Where petitioner had filed a motion to reopen and remand with the BIA, in order for him to be able to apply for an extreme hardship waiver under INA 216A, the court held that it had jurisdiction to review the Board's denial of this motion for abuse of discretion and that this appeal was not insulated from appellate review simply by being labeled "discretionary."
However, in reviewing the Board's denial of the motion to remand, the court concluded that the Board had not abused its discretion. The Board's interpretation of the regulation - that the extreme hardship period was only the period that the alien was admitted for permanent residence on a conditional basis - was permissible, and the Board was therefore not required to consider evidence following the end of this period (including his second wife's naturalization and children's birth certificates). Absent this evidence, the Board did not abuse its discretion in determining that petitioner had failed to present previously unavailable material evidence such that a motion to remand was warranted.
The First Circuit found that the BIA did not err as a matter of law or abuse its discretion in holding that Kechichian was not a member of a particular social group and denying a motion to reopen as new evidence presented by Kerchichian would not have entitled her to relief. The new evidence consisted of proof that Kerchichian’s son is not recognized as a citizen of Armenia as his father is not Armenian. The Court declined to recognize that potential persecution to Kerchichian’s son is not a sufficient ground through which Kerchichian herself could claim asylum or withholding of removal. While the Court recognized that the Sixth Circuit, in Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), had found that a mother would feared her daughter would be subject to genital mutilation was eligible for asylum, the Court considered Kerchichian’s case distinguishable and noted that the Sixth Circuit is not binding case law
The 2nd Cir. granted this PFR where petitioner from the Democratic Republic of Congo was denied asylum by the IJ, and the Board affirmed, stating that conditions in the DRC had changed to the extent that there was no evidence that petitioner would face persecution. The court found that the Board had improperly inferred that the general improvements of conditions in Congo rebutted the presumption of a well-founded fear of future persecution and that the Board ought to have conducted an individualized analysis of whether the changes in Congo were so fundamental that they were sufficient to rebut this presumption.
The 9th Cir. found that the Real ID Act overturned its prior asylum case law, requiring that a persecutor be motivated "at least in part" by one of the five protected grounds. The new standard is higher:
A “central” reason is a reason of primary importance to the persecutors, one that is essential to their decision to act. See supra at 9243. In other words, a motive is a “central reason” if the persecutor would not have harmed the applicant if such motive did not exist. As noted above, persecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was “at least one central reason” for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.
The Court found that the utterance of a racial slur, standing alone, was not enough to show that her race was a cause of the attempted rape.
The Stanford Supreme Court Clinic, Akin Gump, and Howe and Russell filed a cert petition seeking to resolve a circuit split regarding whether an undocumented person who uses fake documents is liable for aggravated identity theft, even if the person did not know that the documents belonged to anyone.
The 9th Cir agreed with the 2d and 3d Cirs that the Real ID Act implicitly contained a 30 day period in which previously-barred individuals could file a new Petition for Review. Accord Kolkevich v. Att’y Gen., 501 F.3d 323, 335 (3d Cir. 2007), Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008). But because PfR was filed after 30 days, that couldn't help him. He also asked the CtApp to "reinstate" a dismissed Petition for Review, but CtApp refused to do so (because he waited more than 2 months to ask), and also refused to treat request to reinstate PfR as a PfR itself (and it'd have been too late, anyway). CtApp refused to reinstate it nunc pro tunc, because the earlier decision "was not dismissed through any clerical mistake or error of law, but rather was properly dismissed under the law as it existed at the time".
A cert petition has been filed with the Supreme Court, asking the SupCt to resolve a circuit split regarding how to handle adjustment of status applications for arriving aliens.
[Analysis: if USCIS were able to competently handle applications, this issue would not need to come before the Courts of Appeals. Trying to get USCIS to adjudicate AOS applications for arriving aliens in proceedings would be a minor miracle, and after a final BIA order, even more difficult, notwithstanding their clear jurisdiction, and seemingly clear case law that even an outstanding removal order is not a ground of inadmissibility requiring advance permission to apply. See Matter of C- H-, 9 I&N Dec. 265 (Asst. Comm. 1961) - CR]
A 15 year old was in the custody of his uncle, the then-INS served the hearing notice on the boy, not the uncle - an in absentia order ensued. The boy moved to rescind just before age 21. The regs require notice on an adult for under 14 years; the 9th Cir., Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) found that service on all minors had to be on the adult custodian. The 8th Cir. disagreed, Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008). The 2d cir didn't follow either circuit, opting instead to remand to the Board for a published (or at least, thoroughly reasoned) opinion.
The 2nd Circuit found that the REAL ID Act of 2005 abrogated its 2003 holding in Secaida-Rosales v. INS, 331 F.3d 297 (2nd Cir. 2003), in which the court decided that adverse credibility determinations in asylum cases could not be based on inconsistencies and omissions that were ancillary or collateral to the applicant's claims of persecution. Rather, the court held that an IJ may now rely on omissions and inconsistencies so long as the totality of the circumstances establish that the applicant is not credible.
A Petition for Rehearing or Rehearing En Banc was filed in the Fourth Circuit, in a case which held that no constitutional right exists to effective representation of counsel, and that failing to inform the client of a final Board decision (so that they might Petition for Review) is not within the purview of the Board.
A cert petition was filed on July 10, 2008, seeking review of the question of whether 212(h) should be available, under the Equal Protection Clause, to LPRs who never traveled abroad. The 11th Cir so held, Yeung v. INS, 76 F.3d 337, 340-41 (11th Cir. 1995) (finding equal protection violation where LPR ineligible because no travel abroad). However, the 7th Cir disagreed, Klementanovsky v. Gonzales, 501 F.3d 788, 791-94 (7th Cir. 2007) (no EqPro violation), and the 2d Cir has also disagreed in an unpublished opinion.
[The circuit split is somewhat tenuous, since only two circuits have made published decisions, and since the 7th cir distinguished (unconvincingly) the Yeung case. It seems like a long-shot, but possible, cert grant. -CR]
Immigration Litigation Update 
