FIRST CIRCUIT STRIKES DOWN REGULATION BARRING PAROLEES WHO ARE “ARRIVING ALIENS” FROM ADJUSTING WHILE IN REMOVAL PROCEEDINGS
In SUCCAR v. ASHCROFT, the Court of Appeals for the First Circuit on January 5, 2005, ruled that 8 CFR 245.1(c)(8) was invalid because it was inconsistent with the clear intent of Congress in INA 245(a) to allow parolees to adjust status.

Supreme Court Grants Hearing on Particularly Serious Crime/ Aggravated Felony Issue
On Sept. 25, 2007, the Supreme Court granted certiorari to resolve whether an offense must be an aggravated felony to be classified as a “particularly serious crime” for purposes of the bar to withholding of removal, and to determine the scope of appellate court jurisdiction over review of PSC determinations. (Ali v. Achim, Case No. 06-1346).

UNANIMOUS SUPREME COURT RULES DUI IS NOT CRILME OF VIOLENCE
Court rules 9-0 more info will be forthcoming.

Prior Refugee Admission Numbers Are Available for Asyleee Adjustment
In NGWANYIA et. al., v. Ashcroft No. 02-502 (RHK/AJB) (District of Minnesota), the court said that under 28 USC 2201, all refugee admission numbers that had been made available for asylee adjustments in prior years but remained unused were presently available to be used for asylee adjustment. The court also said that under 1158 (c)(1)(B) and 8 CFR 274a.12(a), appropriate endorsement of an asylee's authorization to work should last for as long as that alien remained an asylee. By failing to provide such an endorsement, Defendants had "unlawfully withheld and unreasonably delayed" agency action in violation of the APA.

Ninth Circuit Finds the CSPA Applies to Adjustment Applications Pending on Appeal
The Circuit Court held that the Child Protection Act (CSPA) applies to individuals who had pending adjustment applications on appeal on the date of enactment, 8/6/02. The court rejected the government's argument that"final determination" meant the final agency decision. (Padash v. Ashcroft, 02/19/04

Second Circuit Remands Asylum Case for Consideration of Physical Abuse
The Court found that since the BIA specifically, though erroneously, mentioned the absence of physical harm, the Court could infer that the BIA might have regarded petitioner's beating as significant in its decision. The court further instructed that the IJ should not have placed "excessive reliance" on the DOS report. (CHEN v. ASHCROFT, 02/18/04)

Ninth Circuit Finds State Felony Simple Possession Conviction is Not an Aggravated Felony under the INA

Joining the Second and Third Circuits, the Ninth Circuit held that state felony drug offenses are not aggravated felonies for immigration purposes unless the offense contains a drug trafficking element or is punishable under federal law.

First Circuit Finds Government's Unauthenticated Documents Admissible.

Affirming the BIA's AWO denial of asylum, the Court found the government documents purporting to show that the petitioner applied for asylum in Germany to be admissible and did not violate due process because "authentication requires noting more than proof that the document or thing is what it purports to be".

SEVENTH CIRCUIT FINDS PAST PERSECUTION SHIFTS BURDEN TO GOVERNMENT.
In BACE v. ASHCROFT (12-18-03) the Seventh Circuit reversed an IJ holding that well-founded fear of future persecution was not shown, finding that, where an Albanian couple demonstrated past persecution, the IJ should have sifted to the INS the burden of rebutting a presumptive fear of future persecution.

St.Cyr Expanded by 3rd Circuit, Circuits Now Split on Scope of Impermissible Retroactive Effect of IRIRA Section 303(b) In Ponnapula v. Ashcroft, No. 03-1255 (3rd Cir. Jun 28 2004), the court quoted St. Cyr’s holding and said that where the Petitioner demonstrated clear and reasonable actual reliance on the 212(c) relief in making the decision to go to trail, there wan an impermissible retroactive effect of IIRIRA section 304(b) under traditional Landgraf analysis. The 3rd Circuit is the first to hold this expansion in St. Cyr’s interpretation, and this holding disagrees somewhat with comparable holdings by the 1st, 2nd, 4th, 7th, 9th and 11th Circuits.

BIA Finds Charging Document In Prior Proceeding Does not End Continuous Physical Presence
The BIA, en banc, found that an alien who departed the U.S. after being served with a charging document can seek cancellation of removal in a subsequent removal proceeding, based on a new period of continuous physical presence measured from the date of his return to the US. IN RE CISNEROS-GONZALEZ 23 I&N Dec 668 (BIA 2004)

Fifth Circuit Vacates AWO Case and Remands for Full Opinion
Remanding for a full opinion addressing the issues identified by the court, the Fifth Circuit vacated BIA AWO because it lacked sufficient information to know whether the BIA affirmed the IJ denial of asylum based on a reviewable or non-reviewable ground

Eleventh Circuit Refuses to Apply Reinstatement Provision Retroactively
The court held that INA 241(a)(5), as amended by IIRAIRA, cannot be applied retroactively to a petitioner who applied for discretionary relief before IIRIRA April 1, 1997 effective date (Sarmiento-Cisneros v. Ashcroft 8/27/04)