The court held that the BIA interpretation of §1003.(d)(3) in In re A-S-B- cannot stand and that an IJ’s forecasting of future events constitutes fact-finding that the BIA must review under the clearly erroneous standard. (Huang v. U.S. Att’y Gen., 9/8/10)
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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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To be timely, petitioner’s motion to reopen had to be filed within 90 days of the Board of Immigration Appeals’ initial merits determination, not within 90 days of the denial of his motion to reconsider.
Soria Vega v. Holder – filed July 19, 2010
Law Offices of Brian D. Lerner
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