Where jurisdiction was stripped due to aggravated felony conviction, 4th Cir held that the CAT determination was a factual question, reviewable for substantive evidence; therefore, it could not be a question of law under 1252(a)(2)(D). It also refused to consider Board use of wrong standard of review, as simply recasting factual arguments as legal arguments. Finally, it deferred under Chevron to the Board's holding that a refugee cannot re-adjust to LPR status under 1159(a).
The 7th Cir found no jurisdiction to review IJ's denial of a continuance for I-130 approval, and found that BIA did not exceed the scope of its authority in refusing to remand for Adjustment (when I-130 was approved on appeal) on the grounds that Adjustment wouldn't be merited in the exercise of discretion
Ruiz-Martinez, et al. v. Mukasey, 05-2903-ag (2d Cir. 2/14/08)
MINER Cabranes (Crotty - DistCt)
The Court held that to avoid Suspension Clause problems, it would construe the Real ID Act to contain a 30 day grace period after enactment of the statute, in which a Petition for Review was timely filed. It found the 30 day period filing period to be jurisdictional in nature, and not subject to equitable tolling.
The 1st Cir found the IJ´s denial of non-LPR Cancellation supported by substantive evidence where there were discrepancies between testimony regarding date of reentry to US, and whether it was within 90 days of departure. No mention of 1252(a)(2)(B)(i).
The 9th Cir held that while a Kansas drug statute did was not categorically an aggravated felony, the charging documents clarified that he was convicted of possession for sale, which is a trafficking offense and thus an aggravated felony.
Kalilu v. Mukasey, No. 06-75425 (9th Cir. 2/14/08)
PER CURIAM Reinhardt Bea DNelson
The 9th Cir found it an abuse of discretion to deny reopening to someone on the ground that because they are an arriving alien, they need to apply for Adjustment before USCIS; that would "render[] worthless" the statutory ability to adjust status, because someone outside the country can't adjust.
The 9th Cir held that where an individual's car broke down, so that he arrived to his removal hearing 2 hours late - but IJ was still on the bench - that he had not "failed to appear," and thus did not need to show exceptional circumstances in order to reopen his case.
Mocanu et al. v. Mukasey, __ F.Supp.2d __, 2008 WL ___, No. 2:07-cv-00445-MMB (E.D.Pa. Feb. 8, 2008)
Michael M. Baylson, U.S.D.J.
The District Court found that (a) name check-based delays are not authorized by the statute, (b) that it would require notice-and-comment rulemaking to adopt the name check rule employed by USCIS, (c) found an APA violation "as applied" to LPR applicants for citizenship, (d) found delays to be without proper legal support. As remedy, ordered USCIS to undertake notice-and-comment rulemaking, and asked whether these name checks are really necessary or usefu.
The 9th Cir affirmed and adopted the District Court decision in Park v. Gonzales, 450 F. Supp.2d 1153 (D. Or. 2006), which upheld the authority of the State Department to terminate an I-130 registration for individuals who did not pursue their visa application within a year, and also upheld the subsequent USCIS revocation of the visa approval.
The 6th Cir found that where the Board granted reconsideration of an order (but ordered removal anyway), after the Petition for Review was filed, that this had the effect of vacating the removal order and substituting a new removal order. Because no new Petition for Review had been filed, found no jurisdiction to consider case.
Indonesian 7th Day Adventist applying for Withholding claimed that BIA engaged in impermissible factfinding when it found that past abuse did not rise to the level of future persecution. 1st Cir. found that (a) the IJ's decision implicitly found no past persecution, (b) Board was re-analyzing facts, not finding new ones, and (c) it would have been harmless anyway.
Immigration Litigation Update 
