The court held that the IJ and BIA did not err in determining that the immigration judge lacked jurisdiction to review DHS’ termination of Petitioner’s asylum status. (Bhargava v. Holder, 7/1/10)
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Where petitioners sought review of a Board of Immigration Appeals decision denying their motion to reopen their removal proceedings, and some of the evidence they submitted was cumulative of evidence they had submitted during their hearing, while some was not, Court of Appeals had jurisdiction to review the BIA’s decision to the extent that it pertained to the noncumulative evidence, but lacked jurisdiction to review the decision as it pertained to the cumulative evidence, except to the extent that the petitioners raised a question of law regarding the treatment of that evidence. BIA did not abuse its discretion in concluding that petitioners’ daughter’s new medical condition, which allegedly required reconstructive surgery for a disfigurement on her external ear, did not warrant reopening, but BIA erred where it failed to exercise its discretion to consider or decline to consider petitioners’ supplemental brief and an attached exhibit relating to a new, allegedly precancerous medical condition allegedly incurred by one petitioner’s mother.
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Where husband and wife appealed the Board of Immigration Appeals’ decision denying their petitions for asylum and withholding of removal and relief under the Convention Against Torture, and husband’s petition for review was deemed moot after he died, court of appeals retained jurisdiction to consider wife’s derivative petition because there could be collateral consequences if it was dismissed. Wife’s derivative claim failed because substantial evidence supported immigration judge’s adverse credibility finding against husband where his application and attached declaration were inconsistent–with one stating that he was a Hindu who feared violence by Muslims and the other stating that he was a Muslim who feared violence by Hindus–and where husband’s omission of details was misleading in light of his later claims
BIA issues two crime related decisions
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Board of Immigration Appeals erred as a matter of law in ruling aliens seeking discretionary relief can never demonstrate “exceptional circumstances.” Deciding whether exceptional circumstances are present requires a consideration of all facts in a specific case, including but not limited to the probability of the petitioner obtaining relief. Where petitioner began asylum process in 1996 and diligently pursued his claim but missed a hearing because he was traveling and his attorney was not immediately able to contact him and obtain consent to the entry of a representative appearance, petitioner was entitled to recision of his in absentia deportation order due to these extraordinary circumstances. Vukmirovic v. Holder – filed September 8, 2010
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Obtaining Records through a FOIA from the Board of Immigration Appeals – Avvo.com http://ping.fm/ZEdBH
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Ninth Circuit decisions and those of other circuits provided petitioner, who claimed that ineffective assistance of counsel occurred after a final order of removal had been entered, with fair notice and the ability to anticipate that the Board of Immigration Appeals might have jurisdiction over his claim. District court did not err in dismissing habeas corpus petition for failure to satisfy prudential requirement that petitioner exhaust administrative remedies. Singh v. Napolitano – filed August 23, 2010
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An immigration judge’s jurisdiction on remand from the Board of Immigration Appeals is limited only when the BIA expressly retains jurisdiction and qualifies or limits the scope of the remand to a specific purpose. An articulated purpose for the remand, without any express limit on scope, is not sufficient to limit the remand such that it forecloses consideration of other new claims or motions that the immigration judge deems appropriate or that are presented in accordance with relevant regulations. Immigration judge’s adverse credibility determination was supported by substantial evidence where witness testified credibly and consistently that he had prepared and falsified petitioner’s asylum application, as he had done for at least a hundred other clients, and petitioner, to rebut that evidence, relied only on his own testimony, which he eventually admitted was riddled with misrepresentations. Immigration judge’s finding that petitioner filed a frivolous application was supported by a preponderance of the evidence.
Fernandes v. Holder – filed August 20, 2010.
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NIJHAWAN changes Criminal Conviction Analysis
The manner in which Immigration Attorneys used to analyze whether a particular conviction is an aggravated felon has changed. It is necessary to look into the newly issued Supreme Court case NIJHAWAN to find out what must be done by the Immigration Attorneys and what should be done to try to help the criminal defendant. First, however, you should know the basic facts of this case. First, it was a defendant that committed fraud. In Immigration Law, it specifically states that an aggravated felony is one whereby the defendant commits fraud upon someone else in which the deceit to the victim is more than $10,000.
In this particular case, there was no amount specified in the judgment as to the amount that the victim suffered. However, in other documents in the file and in other parts of the proceedings there was information that the amount the victim suffered was $1,000,000U.S.. Therefore, the issue becomes what can the Immigration court, BIA or Circuit Courts look at in order to determine whether an aggravated felony as put forth under Immigration Law has been committed. Under the old TAYLOR analysis, it was quite limited what could or could not be looked at by the Immigration court to determine this. Without going into too much detail, there was analysis as to whether the it should be a ‘categorical’ or ‘non-categorical’ approach.
Nijhawan put forth a different type of analysis dealing with ‘circumstances’. Words such as “crime,” “felony, and “offense” sometimes refer to a generic crime (a “categorical” interpretation), and sometimes refer to the specific acts in which an offender engaged (“circumstance- specific” interpretation). The basic argument favoring the “categorical” interpretation rests upon the Taylor case. The categorical analysis rests heavily on interpretation of the statute, a breakdown of the language in the statute of the crime that was committed and an analysis as to whether the federal definition of the crime matched the actual crime the defendant was convicted under.
In Nijhawan, the Supreme Court stated that the Immigration Attorneys in this case would have to use the circumstance specific interpretation, not the categorical interpretation. Here, the analysis does not fall on the language of the statute, but the circumstances which is anticipated by the language of the statute. Thus, whereby Nijhawan was arguing that the Immigration Court should only be allowed to look at the charging documents, abstract of judgment and other very specific documents, the Supreme Court disagreed. The decision of the Supreme Court was unanimous. Thus, it will probably not be overturned anytime soon.
To make clear, Nijhawan states that in this particular case, the $10,000 threshold is NOT an element of the crime, and therefore, the categorical approach is not applicable. The jury in this case found Nijhawan guilty, but nowhere in any of the crimes that he was convicted is the amount of the deceit to the victim an element of the crime. If it is ‘element’ specific, then we must look at the specific facts giving rise to the conviction, not the statute itself. Keep in mind that the categorical approach is when looking at the general definition of the crime itself and still can be used if an elemental analysis is not called for.
As for documents that are permitted, it seems that under the Nijhawan ‘circumstance’ specific interpretation, the door has been opened considerably. Specifically, plea agreements, stipulations and the like will be admissible for the Immigration Court to be able to see. Thus, it seems that it has become more difficult for Immigration Attorneys to try to argue that certain crimes are not aggravated felonies. However, it does seem to fall on whether a particular crime involves using the categorical approach, or the elemental approach. As to which approach to use and as to which crime falls under either approach, I am certain there will be much litigation in the future.
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A new case: Board of Immigration Appeals did not abuse its discretion in denying late-filed motion to reopen removal proceedings where Guatemalan petitioner’s HIV diagnosis was not new information and was only a change in personal circumstances. Adoption of the Dominican Republic-Central America-United States Free Trade Agreement–which petitioner argued could affect access to treatment–did not amount to changed country conditions that resurrected petitioner’s late-filed motion where he failed to show that passage of the treaty was material to his claim. Lopez Almaraz v. Holder
BIA issues two crime related decisions
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