Recently in Immigration Law Category

In a consolidated appeal from three district court orders in actions by international airline companies challenging the INS's imposition of fines against the airlines for bringing undocumented immigrant and non-immigrant aliens into the United States in violation of 8 U.S.C. section 1323, the court of appeals rules as follows.  One order is affirmed in part where the INS did not act arbitrarily when it employed its parole power rather than its visa waiver authority to admit aliens into the U.S.  However, the order is reversed in part where a Board of Immigration Appeals rule, which exempted airlines from liability for bringing an undocumented alien to the U.S. when the alien received a post-arrival visa waiver, was consistent with the Penalty Statute. Another order is reversed where the INS's Rule 60 motion was procedurally defective because the circumstances were not sufficiently extraordinary to merit such relief.  In another matter, summary judgment for the INS is reversed where: 1) the INS's 1996 amendment of its tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement; and 2) the State Department's 1999 version of the tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement and without notice-and-comment.

Read United Airlines, Inc. v. Brien, No. 04-6018

Appellate Information

Argued: May 12, 2008

Decided: November 20, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Christina Hagan, Jonathan A. Fuchs, Hagan, Coury & Associates, Brooklyn, NY

For Appellee:

Scott Dunn, Roslynn R. Mauskopf, F. Franklin Amanat, Assistant United States Attorneys, Brooklyn, NY

In a petition for review of a BIA order removing petitioner from the U.S., the petition is denied where, because petitioner challenged a determination committed to the sole discretion of the Attorney General -- namely, the credibility and weight accorded to certain evidence -- the court of appeals lacked jurisdiction to review her claims.

Read Contreras-Salinas v. Holder, No. 08-4611

Appellate Information

Argued: October 8, 2009

Decided: October 27, 2009

Judges

Per Curiam

Counsel

For Appellant:

Glenn T. Terk, Wethersfield, CT

For Appellee:

Russell J.E. Verby, Michael F. Hertz, Barry J. Pettinato, Office of Immigration Litigation, United States Department of Justice, Washington, DC

In a petition for review of a final order of the BIA affirming the decision of an Immigration Judge which denied petitioner's application for asylum, the petition is granted in part where petitioner's activity as a nurse in China did not amount to "assistance or participation" in persecution which would render her ineligible for asylum or withholding of removal under the Immigration and Nationality Act's "persecutor bar." However, the petition is denied in part where petitioner failed to sustain her burden of demonstrating that it was "more likely than not" that she would be tortured in China.

Read Lin v. Holder, No. 07-5791

Appellate Information

Argued: May 21, 2009

Decided: October 14, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Petitioner:

Stuart Altman, Law Offices of Stuart Altman, New York, NY

For Respondent:

Stacy Stiffel Paddack, Anthony Norwood, Sherrie Waldrup, Office of Immigration Litigation, Department of Justice, Washington, DC

In a petition for review of the BIA's order denying petitioner's application for asylum, withholding of removal under 8 U.S.C. section 1231(b)(3), and withholding of removal under the Convention Against Torture, the petition is denied where petitioner's participation in a scheme to sell organs for profit on the black market was a serious nonpolitical crime.

Read Wang v. Holder, No. 07-5369

Appellate Information

Argued: September 23, 2009

Decided: October 2, 2009

Judges

Per Curiam

Counsel

For Petitioner:

John F. Clark, Holland & Hart LLP, Washington, DC

For Respondent:

James E. Grimes, Gregory G. Katsas, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC

In an Immigration and Nationality Act section 1447(b) action seeking to have the district court determine plaintiff's naturalization application, dismissal of the action as moot is reversed where only the district court has jurisdiction to determine a naturalization application when the applicant files a section 1447(b) petition, and thus the United States Citizenship and Immigration Services could not decide plaintiff's naturalization application after he filed a petition.

Read Bustamante v. Napolitano, No. 08-0990

Appellate Information

Argued: March 27, 2009

Decided: September 28, 2009

Judges

Opinion by Judge Pooler

Counsel

In a petition for review of the BIA's order denying petitioner's application for asylum, the petition is denied where the BIA adequately considered petitioner's claim that there was a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia, and its finding that no such pattern or practice existed was supported by substantial evidence.

Read Santoso v. Holder, No. 07-4713

Appellate Information

Argued: September 2, 2009

Decided: September 14, 2009

Judges

Per Curiam

Counsel

For Petitioner:

H. Raymond Fasano, Madeo & Fasano, New York, NY

For Respondent:

Collete J. Winston, Attorney, Office of Immigration Litigation, Washington, DC

In a petition for review of the BIA's order denying petitioner asylum, withholding of removal, and relief under the Convention Against Torture, and ordering petitioner's removal, the petition is granted where the IJ's adverse credibility determination was not supported by substantial evidence because it relied on a flawed fact-finding process, impermissible speculation, and flawed reasoning.

Read Hu v. Holder, No. 08-2998

Appellate Information

Argued: June 23, 2009

Decided: September 3, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Gary J. Yerman, New York, NY

For Respondent:

Lynda A. Do, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC

In a petition for review of a BIA order finding petitioner ineligible for relief from removal, the petition is denied where: 1) petitioner did not establish prima facie eligibility for naturalization; and 2) he was barred from relief under Section 212(c) of the Immigration and Nationality Act by virtue of Section 511(a) of the Immigration Act of 1990, because he had been previously convicted of an aggravated felony.

Read Perriello v. Napolitano, No. 05-2868

Appellate Information

Filed September 1, 2009

Judges

Opinion by Chief Judge Jacobs

Counsel

For Petitioner:

Matthew L. Guadagno, Bretz & Coven LLP, New York, NY

Ruchi Thaker, Bretz & Coven LLP, New York, NY

For Respondents:

Natasha Oeltjen, Assistant United States Attorney, New York, NY

Sarah S. Normand, Assistant United States Attorney, New York, NY

Petition for review of an order holding plaintiff statutorily ineligible for a waiver of inadmissibility and dismissing plaintiff's appeal is denied where the Board of Immigration Appeals' interpretation of "lawfully resided continuously" as used in Immigration and Nationality Act sec. 212(h) and applied to plaintiff is reasonable, and thus plaintiff is ineligible for a INA sec. 212(h) waiver because he did not lawfully reside continuously in the United States for the disputed period of time. 

Read Rotimi v. Holder, No. 06-0202

Appellate Information
Petition for review of a decision and order of the Board of Immigration Appeals.
Argued March 23, 2009
Decided August 14, 2009

Judges
Before FEINBERG, NEWMAN, and KATZMANN, Circuit Judges.
Per Curium Opinion.
NEWMAN, Circuit Judge, concurring.
KATZMANN, Circuit Judge, with whom FEINBERG, Circuit Judge, joins, concurring.

Counsel
For Petitioner: DANIEL SHABASSON, Pollack, Pollack, Isaac & DeCicco, New York, N.Y.

For Respondent: DIONE M. ENEA, Special Assistant United States Attorney, Brooklyn, N.Y.

Petition for review of an order denying withholding of removal is denied where substantial evidence supports the IJ's finding that petitioner failed to satisfy his burden of establishing a clear probability of future persecution in his home country, and the IJ properly relied on petitioner's failure to provide corroborating evidence in so finding.    

Read Liu v. Holder, No 07-0204

Appellate Information
Petition for review of an order of the Board of Immigration Appeals.
Argued: November 28, 2007
Decided: August 5, 2009

Judges
Before: JACOBS, Chief Judge, PARKER and WESLEY, Circuit Judges.
Opinion by JACOBS, Chief Judge.

Counsel
For Petitioner: JIM LI, New York, NY.

For Respondent: KEITH MCMANUS, U.S. Department of Justice, Washington, D.C.