Unpub. BIA Remand Victory: Using Martinez v. Mukasey

"[I]n Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), the United States Court of Appeals for the Fifth Circuit reached a different result than that reached by this Board in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) (LJ. at 6-7). The Fifth Circuit determined that the statutory bar on...

Unpublished BIA Victory: 212(c), Ineffective Assistance, Mental Capacity

Jon Eric Garde of Las Vegas recently received good news from the BIA, granting his motion to reopen a case that had last been before the Board in 1998! Matter of Stevens, A035-172-124 - Detroit, Oct. 12, 2011, unpublished .

Unpub. BIA Remand Victory: AOS, False Claim

Matthew L. Kolken writes: " Attached is a BIA decision overturning the IJ in Buffalo. He ruled that my client was statutorily ineligible for adjustment due to an alleged false claim to US citizenship that never happened. I moved for recusal during the course of proceedings, which was denied...

Unpub. BIA Remand Victory: CAT, Mexico, credibility, social group

"[T]he adverse credibility finding is clearly erroneous inasmuch as it based on minor inconsistencies and improper speculation (Resp. Br. at 15). See Ren v. Holder, 648 F.3d 1 (9th Cir. 2011) (trivial inconsistencies that under total circumstances have no bearing on petitioner's veracity should...

Unpub. BIA mental competency remand victory

"[A] remand is appropriate to enable the parties to apply the framework set out in Matter of M-A-M-, supra, including consideration of whether the respondent has a mental illness that impacted her credibility at the hearing." - Matter of X-, Oct. 5, 2011 . [Hats off to Rachel Gore Freed at...

Unpub. BIA asylum remand victory: arrest warrant as pretext

"On appeal, the respondent argues that the arrest warrant issued against him is a pretext for political persecution. See Long v. Holder 620 F3d 162, 166 (2nd Cir. 2010) (noting that prosecution that is pretext for political persecution is not on account of law enforcement); Matter of Sibrun, 18...

Unpub. BIA Equitable Tolling Victory: Matter of Kim

Jon Eric Garde writes: "I want to share a BIA grant on a special motion to reopen for 212(c) over 13 years after the BIA order and over six years after the filing deadline post St. Cyr, as promulgated by governing regulations. Equitable tolling due to mental incapacity (caused by a horrible gambling...

After CA5 Published Remand, BIA Reopens 1988 Deportation Case

"The respondent in this case was ordered deported in absentia on September 29, 1988. The Board dismissed his appeal of an Immigration Judge's denial of his motion to reopen those proceedings on September 28, 2009. On May 12, 2010, the Board denied a motion filed by the respondent seeking to...

Unpub. BIA Remand: Chile, Torture, Lozada, One-Year Bar, Tier III Terrorist Organization

Prof. Alizabeth Newman at the Immigrant & Refugee Rights Clinic, CUNY School of Law, writes: " Attached is a holiday surprise from the BIA that might be of interest to others. - Reversing IJ on the one yr. asylum bar finding extraordinary circumstances due to PTSD (entry 1984-filed 2008)...

Unpub. BIA CAT Remand: Mexico; Zetas; Whistleblower

"[T]he applicant also testified that he was beaten by police officers because his friend's mother reported the incident with the Zeta Cartel to the police (11. at 4' Tr. at 63-65). The Immigration Judge did not assess whether the applicant's alleged harm by the police constitutes a valid...

Unpub. BIA Remand: Right to Full Hearing

IJ determined written asylum application did not present a prima facie case and refused to hold a full hearing on the issue. BIA remanded. (But note dissent by Pauley.) - Matter of X-, Feb. 11, 2013 . [Hats off to Patricia G. Mattos.]

Unpub. BIA CAT / Mental Competency Remand (Ethiopia/Eritrea)

Stephen Yale-Loehr writes: "Our Cornell immigration appeals clinic just won an unpublished remand from the BIA in an interesting Ethiopian/Eritrean CAT case. The case largely concerned Matter of M-A-M- mental competency issues. The BIA also ordered the IJ to conduct additional fact-finding on remand...

Unpub. BIA Stop-Time Remand Victory: Matter of Mendoza-Olivas

Steve Spurgin writes: "[ Linked here is an unpub .] BIA decision in which the Board said that an admission of a stop time crime that was vacated on Padilla grounds in a removal proceeding for a LPR does not stop time unless the respondent is warned in advance about the elements of the offense, citing...

Unpub. BIA Descamps Remand: Matter of Hernandez Garcia

"[R]espondent argues that the determination cannot be made as to the level of harm he caused his victim under a modified categorical approach, because the indictment, plea agreement, or other documents that would indicate the nature of his offense, are not in the record (Respondent's Br. at...

Unpub. BIA CAT Remand Victory; Mexico; Mental Illness; Gang Membership

"We agree with the respondent that the Immigration Judge's analysis overlooked the discussion in the DRI report regarding the use of long-term physical restraints, and how the physical pain caused by such use may constitute torture. ... The Immigration Judge also did not consider the report's...