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.
The 5th Cir found, in the context of an illegal reentry prosecution, that the fact that someone was deported after committing an aggravated felony was a fact that needed to be proven to the jury. Almendarez-Torres v. United States, 523 U.S. 224 (1998), distinguished.
The 9th cir found the date of entry (for purposes of the one-year bar) to be a disputed fact - if that date had been undisputed, could have obtained judicial review under Ramadan. On withholding merits, found that end of Sierre Leone civil war was enough to rebut presumption of future harm, notwithstanding continued violence.
The 2d Cir found that (a) when an arriving alien was applying for Adjustment based on a new marriage, it was not a "renewal" of the AOS, and thus, the IJ did not have jurisdiction, and (b) that the possibility that ICE would remove the Petitioner before USCIS could decide the AOS was "speculative" such that Petitioner lacked standing to raise it.
Immigration Litigation Update 
