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Case Summaries

Immigration Law

[09/01] Mwasaru v. Napolitano
A Kenyan citizen's appeal of a district court's order dismissing her petition for a writ of mandamus, seeking a court order compelling U.S. Immigration and Customs Enforcement to transfer her file to an immigration judge to commence removal proceedings, review by the IJ of the denial of adjustment status, and the issuance of a diversity visa should the IJ approve her application, is dismissed for lack of jurisdiction as section 1154 rendered petitioner ineligible for a DV-2007 visa as of midnight on September 30, 2007, and therefore, she is likewise ineligible for adjustment of status under section 1255 because no visa is immediately available.

[09/01] Lin v. Holder
A Chinese couple's petition for review of a BIA's affirmance of an IJ's decision that petitioners were not entitled to asylum or withholding of removal and are eligible to be deported is denied as petitioners have not met their burden of demonstrating past persecution or a well founded fear of future persecution that if they return to China they will be persecuted on account of their opposition to and failure to comply with family planning policies.

[09/01] US v. Melchor-Meceno
Defendant's sentence for illegally reentering the U.S. is affirmed where, because defendant's prior Colorado felony menacing conviction was categorically a crime of violence (as outlined in U.S.S.G. section 2L1.2), the district court properly applied the enhancement to defendant's sentence.

[09/01] Garcia v. Holder
In a petition for review of the BIA's order denying petitioners' motion to reopen their removal proceedings, the petition is granted in part where the BIA erred by failing to exercise its discretion to consider or decline to consider petitioners' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by mother. However, the petition is denied in part where the BIA did not abuse its discretion in concluding that petitioners' daughter's new medical condition did not warrant reopening.

[08/31] Kone v. Holder
Malian citizens' petition for review of BIA's denial of their application for asylum and related relief is granted, and the BIA's decision vacated and remanded as the BIA effectively only addressed half of petitioner's argument in concluding that petitioner could not assert a derivative claim based on potential hardship to her daughter, but failed to address her assertion that female genital mutilation of the daughter would also constitute direct persecution of her parents.

[08/30] Kurzberg v. Ashcroft
In an action by five Israeli nationals who were illegally present in the United States on September 11, 2001, concerning certain alleged particulars of their arrest on that day and their confinement thereafter at the Metropolitan Detention Center in Brooklyn, dismissal of the action for failure to serve process is affirmed where: 1) plaintiffs failed to comply with Fed. R. Civ. P. 4(i) because they did not effect service on the U.S.; and 2) plaintiffs were afforded a reasonable time to cure their failure to serve, as is required by Rule 4(i).

[08/30] Ghouri v. Holder
A Pakistani citizen's petition for review of a BIA's decision affirming an IJ's denial of his application for asylum and related relief is denied in part and dismissed in part where: 1) petitioner's claim that he fears his brother-in-law will murder him and his wife in an honor killing because his wife converted from Sunni to Shia Islam when she married him, is dismissed for lack of jurisdiction as the claim of asylum is untimely; and 2) substantial evidence supports the determination that petitioner failed to show eligibility for withholding of removal and CAT protection.

[08/27] Qu v. Holder
BIA's reversal of IJ's grant of a Chinese citizen's application for asylum and order that the petitioner be removed from the U.S. to China is vacated and remanded where: 1) although petitioner seems to have made the requisite showing that she was a member of a particular social group of women in China who have been subjected to forced marriage and involuntary servitude for asylum purposes, the BIA did not make an explicit finding on the issue, but rather appeared to base its denial of asylum on the fact that petitioner was not targeted in part on account of her gender; and 2) BIA's denial of petitioner's claim for CAT is remanded for consideration of the merits.

[08/27] US v. Di Pietro
Defendant's convictions for aiding and abetting four individuals in their violations of 8 U.S.C. section 1325(c), which imposes criminal liability on any individual who knowingly enters into a marriage for the purpose of evading federal immigration laws, are affirmed where a party to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.

[08/27] Toby v. Holder
In a petition for review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge's (IJ) order of removal denying petitioner adjustment of status, waiver of inadmissibility, asylum, withholding of removal, and protection under the Convention Against Torture, the petition is denied where: 1) even if petitioner could prevail on her argument with respect to credibility, she failed to appeal independent alternative grounds for each form of relief she requested; and 2) the IJ weighed the equitable factors, none of which petitioner disputed, against her well-established ties to the U.S. and found they did not warrant a favorable exercise of discretion.

[08/27] Saleheen v. Holder
In a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's application for cancellation of removal, the petition is denied where the BIA plainly stated that it was exercising its discretion in denying relief to petitioner, and because that was so, the court had no jurisdiction unless petitioner raised colorable legal or constitutional claims, which she did not.

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