The Petitioner asks the Supreme Court to resolve whether mere possession of a weapon, with intent to use it unlawfully against another, is a "crime of violence," and an aggravated felony.
The law firm of Jones Day, in conjunction with the NYC Supreme Court Clinic, asked for certiorari regarding the jurisdiction of the federal courts to consider a Court of Appeals' jurisdiction to review an IJ's denial of a continuance. A majority of circuits would hold that jurisdiction is not stripped by 1252(a)(2)(B)(ii), because authority over the continuance is not "specified" as discretionary by the statute. Moreover, the AG has taken the position that jurisdiction does in fact exist in this context. Petitioner actually asked for summary reversal.
A certiorari petition was filed by the Yale Supreme Court Clinic and Mayer, Brown, asking the Court to resolve a divergance between the circuits regarding the persecutor bar. The 8th Circuit finds duress relevant to involuntariness, whereas the 2d and 5th cirs find involuntariness completely irrelevant to whether the asylum-appicant engaged in past persecution.
The 2d Cir found that it had jurisdiction to consider an ineffective assistance claim in a cancellation case, because it is at heart a constitutional claim. Denied on the merits without substantial discussion.
Walcott v. Chertoff (2d Cir. 2/19/08) (amended 2/28/08)
KEENAN (dct) Cardamone Pooler
The 2d Cir found that an alien´s ability to appeal a conviction post-AEDPA was not fatal to his ability to establish reliance on a Restrepo theory, that he failed to file a 212(c) claim earlier in reliance on continued existance of 212(c).
The 9th Cir found that "counterfeit of a mark" inherently involved fraudulent conduct or theft, and thus, involved moral turpitude. The Court also held that his claim that his due process rights had been violated was remediable at BIA, and thus, required exhaustion before being raised at the 9th cir.
The 10th Cir followed the lead of other circuits in finding the fugitive disentitlement doctrine applicable in the immigration context, and found that Petitioner's status as a (male) VAWA applicant did not give him the freedom to flout the bag and baggage letter.
Note: B&B letter sent 6 days after final BIA order (!?)
In procedural fairness claim arising from a 212(h) waiver, the 7th Cir held that (a) as a due process argument, it would fail because there is no protected liberty interest in discretionary relief, but (b) it analyzed the procedural claim under 1229a(b)(4)(B), despite Petitioner's reliance on the constitution. On the merits, the claim failed for lack of prejudice.
The 9th Circuit vacated its decision in Cordes v. Gonzales, 421 F.3d 889
(9th Cir. 2005), on the grounds that the Board's 2003 remand to the IJ for entry of a removal order (under the now-vacated decision in Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir. 2004) had the effect of depriving the CtApp of jurisdiction to review the initial BIA order.
The 7th Cir awarded significant legal fees in 7th Cir asylum case, Tchemkou v. Gonzales, 495 F.3d 785 (7th Cir. 2007). The Court found that the hours listed were not unreasonable simply by comparison with other cases where the lawyers did not work as much, and found that internal discussions among the legal team were specifically covered. The case also included a discussion of other aspects of EAJA recovery.
The 10th Circuit expressed disagreement with the 9th and 2nd circuits, Secaida-Rosales v. INS, 331 F.3d 297, 308–09 (2d Cir. 2003); Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999), which held that an adverse credibility determination can be based on omissions or on minor inconsistencies. Found that a common sense approach must reign, whereby minor inconsistencies might lead to adverse findings, as may omissions.
Immigration Litigation Update 
