Circuit Watcher

06-3974 Brito v. Mukasey
BEFORE: MINER, SACK, and HALL, Circuit Judges.
Petition for review of a final decision of the Board of Immigration Appeals. Petitioner failed to exhaust the issue of whether he was properly designated an arriving alien and thus we do not reach it. Because Petitioner’s current application for adjustment of status is new and separate from the application he previously filed, the Immigration Judge lacks jurisdiction to adjudicate it. Petitioner lacks standing to argue that regulations withholding from immigration judges jurisdiction to adjudicate adjustment of status applications are ultra vires. Accordingly, the petition is denied. … Brito v. Mukasey

07-1273 Cuko v. Mukasey
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. Vllasi Cuko, a citizen and national of Albania, petitions for review of an order of the Board of Immigration Appeals (BIA), which affirmed an immigration judge’s (IJ) denial of his application for political asylum. … The petition for review is denied.
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CYR, Senior Circuit Judge (dissenting). Because the majority seriously misreads the appellate record, and particularly the agency’s two written decisions, I respectfully dissent. In deferring wholesale to the agency’s credibility determinations in these circumstances, the majority turns our review function into a hollow exercise in rubber-stamping. … Cuko v. Mukasey.

07-1738 Tandayu v. Mukasey
Before Lynch, Lipez, and Howard, Circuit Judges.
LIPEZ, Circuit Judge. We are reviewing the denial by the Board of Immigration Appeals (”BIA”) of petitioner Benjamin Fransiskus Tandayu’s second motion to reopen a removal proceeding. The BIA concluded that the additional evidence submitted by Tandayu in support of this motion did not establish a change of conditions in Indonesia, his country of origin. We reject the petitioner’s assertions that the BIA abused its discretion and deny the petition for review. … Tandayu v. Mukasey.

07-1658 Lin v. Mukasey
Before Lynch, Circuit Judge, John R. Gibson,¹ Senior Circuit Judge, and Howard, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge. Qun Lin, a native and citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture. Qun Lin contends that the BIA arrived at an adverse credibility finding that was not supported by substantial evidence. We deny the petition. … Lin v. Mukasey.

1. Hon. John R. Gibson, of the Eighth Circuit, sitting by designation. [↩]

06-2649, 06-3712 Miah v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Chief Judge Loken, Author, with Gruender and Benton, Circuit Judges]
Petition for Review - immigration. Petition for review denial of asylum, withholding of removal and relief under the Convention Against Torture and petition for review denial of motion to reopen are denied. Alien did not show extraordinary circumstance to excuse delay in asylum application and thus is ineligible. Alien did not show, as a landowner, he was persecuted on account of a particular social group to warrant withholding of removal or that government instigated or acquiesced in action by party leader’s private criminal activity to warrant CAT relief. BIA did not abuse its discretion in denying motion to reopen to obtain adjustment of status.

06-5163-ag James v. Mukasey
Before: CALABRESI, CABRANES, and SOTOMAYOR, Circuit Judges.
The petitioner seeks review of a decision of the Board of Immigration Appeals (“BIA”) finding him removable for having committed an aggravated felony. While we lack jurisdiction to consider the petitioner’s unexhausted adjustment of status claim, we have jurisdiction to review whether the BIA properly deemed the petitioner’s conviction an aggravated felony. We conclude that the agency’s decision on this issue was based on an incorrect premise in that it assumed we treat the petitioner’s statute of conviction, New York Penal Law section 260.10, as divisible when in fact that is an open question. Accordingly, the petition for review is GRANTED in part and DISMISSED in part, the order of removal is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … James v. Mukasey.

04-73309 Huang v. Mukasey
PER CURIAM: Meihua Huang and his wife, Mingyan Qiu, natives and citizens of China, petition for review of a Board of Immigration Appeals (“BIA”) order. The order dismissed their appeal from an Immigration Judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture. We grant the petition for review in part, dismiss in part, and remand for further proceedings consistent with this opinion. … Huang v. Mukasey.

07-2028 U.S. v. Hernandez-Hernandez
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge. At a bar in Palomas, Mexico, Alfredo Hernandez-Hernandez, a Mexican citizen twice deported from the United States, consumed a sufficient amount of alcohol and marijuana to blackout. The next thing he knew, Mr. Hernandez was in the United States without any recollection how he got there and, in short order, arrested for illegally reentering the country. Today, we are asked to decide whether the district court’s decision to exclude from trial evidence of Mr. Hernandez’s intoxication and resulting amnesia violated his constitutional right to present a defense. We hold that it did not, and so affirm the district court’s judgment. … U.S. v. Hernandez-Hernandez.

06-2776 Aragón-Muñóz v. Mukasey
Before Torruella, Lynch, and Lipez, Circuit Judges.
LIPEZ, Circuit Judge. Sergio Armando Aragón-Muñóz, a citizen of Guatemala, seeks review of the order of the Board of Immigration Appeals (”BIA” or “Board”) denying his motion to reopen his removal proceedings. On May 25, 2000, after Aragón-Muñóz failed to appear at a hearing on his removability and asylum claim, the Immigration Judge (”IJ”) ordered him removed in absentia. More than four years later, Aragón-Muñóz filed a motion to reopen on the ground that he had not received the Notice to Appear (”NTA”) because he had moved to Arizona. He further argued that even if he had received the NTA, the notice was insufficient because he was entitled to an oral warning in Spanish, his native language, of the consequences of failing to appear.
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The IJ denied his motion to reopen without issuing an opinion. Aragón-Muñóz appealed to the BIA, which remanded the case for a full explanation of the reasons for the denial. In response, the IJ entered a decision explaining that Aragón-Muñóz had failed to adduce any evidence that he had changed his address. The BIA affirmed, elaborating on the lack of evidence in the record. We deny Aragón-Muñóz’s petition for review. … Aragón-Muñóz v. Mukasey.

06-4744 Augustin v. Attorney Gen. of the U.S.
BEFORE: RENDELL and CHAGARES, Circuit Judges, and POLLAK,¹ District Judge
POLLAK, District Judge. Luckson Augustin petitions for review of an order of the Board of Immigration Appeals (“BIA”) concluding that he is removable and ineligible for cancellation of removal. We are called upon to decide whether the BIA erred in refusing to impute to petitioner his father’s years of continuous residence in order to meet the seven-year requirement for cancellation of removal. … we do not find the BIA’s interpretation of the cancellation of removal provision unreasonable. We will therefore DENY the petition for review. Augustin v. Attorney Gen. of the U.S.

1. Honorable Louis H. Pollak, Senior District Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. [↩]

06-4538 Graham v. Mukasey
Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Nicholas Antonio Graham is a citizen of Jamaica who entered the United States as a visitor, overstayed his visa, and was subsequently convicted in federal court on two counts of conspiracy to commit mail fraud. He now petitions for review of the final administrative order of removal based on his status as an alien convicted of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii). Graham contends that the expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. § 1228(b), violated both his due process and his equal protection rights. We find no merit to these contentions and, therefore, deny the petition for review. … Graham v. Mukasey.

06-3811 Ahmed v. Mukasey
Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.¹
GRIFFIN, Circuit Judge. Petitioner Muhammad M. Mana Ahmed, a native and citizen of Yemen, seeks review of a final order of removal issued by the Board of Immigration Appeals, denying his motion to remand and affirming the determination of the Immigration Judge that he was ineligible for consideration of adjustment of status pursuant to the Child Status Protection Act of 2002 (“CSPA”), Pub. L. 107-208, 116 Stat 927. For the reasons stated below, we hold that the BIA abused its discretion by failing to address petitioner’s newly acquired evidence. Accordingly, we grant Ahmed’s petition for review, vacate the BIA’s removal order, and remand to the BIA for further proceedings consistent with this opinion. … Ahmed v. Mukasey.

1. The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation. [↩]

07-1642 De Oliveira v. Mukasey
Before Boudin, Chief Judge, Wallace¹, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. Genario Vicente de Oliveira and his son Ricardo Lemos Neiva petition this court to review the decision of the Board of Immigration Appeals (BIA). The BIA upheld the determination of an Immigration Judge (IJ) that the two men were not entitled to withholding of removal or protection under the Convention Against Torture (CAT).² Because the BIA upheld the IJ without its own written opinion, it is considered to have adopted the decision of the IJ. Guillaume v. Gonzalez, 504 F.3d 68, 72 (1st Cir. 2007). Discerning substantial evidence in the record to support the BIA’s determination, we deny the petition. … De Oliveira v. Mukasey.

1. Of the Ninth Circuit, sitting by designation. [↩]
2. Neither man sought asylum, as those claims were time-barred. [↩]

06-3523 Rodriguez v. Keisler
Board of Immigration Appeals
[PUBLISHED] [Gruender, Author, with Murphy and Hansen, Circuit Judges]
Petition for Review - immigration. Alien who marks the “citizen or national of the United States” box on Form I-9 for the purpose of falsely representing himself as a citizen to secure employment with a private employer has falsely represented himself for the benefit or purpose of the Act. Employment, private or otherwise, is an example of purpose or benefit contemplated by the statute. Substantial evidence supported that alien falsely represented himself as a citizen and did not prove clearly and beyond doubt that he is admissible. Thus, alien is ineligible for adjustment of status.

07-1097 Haxhiu v. Mukasey
Before FLAUM, MANION, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. Shkelqim Haxhiu, a native and citizen of Albania, applied for asylum, withholding of removal, and relief under the Convention against Torture (CAT), alleging that he had been persecuted on account of his political opposition to government corruption.¹
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The Immigration Judge denied the requested relief, and the Board of Immigration Appeals summarily affirmed the IJ’s decision. Because substantial evidence does not support the IJ’s findings that Haxhiu’s persecution was not on account of his political opinion and that state actors were not responsible for the harm alleged, we grant his petition for review, vacate the order of removal, and remand for further proceedings. … Haxhiu v. Mukasey.

1. His wife, Dudije Haxhiu, seeks relief derivatively through Haxhiu, although she is not a party to this appeal. See 8 U.S.C. § 1158(b)(3)(A); Bace v. Ashcroft, 352 F.3d 1133, 1137 (7th Cir. 2004). [↩]

07-9530 Ochieng v. Mukasey
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
The respondent has filed a motion to publish the order and judgment previously issued on February 6, 2008. The motion is GRANTED. The published opinion is filed nunc pro tunc to that date, and a copy is attached. …
McKAY, Circuit Judge. Mr. Collins Ochieng, a native and citizen of Kenya proceeding pro se before this court, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an order of removal (appeal No. 07-9530) and its denial of his motion to reopen (appeal No. 07-9554). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petitions for review. … Ochieng v. Mukasey.

05-4232, 05-5411, 06-3160 Yusupov v. Atty. Gen. of the U.S.
Before: McKEE and AMBRO, Circuit Judges ACKERMAN,¹ District Judge
AMBRO, Circuit Judge: An alien unlawfully in this country may have his removal blocked under certain circumstances. One is withholding of removal under Immigration and Nationality Act (INA) § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), which prohibits removal if the Attorney General believes that the alien’s life or freedom would be threatened in the country of removal. Eligibility for withholding of removal is erased, however, if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” INA § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv). In this case we consider the Attorney General’s interpretation of that exception (commonly referred to as the national security exception). … Yusupov v. Atty. Gen. of the U.S.

1. Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting by designation. [↩]

06-1949 Vakker v. Atty. Gen. of the U.S.
BEFORE: SLOVITER, SMITH and STAPLETON, Circuit Judges
STAPLETON, Circuit Judge: In the course of removal proceedings brought against him by the Immigration and Naturalization Service, Boris Vakker, a “paroled” alien, requested that the Immigration Judge (“IJ”) permit him to renew a previously denied application for adjustment of status. The IJ denied the request. While the proceedings were on appeal to the Board of Immigration Appeals (“BIA”), Vakker filed a motion with the BIA to remand his case to the IJ for reconsideration of the adjustment of status issue predicated upon an intervening case of this court. The BIA denied the motion to remand, and Vakker petitions this court for review of that ruling. For the reasons that follow, we will deny the petition. … Vakker v. Atty. Gen. of the U.S.

07-1655 Ramirez v. Mukasey
Before Lynch, Circuit Judge, John R. Gibson,¹ Senior Circuit Judge, and Howard, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge. Felipe Ramirez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order of removal. The BIA found that Ramirez’s 1999 conviction for indecent assault and battery on a person fourteen years or older, Mass. Gen. Laws ch. 265, § 13H, was an aggravated felony, 8 U.S.C. § 1101(a)(43)(F), which rendered Ramirez removable and ineligible for any form of relief from removal. Ramirez contends that the crime for which he was convicted includes battery by merely offensive–not harmful– touching, and therefore should not be classified as a crime of violence under 18 U.S.C. § 16, or, it follows, as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Although this precise question has not been decided by this Circuit, earlier cases foreshadowing the question persuade us to reject Ramirez’s argument. We deny the petition for review. … Ramirez v. Mukasey.

1. Hon. John R. Gibson, of the Eighth Circuit, sitting by designation. [↩]

07-2019 Ndreka v. Mukasey
Before Torruella, Circuit Judge, Wallace,¹ Senior Circuit Judge, and Lipez, Circuit Judge.
Wallace, Senior Circuit Judge. Petitioner Senada Ndreka seeks review of the Board of Immigration Appeals’ (Board) denial of her appeal. Substantial evidence supports the Board’s decision, and we affirm. See López de Hincapié v. Gonzales, 494 F.3d 213, 218-220 (1st Cir. 2007). … Ndreka v. Mukasey.

1. Of the Ninth Circuit, sitting by designation. [↩]

07-1515 Lopez v. Mukasey
Before Lynch, Circuit Judge, Campbell and Selya, Senior Circuit Judges.
CAMPBELL, Senior Circuit Judge. Petitioners Maria Adela Lopez1 and her daughters Flor Katherin Roman-Nunez and Karen Roman-Nunez, natives and citizens of Peru, petition for review of a final order of removal issued by the Board of Immigration Appeals (”BIA” or “Board”) on February 28, 2007. They contend that the Board abused its discretion when it denied their motion for a continuance and that denial of the continuance violated their due process rights. We deny the petition for review. … Lopez v. Mukasey.

06-4580-ag Jiang v. Board of Citizenship & Immigration Servs.
Before: POOLER, SACK and SOTOMAYOR, Circuit Judges.
The Board of Immigration Appeals (“BIA”) affirmed a decision of the Immigration Judge (“IJ”) concluding that petitioner was ineligible for asylum and withholding of removal on the basis of the persecutor bar in 8 U.S.C. § 1158(b)(2)(A)(i) and 8 U.S.C. § 1231(b)(3)(B)(i), because she was found to have assisted in the forced insertion of intrauterine devices (“IUDs”). Consistent with our decision in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007), because the BIA has not yet articulated in a precedential decision its position regarding whether and under what conditions involuntary IUD insertion constitutes persecution, and because the BIA has taken inconsistent positions on this issue, we GRANT the petition for review, VACATE the order of the BIA, and REMAND for further proceedings consistent with this opinion. … Jiang v. Board of Citizenship & Immigration Servs.

06-4477-ag, 06-5239-ag, 06-5302 Ni v. Board of Immigration Appeals
Before: CABRANES, POOLER, and SACK , Circuit Judges.
Petitioners seek review of orders of the Board of Immigration Appeals (“BIA”), denying their respective motions to reopen removal proceedings. They contend that the motions should have been granted so that they would not remain subject to final orders of removal while pursuing their applications for adjustment of status before the U.S. Citizenship and Immigration Services (“USCIS”). Because we find that the BIA erred in denying the motions to reopen by failing to support its decision with a rational explanation, the petitions for review are GRANTED, the relevant orders are VACATED, and these cases are REMANDED to the BIA for proceedings consistent with this opinion. … Ni v. Board of Immigration Appeals.

07-1203 Hanan v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Gruender, Author, with Murphy and Hansen, Circuit Judges]
Petition for review - Immigration. Petition for review regarding Hanan’s
constitutional argument that the BIA did not properly consider the
submitted country reports and his affidavit and his legal argument that
the BIA used the wrong standard for acquiescence is denied; the remainder
of the petition is dismissed for lack of subject matter jurisdiction.

06-3522 Liadov v. Mukasey
Board of Immigration Appeals
[PUBLISHED] [Loken, Author, with Arnold and Colloton, Circuit Judges]
Petition for Review - Immigration. Circuit court may review the BIA’s
ruling that it lacked jurisdiction to consider an untimely appeal; when
Congress passed a statutory time limit for appeals, it did not intend
that the time limit be mandatory and not subject to exceptions; as a
result, the BIA’s jurisdictional ruling should be reviewed under an
abuse of discretion standard; BIA’s refusal to assert jurisdiction
through the certification process set out in 8 C.F.R. Sec. 1003.1(c)
was an unreviewable action committed to the agency’s discretion; even
if the BIA’s order refusing to self-certify was subject to judicial
review, the BIA did not abuse its discretion in refusing to certify
the case to itself because a courier service failed to meet its
contractual commitment to deliver the appeal the next day; BIA’s
filing deadline and self-certification procedure did not deprive
petitioners of due process. Judge Colloton, concurring in part.

07-1837 Sela v. Mukasey
Before Lynch, Circuit Judge, Tashima,¹ Senior Circuit Judge, and Lipez, Circuit Judge.
LYNCH, Circuit Judge. Frankie Sela, a native and citizen of Indonesia, seeks review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (”CAT”). We deny the petition for review. … Sela v. Mukasey.

1. Of the Ninth Circuit, sitting by designation. [↩]

07-2060 U.S. v. De Horta Garcia
Before BAUER, KANNE and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Jose De Horta Garcia, then a permanent resident alien, was deported in 1996 because he had been convicted of a drug trafficking crime. This case involves his second illegal re-entry into the country after deportation. During his first prosecution for illegal re-entry, he challenged the validity of his deportation order on the grounds that he was denied his right to seek a discretionary waiver of deportation under former INA § 212(c), 8 U.S.C. § 1182(c) (1995) (repealed), arguing that the repeal of discretionary waiver should not have been applied to prevent him from applying for the waiver. The District of Alaska rejected his contention and De Horta Garcia did not appeal. He raised the argument again in this prosecution and the district court rejected it based on circuit precedent. We affirm. … U.S. v. De Horta Garcia.

07-2502 Escobar-Barraza v. Mukasey
Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. Arturo Escobar Barraza, a citizen of Mexico, applied for permission to remain in the United States as a permanent resident under a provision establishing a preference for immediate relatives of citizens. (Both his wife and his mother are citizens of the United States.) Before the agency made a final decision on this application, however, Escobar was convicted in Nebraska of possessing drug paraphernalia—specifically, a pipe for smoking marijuana. Neb. Rev. Stat. §28-441. An immigration judge concluded that this conviction makes Escobar inadmissible, see 8 U.S.C. §1182(a)(2)(A)(i)(II), and an alien who is inadmissible at the time he seeks adjustment of status not only is ineligible for permanent residence, see 8 U.S.C. §1227(a)(1)(A), but also is not entitled to remain in the United States. The IJ ordered him removed to Mexico, and the Board of Immigration Appeals agreed. … The petition for review is granted, the Board’s decision is vacated, and the matter is remanded for proceedings consistent with this opinion. Escobar-Barraza v. Mukasey.

07-1688-ag Singh v. Mukasey
Before: WINTER and WESLEY , Circuit Judges, and COGAN , District Judge.¹
Petition for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing the petitioner’s appeal from an Immigration Judge’s (“IJ”) order of removal. The IJ found the petitioner statutorily ineligible for a waiver application under former Immigration and Nationality Act of 1952 § 212(c) because he pled guilty to an aggravated felony after the enactment of the Immigration Act of 1990 (“IMMACT”), and subsequently served a sentence of more than five years confinement. We hold that § 511(a) of IMMACT’s exclusion of “an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien who pled guilty to a disqualifying felony after the Act’s enactment, even though he confessed guilt to police prior to the enactment. We also hold that § 404(d) of the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) exclusion of all aliens convicted of “aggravated felonies” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien whose conviction pre-dated AEDPA but who was statutorily barred from discretionary relief by the time he sought such relief even under pre-AEDPA law because he had already served more than five years imprisonment. Petition for review denied. … (Original Opinion, as filed Mar. 13, 2008) As amended, Mar. 14, 2008: Singh v. Mukasey.

1. The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. [↩]

05-60901 Toledo-Hernandez v. Mukasey
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge: Petitioner Marco Antonio Toledo-Hernandez (“Toledo”) filed a 28 U.S.C. § 2241 petition in federal district court challenging a 2003 decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal. Toledo’s § 2241 petition was converted into a petition for review and transferred to this Court in accordance with the REAL ID Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005). See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 546 U.S. 1106 (2006). For the following reasons, this petition for review is DISMISSED. … Toledo-Hernandez v. Mukasey.

06-60063 Martinez v. Mukasey
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge: After Jose Martinez was convicted of bank fraud, in violation of 18 U.S.C. § 1344, the United States sought to remove him, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8 U.S.C. § 1227(a)(2)(A)(iii). Ruling the bank-fraud conviction constitutes an aggravated felony, the immigration judge (IJ) sustained the removability charge and denied Martinez statutory eligibility for a waiver of inadmissibility. Both on direct appeal and in denying a joint motion to reconsider, the Board of Immigration Appeals (BIA) agreed with the IJ. Martinez maintains: his bank-fraud conviction is not an aggravated felony; and, in the alternative, he is eligible to seek a discretionary waiver of inadmissibility. DENIED IN PART; GRANTED IN PART; REMANDED. … Martinez v. Mukasey.

04-72651 Agency Lemus-Galvan v. Mukasey
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and M. Margaret McKeown, Circuit Judges.
McKEOWN, Circuit Judge: Gustavo Lemus-Galvan seeks review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of deferral of removal under the Convention Against Torture (“CAT”). Notwithstanding that Lemus-Galvan was ordered removed on the basis of an aggravated felony, we have jurisdiction over his deferral of removal claim under the CAT. See Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). … Lemus-Galvan v. Mukasey.