Fourth Edition of the AILA GA-AL & Central Florida Litigation Newsletter (Circuit Court Decisions)

The fourth edition 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 February and March 2016. There are not as many summaries in this issue because there were fewer decisions. This issue also adds a few feature – summaries of decisions by OCAHO during this same time period. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.
This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

11th Circuit Decisions

Gulbalis v. USCIS, et al., 15-11583 (11th Cir. Feb. 9, 2016) (unpublished) – The Petitioner was ineligible for naturalization due to her fraud conviction in which the loss exceeded $10,000, which constituted an aggravated felony. The Magistrate Judge did not err in relying on the Petitioner’s stipulation in her plea agreement and the restitution order in determining that the loss exceeded $10,000. In Nijhawan v. Holder, 557 U.S. 29 (2009), the Supreme Court held a circumstance-specific approach, not a categorical approach, was appropriate in determining the amount of loss. It also stated that a judge could rely upon earlier sentencing-related material, including factual stipulations and restitution orders. In this case, the Petitioner stipulated that the actual, probable or intended loss was $41,000 to $70,000 and the restitution order was for $675,000.

Mares-Cruz v. U.S. Atty Gen., 15-12840 (11th Cir Feb. 9, 2016) (unpublished) – The 11th Circuit dismissed Petitioner’s claim that the Board of Immigration Appeals (BIA) erred in finding that he did not establish a nexus between his asserted persecution and membership in a particular social group. The Court found that it did not have jurisdiction over the claim because the Petitioner only made a conclusory statement on appeal to the BIA regarding nexus. Therefore, he had not exhausted all administrative remedies.

Themeus v. U.S. Dept. of Justice, et al., 15-13240 (11th Cir. Feb. 11, 2016) (unpublished) – The 11th Circuit affirmed the dismissal of Petitioner’s pro se petition for a writ of habeas corpus under 28 U.S.C. §2241. It agreed that the District Court did not have jurisdiction to entertain a challenge to a final order of removal. After the enactment of the REAL ID Act, district courts no longer can hear such claims. The Petitioner’s challenge to the immigration detainer was also dismissed by the court. If an individual is confined, the 90-day removal period after the removal order becomes final begins to run on the date an alien is released into ICE custody, not on the date the removal becomes administratively final, as the Petitioner argued. 8 U.S.C. §1231(a)(1)(B). See Zadvydas v. Davis, 533 U.S. 678 (2001).

Reganit v. Sec’y, Dept. of Homeland Sec., et. seq., No. 15-10784 (11th Cir. Feb. 25, 2016) (published) – The Court affirmed the District Court’s grant of summary judgment to Defendants, finding that Plaintiff adjusted status in error; therefore, he was ineligible to naturalize. Plaintiff was a cruise line employee who initially entered the U.S. on a C-1/D visa after falling ill. After seeing a doctor and re-boarding, Plaintiff’s illness persisted and a week later he de-boarded a second time and received a temporary medical parole under INA section 212(d)(5). Plaintiff remained in the U.S. and did not return to his ship, resigned his position with the cruise line, married a U.S. citizen and adjusted status. After receiving Plaintiff’s application for naturalization, DHS discovered it had adjusted Plaintiff as a crewman, i.e., in error, and denied his N-400. Plaintiff argued that he adjusted properly based on his temporary medical parole. The District Court concluded that the plain language of INA section 245(c) barring adjustment of crewmen, in conjunction with 8 CFR 253.1 governing parole of alien crewman, meant that Plaintiff’s temporary medical parole did not alter his status as a crewman. Plaintiff had, therefore, adjusted in error which rendered him ineligible to naturalize.

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