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| Remember , remember always that all of us ... are descended from immigrants and revolutionists. -=Franklin D. Roosevelt before the Daughters of the American Revolution=- endowed by their Creator rights, that among these with certain inalianable are rights, that among these pursuit of happiness. are life, liberty and the pursuit of happiness. . -=The Declaration of Independence of the Thirteen Colonies=- It has pleased Almighty God ... He has largely augmented our free population by emancipation and by immigration, while he has opened to us new sources of wealth, and has crowned the labor of our working-men in every department of industry with abundant rewards. -=President Abraham Lincoln's 1864 Thanksgiving Proclamation=- One more Quote for those inclined: O, wonder! How many goodly creatures are there here! How beauteous mankind is! O brave new world, That has such people in't! "ENGLISH IS SPOKEN HERE" AT WANGLAW USA |
Beginning 2012, WANGLAW will provide a concise summary of select immigration decisions from the Sixth Circuit: Case: Joyce Mushayaham v. Eric H. Holder, Jr. Unpublished No. 10-4016.Holding: BIA rev'ed in part & affim'd in part Date:April 24, 2012. Country: Zimbabwe Reason: Mushayahama entered the USA from in 1999. In 2006 she filed for asylum, withholding under INA and CAT. She claimed that she and her family were victims of violence by the Zimbabwe African National Union-Patriotic Front (ZANU-PF). She testified she was raped and her brother killed and threats and beatings of the assistant principal and the clerk at the school where she taught. The IJ found her credible and denied all relief. She did not file timely for asylum and the IJ found no nexus for withholding and for CAT because it was unlikely she will be detained. The BIA affirmed. The 6th in a 30 page opinion affirmed on asylum and withholding under INA. It reversed on CAT because the BIA failed to consider all evidence relevant to the possibility [sic] of future torture:" and that the BIA "might have adjudicated claim different" if it had. The 6th is accepting rape as a form of torture. Digest courtesy of Charleston C. K.Wang. Case: Serge Bolan Ako v. Eric H. Holder, Jr., Unpublished No. 10-4016. Holding: BIA affirmed. Date: April 24, 2012. Country: Ivory Coast Reason: Ako entered USA on a B-2 visa in 1995. He overstayed, married a US Citizen who filed an I-130. After an USCIS investigation, the wife withdrew the I-130 and had the marriage annulled in Michigan. DHS issued an NTA charging sham marriage and overstay and the IJ agreed and ordered Ako to be removed. He appealed on the finding of sham marriage which the BIA denied in 2010, but not the overstay. During the appeal he married another US Citizen whose I-130 was initially approved but reopened and subsequently denied in 2008 because of the first sham marriage. This was appealed to the BIA and remains pending. He appeals the BIA affirmation of the sham marriage to the 6th. The 6th dismissed the appeal as moot because he did not appeal the overstay to the BIA and expressed on opinion on the sham marriage, thus leaving that issue open for review. Digest courtesy of Charleston C. K. Wang. Case: Nourelain Mehanna, et al v. USCIS. Recommended for publication No. 10-4489. Holding: USDC affirmed. Date: April 19, 2012. Country: Lebanon. Reason:The sole issue on appeal is whether the 6th has jurisdiction to review a decision of the Secretary of Homeland Security made pursuant to 8 U.S.C. §1155 to revoke a visa petition. Held that such a decision is discretionary and therefore the 6th lacks jurisdiction. In 2000 Mehanna filed an I-130 for her son Reda Barakat as an unmarried adult child of a LPR under 8 U.S.C. §1153(a)(2) which USCIS approved in 2001. In 2006, Barakat married a USC and entered USA as a conditional permanent resident in 2007. In 2008 his marriage was annulled. In 2009 USCIS notified Barakat that it intended to terminate his conditional permanent resident status because the marriae was annulled in less than 2 years. Barakat notified that he had separately filed to adjust under the visa approved through Mehenna's I-130. USCIS notified NVC and Mehenna that the visa had been automatically revoked on the date of Barakat's marriage to a USC pursuant to 8 C.F.R. §205.1(a)(3)(i)(I) and subsequently denied the application to adjust status. On same date DHS served a NTA on Barakat. Mehenna and Barakat sued in USDC seeking a declaration that Barakat's I-130 is valid because under Michigan law, an annulment voids a marriage ab initio and USCIS should treat him as though he was never married. The USDC held that the DHS decision to revoke is discretionary and not subject to judicial review pursuant to §1252(a)(2)(B)(ii) (jurisdiction stripping provision). This issue is of first impression in the 6th although at least seven other circuits have decided the issue - only the 9th have found jurisdiction, ANA Int'l Inc. v. Way, 393 F. 3d 886 (9th Cir. 2004). The 6th cited §1153 which provides that the Secretary "may" revoke a visa petition and "at any time," and "deems to be good and sufficient cause" all of which point towards discretion. The 9th had held that " good and sufficient cause" "constitutes a legal standard the meaning of which we retain jurisdiction to clarify." The 6th saw that qualified by the word "deem." Petitioners also cited Kucana and Berhane but to no avail because the 6th found the language of the statute to provide "clear and convincing evidence" required to "dislodge the presumption" of judicial review in this case. Kucana, 130 S. Ct. at 839. Case: Anna Boar v. Eric H. Holder, Jr. Unpublished No. 10-4489. Holding: BIA affirmed. Date: April 13, 2012. Country: Romania Reason: Boar entered USA in 1995 as an immigrant. On 8.24.1998 at age 20 she was convicted as a Youthful Trainee under Michigan C.L. §762.11 after peading guilty to the offense of first degree retail fraud. She sentenced to 1 year of probation after which the criminal case was discharged. The INS before the discharge filed an NTA charging removability for conviction of a crime of moral turpitude. She denied the conviction because of dismissal under the YT Act. She sought to vacate the retail fraud offense from her record. On 9/11/2000, the Michigan Circuit Court for Oakland County without opinion vacated the conviction by allowing her to withdraw her plea to first degree retail fraud and to enter nunc pro tunc plea of guilty to second degree retail fraud under M.C.L. §750.356d with a 93 day misdemeanor probation. Boar then sought to terminate her removal proceeding. arguing that her first degree conviction had been set aside due to an infirmity in the legal proceedings. The IJ held that she did not meet her burden of proof the post-conviction changes eliminated her conviction for immigration purposes. The IJ then ordered her removed to Romania. She appealed which the BIA dismissed by adopting and affirming the IJ. holding that the changes were made to "enhance her immigration status,: and she "remained convicted for immigration purposes of the initial crime involving moral turpitude." She appealed to the BIA and the USAG filed an unopposed motion to remand based on Pickering v. Gonzales, 465 F3d 263 (6th Cir. 2006) which shifted the burden of proof to clear and convincing evidence by the DHS that any post-conviction changes was vacated solely for rehabilitative or immigration purposes which was granted citing Pickering and Sanusi v. Gonzales, 474 F. 3d 341 (6th Cir. 2007). The BIA remanded to the IJ to review under Matter of Cota-Vargas, 23 I & N Dec. 849 (BIA 2005). The IJ found that the changes were rehabilitative and ordered her removed to Romania. The BIA affirmed, holding that the changes were rehabilitative and for immigration purposes. The 6th affirmed, distinguishing Cota-Vargas applying to modification or reduction not the vacatur of a conviction Digest courtesy of Charleston C. K. Wang. Case: Elizabeth Gomez-Romero v. Eric H. Holder, Jr. Unpublished No. 11-3176. Holding: BIA affirmed. Date: April 13, 2012. Country: Guatemala Reason: Elizabth, Adan and Evelio Gomez-Romero entered USA in July 2004 and sought asylum, withholding under INA and CAT. They testified that their mother had abused them after their father left for USA. The abuse included beatings, malnourishment and sexual activity. After their mother died in 1999, they were placed in the care of the paternal grandfather who died in 2003. They then came to USA and has since reached majority. The IJ found them credible but ineligible for any relief. The BIA affirmed adding that country conditions in Guatemala had changed for the better. They appealed to the 6th Circuit claiming that as abused children, they are protected on account of being in a "particular social group," and they are entitled to "humanitarian asylum." (compelling reason of the severity of the past persecution). The 6th dismissed the appeal. Digest courtesy of Charleston C. K. Wang. Case: Gir Bahadur Thapa v. Eric H. Holder, Jr. Unpublished No. 10-4311/10-4312. Holding: BIA affirmed. Date: April 12, 2012. Country: Nepal Reason: Gir Bahadur and Babita Khulal Thapa separately entered USA with student visas, met each other and married. They filed separate I-589s. Mrs. Thapa claimed fear of being beaten by Maoists because her conversion to Christianity. Mr. Thapa claimed fear of persecution by Maoists whom he claimed burned the school where he worked. The IJ found their claims to be time barred in addition to being not credible. The BIA affirmed holding that even if their testimony were accepted as true, they did not establish a well founded fear of future persecution. Harassment and unfulfilled threats by Maoists at the school did not rise to past persecution. The 6th affirmed, also holding that the questioning by the IJ did not violate due process. Digest courtesy of Charleston C. K. Wang. Case: Daljit Kaur v. Eric H. Holder, Jr. Unpublished No. 10-3379, 10-4346. Holding: BIA affirmed. Date: April 11, 2012. Country: India Reason: Daljit Kaur appeals the denial of asylum, withholding under INA and CAT and the denial of her motion to reopen, both of which are consolidated. She entered USA on or about 2/9/1996 and filed for asylum in December 1997. The IJ ordered her removed to India after finding she was a Sikh and her husband also a Sikh who had been active in the All-India Sikh Student Federation. She had testified that both her husband and she had been arrested and beaten by police. IJ found her testimony to be not credible and without corroboration. She changed counsel and filed a motion to reopen alleging ineffective assistance in the failure to supplement her I-589 to state that she had been raped. The 6th affirmed the BIA on all counts. Digest courtesy of Charleston C. K. Wang. Case: Todor D. Alexandrov v. Eric H. Holder, Jr. Unpublished No. 10-4270. Holding: BIA affirmed. Date: April 6, 2012. Country: Bulgaria Reason: Alexandrov entered USA in December 1996 and filed for asylum in May 1997 by reason of beatings while a member of Bulgaria's Omo Ilinden minority political group. TheINS granted asylum in September 1997. In May 1998, INS terminated asylum status after concluding his documents were fraudulent and issued an NTA. He asserted asylum and withholding of removal and also adjustment by reason of winning a diversity visa lottery and updated his asylum application. DOS Executive Director recited the conclusion of 2 memos from the U S Embassy in Sofia that the documents were fraudulent. The IJ denied all relief on the basis of the fraudulent documents. The BIA affirmed but the 6th reversed in a published decision, Alexandrov v. Gonzales, 442 F. 3d 395 (6th Cir. 2006) because he was not given one of the memos until the day of the hearing and that the IJ's substantive reliance on the memos violated Due Process and could not support the conclusion that the application was frivolous (one reason being that the name of the investigator was not provided). Upon remand, he withdrew his asylum and asked to proceed on the diversity visa. DHS objected insisting that the documents in the asylum were fraudulent. At the hearing Moses P. Narensky, Asst. Atttache and Special Agent for ICE stationed at Vienna, Austria testified that he had personally traveled to Bulgaria and verified the his medical certificate, subpoena, and judgment to be fraudulent.These documents had been provided to petitioner a month before the hearing and he failed to explain the discrepancies. The IJ agreed that the first two were faudulent and rendered him statutorily ineligible for adjustment. The BIA affirmed and the case is before the 6th for the second time which affirmed ineligibility because the knowledge on the part of the petitioner is supported by substantial evidence. Digest courtesy of Charleston C. K. Wang. Case: Telma Leticia Rodriguez v. Eric H. Holder, Jr. Unpublished No. 11-3182. Holding: BIA affirmed. Date: April 5, 2012. Country: Guatemala Reason: Rodriguez entered USA in 1990 and filed for asylum in 1991. After an interview in 1997 she was referred to an IJ. After a hearing in 2001, she withdrew her claims for relief and agreed to voluntary departure with an alternate order of removal to take effect on 12/24/2001. She remained and was detained in 2008. She moved to reopen arguing ineffective assistance for not appealing and not advising her of relief under NCARA 1997 because she entered in January 1990. The IJ denied the motion because she had been previously found to have entered in December 1990. She moved for reconsideration arguing that her arrival date has never been determined because she withdrew her asylum and submitted a Michigan employment ID under an assumed name. The IJ denied because the "unlawfully obtained" ID did not "constitute credible evidence." The BIA affirmed. The 6th Circuit dismissed. Digest courtesy of Charleston C. K. Wang. Case: Louseny Kaba v. Eric H. Holder, Jr. Unpublished No. 10-4484. Holding: BIA affirmed. Date: April 4, 2012. Country: Guinea Reason: Kana entered USA in 1998 and overstayed. He was served NTA and he claimed asylum, withholding under INA and CAT. After a merits hearing, the IJ held him to be not credible and his claim for asylum to be frivolous. The BIA affirmed and he appeals to the 6th which denied a stay of removal. The 6th noting that this is a post REAL ID Act filing, and affirmed the BIA finding of inconsistency in almost every detail and the claim therefore was frivolous. Case: Ling Dan Zhan v. Eric H. Holder, Jr. Unpublished No. 10-4095. Holding: BIA affirmed. Date: April 4, 2012. Country: China. Reason: In 2003, Zhan attempted to enter USA with a fraudulent passport and applied for asylum based on her parents' practice of Falun Gong. The IJ denied relief because of lack of credibility and not meeting burden of proof. The BIA affirmed and she did not appeal. In 2010 she filed a motion to reopen and renewed applications for asylum withholding under INA and CAT claiming she had become a Protestant and China had increased persecution of house churches. The BIA denied the motion holding that a change in personal circumstances was insufficient to reopen. She now appeals to the 6th which found there was no abuse of discretion, holding that the BIA need not discuss every exhibit submitted but must provide a reason for denying. The 6th dismissed. Case: Mayssam J. Kaddoura v. Eric H. Holder, Jr. Unpublished No. 10-3528. Holding: BIA affirmed. Date: March 28, 2012. Country: United Arab Emirates Reason: Kaddoura entered USA as a student in August 2001 and married a US citizen in 2005 who filed an I-130 for him. He filed for adjustment of status and received a marriage interview one year later at which time she withdrew the petition and the adjustment was denied. DHS charged him with being removable but he filed a second I-130. In 2007 he conceded removability but requested a number of continuances because his second I-130 is pending. Continuances were granted until December 2007 at which time he informed the IJ that his second I-130 had been denied. DHS opposed his 4th request for continuance and the IJ orally ordered removal to UAE. He appealed to the BIA which remanded for a written decision from the IJ which was issued and the matter went back to the BIA with the argument that the IJ failed to apply the correct standard. In 2010 the BIA dismissed the appeal and he appealed into the 6th on the basis of an abuse of discretion and violation of due process and other arguments which total five. The 6th in a per curiam opinion dismissed. Digest courtesy of Charleston C. K. Wang. Case: Dusko Jazic v. Eric H. Holder, Jr. Unpublished No. 10-3976. Holding: BIA Affirmed. Date: March 15, 2012. Country: Yugoslavia/Serbia. Reason: Jazic was born in 1971 in the former Yugoslavia and is ethnically Sernbian. He entered USA in 1993. At the hearing he testified he served in the Yugoslavian National Army short before Croatia and other states declared independence. He pretended to be a Croat to avoid trouble. After several Croats were arrested, he was suspected to turning them. After completing his service, he was asked to join the Croatian army which he declined. His Yugoslavian passport was destroyed and replaced it with a Croatian one obtained by bribery. He had been stopped and questioned by police dozens of times and he was physically injured but never required medical attention. He was never arrested or detained. After coming to USA he learned from his parents that he was sought for military service. his brother who also served in the Croatian military continues to live in his apartment. IJ denied relief and BIA affirmed. The 6th Cir. affirmed. Enforcement of mandatory military service is not persecution. Case: Nisar Najmuddin Mulla v. Eric H. Holder, Jr. Unpublished No. 10-3793. Holding: BIA Affirmed. Date: March 15 2012. Country: Pakistan. Reason: Mulla entered USA in 1975 as an immigrant. In 1981, he was convicted of Conspiracy and Possession with Intent to Distribute Cocaine and the INS sought to deport him. In 1984 he visited the Virgin Islands and reentered the USA after 1 day. He was served the NTA. He initiated a civil suit in US Dist. Ct. claiming that the Govt. had stipulated he would not be deported for his service as a confidential informant. In 1989 his suit was dismissed by agreement and the INS reinstated removal in 1990. He asked for time to file asylum and was granted. Later he asked for voluntary departure which the INS opposed and the IJ ordered him deported to Pakistan. He obtained new counsel claiming inadequate representation and in 1994 the BIA remanded to give him another opportunity to file for asylum but also finding that he was not eligible for suspension of deportation. INS filed for reconsideration which was denied only in 2002. At the merits hearing, the IJ found him not credible, not to have a well founded fear and will not be subject to persecution by Pakistan government or persons whom it was unable or unwilling to control. BIA affirmed. The 6th held that it was without jurisdiction to review an order of deportation based upon a controlled substance violation because the case was based on discretion or facts and not on a question of constitution or statute. Digest courtesy of Charleston C. K. Wang. Case: Jihad Sassine Geagea v. Eric H. Holder, Jr. Unpublished No. 10-3084. Holding: BIA decision affirmed. Date: March 13, 2012. Country: Lebanon. Reason: In 2001,Geagea, his wife and child applied for asylum, withholding and CAT after entering USA in 2000. He claimed persecution because he was the bodyguard to Samir Geagea, leader of the Lebanese Christian Forces. 4 witnesses testified but the IJ found that only he and his wife gave relevant testimony. Both had difficulty with dates. IJ found them not credible because of confusion over time and lack of detail regarding detention and torture. He appealed to BIA and also filed a motion to remand based on new medical evidence and change in country conditions. BIA affirmed on the inconsistencies. The 6th in a 11 page discussion because the credibility determination is based on substantial evidence and denial of remand is not an abuse of discretion. Digest courtesy of Charleston C. K. Wang. Case: Irma del Carmen Valle v. Eric H. Holder, Jr. Unpublished No. 10-4475. Holding: BIA Affirmed. Date: March 13, 2012. Country: El Salvador. Reason:Valle entered USA in 1989 or 1990 and filed for asylum in 1995 which was referred in 2003. She withdrew her asylum and field under NACARA 111 Stat. 2160 (1997) and alternately for voluntary departure. After a hearing the IJ denied relief and BIA affirmed. She filed with the BIA a Motion to reconsider or to reopen for purpose of adjustment of status because of an approved I-130 which was denied. She appeals to the 6th Cir. Her motion for stay of removal was denied in 2010. The 6th held that any review of order of removal was time barred because a motion to reconsider or to reopen before the BIA did not toll the 30 day period to seek judicial review. The BIA also did not abuse its discretion when it denied the motion because she was not eligible for adjustment when she EWI and without being admitted or paroled. Digest courtesy of Charleston C. K. Wang. Case: Bharatkumar Sathvara v. Eric H. Holder, Jr. Unpublished No. 11-3274 Holding: BIA decision affirmed. Date: February 29, 2012. Country: India. Reason: Sathvara was issued an NTA in 2007 after he entered USA in 1995 and he claimed withholding under the INA and CAT. At trial he testified that he had worked as an auto mechanic for a Muslim who never gave him a raise in 4 years because he was Hindu, although he had asked several time. He opened his own shop and took business away. His former employer and 4 of his Muslim friends came into the shop and broke several things and beat him. He notified the police who did nothing because the policemen were Muslim. Several months later, they came and beat him again and threatened his parents. He and his parents had to leave for another town. One of the men followed and threatened to kill him. He decided to leave India and states that he will be killed. The IJ found him credible but denied relief because of the failure to show nexus and the lack of a well founded fear of persecution. The BIA and 6th both affirmed because the fear was caused by business rivalry and not a protected ground. Disgest courtesy of Charleston C. K. Wang. Case: Mark Osei v. Eric H. Holder, Jr. Unpublished No. 10-4051 Holding: BIA Affirmed. Date: February 16, 2012. Country: Ghana. Reason: Osei entered USA in 2001 and was granted condition LPR in 2003 based on his marriage to a USA citizen. They divorced in 2005. Osei filed a I-751 that asked for a waiver of a joint petition. 8 USC §1186a(c)(4)(B). USCIS denied citing lack of good faith, terminated his conditional LPR and began removal. Osei renewed his request for waiver of joint filing. IJ found Osei not credible and ordered removal. BIA affirmed. The 6th held that while it had jurisdiction to review a final order of removal, that jurisdiction is limited to constitutional, statutory, and non-discretionary decisions. Since he was found not credible, this is at the discretion of the AG, the Court lacked jurisdiction. Digest courtesy of Charleston C. K. Wang. Case: Musa Abdul Ikharo v. Eric H, Holder, Jr. Unpublished No. 09-3587 Holding: Remand to BIA. Date: February 16, 2012. Country: Not Available Reason: Remanded to BIA because of BIA's now discredited policy of applying the "comparable grounds approach". Judalang v. Holder, 132 S. Ct. 476 (2011). Case: Pjeter Lleshi v. Eric H. Holder, Jr. Unpublished No. 10-3716 Holding: BIA decision affirmed. Date: February 8, 2012. Country: Albania. Reason: The Lleshis were initially granted political asylum by IJ Montate who was sitting in Detroit from New York. BIA remanded for specific finds on 4 issues including changed country condition and humanitarian asylum. The Lleshis conceded changed country condition before another newly seated Detroit IJ Nettles who found that where there was no nexus between the rape and protected grounds, there was past persecution which was not severe enough for humanitarian asylum. The 6th held there was no due process violation from the sua sponte active questioning by the IJ, that no error in having the case decided by a different IJ even if she formerly was ICE Chief Counsel. The 6th also found no reason to grant humanitarian relief which is "reserved for extreme cases, such as 'for the case of German Jews, the victims of the Chinese Cultural Revolution, and survivors of the Cambodian genocide. Hana v. Gonzales, 157 F. App'x 880 (6th Cir. 2005); In re N-M-A, 22 I & N Dec. 312 (BIA 1998); Matter of J-B-N & S-M-. 241 I & N Dec, 208 (BIA 2007). 8 C.F.R. §1208.13(b)(i)(iii). Digest courtesy of C. K. Wang. Click Here to go to Page 2 of 2. WANGLAW is available to represent clients before the United States Court of Appeals for the Sixth Circuit, and the Supreme Court of the United States of America. Please click for more information on [ ] Appeals [ ] Asylum --oooOO@OOooo-- Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of these and other federal, state and local law are subject to change and timely, competent counsel from a qualified legal professional on current and applicable law to particular facts is indispensable. This website provides information of a general nature and such information cannot pertain to any specific set of facts. For any particular situation, the visitor should obtain counsel from a qualified legal professional. The publisher reserves the right to amend the contents of this website at any time and for any reason. |
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