In a 238(b) expedited removal, the 6th cir declined to address the procedural due process arguments, finding that restitution of 875K was sufficient to show that fraud conviction was over 10K, in the absence of plea agreement to the contrary. The Court also rejected a (weak) Equal Protection against against 238(b) proceedings.
The 6th Cir held that the Board acted irrationally in refusing to consider FOIA evidence obtained while case was on appeal, strongly suggesting that the I-130 was received by USCIS before the Petitioner turned 21 (thus bringing him within the CSPA and making him eligible for Adjustment of Status). It also stated that the Board could have simply ordered DHS to produce the original envelope, just as it (the CtApp) did.
The 1st Cir upheld a Brazilian asylum denial: (a) past threats were not escalating in nature or accompanied by overt action, so did not rise to level of past persecution; (b) fact that threats subsided after relocation, no harm to family in Brazil, undercut future fears.
In whistleblower case, the 7th Cir found that where Govt agents were involved in threats, there was no obligation to go to the police, and attempts to go public were sufficient to show nexus to political opinion. Govt waiver arguments were rejected because (a) where issues were intertwined, "thin" briefing was enough to avoid waiver, and (b) even if there had been waiver, court would excuse waiver to avoid manifest injustice: namely, deportation to his death.
The 8th Cir had already held that checking off an I-9 form as a "citizen or national" was a false claim to citizenship, in the absence of any claim to be a national. The 8th cir today held that seeking private employment was a "benefit" under the Act, so as to render the applicant permanently inadmissible. The 8th Cir rejected arguments that proceedings before DAO should be excluded for lack of a translator, preferring to credit the DAO's testimony that the Petitioner understood the questions.
The 10th Cir upheld the IJ finding that offense was child abuse, finding earlier proceedings were not res judicata, deferring to the Board's definition of child abuse, and finding that state court minute orders clarified typographic error as to section of offense.
The 1st Cir concluded that felony "indecent assault" on person under 14 years of age involves a substantial risk that force would be used in the course of the offense - therefore a Crime of Violence and an Aggravated Felony
The Supreme Court granted certiorari today to address whether duress is relevant as a full or partial defense to the allegation that an asylum-applicant assisted in the persecution of others.
The 3d cir held that the "final order" for purposes of appeal was the IJ decision after BIA remand for record checks; which is inconsistent with another 3d Cir decision issued on the same day, and with other circuits to consider the question. On merits, where the Petitioner was a parolee with no regulatory right to renew his AOS application before the IJ, and where USCIS had already denied AOS, there was no error where Board refused to remand to IJ for AOS.
The 3d Cir overturned part of In re A– H–, 23 I. & N. Dec. 774, 788 (A.G. 2005). It found (a) that it had jurisdiction despite remand to IJ for background checks; (b) that the AG's "reasonable person" standard was reasonable construction of the statute; (c) that the AG's standard of whether someone "may be" a danger is inconsistent with the statutory standard that the person "is" a danger; (d) that Congress intended to adopt int'l law norms for determining asylum eligibility; but (e) danger to security is inherently serious, no need to read that word into the statute.
In a Guantanamo case, the D.C. Cir stayed the removal of an individual from Guantanamo to Algeria, where he fears torture. The Court found a substantial possibility that the District Court maintained habeas jurisdiction, and found that the District Court's power under the All Writs Act to enter collateral orders to preserve its jurisdiction would suffice to grant it authority to stay removal to Algeria. Found that in light of gravity of harm feared (torture), Belbacha might be able to meet the standard, remanded to Dist Ct.
Immigration Litigation Update 
