The 9th Cir. held that VWP entrants who marry and apply for Adjustment of Status *after* their 90 days have elapsed cannot obtain removal proceedings before being removed. The 9th Cir. appears to say, as well, that such individuals are not eligible to adjust status. Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006), distinguished.
In a prosecution arising from the Swift Meatpacking raids, the 8th Cir held that an "identity theft" conviction (a) does not require that the "victim" be alive, (b) does not require that a person know that the identity they're using belongs to another person, and (c) was supported by evidence sufficient to permit a jury to find that the "victim" was a real person.
The 8th cir denied this appeal from a denial of a motion to rescind, for a woman with an approved widow's petition. Petitioner said that her attorney told her not to go to the hearing, and filed a Lozada complaint. The IJ / BIA denied rehearing, because the first affidavit she signed said that she had "misunderstood" her attorney regarding the necessity to go to the hearing, whereas the second said that he told her not to go. The CtApp found that inconsistency to be sufficient to deny rescission.
Judge Bye, dissenting, gave 6 reasons (including prior disciplinary action and the approved widow's petition) to believe Petitioner rather than her former attorney.
The 8th Circuit (a) found that the question of proper service of the NTA, though it occurred in the 9th cir, was governed by 8th cir caselaw on appeal; and (b) it found that minors aged 14-18 can receive notice of an NTA, consistently with Due Process and with the statute - disagreeing with the 9th cir in Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1162 (9th Cir. 2004). Judge Bye dissented, arguing that 9th Cir law should govern service within the 9th Cir, because a contrary result would encourage forum-shopping.
The 1st Cir denied a Petition for Review, which argued that new evidence about Indonesia showed changed country conditions. Instead, said the Court, "the evidence merely confirmed the ongoing nature of the religious conflict in Indonesia." The Court also found that generalized risk not enough to show likely persecution of this Petitioner, under the Withholding standard.
The 7th Cir held that possessing a look-alike substance is a crime "relating to" controlled substances; thus, the Petitioner was removable on the controlled substances ground.
The 2d Cir rejected the argument that the Federal Rules of Civil Procedure acted to add 3 days to the 30 day appeal period. However, though the derivative citizenship claim was also unexhausted, found that because someone cannot “unintentionally relinquish U.S. citizenship,” there could not be waiver. On the merits, the court remanded to the BIA, to consider whether INS delay in adjudicating the citizenship application of Petitioner’s mother until after he turned 18, as well as the Petitioner’s equities, merited some consideration.
The 2d Cir found the INA's stalking provision at INA § 237(a)(2)(E)(i) to not be unconstitutionally vague, simply because it doesn't define stalking.Stalking was defined by "common understanding," and is criminalized federally and in all 50 states.
The 2d Cir. found no ineffective assistance of counsel where former counsel decided to withdraw the asylum application and seek VD, rather than face a possible frivolousness finding. The Second Circuit laid down, as if it were a general rule, that proceedings remain fundamentally fair where an attorney advises a client to seek voluntary departure rather than pursue other forms of relief.
On 3/14, the 3d Cir handed down two apparently contradictory decisions, Yusupov (which held that the 3d Cir had jurisdiction over a Petition for Review filed despite remand to IJ for record checks) and Vakker (IJ decision was the final administrative decision). The 3d Cir today attempted to distinguish Vakker, noting that for CAT purposes, the background check can't change anything. (In that case, why have it?). The amended decision contains a new footnote, distinguishing Vakker.
The 5th Cir found that while Texas "delivery" of a controlled substance is not necessarily a trafficking offense, it could use the "judicial confession" to establish an offer of a sale, so that this conviction did qualify as trafficking.
Immigration Litigation Update 
