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Kaba v. Mukasey (6th Cir., 11/13/2008, No. 07-3862)
DAUGHTREY, McKeague, Van Tatenhove
Petitioner came from Cote D'Ivoire (Ivory Coast) to attend college in Michigan. After he stopped attending university he was placed in removal proceedings wherein he applied for asylum, withholding, and protection under the Convention Against Torture. He claimed persecution because he was a Muslim from the Dioula ethnic group whose family had its roots in northern Cote d'Ivoire. The IJ denied finding him not credible, the BIA affirmed the IJ's decision and the 6th Cir. denied the petition for review.
1. The 6th Cir. upheld the IJ's denial of asylum, although stating that the IJ's
"reliance upon perceived defects in (petitioner's brother's) testimony to conclude that (petitioner) was not a credible witness is unpersuasive."
2. The 6th Cir. did find testimony by petitioner which upheld the IJ's adverse credibility determination and therefore denied the petition.
In a lawsuit regarding the environmental impact of Navy exercises, the Supreme Court issued a decision which may impact immigration cases, by affecting the standard for stays of removal. The Govt argued that the "mere possibility" of harm was insufficient for entry of injunctive relief, arguing that a showing of a "likelihood" of harm was necessary. The Court agreed.
We agree with the Navy that the Ninth Circuit’s “possibility” standard is too lenient. Our frequently reiteratedstandard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O’Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed.1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 155 (“a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”). Issuing apreliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterizationof injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam).
It is interesting to note that the following sentence in the Court's opinion suggests that the whole issue is dicta, as the 9th Cir held that the harm was a "near certainty." Regardless, the Court's opinion sounds remarkably clear on that point.
As Justice Ginsburg points out in dissent, "courts have evaluated claims for equitable relief on a “sliding scale,” sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 195 (2d ed.1995)." It appears to me that such precedent may be overturned by this decision.
While last week's presidential election stirred hope among so many Americans, including immigrants, other events in the past few days remind us that the harsh anti-immigrant environment that has evolved in the United States in recent years continues to devastate communities and families.
In 2007, there were about 645,000 foreign-born veterans of the armed forces, accounting for nearly three percent of all surviving U.S. veterans, according to the Migration Policy Institute.
Mendez v. Mukasey (2d Cir. 11/6/08, no. 07-1114-ag)
KATZMANN, Sack, Rakoff
Petitioner argued that her CT conviction for first degree larceny in the form of "defrauding a public community" was not a crime involving moral turpitude. The 2d Circuit reviewed the Board's determination that the crime was a CIMT de novo, according no deference to the Board's construction of state criminal statutes. See Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). However, the court also found that the crime was a CIMT and denied the petition.
The court applied the modified categorical approach, finding that the statute under which Petitioner was convicted was divisible and thus looking to the record of conviction - which evidenced a conviction for larceny by defrauding a public community. Petitioner argued that this conviction - under Conn. Gen. Stat. 53a-119(6) - was not a CIMT because the state did not need to prove an intent to defraud in order to obtain a conviction under this particular subsection of the statute. She argued that the statutory language in 53a-119 defining larceny as "wrongfully tak[ing]" property from another "with intent to deprive" that person of the property was simply prefatory language and that a person could be convicted under (6) without either an intent to defraud or prejudice the government. The court rejected this argument, finding in accordance with an earlier decision, Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) that the "intent to deprive" language in 53a-119 was mandatory throughout the statute's subsections. Although Abimbola did not control the case at hand as it dealt with third degree larceny, dicta in Abimbola recognized that the intent to deprive requirement also applied to first and second degree larceny.
Finally, the court rejected Petitioner's arguments that the CT Appellate Court's decision in State v. Robins vitiated the statutory requirement of intent, finding that Robins stood for the much narrower proposition that the state need not prove that a person making a fraudulent claim otherwise would not be entitled to benefits. In addition, the court found that while not every offense under the CT larceny statute constitutes a CIMT, defrauding a public community does since the temporary v. permanent taking distinction that applies to theft does not apply to offenses involving an intent to defraud. See Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007).
PFR denied.
Atty for Petitioner: Justin Conlon, Law Offices of Michael Boyle, North Haven, CT.
General Immigration 
