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Articles Posted in Case Law Updates

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This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vaz v. Skinner, 14-15791 (11th Cir. Dec. 23, 2015) (unpublished)

The 11th Circuit affirmed the district Court’s holding that the petitioner, a native of Brazil, was not entitled to relief pursuant to a 28 U.S.C. §2241 habeas corpus claim. Petitioner’s argument of lack of adequate medical treatment while in detention fell outside of habeas corpus law as it is a challenge to the conditions of confinement, not to the fact or duration of the sentence as is necessary. The Court added that even if the petitioner had made a proper claim, release from imprisonment is not an available remedy for a claim of conditions of confinement. Petitioner’s second argument of unreasonable detention also failed because he prevented his own removal to Brazil. While the Attorney General has 90 days to remove an alien, the removal period can be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary for the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §1231(a)(1)(C). Although he had been detained more than 6 months (3 years), he could not assert a claim under Zadvydas v. Davis, 533 U.S. 678 (2001), because there was a likelihood of removal in the near future. In this case, the reason behind the delay was petitioner’s refusal to voluntarily sign his travel document or inform Brazil of his willingness to return.

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This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vicolas, et al. v. U.S. Attorney General, 14-15174 (11th Cir. Nov. 30, 2015) (unpublished)

The 11th Circuit Court of Appeals (11th Circuit) found that the record did not compel reversal of the BIA’s and IJ’s determination that the petitioner failed to credibly and persuasively establish a nexus between alleged persecution and his political beliefs in his asylum claim. Under Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007), the Court must be compelled to find that the alien will be persecuted because of his political opinion in order to reverse a finding of lack of sufficient nexus. Though an applicant’s testimony alone may be sufficient to meet his burden of proof, the Court found petitioner’s testimony of alleged incidents of police beatings due to his political beliefs was inconsistent, vague and implausible. The Court noted that in all organized protests or meetings, the petitioner was the only one to be harmed even though he had only just been involved in politics in Moldova for a few months. Other individuals, who had opposed the Communist Party for years, were not hurt. For every arrest, there was another plausible reason for his detention that was unrelated to his political views. Furthermore, his wife, who was present at one of the incidents, did not testify to corroborate his testimony. Lastly, the petitioner’s evidence was mostly based on second-hand information as it originated directly from the petitioner without independent confirmation.

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The Board of Immigration Appeals recently published two new cases. One, about NACARA (Nicaraguan Adjustment and Central American Relief Act) will have limited effect on most immigrants’ lives as very few people still qualify for this form of relief from removal. The second case is another example of why every criminal defendant who is not a citizen needs a crimmigration attorney to advise them during their criminal prosecution.

Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015); In a decision limited to NACARA (Nicaraguan Adjustment and Central American Relief Act) eligibility, the Board held that when a respondent was subject to multiple grounds of removability, the ten-year continuous physical presence requirement begins at the point of the most recent ground triggering removal. In this case, the respondent entered without admission or parole in 1996 and this triggered his first ground of removability. The respondent was subsequently convicted of possession of cocaine in 2012, triggering an additional basis for removal. The Board held that this respondent did not qualify for NACARA (heightened standard due to the criminal conviction), because the respondent could not show ten years of continuous physical presence after the 2012 conviction.

Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015); The Board held that when a respondent is sentenced to serve a year or more in a substance abuse treatment facility, that sentence constitutes a “term of confinement” as is required to support certain aggravated felonies under INA § 101(a)(43). The Board focused on the fact that a person sentenced to this type of treatment facility is not free to leave during the term of the sentence. The Board reasoned that “term of confinement” is not limited to actual jail time, but can include other forms of confinement, including custodial treatment facilities.

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the District Court Cases for Alabama, Georgia and Florida. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

District Court Decisions

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Cases:

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This Friday and Saturday, October 16th & 17th, the Central Florida Chapter of the American Immigration Lawyers Association (AILA) will host its 2015 Annual Immigration Law Conference in Orlando. This conference will feature leading immigration experts from across the United States and a sitting U.S. Congressman. The venue is the beautiful Omni Champions Gate Resort.

SLG has the honor of having two of its partners, Jeremy Lasnetski and John Gihon, selected to be panelists at the conference.

Jeremy was chosen to be the discussion leader on the U.S. Citizenship and Naturalization panel. This panel will cover topics including the acquisition of citizenship by birth abroad, derivation of citizenship through a naturalizing parent and the requirements and procedure for naturalization.

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

District Court Opinions

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Decisions (September)

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Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Decisions (June through August)

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Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015); The Board decided that neither the Board, nor the Immigration Courts have jurisdiction to determine if a respondent was properly placed into Asylum-Only Proceedings pursuant to INA § 217. Once an immigration officer determined that an alien was subject to removal as a visa waiver violator, the only issue the Immigration Court or the Board could review is whether the alien qualified for asylum or withholding or deferral of removal. In addition, the Immigration Judge cannot dismiss properly-filed applications for relief from removal due to an alien’s failure to comply with the biometrics requirement pursuant to 8 C.F.R. § 1003.47(c), (d), unless the respondent was advised of the biometrics requirement, provided a deadline for complying and advised of the consequences for failing to comply.

Matter of M-A-F- et al., 26 I&N Dec. 651 (BIA 2015); The Board held that where a respondent has filed a second or substantially amended asylum application, it will be considered a new application, and the filing date of the later application is operative for determining if the provisions of the REAL ID Act of 2005 apply and if an asylum applicant has met the one-year filing deadline. The Court will conduct a case-by-case factual analysis to make this determination, however a second or amended asylum application that raises a new basis for asylum or amends a prior fraudulent application will be considered a new application rather than an amendment of the old one.

Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015); The Board held that an Immigration Judge may rely on documents and statements from another asylum case while making an adverse credibility determination. The Department may provide applications and evidence from another case in order to impeach the credibility of an applicant. The Immigration Judge may then rely on the similarities between the evidence in the two different cases to make an adverse credibility finding, so long as the Court: 1) gives the applicant meaningful notice of the similarities that are considered to be significant; 2) gives the applicant a reasonable opportunity to explain the similarities; and 3) considers the totality of the circumstances when making the credibility finding.

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