1.07.2008 Federal . Immigration . Permanent Residence . Asylum . Timeliness Courts have routinely upheld jurisdictional bars on reviewing timeliness of an application (one year after last entry), changed circumstances, or extraordinary circumstances related to delay in filing under 8 U.S.C. § 1158(a)(3) (2000). Court also finds that IJ's adverse credibility finding and denial of Withholding or CAT applications is supported by substantial evidence, without further discussion re: the facts of the case. (Adembuh v. Mukasey, No 0-1330 (4th Cir. January 7, 2008)(unpublished, non-precedential))

1.07.2008 Federal . Immigration . Removal . Remedies . Cancellation . Qualifying Relative Court rejects Petitioner's argument that requiring their Cancellation application to be based on hardship to a child places substantial burden on theirr religious exercise as they have been unable to have children and their Catholic religious practice prohibits in vitro procedure. Court finds that the connection between having a child and obtaining cancellation of removal is too attenuated to create a substantial burden on their religious exercise. (Fernandez v. Mukasey, No. 06-74228 (9th Cir. January 7, 2008))

1.07.2008 Federal . Immigration . Other . Qualifying Relatives Court rejects Petitioner's argument that requiring their Cancellation application to be based on hardship to a child places substantial burden on theirr religious exercise as they have been unable to have children and their Catholic religious practice prohibits in vitro procedure. Court finds that the connection between having a child and obtaining cancellation of removal is too attenuated to create a substantial burden on their religious exercise. (Fernandez v. Mukasey, No. 06-74228 (9th Cir. January 7, 2008))

1.07.2008 Federal . Immigration . Other . Appeal Arguments . Religious Freedom Court rejects Petitioner's argument that requiring their Cancellation application to be based on hardship to a child places substantial burden on theirr religious exercise as they have been unable to have children and their Catholic religious practice prohibits in vitro procedure. Court finds that the connection between having a child and obtaining cancellation of removal is too attenuated to create a substantial burden on their religious exercise. (Fernandez v. Mukasey, No. 06-74228 (9th Cir. January 7, 2008))

1.07.2008 Federal . Immigration . Removal . Motion to Reopen . Timeliness Court denies petition to review BIA's discretionary determination to not grant an untimely Motion to Reopen. (Singh v. Mukasey, No. 07-1538 (4th Cir. January 7, 2008)(unpublished))

1.07.2008 Federal . Immigration . Other . Motion to Reopen . Timeliness Court denies petition to review BIA's discretionary determination to not grant an untimely Motion to Reopen. (Singh v. Mukasey, No. 07-1538 (4th Cir. January 7, 2008)(unpublished))

1.07.2008 Federal . Immigration . Nonimmigrant . H1b . Specialty Occupation Whether an occupation, in this case 'golf course manager,' is a specialty occupation is a discretionary decision reserved to USCIS and is insulated from judicial review; Petition dismissed for lack of subject matter jurisdiction. (Stockbridge-Munsee Community v. U.S. Citizenship, Case No. 0-C-627 (E.D.Wis. January 7, 2008))

1.07.2008 Federal . Immigration . Removal . Appeal . Exhaustion Petition for review of IJ final order of removal brought to the Federal District Court as a Habeas Corpus action who transferred it to the Circuit Court as a Petition for review is denied as appeal was not taken on the final order with BIA and so administrative remedies were not exhausted; Exhaustion requirement is statutory and jurisdictional and cannot be excused on grounds of manifest unjustice. (Valenzuela v. Mukasey, No. 05-4622-ag (2nd Cir. January 7, 2008))

1.07.2008 Federal . Immigration . Other . Appeal . Exhaustion Petition for review of IJ final order of removal brought to the Federal District Court as a Habeas Corpus action who transferred it to the Circuit Court as a Petition for review is denied as appeal was not taken on the final order with BIA and so administrative remedies were not exhausted; Exhaustion requirement is statutory and jurisdictional and cannot be excused on grounds of manifest unjustice. (Valenzuela v. Mukasey, No. 05-4622-ag (2nd Cir. January 7, 2008))

1.07.2008 Federal . Immigration . Removal . Relief . 212(c) Petitioner is correct in asserting because his second degree robbery conviction under Connecticut law would render an LPR excludable from the USas a crime of moral turpitude if he were to attempt entry, 212(c) waiver is available for him in deportation proceedings based on the same conviction. BIA's affirmance of IJ's denial of such relief is vacated and case is remanded for factual analysis. (Webster v. Mukasey, No. 06-4696-ag (2nd Cir. January 7, 2008)(unpublished))

1.04.2008 Federal . Immigration . Other . Employment Issues Court finds that company is compelled to collectively bargain with unionized, undocumented workers because there is absolutely no evidence that in passing IRCA (illegalizing employment of undocumented aliens) Congress intended to amend the NLRA to the extent its definition of "employee" to exclude undocumented aliens. (Agri Processor v. Natl. Labor Relations Bd., No. 06-1329, Consolidated with No. 06-1349 (D.C. Cir. January 4, 2008))

1.04.2008 Federal . Immigration . Removal . Aggravated Felony Possession of child pornography in violation of California Penal Code ("CPC") section 311.11(a) is the same crime as described under the analogous federal crime listed and listed as an aggravated felony in applicable immigration law, despite the jurisdictional element that the visual depiction be intended for interstate distrub tion or for any economic or commercial use that gives federal goverment jurisdiction under the Commerce Clause. The difference between "sexual conduct" in the California description of the crime, and "sexually exlicit conduct" was likewise non-differing. (Armijo v. Mukasey, No. 05-73436 (9th Cirl. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Admission . Aggravated Felony Possession of child pornography in violation of California Penal Code ("CPC") section 311.11(a) is the same crime as described under the analogous federal crime listed and listed as an aggravated felony in applicable immigration law, despite the jurisdictional element that the visual depiction be intended for interstate distrub tion or for any economic or commercial use that gives federal goverment jurisdiction under the Commerce Clause. The difference between "sexual conduct" in the California description of the crime, and "sexually exlicit conduct" was likewise non-differing. (Armijo v. Mukasey, No. 05-73436 (9th Cirl. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Naturalization . Delayed Adjudication Government moved for and is granted dismissal of case where Court had ordered naturalization within six months of order, with name check completed, where all Plaintiffs had been naturalized by date of Motion. (Azouaz v. Chertoff, Case No. 4:07CV247SNL (E.D.Mo. January 4, 2008))

1.04.2008 Federal . Immigration . Removal . Motion to Reopen . Pending Adjustment Application IJ has limited authority to adjudicate adjustment applications of arriving aliens in removal proceedings, under facts not present in this case, so BIA's refusal to remand case for IJ adjudication of such was not an abuse of discretion. (Budrys v. Mukasey, No. 06-2187 (4th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Motion to Reopen . Pending Adjustment Application IJ has limited authority to adjudicate adjustment applications of arriving aliens in removal proceedings, under facts not present in this case, so BIA's refusal to remand case for IJ adjudication of such was not an abuse of discretion. (Budrys v. Mukasey, No. 06-2187 (4th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Removal . Detention . Habeas Corpus Habeas action is moot because Petition has been released from ICE custody and is on an order of suervision. (Coulibaly v. Keisler, CA 07-0758-CG-C (S.D.Ala Janaury 4, 2008))

1.04.2008 Federal . Immigration . Permanent Residence . Asylum Case is remanded to BIA to determine whether asylum claims and other facts would meet the pattern or practice of persecution against a particular group that would allow a finding of persecution in this case without showing individualized past or risk of future persecution, particularly in light of Court's recent finding inMufied v. Mukasey, No. 06-0396-ag, slip op. 191, 201 (2d Cir. Nov. 20, 2007). (Firmanto v. Mukasey, No 06-2316-ag (2nd Cir. January 4, 2008)(unpublished))

1.04.2008 Federal . Immigration . Other . Nation . Indonesia . Asylum Case is remanded to BIA to determine whether asylum claims and other facts would meet the pattern or practice of persecution against a particular group that would allow a finding of persecution in this case without showing individualized past or risk of future persecution, particularly in light of Court's recent finding inMufied v. Mukasey, No. 06-0396-ag, slip op. 191, 201 (2d Cir. Nov. 20, 2007). (Firmanto v. Mukasey, No 06-2316-ag (2nd Cir. January 4, 2008)(unpublished))

1.04.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Inconsistent testimony regarding flight pattern from the country (whether he stayed in his village or went into hiding after suffering persecution, and failure to explain political or religious beliefs underlying claim) is substantial evidence supporting IJ's adverse credibility finding and review is denied. (Gill v. Mukasey, No. 04-72341 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Permanent Residence . CAT Claim Dept. of State country reports show changed country circumstances sufficient to presume that Sikhs are no longer persecuted in India based on religious beliefs. (Gill v. Mukasey, No. 04-72341 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Nation . India . Asylum . Adverse Credibility Finding Inconsistent testimony regarding flight pattern from the country (whether he stayed in his village or went into hiding after suffering persecution, and failure to explain political or religious beliefs underlying claim) is substantial evidence supporting IJ's adverse credibility finding and review is denied. (Gill v. Mukasey, No. 04-72341 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Nation . India . CAT Claim Dept. of State country reports show changed country circumstances sufficient to presume that Sikhs are no longer persecuted in India based on religious beliefs. (Gill v. Mukasey, No. 04-72341 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Adverse credibility finding based on testimony that contradicted documents submitted in two important ways, claiming IUD notice when sterilization order appeared in the documents and claiming first child was born legally when documents show fines for early marriage and early first birth of child, was sufficient to meet the substantial evidence standard afforded IJ's in making factual determinations in asylum cases, and review is denied. (Huang v. B. of Immi. Appeals, No. 06-4940-ag NAC (2nd Cir. January 4, 2008)(unpublished))

1.04.2008 Federal . Immigration . Other . Nation . China . Asylum . Adverse Credibility Finding Adverse credibility finding based on testimony that contradicted documents submitted in two important ways, claiming IUD notice when sterilization order appeared in the documents and claiming first child was born legally when documents show fines for early marriage and early first birth of child, was sufficient to meet the substantial evidence standard afforded IJ's in making factual determinations in asylum cases, and review is denied. (Huang v. B. of Immi. Appeals, No. 06-4940-ag NAC (2nd Cir. January 4, 2008)(unpublished))

1.04.2008 Federal . Immigration . Other . Nation . China . Asylum . One Child Policy Spouses of those subject to persecution, involuntary abortion, or other imposing measures of China's one child policy are not generally eligible for asylum on their own, without showing persecution as a result of their resistance to the policy. (Huang v. B. of Immi. Appeals, No. 06-4940-ag NAC (2nd Cir. January 4, 2008)(unpublished))

1.04.2008 Federal . Immigration . Removal . Appeal . Timeliness . Motion to Reissue If a BIA decision is not received by the alien, s/he may request the BIA to reissue the order to allow new time to file for review; this case is remanded to the BIA to determine if an affidavit of nonreceipt from alien and relative alone would be sufficient to rebut the presumption of mailing that attaches to the transmittal cover letter in the administrative record showing mailing did occur. This court follows 9th Cir precedent over 2nd Cir precedent that an affidavit does not rebut presumption of mailing. (Jahjaga v. Attorney General, Nos. 06-2866, 06-3466 (3rd Cir. January 4, 2008)

1.04.2008 Federal . Immigration . Other . Motion to Reissue Request to BIA to reissue a final ruling so the final date of issue could be extended is used to overcome timing issues of motion to reconsider. Motion to Reissue is an appealable order, treated as a Motion to Reopen. (Jahjaga v. Attorney General, Nos. 06-2866, 06-3466 (3rd Cir. January 4, 2008)

1.04.2008 Federal . Immigration . Other . Appeal . Timeliness . Motion to Reissue If a BIA decision is not received by the alien, s/he may request the BIA to reissue the order to allow new time to file for review; this case is remanded to the BIA to determine if an affidavit of nonreceipt from alien and relative alone would be sufficient to rebut the presumption of mailing that attaches to the transmittal cover letter in the administrative record showing mailing did occur. This court follows 9th Cir precedent over 2nd Cir precedent that an affidavit does not rebut presumption of mailing. (Jahjaga v. Attorney General, Nos.06-2866, 06-3466 (3rd Cir. January 4, 2008)

1.04.2008 Federal . Immigration . Other . Motion to Reconsider to BIA . Timeliness . Motion to Reissue Request to BIA to reissue a final ruling so the final date of issue could be extended is used to overcome timing issues of motion to reconsider. (Jahjaga v. Attorney General, Nos. 06-2866, 06-3466 (3rd Cir. January 4, 2008)

1.04.2008 Federal . Immigration . Permanent Residence . Cancellation of Removal Federal court reviews de novo claims of due process claims and abuse of discretion - no jurisdiction on factual determination of hardship. Petitioners did not overcome presumption that BIA considered evidence presented so due process claim fails. (Monroy-Gutierrez v. Mukasey, Nos. 05-70327 05-72431 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Removal . Cancellation of Removal Federal court reviews de novo claims of due process claims and abuse of discretion - no jurisdiction on factual determination of hardship. Petitioners did not overcome presumption that BIA considered evidence presented so due process claim fails. (Monroy-Gutierrez v. Mukasey, Nos. 05-70327 05-72431 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Appeal Arguments . Due Process . Evidence Federal court reviews de novo claims of due process claims and abuse of discretion - no jurisdiction on factual determination of hardship. Petitioners did not overcome presumption that BIA considered evidence presented so due process claim fails. (Monroy-Gutierrez v. Mukasey, Nos. 05-70327 05-72431 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Appeal . Cancellation of Removal Federal court reviews de novo claims of due process claims and abuse of discretion - no jurisdiction on factual determination of hardship. Petitioners did not overcome presumption that BIA considered evidence presented so due process claim fails. (Monroy-Gutierrez v. Mukasey, Nos. 05-70327 05-72431 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Permanent Residence . Cancellation of Removal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Perez-Torres v. Mukasey, No. 05-70253 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Removal . Remedies . Cancellation of Removal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Perez-Torres v. Mukasey, No. 05-70253 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Appeal . Cancellation of Removal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Perez-Torres v. Mukasey, No. 05-70253 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Permanent Residence . Cancellation of Removal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Permanent Residence . Legalization Respondent cannot be removed while his application for legalization is pending. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Removal . Remedies . Cancellation of Removal . Appeal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Removal . Remedies . Legalization Respondent cannot be removed while his application for legalization is pending. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Appeal Arguments . Due Process Accurate application of the law to the facts in a cancellation of removal application does not constitute a due process question. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.04.2008 Federal . Immigration . Other . Appeal . Cancellation of Removal Federal Courts lack jurisdiction to determine whether exceptional and extremely unusual hardship standard was met in application. (Salgado v. Mukasey, No 06-71847 (9th Cir. January 4, 2008)(unpublished, non-precedential))

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Substantial evidence supported IJ's adverse credibility finding based on differing testimony of clothing worn by assailants identifying them and applicants level of political involvement that formed the basis of the application; fact that applicant stayed in Haiti a long time after the attack and returned for extended visits twice while applicationw as pending supported IJ's determination as well. (Jean v. Mukasey, No. 07-0005-ag (2nd Cir. January 3, 2008)(unpublished)

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Returning to Country of Persecution Substantial evidence supported IJ's adverse credibility finding based on differing testimony of clothing worn by assailants identifying them and applicants level of political involvement that formed the basis of the application; fact that applicant stayed in Haiti a long time after the attack and returned for extended visits twice while applicationw as pending supported IJ's determination as well. (Jean v. Mukasey, No. 07-0005-ag (2nd Cir. January 3, 2008)(unpublished)

1.03.2008 Federal . Immigration . Other . Nation . Haiti . Asylum . Adverse Credibility Finding Substantial evidence supported IJ's adverse credibility finding based on differing testimony of clothing worn by assailants identifying them and applicants level of political involvement that formed the basis of the application; fact that applicant stayed in Haiti a long time after the attack and returned for extended visits twice while applicationw as pending supported IJ's determination as well. (Jean v. Mukasey, No. 07-0005-ag (2nd Cir. January 3, 2008)(unpublished)

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Frivolous Claim While Petition for review has been granted when IJ determined that asylum application was frivolous when applicant was not given an opportunity to explain inconsistencies, the applicant in this case was given the opportunity and the application was still found to be frivolous so review is denied. (Hudikian v. Mukasey, No 05-72949 (9th Cir. January 3, 2008)(unpublished, non-precedential))

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibiility . IJ and BIA's adverse credibility finding is supported by substantial evidence as the number of people with the applicant upon arrest differed in different testimony and he didn't know the basic tenets of Christianity, though he 'lead a Bible class,' and his demeanor during testimony was suspect. (Duan v. Mukasey, No 04-75395 (9th Cir. Janaury 3, 2008)(unpublished, non-precedential)

1.03.2008 Federal . Immigration . Other . Nation . China . Asylum . Adverse Credibility Finding IJ and BIA's adverse credibility finding is supported by substantial evidence as the number of people with the applicant upon arrest differed in different testimony and he didn't know the basic tenets of Christianity, though he 'lead a Bible class,' and his demeanor during testimony was suspect. (Duan v. Mukasey, No 04-75395 (9th Cir. Janaury 3, 2008)(unpublished, non-precedential)

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibiility . IJ and BIA's adverse credibility finding based on a wrongful determination that reference to axe in one testimony was not the same as reference to iron metal in another may be wrong and warrant remand if it weren't for several other, serious inconsistencies that would compel the same adverse credibility finding, such as claiming he was severely beaten after his father was killed and then forgetting about the beating in court testimony, varying the story in terms of how they got to the refugee camp in Galoya, etc. (Dia v. Dept. of Homeland, No. 07-0839-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Other . Nation . Mauritania . Asylum . Adverse Credibility Finding IJ and BIA's adverse credibility finding based on a wrongful determination that reference to axe in one testimony was not the same as reference to iron metal in another may be wrong and warrant remand if it weren't for several other, serious inconsistencies that would compel the same adverse credibility finding, such as claiming he was severely beaten after his father was killed and then forgetting about the beating in court testimony, varying the story in terms of how they got to the refugee camp in Galoya, etc. (Dia v. Dept. of Homeland, No. 07-0839-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Permanent Residence . CAT Claim . Court confirms BIA's reversal if IJ's grant of CAT, reversing because applicant failed to show that Cuba's potential imprisonment of criminal deportee does not show requisite specific intent to cause severe physical or mental pain or suffering, even though prison conditions may be harsh. (Cruz v. Mukasey, No 0-1394-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Other . Nation . Cuba . CAT Claim Court confirms BIA's reversal if IJ's grant of CAT, reversing because applicant failed to show that Cuba's potential imprisonment of criminal deportee does not show requisite specific intent to cause severe physical or mental pain or suffering, even though prison conditions may be harsh. (Cruz v. Mukasey, No 0-1394-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Removal . Appeal for Criminal Alien . Court confirms its only jurisdiction on final removal orders based on commission of criminal offense in INA 212(a)(2) is questions of law and finds in this case the the standard of review BIA followed in finding Cuba's potential detention of the criminal alien ordered removed in this case was appropriate and, ultimately, was determined by a question of fact whether Cuba detains and tortures criminal deportees - confirms BIA ruling. (Cruz v. Mukasey, No 0-1394-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding . Court confirms adverse credibiility finding was supported by substantial evidence as asylum applicant presented contradicting evidence about date of conversion and most of the difficulties appear to have occurred before the conversion and applicant did not present corroborating evidence of church attendance. (Chen v. Mukasey, No. 07-2135-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Other . Nation . China . Asylum Court confirms that religious persecution does take place in China but in this case, affirms the adverse credibiility finding as asylum applicant presented contradicting evidence about date of conversion and most of the difficulties appear to have occurred before the conversion and applicant did not present corroborating evidence of church attendance. (Chen v. Mukasey, No. 07-2135-ag NAC (2nd Cir. January 3, 2008)(unpublished))

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Court finds that IJ based an adverse credibility finding on cogent reasons, internal inconsistencies in applicant's testimony, and conducted an indepedent analysis of country conditions in denying asylum claim and denies the appeal of such. (Chahal v. Mukasey, 05-74449 (9th Cir. January 3, 2008)(unpublished, non-precedential))

1.03.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Submission of fake documents on its own was sufficient to find the Respondent's asylum-related testimony was not credible and was supported by substantial evidence and affirmed by this Court. (Bah v. Mukasey, No. 0-154-ag (2nd Cir. January 3, 2008)

1.03.2008 Federal . Immigration . Other . Apeal . Waived Issues Issues discussed by BIA but not specifically brought up on appeal to BIA are considered in this appeal in front of Circuit court to address BIA's legal conclusions. (Bah v. Mukasey, No. 0-154-ag (2nd Cir. January 3, 2008)

1.03.2008 Federal . Immigration . Other . Apeal . Standard of Review When BIA does not exressly 'adopt' the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, the Court may consider both the IJ's and BIA's opinions for the sake of completeness if doing so does not affect the Court's ultimate decision. (cite omitted). (Bah v. Mukasey, No. 0-154-ag (2nd Cir. January 3, 2008)

1.02.2008 Federal . Immigration . Permanent Residence . Asylum . Past Persecution Court confirms substantial evidence suports IJ's denial of asylum, withholding, CAT claim finding that harrassment and suffering the arson of the family business was not sufficiently extreme to constitute persecution and future persecution was also not shown. (Tjen v. Attor. Gen. of the U.S., No. 06-3376 (3rd Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Other . Nation . Indonesia Court confirms substantial evidence suports IJ's denial of asylum, withholding, CAT claim finding that harrassment and suffering the arson of the family business was not sufficiently extreme to constitute persecution and future persecution was also not shown. (Tjen v. Attor. Gen. of the U.S., No. 06-3376 (3rd Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Permanent Residence . Asylum . Future Persecution Court finds BIA's confirmation of IJ's denial of withholding of removal substantially reasonable based on Petitioner's failure to show clear probability of persecution upon return to Nepal, despite Moaists persecution of those who write critical articles, because Petitioner's family has been persecuted for political activities but currently lives in Nepal without issue. (Bista v. Mukasey, No. 06-60003 (5th Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Other . Nation . Nepal . Asylum Court finds BIA's confirmation of IJ's denial of withholding of removal substantially reasonable based on Petitioner's failure to show clear probability of persecution upon return to Nepal, despite Moaists persecution of those who write critical articles, because Petitioner's family has been persecuted for political activities but currently lives in Nepal without issue. (Bista v. Mukasey, No. 06-60003 (5th Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Removal . Motion to Reopen District Court affirms that the IJ lacks jurisdiction over adjustment application due to apparent factual mistake that the application was based on a new I-130 filed after removal to Pakistan (Karim v. Mukasey, No. 07-60178 (5th Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Permanent Residence . Asylum . Changed Country Conditions Court finds that in denying Christians from Iraq asylum though their testimony was credible and they established past persecution at the hands of the Ba'ath before Saddam Hussein was captured, the IJ and BIA failed to provide an individualsed analysis of how the changes in country conditions since the fall of Saddam would affect the Petitioner's specific situation and, thus, did not meet the burden required to deny asylum based on changed country conditions. (Dawwod v. Mukasey, No. 04-76209 (9th Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Other . Nation . Iraq . Asylum Court finds that in denying Christians from Iraq asylum though their testimony was credible and they established past persecution at the hands of the Ba'ath before Saddam Hussein was captured, the IJ and BIA failed to provide an individualsed analysis of how the changes in country conditions since the fall of Saddam would affect the Petitioner's specific situation and, thus, did not meet the burden required to deny asylum based on changed country conditions. (Dawwod v. Mukasey, No. 04-76209 (9th Cir. January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Finding Court finds that IJ and BIA's adverse credibility finding is supported by specific and cogent reasons due to Petitioner's inconsistent testimony regarding detention of four days that was changed to two days in testimony and persecution of being hit by a rock that was not mentioned in the asylum application and, of lesser importance, the change in testimony that he came to know of Christianity through a family and then through a minister. Dissent notes that these are 'minor inconsistencies' that do not go to the heart of the asylum claim. (Wang v. Mukasey, No. 04-71056 (9th Cir., January 2, 2008)(unpublished, non-precedential))

1.02.2008 Federal . Immigration . Permanent Residence . Delay in Adjudicating Application Court finds that it has jurisdiction to hear Plaintiffs case brought to mandate adjudication of their applications to adjust status (EB-2 and derivative spouse) pending more than two years at time of filing, more than three years at time of ruling, because Mandamus Act requires government to move within a reasonable time, Administrative Procedures Act requiring the same for nondiscretionary duties does not obviate its obligation to act within a reasonable time, and section 1252(a)(2)(B) does not strip the Court of jurisdiction in the action. (He v. Chertoff, Case No. 07 C 363 (N.D.Ill. January 2, 2008))

1.02.2008 Federal . Immigration . Removal . Detention . Mandatory 1226(c) Mandatory detention requirements of 1226(c) mandates detention in cases of expedited removal and does not justify detention of an aggravated felon in this case for more than three years of proceedings; Tijani v. Willis, a 9th Circuit case finding detention for over two years excessive under 1226(c) is followed though Tijani does not involved an aggravated felon; 2nd Circuit case, Doherty v. Thornburgh, that finds that detention during pendency of proceedings in which Resondent litigates is in the hands of the Respondent is not followed; Magistrates determination that Respondent has burden to show he's not a flight risk or unsafe for the community is mistaken. (Yoon v. Crawford, No. CV-06-3068-PHX-SMM (Ariz. 01-02-2008))

1.02.2008 Federal . Immigration . Naturalization . Delayed Adjudication of Application District Court finds jurisdiction to compel FBI to complete the background check that is a mandatory part of the naturalization aplication; so USCIS is under no statutory obligation to adjudicate the application within 120 days of interview as statute mandates because it cannot complete without FBI background check. USCIS is ordered to adjudicate within 60 days of receipt of FBI background check. (Wang v. Gonzalez, Case No. 07-022727-JWL-DJW (D. Kansas January 2, 2008)).

12.17.07 Federal . Immigration . Removal . Public Officer Report to ICE Maybe Unconstitutional 2nd Circuit finds that Petitioner's 1983 discrimination suit against NYPD officers for contacting ICE officials regarding his illegal status out of retaliation for filing a complaint against them for continued citings for harrassment, double parking, etc. does not fail as a matter of law. The court finds that sufficient facts may show that a reasonable officer would have known that reporting Petitioner to ICe in retlaition for the complaint would violate the constitution (freedom of speech), though the City of New York is not liable as a matter of law. (Saleh v. City of New York, 06 Civ. 1007 (SHS)(S.D.N.Y. 12-17-2007))

12.17.07 Federal . Immigration . Other . Freedom of Speech 2nd Circuit finds that Petitioner's 1983 discrimination suit against NYPD officers for contacting ICE officials regarding his illegal status out of retaliation for filing a complaint against them for continued citings for harrassment, double parking, etc. does not fail as a matter of law. The court finds that sufficient facts may show that a reasonable officer would have known that reporting Petitioner to ICe in retlaition for the complaint would violate the constitution (freedom of speech), though the City of New York is not liable as a matter of law. (Saleh v. City of New York, 06 Civ. 1007 (SHS)(S.D.N.Y. 12-17-2007))

12.17.07 Federal . Immigration . Naturalization . Good Moral Character . DWI District Court grants naturalization over USCIS denial of such for lack of moral character due to one DWI explained be Petitioner by separation of his family and his mother's passing. Court finds Petitioner forthright and in possession of good moral character and orders naturalization granted. (Ragoonanan v. U.S. Citizenship & Immigration Sers., Civil No. 07-3461 (PAM/JSM) (Minn. 12-17-2007))

12.17.07 Federal . Immigration . Other . Definitions . Good Moral Character District Court grants naturalization over USCIS denial of such for lack of moral character due to one DWI explained be Petitioner by separation of his family and his mother's passing. Court finds Petitioner forthright and in possession of good moral character and orders naturalization granted. (Ragoonanan v. U.S. Citizenship & Immigration Sers., Civil No. 07-3461 (PAM/JSM) (Minn. 12-17-2007))

12.17.07 Federal . Immigration . Permanent Residence . Delay in Adjudicating Adjustment Application District Court in California finds jurisdiction under the Administrative Procedures Act and finds that application pending over four years to be beyond reasonable execution of discretionary duties and orders the same to be adjudicated within 60 days. (Wang v. Gonzalez, Case Nol.: C07-4041 PVT (N.D. Cal. 12-17-2007))

12.17.07 Federal . Immigration . Naturalization . Delay in Adjudication Nat'z Application Court remands naturalization application pending over six years after initial interview to USCIS to complete within 180 days (Diaz v. Gonalez, Case Number: 07-22360-CIV-MORENO (S.D.Fla. 12-17-2007))

12.17.07 Federal . Immigration . Other . State Statute . Post-secondary Tuition . Kansas Plaintiffs challenged a Kansas statute — Kan. Stat. Ann. § 76-731a — that allows certain non-U.S. citizens to pay in-state tuition rates while attending Kansas post-secondary educational institutions. The district court dismissed pre-emption and equal protection claims for lack of standing; this appellate court affirmed the district court's findings and denies rehearing here. (Day v. Bond, No. 05-3309 (10th Cir. 12-17-2007))

12.13.07 Federal . Immigration . Naturalization . Appeal Appeal of USCIS decision to deny application for naturalization is dismissed because USCIS reconsidered and granted citizenship during pendency of appeal. (Brown v. U.S. Citizenship & Immigration Services, 06-CV-5347 (NGG) (RML), (E.D.N.Y. 12-13-2007))

12.13.07 Federal . Immigration . Other . State Statute . Employing Undocumented Workers . Arizona Delay in filing for temporary restraining order and preliminary injunction prohibiting enforcement of Legal Arizona's Workers Act is direct consequence of party's tactical decisions and evidenced lack of diligence; motion for such is denied. (Arizona Contractors Association, Inc. v. Candelaria, No. CV07-02496-PHX-NVW (Ariz. 12-13-2007))

12.13.07 Federal . Immigration . Removal . Motion to Reopen Iranian man's conversion to Christianity noted a ruse for asylum as he could not name 12 Apostles or other basic tenets of the religion and did not present letters from home Pastor. Motion to Reopen in the case filed more than a year after asylum claim denied and BIA appeal dismissed was denied here for untimeliness and failure to show how changes in Iran would affect him. (Toufighi v. Mukasey, No. 04-74010 (9th Cir. 2007))

12.13.07 Federal . Immigration . Permanent Residence . Asylum . Persecuted for Religion Iranian man's conversion to Christianity noted a ruse for asylum as he could not name 12 Apostles or other basic tenets of the religion and did not present letters from home Pastor. Motion to Reopen in the case filed more than a year after asylum claim denied and BIA appeal dismissed was denied here for untimeliness and failure to show how changes in Iran would affect him. (Toufighi v. Mukasey, No. 04-74010 (9th Cir. 2007))

12.13.07 Federal . Immigration . Other . Nation . Iran Iranian man's conversion to Christianity noted a ruse for asylum as he could not name 12 Apostles or other basic tenets of the religion and did not present letters from home Pastor. Motion to Reopen in the case filed more than a year after asylum claim denied and BIA appeal dismissed was denied here for untimeliness and failure to show how changes in Iran would affect him. (Toufighi v. Mukasey, No. 04-74010 (9th Cir. 2007))

12.13.07 Federal . Immigration . Other . Detention Six month detention after final removal order (decision of appellate court in this case, July 31, 2007) is deemed reasonable, though mandatory detention only extends for 90 days and, because the six-month period had not expired when suit was filed and because Petitioner cannot make a showing that there is no significant likelihood of removal in the reasonably foreseeable future (he is immediately removable to Panama), Petition is denied. (Blackman v. U.S.D. of Homeland Sec. Bureau of ICE, No. 07-CV-7422 CJS (W.D.N.Y. 12-13-2007))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Determination Inability to remember arrest dates of another individual in the midst of otherwise consistent testimony regarding asylum claim and related events is not sufficient evidence to find testimony inconsistent and Petition for Review of such finding is granted. (Singh v. Mukasey, No. 04-73795 (9th Cir. 12-12-2007) (unpublished/non precedential))

12.12.07 Federal . Immigration . Permanent Residence . Credibility Determination Because IJ cited inconsistencies in asylum applicant's testimony regarding level of involvement in Fulan Gong movement, police beatings, and treatment of father in prison, she provided sufficient cogent reasons and substantial evidence for adverse credibility determination and Petition of Review for asylum application is denied. (Yang v. Mukasey, No. 06-71296 (9th Cir. 12-12-2007) (unpublished/nonprecedential))

12.12.07 Federal . Immigration . Removal . Collateral Attack on Underlying Order Section 1326 attack on underlying deportation order (brought up after bieng found in the country after deportation order) must show administrative relief was exhausted, Respondent was deprived of judicial review and entry of deportation order was funamentally unfair. Not apprising Respondent of potential equal protection argument arising out of disparate treatment of children/grandchildren of US citizens does not constitute deprival of judicial review or unfair deportation order, and is not constitutionally sound in and of itself. (U.S.A. v. Perez-Toledo, No. 07-50066 (9th Cir. 12-12-2007)(unpublished/nonprecedential))

12.12.07 Federal . Immigration . Other . Equal Protection Not apprising Respondent of potential equal protection argument arising out of disparate treatment of children/grandchildren of US citizens does not constitute deprival of judicial review or unfair deportation order, and is not constitutionally sound in and of itself. (U.S.A. v. Perez-Toledo, No. 07-50066 (9th Cir. 12-12-2007)(unpublished/nonprecedential))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Timely Application District Court has no jurisdiction over BIA determination of extraordinary circumstances that may warrant consideration of asylum application filed more than one year after arrival in the U.S. and dismisses Petition for Review thereof. (Cala v. u.S. Attorney General, No. 07-12840 Non-Argument Calendar (11th Cir. 12-12-2007))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Determination Real ID Act of 2005 made totality of circumstances lending to discredit asylum testimony (and withholding of removal and CAT claims) sufficient to find the witness/applicant not credible and discount his/her entire testimony. Minor inconsistencies in this case combine to make applicant's testimony not credible and, even if credible, fellow colleagues sharing applicant's same political opinions remain in Venezuela with no adverse consequences. (Cala v. u.S. Attorney General, No. 07-12840 Non-Argument Calendar (11th Cir. 12-12-2007))

12.12.07 Federal . Immigration . Nation . Venezuela Minor inconsistencies in this case combine to make applicant's testimony not credible and, even if credible, fellow colleagues sharing applicant's same political opinions remain in Venezuela with no adverse consequences. (Cala v. u.S. Attorney General, No. 07-12840 Non-Argument Calendar (11th Cir. 12-12-2007))

12.12.07 Federal . Immigration . Other . Alien Smuggling Giving Miranda after a night in custody at the Miami Airport after suspicion of arriving with two young girls proported to be daughters with altered passports does not constitute "custody" that requires a previous provision of Miranda rights, because what is considered "custody" away from the border may not be so at the border where the government has the additional duty to protect borders from illegal entry. (U.S.A. v. Munoz-Gutierrez, No. 06-12730, 06-12773 (11th Cir. 12-12-2007))

12.12.07 Federal . Immigration . Other . Miranda Rights Giving Miranda after a night in custody at the Miami Airport after suspicion of arriving with two young girls proported to be daughters with altered passports does not constitute "custody" that requires a previous provision of Miranda rights, because what is considered "custody" away from the border may not be so at the border where the government has the additional duty to protect borders from illegal entry. (U.S.A. v. Munoz-Gutierrez, No. 06-12730, 06-12773 (11th Cir. 12-12-2007))

12.12.07 Federal . Immigration . Other . Crime Involving Moral Turpitude Third degree burglary (Conn. Gen. Stat. section 53a-103) may not be a crime involving moral turpitude if the intent of larceny involved a temporary taking of property. Petition to Review BIA's denial of motion to terminate removal proceedings based on reasoning to the contrary is granted and case remanded. (Wala v. Mukasey, No. 06-0238-ag (2nd Cir. 2007))

12.12.07 Federal . Immigration . Removal . Criminal Grounds . Crime Involving Moral Turpitude Third degree burglary (Conn. Gen. Stat. section 53a-103) may not be a crime involving moral turpitude if the intent of larceny involved a temporary taking of property. Petition to Review BIA'sdenial of motion to terminate removal proceedings based on reasoning to the contrary is granted and case remanded. (Wala v. Mukasey, No. 06-0238-ag (2nd Cir. 2007))

12.12.07 Federal . Immigration . Other . Admissibility . Criminal Grounds Third degree burglary (Conn. Gen. Stat. section 53a-103) may not be a crime involving moral turpitude if the intent of larceny involved a temporary taking of property. Petition to Review BIA's denial of motion to terminate removal proceedings based on reasoning to the contrary is granted and case remanded. (Wala v. Mukasey, No. 06-0238-ag (2nd Cir. 2007))

12.12.07 Federal . Immigration . Removal . Motion to Reopen . Ineffective Assistance of Counsel Petition to Review BIA's denial to reopen removal proceedings as untimely filed was granted because BIA did not provide specific reason for denying ineffective assistance of counsel claim but cited, simply, that Petitioner's assertion that counsel told him to disregard voluntary departure order and not leave the country, but rather focus on application to adjust status, was "insufficient" to explain the delay. Case remanded for further consideration. (Punjwani v. Mukasey, No 06-4268-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Other . Ineffective Assistance of Counsel Petition to Review BIA's denial to reopen removal proceedings as untimely filed was granted because BIA did not provide specific reason for denying ineffective assistance of counsel claim but cited, simply, that Petitioner's assertion that counsel told him to disregard voluntary departure order and not leave the country, but rather focus on application to adjust status, was "insufficient" to explain the delay. Case remanded for further consideration. (Punjwani v. Mukasey, No 06-4268-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Adverse Credibility Determination Asylum claim denied and Petition thereof denied for aggregate minor inconsistencies in applicant's testimony, including more knowledge of persecuting groups in the applicatioin than in testimony and exclusion of testimony regarding injuries on his back for which he received treatment, to the exclusive focus of facial injuries. Expert testimony also was credited that found applicant's identity documents to be false - they were scanned images of originals. (Ly v. Mukasey, No. 07-1229-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Nation . Sierra Leone . Persecution Asylum claim denied and Petition thereof denied for aggregate minor inconsistencies in applicant's testimony, including more knowledge of persecuting groups in the applicatioin than in testimony and exclusion of testimony regarding injuries on his back for which he received treatment, to the exclusive focus of facial injuries. Expert testimony also was credited that found applicant's identity documents to be false - they were scanned images of originals. (Ly v. Mukasey, No. 07-1229-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Removal . Motion to Reopen Time-barred Motion to Reopen (nine years after regulation requiring such after 90 days) that explained that in the meantime, had married a USC, applied for adjustment, did not sufficiently show country circumstances sufficient to fall within the changed country condition exception to the 90-day filing deadling. (Zheng v. Mukasey, No. 06-4939-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Petition to Review adverse credibility determination by IJ (summarily affirmed by BIA) was denied. IJ's ruling noted Petitioner's evasive demeanor and long pauses appeared to indicate his piecing together a story as a witness and found that past persecution citing detention and the fact Chinese officials are currently seeking him was not credible and any fear of future persecution due to the birth of his son in the U.S. is too speculative to support asylum application. (Liu v. Mukasey, No. 07-1007-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Nation . China . One-Child Policy Petition to Review adverse credibility determination by IJ (summarily affirmed by BIA) was denied. IJ's ruling noted Petitioner's evasive demeanor and long pauses appeared to indicate his piecing together a story as a witness and found that past persecution citing detention and the fact Chinese officials are currently seeking him was not credible and any fear of future persecution due to the birth of his son in the U.S. is too speculative to support asylum application. (Liu v. Mukasey, No. 07-1007-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Permanent Residence . Withholding of Removal . Direct Injury Petition for Review challenging IJ's decision (and BIA's summary affirmance) that applicant's story of persecution was not credible (differing marriage dates, fabricated documents), asylum was filed untimely, and persecution to wife through forced sterilization did not constitute direct, personal persecution sufficient 'persecution' to win withholding of removal was denied. (Sun v. BIA, No. 06-0101-ag (2nd Cir. 2007))

12.12.07 Federal . Immigration . Nation . China . One-Child Policy Petition for Review challenging IJ's decision (and BIA's summary affirmance) that applicant's story of persecution was not credible (differing marriage dates, fabricated documents), asylum was filed untimely, and persecution to wife through forced sterilization did not constitute direct, personal persecution sufficient 'persecution' to win withholding of removal was denied. (Sun v. BIA, No. 06-0101-ag (2nd Cir. 2007))

12.12.07 Federal . Immigration . Permanent Residence . Asylum . Political Opinion Substantial evidence supports IJ's determination that Petitioner's claim of persecution appeared to be associated with her civil claim against her employer and not on account of political opinion. Failing to show reasonable fear of future persecution, Petition for Review is denied. Raising fear of persecutioin due to China's one-child policy was waived; it was raised first on appeal. (Lin v. Mukasey, No 07-1583-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Nation . China . Political Opinion Substantial evidence supports IJ's determination that Petitioner's claim of persecution appeared to be associated with her civil claim against her employer and not on account of political opinion. Failing to show reasonable fear of future persecution, Petition for Review is denied. Raising fear of persecutioin due to China's one-child policy was waived; it was raised first on appeal. (Lin v. Mukasey, No 07-1583-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Removal . Motion to Reopen Petition requesting review of IJ and BIA's denial of Motion to Reopen is denied as the Motion to Reopen was filed after 90 day filing deadline and did not present evidence of changed country conditions that would warrant reopenning the case. BIA did not abuse discretion affirming IJ's denial. Country conditions in Kosovo were much the same, even improving for ethnic Albanians, after the IJ's ruling of April 24, 2002. (Gashi v. Mukasey, No. 07-1709-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Nation . Kosovo . Country Conditions Petition requesting review of IJ and BIA's denial of Motion to Reopen is denied as the Motion to Reopen was filed after 90 day filing deadline and did not present evidence of changed country conditions that would warrant reopenning the case. BIA did not abuse discretion affirming IJ's denial. Country conditions in Kosovo were much the same, even improving for ethnic Albanians, after the IJ's ruling of April 24, 2002. (Gashi v. Mukasey, No. 07-1709-ag NAC (2nd Cir. 12-12-2007))

12.12.07 Federal . Immigration . Other . Laws Denying Benefits to Undocumented Aliens Northern District Court of Oklahoma refuses standing to church groups, companies and unnamed individuals suing to prohibit enforcement of law requiring documentation of citizenship, etc., when receiving benefits, giving employees right to sue employers when fired if employer knowingly employs undocumented workers and other similar provisions because such groups do not have prudential standing, the courts should "guard jealously" power to make Constitutional pronouncements in matters of national significance and Plaintiffs may have unclean hands. (National Coalition of Latino Clergy, Inc. v. Henry, Case No. 07-CV-613-JHP (N.D.Okla. 12-12-2007)

12.11.07 Federal . Immigration . Removal . Collateral Attack on Previous Deportation Immigration Judge's failure to advise man regarding 212(c) discretionary relief from deportation is not a due process violation when record shows that respondent appealed decision and absconded on bail. (U.S. v. Palomino, 2:03-cr-0420-LDG-PAL (Nev. 12-11-2007))

12.11.07 Federal . Immigration . Other . Motion to Reopen . Changed Country Conditions Motion to Reopen filed after the 90-day deadline but argued to fall within the exception of introducing changed country conditions is denied as the article introduced described health effects of torture and does not present any connection between torture and group recognized as "refugee" does not adequately present evidence of changed country conditions. (Alemu v. Mukasey, No 07-3309, (8th Cir. 12-11-2007)

12.11.07 Federal . Immigration . Naturalization . Delay in Adjudication Nat'z Application Court remands naturalization application to USCIS on motion to remand and representation it is ready to adjudicate, with all security checks complete, within 60 days of Petitioner giving another set of fingerprints (previous ones more than 15 months old). Court has jurisdiction over actions filed 120 days after naturalization interview. (Zou v. Keisler, Case No. C07-1457 JLR, (W.D.Wash. 12-11-2007)

12.11.07 Federal . Immigration . Other . Foreign Agents Court finds Petitioner lacked to state facts sufficient to find he is a foreign agent and denies here Petition to alter such judgment. (Martinez v. Clark, Case No. 1:07-cv-922 (W.D.Wash. 12-11-2007)

12.11.07 Federal . Immigration . Permanent Residence . Delay in Adjudicating Adjustment Application Court finds jurisdiction under Administrative Procedures Act to compel adjudication of adjustment application pending over four years, within 90 days. (Zhu v. Chertoff, No. 07-4104-CV-C-NKL (W.D.Mo. 12-11-2007)

12.11.07 Federal . Immigration . Other . Habeas Corpus Prior incomplete filing of habeas corpus action that was dismissed without decision does not constitute previous filing of habeas corpus action. Instant action, also habeas corpus, is not barred by one-time limit of habeas corpus application under section 2254. (Hernandez v. Wallace, Case No. 07C0417 (E.D.Wis. 12-11-2007)

12.10.07 Federal . Immigration . Removal . Appeal Petitioner was found removable for conviction of two crimes involving moral turpitude not part of a single scheme (malicious damage to a motor vehicle and larceny) and appeals the IJ decision to the BIA and requests reconsideration of its affirmance two times and, before BIA's initial affirmance in the midst appeals denials to this district court; court finds it has no jurisdiction as appeal for final removal orders lies with circuit courts under 8 .S.C. § 1252(a)(5) and only after BIA has issued its final order (all administrative remedies have been exhausted), following 6th and 9th Cir., but also noting 2nd Cir. has allowed appeals filed before BIA's affirmance of IJ decisions so long as BIA affirmance was later issued, allowing court's review without prejudice. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Removal . Crime Petitioner was convicted of malicious damage to a motor vehicle, in violation of Massachusetts General Law Ch. 266 § 28, and later, larceny of a motor vehicle under the same Massachusetts statute, and was later found removable for conviction of two or more crimes involving moral turpitude that are not part of a single scheme. Petitioner appeals and loses on jurisdiction. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Determination Petitioners, mother/daughter, from Uzbekistan claim that husband/father's Jewish heritage was the cause of incidents of persecution, none of which were reported to the police. IJ's adverse credibility determination was affirmed by BIA and 8th Circuit here because Jewish indications on the daughter's birth certificate do not appear on official copies of the same obtained through the US Embassy, only on the copies provided in asylum application. US did not breach confidentiality required regarding asylum applications through seeking official documentation because no records or information regarding the application were released. (Averianova v. Mukasey, Nos. 06-3717, 06-3718 (8th Cir. 2007))

12.10.07 Federal . Immigration . Permanent Residence . Asylum . Confidentiality Petitioners, mother/daughter, from Uzbekistan claim that husband/father's Jewish heritage was the cause of incidents of persecution, none of which were reported to the police. IJ's adverse credibility determination was affirmed by BIA and 8th Circuit here because Jewish indications on the daughter's birth certificate do not appear on official copies of the same obtained through the US Embassy, only on the copies provided in asylum application. US did not breach confidentiality required regarding asylum applications through seeking official documentation because no records or information regarding the application were released. (Averianova v. Mukasey, Nos. 06-3717, 06-3718 (8th Cir. 2007))

12.10.07 Federal . Immigration . Other . Nation . Uzbekistan Petitioners, mother/daughter, from Uzbekistan claim that husband/father's Jewish heritage was the cause of incidents of persecution, none of which were reported to the police. IJ's adverse credibility determination was affirmed by BIA and 8th Circuit here because Jewish indications on the daughter's birth certificate do not appear on official copies of the same obtained through the US Embassy, only on the copies provided in asylum application. US did not breach confidentiality required regarding asylum applications through seeking official documentation because no records or information regarding the application were released. (Averianova v. Mukasey, Nos. 06-3717, 06-3718 (8th Cir. 2007))

12.10.07 Federal . Immigration . Other . Definition . Crime Involving Moral Turpitude Petitioner was convicted of malicious damage to a motor vehicle, in violation of Massachusetts General Law Ch. 266 § 28, and later, larceny of a motor vehicle under the same Massachusetts statute, and was later found removable for conviction of two or more crimes involving moral turpitude that are not part of a single scheme. Petitioner appeals and loses on jurisdiction. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . Admission . Crime Involving Moral Turpitude Petitioner was convicted of malicious damage to a motor vehicle, in violation of Massachusetts General Law Ch. 266 § 28, and later, larceny of a motor vehicle under the same Massachusetts statute, and was later found removable for conviction of two or more crimes involving moral turpitude that are not part of a single scheme. Petitioner appeals and loses on jurisdiction. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . State Crimes . Malicious Damage to Motor Vehicle . Larceny . Massachussetts . Crime Involving Moral Turpitude Petitioner was convicted of malicious damage to a motor vehicle, in violation of Massachusetts General Law Ch. 266 § 28, and later, larceny of a motor vehicle under the same Massachusetts statute, and was later found removable for conviction of two or more crimes involving moral turpitude that are not part of a single scheme. Petitioner appeals and loses on jurisdiction. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . Jurisdiction Petitioner was found removable for conviction of two crimes involving moral turpitude not part of a single scheme (malicious damage to a motor vehicle and larceny) and appeals the IJ decision to the BIA and requests reconsideration of its affirmance two times and, before BIA's initial affirmance in the midst appeals denials to this district court; court finds it has no jurisdiction as appeal for final removal orders lies with circuit courts under 8 U.S.C. § 1252(a)(5) and only after BIA has issued its final order (all administrative remedies have been exhausted), following 6th and 9th Cir., but also noting 2nd Cir. has allowed appeals filed before BIA's affirmance of IJ decisions so long as BIA affirmance was later issued, allowing court's review without prejudice. (Moreia v. Mukasey, No. -6-60654 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Removal . Crime . Aggravated Felony criminal Possession of stolen property in the third degree in violation of N.Y. Penal Law § 165.50 is a "theft offense" within meaning of 8 U.S.C. § 1101(a)(43)(G) for which a sentence of one year or more thereunder constitutes an aggravated felony; theft offenses include crimes involving taking or control over property without consent of rightful owner. (Burke v. Mukasey, No. 06-60710 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . Admission . Aggravated Felony Possession of stolen property in the third degree in violation of N.Y. Penal Law § 165.50 is a "theft offense" within meaning of 8 U.S.C. § 1101(a)(43)(G) for which a sentence of one year or more thereunder constitutes an aggravated felony; theft offenses include crimes involving taking or control over property without consent of rightful owner. (Burke v. Mukasey, No. 06-60710 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . Definition . Aggravated Felony Possession of stolen property in the third degree in violation of N.Y. Penal Law § 165.50 is a "theft offense" within meaning of 8 U.S.C. § 1101(a)(43)(G) for which a sentence of one year or more thereunder constitutes an aggravated felony; theft offenses include crimes involving taking or control over property without consent of rightful owner. (Burke v. Mukasey, No. 06-60710 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Other . State Crimes . New York . Possession of Stolen Property . Aggravated Felony Possession of stolen property in the third degree in violation of N.Y. Penal Law § 165.50 is a "theft offense" within meaning of 8 U.S.C. § 1101(a)(43)(G) for which a sentence of one year or more thereunder constitutes an aggravated felony; theft offenses include crimes involving taking or control over property without consent of rightful owner. (Burke v. Mukasey, No. 06-60710 (5th Cir. 12-10-2007))

12.10.07 Federal . Immigration . Permanent Residence . Asylum Petition for Review of BIA's affirmance of IJ's finding that Petitioner's asylum testimony inconsistent and not credible is denied as supported by substantial evidence, namely, that he attempted to enter the U.S. long before any alleged persecution. (Singh v. Mukasey, 04-72708 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Cancellation of Removal Petition for Review of BIA's affirmance of IJ's finding that Petitioner affirmatively assisted girlfriend to cross the border without legal entry documents sufficiently supports finding that he lacks good moral character required for Cancellation of Removal relief. (Delgado v. Mukasey, 06-72175 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Definitions . Good Moral Character Petition for Review of BIA's affirmance of IJ's finding that Petitioner affirmatively assisted girlfriend to cross the border without legal entry documents sufficiently supports finding that he lacks good moral character required for Cancellation of Removal relief. (Delgado v. Mukasey, 06-72175 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Alien Smuggling Petition for Review of BIA's affirmance of IJ's finding that Petition participated in alien smuggling and finding her removable therefore is denied as supported by substantial evidence; and finding that Petitioner handed government officials an alien registration card of her passenger that she knew to be false was sufficient affirmative assistance to be found to have participated in alien smuggling. (Lopez-Cuevas v. Mukasey, 06-73038 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Cancellation of Removal Petition for Review of BIA's affirmance of IJ's denial of cancellation of removal for late submission (submission attempted on day of hearing as opposed to the date of deadline set by IJ) is denied and IJ's authority to determine opportunity to submit such application is waived if not timely submitted is upheld. (Martinez. v. Mukasey, 06-72561 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Agents and Authorities . IJ Petition for Review of BIA's affirmance of IJ's denial of cancellation of removal for late submission (submission attempted on day of hearing as opposed to the date of deadline set by IJ) is denied and IJ's authority to determine opportunity to submit such application is waived if not timely submitted is upheld. (Martinez. v. Mukasey, 06-72561 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Evidence Petition for Review of BIA's affirmance of IJ's consideration of Form I-213 is denied as submission of the form in court was not opposed and information thereon comports with Petitioner's husband's testimony that she knew the child she presented as her own did not have legal right to enter the U.S. (Martinez. v. Mukasey, 06-72561 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Cancellation of Removal Petition for Review of BIA's affirmance of IJ's denial of cancellation of removal is denied despite claims that IJ violated due process by not instructing Petitioners to present more documentary evidence and Petitioners claim of ineffective assistance of counsel based on the same issue, that s/he didn't submit certain evidence. (Pulido-Geronimo v. Mukasey, 06-72476 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Admissibility . Fraud Petition for Review of BIA's affirmance of IJ's determination that proceeding with asylum interview knowing false information is on the relevant asylum application is willful misrepresentation to procure an immigration benefit and a basis for inadmissibility under INA 212 (6)(c), and Petitioner's claims that she did not intend to put the information on the form in the first instance does not overcome the misrepresentation at the interview. (Prado-Valera v. Mukasey, 06-72156 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Motion for Untimely Brief Petition for Review of BIA's refusal to consider an untimely brief on motion from Petitioner is granted and case is remanded for BIA's reasoned explanation for such denial or consideration thereof. (Sanchez v. Mukasey, 06-72952 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Alien Smuggling Petition for Review of finding of removability for alien smuggling based on statements on Form I-213 and Sworn Statement as well as witness statement that she got fake documents through connections of Petitioner is denied as supported by substantial evidence. All statements were admissible. (Godinez v. Mukasey, -4-72530 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Permanent Residence . Asylum Petition for Review of asylum and withholding claims (CAT claim not preserved in pleadings to BIA) denied because substantial evidence supports finding that Petitioner's credibility was lacking (father, leader of 'persecuted' group lives peacefully in home village) and that disputes were personal in nature and not from association with protected group. (Singh v. Mukasey, 04-72038 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Cancellation of Removal Time of continuous presence may not be interrupted by voluntary departure if the Petitioner was not apprised of the terms of departure or there is no indication that he accepted the terms voluntarily and knowingly. (Castillo-Cruz v. Mukasey, No. 04-70824 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Alien Smuggling Petition for Review is granted and case remanded to BIA for further proceedings to determine if Petitioner's transportation of aliens already within the U.S. constituted participation in a prearranged plan to smuggle aliens into the U.S. - on the record, it is not properly shown sufficient to constitute convincing evidence. (Montelongo v. Mukasey, No. 06-73243 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Permanent Residence . Asylum Petition for Review of BIA's confirmation of IJ's decision denying asylum claim filed one year after participation in demonstration in front of Chinese Embassy in NYC for untimeliness (past one year deadline) and Motion to Reopen denial is not shown to be abuse of discretion. (Zhong v. Mukasey, No. -5-57999 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Motion to Reopen Petition for Review of BIA's confirmation of IJ's decision denying asylum claim filed one year after participation in demonstration in front of Chinese Embassy in NYC for untimeliness (past one year deadline) and Motion to Reopen denial is not shown to be abuse of discretion. (Zhong v. Mukasey, No. -5-57999 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Permanent Residence . Asylum Petition for Review of BIA's confirmation of IJ's decision denying asylum based on failure to prove entry in September, 2003, supporting claim of timely file, is denied as appellate court lacks jurisdiction over that factual finding. (Jin v. Mukasey, No. 06-75430 (9th Cir. 12-10-2007)(unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Alien Smuggling Petition for Review of BIA's confirmation of IJ's decision finding Petitioner removable for attempting to drive his uncle across the border knowing he lacked documentation. (Aguilar-Shumann v. Mukasey, No. 06-74207 (9th Cir. 12-10-2007) (unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Alien Smuggling Petitioner held removable via conviction of alien smuggling because she attempted to bring a noncitizen over the border who she knew did not have a legal basis for entry, and statements to that effect on the I-213 and Sworn Statement were admissible because she did not present evidence that the statements were involuntary. (Rumbo-Cisneros v. Mukasey, No. 06-74371 (9th Cir. 12-10-2007)(unpublished/nonprecedent))

12.10.07 Federal . Immigration . Other . Evidence Petitioners due process claim based on use of her admissions on Form I-213 and in a sworn statement fail because she does not present evidence that such were involuntary. (Rumbo-Cisneros v. Mukasey, No. 06-74371 (9th Cir. 12-10-2007)(unpublished/nonprecedent))

12.10.07 Federal . Immigration . Removal . Criminal Defendant moved to dismiss indictment charging him with possession of green card that was forged, counterfeit, altered or falsely made under 18 U.S.C. § 1546(a) because he had procured his through a false statement, but the green card was real. Court agreed and dismissed the indictment. (U.S. v. Krstic, 07-CR-47-BR, (Or. 12-10-2007)

12.10.07 Federal . Immigration . Other . Admissibility. Criminal Defendant moved to dismiss indictment charging him with possession of green card that was forged, counterfeit, altered or falsely made under 18 U.S.C. § 1546(a) because he had procured his through a false statement, but the green card was real. Court agreed and dismissed the indictment. (U.S. v. Krstic, 07-CR-47-BR, (Or. 12-10-2007)

12.10.07 Federal . Immigration . Permanent Residence . Delay in Adjudicating Adjustment Application Applicants sue for mandamus and under Administrative Procedures Act to compel adjudication on adjustment application filed March 27, 2003, but court finds it lacks jurisdiction as statute provides no time frame in which such adjudication is required and judicial review over discretionary aspects of the application is specifically precluded under 8 U.S.C. § 1252(a)(2)(B). (Orlov v. Howard, Civil Action No. 07-350 (JDB) (D.C. 12-10-2007))

12.10.07 Federal . Immigration . Removal . Detention Habeas corpus writ filed while Petition for Review was pending with the Second Circuit based on request to reduce bond from $15,000 was denied because the Second Circuit denied petition before the habeas action was decided and the detainee, then, fell within the 90 day period following final order of removal where detention is mandatory. (Garcia-Reyes v. Decker, Civil No. 3:CV-07-1284 (M.D.Pa. 12-10-2007))

12.07.07 Federal . Immigration . Permanent Residence . Asylum Application for asylum based on claims that ex-fiance and then Indonesia national military came to Petitioner to threaten her with death and to kidnap her minor daughter (daughter of ex-fiance as well) because she was Christian, claims that were ignored by local police for the same reason, that was filed after one year deadline lapsed was aptly denied and petition for review is denied. (Lumanauw v. Mukasey, 07-1307 (1st Cir. 12-7-2007))

12.07.07 Federal . Immigration . Permanent Residence . Withholding of Removal Application for withholding of removal over claims that ex-fiance and then Indonesia national military came to Petitioner to threaten her with death and to kidnap her minor daughter (daughter of ex-fiance as well) because she was Christian, was aptly denied on basis that Applicant can move to a different location in the country and such does not appear to be persecution for religosity but a child custody issue. The record does not show that a reasonable factfinder would be compelled to find otherwise based on substantial evidence, and petition for review of BIA's decision thus is denied. (Lumanauw v. Mukasey, 07-1307 (1st Cir. 12-7-2007))

12.07.07 Federal . Immigration . Permanent Residence . Asylum District Court has no jurisdiction over the issue of timeliness of an asylum application, so it declines to overturn BIA's finding that an asylum application submitted three years after arrival in the US that does not show changed circumstances in home country during such period that would give rise to the claim. (Arif v. Mukasey, 06-60557 (5th Cir. 12-7-2007))

12.07.07 Federal . Immigration . Permanent Residence . Withholding of Removal This Circuit agrees with 2nd, 6th, 8th, 9th, 11th Circuits that there is no derivative beneficiaries for withholding of removal benefits, so Petitioner, who's husband's withholding of removal application was remanded by BIA for further IJ consideration, does not have derivative status on such application or benefits. (Arif v. Mukasey, 06-60557 (5th Cir. 12-7-2007))

12.07.07 Federal . Immigration . Permanent Residence . LIFE Act BIA erroneously found that Respondent did not request for administrative closure or indefinite termination of removal proceedings to allow him to make application to register permanent residence through the LIFE Act. The fact Respondent requested such is supported by substantial evidence; his right to receive it is outlined in regulations (8 C.F.R. 245a.12 (b)(1). District Court reverses and remands for determination if Respondent has prima facie eligibility for such registration. (Sajan v. Mukasey, 06-60054 (5th Cir. 12-7-2007))

12.07.07 Federal . Immigration . Classes of Noncitizens . Fugitives In a November, 2007 case, the Fifth Circuit extended 'fugitive' status and its disentitlements to the immigration arena, disallowing those who do not follow legal orders access to the judicial system. Accordingly, appeal of asylum applicant who was denied asylum and ordered to leave the country, voluntary departure, but failed to do so is dismissed as applicant is not entitled to access to the judicial system. (Momani v. Mukasey, 07-60105 (5th Cir. 12-7-2007))

12.07.07 Federal . Immigration . Permanent Residency . Asylum Asylum applicant's claim of persecution based on abortion undertaken before the Chinese government learned of her pregnancy on the 'worr[ies]' that she would be forced to abort and/or fined, etc., etc., is not 'persecution' under the refined, 1996 definition of persecution allowing those who are forced to abort or persecuted for failure to undergo forced abortion in resistance to coercive population program to claim persecution on account of political opinion. (Xiu Fen Xia v. Mukasey, 06-2959-ag (2nd Cir. 12-7-2007))

12.07.07 Federal . Immigration . Other . Motion to Reopen Request on appeal that case be remanded to allow for presentation of additional evidence is denied as procedures to reopen cases is specified in relevant statute. (Xiu Fen Xia v. Mukasey, 06-2959-ag (2nd Cir. 12-7-2007))

12.07.07 Federal . Immigration . Other . Evidence Request on appeal that case be remanded to allow for presentation of additional evidence is denied as procedures to reopen cases is specified in relevant statute. (Xiu Fen Xia v. Mukasey, 06-2959-ag (2nd Cir. 12-7-2007))

12.07.07 Federal . Immigration . Other . Voluntary Departure BIA's reduction of IJ's 90-day period in which to voluntarily depart to 30 days is permissible because the 90 days exceeds the statutory 60-day limit imposed by IIRIRA. (Rivera v. Mukasey, 06-70028 (9th Cir. 12-07-2007))

12.07.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Determination Asylum applicant's asylum claim of persecution at the hands of the New People's Army for her participation in the Filipino Civilian Volunteer Organization and the murder of her fiance (a police chief), was denied initially and in 1997 and BIA found she had ineffective assistance of counsel and remanded for another merits hearing and a specific credibility determination by the IJ, which was held in 2004. IJ again denied the application, this time citing substantial differences between the 1997 and 2004 testimony and found her testimony not credible, a finding that was supported on appeal as supported by substantial evidence. (Rivera v. Mukasey, 06-70028 (9th Cir. 12-07-2007))

12.07.07 Federal . Immigration . Permanent Residence . Delay in Adjudicating Adjustment Application Mr. Li applied for adjustment and left the country with advanced parole. When his adjustment was denied, he filed motion to reconsider and, later, petition of appeal to mandate USCIS review of his motion as USCIS delayed a year without adjudicating the motion to reconsider. While this appeal was pending, USCIS denied the motion to reconsider and put Mr. Li in removal proceedings, opening up new administrative avenues to pursue his grievances (adjustment before IJ). This action, therefore, is moot. His wife had also filed a motion to reconsider denial of her adjustment application filed as a derivative beneficiary, and her motion had only been pending one year and such is not an unreasonable period of pendency given the NY immigration office's schedule and backlog. (Li v. Chertoff, 07-CV-3836 (E.D.N.Y. 12-7-2007))

12.07.07 Federal . Immigration . Naturalization . Delay to Adjudicate Application Although the Kaplan court found mandamus jurisdiction over the FBI to compel a background check within a reasonable time (Kaplan v. Chertoff, 481 F.Supp.2d 370 (E.D. Pa. 2007), this court finds such jurisdiction lacking because FBI does not have a clear, nondiscretionary duty to do such background checks and Congressional mandate that USCIS not finalize naturalization applications until the FBI check is complete does not create the same nondiscretionary duty on the FBI - Congress could have done so, but did not. (Sinha v. .Upchurch, Case No. 1:07 CV 2274 (N.D. Ohio 12-7-2007))

12.06.07 Federal . Immigration . Other . Right to Counsel District Court finds that what the Immigration Judge characterizes as continuances, some ex parte (mis)representations by previous attorney, and crowded calendar are not sufficent reason to deny continuance to allow newly retained counsel to familiarize herself with the file to appropriately present a cancellation of removal claim for the Judge. Denying a continuance for these reasons when new counsel is present in the courtroom requesting a continuance is tantamount to denail of applicants right to counsel. Denying cancellation of removal was based on the fact that applicant presented no criminal record showing eligibility, which a competent attorney would have done, so denying right to counsel prejudiced applicant's case. (Applicant must knowingly waive right to counsel.) (Mendoza-Mazariegos v. Mukasey, 05-70163 (9th Cir. 12-6-2007))

12.06.07 Federal . Immigration . Other . Illegal Reentry . Sentencing Appellate court mandated District Court who gave lenient sentence (33 months) for illegal re-entry after removal as if the Attorney General had a "Fast Track" system for confessing to immigration violations to re-sentence the Defendant because such program does not exist and it vioaltes policy. Such re-sentence did not happen technically and neither the prosecutors or Board of Prisons took action until the Defendant was already released and removed to Dominican Republic. District Court's request to reduce the sentence to remove the case from the record is denied here. (U.S. v. Reyes-Sanchez, 05-4040 (7th Cir. 2007))

12.06.07 Federal . Immigration . Permanent Residence . Delay in Adjudicating Adjustment Application . District Court found jurisdiction over non-discretionary aspects of adjustment application and, under Mandamus Act and Administrative Procedures Act, ruled that the nearly five year wait for adjudication of the adjustment application was excessive and denied government's motion to dismiss action brought to compel adjudication. (Khelashvili v. Dorochoff, No. 07 C 2826 (N.D.Ill 12-6-2007)

12.05.07 Federal . Immigration . Other . Venue Venue is proper in a District Court with jurisdiction over area where an act was either started, continued, or completed or, in this case, where information provided on a written application is used. In this case, venue was proper in place where naturalization applicant moved to after submitted application and after being interviewed in old jurisdiction because he was naturalized in new venue and information on the application was used in that venue. (U.S. v. Jaber, No. 06-3913 (8th Cir. 12-5-2007)

12.05.07 Federal . Immigration . Removal . Admissible at Time of Entry Defendant's argument that general (for noncapital offense) statute of limitations ran on his illegal re-entry after deportation charge is spurious because illegal re-entry is a continuous offense that does not stop until ICE finds the individual has illegally re-entered and such was not shown in this case when a possible contact to INS about presence of the individual was noted in the 2001 file sometime after 2003. In this case, the Judge ruled that Defendant was not 'found' until ICE arrested him for the offense. (U.S. v. Ibarra-Reyes, Criminal Action Number 3:07CR345 (E.D.Va. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residency . Employment Based - Professional . Advertisement for position requiring Dutch language skills did not sufficiently indicate preference for advertised position based on citizenship to make relevant an expert testimony on immigration processes. Court opines that if the preferred candidate were a temporary resident, it stands to reason that immigration processes would be followed in her promotion. (Noyes v. Kelly Services, No. CIV S-02-2685-GEB-CMK (E.D. Cal. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residency . Due Process In dicta, court states that applicants/petitioners have no due process rights to immigration benefits upon application, so onstitutional claims that have not been stripped via § 1252(a)(2)(B)(i) are denied. (Ogbolumani v. U.S. Citizenship & Immigration Svcs., No. 06 C 6009 (N.D.Ill. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residency . Appeal Under § 1252(a)(2)(B)(i) (amended into the law via IIRIRA, 1996), District Courts have no jurisdiction to review constitutional claims regarding discretionary determination to grant permanent residence, but has jurisdiction to review a wife's petition for husband's visa (I-130) as a nondiscretionary issue and motion to dismiss on that point is denied. (Ogbolumani v. U.S. Citizenship & Immigration Svcs., No. 06 C 6009 (N.D.Ill. 12-5-2007)

12.05.07 Federal . Immigration . Other . Post-Conviction Defendant's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 has standing despite the fact he has been released from custody and supervision of the court because there are collateral consequences to his conviction, including immigration and occupational license issues. (U.S. v. Dwumaah, Criminal No. 1:05-CR-0147 (M.D.Pa. 12-5-2007)

12.05.07 Federal . Immigration . Other . Due Process . Immigration Consequences of Guilty Plea In the Third Circuit, it does not violate defendant's due process to fail to inform/advise of immigration consequences of a guilty plea in a criminal matter because such consequence is not direct but collateral. (U.S. v. Dwumaah, Criminal No. 1:05-CR-0147 (M.D.Pa. 12-5-2007)

12.05.07 Federal . Immigration . Other . Admissibility Defendant's argument that general (for noncapital offense) statute of limitations ran on his illegal re-entry after deportation charge is spurious because illegal re-entry is a continuous offense that does not stop until ICE finds the individual has illegally re-entered and such was not shown in this case when a possible contact to INS about presence of the individual was noted in the 2001 file sometime after 2003. In this case, the Judge ruled that Defendant was not 'found' until ICE arrested him for the offense. (U.S. v. Ibarra-Reyes, Criminal Action Number 3:07CR345 (E.D.Va. 12-5-2007)

12.05.07 Federal . Immigration . Other . Statute of Limitations . Illegal Re-entry Defendant's argument that general (for noncapital offense) statute of limitations ran on his illegal re-entry after deportation charge is spurious because illegal re-entry is a continuous offense that does not stop until ICE finds the individual has illegally re-entered and such was not shown in this case when a possible contact to INS about presence of the individual was noted in the 2001 file sometime after 2003. In this case, the Judge ruled that Defendant was not 'found' until ICE arrested him for the offense. (U.S. v. Ibarra-Reyes, Criminal Action Number 3:07CR345 (E.D.Va. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residency . Due Process In dicta, court states that applicants/petitioners have no due process rights to immigration benefits upon application, so constitutional claims that have not been stripped via § 1252(a)(2)(B)(i) are denied. (Ogbolumani v. U.S. Citizenship & Immigration Svcs., No. 06 C 6009 (N.D.Ill. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residency . Appeal Under § 1252(a)(2)(B)(i) (amended into the law via IIRIRA, 1996), District Courts have no jurisdiction to review constitutional claims regarding discretionary determination to grant permanent residence, but has jurisdiction to review a wife's petition for husband's visa (I-130) as a nondiscretionary issue and motion to dismiss on that point is denied. (Ogbolumani v. U.S. Citizenship & Immigration Svcs., No. 06 C 6009 (N.D.Ill. 12-5-2007)

12.05.07 Federal . Immigration . Permanent Residence . Delay in Adjustment Application The Federal Court has jurisdiction to determine if an adjustment application is adjudicated in a reasonably timely manner under the Mandamus Act and Administrative Procedures Act, and government's motion to dismiss claim of adjustment applicants that has been pending for more than three years is denied. (Soliman v. Gonzales, Civil Action No. 07-CV-0682 (E.D.Pa. 12-5-2007))

12.05.07 Federal . Immigration . Permanent Residence . Asylum . Employment Authorization Asylum applicant applies for employment authorization more than 150 days after submitting application but only 47 days after asking for continuance on the application and USCIS denies the application as premature (before the 150 day deadline) but approves employment authorization after the 150 days from continuance, and applicant moves for mandamus to compel authorization which is moot because USCIS has already granted authorization by time of the pleadings. (Kithe v. U.S. Attorney General, Civil Action No. H-07-2678 (S.D.Tex. 12-5-2007))

12.04.07 Federal . Immigration . Temporary Status . U Visa . Crime which forms the basis of the U Visa application need not be specified in the charging document. (Sanchez v. Mukasey, No. 06-70396 (9th Cir. 12-4-2007)

12.04.07 Federal . Immigration . Permanent Residence . Delay in Adjustment Application . The Federal Court has jurisdiction to determine if an adjustment application is adjudicated in a reasonably timely manner, though it may lack jurisdiction regarding the discretionary determination to grant such adjustment. In this case, pending more than three years, the court acknowledged Plaintiff's right to an injunction and gave USCIS 90 days to adjudicate the case. (Jin v. Heinauer, Case No. 2:07-cv-0068 (S.D. Ohio 12-4-2007)

12.04.07 Federal . Immigration . Permanent . Asylum . Applications for asylum submitted subsequent to finding of removal and submitted more than 90 days after final determination must be considered as Motion to Reopen and fails for timeliness - BIA affirmed asylum denial and Petitioner dismissed petition for review in November, 2004 and in September 2005 filed a motion for leave to amend to file successive asylum application. (Zheng v. Mukasey, 06-3048 (8th Cir. 12-4-2007)

12.04.07 Federal . Immigration . Permanent Residence . Delay in Adjustment ApplicationThe Federal Court has jurisdiction to determine if an adjustment application is adjudicated in a reasonably timely manner, though it may lack jurisdiction regarding the discretionary determination to grant such adjustment. In this case, pending more than two-and-a-half years, the court acknowledged Plaintiff's right to an injunction and gave DHS 60 days to adjudicate the case. Summary Judgment granted to dismiss all Defendants but Chertoff, head of DHS (Parties agreed he is the responsible party in the case.) (He v. Gonzales, No. C07-02765 HRL (N.D.Cal. 12-4-2007) 

12.04.07 Federal . Immigration . IJ/BIA Authority . Temporary Visa Cases . Though USCIS has sole jurisdiction on determinations to grant U visa status, the Petitioner's request for reconsideration of the U Visa in front of the IJ/BIA is ordered deemed as a Motion for Continuance of proceedings or alternatively Motion to Terminate proceedings, over which IJ and BIA have authority. (Sanchez v. Mukasey, No. 06-70396 (9th Cir. 12-4-2007)

12.04.07 Federal . Immigration . Motion to Reopen (BIA) . Application for asylum submitted subsequent to finding of removal and submitted more than 90 days after final determination must be considered as Motion to Reopen and fails for timeliness - BIA affirmed asylum denial and Petitioner dismissed petition for review in November, 2004 and in September 2005 filed a motion for leave to amend to file successive asylum application. (Zheng v. Mukasey, 06-3048 (8th Cir. 12-4-2007)

12.04.07 Federal . Immigration . Permanent Residence . Delay in Adjustment Application . The Federal Court has jurisdiction to determine if an adjustment application is adjudicated in a reasonably timely manner, though it may lack jurisdiction regarding the discretionary determination to grant such adjustment. In this case, pending more than three years, the court acknowledged Plaintiff's right to an injunction and gave USCIS 90 days to adjudicate the case. (Jin v. Heinauer, Case No. 2:07-cv-0068 (S.D. Ohio 12-4-2007)

12.04.07 Federal . Immigration . Permanent . Asylum . Applications for asylum submitted subsequent to finding of removal and submitted more than 90 days after final determination must be considered as Motion to Reopen and fails for timeliness - BIA affirmed asylum denial and Petitioner dismissed petition for review in November, 2004 and in September 2005 filed a motion for leave to amend to file successive asylum application. (Zheng v. Mukasey, 06-3048 (8th Cir. 12-4-2007)

12.04.07 Federal . Immigration . Other . Post Conviction Relief . Attacking Guilty Plea Failure to apprise defendant of immigration-related consequences of a guilty plea does not constitute ineffective assistance of counsel or make the plea involuntary. (Neyor v. U.S., Criminal Action No. 1:04-CR-0010-RWS, Civil Action No. 1:05-CV-2168-RWS (N.D. Ga. 12-4-2007))

12.03.07 Federal . Immigration . Naturalization . Derivative Citizenship IJ's failure to continue removal proceedings until Respondent's citizenship application was adjudicated was not abuse of discretion as citizenship application depended on derivative citizenship based on legal separation of his parents, as his parents were never married and, consequently, were never legally separated at any point. (Hamilton v. Mukasey, 06-3076-ag (2nd Cir. 12-3-2007) (unpublished/nonprecedential))

12.03.07 Federal . Immigration . Removal . Continuance IJ's failure to continue removal proceedings until Respondent's citizenship application was adjudicated was not abuse of discretion as citizenship application depended on derivative citizenship based on legal separation of his parents, as his parents were never married and, consequently, were never legally separated at any point. (Hamilton v. Mukasey, 06-3076-ag (2nd Cir. 12-3-2007) (unpublished/nonprecedential))

12.03.07 Federal . Immigration . Permanent Residence . Delay in Adjustment Application Judges in this District have found that, under normal circumstances, a delay of approximately two years ue to an uncompleted FBI background check is unreasonable as a matter of law. (Shaikh v. Gonzales, No C 07-0506 MEJ (N.D. Cal. 12-3-2007)

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Persecution IJ and BIA's determination that several incidents of harrassment related to asylum applican't political activity including a shooting incident, an incident in which he was stopped and actually attacked by FARC, two incidents in which he was confronted personally by FARC and multiple threatening phone calls from FARC to do further harm, even after he moved taken on the whole establishes past persecution and well-founded presumption of future persecution. (Torres v. U.S. Attorney General, No. 07-12000 Non-Argument Calendar (11th Cir. 12-3-2007)(unpublished))

12.03.07 Federal . Immigration . Other . Nation . Colombia IJ and BIA's determination that several incidents of harrassment related to asylum applican't political activity including a shooting incident, an incident in which he was stopped and actually attacked by FARC, two incidents in which he was confronted personally by FARC and multiple threatening phone calls from FARC to do further harm, even after he moved taken on the whole establishes past persecution and well-founded presumption of future persecution. (Torres v. U.S. Attorney General, No. 07-12000 Non-Argument Calendar (11th Cir. 12-3-2007)(unpublished))

12.03.07 Federal . Immigration . Permanent Residence . Withholding of Removal Government's evidence of changed circumstances in Bangladesh rebuts presumption of well-founded fear of future persecution based on incidents of past persecution and substantial evidence supports that Petition could relocate in Bangladesh. (Rahman v. Mukasey, No. 05-74728 (9th cir. 12-3-2007) (unpublished/nonprecedent))

12.03.07 Federal . Immigration . Other . Nation . Bangladesh Government's evidence of changed circumstances in Bangladesh rebuts presumption of well-founded fear of future persecution based on incidents of past persecution and substantial evidence supports that Petition could relocate in Bangladesh. (Rahman v. Mukasey, No. 05-74728 (9th cir. 12-3-2007) (unpublished/nonprecedent))

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Future Persecution Petitioner's review of asylum claim granted based on well-founded fear of future persecution due to political opinion based on charges of bank bombings and highway robbery during time Petitioner was in the U.S. (impossible to commit the crime) and attributed the crimes to right-wing terrorists in the press. Past persecution for participation in a coup in a country that allows for peaceful democratic change is not found. (Munar v. Mukasey, No. 04-75464 (9th Cir. 12-3-2007) (unpublished/nonprecedent))

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Past Persecution Petitioner's review of asylum claim granted based on well-founded fear of future persecution due to political opinion based on charges of bank bombings and highway robbery during time Petitioner was in the U.S. (impossible to commit the crime) and attributed the crimes to right-wing terrorists in the press. Past persecution for participation in a coup in a country that allows for peaceful democratic change is not found. (Munar v. Mukasey, No. 04-75464 (9th Cir. 12-3-2007) (unpublished/nonprecedent))

12.03.07 Federal . Immigration . Other . Nation . The Philippines Petitioner's review of asylum claim granted based on well-founded fear of future persecution due to political opinion based on charges of bank bombings and highway robbery during time Petitioner was in the U.S. (impossible to commit the crime) and attributed the crimes to right-wing terrorists in the press. Past persecution for participation in a coup in a country that allows for peaceful democratic change is not found. (Munar v. Mukasey, No. 04-75464 (9th Cir. 12-3-2007) (unpublished/nonprecedent))

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Credibility Pro Se brief to the BIA did not question the IJ's credibility finding and did not raise due process claims except to generally state that the IJ did not consider the entire record and, accordingly, the issues were not exhausted through administrative channels and the appeals court lacks jurisdiction to consider such. (Cano-Munoz v. U.S. Attorney General, No. 07-11849 Non-Argument Calendar (11th Cir. 12-3-2007)(unpublished))

12.03.07 Federal . Immigration . Other . Appeal Pro Se brief to the BIA did not question the IJ's credibility finding and did not raise due process claims except to generally state that the IJ did not consider the entire record and, accordingly, the issues were not exhausted through administrative channels and the appeals court lacks jurisdiction to consider such. (Cano-Munoz v. U.S. Attorney General, No. 07-11849 Non-Argument Calendar (11th Cir. 12-3-2007)(unpublished))

12.03.07 Federal . Immigration . Permanent Residency . Asylum . Credibiliity Finding Petitioner from China appeals finding that his story of being forced to be sterilized after his wife's forced abortion for violation of China's one-child policy was inherently implausible and lacked credibility and contraverted circumstances of his various trips outside of China (Thailand and Cuba) and eports that couples from his province were allowed to have omre than one child for payment of a fine. (Yan v. Mukasey, 04-4700-ag (2nd Cir. 12-4-2007)

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Persecution IJ and BIA's determination that several incidents of harrassment related to asylum applican't support for and work for Uribe presidential campaign in Colombia did not amount to persecution failed to consider the incidents in the cumulative but simply as individual events (over 300 harrassing phone calls and a beating after being pulled from a van and wife/child held at gun point). Case is remanded for consideration of the events in cumulative and consideration of ground of persecution and relocation question. (Chalela v. U.S. Attor. Gen., No. 07-10776 Non-Argument Caldenar (11th Cir. 12-3-2007)(unpublished))

12.11.07 Federal . Immigration . Other . Nation . Colombia IJ and BIA's determination that several incidents of harrassment related to asylum applican't support for and work for Uribe presidential campaign in Colombia did not amount to persecution failed to consider the incidents in the cumulative but simply as individual events (over 300 harrassing phone calls and a beating after being pulled from a van and wife/child held at gun point). Case is remanded for consideration of the events in cumulative and consideration of ground of persecution and relocation question. (Chalela v. U.S. Attor. Gen., No. 07-10776 Non-Argument Caldenar (11th Cir. 12-3-2007)(unpublished))

12.03.07 Federal . Immigration . Removal . Motion to Reopen Proceedings Marriage to an asylee who filed an I-730 to provide derivative benefits to Respondent does not constitute changed country circumstances sufficient to justify reopening previous removal proceedings; Court also lacks jurisdiction to review BIA's decision not to reopen proceedings sua sponte as it has the right to do. (Rasi v. Mukasey, No. 06-4539 (6th Cir. 12-3-2007) (unpublished/nonprecedential))

12.03.07 Federal . Immigration . Other . Attorneys Fees Naturalization applicant who was denied, then approved via Consent Agreement with USCIS then sued for attorney's fees under Equal Access to Justice Act, which the District Court denied because the governments actions were substantially justified in this case (Petitioner was found to be 'prevailing party'). (Lord v. Chertoff, 06 Civ. 4446 (VM) (S.D.N."Y. 12-3-2007))

12.03.07 Federal . Immigration . Permanent Residency . Asylum Petitioner, and sole witness, who applied for asylum based on participation in civil guard in Guatemala and was detained and threatened by guerillas (later claimed to have his house burnt and threatened with his life) was denied asylum, withholding of removal, and CAT claims based on lack of evidence. Argument for lack of due process due to difficulty of navigating interpretation through interpreter participating via phone is denied because no prejudice was shown as a result of said difficulties. (Zacarias-Velasquez v. Mukasey, 06-3672 (8th Cir. 12-4-2007)

12.03.07 Federal . Immigration . Permanent Residence . Asylum . Changed Country Conditions District Court does not have jurisdiction to consider factual questions, such as existence of blood rivals in Albania that lead to a woman's rape and battery, once appeal to BIA was untimely filed (3 days late, postal service mistake). (Pepaj v. Mukasey, 06-3617 (6th Cir. 12-3-2007)

12.03.07 Federal . Immigration . Removal . Crime of Moral Turpitude Conviction of annoying and molesting a child and indecent exposure in California is a crime of moral turpitude . (Raghunath v. Crawford, No. CV-07-0282-PHX-FJM, (Ariz. 12-3-2007))

12.03.07 Federal . Immigration . Motion to Reopen . Ineffective Assistance of Counsel Failure to report 'ineffective counsel' to state authorities does not comply with Lazoda requirements and forfeits the ineffective-assistance-of-counsel and argument that the requirement is unconstitutional as focusing on the attorney is countered by Court reason that it upholds standards of representation. (Pepaj v. Mukasey, 06-3617 (6th Cir. 12-3-2007)

12.03.07 Federal . Immigration . District Court . Jurisdiction District Court can only consider constitutional and statutory-construction questions and does not have jurisdiction to consider factual questions, such as existence of blood rivals in Albania that lead to a woman's rape and battery, once appeal to BIA was untimely filed (3 days late, postal service mistake). (Pepaj v. Mukasey, 06-3617 (6th Cir. 12-3-2007)

12.03.07 Federal . Immigration . Search and Seizure District Court finds no abuse of discretion in BIA's denial of special motion to reopen case under St. Cyr (for those who had erroneously pled guilty to deportable defenses) because Defendant had reentered the US illegally after deportation and was therefore ineligible for relief. (Avila-Sanchez v. Mukasey, No. 06-70663 (9th Cir. 12-3-2007))

12.03.07 Federal . Immigration . Search and Seizure Prince William County passed a Resolution directing police officers to inquire into an individual's immigration status when that person is otherwise detained for violation of federal or state law if there's probable cause that federal immigration laws are being violated. Complaint filed by community groups and others citing disrimination, fear of unlawful detention, fear of separation from families, denial of services, etc. was dismissed for not alleging sufficiently concrete injuries to provide them with standing. (Roe 1 v. Prince William County, 1:07 cv1009 (JCC) (E.D.Va. 12-3-2007))

12.03.07 Federal . Immigration . Other . Search and Seizure Latinos sued for injunctive and declaratory relief to prohibit ICE agents from entering their homes without warrants and detaining them without probable cause because of their ethnicity, as they had done in Southeast Georgia in September, 2006. Claims were dismissed without prejudice as the claims do not explain a real and immediate threat of future harm and merely ask the Court to require ICE to follow the law. (Mancha v. Immigration & Customs Enforcement, No. 1:06-CV-2650-TWT (N.D.Ga 12-3-2007)

12.03.07 Federal . Immigration . Admissibility . Crime of Moral Turpitude Conviction of annoying and molesting a child and indecent exposure in California is a crime of moral turpitude . (Raghunath v. Crawford, No. CV-07-0282-PHX-FJM, (Ariz. 12-3-2007))

12.03.07 Federal . Immigration . Detention. Writ of Habeas Corpus Petition for Writ of Habeas Corpus denied and Immigration Judge's denial of request to be released on bond is upheld because removal proceedings were expeditious. In ruling, the Ninth Circuit cited several cases and found that an arriving alien has the right to challenge detention period as indeterminate and lengthy, whether detention is during the removal period (albeit Court has no jurisdiction over constitutional challenge of detention during first 90 days of removal period) under § 1231(a)(6) or detention during pendency of removal proceedings (in this case, mandatory no-bond detention due to criminal convictions) under § 1226(c). (Raghunath v. Crawford, No. CV-07-0282-PHX-FJM, (Ariz. 12-3-2007))

12.03.07 Federal . Immigration . Removal . Due Process . Intepreter Argument for lack of due process in removal proceedings due to difficulty of navigating interpretation through interpreter participating via phone is denied because no prejudice was shown as a result of said difficulties. (Zacarias-Velasquez v. Mukasey, 06-3672 (8th Cir. 12-4-2007)

11.30.07 Federal . Employment . Discrimination Employer files for Summary Judgment on all claims employees bring in response to genital touching, racial/national origin slurs (wetback, etc.), unpaid wages, and unlawful touching/hitting on the job. Court dismisses § 1981 discrimination claim because slurs are based on national origin, not racial origin but sustains all other claims as sufficiently 'in question' to survive summary judgment, including Title VII discrimination claims, hostil work environment claims (not time barred by 300 day filing deadling and not barred by failure to check both racial and national discrimination boxes on EEOC complaint), retaliation claims, Fair Labor Standards Act claims of nonpayment (except wages claimed prior to three year statute of limitations) and assault and battery (question remains whether the touching was in the course of duties as employer or due to personal animosity). (Alvarado v. Shipley Donut Flour & Supply Co. Inc., Civil Action No. H-06-2113 (S.D.Tex. 11-30-2007)