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Supreme Court Construes "theft offense" in 8 U. S. C. § 1101(a)(43)(G) (emphasis added); § 1227(a)(2)(A) (PDF, 232K)
The Supreme Court held that the term "theft offense" in 8 U.S.C. §§ 1101(a)(43)(G) includes the crime of "aiding and abetting" a theft offense. Gonzales v. Duenas-Alvarez; 2007 U.S. LEXIS 1153 (2007)
Supreme Court Vacates Eighth Circuit Case (PDF, 4K)
The Supreme Court granted petitioner's motion for leave to proceed in forma pauperis and granted the petition for a writ of certiorari. Tostado-Tostado v. Carlson, 2007 U.S. Lexis 22 (2007)
Supreme Court Rules Respondent's Indictment not Defective
(PDF, 180K)
Respondent’s indictment was not defective. Therefore, the Court did not need to reach the harmless-error issue. United Statesv. Resendiz-Ponce, 549 U.S. __ (2007)
Supreme Court: State law felony not misdemeanor under CSA
(PDF, 52K)
Conduct made a felony under state law but a misdemeanor under the CSA is not a ``felony punishable under the Controlled Substances Act'' for INA purposes. LOPEZ v. GONZALES, 2006 U.S. LEXIS 9442 (2006)
Supreme Court: INA Sec. 241(a)(5) Not Impermissibly Retroactive (PDF, 263K)
"Section 241(a)(5) applies to those who reentered the United States before IIRIRA's effective date and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before this Court." Fernandez-Vargas v. Gonzales, 2006 U.S. LEXIS 4892 (2006).
Supreme Court Reverses Thomas v. Gonzales (PDF, 87K)
The Supreme Court opinion reversing and remanding Thomas v. Gonzales on limited procedural grounds is in no way a reversal of the Ninth Circuit’s reasoning regarding particular social group, but is strictly a limited application of existing procedural remand standards. Gonzales v. Thomas, No. 05-552
Degree Equivalency Victory (PDF, 25K)
In an unpublished order dated November 3, 2005 U.S. Magistrate Judge Paul Papak reversed CIS/AAO and ordered the approval of an I-140 petition. "Defendants' decision to deny Plaintiffs' I-140 immigrant visa petition on the grounds that plaintiff Park did not have a foreign degree equivalent to a B.A. in Theology was arbitrary, capricious, and an abuse of discretion." Grace Korean United Methodist Church v. Chertoff, No. CV-04-1849-PK (D. Oregon). Represented by Jennifer Morrissey and Robert Donaldson of Portland, Oregon.
H-1B Declaratory Judgment Victory (PDF, 723K)
In a judgment dated August 29, 2005 U.S. District Judge Florence-Marie Cooper held the California Service Center had abused its discretion in denying H-1B status to an accountant, and remanded. The Button Depot, Inc. v. DHS, No. CV-05-0075 FMC (CTx) (Central Dist. Cal.) Represented by Wade Chernick of Encino, California.
Fla. Adjustment of Status Mandamus Victory (PDF, 143K)
In a decision dated June 6, 2005, U.S. District Judge Patricia A. Seitz (S.D. Fla.) granted a mandamus petition ordering USCIS to process an adjustment of status application that had been pending for four years. Elkhatib v. Bulter, No. 04-22407-CIV-SEITZ.
FOIA EAJA Victory (PDF, 85K)
In an order dated April 18, 2005 U.S. District Judge Gerald Bruce Lee awarded over $11,000 in EAJA fees and costs in a FOIA case, Jarno v. DHS, Case No. 1:04cv929 (GBL), E.D. Va., Alexandria Div. The case is noteworty in many respects, including the court's holding that processing backlogs are not reasonable bases for delaying responses to FOIA requests.
Nationwide Class Action Victory (PDF, 732K)
In a 19-page order dated October 12, 2004 Federal District Judge Patel (N.D. Cal.) certified a nationwide class regarding aliens granted LPR status but who are encountering delays in obtaining proof of status from DHS. Santillan v. Ashcroft, No. C 04-2686 MHP. Represented by Cooley Godward LLP (pro bono) and the Lawyers' Committee for Civil Rights Under Law of Texas (Texas Lawyers' Committee).

State Cases:

Connecticut Post-Conviction Relief (PDF, 220K)
A Superior Court judge agreed that a conviction where the plea canvass was constitutionally defective must be vacated, even when the plea was entered more than three years prior to the motion to vacate being filed. State v. Hu (Superior Court, Geographical Area #22 at Milford, No. CR02-046583S, Nov. 3, 2005) Represented by Diane Polan, of New Haven, CT.
New York Driver License Decision (PDF, 1066K)
On May 10, 2005 Judge Karen S. Smith of the Supreme Court of the State of New York for New York County issued a decision enjoining the New York State Department of Motor Vehicles from requiring a legal presence or immigration status requirement as a condition to receipt of a driver license. The decision has been stayed pending appeal.

BIA Cases:

Attorney General and Board of Immigration Appeals Precedent Decisions

Exhibits to Matter of D-J- (PDF, 660K)
Attorney General Ashcroft cited several exhibits submitted with the INS brief in Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003).

Decisions below:
Bender's Immigration Bulletin has obtained copies of the March 13, 2003 BIA decision and the March 20, 2003 order of Asa Hutchinson, Under Secretary for Border & Transportation Security, certifying the BIA's decision up to Attorney General Ashcroft.

Non-Precedent Decisions

BIA Upholds IJ's Bond Decision (PDF, 239K)
In an unpublished single-member (Moscato) panel decision dated March 11, 2005 the Board upheld an IJ's order that an alien who was originally slated for expedited removal and then placed in normal removal proceedings under INA Sec. 240 is eligible for bond. Matter of Sara Matame-Bekura, A98-399-143, Mar. 11, 2005. (See related entry, "IJ Finds Bond Jurisdiction.")

Notice of Hearing Victory (PDF, 305K)
In an unpublished order dated November 21, 2005 a three-member panel of the Board (PAULEY, Osuna, Filppu) reopened and remanded (on order of the Fourth Circuit Court of Appeals) a case involving proof of non-delivery of a hearing notice by regular mail. Matter of Reyes-Chavez, A76-961-578 - Boston. Represented by Melanie Ryan Chaput of Manchester, NH.

Res Judicata Victory (PDF, 351K)
In an unpublished decision dated November 15, 2005 a three-member panel of the BIA (PAULEY, Filppu, Cole; dissent by Cole) dismissed an ICE appeal of an IJ's termination of proceedings "based on the principle of res judicata as applied in the Fifth Circuit" under Medina v. INS, 993 F.2d 499 (5th Cir. 1993.) Matter of Rodriguez-Lira, A91-571-242 - San Antonio. Represented by Warren R. Kaufman of San Antonio, Texas.

"Reason to Believe Victory" (PDF, 169K)
In an unpublished decision dated December 5, 2005 a three-member panel of the BIA (PAULEY, Osuna, Filppu) vacated an IJ's decision regarding INA Sec. 212(a)(2)(C)(i), the "reason to believe" provision. To sustain a "trafficking" charge, the conduct must be of a "business or merchant" nature. Simply cultivating fifteen marijuana plants and some seedlings for personal use - even though punishable under the Controlled Substances Act as a trafficking offense - is not sufficiently a drug-related commercial activity to sustain a finding of inadmissibility. Remanded for adjustment of status as unmarried son of LPR with current priority date. Matter of Noyola-Montalvo, A23-006-885. Represented by Deborah S. Smith of Helena, Montana.

Successful Joseph Remand (PDF, 132K)
In an unpublished decision dated November 14, 2005, and pursuant to Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), a three-member panel of the BIA (GRANT, Moscato, Pauley) remanded an IJ's mandatory detention decision back to the IJ, finding that ICE is substantially unlikely to prevail on the aggravated felony charge in the NTA. Matter of Yeremin, A46-792-869 - Detroit. Represented by George P. Mann of Farmington Hills, Michigan.

No Fraud, No Waiver Needed (PDF, 134K)
In an unpublished decision dated November 4, 2005 a three member panel of the BIA (Holmes, Hurwitz, MILLER) reversed an IJ's decision and granted adjustment of status. The IJ had held the Respondent lied, lacked good moral character, was undeserving of relief as a matter of discretion, and was not eligible for a 212(i) waiver. On appeal, the BIA found no fraud and therefore no need for a waiver. The Board also found Respondent to be worthy of relief. Represented by Richard A. Geduldig of New York, New York.

AAO Cases:

Non-Precedent Decisions

AAO I-212 Victory (PDF, 190K)
In an unpublished decision dated December 5, 2005 the AAO reversed a 2002 San Antonio INS denial of an I-212 waiver. Represented by Iliana Holguin (formerly Muñoz) of El Paso (formerly Austin), Texas.

AAO Victories: Jan.-Apr. 2005

WAC 03 005 53413 (PDF, 312K) Apr 05, 2005 (Extraordinary Ability; Philippina actress Joanna Bacalso)

SRC 03 089 52825 (PDF, 245K) Feb 01, 2005 (L-1; ability to pay)

LIN 02 218 51584 (PDF, 423K) Jan 18, 2005 (National Interest Waiver; molecular biology, poultry safety)

WAC 03 216 54354 (PDF, 489K) Mar 07, 2005 (National Interest Waiver; data mining, fraud protection)

WAC 03 083 53964 (PDF, 549K) Mar 07, 2005 (National Interest Waiver; engineering, military, helicopter fatigue analysis)

WAC 97 134 52663 (PDF, 456K) Apr 15, 2005 (National Interest Waiver; prior approval under April 8, 1999 Cronin memo)

WAC 03 095 51671 (PDF, 395K) Jan 31, 2005 (National Interest Waiver; nanotechnology, integration of nanostructured germanium)

EAC 03 031 51783 (PDF, 452K) Jan 31, 2005 (National Interest Waiver; budget analyst, Black-Scholes Stock Option Pricing Model)

WAC 01 086 53667 (PDF, 877K) Mar 08, 2005 (Mexican chef; ability to pay)

WAC 99 216 51534 (PDF, 1.3M) Mar 08, 2005 (South Indian cook; ability to pay; prior experience)

WAC 02 210 50926 (PDF, 1.25M) Apr 04, 2005 (track maintenance supervisor, fraud suspected, ability to pay)

Department of Labor Cases:

Santiglia v. Sun Microsystems, Inc.

Immigration Court Cases:

IJ Finds Bond Jurisdiction (PDF, 293K)
In an order dated January 11, 2005 San Antonio Immigration Judge Susan E. Castro found that an alien who was originally slated for expedited removal and then placed in normal removal proceedings under INA Sec. 240 is eligible for bond. Matter of Sara Matame-Bekura, A98-399-143, Jan. 11, 2005. (Decision affirmed on appeal; see related entry, "BIA Upholds IJ's Bond Decision.").

Cal. Vehicular Manslaughter Not CIMT (PDF, 164K)
In an unpublished order dated November 9, 2005 Los Angeles Immigration Judge Christine A. Bither terminated proceedings finding that a 1983 conviction for Vehicular Manslaughter with Gross Negligence under Sec. 192.3(a) of the California Penal Code is not a crime involving moral turpitude. Matter of Merino-Torres, A43-279-016. Represented by Nikki Jacobson of Los Angeles, California.

NSEERS Termination Victory (PDF, 651K)
In July 2005 New York Immigration Judge Robert Weisel granted an Egyptian NSERRS registrant's Motion to Terminate proceedings in a case represented by Catholic Charities New York (attorney Charles Mario Russell) and the St. John's Law School Immigrant Rights Clinic. After a five-hour hearing involving direct and cross examination of the Respondent (conducted by Student Attorney Rachita Sharma) and cross examination of a DHS Special Agent, IJ Weisel concluded that the Respondent's arrest and detention had occurred in violation of DHS regulations, which implicated fundamental/constitutional rights and individual interests. Finding any evidence flowing from the Respondent's identity to be tainted, IJ Weisel further suppressed DHS's proffer of "independent evidence." As there was no information to sustain the charge of removability, IJ Weisel terminated the proceedings. ICE has filed a Notice of Appeal to the BIA.

IJ Terminates Controlled Substance Case; Ineffective Assistance Substrate (PDF, 224K)
In an unpublished order dated September 8, 2005 San Francisco IJ Lawrence N. DiCostanzo terminated removal proceedings holding a conviction for "offering to transport" a controlled substance was equivalent to "solicitation" under U.S. v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001). (Note: the criminal court vacated earlier, harsher convictions on Sixth Amendment grounds.) Matter of Vardanyan, A71-047-388. Represented by Angela M. Bean of Oakland, California.

Los Angeles Cancellation Victory (PDF, 595K)
In an unpublished IJ order dated November 29, 2004 IJ Jan D. Latimore granted cancellation of removal to a husband and wife from Mexico. Matter of Alvarez, A75-668-725 - Los Angeles. Represented by Helen Sklar of Los Angeles, California.

Cambodian DV Asylum Victory (PDF, 95K)
On September 30, 2004 San Francisco Immigration Judge Alberto E. Gonzalez granted asylum to a Cambodian woman as a member of the social group of women who have been raped and abused domestically and whose governments are unwilling or unable to protect them. Matter of Giang, A77-309-635. Represented by Helen Sklar of Los Angeles, California.

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