because, although the INS had an obligation to
adjudicate the immigrants' status under 8 U.S.C.S. § 1153, the fact that
the INS failed to adjudicate their status within the fiscal year in
which the immigrants were selected for visa status rendered the
immigrants' request for relief illusory. The INS did not have authority
to issue visas once the fiscal year in which the immigrants were
selected had ended.

OUTCOME: THE SEVENTH CIRCUIT affirmed the decisions of the district
court which denied the immigrants' writs of mandamus to compel the INS
to adjudicate their visa status.

Definition of Aggravated Felony Retroactive:

Flores-Leon v. INS No. 00-1128 (7th Cir. Nov. 14, 2001) the court rejected the argument
that IIRIRA's definition of aggravated felony did not apply to convictions before the effective date of IIRIRA.

Driving while intoxicated ("DWI") conviction is not a "crime of violence"

BAZAN-REYES, JOSE A. v. INS

Nos. 99-3861 et al. Cons. (7/5/01,Seventh Circuit). Pet. for Review,
Order of Bd. of Immigration Appeals. Vac’d and rem’d. INS and the
BIA erred in finding that petitioners' Illinois convictions for
driving while intoxicated ("DWI") are “crimes of violence” for
purposes of removal under Immigration and Naturalization Act.
Accordingly, deportation orders were vacated. (Bazan-Reyes and
Gomez-Vela were convicted of DWI and aggravated DUI respectively,
while Maciasowicz was convicted of homicide by intoxicated use of a
vehicle.)

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In re Luis Manuel RAMOS, 23 I&N Dec. 336 (BIA 2002) Decided April 4,
2002

(1) In cases arising in circuits where the federal court of appeals has
not decided whether the offense of driving under the influence is a
crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be
considered a crime of violence if it is committed at least recklessly
and involves a substantial risk that the perpetrator may resort to the
use of force to carry out the crime; otherwise, where the circuit court
has ruled on the issue, the law of the circuit will be applied to cases
arising in that jurisdiction.
(2) The offense of operating a motor vehicle while under the influence
of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1)
of the Massachusetts General Laws is not a felony that, by its nature,
involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense
and is therefore not a crime of violence. Matter of Puente, Interim
Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision
3341 (BIA 1998), overruled.

For a good review of immigration consequences of DUI convictions read attached memo to BIA: Re-visiting and vacating Matter of Puente and Matter of Magallanes, from American Immigration Law Foundation, February 14, 2002. (click here for letter and BIA response)

PSMV IS A THEFT OFFENSE: Hernandez-Mancilla v. INS, No. 99-3608 (4/11/01).

Pet. for Rev., Order of Bd. of Immigration Appeals. Petition dismíd.

Bd. did not err in finding alien deportable for being convicted of
possession of stolen motor vehicle under Illinois law since said
conviction qualified as "theft" offense under 8 USC
Sec.1101(a)(43)(G); record showed that alien's conviction entailed
knowing exercise of control over another's property without consent.

Misdemeanor Sexual Abuse of a Minor/212(h) WAIVER OF INADMISSIBILITY:

In re Anderson David Justin SMALL,23 I&N Dec. 448 (BIA 2002) Interim Decision #3476, Decided June 4, 2002

A misdemeanor offense of sexual abuse of a minor constitutes an
aggravated felony under section 101(a)(43)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).

The BIA resolved the conflict between its holding in In re Robin
Juraine Crammond
, 23 I&N Dec. 9 (BIA 2001) (A conviction for
"murder, rape, or sexual abuse of a minor" must be for a felony
offense in order for the crime to be considered an aggravated
felony) and the 7th Circuit in Guerrero-Perez v. INS (Illinois
conviction for criminal sexual abuse of minor, a Class A misdemeanor,
is an "aggravated felony" under sec. 101(a)(43)(A) of INA.)

The Board of Immigration Appeals has issued a precedent decision
vacating its previous decision in Matter of Crammond, 23 I. & N. Dec. 9
(BIA 2001). In that decision the BIA granted the respondent's motion to
reopen, finding that he was no longer convicted of an aggravated felony
because his state conviction for sexual intercourse with a minor had
been reduced to a misdemeanor by the state criminal court. The BIA has
now granted the motion for reconsideration of the Immigration and
Naturalization Service and vacated the prior decision.

This action does not reflect a reconsideration of the merits of the
decision but rather was taken because the INS brought to the attention
of the BIA the fact that the respondent left the U.S. prior to the BIA's
ruling. Under the regulations (8 C.F.R. § 3.2(d)), any departure from
the U.S. after a motion to reopen or to reconsider has been filed
constitutes a withdrawal of the motion. Because the motion was
withdrawn, the BIA had no jurisdiction to rule on it, and for this
reason the BIA is now vacating the decision.

In re Robin Juraine CRAMMOND, 23 I&N Dec. 179 (BIA 2001)

(1) The Board of Immigration Appeals lacks jurisdiction over a
motion to reopen where the motion is withdrawn, within the
meaning of 8 C.F.R. § 3.2(d) (2001), by the departure of the
alien from the United States prior to a ruling on the motion.
(2) When the Board is presented with evidence that it has
granted a motion to reopen after the alien’s departure from the
United States, it is appropriate to reconsider and vacate the
prior order on jurisdictional grounds. In re Robin Juraine CRAMMOND, 23
I&N Dec. 9 (BIA 2001), vacated. October 16, 2001

In re Robin Juraine CRAMMOND, 23 I&N Dec. 9 (BIA 2001) March 22, 2001. This vacated BIA case directly contradicted the Seventh Circuit holding in Guerrero-Perez v. INS, No. 00-1799 (3/5/01).

The issue in Robin Juraine CRAMMOND is whether the respondent has been convicted of an “aggravated felony” under section 101(a)(43)(A) of the Act. This determination turns on whether that section includes a conviction for a misdemeanor, as opposed to a felony, and whether the misdemeanor/felony distinction is governed by state or federal law.

The BIA held:

(1) A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set
forth at 18 U.S.C. § 3559(a)(5) (1994).

Lara-Ruiz v. INS, No. 99-2868, Seventh Circuit, Pet. dismissed
for lack of jurisdiction. (3/6/01). Pet. for Rev., Order of Bd. of Immigration Appeals.

[Although Sec. 212(h) speaks to the admission of an alien, the BIA has
determined that it is also available to an alien present in the United
States who applies for adjustment of status under Sec. 245. De Lucia v.
INS
, 370 F.2d 305, 308 n.2 (7th Cir. 1966), cert. denied, 386 U.S. 912,
8 7 S. Ct. 861, 17 L. Ed. 2d 784 (1967)]

Bd. did not err in finding that alien was removable for committing
aggravated felony of sexual abuse of minor where underlying facts
surrounding state conviction for sexual abuse indicated that alien
performed sexual act with 4 year old victim; Board’s inclusion of
conviction was reasonable construction of 8 USC Sec.1101(a) (43)(A) of
INA, and Bd. did not err in looking beyond indictment to determine
whether defendant’s conviction qualified as aggravated felony. Ct. of
Appeals also rejected alien’s due process and equal protection
challenges to INA.

Lara-Ruiz is a Mexican national who was granted lawful permanent
residence in the United States in 1967. In 1994, he was convicted of
sexual assault under Ill.Rev. Stat. 1991, ch. 38, para.para. 12-13(a)(1)
and sec. 12-13(a)(2). Section 12- 13(a)(1) defines "sexual assault" as
"commit[ting] an act of sexual penetration by the use of force or threat
of force," and sec. 12- 13(a)(2) defines it as "commit[ting] an act of
sexual penetration and the accused knew that the victim was unable to
understand the nature of the act or was unable to give knowing consent."
The record indicates that Lara-Ruiz' victim was a four-year-old girl.

Lara-Ruiz argued that, even if he has committed an aggravated felony and
is therefore removable, he should be eligible for a waiver of
inadmissibility under @ 212(h) of the INA, 8 U.S.C. @ 1182(h)(1)(B).
That section allows the attorney general to waive the application of
various subsections of @ 1182 (which classify certain aliens as
ineligible for admission to the United States for certain approved
equitable reasons.) However, it also provides that "no waiver shall be
granted under this subsection in the case of an alien who has previously
been admitted to the United States as an alien lawfully admitted for
permanent residence if . . . since the date of such admission the alien
has been convicted of an aggravated felony . . ." 8 U.S.C. @ 1182(h)(2).
The BIA has interpreted this latter provision as barring consideration
for @ 212(h) relief for lawful permanent resident aliens ("LPRs") who
have been convicted of aggravated felonies while allowing consideration
for such relief for aliens convicted of the same offenses who have never
been admitted as lawful permanent residents. See In re Michel, 1998 BIA
LEXIS 1, Interim Dec. No. 3335.(an alien not previously admitted to the
United States as an alien lawfully admitted for permanent residence is
statutorily eligible for a waiver of inadmissibility under section
212(h) of the Immigration and Nationality Act, despite his conviction
for an aggravated felony.)

Lara-Ruiz contended that this draws an irrational and
unjustifiable distinction between LPRs and illegal aliens
which violates his right to equal protection under the due
process clause of the Fifth Amendment.

The court found that a rational basis exists for Congress'
decision to declare only those aggravated felons who have
previously been admitted as LPRs ineligible for @ 212(h)
relief. One of Congress' purposes in enacting reforms to
the INA through IIRIRA was to expedite the removal of
criminal aliens from the United States. Eliminating the
availability of Sec. 212(h) relief for LPR aggravated felons
would eradicate one source of delay that might thwart this
effort. As the INS noted in its brief, without section
1182(h)(2), an LPR who is removable as an aggravated felon
might apply to adjust his status, and seek re-"admission"
to the United States as an LPR. If he could demonstrate
that the certain equitable considerations qualify him for
"readmission," then he could be granted a waiver of
inadmissibility, thereby evading removal. This would
subvert Congress' intention to make such aliens
immediately removable. While it might have been wiser,
fairer, and more efficacious for Congress to have
eliminated @ 212(h) relief for non-LPR aggravated felons
as well, the step taken by Congress was a rational first
step toward achieving the legitimate goal of quickly
removing aliens who commit certain serious crimes from the
country, and as such it should be upheld.

Nearly five weeks later, the U.S. District Court for the
District of Connecticut reached the opposite conclusion,
however, relying on Second Circuit authority from another
immigration context and expressly rejecting the reasoning
of Lara -Ruiz. Sylwia Jankowski v. INS.

212(h) Unconstitutional: On January 4th, 2002 Judge Ann Aldrich of the
U.S. Dist. Ct., N.D. Ohio, E.D., granted a habeas petition and declared
INA Sec. 212(h) unconstitutional. Roman v. Ashcroft, Roman v. Ashcroft, 181 F.Supp.2d 808 (N.D. Ohio 2002).

Aggravated Felony: Can it be a Misdemeanor? Guerrero-Perez v. INS, No. 00-1799 (3/5/01). Order of Bd. of Immigration Appeals. Order Affíd. Seventh Circuit

Guerrero-Perez v. INS, No. 00-1799 (7/2/01). Petition for rehearing denied.

Bd. did not err in affirming Immigration Courts holding that alien was
removable based on Illinois conviction for criminal sexual abuse of minor,
which Bd. viewed as “aggravated felony” under sec. 101(a)(43) (A) of INA;
although alien’s conviction was deemed to be Class A misdemeanor under
Illinois law, Congress intended to include sexual abuse of minor offense
as “aggravated felony”, and to have broad range of crimes listed in sec.
101(a)(43)(A) of INA as aggravated felonies even if said crimes included
misdemeanor offenses.

Guerrero is a native and citizen of Mexico. He was born on January 25,
1979 and entered the United States on March 28, 1979 when he was just
over two months old, as an immigrant child admitted for Lawful Permanent
Residence without an immigrant visa in accordance with 8 C.F.R. sec.
211. The Immigration and Naturalization Service ("INS") in a Notice To
Appear, dated July 26, 1999, charged that Guerrero was subject to
removal: (1) under sec. 237(a)(2)(A)(ii) of the INA, 8 U.S.C. sec.
1227(a)(2)(A)(ii) because he had been convicted of two crimes involving
moral turpitude; (2) under sec. 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
sec. 1227(a)(2)(A)(iii), because he had been convicted of the aggravated
felony of sexual abuse of a minor, as defined in sec. 101(a)(43)(A) of
the INA, 8 U.S.C. sec. 1101(a)(43)(A); and (3) because he was convicted
of child abuse, sec. 237(a)(2)(E)(i) of the INA, 8 U.S.C. sec.
1227(a)(2)(E)(i). The Immigration Judge ("IJ") did not find Guerrero
removable on the basis that he had committed two crimes involving moral
turpitude under 8 U.S.C. sec. 1227(a)(2)(A)(ii). Both the IJ and the BIA
determined that Guerrero was removable because of his aggravated felony
conviction, 8 U.S.C. sec. 1227(a)(2)(A)(iii), for sexual abuse of a
minor, 8 U.S.C. sec. 1101(a)(43)(A) and his conviction for child abuse,
8 U.S.C. sec. 1227(a)(2)(E)(i).

Guerrero received a Class A misdemeanor conviction for his action. The
criminal complaint indicates that Guerrero committed an act of sexual
penetration with a girl, and at the time, he was nineteen years old and
she was fifteen years old. As a result of his guilty plea, Guerrero was
sentenced to 30 days work release and two years of sex offender
probation. The IJ in his oral decision said that Guerrero had committed
the aggravated felony of sexual abuse of a minor and the crime of child
abuse. Accordingly, he was not entitled to cancellation of removal under
sec. 240(A) of the INA, 8 U.S.C. sec. 1229b, because this statute does
not allow for such relief if an alien has been convicted of an
aggravated felony. See 8 U.S.C. sec. 1229b(a)(3).

Sandoval v. Immigration and Naturalization Service, No. 99-3158 (2/12/01). Pet. for Rev., Order of Bd. of Immigration Appeals. Deportation order remanded for entry of dismissal order. (7th Cir.)

In deportation proceedings, INS did not prove by clear, unequivocal, and convincing evidence that Sandoval was convicted of possession of more than thirty grams of marijuana. so as to establish sufficient grounds for deportation order; while alien had originally been convicted of said offense, alien received modified sentence suggesting that state ct. had vacated conviction and found alien guilty of lesser offense. The INS did not prove that the Illinois state court judge exceeded his legal authority when he modified Sandoval's sentence nor did it prove that the modification was ineffective for immigration purposes The instant case is distinguishable from Roldan- Santoyo because it does not involve a state rehabilitative scheme. Adjudication of guilt was not withheld, nor was an alien's criminal record cleared; rather, Sandoval was convicted of an offense and sentenced, and then received a modified sentence.

Roman v. Immigration and Naturalization Service, No. 99-3510 (12/5/00) 7th Cir Pet. for Rev., Order of Bd. of Immigration Appeals. Aff'd. ALJ did not err in denying aliens' requests for asylum based on claims of past and future persecution if aliens were forced to be returned to Romania; while ALJ cut-off questioning by aliens' counsel, aliens failed to establish due process violation where aliens failed to show that ALJ excluded testimony that would have affected outcome of case. Moreover, while record showed that aliens were subject to acts of harassment in Romania, aliens failed to establish that Romanian govt. was source of harassment.

BIA Rules on "Good Moral Character". In re: Carmen Rocio Casas-Garcia. A75 094 996-New York City. On September 28, 2000 a panel of the BIA (Grant, Guendelsberger, Thomas; opinion by Guendelsberger) held that falsely signing an I-9 does not bar one from showing good moral character for suspension of deportation and voluntary departure purposes. IJ denial of suspension reversed, granted.

In re Miguel Ignacio RODRIGUEZ-RUIZ, Interim Decision #3436 (Decided as amended September 22, 2000). A conviction that has been vacated pursuant to Article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan, Interim Decision 3377 (BIA 1999), distinguished. The issue in this case is whether the respondent's conviction, having been vacated, constitutes a "conviction" as defined in section 101(a)(48)(A) of the Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998), and in accordance with Matter of Roldan, Interim Decision 3377 (BIA 1999).

BIA Overturns Expungement Precedent Matter of Roldan. Reversing 39 years of consistent administrative interpretation the BIA held on March 3, 1999 that a state court action to "expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute" has no effect. Relying on the statutory definition of conviction, the BIA also eliminated the rule that federal First Offender dispositions under 18 USC Section 3607 and state counterparts to the First Offender Act were not convictions for immigration purposes. The BIA's decision in Matter of Roldan, Int. Dec. #3377 (BIA 1999) superseded the following precedent decisions: Matter of G, 9 I&N (AG 1961); Matter of Ibarra-Obando, 12 I&N 576 (AG 1966); Matter of Manrique, Int. Dec. 3250 (BIA 1995); and Matter of Luviano, Int. Dec. #3267 (BIA 1996).

The Board's decision inMatter of Roldan does NOT consider any of the following to be convictions for immigration purposes: 1) Federal dispositions under 18 U.S.C. Section 3607 2) State convictions reversed on appeal 3) State convictions reversed for legal or constitutional errors in an individual's case, not as the result of the operation of a state rehabilitative statute.

Ninth Circuit Partially Overrules Holding in Matter of Roldan: August 1, 2000 Expungement and Other Relief for First Offense, Simple Possession of a Controlled Substance. The Ninth Circuit reversed the BIA's published decision in Matter of Roldan and held that an expungement and other "rehabilitative relief" will eliminate a conviction of first offense, simple possession of a controlled substance. Therefore a noncitizen within the Ninth Circuit who gained an expungement, deferred adjudication, diversion, or other type of rehabilitative relief cannot be held deportable or inadmissible for having a drug conviction, as long as the conviction was of a first offense, simple possession. In making this ruling, the Court re-affirmed its decisions in Garberding v. INS , 30 F.3d 1137 (9th Cir. 1994) and Paredes-Urresterazu v. INS, 36 F.3d 801 (9th Cir. 1994). These decisions hold that equal protection requires that laws benefiting immigrants in federal court proceedings should also apply to immigrants who have been through state court proceedings. This principle may have other good applications. The court also cited with approval Board Member Rosenberg's dissent in Matter of Roldan.

A firearms offense & application for cancellation of removal. In re Ignacio CAMPOS-TORRES, Interim Decision #3428 - Chicago. Decided March 21, 2000 ( Board of Immigration Appeals)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1229b(d)(1) (Supp. II 1996), an offense must be one "referred to in section 212(a)(2)" of the Act, 8 U.S.C. section 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. Sec. 1227(a)(2)(C) (Supp. II 1996), is not one "referred to in section 212(a)(2)" and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

The BIA held that because the respondent's application for cancellation of removal., which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not "stop time" under section 240A(d)(1). The respondent's period of continuous residence began when he was admitted as a temporary resident on May 4, 1988. See, Matter of Cristobal PEREZ, Interim Decision #3389, Decided May 12, 1999. The Notice to Appear was not served until more than 7 years later. See section 240A(d)(1) of the Act. Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2). The respondent's appeal was sustained and remanded to the Immigration Judge for a hearing on the merits of the respondent's application for cancellation of removal.

Burglary to Auto is not "Aggravated Felony": Solorzano-Patlan v. Immigration and Naturalization Service, No. 99-3310 (3/10/00). Pet. for Review, Order of Bd. of Immigration Appeals. Vac'd and rem'd. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. (click on highlighted text for full text of case)

The INA defines "aggravated felony" as including a "burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. sec. 1101(a)(43)(G) (Definitions, the term''Aggravated Felony'', Sec.1101(a)(43). It is important to note that Congress did not define the term "burglary offense" in the INA and that individual states use different and various definitions to describe what conduct does and does not constitute the crime of burglary in their respective jurisdictions.

The Board Of Immigration Appeals erred in finding that alien's Illinois conviction for burglary of automobile constituted "burglary offense" and "crime of violence" for purposes of alien's removal as "aggravated felon" under 8 USC ?1101(a)(43)(F) & (G); "burglary offense" has generic meaning that requires proof of alien's unlawful entry into building or structure, and while instant burglary could have qualified as "crime of violence", instant Immigration Judge failed to examine alien's charging papers to determine whether alien's conviction involved substantial risk of use of physical force.

The United States Court of Appeals for the Seventh Circuit concluded that "burglary offense" in 8 U.S.C. sec. 1101(a)(43)(G) means "burglary" in its "generic sense" and, therefore, according to Taylor (Taylor v. United States, 495 U.S. 575 (1990) ) , must have the basic elements of unlawful entry into, or remaining in, a building or structure, with intent to commit a crime. United States v. Guerrero-Cruz, No. 98-50685, 1999 WL 1128658 (9th Cir. Dec. 7, 1999) (finding the California statutory definition of "burglary" too broad and employing the Taylor definition in interpreting 8 U.S.C. sec. 1101(a)(43)(G)). Therefore, the INS interpreted burglary in too broad a manner and, in the future, [would] be well advised to look at the charging papers in order to ensure that these basic elements are satisfied before it initiates the serious ramifications of removal proceedings based on an alleged "burglary offense."

Because Solorzano-Patlan burglarized a motor vehicle and not a "building or structure," the Court held that his 1995 Lake County, Illinois, conviction under 720 Ill. Comp. Stats. 5/19-1(a), is not a "burglary offense" within the meaning of 8 U.S.C. sec. 1101(a)(43)(G). Accordingly, the BIA erred in using section 1101(a)(43)(G) as a basis for Solorzano-Patlan's removal.

In re Jaime Cesar PEREZ, Interim Decision #3432, Decided June 6, 2000 (BIA): The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a "burglary offense" within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. ? 1101(a)(43)(G) (Supp. IV 1998).

PRE-1988 AGGRAVATED FELONY CONVICTIONS POST-LETTMAN- by Ron Wada

Jose Francisco Pena-Rosario v. INS, Retroactivity, 212(c), and Jurisdiction. On February 8, 2000, U.S. District Judge John Gleeson of the Eastern District of New York issued a 36-page published decision ruling in favor of five aliens on retroactivity, 212(c), and jurisdiction issues. Here, the federal district court case judge found impermissible "retroactive effect" for criminal conduct occurring before enactment-- regardless of whether or not the alien was in proceedings at the time of the enactment and effective date. (For text of "Cancellation of Removal", click here)

In Jose Francisco Pena-Rosario v. INS, (United States District Court for the Eastern District of New York, 2000 U.S. Dist. LEXIS 1366, February 8, 2000, decided) five habeas corpus petitions were brought by aliens challenging final orders of removal. They each contended that statutory changes from 1996 rendering certain convicted felons ineligible for discretionary waivers of deportation did not apply to them since their criminal conduct took place before enactment of those statutes. The government challenged the court's subject matter jurisdiction over these cases.

After finding subject matter jurisdiction pursuant to the habeas statute, 28 U.S.C. @ 2241, the District Court concluded that the statutory changes did not apply to these petitioners, regardless of whether they were in proceedings before enactment of those statutes, and therefore granted each of them writs of habeas corpus and ordered that their removal orders be vacated so that they could apply for discretionary waivers.

In re Mario Leroy DAVIS, A26 694 738 - Fishkill Decided November 2, 2000 Interim Decision #3439 (1) Pursuant to Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004 (1999), a respondent within the jurisdiction of the United States Court of Appeals for the Second Circuit whose deportation proceedings were pending on April 24, 1996, is not subject to the amendments made to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(c) (1994), by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277("AEDPA"), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Sec. 306(d), 110 Stat. 3009-546, 3009-612. (2) A respondent convicted of an aggravated felony for which he served more than 5 years in prison is barred from establishing eligibility for a section 212(c) waiver if the provisions of section 440(d) of the AEDPA are inapplicable to him.

Partial 212(c) VICTORY in Seventh Circuit, Chicago. Jideonwo v. Immigration and Naturalization Service, No. 99-3243 (8/23/00). Pet. for Rev.,Order of Bd. of Immigration Appeals. Rev'd and rem'd. Where, as here, specific facts demonstrated that alien pleaded guilty to aggravated felony before enactment of AEDPA and relied at least in part on availability of deportation waiver under Sec. 212(c) of INA, 8 USC Sec. 1182(c) when making plea, AEDPA's sec. 440(d), which made aliens who committed aggravated felonies ineligible for discretionary deportation waivers, could not be applied retroactively to bar alien from applying for a discretionary waiver.

Chow V. Reno, No. 98-3285 (9/20/99). Appeal, N.D. Ill. E. Div. rev'd and rem'd. District Court erred in granting petitioner's habeas pet. alleging sec 440(d) of AEDPA violated equal protection clause because it permitted certain excludable aliens to apply for discretionary waiver of deportation while barring deportable aliens who had committed certain drug offenses from doing so. Under LaGuerre, 164, F.3d 1035, petitioner's equal protection argument rejected.

Musto V. Perryman, No. 98-2610 (9/20/99). Appeal, N.D. Ill. E. Div. rev'd and rem'd w/dir. District Court erred in granting petitioner's habeas pet. on basis that Sec. 440(d) of AEDPA, which precluded petitiner from seeking relief from deportation order due to his drug-related convictions, violated equal protection clause because certain excludable criminal aliens could apply for relief. Under LaGuerre, 164, F.3d 1035, court lacked subject matter jurisdiction to consider instant habeas petition; petitioner's equal protection argument rejected pursuant to LaGuerre.

City of Chicago v. Shalala, Nos. 98-2382 & 98-2479, Cons. (8-31-99). Appeal N.D. ILL., E. Div. Aff'd. "Welfare Reform Act,"which restricted eligibilty for welfare benefits for certain lawfully admitted aliens, did not violate equal protection clause; statute rationally related to goals of encouraging aliens to be self-sufficient and discourage against immigration that is motivated by availiblity of welfare benefits.

In re Miguel Ignacio RODRIGUEZ-RUIZ, Interim Decision #3436 (Decided as amended September 22, 2000 ). A conviction that has been vacated pursuant to Article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan, Interim Decision 3377 (BIA 1999), distinguished. The issue in this case is whether the respondent's conviction, having been vacated, constitutes a "conviction" as defined in section 101(a)(48)(A) of the Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998), and in accordance with Matter of Roldan, Interim Decision 3377 (BIA 1999). Tooby).

CRIMINAL ALIENS, AGGRAVATED FELONS AND REMOVAL FROM THE UNITED STATES

Overview of Relief & Defenses from Deportation/"Removal" (.pdf file, click on link. You will need Acrobat Reader to view this document. Adobe? Acrobat? Reader? is free, and freely distributable, software that lets you view and print Adobe Portable Document Format (PDF) files.

On April 24, 1996, the anniversary of the Oklahoma Bombing in 1995, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The catalyzing event behind AEDPA was the 1995 Oklahoma City bombing. Congress and the President quickly reacted to the bombing by introducing and passing AEDPA. The legislation was thus ostensibly directed at combating terrorism but revolutionized immigration law in ways that went far beyond any such goal.

For many years the basic statutory deportation scheme was this: a "crime involving moral turpitude" rendered a person deportable, if it were committed less than five years after the person's entry and resulted in a sentence of one year or more confinement. A later-committed crime or one that drew a lighter sentence did not lead to deportation. These distinctions reflected Congress's judgment that crimes committed more than five years after entry was outweighed by the ties. The alien had developed to the United States; meanwhile, and so should not lead to deportation. If the person committed two such crimes, however, which were not part of a single criminal scheme, they could render the person deportable no matter when they were committed. And a drug offense or a firearm possession offense ordinarily made a person deportable whenever it was committed.

The most important forms of relief, for those who had been convicted of crimes, were (1) political asylum and a closely related form of nonrefoulement protection called "withholding of removal, " and (2) a waiver, then called " 212(c) relief" and now called " cancellation of removal, " which was and is available only to persons who had been lawful residents for at least seven years. Regarding the first, U.S. law precluded an asylum and withholding for persons guilty of "particularly serious crimes" (which is consistent with the UN Convention on the Status of Refugees), but in the 1980s the exact application of that term was still uncertain. Many convicted criminals were able at least to obtain a lengthy hearing regarding the circumstances of the crime and the claimed risk of persecution if deported. " Cancellation" could be provided in the discretion of the immigration judge, based on a consideration of many factors, including the seriousness of the offense, length of residence, the ties of the alien to the community (including resident family members), and evidence of rehabilitation. Even if the individual had a very weak case for relief from deportation, the claim might consume several years of litigation after a hearing before the immigration judge and after administrative and judicial appeals were exhausted.

The Anti-Drug Abuse Act of 1988 added a new concept to the immigration laws, the notion of an "aggravated felony." INA ? 101(a)(43). A person found guilty of an aggravated felony committed at any time would be deportable. At the time the practical effect of this change was modest, for until 1994, the definition included only murder, drug trafficking, and firearms trafficking, plus conspiracy or attempt to commit those offenses. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7342, 102 Stat. 4181, 4469 (codified as amended at 8 U.S.C. 1101(a)(43) (1994 & Supp. III 1997)). Although subsequently amended to include additional crimes, it continued to confine itself to what are arguably more serious offenses than many offenses included after the 1996 amendments. (adding money laundering, crimes of violence with a sentence of at least five years, and foreign convictions with a term of imprisonment completed within previous 15 years), (adding various firearms offenses, monetary transactions from illegally derived funds, theft or burglary with a sentence of at least five years, alien smuggling for a commercial gain, and trafficking in false documents).

In 1990, Congress decided to use the "aggravated felony" concept to limit the discretion of the immigration judges. An amendment that year provided that aggravated felons sentenced to five years or more incarceration were ineligible to receive cancellation-type relief. The definition of an aggravated felony was amended to include, among others, a " crime of violence" for which the term of imprisonment imposed is at least 5 years.

This change carried a limited effect initially because of the narrow definition of aggravated felony. Moreover, section 501(b) of the 1990 Act, 104 Stat. At 5048, applied that definition only to offenses committed on or after enactment of the 1990 Act. (See Matter of A-A-, 20 I&N Dec. 492 (BIA 1992).

Similarly, other amendments to the aggravated felony definition have specified that the amendments applied only prospectively. See Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, ?? 222(a) (b), 108 Stat. 4305, 4320-22 (enacted Oct. 25, 1994); AEDPA ? ? 440(e) (f), 110 Stat. At 1276-78. Prior to IIRIRA, statutes adding to the list of "aggravated felonies" excluded pre-enactment convictions-- and, in one case, pre-enactment conduct-- from their reach. See IMMACT @ 501(b), 104 Stat. At 5048 ("The amendments . . . Shall apply to offenses committed on or after the date of the enactment of this Act, except the amendments made by paragraphs (2) and (5) of subsection (a) shall be effective as if in . . . the Anti-Drug Abuse Act of 1988." (emphasis added)); INTCA @ 222(b), 108 Stat. At 4322 ("The amendments made by this section shall apply to convictions entered on or after the date of enactment of this Act (emphasis added)); AEDPA @ 440(f), 110 Stat. at 1278 (" The amendments made by subsection (e) shall apply to convictions entered on or after the date of the enactment of this Act, except the amendment made by subsection (e)(3) shall take effect as if in the enactment of section 222 of the Immigration and Nationality Technical Corrections Act of 1994." (Emphasis added)).

But the impact widened greatly with legislative changes in 1994 and 1996. Congress greatly expanded the definition on several occasions, signaling its growing concern with criminal aliens.

In 1994, an election year, Congress greatly expanded the definition of aggravated felony. Added to the three offenses previously listed were 14 additional paragraphs with elaborate designations of additional serious offenses, including, for example, racketeering, alien smuggling for commercial advantage, child pornography, peonage, fraud offenses involving losses of over $200,000, and crimes of violence or theft offenses drawing a 5-year sentence. The basic effect of the aggravated felony designation remained the same even as the list grew: a conviction of one of these offenses would render the person deportable whenever it was committed, and cancellation relief would be barred if the sentence were greater than five years.

In 1996-- another election year, and one in which immigration enforcement issues figured prominently-- the aggravated felony definition was again greatly expanded, and this time its impact was made even more sweeping. New offenses were added to the list, and minimum thresholds required were substantially reduced. For example, fraud offenses involving only a $10,000 loss (instead of $200,000) now fit the definition, and a sentence of one year, instead of five years, is the threshold for theft offenses and crimes of violence. The 1996 Act also clarified that sentences count even if they are suspended. Therefore, a person could serve no actual time in jail or prison for a theft offense, but if his/her stated sentence was one year, suspended, he/she would count as a person convicted of an aggravated felony.

The 1996 Acts also made the full list of offenses in the definition wholly retroactive, whereas most earlier expansions of the list had been applied only to the criminal acts or convictions after the date of enactment. These changes are sweeping enough, but they were made more severely by changes in the provisions for relief from deportation. Cancellation relief is now wholly unavailable to anyone with an aggravated felony conviction. INA ? 240A (a)(3). And a separate change further narrowed its availability to those permanent resident aliens whose criminal offense still falls below the aggravated felony threshold, because the required seven years' residence must be acquired before commission of the offense. INA ? 240A (d).

AEDPA added additional crimes to the aggravated felony list, while IIRIRA both added crimes and lowered the sentencing threshold from five years to just one for those aggravated felonies whose definition hinges on this factor. (adding, among others, alien smuggling not for commercial gain, failure to appear for service, obstruction of justice, and perjury); Section 440(d) of AEDPA amended the section 212(c) to exclude from eligibility for relief. Any person who is deportable because of having committed any offense covered in section 241(a)(2)(A)(iii)(A) (B) (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(I). AEDPA @ 440(d), 110 Stat. At 1277. No specific language of retroactive applicability was included. Section 440(d) contains no language indicating an intent retroactively to eliminate a long term lawful permanent resident's eligibility for relief from deportation.

Throughout the rest of Title IV of AEDPA, in contrast, Congress used precise language when it chose to apply new rules to prior conduct, describing retroactivity with great specificity. Besides, section 440(d), there are two provisions that eliminate statutory eligibility for relief from deportation. Section 413 provides that persons excludable or deportable because of their e engagement in terrorist activity is no longer eligible for withholding of deportation, suspension of deportation, voluntary departure, adjustment of status or registry. See AEDPA @@ 413(a)-(e), 110 Stat. at 1269. Section 421(a) makes such persons ineligible for asylum. See Id. @ 421(a), 110 Stat. At 1270. All three of these relief-restricting provisions recognize that the central action that makes a person deportable is the conduct in which he or she engaged.

AEDPA has been largely superceded by IIRAIRA. Unfortunately, IIRAIRA is equally punitive Vis-a-vis aliens. IIRAIRA abolishes the distinction between exclusion and deportation and provides for a unified removal proceeding for all alien expulsion proceeding initiated after April 1, 1997. IIRAIRA abolishes Sec. 212 (c) Waivers of Deportation entirely, just as AEDPA abolished Sec. 212 (c) waivers for " aggravated felons" sentenced to five or more years, despite what amount of time was actually served or suspended, and despite whether the five years aggregate sentence involved several minor convictions over several years.

On September 30, 1996, the President signed IIRIRA into law. IIRIRA, Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 321, 8 U.S.C. 1101(a)(43) (1994 & Supp. III 1997) added among others, rape, sexual abuse of minor, and lowered the sentencing threshold for, among others, crimes of violence, theft [including attempt] offenses, obstruction of justice, and perjury? . . For which the term of imprisonment [is] at least one year. IIRIRA @ 321, 110 Stat. At 3009-627 (codified at 8 U.S.C. @ 1101(a)(43)(G) (Supp. II 1996). While the terms "petty theft" and "misdemeanor assault and battery" do not appear within INA 101(a)(43), these crimes appear to fall within the "theft," 101(a)(43)(G), and "crime of violence," 101(a)(43)(S), provisions when the relevant state law allows a sentence of one year.

The amendments accomplish this dramatic expansion not only by augmenting the substantive categories of crimes and lowering the sentencing threshold, where applicable, but also by deeming any order of incarceration or confinement by the sentencing court, whether imposed or executed, a "sentence" for purposes of the provision. See INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B) (Supp. III 1997) (reflecting changes made by section 322 of IIRIRA). Thus, a sentence of one year probation may be deemed a sentence of imprisonment of at least one year for purposes of the INA, rendering the individual deportable though he/she never served a day in jail.

With the IIRIRA Congress made clear its intention to dispose of the different effective dates and to establish an aggravated felony definition that would be universally applied, despite the date of conviction. Section 321(b) of the IIRIRA states in its entirety:

EFFECTIVE DATE OF DEFINITION----Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended by adding at the end the following new sentence: "Notwithstanding any other provision of law (including any effective date), the term applies despite whether the conviction was entered before, on, or after the date of enactment of this paragraph." (September 30, 1996) IIRIRA ? 321(b), 110 Stat. At 3009-628.

Relying on section 321(b), the BIA has, on at least five occasions, applied the 1996 revised aggravated felony definition to cases pending on the date of enactment of the IIRIRA, with little or no discussion. See Matter of L-S-J- , 21 I&N Dec. 973 (BIA 1997); Matter of Batista-Hernandez , 21 I&N Dec. 955 (BIA 1997); Matter of Noble, 21 I&N Dec. 672 (BIA 1997); Matter of Yeung , 21 I&N Dec. 610 (BIA 1996); In Re Phat Dinh Troung (BIA October 20, 1999) Interim Decision 3416.

This bars immigrants with aggravated felony convictions from applying for discretionary relief pursuant to former INA 212(c), eliminated by IIRIRA, Pub. L. No. 104-208, 304(b), 110 Stat. 3009, 3009-597 (1996), which permitted immigration judges to waive deportation based on equities such as immigrant's length of residence, rehabilitation, and family/community ties); INA 240A, 8 U.S.C. 1229b (Supp. III 1997)

Prior to 1996, discretionary relief was critical in alleviating the dire effects of deportation provisions: Between 1989 and 1994, over half of all immigrants who petitioned under former INA 212(c) demonstrated sufficient equities to be permitted to stay in this country. See Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997).

Instead IIRAIRA provides for "cancellation of removal" for a criminal and other aliens who have physically lived in the U.S. for at least seven years and held a Green Card for at least five years. IIRAIRA eliminates the eligibility of alien convicts who could qualify for waivers of deportation based upon status as a Temporary Resident, based upon their parent's domicile, or based upon seven years residence with no time limit on when they actually received their Green Card. Any alien convicted of an offense which carries a sentence of one year or more in prison is more likely than not an aggravated felon and has virtually no statutory removal relief. An alien does not actually have to serve one year in jail---the crime simply has to carry a penalty of one year or more.

(For text of "Cancellation of Removal" click here)

To qualify for what used to be known as "Suspension of Deportation" (now Cancellation of Removal "), an alien must have lived here TEN years, and must establish that repatriation and removal would lead to " exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence" The Judicial review of deportation orders is nearly abolished. For most aliens, this means the Board of Immigration Appeals (BIA) is the final tribunal.

IIRAIRA's elimination of "Exclusion" versus "Deportation" proceedings means that any alien who leaves the United States and returns, whether that alien has had a Green Card for decades, is considered to be applying for admission and, if placed in removal proceedings for some unforeseen reason (such as improper documentation, possession of contraband, or infection with a contagious disease) is subject to summary expulsion by an immigration officer without ever appearing before an immigration court.

Aliens who commit, get convicted of, or admit the commission of, any crimes involving domestic abuse (simple assaults, simple "slaps" or "shoves") to a parent, spouse, child or other person ("girl- or boyfriend") are inadmissible and face removal.

These Draconian changes made it very easy to deport criminal aliens, including those who have been lawfully present as Permanent Residents in the United States for many years.

In addition, the effect of the aggravated felony provisions is compounded by other changes in the law pertaining to "aggravated felons," such as mandatory detention during deportation or removal proceedings, and a permanent bar against reentry into the United States. Moreover, a number of consequences attaching to aggravated felonies under prior law, such as the bar to naturalization or the dramatic sentencing enhancement faced by an individual convicted of illegal reentry after deportation, will now apply to a much greater range of persons. Finally, the Immigration and Naturalization Service (INS) contend that the expanded "aggravated felony" definition and its consequences operate retroactively, meaning that an individual with an old conviction may be subject to automatic deportation without possibility of relief. In all, the changes wrought by the amended aggravated felony and related statutory provisions are notable both for their harshness and for the fact that they apply to individuals who many would argue deserve more humane treatment.

Under current regulatory enforcement practice this law allows the mandatory detention without bail of all aggravated felons released after October 9, 1998 despite whether they actually pose a danger to the community or whether they are a flight risk. There is no administrative or judicial review of the INS detention. However, any immigrant who completed his or her criminal sentence prior to October 9, 1998 can be considered for release from detention. If the INS does not release the immigrant, he or she can apply for a bond redetermination hearing before an immigration judge, and can appeal any negative determination to the Board of Immigration Appeals (BIA). The provisions of section 236(c) of the Act " shall apply to individuals released after" October 8, 1998, the date which the Transition Period Custody Rules expired. See, Matter of Adeniji, Interim Decision #3417 (BIA 1999); 8 C.F.R. Sec. 236.1(c)(8)(2000).

The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1226(c) do not apply to an alien who was convicted after the expiration of the Transition Period Custody Rules-October 8, 1998 (" Transition Rules"), but who was last released from the physical custody of state authorities prior to the expiration of the Transition Rule and who was not physically confined or restrained because of that conviction. In re Neville George WEST, Interim Decision #3438, October 26, 2000.

AEDPA, which severely eroded constitutional and statutory rights that aliens enjoyed for decades, and which abrogated the paramount goal of U.S. immigration policy---family reunification---has faced several legal challenges. Recent decisions by several federal court judges at the district level have reversed some deportations.

On February 8, 2000, U.S. District Judge John Gleeson of the Eastern District of New York issued a 36-page published decision ruling for five aliens on retroactivity, 212(c), and jurisdiction issues. Here, the federal district court case judge found impermissible "retroactive effect" for the criminal conduct occurring before enactment-- despite whether the alien was in proceedings at the time of the enactment and effective date. Jose Francisco Pena-Rosario v. INS, Retroactivity, 212(c) .

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Updated: Sunday August 3, 2008
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