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Immigration and Criminal Decisions

By FindLaw Staff on February 25, 2010 | Last updated on March 21, 2019

The Second Circuit heard two petitions for review of Board of Immigration Appeals decisions, and one criminal appeal.

De La Rosa v. Holder, 09-3099, involved a petition for review of the BIA's order denying petitioner's application for deferral of removal under the Convention Against Torture.  The court of appeals granted the petition, holding that: 1) the BIA's "weight of the evidence" review of the Immigration Judge's findings did not conform to the dictates of 8 C.F.R. section 1003.1(d)(3)(i); and 2) without discussion, the BIA appeared to have improperly assumed that the activity of certain government actors overrode both the complicity of other government actors and the general corruption and ineffectiveness of the Dominican government in preventing unlawful killings.

Kone v. Holder, No. 08-1445, concerned a petition for review of the BIA's denial of petitioner's asylum application.  The court of appeals granted the petition on the ground that the BIA improperly shifted the burden of proof to petitioner to demonstrate future persecution, and failed to consider the relevant circumstances in finding petitioner less than credible.

In US v. Savoca, No. 08-4610, the Second Circuit affirmed defendant's amended sentence for attempted robbery, holding that: 1) an obstruction of justice enhancement applied to conduct that occurred with respect to an otherwise closely related case, such as that of a co-defendant; 2) except in extraordinary cases, the application of an enhancement for obstruction of justice ordinarily indicated that the defendant had not accepted responsibility to warrant a reduction in his guidelines calculation; and 3) the sentencing judge imposed a sentence within the properly calculated guideline range.

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