The 7th Cir rejected the Govt's argument that he didn't administratively exhaust, finding that his claims, while not detailed, were sufficient to put the BIA on notice as to his claims. IJ and BIA failed to consider arguments that he would face future persecution (a) from the Israelis, in the form of economic persecution, and (b) from Palestinians on account of his alleged spying for Israel. Re imputed political opinion the CtApp said: "it makes little difference that Hamdan, as the IJ put it, 'never affirmatively expressed his neutrality'; what does matter is how militant groups perceived Hamdan’s political affiliation—regardless of what he 'affirmatively expressed'—and whether it was likely that they would harm him because of that perception." CtApp found that IJ misperceived the argument, and thus failed to address it.
The 9th Cir held that a "no match" letter from the Social Security Administration did not put an employer on "constructive notice" that their employees were unauthorized to work. It held that the arbitrator's award did not contravene public policy, because there are many other possible explanations for no-match letters, and it also held that employers 3-day response period was too short. It therefore upheld the arbitrator's award of reinstatement.
The CtApp found jurisdiction under 1252(a)(2)(D) to review the "extraordinary circumstances" finding of BIA, and that it is not inherently discretionary: "The term “extraordinary circumstances” is not rendered standardless by the fact that Congress left the Attorney General and other agencies the authority to refine the contours of the provision." However, on the merits, the CtApp rejected Petitioner's argument, finding that the "extraordinary circumstance" of having a valid visa did not "toll" the one-year deadline; found the regulations' 6 month period after expiration of a visa to be reasonable, "[i]n the absence of any special considerations." ("Although we conclude that six months may serve in default as a reasonable presumptive deadline, we do not foreclose other reasonable periods, and exceptions thereto, that may be set by the agency, nor do we preclude individualized determinations of reasonableness of delay").
The 2nd Cir. held that, in order to establish eligiblity for asylum, WH, and CAT claims based exclusively on activities undertaken after applicant's arrival in U.S., applicant must make some showing that authorities in his country of nationality are (1) aware of his activities or (2) likely to become aware of his activities.
Petition for review granted in part, remanded to consider whether authorities of PRC were aware or likely to become aware of petitioner's activities.
Petitioner's NTA charged him as an ag fel but did not specify the subsections under which he was being charged. In front of the IJ, the TA declined to amend the NTA and the IJ proceeded to amend it himself to specify the subsections.
The issues on appeal were (1) whether the immigration court lacked jurisdiction over petitioner's case due to noncompliance with 8 USC 1229(a)(1)(D) (requiring that the NTA include the charges against the alien and the statutory provisions alleged to have been violated), and (2) whether, even if the IJ had jurisdiction to commence removal proceedings, she was not authorized to amend his NTA sua sponte.
(1) The 9th Cir. found that the NTA satisfied 1229(a)(1)(D)'s requirements, albeit minimally, and that jurisdiction thus vested in the IJ.
(2) As the BIA did not address the ultra vires argument below, and as the BIA had not to the court's knowledge previously addressed whether the INA and regs permit an IJ to amend an NTA sua sponte, the court remanded to the BIA to consider this argument.
The 9th Cir. considered the meaning of 8 USC 1158(d)(6) to determine whether the IJ had erred in making a frivolous finding on petitioner's asylum application, where petitioner withdrew her asylum application and the IJ never made a final determination on the merits of the asylum application. Though the court did not believe the language of the statute to be ambiguous - "final determination on such application" referred not to a determination on the merits of the application but to a final determination as to whether the application was frivolous - in light of the 2nd Circuit's recent decision in Zheng (finding the statute ambiguous and remanding to the BIA), the court opted to also remand to the BIA to make its own statutory interpretation.
Bo Hae Lee v. Mukasey, 10th Cir. 6/3/08 (published)
Kelly, McKay, Hartz (dissenting)
Petitioner entered the U.S. on a B-2 visa and received a change in status to a F-1 student visa, which allowed her to attend a private secondary school. However, in her sophomore year, the school petitioner was attending ceased operations and she transferred to a public high school. Petitioner applied for AoS, was denied, and was then placed into removal proceedings where her AoS application was again denied b/c the IJ found her inadmissible as a student visa abuser under 8 U.S.C. 1184(m), despite acknowledging that she may not have been at fault for terminating her studies. The BIA affirmed.
The 10th Cir., however, held that Congress intended to penalize only individuals who acted affirmatively to terminate or abandon , and since petitioner had merely reacted to the closing of her private school, she had not violated her student visa status. The court thus reversed and remanded for further proceedings.
Dissenting, Judge Hartz argued that the government's interpretation of the statute was more reasonable and that, in any event, the language is ambiguous and ought to be interpreted by the BIA.
The 5th Cir upheld 8 C.F.R. 212.7(d) (which raises the 212(h) standard from the statutory "extreme hardship" to "extraordinary and extremely unusual hardship" where crime is violent or dangerous) against a challenge that it was ultra vires, finding that Congress had left it to the AG to determine how to exercise discretion. Further, found that regulation was not retroactive because it did not completely eliminate 212(h) relief [how does that follow? - CR]
Accord, Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007); Jean v. Gonzales, 452 F.3d 392, 396-98 (5th Cir. 2006); Ali v. Achim, 468 F.3d 462, 466-67 (7th Cir. 2006)
The 7th Circuit dismissed much of Zeqiri's petition for review - finding that it lacked jurisdiction to consider her arguments regarding the timeliness of her asylum application - and denied the rest of the petition, finding that the BIA's decision denying withholding was supported by substantial evidence. On the second point, the court found that Zeqiri - an ethnic Albanian from Macedonia - had not demonstrated personal or particularized persecution, and a "fear of ethnic persecution 'common to all members of an ethnic minority' is generally insufficient." (quoting Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir. 2000). Zeqiri's testimony regarding her arrest was not credible and thus there was no evidence of personal persecution.
The 9th Cir. denied petition of review of BIA's decision affirming IJ's determination that petitioner's asylum application was frivolous. The court referred to the BIA's 2007 decision in In re Y-L, 24 I&N Dec. 151 (BIA 2007), in assessing whether the IJ had met the procedural requirements necessary for a finding of frivolousness. Finding that the IJ had met these requirements, the court upheld the frivolousness finding.
Immigration Litigation Update 
