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Immigration Litigation Update
2d Cir finds no final order, dismisses for lack of jurisdiction Print E-mail
Second Circuit
Written by Hena Mansori   
Tuesday, 30 June 2009

Arias Chupina v. Holder (2d Cir. 6/25/09)

 

Petitioner applied for asylum, WH, and CAT but just missed the one year deadline because his non-attorney delayed the submission of his applications. The IJ found that the non-attorney representative's advice did not constitute a claim of IAC which excused him from his untimely filing. The IJ also denied WH and CAT, finding that Petitioner was subject to the persecutor bar.  The BIA agreed with the IJ that Petitioner could not raise an IAC claim b/c he had not satisfied the Lozada procedural prerequisites (e.g, filing a complaint). However, the BIA remanded to the IJ for a new determination on WH and CAT, finding that the IJ had erred in applying the persecutor bar to Persecutor. Petitioner asked the BIA to reconsider - the BIA denied the motion. Petitioner appealed both BIA decisions to the 2d Circuit.

 

The 2d Circuit dismissed Petitioner's two PFRs, finding no jurisdiction since Petitioner's case is still pending before the IJ for consideration of WH and CAT and thus he does not have a final order of removal. The court rejected Petitioner's argument that review of his petitions is proper because there may not be a "final order of removal" upon the agency's adjudication of his WH and CAT applications.  Specifically, Petitioner argued that while a withholding grant requires an entry of an underlying order of removal, CAT does not require this. Thus, if he were granted CAT, there would still be no order of removal in his case, and thus no final order upon which the court could exercise jurisdiction.

 

The 2d Circuit found that a CAT grant necessarily requires the IJ to determine whether someone is removable from the U.S., and therefore that a CAT grant would establish an order of removal that would eventually become final. The court also noted that Petitioner - once obtaining a final order below - need not appeal the grant or denial of WH or CAT to the BIA in order to preserve his exhausted claim that his asylum denial was in error. 

 

[HM note: In my cases where the IJ has granted deferral under CAT, I recall that he has also simultaneously entered a removal order. Is this not the case elsewhere?]

 

Gvt's motion to dismiss granted.

 

Read opinion here.

 

Atty for Petitioner: Anne Pilsbury (Heather Yvonne Axford, on the brief), Central American Legal Assistance, Brooklyn, NY.

 
Group including NIJC files Petition for Rulemaking seeking appointed counsel Print E-mail
Newly Filed Litigation
Written by Chuck Roth   
Tuesday, 30 June 2009

NIJC, CLINIC, NWIRP, NIF, and the BC law clinic filed a Petition for Rulemaking today, asking EOIR to begin rulemaking to permit Immigration Judges to appoint counsel in certain circumstances.  The argument we make is that in some hearings, for removal proceedings to be fundamentally fair, counsel should be appointed.  Assuming arguendo that there is no Fifth Amendment right to counsel, across the board, the case law would support a more limited right to counsel in certain types of cases.  The Petition for Rulemaking does not address payment where counsel is appointed, though certainly we do believe that some compensation would be appropriate.  But the first step as we see it is to protect the rights of pro se individuals who aren't receiving a fair hearing.  The Petition suggests the following regulatory language:

(c) Counsel may be appointed for an indigent alien only where the Immigration Judge concludes that appointment of counsel is necessary in order for the proceedings to be fundamentally fair. In making this determining, an Immigration Judge shall consider:

(1) The alien’s ability to read, write, and comprehend the English language;

(2) The complexity of the relevant statutory and regulatory provisions;

(3) The complexity of the application of the relevant statutory and regulatory provisions to the facts of the case;

(4) The nature of the claims being advanced in the proceedings;

(5) Whether the respondent is detained;

(6) The nature of the due process interest at stake;

(7) An alien’s ability to conduct proceedings on his or her own behalf;

(8) Health or any other exigent circumstances that necessitate an efficient proceeding;

(9) Any other factors that warrant the appointment of counsel.

Where a respondent makes a facially plausible claim to U.S. citizenship, and does not obtain private counsel or free legal counsel, the Immigration Judge shall appoint counsel to represent the respondent unless the respondent indicates his desire to proceed forward without counsel.

A pdf version of the petition can be downloaded here:

Thanks are due to many individuals for their assistance in reviewing and improving this Petition, and to Jones Day for its pro bono assistance. 

 
2d cir slightly amends Mahmood decision from April Print E-mail
Second Circuit
Written by Hena Mansori   
Friday, 26 June 2009

Mahmood v. Holder (2d Cir. 6/25/09)

CALABRESI, Winter, Walker

 

The 2d Circuit amended and republished its decision in this case. The only change the court appears to have made was to substitute the word "Agency" in place of "BIA." According to a footnote, the gvt requested that the court amend its opinion, asserting that the BIA lacked authority to open the petitioner's proceedings sua sponte as the BIA had not previously rendered a decision in the case. The gvt argued that it was up to the IJ to decide whether to reopen sua sponte.  Rather than addressing this issue, which had not been briefed, the court decided it was best to simply refer to the "Agency" rather than the BIA or IJ more specifically.

 

Read opinion here.

 

Read blog of original opinion here.

 
1st: Exhaustion of Admin Remedies Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Thursday, 25 June 2009

Amjad Rana v. Holder (June 24, 2009)

Lynch, Selya, Howard

 

The Court held that as Petitioner had not raised his argument to the BIA (agument is that is was error to find him inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(II) because he reentered the US after the statute's effective date), he had not exhausted his administrative remedies.  Since the argument was not presented to the BIA, admin remedies were not exhausted so the Court does not have jurisdiction to review the argument.

Read Opinion Here...

 
1st: No Judicial Review and No Abuse of Discretion in MTR Denial Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Thursday, 25 June 2009

Calderon-Guzman v. Holder (June 19, 2009)

HOWARD, Selya, Ebel

 

The Court found that it lacked jurisdiction to review the IJ's denial of a sua sponte MTR, no abuse of discretion by BIA in finding that Calderon had not shown lack of notice for failing to attend the removal hearing at which he was ordered removed in absentia and that the BIA had provided a "specific and cogent statement of the relevant facts and correctly applied the applicable law.  The Court did note that they were sympathetic to the health problems of the Petitioner, they denied his PFR as the Court stated there was no justification for granting the PFR within the scope of judicial review allowed to them.

 

Read Opinion Here...

 
1st: PFR Denied to Indonesian Asylum Seeker Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Tuesday, 23 June 2009

Pangemanan v. Holder (June 10, 2009)

LYNCH, Selya, Stahl

 

The Court once again found that the BIA has substantial evidence to rely on in finding no past or future persecution due to Petitioner's status as a practicing Christian in Indonesia.

Read Opinion Here...

 
1st: No Abuse of Discretion Since Visa Number Not Available Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Tuesday, 23 June 2009

Oliveira v. Holder (June 4, 2009)

Lynch, Boudin, STAHL

 

 The Court held that where the visa number for a potential adjustment of status applicant is not yet current, the BIA does not abuse its discretion in denying a motion to reopen since there is no established prima facie eligibility for relief without the current visa number.

 

Read Opinion Here...

 

 
1st: PFR Denied to Cambodian Asylum Seeker Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Tuesday, 23 June 2009

Touch v. Holder (June 4, 2009)

Torruella, LIPEZ, Howard

 

The Court denied the PFR finding that substantial evidence supported the BIA finding of no past or future persecution.  Additionally, the Court found that as the CAT argument was not developed in BIA briefing, it was deemed waived.

Read Opinion Here...

 
Unlawful Use of Vehicle No Longer an Aggravated Felony Print E-mail
Fifth Circuit
Written by Dave Kerastas   
Sunday, 21 June 2009

U.S. v. Armendariz-Moreno (6/15/09)

Reavley,  Barksdale, Garza (Per Curiam)

Appellant’s criminal sentence for illegal reentry was affirmed by the Fifth Circuit in 2007.  Circuit precedent precluded the appellant’s argument that his prior conviction for unlawful use of a vehicle was not an aggravated felony (crime of violence), but the appellant sought to preserve the issue for Supreme Court review.  In light of its decisions in Begay v. U.S., 128 S.Ct. 1581 (2008), and Chambers v. U.S., 129 S.Ct. 687 (2009), the Supreme Court remanded the case back to the Fifth Circuit. “Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct.”  The Court conceded, “The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct.”  Thus, the Court remanded the case for resentencing.

 

Read the Opinion Here

 
1st:BIA Denial of Sua Sponte MTR, No Review Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Sunday, 21 June 2009

Da Silva Neves v. Holder (June 4, 2009)

Lynch, Torruella, Ebel

 

 Once again the Court held that it has no jurisdiction to review denials of sua sponte MTRs.

 

Read Opinion Here... 

 
 
1st Cir: PFR Denied in Lithuanian Sex Trafficking Case Print E-mail
First Circuit
Written by Eleni Wolfe-Roubatis   
Sunday, 21 June 2009

Burbiene v. Holder (June 1, 2009)

Lynch, Selya, LIPEZ

 

Petitioner applied for asylum based on her fear that she and her daughter would be forced into prostitution (sex trafficking) if returned to Lithuania.  The IJ and BIA found that she failed to establish future persecution on account of a protected group and that the feared activity was criminal rather than a governmental activity.  Furthermore, they found that the record did not support a finding that Lithuania was unwilling or unable  human sex trafficking.  The Court agreed with the BIA that the facts did not establish a nexus between the claimed fear and the government of Lithuania and that the BIA conclusion that well founded fear had not been established was supported by substantial evidence in the record.  

 

 Read Opinion Here...
 
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