Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Another case just issued regarding the Immigration Judge:

NINTH U.S. CIRCUIT COURT OF APPEALS

-Criminal Law and Procedure-
A challenge to a restitution order by a custodial state prisoner who does not challenge the lawfulness of his custody under federal law is insufficient for jurisdiction under 28 U.S.C. Sec. 2254. Physical custody alone is insufficient to confer jurisdiction.
Bailey v. Hill – filed March 25, 2010
Cite as 09-35450
Full text http://ping.fm/Zqfep

-Criminal Law and Procedure-
Word “person” in 18 U.S.C. Sec. 1028A(a)(1) refers to both living and deceased persons. Statute does not require government to prove defendant used the identification of a person he knew to be alive at the time defendant stole that person’s identity.
United States v. Maciel-Alcala – filed March 25, 2010
Cite as 09-50038
Full text http://ping.fm/Gx6uk

-Criminal Law and Procedure-
A district court has discretion to impose concurrent or consecutive sentences after revocation of multiple concurrent terms of supervised release. Where defendant violated concurrent terms of supervised release, 18 U.S.C. Sec. 3624(e) did not prohibit district court from imposing consecutive sentences of imprisonment.
United States v. Xinidakis – filed March 25, 2010
Cite as 09-50307
Full text http://ping.fm/kYMhs

-Criminal Law and Procedure-
District court did not err in subjecting state’s parole revocation hearings to balancing test weighing a releasee’s interest in his constitutionally guaranteed right to confrontation against government’s good cause for denying it. Even if hearsay falls within a recognized exception, it is still subject to balancing as an indicia of reliability and subject to good cause analysis. Balancing test does not elevate the due process rights of parolees to those of criminal defendants. Conditional due process rights of parolees can be justifiably denied–and hearsay can be admitted–if government’s good cause is sufficient. Hearsay used to corroborate other hearsay remains subject to balancing test. Where state had not fully complied with requirements of an earlier injunction, district court had “ample authority to go beyond earlier orders” to ensure compliance. Special master did not use judicial notice to bypass the process of authenticating documents on which he relied where authenticity of those documents was not challenged by either party. Master’s findings based on observations by employees and observers–statements made with personal knowledge that were not made out-of-court–were not based on inadmissible hearsay. Where a state law is found to conflict with a federal injunction, federalism principles require reconciliation of the state law and federal injunction unless that state law violates a federal law or the injunction is necessary to remedy a constitutional violation.
Valdivia v. Schwarzenegger – filed March 25, 2010
Cite as 08-15889
Full text http://ping.fm/tA5uT

-Immigration Law-
Immigration judge had no authority to grant alien a form of interim visa relief that was previously made available to immigrant victims of crime. Only U.S. Citizenship and Immigration Services had jurisdiction over alien’s request for interim relief.

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New case where Appellate Court ruled the BIA and IJ were wrong in ruling that there was an adverse credibility finding: Alien’s submission of two news articles describing a rally in India where he said he was arrested did not support an adverse credibility finding based on fact that one article did not mention any violence or arrests at rally and alien did not provide a contemporaneous clarification this article was not entirely accurate. Alien’s failure to explain why a newspaper article stated Delhi police exempted Sikh women from the helmet law before date of rally did not support an adverse credibility finding since only the government could grant such an exemption and later events contradicted this report. Speculation as to what “grave and serious” offenses termination order from alien’s employer was referring to could not be used to support an adverse credibility finding. Where requested documentation was not easily available to alien because it was in India and under the control of a third party, alien’s failure to provide corroborating evidence did not support an adverse credibility finding. Alien’s claim that he had not been formally terminated at his first merits hearing was consistent with employer’s termination order where alien claimed he was unaware of the termination order at the first hearing and had arrived in the United States nearly 10 months before that order was issued. Even if termination order were “poorly drafted and formatted” as Board of Immigration Appeals held, such a conclusion does not bear a substantial and legitimate nexus to the adverse credibility finding. BIA’s disbelief of alien’s decision not to challenge his suspension from work based on speculation and conjecture about what someone in alien’s position would or would not do did not support the adverse credibility finding. Neighbor’s testimony that alien “quit” because he would have had to compromise his religion by cutting his hair and beard in order to keep his job was consistent with alien’s claim that he could have had his job back if he cut his hair and trimmed his beard, but that he was not willing to do so. Where alien repeatedly testified that no media or police reports of a bus explosion exist, or if they did, he was unable to locate them, alien’s failure to provide such reports did not support an adverse credibility finding. Alien was not required to provide “strong” or “conclusive” evidence of bus explosion and his subsequent arrest and mistreatment. Where immigration judge’s skepticism as to the plausibility of alien’s testimony was based on a mischaracterization of that testimony, such skepticism did not provide a proper basis for upholding an adverse credibility finding. IJ and BIA erred to the extent they based an adverse credibility finding on statistics contained in a 2003 Country Conditions Report because those statistics reveal nothing about the circumstances or persecution of Sikhs living in New Delhi in 1998, the year in which alien claimed he was persecuted.

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New Case just issued: Alien’s conviction under California Health and Safety Code Sec. 11361(b) for furnishing marijuana to a minor categorically qualified as a controlled substance offense under 8 U.S.C. Sec. 1227(a)(2)(B)(i).

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New Case: REAL ID Act stripped district court of habeas corpus jurisdiction to consider alien’s challenge to the administrative denial of his adjustment-of-status application because that denial was part of a reinstatement order constituting an “order of removal.” Construing alien’s appeal denial of his habeas petition as a timely filed petition for review was consistent with the purpose of the REAL ID Act and its transfer provision. Judicial interpretation of the Immigration and Naturalization Act from Gonzales v. Dep’t of Homeland Sec.–that a Form I-212 waiver, even if granted, does not cure the inadmissibility of an alien who reenters the United States without inspection after a prior removal–applies to all cases currently on direct review. Alien had no fundamental right to reside in the United States just because his family lives here.

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Just in – Client had Consulate Processing Case terminated and we were able to get case reinstated so she can bring her family into the U.S.

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Just received win for client that previously was in Deportation/Removal proceedings and got the case terminated and then got USCIS to adjust his status to that of a Lawful Permanent Resident

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Just received approval of Naturalization for client that had prior abuse crime.

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can i apply for my new husband even though i did for my ex – Immigration – Avvo.com http://ping.fm/2uJQ0

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Please explain the process to get a green card for a canadian citizen woking in States on a TN – Immigration – Avvo.com http://ping.fm/UyIMD

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How to know if you can get the Green Card through a Marriage Petition – Avvo.com http://ping.fm/pCOia

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