The 2nd cir held that it had jurisdiction to review the quesiton of whether a particular crime is a particularly serious crime, notwithstanding 1252(a)(2)(B)(ii):
we hold that, when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., “in the discretion of the Attorney General,” “to the satisfaction of the Attorney General,” etc.), the decision is not one that is “specified . . . to be in the discretion of the Attorney General” for purposes of § 1252(a)(2)(B)(ii).
Accord Alaka v.Att’y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006); contra Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006). However, it upheld the Board's application of the Frentescu factors.
Then, the 2d cir rejected the argument that only aggravated felonies can be "particularly serious crimes" for withholding and asylum. It found the statute ambiguous, finding that the text could either help define PSCs, or could simply clarify the authoriy of the Board - as such, it deferred under Chevron to the Board's decision in In re N-A-M, 24 I. & N. Dec. 336, 337-41 (B.I.A. 2007). Contra Alaka v.Att’y Gen., 456 F.3d 88, 104-05 (3d Cir. 2006); accord Ali v. Achim, 468 F.3d 462 (7th Cir. 2006).
The 7th cir reversed the Board's denial of reopening where the reasons given were that heavy fines for population control laws were not persecution, and no physical force was to be used to force sterilization - this is so, said the Govt, even if she couldn't pay and got sterilized. The Court said no:
The implication is that if a government tells a religious heretic we are going to fine you $1 million for your heresy and if you cannot pay we are going to burn you at the stake, and the heretic cannot pay and therefore is executed, the burning of the heretic would not, in the Board’s view, amount to persecution. We cannot imagine that this is really the Board’s view, since in cases like In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board has said that “a particularly onerous fine” can amount to persecution even if nonpayment does not subject the victim of the persecution to physical violence.
The CtApp did suggest potential internal relocation, but since the Govt didn't argue that point, CtApp did not pursue it.
[An interesting side issue is whether this case conflicts with the Kucana case, decided the day earlier. Judge Posner didn't specify whether the Board's error was of law or of discretion... CR]
The 2d Cir upheld the reinstatement of removal regulations (which permit a deportations officer to decide reinstatement, rather than an IJ) against a challenge that they were ultra vires to the statute, under step 2 of Chevron. The CtApp also upheld the regulations against facial and as-applied due process challenges, and (pursuant to its earlier decision in Tenesaca Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008)), found no ability to obtain adjudication of I-485 and waiver before reinstatement order was executed.
The Court further refused to permit a collateral attack on the underlying removal order:
This outcome does not offend due process because, “regardless of the process afforded in the underlying order,” reinstatement of the prior deportation order does not alter petitioner’s legal condition. Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an alien for the reentry (criminal and civil penalties do that).” Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final order issued after a formal hearing before an immigration judge. The purpose is to “stop an indefinitely continuing violation that the alien himself could end . . . by voluntarily leaving the country.” Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498.
Accord: Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F. App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).
[Analysis: The decision contains several unfortunate pieces of dicta. In passing, the Court suggested that 240(a)(3) requires a formal hearing "only [for] aliens already admitted to the U.S."; which seems at odds with the text, which says that 240 is the exclusive means ot determining "whether an alien may be admitted to the United States." The Court's decision that it could not employ constitutional doubt pre-Chevron seems at odds with St. Cyr. The due process analysis seems to require that the alien be in unlawful status before and after the reinstatement; but that is an assumption not always true. And most fundamentally, this applicant simply could not show any prejudice, having admitted an unlawful reentry - the rest of the analysis was really just unnecessary. - CR]
The IJ refused to continue the case for I-130 adjudication, based on the case completition goals (I-130 not adjudicated due to investigation of divorce decree). BIA affirmed, finding questions raised as to authenticity of divorce decree.
The 3d cir found the IJ's use of case completition goals was error:
This one-size-fits-all approach runs contrary to our statement in Ponce-Leiva that what “constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis according to the facts and circumstances of each case.” 331 F.3d at 377 (citation omitted) (emphasis added). Case-completion goals are ordinarily implemented as guidelines to promote reasonable uniformity and to help judges schedule and effectively manage their caseloads. As guidelines, they should not be read as an end in themselves but as a means to prompt and fair dispositions, giving due regard to the unique facts and circumstances of the case.
It also disagreed with OIL's argument that Petitioner should have filed a mandamus vs USCIS, and found that BIA's suggestion that the fault for the delay may have been Petitioner's - because of the alleged fraud - was a finding of fact, which the BIA is prohibited from making.
The 9th Cir held that an asylee's return to their country of origin can be a grounds for making an adverse credibility finding in their case. The return home "inherently undermines her testimony that she experienced past suffering or that she feared returning home." [this seems a bit overboard, no? - CR]
Accord, Tarraf v. Gonzales, 495 F.3d 525, 530, 534 (7th Cir. 2007); Jean v. Gonzales, 461 F.3d 87, 89, 91 (1st Cir. 2006).
The 7th Cir found that it lacked jurisdiction to review motions to reopen, except for "questions of law" or constitutional questions. The 7th cir distinguished its prior decision in Singh (which held that to apply 1252(a)(2)(B)(ii) to reopening would make the consolidation rule nonsensical), finding that 1252(a)(2)(D) eliminates that problem.
Overturned, Singh v. Gonzales, 404 F.3d 1024, 1026–27 (7th Cir. 2005). Followed, Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).
The 8th cir held that "competing family business owners" is not an acceptable definition of a particular social group. Analyzing the case under Matter of A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007), the CtApp found no evidence that the purported group have "social visibility," or a heightened risk of harm; and that it is too "amorphous" to be accepted.
The 8th Cir upheld a denial of asylum to Palestinian Christians, finding that while evidence could have supported an asylum grant, it was not strong enough to compel reversal. Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir. 2006).
The 7th Cir. issued a 24 page decision which upheld VTC hearings against a facial due process challenge, and found no evidence in this case of interference with lawyer-client relationship (because no attempt to consult during the trial); but found that VTC violated the right to examine evidence because Petitioner couldn't examine a document admitted by the Govt into evidence.
In other holdings, the CtApp found the Gontcharova standard for corroboration had been statutorily overturned, but found that because Real ID says that a credible asylum applicant may be granted asylum without corroboration, that it was incumbent on Board to address credibility. It rejected the argument that she couldn't reasonably produce corroborating documents, stating that she would at least have to explain what she tried before her explanation could be accepted (but noted that since the case is being remanded, that she can produce any new evidence on remand).
The 10th Cir looked behind the BIA's stated review standard (using de novo review) to determine whether the Board had erroneously reversed the IJ by applying a lower standard than the "clear error" standard required by the regs. The 10th Cir found that where there are two permissible readings of the evidence, there cannot be clear error - and found that the IJ's finding of credibility was permissible.
A Canadian/Syrian citizen was deported to Syria with (allegedly) the express intention that Syria torture him; he brought suit arguing that various individuals had personal and official liability under the TVPA and under a Bivens theory.
Holdings: (1) The Court held that US Govt officials were not acting "under color of foreign law" because they were not subject to the jurisdiction of Syria. (2) The CtApp held that the INA's administrative appeal and judicial appeal routes counseled against permitting a Bivens claim, notwithstanding the claim that the Govt acted to obstruct his filing of an appeal. (3) The states secret privilege, as well as national security considerations, counsel strongly against permitting a Bivens claim here. (4) That his Due Process claim re treatment inside US - that he was deprived of his right to counsel - fails because he had no right to counsel since that is only triggered by asylum or removal proceedings, and the Govt excluded him under 235(c) where you get no hearing before an IJ. (5) Argument that he should have been able to seek a court order to protect him from torture wasn't raised with specificity in the complaint. (6) Conditions claim was rejected because no "gross physical abuse," and he didn't allege a punitive intent where they deprived him of food and sleep and interrogated him for hours at a time (!?) [no discussion of whether this was a "legitimate" use of the detention]. (7) Declaratory Judgment rejected because a declaration that the exclusion was illegal wouldn't undo it, he'd still be inadmissible. The Court raised - but did not decide - whether the "zipper clause" of 1252(b)(9) would bar these claims, particularly where he alleged that US Govt officials prevented him from appealing his case.
Sack, dissenting: Majority treats this as if it were an immigration case, whereas it's really about Govt tactics. Did not disagree re TVPA dismissal, but argued that Due Process analysis was unduly narrow, Bivens approach incorrect.
Immigration Litigation Update 
