Judge Ripple denied the motion to stay the mandate for 30 days, pending the filing of a Petition for a Writ of Certiorari. The motion identified grounds for seeking cert that are more intra-circuit conflicts than a circuit split; failed to note any circuit that disagrees with the 7th cir; and did not convince Judge Ripple that there was a significant likelihood of cert being granted.
Judge Easterbrook gives a broad and sweeping rationale for using minor inconsistencies to find asylum applicants to lack credibility; and upholds denial in this case, in light of later remembering of details that even then did not hold together.
In federal habeas corpus petition, filed outside the one-year filing period, prisoner argued that lack of English was "extraordinary circumstance," justifying equitable tolling. 10th Cir rejects 2d and 9th cir caselaw, finds language barriers do not constitute an extraordinary circumstance. Contra Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2005); Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008).
A District Court judge sentenced an asylum-seeker to 9 months' imprisonment for entering the US with false documents, because he violated the terms of his supervision by being arrested for driving with a suspended license (b/c he did not pay a $25 fee to reinstate it after a DUI). The District Court said it was imposing the penalty because he was here without status and would lose at the BIA as he lost with the IJ. The 11th Cir found that an impermissible reason to increase his sentence.
The 2d Cir found VAWA self-petitioner's use of another's last name (man with whom she had a child) at the consulate to be a material misrepresentation; and thus, no jurisdiction over 212(i) denial. Also held that she had been "admitted" on visa, despite fraudulent misrepresentation.
The 2d Cir found no prejudice from alleged violation of DHS regulations that permit asylum applicants to withdraw asylum applications rather than be denied, because DHS denied prosecutorial discretion. Found that challenge to DHS decision to institute removal proecedings was barred by 8 USC 1252(g), unless it raised a constitutional question or question of law.
The 2d Cir considered whether applying the stop-time rule to pre-1996 crimes (where conviction comes after 97) is retroactive; found the statute unclear, but found no retroactive effect, because Petitioner merely passively awaited prosecution, and did not take any other steps; and where the act at issue is not legal but real (i.e., committing the crime), it makes no sense to ask whether he acted in reliance on the old law. Straub, concurring, would find that the law has retroactive effect, but would uphold under 2d cir precedent because no reasonable reliance.
(a) fraud relating to income tax is encompassed within the meaning of 101(a)(43)(M)(i), notwithstanding the specific provisions of (M)(ii), accord, Kawashima v. Gonzales, 503 F.3d 997, 1000-01 (9th Cir. 2007), cf. Lee v. Ashcroft, 368 F.3d 218, 220 (3d Cir. 2004),
(b) the PSR was admissible to prove the amount of loss in a fraud case. Rejecting Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. 2004) (holding that “if the record of conviction demonstrates that the jury in Petitioner’s case actually found that Petitioner caused, or intended to cause, a loss to the government of more than $10,000, the modified categorical approach will be satisfied,” but not otherwise); Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 133 (2d Cir. 2007).
Penuliar v. Mukasey (9th Cir. 4/22/08) (Penuliar III)
PREGERSON, Berzon, Browning
The 9th Cir found that Evading an Officer was not categorically a crime of violence, because the California statute could be violated by a showing of 3 traffic violations; that Unlawful Taking of a Vehicle was not categorically a theft offense, because it encompassed after-the-fact accessory liability; and that record of conviction was not sufficient to establish removability under either possibility.
Santamaria v. U.S. Atty Gen'l (11th Cir. 4/22/08) (sua sponte vacating earlier decision at 512 F.3d 1308 (11th Cir. 2008))
STORY (DCt), Edmondson, Dubina
The 11th Cir found that Colombian asylum applicant had suffered extreme mistreatment at hands of the FARC (counting the murder of her groundskeeper as persecution of her); found that 5 returns to Colombia did not show lack of subjective fear, where persecutions increased over time.
The 7th cir upheld an adverse credibility finding against a Pakistani asylum-seeker, in part based on his airport interview (age 16 at the time). It found that it was reasonable to believe that the arrest warrant for him was valid, though he argued that it was issued based on undue influence of another religious sect. Finally, he could relocate within Pakistan, since Sunnis are the majority religious group. Judge Cudahy, concurring, agreed that he could relocate to another village, but didn't agree with discussion of religion in the village.
Immigration Litigation Update 
