The Second Circuit vacated the BIA's decsion denying asylum to the petitioner who feared persecution under China's one child policy. The Court found that the BIA erred by holding that the Immigration ...Judge's finding that the petitioner would be forcibly sterilized if returned to China was not a finding of fact because it involved a prediction of future events, and, as a result, the BIA was free to review the finding de novo rather than under the clear error standard that normally applies to the BIA's review of an IJ's factual findings.
Immigration
Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009)
N/A
OUTCOME: Petition granted on rehearing
Upon a petition for rehearing of the Court’s previous decision in Mendez v. Mukasey, 525 F.3d 216 (2d Cir. 2008), in a precedential opinion, the Court granted the Petition for Review, finding that th...e Immigration Judge’s holding that the alien had not shown that his U.S. citizen children would suffer exceptional and extremely unusual hardship if he were removed to Mexico, and therefore had not established his eligibility for cancellation of removal under 8 U.S.C. § 1229B(b), was flawed as a matter of law because it rested on mischaracterizations of the record and the failure to consider significant evidence and testimony presented by the alien. The Court held that, although it agreed in principle with the petitioner that the exceptional and extremely unusual hardship standard is not a discretionary one that is insulated from judicial review by 8 U.S.C. § 1252, it was bound to follow earlier precedent of the Court which held that the hardship determination is subject to the bar on review of discretionary decisions in § 1252. However, the Court held that review is not foreclosed when the IJ’s determination is based on legal errors, such as mischaracterization of the record or failure to consider material evidence. The Court also acknowledged that jurisdiction would lie where the decision was made “without rational justification or based on an erroneous legal standard, or rests on fact-finding which is flawed by an error of law.†Op. at 11 (citations and quotations omitted). The decision represents an expansion of jurisdiction in this area, and further clarification of the Court’s position on the tensions between the jurisdiction stripping provisions of 8 U.S.C. § 1252(a)(2)(B) and the jurisdiction restoring provisions of 8 U.S.C. § 1242(a)(2)(D). AILA members Martin L. Rothstein and Daniel B. Lundy of Barst & Mukamal represented the alien before the Court, with Daniel Lundy on the briefs and arguing before the Court.
Immigration
Qi Liang Chen v. Napolitano
N/A
OUTCOME: Won on motion, settled
Qi Liang Chen v.
Napolitano, --- F.Supp.2d ----, 2009 WL 2709303, 2009 U.S. Dist. LEXIS 76837 (S.D.N.Y., Aug. 26, 2009).
Court denied government's motion to dismiss for lack of subject matter jur...isdiction. The case was subsequently settled in favor of Plaintiff, whose application was reopened and remanded to the agency.
