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RECENT REMANDS

OCTOBER 2010

Removal . EVIDENCE . REMAND . Motion to Reopen . MEXICO .  Non-receipt of BIA Order . BIA did not properly consider evidence the Respondent did not receive BIA order mailed. [Rosete, CA9 October 1, 2010 unpublished]

Removal . EVIDENCE . REMAND . Motion to Reopen . CHINA . Materiality . Materiality of evidence must be analyzed/discussed before denying Motion to Reopen filed on basis of changed country circumstances. [Zheng, CA3 October 4, 2010, unpublished]

Non-Immigrant Visas . H2B . REMAND . Employer Reimbursements . Employer is not liable for incoming transportation or employee side visa fees; H2B visaholders sued for reimbursement on these items as "tools of the trade." Trial judge agreed; CA5 disagreed. [Castellanos, CA5 October 1, 2010]

Removal . MOTION TO REOPEN . REMAND . Evidence Consideration . MEXICO . Non-receipt of BIA  Order . BIA did not properly consider evidence the Respondent did not receive BIA order mailed. [Rosete, CA9 October 1, 2010 unpublished]

Removal . MOTION TO REOPEN . REMAND . Evidence . CHINA . Materiality . Materiality of evidence must be analyzed/discussed before denying Motion to Reopen filed on basis of changed country circumstances. [Zheng, CA3 October 4, 2010, unpublished]

Removal . MISSED HEARING . REMAND . Medical Reasons . INDIA . Doctor's Letter . IJ erred in refusing to accept medical condition as excuse of missing hearing because Respondent had doctor's letter. [Kaur, CA9 October 1, 2010 unpublished]

Removal. STREAMLINE ORDERS . REMAND . Voluntary Departure . MEXICO . Can't Change . Streamline order must affirm IJ's opinion in totality; BIA shortened voluntary departure in error and case is remanded to reinstate the 60-day period. [Gutierrez-Maldonado, CA9 October 4, 2010, unpublished]

SEPTEMBER 2010

Procedure . ADMINISTRATIVE NOTICE . REMAND . Damdami Taksal . INDIA . Controversies . Administrative notice taken of controversial facts as a substitution for evidence compromises fairness to individual litigants. [Singh, W.D. Wash September 28, 2010]

Asylum . ADVERSE CREDIBILITY . REMAND . Homosexuality . SERBIA . Stereotypes . IJ's determination that Respondent would not be lsingled out as a homosexual man because he is not overly effeminate is based on unreviewable stereotypes and case is remanded for further factual analysis. [Todorovic, CA11 September 27, 2010]

Asylum  . DISFAVORED GROUP . REMAND . Christianity . INDONESIA . Religious Leader . CA9 has recently ruled that Christians in Indonesia may be considered a disfavored group; the BIA did not have CA9 precedential information when making this ruling; remanded. [Silaban, CA9 September 28, 2010, unpublished]

Asylum  . FUTURE PERSECUTION . REMAND . Christianity . INDONESIA . Religious Leader . The fact that a religious leader's family in Indonesia continues to worship without difficulty does not mean that personalized threats against a leader does not indicate reasonable fear of future persecution if returned home. [Silaban, CA9 September 28, 2010, unpublished]

Admissibility . TERRORIST ORGANIZATION . REMAND . Damdami Taksal . INDIA . No evidence of violence . The Damdami Taksal was found to have taken over a temple in 1986, but no mention of a violent take over. One of its members had been violent before the time that the Respondent had given aid, but that member had died before the aid was given. Determination that the group is a terrorist group barring adjustment of status for aid given is remanded.  [Singh, W.D. Wash September 28, 2010]

Criminal Issues . ILLEGAL RE-ENTRY . REMAND . Enhancement for Crime of Violence . JAMAICA . Burglary of a Dwelling . Burglarly of a dwelling is not a violent crime, so the 16-level enhancement for illegal re-entry is plain error and 40-month sentence is remanded for correction. [Folkes, CA2 September 29, 2010]

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