At Bretz & Coven, LLP, we take pride in our work. Many of our cases have resulted in published decisions in federal courts and at the Board of Immigration Appeals that are binding precedents. These cases have had a tremendous impact on the way that immigration law is practiced.

Below is a list of cases that our firm has litigated that have changed the way the courts interpret the immigration laws.

Published Court of Appeals and Supreme Court Cases
(Click on the name of the case to read the entire opinion)

• Matter of Zmijewska, 24 I. &N. Dec. 87 (BIA 2007)

Decided: February 21, 2007

Our client was granted voluntary departure, but did not timely depart because her previous representative failed to inform her of the deadline. As a result, the Board of Immigration Appeals denied her motion to reopen removal proceedings and apply for adjustment of status on the grounds that it was untimely and that our client was ineligible to adjust as a consequence of overstaying the grant of voluntary departure. Bretz & Coven, LLP successfully appealed the denial to the Second Circuit Court of Appeals and on remand, the Board of Immigration Appeals considered the meaning of "fails voluntarily to depart" within the section 240(B)(d) of the INA. Held: A respondent has not voluntarily failed to depart when, through no fault of her own, she was unaware of the grant of voluntary departure until after the period for departure has expired. Accordingly, our client did not voluntarily fail to depart and her motion to reopen was granted.

• Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2007)

Decided, as Amended: January 4, 2007

Argued in: United States Court of Appeals for the Second Circuit, by Matthew L. Guadagno

Our client had been convicted of certain offenses that rendered him inadmissible. He sought a waiver of inadmissibility under former INA § 212(c) but was found ineligible because he was convicted by a jury. Bretz & Coven, LLP argued that he remained eligible for relief his since convictions occurred before § 212(c) was repealed and he relied on its continued availability in deciding to forgo filing an affirmatively application for relief. Held: In light of the Supreme Court’s ruling in INS v. St. Cyr, 533 U.S. 289 (2001) about the retroactive application of legislation and other recent Second Circuit decisions, Mr. Wilson remained eligible for INA § 212(c) relief. The Second Circuit held that the reliance interest in such cases must be determined on an individualized rather than categorical level. Accordingly, the case was remanded to the Board of Immigration Appeals for our client to make an individualized showing that he decided to forgo the opportunity to affirmatively file for INA § 212(c) relief because he relief on his ability to file at a later date.

• USA v. Lopez, 445 F.3d 90 (2d Circuit 2006)

Decided: April 4, 2006
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

Held: This was an appeal from a judgment denying Lopez's motion to dismiss the indictment charging him with illegal reentry after deportation pursuant to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). The Court held that erroneous information given by the Immigration Judge and the Board of Immigration Appeals to Lopez on the unavailability of relief under fomer INA § 212(c) deprived Lopez of judicial review within the meaning of 8 U.S.C. § 1326(d)(2). The Court vacated Lopez's conviction and remanded the case to the district court for a determination of whether the government's error rendered Lopez's conviction fundamentally unfair within the meaning of § 1362(d)(3).

• Zmijewska v. Gonzales, 426 F.3d 99 (2d Cir. 2005)

Decided: October 6, 2005, Errata filed: November 1, 2005
Argued In: United States Court of Appeals for the Second Circuit by Bretz and Coven

This case involved the issue of whether, in light of 8 U.S.C. § 1229c, an alien’s failure to comply with a voluntary departure order renders her statutorily ineligible to receive an adjustment of status, or whether she may instead seek equitable relief under certain extraordinary circumstances presented, such as: (1) petitioner relied on erroneous representations of an immigration agent advising her not to seek adjustment of status after receiving a labor certification but prior to the BIA’s order of voluntary departure; (2) petitioner’s Board-accredited representative failed to notify her of the existence of the BIA’s voluntary removal order until the day after she was required to depart the United States; and (3) an Immigration Judge (“IJ”) informed (or misinformed) petitioner on the record that even if she failed to depart voluntarily in accordance with a BIA order, she still could avoid becoming statutorily ineligible for further relief by demonstrating that “there were exceptional circumstances beyond his [her] control.”

Held: The Court remanded the cause to the BIA so that the BIA may clarify, based on its analysis of the text, structure, legislative history, and purpose of INA § 240B, 8 U.S.C. § 1229c, whether Congress intended to permit courts, in the exercise of their equitable discretion, to grant exceptions to the ten-year ineligibility period imposed for failure to comply with voluntary departure orders.

• Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005)

Decided: May 4, 2005
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

This was an important victory. The Government moved to dismiss Mr. Sepulveda’s petition for review of the Board of Immigration Appeals’ decisions denying his motions to reopen and reconsider to seek discretionary relief from removal. The Government argued that because Mr. Sepulveda’s motions to reopen and reconsider are “grounded on assertions of entitlement to relief under 8 U.S.C. §§ 1229b and 1255, the Court is barred from reviewing the orders denying such motions under 8 U.S.C. § 1252(a)(2)(B).

Held: The Court denied the Government’s motion to dismiss and held that 8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i).

• Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. 2004)

Decided: June 4, 2004
Argued In: United States Court of Appeals for the Fifth Circuit by Matthew L. Guadagno, Partner

This was a case where after the Board of Immigration Appeals dismissed Mr. Zalawadia’s appeal of a removal order, Mr. Zalawadia, a native and citizen of India, petitioned the district court for a writ of habeas corpus. That petition was dismissed, and Mr. Zalawadia was deported to India while his appeal to the Court of Appeals was pending. Eventually, that appeal was then dismissed. Mr. Zalawadia filed a petition for a writ of certiorari to the Supreme Court, and the Supreme Court vacated the Court of Appeals’ dismissal of the appeal and remanded the matter back to the Court of Appeals.

Held: (1) removal of petitioner while his appeal of the district court’s dismissal of his habeas petition was pending did not deprive the district court of jurisdiction on remand; (2) petitioner’s dismissed habeas petition presented a live case or controversy and was not moot even though he was removed while his appeal to the Court of Appeals was pending; and (3) court lacked authority to grant relief to petitioner beyond vacating defective deportation order.*

*NOTE: Recently, we were able to compel the Government to bring Mr. Zalawadia back from India and to place him into removal proceedings, where he was granted relief from deportation under former INA section 212(c).

• Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004)

Decided: April 1, 2004.
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

This was an appeal by the Government, challenging the district court’s holding that granted the alien’s petition for a writ of habeas corpus upon finding that the Antiterrorism and Effective Death Penalty Act was impermissibly retroactively applied to petitioner, thereby barring him from section 212(c) discretionary relief. After the district court rendered its decision, the Second Circuit decided Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003), (link this to the PDF of the case attached) which held that aliens who went to trial prior to the enactment of AEDPA/IIRIRA could not demonstrate these statutes had a retroactive effect upon them because there is no reliance in the decision to go to trial. On Appeal, we sought to distinguish Rankine on the ground that Mr. Restrepo could have filed an affirmative application for relief prior to the enactment of AEDPA/IIRIRA, but did not do so in reliance of the continued availability of 212(c) relief.

Held: There may have been an impermissible retroactive application of AEDPA/IIRIRA, therefore the judgment was vacated and remanded to district court to determine whether the petitioner has to make an individualized showing of reliance, in order to apply for 212(c) relief.

• Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004)

Decided: February 2004
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

Petitioner, sought review of two final orders of the Board of Immigration Appeals, both denying him relief from deportation. Petitioner was facing deportation back to Egypt despite his testifying to being tortured there. The BIA held that because Mr. Khouzam was accused of a crime, his torture by the police upon his return to Egypt would not constitute a violation of the Convention Against Torture.

Held: The court granted Mr. Khouzam relief under the Convention against Torture and vacated the BIA’s decision, because torture under any circumstances violates the Convention Against Torture.

• Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003)

Decided: April 22, 2003
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

Petition for review of final order of removal by the Board of Immigration Appeals, which held that petitioner’s conviction for manslaughter in the second degree under N.Y.P.L § 125.15(1) was a “crime of violence” under 18 U.S.C § 16(b) and thus an aggravated felony under the Immigration and Nationality Act.

Held: Petition for review granted order of removal vacated. The court held that Mr. Jobson’s state conviction for second-degree manslaughter was not a “crime of violence,” and thus was not an “aggravated felony” warranting his removal, since minimum criminal conduct required to commit second-degree manslaughter did not necessarily present substantial risk of use of physical force against the person of another, but rather, only recklessness with respect to substantial risk of death.

• Calcano-Martinez v. INS, 533 U.S. 348 (2001)

Decided: June 25, 2001
Argued In: United States Supreme Court on Certiorari to the United States Court of Appeal for the Second Circuit (Lucas Guttentag argued the cause for Petitioners. With him on the briefs were, among others, Kerry W. Bretz and Jules E. Coven)

The United states Supreme Court upheld our success before the United States Court of Appeals for the Second Circuit in Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.2000), by holding that the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) does not deprive a federal court of its habeas jurisdiction under 2241 to review the purely legal claims of criminal aliens against final orders of removal.

Had we not succeeded in this case, criminal aliens would not have been able to challenge their removal orders in federal court.*

*While this case opened the door for many aliens to file a petition for a writ of habeas corpus, on May 11, 2005, Congress enacted the REAL ID Act of 2005 (“RIDA”), Pub. L. No. 109-13, Div. B, 119 Stat. 231. As a result of § 106 of the RIDA, the United States district courts no longer have jurisdiction to review final orders of removal on habeas corpus petitions. Instead, such review may only be obtained in the appropriate court of appeals on a direct petition for review pursuant to INA § 242, 8 U.S.C. § 1252. See RIDA § 106(a)(1)(B).

• Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000)

Decided: November 7, 2000
Argued In: United States Court of Appeals for the Second Circuit by Matthew L. Guadagno, Partner

This is a benchmark case for many cases arising within the Second Circuit claiming that a filing deadline was missed because of ineffective assistance of counsel.

Held: The 90-day limitations on filing a motion to reopen under 8 C.F.R. [100]3.23(b)(1) can be equitably tolled due to ineffective assistance of counsel. Prior to this case, the Board of Immigration Appeals would not consider a motion to reopen under 8 C.F.R. [100]3.23(b)(1) that was filed more than 90 days after an order was rendered, regardless of the reason for the delay in filing. As a result of this case, many aliens who were unable to file a timely motion to reopen because their lawyers provided ineffective assistance of counsel, are able to file a motion to reopen alleging ineffective assistance of counsel and requesting equitable tolling.

• Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000), aff’d 533 U.S. 348 (2001)

Decided: September 1, 2000
Argued In: United States Court of Appeals for the Second Circuit

Held: IIRIRA does not deprive federal court of its habeas jurisdiction under § 2241 to review the purely legal claims of criminal aliens against final orders of removal.

• Henderson v. INS, 157 F.3d 106 (2d Cir. 1998)

Decided: September 18, 1998
Argued In: United States Court of Appeals for the Second Circuit

Held: This case had two important holdings. The first was that aliens convicted of specified criminal offenses--who are precluded by the AEDPA and the IIRIRA from seeking direct review of their deportation, exclusion, or removal orders in the courts of appeals--may file habeas petitions in the district courts pursuant to 28 U.S.C. 2241. The second holding was that the provision of the AEDPA that limits the availability of INA § 212(c) waivers does not apply retroactively to aliens whose deportation or exclusion proceedings were pending on the date of its enactment. This case was an impetus for the Attorney General’s decision to promulgate regulations that apply the Henderson holding regarding 212(c) relief throughout the entire nation. The regulations can be found at 8 C.F.R. § 1212.3(g).

• Dashto v. INS, 59 F.3d 697 (7th Cir. 1995)

Decided: July 11, 1995
Argued In: United States Court of Appeals for the Seventh Circuit by Jules E. Coven, Partner

Alien convicted of six robberies petitioned for review of Board of Immigration Appeals’ finding that he was ineligible for discretionary relief from deportation, and that, even if he was eligible, he did not warrant relief.

Held: Certificate of conviction that alien had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief. Therefore, Mr. Dashto was indeed eligible to apply for a waiver of deportation.

Published District Court Cases

• Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. Oct. 29, 2003)

Decided: October 29, 2003
Argued In: United States District Court for the District of New Jersey, Newark, New Jersey by
Bretz and Coven

This was one of the first cases that challenged the constitutionality of the federal regulation allowing the Government to invoke an “automatic stay” of a decision of an Immigration Judge granting a detained alien bond. Mr. Ashley was granted a $5,000 bond by an Immigration Judge, but the Government invoked the automatic stay provision while it appealed to the Board of Immigration Appeals, which prevented Mr. Ashley from posting bond and being released from custody.

Held: The automatic stay provision is unconstitutional and it violates an alien’s right to due process.

• Pena-Rosario v. Reno, 83 F. Supp. 2d 349 (E.D.N.Y. 2000)

Decided: February 8, 2000
Argued In: United States District Court for the Eastern District of New York

Held: (1) Deportation proceedings against alien commenced on date on which Immigration and Naturalization Service (INS) served order to show cause on alien; (2) district court had jurisdiction under habeas statute to hear habeas petitions of aliens; and (3) aliens whose criminal conduct occurred prior to enactment of Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) were not subject to provisions in AEDPA and IIRIRA which enlarged ban on waivers of deportation.

• Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y. 1997)

Decided: July 11, 1997
Argued In: United States District Court for the Eastern District of New York

This case was one of the first federal court decisions to hold that section 440(d) of the AEDPA, which bars legal permanent residents who have been convicted of certain crimes from seeking a discretionary waiver of deportation, may not be applied retroactively -- this decision was influential in such other 212(c) cases as Henderson v. INS, 157 F. 3d 106 (2d Cir. 1998), Pena-Rosario v. Reno, 83 F. Supp. 2d. 839 (E.D.N.Y. 2000); and St. Cyr. v. INS, 229 F.3d 406 (2d Cir. 2000).

• St. John v. McElroy, 917 F.Supp. 243 (S.D.N.Y. 1996) (KMW) (“St. John III”)

Decided: March 4, 1996
Amended: May 7, 1996
Argued In: United States District Court for the Southern District of New York

Returning green card holder sought judicial review of Immigration and Naturalization Service’s denial of her application for parole pending final determination whether she may be excluded from United States because of a drug conviction.

Held: The court held that mandatory detention of returning lawful permanent residents is unconstitutional and ordered a due process hearing on custody (bail) before an Immigration Judge.*

* While this was a terrific victory at the time, in 2003, the United States Supreme Court decided Demore v. Kim, 538 U.S. 510 (2003), which held that INA § 236(c), 8 U.S.C. § 1226(c), the law allowing mandatory detention, was constitutional.

Board of Immigration Appeals Cases
(Click on the name of the case to read the entire Board opinion)

• Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005)

• Matter of H-, 20 I. & N. Dec. 611 (BIA 1992)

• Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989)

• Matter of Lam, 18 I. & N. Dec. 15 (BIA 1981)

• Matter of Cheung, 16 I.& N. Dec. 690 (BIA 1979)

• Matter of Yam, 16 I. & N. Dec. 535 (BIA 1978)

• Matter of Yeung, 16 I. & N. Dec. 370 (BIA 1977)

• Matter of Cachiguango and Torres, 16 I.& N. Dec. 205 (BIA 1977)

• Matter of To, 14 I. & N. Dec. 679 (BIA 1974)

• Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974)

• Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974)

• Matter of Yuk, 14 I. & N. Dec. 504 (BIA 1973)

• Matter of Tsoi, 14 I. & N. Dec. 205 (BIA 1972)

• Matter of Tabcum, 14 I. & N. Dec. 113 (Reg’l Comm’r 1972)

• Matter of Kwun, 13 I. & N. Dec. 457 (BIA 1970)

• Matter of Lam, 12 I. & N. Dec. 696 (BIA 1968)

• Matter of Lau, 12 I. & N. Dec. 573 (BIA 1968)

In addition to the numerous published cases, Bretz & Coven, LLP, has had “quiet victories” in federal courts through cases we have won for our clients but that are not published decisions. Click HERE to view some of our unpublished decisions.