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PLEASE NOTE REGARDING DACA RENEWALS: On January 9, 2018, a San Francisco-based federal judge in the Northern District of California issued a nationwide preliminary injunction ordering the Department of Homeland Security ("DHS") to resume DACA, calling its termination a "mistake of law." U.S. District Court Judge William Alsup's preliminary-injunction order compels the Trump administration to resume DACA renewals until the final order or decision on the matter is issued, concluding that the recipients of DACA would suffer irreparable harm absent an injunction. Under Judge Alsup's order, former DACA recipients who failed to renew their status by the October 5, 2017 deadline now have a chance to submit renewal applications, and DHS will also be required to allow renewals of applications expiring in the future. DHS is not required, however, to accept new DACA applications. The Trump administration has not as of yet sought a stay of Judge Alsup's order from a higher court, so as of now previous recipients of DACA, whose DACA either has expired or will expire, are encouraged to apply for renewal as soon as possible.

PROCLAMATION ON IMMIGRATION (EIGHT-COUNTRY BAN) (PLEASE NOTE: UNTIL FURTHER NOTICE THE PROCLAMATION RELATING TO THE BARS AGAINST CITIZENS OF SIX OF THE EIGHT COUNTRIES IS ON HOLD)

On September 24, 2017, the President of the United States through a Proclamation extended and amended effective October 18, 2017 an Executive Order directing the Department of State and the Department of Homeland Security regarding certain people who would not be permitted entry to the United States for various periods of time. These categories of people include the following:

  • Any citizens of Chad, Libya, or Yemen seeking entry on immigrant or on nonimmigrant business (B-1), tourist (B-2), or business-tourist (B-1/B-2) visas;
  • Any citizens of Iran seeking entry on immigrant or on nonimmigrant visas except for Iranian students (F or M) provided they received extra screening;
  • Any citizens of North Korea or Syria seeking entry on immigrant or on nonimmigrant visas;
  • Any citizens of Venezuela who are officials of government agencies of Venezuela involved in screening and vetting procedures, and their immediate family members, seeking entry on immigrant or on nonimmigrant business (B-1), tourist (B-2), or business-tourist (B-1/B-2) visas, and all other citizens of Venezuela who are visa holders will nonetheless be subject to appropriate additional measures to ensure traveler information remains current; and
  • Any citizens of Somalia seeking entry on immigrant visas, and all other citizens of Somalia who are seeking entry as nonimmigrants should be subject to additional scrutiny to determine if they are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
  • The announcement makes specific exceptions for existing holders of valid immigrant and nonimmigrant visas issued prior to the Proclamation's effective date and does not apply to Lawful Permanent Residents ("Green-Card holders").

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    PRIORITY-DATE RETENTION OF EMPLOYMENT-BASED IMMIGRANT PETITIONS AND PROTECTIONS FOR EMPLOYMENT-BASED NONIMMIGRANT WORKERS

    Effective as of January 17, 2017, a number of existing practices have been codified in newly established regulations, but a number of changes that did not previously exist in practice include the following:

  • Employment-Based Immigrant Petitions (I-140s) that have been approved for more than 180 days will remain valid for both (A) H-1B extensions that go beyond the sixth year of H-1B nonimmigrant status and (B) I-140-priority-date-retention portability even in the event the sponsoring employer withdraws that approved I-140 or goes out of business, but please note that withdrawal due to fraud, misrepresentation, or material error void applicability of these provisions;
  • An Employment Authorization Document ("Work Permit") valid for one year is available to nonimmigrant workers (A) who maintain E-3, H-1B, H-1B1, L-1 or O-1 status, (B) who have an approved I-140 in the Employment-Based first-preference ("EB-1")-, second-preference ("EB-2")-, or third-preference ("EB-3") categories, (C) who are unable to adjust status, i.e., obtain a Green Card, because the relevant priority date is not yet current, and (D) who are able to establish the existence of "compelling circumstances";
  • Grace Periods of (A) ten (10) days are made available to nonimmigrant workers on E-1, E-2, E-3, L-1, and TN status for immediately before and after their respective employment-validity periods and (B) sixty (60) days are made available to nonimmigrant workers on E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status following termination of employment to permit such nonimmigrant workers time to evaluate their options and/or seek transfers in their employment, change status, or depart the United States; and
  • Automatic Interim Employment Authorization is available to those foreign nationals whose Work Permits have expired and continue to have pending Work-Permit-renewal applications if (A) the Work-Permit-renewal application was timely filed, i.e., prior to the expiration of the last Work Permit, (B) the Work-Permit-renewal application is based on the same category as the expiring/expired Work Permit, and (3) the Work-Permit-renewal application is filed under a category that does not first require adjudication of an underlying application.
  • Regarding the Automatic Interim Employment Authorization, the only categories to which it applies are as follows: refugees - (a)(3), asylees - (a)(5), parents or dependent children of people who got permanent residency under Secs. 101(a)(27)(I) of the Immigration and Nationality Act ("INA") - (a)(7), citizens of Micronesia or the Marshall Islands - (a)(8), applicants granted withholding of deportation or removal - (a)(10), TPS - (a)(12) and (c)(19), applicants with pending asylum or withholding of deportation or removal - (c)(8), pending adjustment of status applicants - (c)(9), applicants with pending suspension of deportation and cancellation of removal - (c)(10), applicants for creation of a record of lawful admission for permanent residence - (c)(16), legalization applicants - (c)(20) and (c)(22), LIFE Act adjustment applicants - (c)(24), VAWA cases - (c)(31). Notably, foreign nationals with pending adjustment-of-status ("Green Card") applications or with pending Asylum applications qualify for Automatic Interim Employment Authorization, but spouses of H-1B nonimmigrants (H-4), L-1A/B nonimmigrants (L-2), and E-1/2 nonimmigrants (E-1/2) do not qualify for Automatic Interim Employment Authorization.

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    PROVISIONAL UNLAWFUL PRESENCE WAIVER (I-601A) AND CONDITIONAL CONSENT TO REAPPLY FOR ADMISSION (I-212)

    Effective August 29, 2016, an update expands on a regulation that originally went into effect on March 4, 2013, allowing certain immigrant-visa applicants who are spouses and/or sons or daughters of United-States citizens or lawful permanent residents to apply for provisional unlawful-presence waivers before they leave the United States for their immigrant-visa interviews at a United-States embassy or consulate abroad. A person is eligible for a provisional-unlawful-presence waiver if s/he:

  • Is seventeen (17) years of age or older;
  • Is the beneficiary of an approved immigrant petition, e.g., I-130, I-360, I-140, and I-526;
  • Has a pending immigrant-visa case with the United States Department of State for the approved immigrant petition and has paid the required immigrant-visa processing fee;
  • Is able to demonstrate that refusal of his/her admission to the United States will cause extreme hardship to his/her United-States-citizen or lawful-permanent-resident spouse or parent;
  • Is physically present in the United States to file his/her application for a provisional unlawful-presence waiver and provide biometrics; and
  • Meets all other requirements for the provisional unlawful-presence waiver, as detailed in its regulation and form instructions.
  • The provisional unlawful-presence waiver only waives inadmissibility for unlawful presence and not inadmissibility for any other reason(s). However, if one is no longer in removal or exclusion/deportation proceedings but is nonetheless subject to a final removal or exclusion/deportation order, then s/he can first apply for conditional permission to reapply despite such order, and if such application is approved conditionally, then s/he would then apply for a provisional unlawful-presence waiver. The new process provides a certain level of certainty for those who are granted a provisional waiver that they will be granted an immigrant visa abroad and therefore will be permitted to return to the United States and to be issued a Green Card. The Firm understands the complexities of the adjudication of provisional-unlawful-presence-waiver applications and whether one is eligible to be granted one and is available to assist individuals who believe they may benefit from this new waiver process.

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    EMPLOYMENT AUTHORIZATION FOR CERTAIN H-4 DEPENDENT SPOUSES

    Effective as of May 26, 2015, an H-4-nonimmigrant-status holder who is the spouse of an H-1B-nonimmigrant-status holder may apply for an Employment Authorization Document ("Work Permit") if the H-1B-nonimmigrant-status holder either:

  • Is the principal beneficiary of an approved employment-based immigrant petition, i.e., a Form I-140, Immigrant Petition for Alien Worker, or
  • Is both (A) the principal beneficiary of a pending employment-based immigrant petition or labor-certification application and (B) the principal beneficiary of an H-1B-nonimmigrant-status extension beyond the sixth year of H-1B-nonimmigrant status pursuant to Sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), i.e., the H-1B-nonimmigrant-status extension was obtained because of the pendency of an employment-based immigrant petition or labor-certification application.
  • It is important to note that having H-4-nonimmigrant status in and of itself does not render one eligible for a Work Permit because the H-1B-nonimmigrant must also be at or beyond a certain point in the process for obtaining Lawful Permanent Residence.

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    PAROLE IN PLACE FOR SPOUSES, CHILDREN, AND PARENTS OF ACTIVE AND RETIRED MILITARY PERSONNEL ("PIP")

    On November 15, 2013, United States Citizenship and Immigration Services, or USCIS, clarified the category of people who normally would be granted Parole in Place, or "PIP." PIP legalizes the entry of someone who is already present in the United States but whose presence was not immediately preceded by a lawful admission or parole. By being granted PIP, a person may, but not necessarily, instantly become eligible to apply in the United States for lawful-permanent-resident status, also known as a "Green Card," without having to depart the United States, a process known as adjustment of status. Previously, it was not clear as to whom USCIS would exercise its discretion in granting PIP. However, now such discretion will normally be exercised for a person who:

  • Is the spouse, child, or parent of an Active-Duty member of the United States Armed Forces, an individual in the Selected Reserve of the Ready Reserve, OR an individual who previously served in the United States Armed Forces or the Selected Reserve of the Ready Reserve;
  • Is currently physically present in the United States;
  • Has not already been admitted or paroled into the United States (relating only to his/her current presence in the United States and not to any previous trips or prior stays in the United States); and
  • Does not have any serious adverse factors such as one or more certain criminal convictions.
  • USCIS has specifically determined that because PIP counts as a parole a person who has been granted PIP will no longer be deemed inadmissible or ineligible for adjustment of status simply for being in the United States without having been admitted or paroled. However, a grant of PIP does not automatically lead to eligibility for adjustment of status, so analysis of whether any other inadmissibility or ineligibility grounds apply must be completed before a person granted PIP applies for adjustment of status.

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    END OF CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS ("DACA")

    On September 5, 2017, the President of the United States ordered an end to a policy that on June 15, 2012 the President of the United States had announced by the Department of Homeland Security that certain people, known as "DREAMers," who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Deferred action is a discretionary determination to defer removal/deportation of an individual as an act of prosecutorial discretion. Because the DREAM Act has not yet passed, DACA, as the new policy is commonly called, serves as a temporary solution for several people who fit its criteria. For the same reason, DACA does not provide an individual with lawful status. DACA was previously available to be granted by United States Citizenship and Immigration Services, or USCIS, to someone if s/he:

  • Was under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching his/her 16th birthday;
  • Has continuously resided in the United States since June 15, 2007, up to the present time;
  • Was physically present in the United States on June 15, 2012, and at the time of making his/her request for DACA with USCIS;
  • Entered without inspection before June 15, 2012, or his/her lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Has not been convicted of a felony, significant misdemeanor, and/or three or more other misdemeanors and, separately, does not otherwise pose a threat to national security or public safety.
  • USCIS had frequently issued additional guidance regarding its adjudication of DACA applications given the lack of clarity of the above requirements and how to document compliance with them. Keeping up to date with all of the additional guidance as well as the latest best practices was a daunting task, but the Firm remained committed to staying abreast of all available information, whether published or not, regarding the adjudication of DACA applications. The Firm previously was willing and able to assist any individuals who feel they may be eligible for DACA and will once again be should DACA or a similar program recommence.

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    RECENTLY PUBLISHED CASE DECISIONS

    The following are the latest published opinions that relate to U.S. Immigration Law in California
    (PLEASE NOTE- the term "Ninth Circuit" refers to the U.S. Court of Appeals for the Ninth Circuit,
    and the term "BIA" refers to the U.S. Department of Justice's Board of Immigration Appeals):

  • Jennings v. Rodriguez- filed February 27, 2018
  • The U.S. Supreme Court reversed the Ninth Circuit and held that, pursuant to the immigration provisions 8 U.S.C. Sec. 1225(b), 1226(a), and 1226(c), foreign nationals do not have the right to periodic bond hearings during the course of their detention. The Supreme Court held that the Ninth Circuit adopted implausible statutory constructions of the three provisions and remanded with instructions for the Ninth Circuit instead to consider the merits of the constitutional arguments in the proceedings.

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  • Matter of Mendez- filed February 23, 2018
  • The BIA held that the crime of misprision (concealment) of felony in violation of 18 U.S.C. Sec. 4 (2006) is categorically a crime involving moral turpitude in jurisdictions outside of the Ninth Circuit. This decision does not apply in the jurisdiction of the Ninth Circuit because of its opposite holding in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) that misprision of felony is not categorically a crime involving moral turpitude.

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  • Matter of J-C-H-F-- filed February 20, 2018
  • The BIA held that an immigration judge, when deciding whether to consider a border or airport interview in making a foreign national's credibility determination, should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.

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  • Song v. Sessions- filed December 18, 2017 BUT amended February 15, 2018
  • The Ninth Circuit held that a foreign national was entitled to asylum relief for persecution based on the political opinion imputed to him by the Chinese government for his having organized a protest of the government's eminent domain policy requiring the forced relocation of millions of citizens, which the U.S. Department of State has recognized as a source of widespread animosity. In the amended opinion, the Ninth Circuit remanded for consideration of whether the foreign national has met the other elements of asylum relief before the BIA exercises discretion whether to grant asylum.

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  • Padilla-Ramirez v. Bible- filed July 6, 2017 BUT amended February 15, 2018
  • The Ninth Circuit held that reinstated removal orders are administratively final for detention purposes even for foreign nationals in withholding-only proceedings and that detention of foreign nationals subject to reinstated removal orders is governed by 8 U.S.C. Sec. 1231(a), which does not authorize bond hearings.

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  • Gonzalez-Caraveo v. Sessions- filed February 14, 2018
  • The Ninth Circuit held that, following Matter of Avetisyan, 25 I. & N. Dec. 688 (2012), it now has jurisdiction to review the BIA's decisions on whether to grant administrative closure - a decision to continue a matter by taking it off an immigration judge's or the BIA's docket - because the list of non-exhaustive factors set forth in Avetisyan provides a sufficiently meaningful standard against which to review the appropriateness of such decisions. Prior to Avetisyan, the Ninth Circuit had held that it lacked jurisdiction over denials of administrative closure.

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  • Tovar v. Sessions- filed February 14, 2018
  • The Ninth Circuit held that when Congress passed the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927, it intended the "age of the [foreign national] on the date of the parent's naturalization," as defined in 8 U.S.C. Sec. 1151(f)(2), to refer to statutory age - that is, age calculated according to 8 U.S.C. Sec. 1153(h)(1). The Ninth Circuit therefore reversed the BIA's affirmation of an immigration judge's seemingly perverse determination that when the relevant foreign national's parent naturalized that foreign national was no longer protected by the Child Status Protection Act even if that foreign national would have been protected by the Child Status Protection Act had his/her parent never naturalized in the first place.

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  • People v. Landaverde- filed February 7, 2018
  • The California Court of Appeal's Second Appellate District held that California Penal Code Section 1473.7 provides a procedural means to vacate a judgment of a conviction that was legally invalid, but it does not affect the standards by which motions to vacate pleas based on an alleged Sixth Amendment violation due to ineffective assistance of counsel are decided. The Court of Appeal held that a foreign national defendant who seeks to vacate a conviction on this ground must still establish two prongs under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), that her/his counsel's performance fell below an objective standard of reasonableness and that s/he was prejudiced by that deficient performance. Prior to the U.S. Supreme Court's 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), a defense attorney's failure to advise a foreign-national defendant of the immigration consequences of her/his plea did not constitute deficient performance. Because the foreign national's 1998 guilty plea was final in the relevant case, the Court of Appeal held that Padilla could not be applied retroactively to vacate his conviction.

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  • Matter of Siniauskas- filed February 2, 2018
  • The BIA held that in deciding whether to set a bond, an immigration judge should consider the nature and circumstances of a foreign national's criminal activity, including not only convictions but also arrests, to determine if that foreign national is a danger to the community. The BIA found that driving under the influence is a significant adverse consideration in bond proceedings. The BIA concluded that evidence of family and community ties generally does not mitigate a foreign national's dangerousness.

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  • Solorio-Ruiz v. Sessions- filed January 29, 2018
  • The Ninth Circuit held that a foreign national's conviction for carjacking under California Penal Code Section 215(a) is not categorically a "crime of violence" aggravated felony that made him ineligible for relief from removal because, in light of the U.S. Supreme Court's holding in Johnson v. United States, 559 U.S. 133, 140 (2010), carjacking does not require the use of violent force capable of causing physical pain or injury to another person. The Ninth Circuit consequently held that Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010), which held that a carjacking conviction under California Penal Code Section 215 is categorically a crime of violence, is no longer good law.

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  • C.J.L.G. v. Sessions- filed January 29, 2018
  • The Ninth Circuit held that neither the Due Process Clause nor the Immigration and Nationality Act creates a categorical right to government-funded, court-appointed counsel for foreign-national minors during removal proceedings. While this case specifically concerned an accompanied minor, the Ninth Circuit did not address whether the analysis would change in the case of unaccompanied minors.

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  • Matter of Castillo Angulo- filed January 29, 2018
  • The BIA held that, in removal proceedings arising within the specific jurisdictions of U.S. Court of Appeals for the Fifth Circuit and the Ninth Circuit only, a foreign national who was "waved through" at a port entry has established an admission "in any status" within the meaning of Section 240A(a)(2) of the Immigration and Nationality Act ("INA"). The BIA held that, in removal proceedings outside the Fifth Circuit and Ninth Circuit, to establish continuous residence in the U.S. for seven years after having been admitted "in any status" under Section 240A(a)(2) of the INA, a foreign national must prove that he or she possessed some form of lawful immigration status at the time of admission. The BIA remanded to the relevant immigration judge to determine whether the foreign national in the relevant matter was "waved through" at the port of entry, and, if so, whether she satisfies the other factors that would make her eligible for cancellation of removal.

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  • People v. Perez- filed January 23, 2018
  • The California Court of Appeal's Fourth Appellate District held that California Penal Code Section 1473.7, which went into effect on January 1, 2017 and allows a foreign national no longer in custody to vacate a conviction based on his/her failure to understand the potential immigration consequences at the time of a guilty plea, can be applied retroactively. The Court of Appeal further found that trial courts need only evaluate whether a foreign national satisfies the required elements to bring the motion to vacate. In the relevant case, the Court of Appeal determined that the trial court did not err in denying the relevant foreign national's motion to vacate where the change-of-plea form established that he had an interpreter who explained to him the immigration consequences at the time of the guilty plea and that he was explicitly informed by the court that he would be deported if he pled guilty.

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  • Matter of W-Y-C- & H-O-B-- filed January 19, 2018
  • The BIA held that, in the case of a foreign national seeking asylum or withholding of removal based on a membership in a particular social group, a newly proposed particular social group will not be considered on appeal if it was not first articulated in front of an immigration judge. The BIA declined to remand proceedings for the relevant immigration judge to make factual findings regarding the foreign national's newly articulated particular social group because the foreign national was represented by counsel before that immigration judge and had the opportunity to advance the exact delineation of the proposed social group before that immigration judge. Thus, the new particular social group was not "new, previously unavailable material evidence" meriting remand.

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  • Gomez-Velazco v. Sessions- filed January 10, 2018
  • The Ninth Circuit held that, where a foreign national is in expedited-removal proceedings, does not waive the fourteen-day waiting period for judicial review, and is allowed to consult with counsel before the removal order is executed, a showing of prejudice is required in order for the foreign national to prevail on a due process claim based on denial of right to counsel.

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  • Gebhardt v. Nielsen- filed January 9, 2018
  • The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of jurisdiction of a foreign national's action challenging the Department of Homeland Security ("DHS")'s denial of the I-130 visa petitions he filed on behalf of his wife and her children. The Ninth Circuit held that the Adam Walsh Child Protection and Safety Act of 2006 applies to petitions that were filed, but not yet adjudicated, before the statute's effective date. The Ninth Circuit further held that the Adam Walsh Act does not violate the Ex Post Factor Clause even if the convictions for the offenses covered by the statute occurred before the statute's effective date. The Ninth Circuit held that it had no jurisdiction to review determinations of the Secretary of DHS with respect to the "no risk" provision of the Adam Walsh Act, which requires I-130 petitioners to show that they pose "no risk" to the beneficiaries of their petitions, because the Immigration and Nationality Act bars review of any decision the authority for which is specified as falling under sole and unreviewable discretion of the Secretary of DHS.

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  • Villavicencio v. Sessions- filed January 5, 2018
  • The Ninth Circuit held that the Nevada conspiracy statute, Nevada Revised Statutes Section 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite "overt act" element, and thus is indivisible. The Ninth Circuit further held that the Nevada drug statute, Nevada Revised Statutes Section 454.351, is categorically overbroad when compared to Section 102 of the Controlled Substances Act, and thus is indivisible.

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  • Calderon-Rodriguez v. Sessions- filed January 3, 2018
  • The Ninth Circuit held that the BIA erred by failing to recognize that the medical record upon which the immigration judge heavily relied was nearly a year old and that it may have no longer reflected a foreign national's mental state. The Ninth Circuit concluded that the immigration judge did not adequately ensure that the Department of Homeland Security ("DHS") complied with its obligation to provide the court with relevant materials in its possession that would inform the court about the foreign national's mental competency, as required by standards set out by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). The Ninth Circuit held that where DHS is providing ongoing medical care to a foreign national as a detainee, it necessarily possesses relevant medical records, and thus has an obligation to introduce those records to the immigration judge. The Ninth Circuit remanded to the BIA with instructions to remand to the immigration judge for a proper competence evaluation based on current mental health reviews and medical records.

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  • U.S. v. Aldana- filed December 29, 2017
  • The Ninth Circuit affirmed two foreign nationals' misdemeanor convictions in the U.S. District Court, under Section 275(a) of the Immigration and Nationality Act for attempting to enter the U.S. "at any time or place other than as designated by immigration officers," holding that a place "designated by immigration officers" refers to a specific immigration facility, not an entire geographic area.

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  • Matter of Jasso Arangure- filed December 29, 2017
  • The BIA held that the Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under Section 101(a)(43)(G) of the Immigration and Nationality Act ("INA"), based on the same conviction that supported a crime of violence aggravated felony charge under another section of the INA, Section 101(a)(43)(F), in the prior proceeding. The BIA held that home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) is a categorical burglary offense under Section 101(a)(43)(G) of the INA.

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  • U.S. v. Valdivia-Flores- filed December 7, 2017
  • The Ninth Circuit reversed the U.S. District Court's dismissal of a foreign national's collateral attack against the validity of his 2009 order of removal based on the classification of his underlying conviction, for possession of a controlled substance with intent to distribute under a Washington drug trafficking statute, as an aggravated felony. The Ninth Circuit held that Washington Revised Code section 69.50.401 is overbroad compared to its federal analogue, because the former has a more inclusive mens rea requirement for accomplice liability. Therefore, the Ninth Circuit held that under a more straightforward application of the categorical approach, the foreign national's conviction cannot support an aggravated felony determination, and that his collateral attack on the underlying deportation order should have been successful. The Ninth Circuit also held that, because under Washington law a jury need not agree on whether a defendant is a principal or accomplice, the Washington drug trafficking statute is not divisible so far as the distinction between those roles is concerned. Furthermore, the Ninth Circuit held that the foreign national's waiver of right to seek judicial review of the removal order was not considered and intelligent where the notice of intent to issue a final administrative removal order suggested that the he could contest removability only on factual grounds, he was not represented, and he never had the benefit of appearing before an immigration judge despite requesting a hearing.

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  • Matter of Obshatko- filed November 17, 2017
  • The BIA held that the inquiry as to whether a violation of a protection order renders an alien removable under Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act is not governed by the categorical approach, even if a conviction underlies the charge; instead, an immigration judge should consider the probative and reliable evidence of regarding what a state court has determined about the alien's violation.

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  • Matter of Conejo-Bravo- filed November 17, 2017
  • The Ninth Circuit held that a felony hit and run conviction under California Vehicle Code section 20001(a) was a crime involving moral turpitude that renders a foreign national ineligible for cancellation or removal. The Ninth Circuit held that California Vehicle Code section 20001(a) is divisible into several crimes, some of which may involve moral turpitude and some of which may not. Applying the modified categorical approach, the Ninth Circuit concluded that a foreign national's admission in his plea agreement, which said that he was involved in a car accident that led to injury, satisfied the elements for a felony conviction for a traditional hit and run causing injuries, which qualifies as a crime involving moral turpitude under current controlling precedent.

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  • Saldivar v. Sessions- filed November 7, 2017
  • The Ninth Circuit held that an alien is "admitted" when he presents himself for inspection and is waved through a port of entry. The Ninth Circuit held that the phrase "admitted in any status," as used in Section 240A(a)(2) of the Immigration and Nationality Act plainly encompasses every status recognized by immigration statutes, lawful or unlawful.

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  • Matter of J-A-B- & I-J-V-A-- filed November 2, 2017
  • The BIA held that an immigration judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.

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  • Matter of Keeley- filed October 20, 2017
  • The BIA held that the term "rape" in Section 101(a)(43)(A) of the Immigration and Nationality Act encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. The BIA held that the term "rape" also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim's ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.

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  • Matter of Tavdidishvili- filed October 16, 2017
  • The BIA held that criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude because it does not require that a perpetrator have a sufficiently culpable mental state.

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  • Matter of Vella- filed October 13, 2017
  • The BIA held that an alien "has previously been admitted to the United States as an alien lawfully admitted for permanent residence" within the meaning of Section 212(h) of the Immigration and Nationality Act if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien's most recent acquisition of lawful permanent resident status.

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  • Matter of Pangan-Sis- filed October 6, 2017
  • The BIA held that an alien seeking to qualify for the exception to inadmissibility in Section 212(a)(6)(A)(ii) of the Immigration and Nationality Act must satisfy all three subclauses of that section, including the requirement that the alien be "a VAWA self-petitioner."

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  • Chavez-Garcia v. Sessions- filed September 21, 2017
  • The Ninth Circuit held that a foreign national's departure from the U.S., without more, does not provide clear and convincing evidence of a "considered" and "intelligent" waiver of the right to appeal, and therefore does not meet the constitutional requirements of a valid waiver. The Ninth Circuit further held that the immigration judge's failure to inform the foreign national that his departure would constitute a waiver of his previously reserved right to appeal to the BIA rendered his purported waiver invalid.

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  • Matter of Rehman- filed September 20, 2017
  • The BIA held that, where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of evidence.

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  • Matter of D-R-- filed September 14, 2017
  • The BIA held that a misrepresentation is material under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act when it tends to shut off a line of inquiry that is relevant to the alien's admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. The BIA held that in determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider two factors: (1) the nexus between the alien's role, acts, or inaction and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.

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  • Cornejo-Viallagrana v. Sessions- filed September 14, 2017
  • The Ninth Circuit held that a foreign national's conviction for misdemeanor domestic violence assault under Arizona Revised Statutes Sections 13-1203 and 13-3601 was a crime of domestic violence under Section 237(a)(2)(E) of the Immigration and Nationality Act ("INA") that renders him removable. The Ninth Circuit held that Arizona Revised Statute Section 13-1203 is divisible and that, under the modified categorical approach, the record provided a sufficient factual basis to support a finding that the foreign national was convicted of a class 1 misdemeanor under Arizona Revised Statutes Section 13-1203(A)(1), which requires intentionally or knowingly causing any physical injury to another person. The Ninth Circuit further held that Arizona Revised Statutes Section 13-1203(A)(1) is a crime of violence as defined in 18 U.S.C. Sec. 16(a) and that the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes Section 13-3601(A), are coextensive with the domestic relationships described in Section 237(a)(2)(E) of the INA.

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  • Matter of Delgado- filed September 7, 2017
  • The BIA held that robbery under Section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under Section 101(a)(43)(G) of the Immigration and Nationality Act, regardless of whether a violator merely aided and abetted in the asportation of property stolen by a principal.

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  • Matter of Mohamed- filed September 5, 2017
  • The BIA held that entry into a pretrial intervention agreement under Texas law qualifies as a "conviction" for immigration purposes under Section 101(a)(48)(A) of the Immigration and Nationality Act, where a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement and a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.

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  • Sanchez v. Sessions- filed August 30, 2017
  • The Ninth Circuit held that the Coast Guard officers, in detaining a foreign national based on his Latino ethnicity alone, committed an egregious Fourth Amendment violation as well as a violation of an immigration regulation, 8 C.F.R. Sec. 287.8(b)(2), which provides that an immigration officer may briefly detain an individual only if the officer has "reasonable suspicion, based on articulable facts" that the person is engaged in an offense or is an alien illegally in the United States. Accordingly, the Ninth Circuit held that the immigration judge erred in failing to suppress the Form I-213 (Record of Deportable/Inadmissible Alien), which was prepared after his unlawful immigration arrest and which the Government introduced to establish the foreign national's alienage and entry without inspection. The Ninth Circuit also concluded that the foreign national was not seized at the United States border, where Fourth Amendment protections are lower, because he was seized at a recreational harbor rather than a port of entry and also had not entered the U.S. territorial waters from international waters. The Ninth Circuit held that the foreign national's removal proceedings must be terminated based on the regulatory violation, because the regulation is designed to benefit the foreign national, but he was prejudiced by the violation in this case. The Ninth Circuit did not reach the constitutional question of whether the foreign national's Family Unity Benefits and Employment applications, which the Government introduced to establish alienage, are considered indirect fruits of the poisonous tree. Therefore, the Ninth Circuit remanded to the BIA with instructions to terminate the foreign national's removal proceedings.

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  • Campos Mejia v. Sessions- filed August 29, 2017
  • The Ninth Circuit held that, where a foreign national in removal proceedings showed clear signs of mental incompetency, an immigration judge erred by failing to determine whether procedural safeguards were required pursuant to In re M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011). The Ninth Circuit further held that the BIA abused its discretion by failing to explain why it allowed the immigration judge to disregard In re M-A-M-'s rigorous procedural requirements, and remanded to the BIA with instructions to remand to the immigration judge for a new hearing consistent with In re M-A-M-.

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  • Marinelarena v. Sessions- filed August 23, 2017
  • The Ninth Circuit held that a conspiracy statute of California Penal Code Section 182(a)(1) is overbroad but divisible as to the target crime, and that the target crime of sale and transport of a controlled substance under California Health and Safety Code Section 11352 is also overbroad but divisible as to the specific controlled substance. Thus, Ninth Circuit applied the modified categorical approach to review the BIA's decision finding a foreign national ineligible for cancellation of removal. The Ninth Circuit held that the record was inconclusive because the foreign national's guilty plea could have rested on an overt act that did not related to heroin. The Ninth Circuit further held that Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), which held that a petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, remains good law because it is not irreconcilable with the later Supreme Court cases of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013). Thus, the Ninth Circuit concluded that the foreign national is ineligible for cancellation because with respect to eligibility for relief, she bears the burden of proof to show that her conviction did not relate to a controlled substance, and she could not meet this burden on an inconclusive record.

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  • Matter of J-G-D-F-- filed August 18, 2017
  • The BIA held that burglary of a dwelling in violation of Section 164.225 of the Oregon Revised Statues is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.

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  • Dela Cruz Sales, Jr. v. Sessions- filed August 18, 2017
  • The Ninth Circuit held that a foreign national's California conviction for second degree murder, based on aiding and abetting theory, makes him removable for having been convicted of an aggravated felony. The Ninth Circuit held that California law on aiding and abetting, which looks to the natural and probable consequences of an act the defendant intended, had not materially changed since the Supreme Court decided Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that absent a showing that the law had been applied in some "special" way, a California conviction for aiding and abetting a removable offense is also a removable offense. The Ninth Circuit concluded that there is nothing special about the California aiding and abetting law that brings it or the foreign national's conduct outside the generic definition of aiding and abetting.

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  • Sandoval v. Sessions- filed August 8, 2017
  • The Ninth Circuit held that the crime of delivery of a controlled substance under Oregon Revised Statutes Section 475.992(1)(a) is not a categorical aggravated felony because its definition of "delivery" includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances. The Ninth Circuit further held that the modified categorical approach does not apply because the Oregon law is indivisible with respect to whether an "attempt" is accomplished by solicitation.

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  • Matter of N-A-I-- filed August 3, 2017
  • The BIA held that an alien who adjusts status under Section 209(b) of the Immigration and Nationality Act ("INA") changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien's asylee status. The BIA held that the restrictions on removal in Section 208(c)(1)(A) of INA do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to Section 209(b) of the INA.

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  • Sanjaa v. Sessions- filed July 21, 2017
  • The Ninth Circuit held that the witness protection provisions of Article 24 of the United Nations Convention Against Transnational Organized Crime ("UN-CATOC") do not provide an independent basis for relief from removal, because UN-CATOC is not self-executing, and has not been implemented through congressional legislation. The Ninth Circuit held that where a foreign national is targeted in his home country not on account of his political opinion or membership in a particular social group, but on account of his role in a drug-trafficking investigation, the foreign national is not entitled to withholding of removal or Convention Against Torture relief.

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  • Matter of Izaguirre- filed July 21, 2017
  • The BIA held that an offense may be a "specified offense against a minor" within the meaning of Section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006 even if it involved an undercover police officer posing as a minor, rather than an actual minor.

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  • Martinez v. Sessions- filed July 20, 2017
  • The Ninth Circuit held that when there is a question of whether the BIA's dismissal for lack of jurisdiction or an immigration judge's "no reasonable fear" determination is the final order, the BIA's dismissal is the administratively final order, because even diligent foreign nationals (especially pro se litigants) can fall victim to the constellation of confusing and conflicting information provided by the agency on how and where to seek judicial review of reasonable fear determinations made in connection with reinstatement of removal orders. Thus, the Ninth Circuit held that it has jurisdiction over petitions for review of negative reasonable fear determinations if it is filed within 30 days of the BIA's decision on appeal of such determinations, even if the BIA dismisses based on lack of jurisdiction. The Ninth Circuit then vacated the immigration judge's order to deny withholding of removal and remanded to the BIA to give proper consideration of the foreign national's testimony, to give proper weight to the country conditions report, and to apply the correct legal standards for his Convention Against Torture claim.

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  • Martinez v. Sessions- filed July 20, 2017
  • The Ninth Circuit held that when there is a question of whether the BIA's dismissal for lack of jurisdiction or an immigration judge's "no reasonable fear" determination is the final order, the BIA's dismissal is the administratively final order, because even diligent foreign nationals (especially pro se litigants) can fall victim to the constellation of confusing and conflicting information provided by the agency on how and where to seek judicial review of reasonable fear determinations made in connection with reinstatement of removal orders. Thus, the Ninth Circuit held that it has jurisdiction over petitions for review of negative reasonable fear determinations if it is filed within 30 days of the BIA's decision on appeal of such determinations, even if the BIA dismisses based on lack of jurisdiction. The Ninth Circuit then vacated the immigration judge's order to deny withholding of removal and remanded to the BIA to give proper consideration of the foreign national's testimony, to give proper weight to the country conditions report, and to apply the correct legal standards for his Convention Against Torture claim.

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  • Wang v. Sessions - filed July 3, 2017
  • The Ninth Circuit held that when a foreign-national applicant for Asylum, Withholding of Removal, and/or Deferral of Removal under Convention Against Torture fails to meet her initial burden of presenting credible testimony, the immigration judge is under no obligation under Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) to provide the applicant with notice and opportunity to present additional corroborating evidence. The Ninth Circuit further held that when an immigration judge considers a foreign-national applicant's submitted corroborating evidence, but deems that evidence insufficient, the immigration judge need not afford the applicant an opportunity to provide additional evidence.

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  • Agonafer v. Sessions - filed June 27, 2017
  • The Ninth Circuit held that the BIA abused its discretion when it denied a foreign national's motion to reopen removal proceedings without considering the new evidence of increased violence towards homosexuals in Ethiopia, and remanded the matter to the BIA to properly consider the changed country conditions submitted with the foreign national's motion. The Ninth Circuit also held that it has jurisdiction to review the petition for review under exception to the jurisdictional bar under Section 242(a)(2)(C) of the Immigration and Nationality Act that because while the section eliminates judicial review of final order of removal based on a foreign national's criminal conviction, it does not preclude judicial review of constitutional claims or questions of law.

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  • Matter of Deang- filed June 16, 2017
  • The BIA held that an essential element of an aggravated felony receipt of stolen property offense under Section 101(a)(43)(G) of the Immigration and Nationality Act ("INA") is that an offender must receive property with the "knowledge or belief" that it has been stolen, and this element excludes a mens rea equivalent to a "reason to believe." The BIA also held that a conviction for receipt of a stolen motor vehicle under Section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under Section 101(a)(43)(G) of the INA because it is divisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a "reason to believe" that the vehicle received was stolen.

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  • Sessions v. Morales-Santana - filed June 12, 2017
  • The U.S. Supreme Court held that the gender line Congress drew in Section 1409(c) of the Immigration and Nationality Act, which creates an exception for an unwed U.S.-citizen mother but not for such a father, to the physical-presence requirement for the transmission of U.S. citizenship to a child born abroad, is incompatible with the U.S. Constitution's Fifth Amendment's requirement that the government accord to all persons "the equal protection of the laws."

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  • Ramirez-Contreras v. Sessions- filed June 8, 2017
  • The Ninth Circuit held that a foreign national's conviction for fleeing from a police officer under California Vehicle Code Section 2800.2 is not a crime of moral turpitude, because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude. The Ninth Circuit held that the categorical approach applies rather than the modified categorical approach, because the elements of California Vehicle Code Section 2800.2 are clearly indivisible.

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  • Matter of Falodun- filed June 2, 2017
  • The BIA held that a certificate of citizenship, unlike a Certificate of Naturalization, does not confer U.S. citizenship but merely provides evidence that the applicant previously obtained citizenship status. The BIA held that judicial proceedings to revoke naturalization are not required to cancel a certificate of citizenship, which the Department of Homeland Security can cancel administratively upon a determination that an applicant is not entitled to the claimed citizienship status.

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  • Matter of Alday-Dominguez- filed June 1, 2017
  • The BIA held that the aggravated felony receipt of stolen property provision in Section 101(a)(43)(G) of the Immigration and Nationality Act does not require that unlawfully received property be obtained by means of common law theft or larceny.

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  • Ledezma-Cosino v. Sessions- filed May 30, 2017
  • The Ninth Circuit held en banc that a foreign national, who has been a "habitual drunkard" during the requisite time period of at least 10 years immediately preceding the date of his application for cancellation of removal, fails to establish good moral character and is ineligible for cancellation. The en banc court held that substantial evidence supports the BIA's finding that the foreign national has been a "habitual drunkard," given the evidence of his more-than-ten-year history of alcohol abuse, conviction for driving under the influence, and his daughter's testimony that his liver failed from drinking. The en banc court further held that the term "habitual drunkard" is not unconstitutionally vague because it readily lends itself to an objective factual inquiry, and held that the statutory "habitual drunkard" provision under Section 101(f)(1) of the Immigration and Nationality Act does not violate equal protection.

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  • Diego v. Sessions- filed May 26, 2017
  • The Ninth Circuit held that the Oregon Revised Statutes Section 163.427(1)(a) is divisible and that conviction under Section 163.427(1)(a)(A) is sexual abuse of a minor within the general federal definition and therefore an aggravated felony for purposes of Section 101(a)(43) of the Immigration and Naturalization Act ("INA"). Accordingly, the Ninth Circuit held that a foreign national who has been convicted of sexual abuse of a minor under Oregon Revised Statutes Section 163.427(1)(a)(A) has also been convicted of committing a particularly serious crime under INA Sections 208(b)(2)(A)(ii) and 208(b)(2)(B)(i). Thus, the Ninth Circuit held that the BIA properly terminated the foreign national's asylee status.

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  • Matter of L-E-A-- filed May 24, 2017
  • The BIA held that a particular social group based on family membership may be cognizable depending on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. The BIA held that in order to establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.

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  • Matter of M-B-C-- filed May 18, 2017
  • The BIA held that where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of application for relief may apply, the alien bears the burden under 8 C.F.R. Sec. 1240.8(d) to prove by a preponderance of evidence that such grounds do not apply.

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  • Matter of Alvarado- filed May 5, 2017
  • The BIA held that the persecutor bar in Section 241(b)(3)(B)(i) of the Immigration and Nationality Act, applies to an alien who assists or otherwise participates in the persecution of an individual because of that person's race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien's personal motivation for assisting or participating in the persecution.

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  • Silvia Ayala v. Sessions- filed May 1, 2017
  • The Ninth Circuit held that it has jurisdiction over petitions for review from negative reasonable fear determinations if such determinations were made in the context of the reinstatement of an expedited removal order. The Ninth Circuit further held that the BIA's decision to dismiss the relevant foreign national's appeal of an immigration judge's denial of a motion to reopen or to reconsider constituted a final order of removal given the specific circumstances of the case, including the fact that that immigration judge's decision on the motion to reopen or to reconsider advised the relevant foreign national of a right to appeal to the BIA even though no such right actually exists. Thus, the petition for review, which was filed within thirty days of the BIA's dismissal rather than within thirty days of the relevant immigration judge's denial, was timely under the specific circumstances of this case.

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  • Matter of Chairez- filed April 24, 2017
  • The BIA held that, in determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), immigration judges may consider or "peek" at an alien's conviction record only to discern whether statutory alternatives define "elements" or "means," provided State law does not otherwise resolve the question.

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  • Matter of W-Y-U-- filed April 18, 2017
  • The BIA held that the primary consideration for an immigration judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The BIA also held that, in considering administrative closure, an immigration judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

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  • Minto v. Sessions- filed April 17, 2017
  • The Ninth Circuit held that a foreign national, who was present in the Commonwealth of Northern Mariana Islands ("CNMI") without admission or parole on November 28, 2009 and who never had a valid entry document, was deemed by law to be an applicant for admission to the U.S. by his mere presence in the CNMI, since the immigration laws of the U.S. became applicable to the CNMI on November 28, 2009. The Ninth Circuit held that the foreign national was thus inadmissible to the U.S. under Section 212(a)(7) of the Immigration and Nationality Act which makes any foreign national applicant inadmissible if the applicant lacks a valid entry document at the time of application for admission.

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  • Matter of Wu- filed April 13, 2017
  • The BIA held that assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.

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  • Matter of Jimenez-Cedillo- filed April 6, 2017
  • The BIA held that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude when the victim is under 14 years of age, or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. The BIA also held that sexual solicitation of a minor under Section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of Section 3-307 of the Maryland Criminal Law is categorically a crime involving moral turpitude.

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  • Ramirez v. Lynch- filed March 31, 2017
  • The Ninth Circuit affirmed the U.S. District Court's grant of summary judgment in favor of a foreign national who was denied adjustment of status to that of a Lawful Permanent Resident by the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services for a perceived lack of lawful entry despite having been married to a U.S. citizen and having been granted Temporary Protected Status ("TPS"). The Ninth Circuit held for purposes of applications for Adjustment of Status and based on the plain language of the Immigration and Nationality Act ("INA"), or alternatively in the absence of any binding agency interpretation, not only that a grant of TPS amounts to the inspection and admission necessary for lawful entry but also that maintenance of TPS is the equivalent of maintenance of valid nonimmigrant status.

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  • People v. Patterson- filed March 27, 2017
  • The California Supreme Court reversed the decision of the lower courts denying a foreign national's timely motion to withdraw his guilty plea, which would subject him to mandatory deportation, based on California Penal Code Section 1018 on grounds of mistake or ignorance. The California Supreme Court held that receipt of the standard advisement as set forth in California Penal Code Section 1016.5, which states that a criminal conviction "may" have adverse immigration consequences, does not bar a foreign national defendant from seeking to withdraw a guilty plea on that basis. The California Supreme Court remanded to the trial court to determine whether, after considering all relevant factors, the foreign national has shown good cause for withdrawing his plea.

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  • Eleri v. Sessions- filed March 24, 2017
  • The Ninth Circuit held that a foreign national, who has been admitted to the U.S. as a Conditional Permanent Resident, i.e., the foreign national entered the U.S. on an immigrant visa that upon admission granted him Conditional Permanent Resident, and who subsequent to such admission has been convicted of an Aggravated Felony, is ineligible for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA"), which is unavailable to those who have been admitted as Lawful Permanent Residents but who have been convicted of an Aggravated Felony, because such a foreign national's admission as a Conditional Permanent Resident is the equivalent of being admitted as a Lawful Permanent Resident for purposes of determining waiver eligibility.

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  • Bringas-Rodriguez v. Lynch- filed March 8, 2017
  • The Ninth Circuit held en banc that a foreign-national applicant for Asylum, Withholding of Removal, and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT") is not required to report her/his private persecution to government law-enforcement authorities if such reporting to law-enforcement authorities would be futile, and that such foreign-national applicant can nonetheless establish, without a heightened-proof requirement, that the government of the country from which s/he is seeking protection in the U.S. is unwilling or unable to provide her/him with protection or is more likely than not to permit that foreign-national applicant's torture with the acquiescence of that government through country-conditions reports and news articles."

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  • Matter of Flores-Abarca- filed March 3, 2017
  • The BIA held that a conviction for the crime of transporting a loaded firearm in violation of Oklahoma Statues Sec. 21-1289.13 is categorically for a firearms offense under Section 237(a)(2)(C) of the Immigration and Nationality Act ("INA") even though the term "transporting" is not included in the INA because INA 237(a)(2)(C) is broadly construed to encompass all types of firearms offenses.

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  • Matter of Kim- filed January 31, 2017
  • The BIA held that a conviction for the crime of mayhem in violation of California Penal Code Sec. 203, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. Sec. 16(a) (2012).

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  • Sandoval v. Yates- filed January 27, 2017
  • The Ninth Circuit held that a conviction for delivery of a controlled substance under Oregon Revised Statutes Sec. 475.992(1)(a) is not for a Controlled-Substances-Trafficking Aggravated Felony and consequently does not render the relevant foreign national statutorily ineligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation") because, in addition to the relevant statute's not containing a "commercial element," the "delivery" portion of the relevant statute includes attempted delivery, for which under Oregon law, but not federal law, mere solicitation qualifies, thereby rendering the relevant statute overbroad. The Ninth Circuit found that the relevant statute, i.e., Oregon Revised Statutes Sec. 475.992(1)(a), also is indivisible with respect to whether an "attempt" is accomplished by solicitation and consequently concluded that the modified categorical approach does not apply.

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  • Duran v. Lynch- filed January 20, 2017
  • The Ninth Circuit held that a conviction for witness tampering under California Penal Code Sec. 136.1(a) is not categorically for a crime involving moral turpitude ("CIMT") because the offense is overly broad and therefore not a categorical match to the generic definition of a CIMT. The Ninth Circuit remanded the matter to the BIA to determine whether California Penal Code Sec. 136.1(a) is divisible and, if so, whether the modified categorical approach would render the relevant foreign national's conviction a CIMT and consequently render the relevant foreign national ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation").

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  • Barajas-Romero v. Lynch- filed January 18, 2017
  • The Ninth Circuit held that the "one central reason" nexus standard that applies to applications for Asylum, meaning that one central reason for why an applicant would be persecuted upon return to his/her country of origin must be one of the five protected grounds, i.e., race, religion, national origin, social group, or political opinion, does not similarly apply to applications for Withholding of Removal, which instead relies on the "a reason" standard. The Ninth Circuit found that because the "one central reason" standard, which was imposed by the REAL ID Act but only on applications for Asylum, is a stricter standard than the "a central reason" standard, which the REAL ID Act did not stop applying to applications for Withholding of Removal, applicants for Withholding of Removal are permitted to show weaker motives for their prospective persecution than they would in an application for Asylum. Turning to applications under the Convention Against Torture ("CAT"), the Ninth Circuit determined that because there is no "rogue official" exception, an application under CAT may successfully be based on the actions of off-duty police officers, even where they were not acting in an official capacity, so long as they carried out the acts or knowingly acquiesced in the acts. The Ninth Circuit concluded that while an applicant for relief under CAT bears the ultimate burden to prove a likelihood of torture, such applicant does not bear the burden to establish that s/he could not safely relocate within his/her country of origin to avoid future harm.

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  • Matter of Calcano de Millan- filed January 13, 2017
  • The BIA held that for purposes of the Adam Walsh Child Protection and Safety Act of 2006 and Section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act ("INA"), a U.S.-citizen- or Lawful-Permanent-Resident petitioner has been "convicted" of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner's guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.

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  • Guerrero-Roque v. Lynch- filed January 9, 2017
  • The Ninth Circuit held that a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA") cannot be used to excuse convictions that bar a relevant foreign national from being eligible for an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation").

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  • Lkhagvasuren v. Lynch- filed July 13, 2016 BUT amended December 30, 2016
  • The Ninth Circuit held that a three-factor test should be applied to determine whether an Asylum claim based on retaliation for whistleblowing amounts to persecution on account of political opinion: (1) whether and to what extent the relevant foreign national engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the relevant foreign national's perceived or actual anticorruption beliefs; and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher-level officials.

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  • Matter of Alvarado- filed December 29, 2016
  • The BIA held that the generic definition of "perjury" under Section 101(a)(43)(S) of the Immigration and Nationality Act ("INA") requires that an offender (1) make a material false statement (2) knowingly or willfully (3) while under oath or affirmation (4) where an oath is authorized or required by law. Based on that definition, the BIA found that a conviction under California Penal Code Sec. 118(a) categorically is a "Perjury" Aggravated Felony under INA 101(a)(43)(S).

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  • Matter of Dhanasar- filed December 27, 2016
  • The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that a "National Interest Waiver" under the Employment-Based, Second-Preference category for Lawful Permanent Residence ("Green Card"), meaning the foreign-national beneficiary is neither required to show an employer is offering him/her a job nor required to go through the Labor Certification Application ("PERM") process, if the foreign-national beneficiary demonstrates: (1) that the foreign-national beneficiary's proposed endeavor has both substantial merit and national importance; (2) that s/he is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the U.S. to waive the job offer and PERM requirements. This holding represents a reassessment from the requirements established previously in Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998), which consequently has been vacated.

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  • Matter of W-A-F-C-- filed December 16, 2016
  • The BIA held where the U.S. Department of Homeland Security seeks to re-serve a respondent to effect proper service of a notice to appear that was defective under the regulatory requirements for serving minors under the age of fourteen, a continuance should be granted for that purpose. The BIA nevertheless acknowledges in a footnote that the Ninth Circuit still requires service both on the relevant minor and on the adult to whom the relevant minor is a released if that minor is under eighteen years of age.

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  • Matter of M-S-B-- filed December 13, 2016
  • The BIA held that a time-barred application for Asylum may nonetheless be deemed frivolous, regardless of the decision by the U.S. Court of Appeals for the Third Circuit possibly holding otherwise, particularly if the deliberate misrepresentation in question concerns the date of the foreign-national applicant's entry so as to be within one year of the application's filing.

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  • Matter of L-T-P-- filed December 1, 2016
  • The BIA confirmed that an applicant for Adjustment of Status under Section 209 of the Immigration and Nationality Act ("INA") must have been either admitted as a refugee or granted asylum. The BIA further determined that Cubans who were paroled into the U.S. under INA Sec. 212(d)(5) only between April 1, 1980 and May 18, 1980 are considered to have been admitted as refugees pursuant to the Refugee Act of 1980. The BIA consequently concluded that a foreign national who was paroled into the U.S. on August 25, 1980 with an Arrival/Departure Record that was stamped "Cuban/Haitian Entrant "Status Pending)" and that indicates that the purpose of the parole was for "Cuban Asylum" is nonetheless ineligible to adjust status under INA Sec. 209 because such foreign national was neither admitted as a refugee nor granted asylum.

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  • Reyes v. Lynch- filed November 30, 2016
  • The Ninth Circuit held, in the context of applications for Asylum and for Withholding of Removal under the Immigration and Nationality Act ("INA"), that the BIA did not err in applying the BIA's construction of the "particularity" requirement, which focuses on whether the group is discrete or is, instead, amorphous, because such construction is reasonable and consistent with Ninth-Circuit precedent, which has long required that a particular social group have clear boundaries and that its characteristics have commonly accepted definitions. The Ninth Circuit found that the BIA's articulation of its "social distinction" requirement, which requires evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group, is also reasonable. Applying that framework, the Ninth Circuit determined that the BIA properly found that a proposed particular social group of "former members of Mara 18 gang" lacks particularity and social distinction and, also, that a proposed social group of "deportees from the U.S. to El Salvador" lacks particularity. The Ninth Circuit however, in the context of Withholding of Removal and Deferral of Removal under the Convention Against Torture ("CAT"), reversed the BIA's affirmation of an immigration judge's inference that killings do not arise to "torture" because the Ninth Circuit found that killings do indeed amount to "torture."

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  • Riera-Riera v. Lynch- filed November 28, 2016
  • The Ninth Circuit held that the BIA did not err in finding that a person who enters the U.S. fraudulently under the Visa Waiver Program is nonetheless limited by the restrictions of the Visa Waiver Program, including the limitations relating to contesting deportation. Consequently, the Ninth Circuit found that the BIA correctly refused to consider a foreign national's application for Adjustment of Status when such foreign national entered the U.S. under the Visa Waiver Program by using a passport that did not belong to the foreign national and that was from a country that is included under the Visa Waiver Program.

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  • Lemus v. Lynch- filed November 16, 2016
  • The Ninth Circuit held that the BIA did not err in applying retroactively to the relevant foreign national the rule announced by the U.S. Supreme Court in Holder v. Martinez Gutierrez, 132 S.Ct. 2011 (2011), that an applicant for cancellation of removal must satisfy the years-of-residence requirement on his/her own, without relying on a parent's residential history, because the relevant five-factor retroactivity analysis, particularly the factors relating to (1) reasonable anticipation of the change in law, (2) the extent of reliance upon the former rule, and (3) the federal government's strong interest in uniform application of the U.S. Immigration Laws, favored retroactive imposition. The Ninth Circuit found that the two other factors from the five-factor retroactivity analysis, namely, (4) whether the particular case is one of first impression, which favored neither party, and (5) the degree of burden that retroactivity imposes on a relevant foreign national, which was the only factor that favored the relevant foreign national, did not override the other three factors.

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  • Matter of Obeya- filed November 16, 2016
  • The BIA upon receiving the case back from the U.S. Court of Appeals for the Third Circuit affirmed an immigration judge's decision by finding that a conviction under New York Penal Law Sec. 155.25 for petit larceny, despite having a scienter requirement that is less than an intent to deprive the owner permanently of the right to his/her property, categorically is for a crime involving moral turpitude ("CIMT") because the relevant scienter requirement nonetheless involves proof of intent permanently or virtually permanently to appropriate or to deprive the owner of the use of property.

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  • Matter of Diaz-Lizarraga- filed November 16, 2016
  • The BIA reversed an immigration judge's decision by finding that a conviction under Arizona Revised Statutes Sec. 13-805(A) for shoplifting property worth less than $1,000.00 categorically is for a crime involving moral turpitude ("CIMT"). The BIA stated that a theft offense is a CIMT if it involves a taking of or exercise of control over another's property without consent and with an intent to deprive the owner of his/her property either permanently or under circumstances where the owner's property rights are substantially eroded.

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  • Matter of Tima- filed November 1, 2016
  • The BIA upon receiving the case back from the U.S. Court of Appeals for the Third Circuit, confirmed that a fraud waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act ("INA") cannot waive a relevant foreign national's removability under INA Sec. 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude ("CIMT"), even if the conviction is based on the underlying fraud.

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  • Tellez v. Lynch- filed October 24, 2016
  • The Ninth Circuit held that the reinstatement provision's "reentry" requirement properly applies to those who returned to the U.S. following an executed expedited-removal order at a U.S.-border-crossing point, as opposed to an executed removal ordered by an immigration judge in removal proceedings within the U.S. itself, and that a relevant foreign national's having been allowed to cross back into the U.S. following execution of a removal order but without specific permission to reapply for such allowance does not absolve that foreign national of the reinstatement provision.

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  • Mendez-Garcia and Rivera-Baltazar v. Lynch- filed October 20, 2016
  • The Ninth Circuit held that there is no violation of procedural Due Process by the aging out of one or more qualifying relatives regarding an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") either because of the failure of an immigration judge to adjudicate the relevant Non-LPR Cancellation application prior to the qualifying relatives' aging out or because of the unavailability of a cap number until after the qualifying relatives' aging out. The Ninth Circuit found that procedural delays, such as routine processing delays, do not deprive a foreign national of a substantive liberty or property interest unless there is a "legitimate claim of entitlement" to have their applications adjudicated within a specified time, something that does not apply in the context of Non-LPR Cancellation. The Ninth Circuit also found that foreign nationals do not have any "settled expectations" that their Non-LPR-Cancellation applications will be adjudicated prior to their qualifying relatives' aging out because foreign nationals are on notice of the eligibility-cut-off provisions of Non-LPR Cancellation. The Ninth Circuit finally found that the existence of a cap of only 4,000 Non-LPR-Cancellation grants per fiscal year is permissible and does not deprive a foreign national of any qualifying liberty interest. However, noteworthy is Ninth Circuit's acknowledgement of a "very unusual circumstance" exception to its above findings when a foreign national can show that s/he engaged in diligent efforts to have an application for relief adjudicated prior to a certain time and failed only because of delays caused by an administrative agency. In fact, in a Concurring Opinion, Ninth-Circuit Judge Watford added that the dispositive factor is the lack of diligence by the relevant foreign nationals in seeking expedited adjudication because had the relevant foreign nationals been diligent in seeking expedited adjudication then the delays would have resulted in the lack of a full and fair opportunity in their respective removal proceedings.

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  • Bonilla v. Lynch- filed October 20, 2016
  • The Ninth Circuit found that the relevant foreign national's ineffective-assistance-of-counsel claim did not permit equitable tolling of the filing deadline for his otherwise untimely motion to reopen because he had not established due diligence by claiming that he did nothing for six years to try to resolve his immigration-related matter simply based on the advice to wait a few years given to him by an attorney with whom he merely consulted once. However, the Ninth Circuit nonetheless remanded the case to the BIA because the BIA claimed it did not have authority to consider the relevant foreign national's motion to reopen sua sponte, i.e., on the BIA's own motion, based on a faulty legal analysis, namely, the assumption that the foreign national would be ineligible for relief from removal were his removal proceedings reopened because he will not return to having his Lawful Permanent Residence ("Green Card") upon such sought reopening. Because the Ninth Circuit found that the reopening of removal proceedings returns a relevant foreign national to the status s/he had prior to being ordered removed, i.e., as if the reopened removal order never existed, he Ninth Circuit held that while the BIA has sole discretion to determine whether it wants to exercise its sua-sponte authority, it cannot use faulty legal reasoning to conclude that it will not exercise such authority.

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  • Matter of Silva-Trevino- filed October 12, 2016
  • More than a year after the U.S. Attorney General in Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015), vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), based on its having created a split among the various U.S. Courts of Appeals and because of its having been called into question by the U.S. Supreme Court, the BIA clarified that (1) the categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude ("CIMT"); (2) the realistic-probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether the relevant offense is a categorical CIMT, unless of course the controlling case of the governing Federal court holds otherwise; (3) the minimum-reading approach applied by the U.S. Court of Appeals for the Fifth Circuit applies within its jurisdiction instead of the realistic-probability test and results in a conviction for indecency with a child under Texas Penal Code Sec. 21.11(a)(1) not being for a categorical CIMT; and (4) a relevant foreign national who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing under Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), of hardship or other factors to establish that an application for relief from removal warrants a favorable exercise of discretion presumably because sexual abuse of a minor does not meet the level of a violent or dangerous crime that triggers such a heightened evidentiary showing.

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  • Matter of Chairez- filed September 28, 2016
  • The BIA upon receiving the case back from the U.S. Attorney General, who returned the case to the BIA following the U.S. Supreme Court's decisions in Mathis v. U.S., 136 S.Ct. 2243 (2016), and Descamps v. U.S., 133 S.Ct. 2276 (2013), held that when a criminal statutory subsection lists mens-rea, i.e., intent, requirements in the alternative but without necessitating a prosecutor to establish at least one to the exclusion of the others or otherwise without necessitating a jury to find beyond a reasonable doubt one to the exclusion of the others, then such alternative requirements are merely means, as opposed to elements, of the crime, rendering such criminal statutory subsection indivisibly overbroad for purposes of determining immigration-related consequences.

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  • Matter of Zaragoza-Vaquero- filed September 23, 2016
  • The BIA affirmed an immigration judge's decision finding that a conviction for criminal copyright infringement in violation of 17 U.S.C. Sec. 506(a)(1)(A) (2012) and 18 U.S.C. Sec. 2319(b)(1) (2012) is a crime involving moral turpitude ("CIMT") because, although not per se a theft or fraud offense, such offense is nonetheless analogous because it involves stealing another's intellectual property and is inherently fraudulent despite not requiring an intent to defraud. The BIA added to its reasoning by finding that the criminal copyright infringement has a requirement that it be done willfully and has significant societal harm. .

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  • Budiono v. Lynch- filed September 21, 2016
  • The Ninth Circuit held that in the context of applications for Asylum and for Withholding of Removal the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement must make a threshold showing, similar to when proving the "persecutor" bar, of particularized evidence raising the inference that the "terrorist" bar could be met before placing the burden on the relevant foreign-national applicant to rebut such presumption. The Ninth Circuit found that the organization that the relevant immigration judge determined was a terrorist organization, triggering the "terrorist" bar, has not been named a terrorist organization. The Ninth Circuit concluded that the BIA had twice addressed the issue but had twice failed to make the required factual findings, thereby resulting in the Ninth Circuit's choosing not to remand the matter to the BIA for further proceedings on the issue of eligibility but instead to find conclusively that the relevant foreign national is indeed eligible for Withholding of Removal.

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  • J.E. F.M. v. Lynch- filed September 20, 2016
  • The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of jurisdiction of a statutory claim for a right to appointed counsel in removal proceedings, but the Ninth Circuit reversed the U.S. District Court's finding that it did have jurisdiction over a Constitutional claim for such appointed counsel. The Ninth Circuit found that such claims, whether statutory or Constitutional, must be raised in the context of a petition for review from a final order of removal from the BIA and not in a class-action lawsuit filed at the same time that removal proceedings are active. All three of the judges on the three-judge Ninth-Circuit panel deciding the case wrote or otherwise joined separate concurrences confronting the concerns related to minors, which the plaintiffs in the case are, and even adults in removal proceedings without a lawyer and without one being provided to them, and those three judges all concluded that the political process should be utilized, as opposed to the federal courts, to address this concern.

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  • Matter of Ibarra- filed September 15, 2016
  • The BIA reversed an immigration judge's decision by finding that a conviction under California Penal Code Sec. 211 for robbery categorically is for a "Theft" Aggravated Felony regardless of how one can be convicted for such a crime despite obtaining the property of another through that person's consent. The BIA held that an extortionate taking, i.e., one wherein the victim provides consent under duress, amounts to an unconsented taking and can therefore trigger the "Theft" Aggravated-Felony bar if the conviction results in a sentence of a year or more of imprisonment.

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  • Fuentes v. Lynch- filed September 14, 2016
  • The Ninth Circuit held that the BIA did not commit error in finding that a foreign national is ineligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation") because he did not meet the seven-years-of-continuous-residence requirement that must be met after being "admitted in any status." The Ninth Circuit found that being listed as a derivative on a parent's applications for Asylum and under the Nicaraguan Adjustment and Central American Relief Act ("NACARA") or that having received an Employment Authorization Document based on being named as a derivative beneficiary on those application does not trigger one's being "admitted in any status" for purposes of LPR Cancellation.

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  • Matter of Guzman-Polanco- filed September 9, 2016
  • The BIA reaffirmed its prior decision dated February 24, 2016 wherein the BIA stated that (1) for a State offense to qualify as a crime of violence under 18 U.S.C. Sec. 16(a) (2012), the State statute must require as an element the use, attempted use, or threatened use of violent physical force, thereby withdrawing the BIA's prior decision in Matter of Martin, 23 I&N Dec. 491 (BIA 2002) and (2) the crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, therefore is not categorically a crime of violence under 18 U.S.C. Sec. 16(a). However, the BIA clarified that whether indirect means, e.g., poisoning, amounts to a "use of force" that qualifies a criminal statute such as aggravated battery as a crime of violence under 18 U.S.C. Sec. 16(a) (2012) is determined by the law of the U.S. Court of Appeals in whose jurisdiction the relevant foreign national's removal proceedings take place.

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  • Matter of Khan- filed September 8, 2016
  • The BIA reversed the finding of an immigration judge that the immigration judge had regulatory authority to decide an application for a nonimmigrant waiver as it applied to a foreign national's petition for U-1 nonimmigrant status. The BIA held that no such jurisdiction existed within the U.S. Immigration Laws and that a contrary decision by the U.S. Court of Appeals for the Seventh Circuit is trumped by the deference owed to the BIA's interpretation of ambiguous statutory language.

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  • Matters of Chairez and Sama- filed September 6, 2016
  • The U.S. Attorney General lifted her previous stay dated October 30, 2015 and remanded the matter to the BIA to take appropriate action in light of the U.S. Supreme Court's decision dated June 23, 2016 in Mathis v. U.S., 136 S. Ct. 2243 (2016), regarding the issue of divisibility of a criminal statute for purposes of determining when the Modified Categorical Approach. The U.S. Attorney General had previously ordered on October 30, 2015 that the BIA's prior decisions regarding that issue be stayed so that she could review the issue, but she determined in her latest decision that such review is no longer required the holding of the U.S. Supreme Court in Mathis v. U.S. clarified that divisibility exists only when there are alternative elements, as opposed to means, which a jury beyond a reasonable doubt and unanimously must conclude for a criminal defendant to be found guilty.

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  • S. Singh v. Lynch- filed September 1, 2016
  • The Ninth Circuit held that the BIA's remand to an immigration judge solely for further proceedings as to voluntary departure is a sufficiently final order that triggers the thirty-day jurisdictional clock to file a petition for review with the Ninth Circuit regardless of the fact that removal proceedings technically have not completed yet.

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  • Perez-Guzman v. Lynch- filed August 31, 2016
  • The Ninth Circuit held that the regulation barring a foreign national subject to a reinstated removal order from applying for Asylum is a reasonable interpretation of the statutory scheme despite seemingly inconsistent statutory language and is therefore entitled to deference by the Ninth Circuit, thereby leaving such relevant foreign nationals eligible only for Withholding of Removal and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT").

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  • Morales de Soto v. Lynch- filed May 31, 2016 BUT amended August 30, 2016
  • The Ninth Circuit held that the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement order reinstating a foreign national's prior removal order does not merit granting a foreign national's petition for review based on a shift in enforcement priorities as established by memoranda issued by the U.S. Department of Homeland Security. Although internal policy changes may have occurred, the Ninth Circuit found that it will not remand the reinstatement order for reevaluation in light of those internal policy changes because such changes relate purely to the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement 's discretion to pursue reinstatement in the first place. The Ninth Circuit also held that the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement is not obligated to await, prior to pursuing reinstatement, adjudication of administrative appeals from one or more denials of any waivers sought by a foreign national. The Ninth Circuit amended its decision only to make it clearer that there is also a jurisdictional bar to collaterally attacking expedited-removal orders.

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  • Bhattarai v. Lynch- filed August 30, 2016
  • The Ninth Circuit found that the alleged inconsistencies found by an immigration judge relating to the relevant foreign national's seeking Asylum, Withholding of Removal, and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT") were unsupported by the record. The Ninth Circuit confronted each alleged inconsistency, concluded that each was either non-existent or procedurally defective for not providing the relevant foreign national an opportunity to explain it, and determined consequently that the BIA erred on each one when the BIA affirmed the immigration judge's adverse-credibility determination.

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  • Reyes v. Lynch- filed August 25, 2016
  • The Ninth Circuit upheld the long-standing rule that an expunged controlled-substance-related conviction is still a conviction if there was (1) a guilty or no-contest plea or some other finding of guilt and (2) some form of punishment including probation.

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  • Ortega-Lopez v. Lynch- filed August 23, 2016
  • The Ninth Circuit reversed the BIA's precedential decision in Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), by holding that a conviction under 7 U.S.C. Sec. 2156(a)(1) for sponsoring or exhibiting an animal in an animal-fighting venture, otherwise known as "cockfighting," is not a categorical Crime Involving Moral Turpitude ("CIMT"). Moreover, the Ninth Circuit found that because the criminal activity at issue was never discussed by the BIA in terms of whether the crime at issue involves an action that affects a protected class of victim the case merited remand to the BIA to consider whether that crime can be considered a CIMT at all in light of the Ninth Circuit's previous holding in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), that non-fraudulent CIMT almost always involve an intent to harm someone, the actual infliction of harm on upon someone, or an action that affects a protected class of victim.

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  • Bibiano v. Lynch- filed August 19, 2016
  • The Ninth Circuit held that while venue may rest with another U.S Court of Appeals the Ninth Circuit is not jurisdictionally barred from hearing a petition for review when unique circumstances warrant the exercise of the Ninth Circuit's inherent transfer authority, separate from the authority granted under 28 U.S.C. Sec. 1631, which is the venue-transfer statute. The Ninth Circuit found that unique circumstances disfavoring transfer of the case existed given that the case had already been fully briefed and had been pending before the Ninth Circuit for a year since completion of that briefing. Nonetheless, the Ninth Circuit clarified that when a petition for review is filed concerning the reinstatement of a removal order, proper venue rests with the jurisdiction in which the reinstatement-related proceedings took place and not the jurisdiction in which the underlying removal proceedings took place.

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  • Preap v. Johnson- filed August 4, 2016
  • The Ninth Circuit affirmed both (1) the class certification by the U.S. District Court of foreign nationals held in immigration-related custody on the basis that they are mandatory detainees for certain criminal history despite not being taken into such immigration-related custody immediately upon release from criminal custody and (2) the determination by the U.S. District Court that such foreign nationals qualify for mandatory detention due to certain criminal history only if their immigration-related custody commences immediately upon completion of their criminal custody.

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  • Matter of Fatahi- filed August 3, 2016
  • The BIA held that the analysis of a foreign national's risk of threat to the community in deciding whether to grant that foreign national on bond necessarily includes not only direct but also circumstantial evidence of dangerousness, including whether the facts and circumstances present national-security considerations.

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  • Brown v. Lynch- filed August 2, 2016
  • The Ninth Circuit held that the U.S. District Court did not err in determining that a conclusion by an officer of the former Immigration and Naturalization Service ("INS") not to accept for filing a naturalization application of an adult foreign national on the mistaken belief that such foreign national was already a U.S. citizen simply because his parents were U.S. citizens did not rise to a level of deliberate indifference, which must be proven to render valid a Constitutional procedural-Due-Process claim. The Ninth Circuit found that such a claim could also be rendered valid by a showing of arbitrary and intentional obstruction by that officer of the former INS but that the relevant foreign national did not attempt to make such a showing. The Ninth Circuit affirmed the finding of the U.S. District Court that the relevant foreign national (1) had not established knowledge on the part of the former INS that its actions or omissions would lead to ineligibility for derivative U.S. citizenship for that foreign national and (2) had not shown that former-INS policymakers were aware of a risk their policies had of rendering minor children of naturalization applicants ineligible to derive U.S. citizenship due to their aging out prior to completion of the naturalization process of their parents prior to the minor children's eighteenth birthdays.

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  • Salim v. Lynch- filed August 1, 2016
  • The Ninth Circuit held that the BIA abuses its discretion in denying an otherwise untimely motion to reopen based on changed country conditions so that a foreign national may apply for Asylum if such motion to reopen establishes (1) a change in conditions in the relevant country between when the foreign national's removal proceedings were last before an immigration judge and when the motion to reopen was filed and (2) a reasonable likelihood that the foreign national if returned to the relevant country faces a one-in-ten chance of persecution based on a protected ground. The Ninth Circuit found that the relevant foreign national's conversion from Buddhism to Christianity in between when his removal proceedings were last before an immigration judge and when his motion to reopen was filed combined with the increase in harmful activity in the relevant foreign national's native Indonesia, in which Christians suffer disfavored status, merited reopening of that foreign national's removal proceedings.

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  • Arellano Hernandez v. Lynch- filed August 1, 2016
  • The Ninth Circuit held that a conviction under California Penal Code Sec. 422 for criminal threats, regardless of whether it is charged merely as an attempt offense, constitutes a categorical a crime of violence under 18 U.S.C. Sec. 16(a) and, if a sentence of a year or more is imposed, renders one removable for "Crime-of-Violence" Aggravated Felony and consequently ineligible for any forms of relief that are barred to foreign nationals convicted of an Aggravated Felony.

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  • Matter of Richmond- filed July 28, 2016
  • The BIA held that the analysis of whether someone is inadmissible to the U.S. for making a false claim to U.S. citizenship under Section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act ("INA") requires (1) that the relevant foreign national have a subjective intent to obtain a purpose or benefit under the INA or any other federal or State law, with such determination's being an issue of fact to be decided based on direct or circumstantial evidence, and (2) that the purpose or benefit intended to be obtained by the false claim to U.S. citizenship be one that is governed by the INA or any other federal or State law, with such determination's being determined objectively based on whether U.S. citizenship actually affects or matters to the purpose or benefit sought. The BIA found that a "benefit" is something that is identifiable and enumerated in the INA or any other federal or State law while a "purpose" includes avoiding removal proceedings or any other negative legal consequences associated with one's immigration-related status or lack thereof.

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  • Barrientos v. Lynch- filed July 19, 2016
  • The Ninth Circuit held that, despite procedural rules' not requiring simultaneous filing, it nonetheless has discretion not to consider or to give less weight to evidence submitted after the filing of a detained foreign national's petition for review to prove that such petition for review was indeed timely and therefore falls within the Ninth Circuit's jurisdiction.

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  • Andrade-Garcia v. Lynch- filed April 29, 2016 BUT amended July 7, 2016
  • The Ninth Circuit held that an immigration judge's determination in a reasonable-fear proceeding, i.e., a hearing at or after which an immigration judge determines whether a relevant foreign national was properly denied an opportunity to apply before an immigration judge for Withholding of Removal and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), is reviewed not for facial legitimacy and bona fides but rather for substantial evidence. Nonetheless, using that standard, the Ninth Circuit still found that the relevant foreign national had not been incorrectly denied an opportunity to apply before the relevant immigration judge for Withholding of Removal and/or Deferral under CAT because the relevant foreign national had not shown both that the police in the country at issue were aware of the very gang-extortion activities that the relevant foreign national claimed and consequently that those police therefore breached their legal responsibility to stop it.

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  • Silva-Pereira v. Lynch- filed July 7, 2016
  • The Ninth Circuit held that the BIA did not err in finding that a foreign national was barred from Asylum and Withholding of Removal because of the Serious-Nonpolitical-Crime Bar given that there was probable cause to believe that the relevant foreign national was complicit in the murders in Guatemala of three Salvadoran representatives to the Central American Parliament. The Ninth Circuit found that the BIA was correct in finding the relevant foreign national not to be credible based on the unreasonable explanation for his failing to report his violent interactions for police in his Asylum application. Finally, the Ninth Circuit concluded that the relevant foreign national did not merit Deferral of Removal under the Convention Against Torture ("Deferral under CAT") because the country to which he would be removed, Nicaragua, was not the same in which he claimed he would be tortured, El Salvador.

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  • Flores v. Lynch- filed July 6, 2016
  • The Ninth Circuit affirmed a part of the U.S. District Court's order granting in a class-action lawsuit the foreign-national class's motion to enforce a settlement agreement from 1997 setting a nationwide policy for the detention, release, and treatment of minors detained in immigration-related custody. The Ninth Circuit held that that settlement agreement, which creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards, unambiguously applies both to minors who are accompanied by their parents and to minors who are unaccompanied by their parents. However, the Ninth Circuit concluded that the U.S. District Court erred in applying the settlement agreement to the minors' parents. Finally, the Ninth Circuit agreed with the U.S. District Court's refusal to permit the government to amend the settlement agreement.

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  • Matter of M-J-K-- filed June 27, 2016
  • The BIA held that in cases involving issues of mental competency, an Immigration Judge has the discretion to select and to implement appropriate safeguards, which the BIA reviews de novo. .

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  • Matter of Gomez-Beltran- filed June 27, 2016
  • The BIA held that any oral misrepresentation under oath with the subjective intent of obtaining one or more immigration-related benefits, regardless of the misrepresentation's immateriality, render the person unable to prove good moral character if such misrepresentation occurred within the relevant good-moral-character period.

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  • Mathis v. U.S.- filed June 23, 2016
  • The U.S. Supreme Court held, once again and consistent with its prior decision in Descamps v. U.S., 133 S. Ct. 2276 (2013), that analysis of prior State convictions for determining relevant federal consequences requires a focus on the underlying State crimes' elements, i.e., the constituent parts of the underlying crimes' legal definitions, as opposed to the underlying State crimes' means, i.e., the facts relating to how the crimes were actually committed. The U.S. Supreme Court found that an elements-focused analysis is appropriate because a means-focused analysis would result in (1) review of factors that the U.S. Congress specifically left out of the scope of such review, (2) judges' deciding facts that only a jury is permitted to find, and (3) reliance on factors that were never proven in State criminal court because they were unnecessary for the conviction in the first place. Therefore, the U.S. Supreme Court concluded that when a State criminal statute is overbroad, meaning that more activity will violate its terms than activity that would violate the federal or generic definition of that same crime, then a prior State conviction based on that State criminal statute (a) cannot be used to determine relevant federal consequences and (b) cannot lead to the Modified Categorical Approach, i.e., review of the particular record relating to the relevant prior State conviction. However, the U.S. Supreme Court did note that review of the record of conviction in combination with the text of the State criminal statute underlying the relevant prior State conviction is permitted but only to the extent of determining whether the alternative factors at issue relate to elements or means, and the U.S. Supreme Court concluded that if such combined review does not lead to a certain determination one way or the other, something that would be rare, then the uncertainty should lead to the conclusion that the prior State conviction does not trigger relevant federal consequences.

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  • U.S. v. Texas- filed June 23, 2016
  • The U.S. Supreme Court held that because it is tied four to four, meaning four Justices, i.e., Roberts, Kennedy, Thomas, and Alito, are on one side while the other four Justices, i.e., Ginsburg, Breyer, Sotomayor, and Kagan, are on the other side, a majority decision could not be reached, thereby leaving in place the decision by the lower court, which is the U.S. Court of Appeals for the Fifth Circuit, which sustained the granting of a preliminary injunction issued by the U.S. District Court for the Southern District of Texas blocking from going into effect the Executive Actions issued on November 20, 2014 relating to implementation of Deferred Action for Parental Accountability and of the Expansion of Deferred Action for Childhood Arrivals.

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  • Cardenas v. U.S.- filed June 21, 2016
  • The Ninth Circuit affirmed the U.S. District Court's order dismissing for failure to state a claim a U.S. citizen's challenge of the denial of her foreign-national husband's immigrant-visa application. The Ninth Circuit found that the U.S. Department of State's consular officer who denied the relevant immigrant-visa application met the required "facially legitimate and bona fide reason" standard when he cited a valid statute of inadmissibility and gave a bona-fide factual reason that provided a "factual connection" to the concluded inadmissibility ground, namely, the belief that the relevant foreign national was a gang associate with ties to a particular gang. The Ninth Circuit held that the standard it used applies to judicial review of a denial that implicates a Constitutional right and was specifically taken from Justice Anthony Kennedy's Concurring Opinion in Kerry v. Din, 135 S.Ct. 2128 (2015).

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  • Matter of M-H-Z-- filed June 9, 2016
  • The BIA held that the Material-Support Bar, relating to inadmissibility pursuant to Section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act ("INA") for foreign nationals who provided material support to a terrorist organization found, does not include an exception, whether implied or otherwise, for foreign nationals who provided such material support under duress. The BIA found that it does not have authority to grant a waiver under INA Sec. 212(d)(3)(B) of a Material-Support Bar because such authority rests with the U.S. Department of Homeland Security and the U.S. Department of State.

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  • Erler v. Erler- filed June 8, 2016
  • The Ninth Circuit vacated the U.S. District Court's order granting summary judgment for a U.S.-citizen ex-spouse of a foreign national, who following the couple's divorce sought payment from the U.S.-citizen spouse pursuant to that U.S.-citizen spouse's promise in an affidavit of support to afford the foreign national with an income of least 125 percent of the Federal Poverty Guidelines. The Ninth Circuit held that when a relevant foreign national separates from a household, the sponsor must provide that foreign national with enough income to render that foreign national with at least 125 percent of the Federal Poverty Guidelines for a household size of one. The Ninth Circuit clarified that such analysis is limited to a household size of one and not to any other members of the foreign national's new household, meaning both that the household-size analysis does not include any additional persons for whom the sponsor did not provide an affidavit of support and that the 125-percent-income analysis does not include income from any other members of the foreign national's new household.

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  • Arredondo v. Lynch- filed May 27, 2016
  • The Ninth Circuit held that a foreign national's claim of a car's mechanical failure alone is insufficient to establish exceptional circumstances excusing that foreign national's failure to appear at a hearing before an immigration judge in that foreign national's removal proceedings. The Ninth Circuit found that the BIA erred in disregarding as inherently unbelievable or incredible the relevant foreign national's claim of her car's mechanical failure but nonetheless concluded that even if accepted as true such claim still does not establish the required exceptional circumstances.

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  • Matter of H. Estrada- filed May 19, 2016
  • The BIA held that the analysis as to whether a conviction for a violent offense amounts to a "Crime of Domestic Violence" under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA") is not limited to the Categorical Approach but may instead include a circumstance-specific inquiry, which permits recourse to all probative evidence to determine the relationship between the victim and the offender. The BIA found that the circumstance-specific inquiry includes all documents within the relevant record of conviction as well as other probative evidence such as police reports assuming such evidence is reliable. It is important to note that this determination by the BIA conflicts with a prior precedent issued by the Ninth Circuit. Separately, the BIA further held, specifically concerning an issue related to sentencing for a criminal conviction, that a subsequent clarification order issued in light of a facial discrepancy on a template sentencing order by the same judge who sentenced the relevant foreign national is acceptable to prove what the actual sentence was, namely, whether the relevant foreign national was sentenced solely to probation or instead to a probated imprisonment term.

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  • Torres v. Lynch- filed May 19, 2016
  • The U.S. Supreme Court held that because federal criminal statutes' reliance on the underlying criminalized acts' having occurred in interstate commerce is merely a jurisdictional, as opposed to, substantive element of the crime, a State or foreign criminal statute that mirrors all of the substantive elements, but not necessarily that jurisdictional element, of a federal crime determined to be an Aggravated Felony also meets the definition of Aggravated Felony despite not containing that jurisdictional element.

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  • Yang v. Lynch- filed March 19, 2016
  • The Ninth Circuit found that the BIA erred in making an adverse-credibility finding regarding a foreign national's motion to reopen because (1) the BIA is not permitted in the context of a motion to reopen to make factual findings and must instead credit evidence supporting a motion to reopen unless that evidence is inherently unbelievable and (2) an adverse-credibility finding rendered previously against a foreign national does not automatically lead to an adverse-credibility finding against that same foreign national regarding a new claim for Asylum. The Ninth Circuit held that the maxim falsus in uno, falsus in omnibus--"false in one thing, false in everything"--cannot be used by the BIA to render a foreign national's affidavit inherently unbelievable in the context of a motion to reopen because the maxim is discretionary, not mandatory, and because the BIA in such a context is an appellate body limited to reviewing an immigration judge's factual findings for clear error, as opposed to making factual determinations in the first instance.

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  • Matter of Gonzalez Romo- filed May 19, 2016
  • The BIA held that within the jurisdiction of the Ninth Circuit a conviction for solicitation to possess for sale a controlled substance, namely marijuana, triggers the Crime-Involving-Moral-Turpitude ground for inadmissibility under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA") despite that section's only specifically including inchoate, i.e., uncompleted, offenses relating to attempt and conspiracy as opposed to solicitation. The BIA found that the omission of solicitation offenses in combination with the inclusion of attempt and conspiracy offenses should not be interpreted as to mean that solicitation offenses falls outside the purview of INA Sec. 212(a)(2)(A)(i)(I).

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  • Del Cid Marroquin v. Lynch- filed May 18, 2016
  • The Ninth Circuit held that a foreign national's presence outside of the U.S. does not render moot, i.e., no longer having practical value, his/her petition for review before the Ninth Circuit regarding an application for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") because the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement has a policy of facilitating the return of some individuals who have been removed from the U.S. but whose petitions for review have been granted by the Ninth Circuit. However, the Ninth Circuit found that the BIA was correct in determining that the relevant foreign national would not be tortured by the El Salvadoran government or with the El Salvadoran government's acquiescence because El Salvadoran law prohibits extrajudicial killings and violence and because substantial evidence supports the finding that the El Salvadoran government enforces those applicable laws, albeit imperfectly, against both gang members and rouge police officers.

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  • Perez-Arceo v. Lynch- filed May 12, 2016
  • The Ninth Circuit held that the BIA erred regarding an alien-smuggling allegation charged against a foreign national in removal proceedings both (1) in failing to address an immigration judge's seemingly inconsistent credibility findings in part because of that immigration judge's not asking the relevant foreign national about apparent differences between what he testified and what he was alleged to have said previously when apprehended at the border and (2) in failing to make an explicit finding as required that the relevant foreign national engaged in "an affirmative act of help, assistance, or encouragement" of smuggling.

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  • Monroy v. Lynch- filed May 11, 2016
  • The Ninth Circuit held that it lacks jurisdiction to review a denial based solely on discretion of an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents under Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA Cancellation").

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  • Matter of Garza-Olivares- filed May 5, 2016
  • The BIA held that the Failure-to-Appear Aggravated-Felony ground of deportability under Section 101(a)(43)(T) of the Immigration and Nationality Act ("INA") requires a two-step analysis: (1) whether an offense relates to a relevant foreign national's failure to appear before a court first must be analyzed under the Categorical Approach, but (2) whether such failure to appear was (a) pursuant to a court order (b) relating to a felony charge (c) for which a maximum possible sentence of at least two years' imprisonment must be analyzed under the Modified Categorical Approach.

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  • Teng v. District Director- filed May 4, 2016
  • The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of subject-matter jurisdiction the petition filed by the relevant foreign national to have her date of birth on her naturalization certificate amended because the Ninth Circuit found that federal courts lack authority to modify certificates of naturalization that were issued by an administrative agency.

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  • Collins v. USCIS- filed May 4, 2016
  • The Ninth Circuit reversed the U.S. District Court's dismissal for lack of subject-matter jurisdiction the petition filed by the relevant foreign national to have his date of birth on his naturalization certificate amended because the Ninth Circuit found that federal courts do have authority to modify certificates of naturalization that were issued by a federal court before October 1, 1991, which is the effective date of the Immigration Act of 1990 that divested the federal courts of the authority to amend naturalization certificates issued by a federal court but only prospectively.

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  • Hussein v. Barrett- filed April 29, 2016
  • The Ninth Circuit reversed the U.S. District Court's denial of the relevant foreign national'sde-novo naturalization application allegedly based on the relevant foreign national's failure to establish the requisite good moral character due to his having previously declared under oath in a State-court child-custody-related proceeding and not under oath but to law-enforcement officials that he was married to his children's mother when he legally was not. Using a clear-error standard of review, the Ninth Circuit found that a lack-of-good-moral-character finding based not on the enumerated grounds, i.e., automatic bars to such a finding, but rather on the catch-all provision found at Section 101(f) of the Immigration and Nationality Act ("INA") cannot be due to a per-se rule but instead must be rendered only after balancing both favorable and unfavorable factors relating to the relevant naturalization applicant's moral character. The Ninth Circuit remanded the case to the U.S. District Court both to determine the materiality of the relevant foreign national's allegedly perjurious statement under oath in his declaration in the State-court child-custody-related proceeding and consequently to whether such statement under oath amounted to perjury and to consider all relevant factors in making a decision on the relevant foreign national's moral character.

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  • Arizona Dream Act Coalition v. Brewer- filed April 5, 2016
  • The Ninth Circuit reaffirmed both the U.S. District Court's grant of summary judgment for a group of a foreign nationals who had been granted Deferred Action for Childhood Arrivals ("DACA") and the U.S. District Court's issuance of a permanent injunction enjoining the State of Arizona's attempt to deny driver's licenses to DACA recipients based on the category of such recipients' Employment Authorization Documents that they received as a benefit of having been granted DACA. The Ninth Circuit found that such attempt by the State of Arizona is preempted by the Immigration and Nationality Act ("INA"), which gives exclusive authority to the federal government in deciding whether a foreign national's presence is authorized by federal law.

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  • Valenzuela Gallardo v. Lynch- filed March 31, 2016
  • The Ninth Circuit held that the BIA's attempt to interpret the Obstruction-of-Justice Aggravated-Felony ground of deportability under Section 101(a)(43)(S) of the Immigration and Nationality Act ("INA") differently from it had in the past so that it no longer requires a nexus to an ongoing investigation of proceeding raises grave Constitutional doubts based on vagueness of such deportability ground. The Ninth Circuit found that a conviction under California Penal Code Sec. 32, which outlaws accessory to a felony, does not require a nexus to an ongoing investigation or proceeding and therefore categorically is overbroad under the BIA's prior interpretation of INA Sec. 101(a)(43)(S).

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  • Matter of Ruzku- filed March 29, 2016
  • The BIA held that direct sibling-to-sibling DNA test results reflecting a 99.5-percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship.

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  • Linares-Gonzalez v. Lynch- filed March 21, 2016
  • The Ninth Circuit held that California Penal Code Secs. 530.5(a) and (d)(2), which outlaw identity theft, are not categorically Crimes Involving Moral Turpitude ("CIMTs") because (1) they are not categorically fraud-related crimes and (2) they do not categorically necessarily involve vile, base, or depraved conduct. The Ninth Circuit found that the BIA's determination that a foreign national is ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") because of having one or more convictions under California Penal Code Secs. 530.5(a) and (d)(2) during the relevant good-moral-character period was erroneous because such determination was premised on a faulty Categorical-Approach analysis.

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  • Ramirez-Munoz v. Lynch- filed March 21, 2016
  • The Ninth Circuit held that because "imputed wealthy Americans" do not comprise a cognizable particular social group based on such group's lacking particularity or a discrete class of persons recognized by Mexican society as a particular social group, an otherwise number and time barred motion to reopen seeking to have an Asylum claim heard on such basis was correctly denied by the BIA.

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  • Matter of Adeniye- filed March 17, 2016
  • The BIA held that an "offense relating to a failure to appear by a defendant for service of sentence" is an Aggravated Felony under Section 101(a)(43)(Q) of the Immigration and Nationality Act ("INA") if the underlying offense was "punishable by" imprisonment for a term of five years or more, regardless of the penalty actually ordered or imposed.

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  • Rosales Rivera v. Lynch- filed March 10, 2016
  • The Ninth Circuit held that California Penal Code Sec. 118(a), which outlaws both oral and written perjury, is not categorically a Crime Involving Moral Turpitude ("CIMT") but is divisible and therefore subject to the Modified Categorical Approach. The Ninth Circuit found that if one is convicted for written perjury, as opposed to oral perjury, under California Penal Code Sec. 118(a), then the conviction is not for a CIMT because the violation need not occur in a judicial proceeding and need not be following an oral oath with its requisite solemnity.

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  • Matter of Villalobos- filed March 10, 2016
  • The BIA held that although the U.S. Department of Homeland Security has exclusive jurisdiction over applications for Adjustment of Status under the legalization provisions of Section 245A of the Immigration and Nationality Act ("INA"), immigration judges and the BIA have jurisdiction to determine whether a foreign national was eligible for a previous adjustment under INA Sec. 245A(b)(1) for purposes of assessing that foreign national's removability and current eligibility for relief from removal. Furthermore, a foreign national seeking to acquire Lawful Permanent Residence ("Green Card") through the legalization provisions of INA Sec. 245A must establish admissibility, both at the time of the initial application for temporary-resident status and again when applying for adjustment to permanent-resident status. Finally, an foreign national who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under INA Sec. 245A(b)(1) was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former INA Sec. 212(c).

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  • U.S. v. Zhou- filed March 7, 2016
  • The Ninth Circuit affirmed the U.S. District Court's judgment on the pleadings to denaturalize a foreign national who had been erroneously naturalized as a U.S. citizen when he had committed a robbery within the five years immediately preceding the filing of his relevant naturalization application despite having only been convicted after having already naturalized. The Ninth Circuit found that there were no extenuating circumstances that could otherwise overcome a finding of a lack of good moral character during the required five years immediately preceding the filing of the relevant naturalization application because such requirement of good moral character contains a "catch-all" provision under 8 C.F.R. Sec. 316.10(b)(3)(iii) and because the Ninth Circuit was bound by the criminal-court conviction.

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  • Bianka M. v. Superior Court- filed March 2, 2016
  • The California Court of Appeal for the Second District, Division 3 held that to the extent a juvenile seeks from a California Superior Court a custody order and/or findings required under the Special Immigration Juvenile Status ("SIJS") program based on one or more that juvenile's parents' abuse, neglect, or abandonment and to the extent that the identity and whereabouts of one or both of the actual or alleged parents are known, not only must all pertinent facts relating to parentage, abuse, neglect, or abandonment be included in a relevant petition but also the parent(s) at issue must be named as a party and must be served a copy of the relevant summons and that petition. Aware that personal jurisdiction over a parent who has never been in the U.S. may be difficult to establish, the California Court of Appeal for the Second District, Division 3 found that a juvenile may attempt instead to obtain the sought relief by entering into a stipulated judgment with that parent.

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  • Almanza-Arenas v. Lynch- filed December 28, 2015 BUT amended February 29, 2016
  • The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach. In a Concurring Opinion, Ninth-Circuit Judge Watford added that a conviction that cannot be proven to render a foreign national removable because of its overbreadth necessarily cannot render such foreign national ineligible for an application for relief from removal simply because it cannot be established as to whether that foreign national's actual activity for which s/he was convicted falls inside of or outside of criminal activity proscribed by the Immigration and Nationality Act ("INA").

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  • Pena v. Lynch- filed September 28, 2015 BUT amended February 18, 2016
  • The Ninth Circuit held that because of a statutory restriction on its authority it does not have jurisdiction to review the affirmation by an immigration judge of a negative credible-fear finding made by an Asylum officer. However, the Ninth Circuit found that it nonetheless retains jurisdiction to review such findings in so far as such review is sought regarding colorable Constitutional claims, such as a violation of procedural Due Process, if any are made.

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  • Matter of Mendoza Osorio- filed February 9, 2016
  • The BIA held that the offense of endangering the welfare of a child in violation of Section 260.10(1) of the New York Penal Law, which is knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a "crime of child abuse, child neglect, or child abandonment" under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA").

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  • Villavicencio-Rojas v. Lynch- filed February 2, 2016
  • The Ninth Circuit held that two separate possession-of-a-controlled-substance convictions relating to two different controlled substances will nonetheless be treated as one offense regarding first-offender treatment under the Federal First Offender Act ("FFOA"), thereby rendering without negative immigration-related consequences if FFOA applies, if the two convictions arise out of a single event, composed a single criminal case, and triggered a single, undivided sentence.

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  • Valencia v. Lynch- filed February 2, 2016
  • The Ninth Circuit held that the BIA did not err in interpreting the Immigration and Nationality Act Sec. 245(i) in a manner that does not render a foreign national eligible for adjustment of status to that of Lawful Permanent Residence ("Green Card") under its provisions if such foreign national was substituted in as a beneficiary of a Labor Certification Application after the relevant sunset date even if the Labor Certification Application itself was filed for a different beneficiary on or before that sunset date.

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  • Ramirez v. Lynch- filed January 20, 2016
  • The Ninth Circuit held that the statutory language of California Penal Code Sec. 273a(a), which defines and outlaws child abuse, is not only indivisible but also broader than the generic federal definition of "Crime of Violence" found at 18 U.S.C. Sec. 16. Therefore, the Ninth Circuit found that a foreign national convicted of a felony under California Penal Code Sec. 273a(a) is not removable for a "Crime-of-Violence" Aggravated Felony.

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  • Rizo v. Lynch- filed January 14, 2016
  • The Ninth Circuit held that it retains jurisdiction over petitions for review from an order from the BIA even if that order remands a foreign national's removal proceedings to the relevant immigration judge for proceedings related to voluntary departure but only if all other substantive matters judicially reviewable by the Ninth Circuit have otherwise been finalized. The Ninth Circuit reasoned that it does not have jurisdiction to review a discretionary denial of voluntary departure and therefore does not need to await resolution of remanded proceedings relating only to voluntary departure to take jurisdiction over a petition for review. The Ninth Circuit found though that it did not have jurisdiction over a foreign national's petition for review when that foreign national did not exhaust administratively his Asylum claim and when the manner in which the relevant immigration judge conducted that foreign national's removal proceedings did not deprive that foreign national of Due Process.

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  • People v. Araujo- filed January 7, 2016
  • The California Court of Appeal for the Second District, Division 6 held that a foreign national does not have a legitimate claim under California Penal Code Sec. 1016.5 to have a criminal conviction with negative immigration-related consequences vacated when the record of conviction establishes that she had been read the plea-form warnings, which include the required immigration-related advisement under California Penal Code Sec. 1016.5, by an interpreter in her native language; had verbally answered affirmatively when asked whether the entire plea form had been read to her; and initialed the immigration-related advisement on the plea form. That holding was not altered simply because the foreign national was not given the immigration-related advisement warning verbally on the record; the plea form had not been signed by the interpreter; and the immigration-related advisement on the plea form contained superfluous immigration-related warnings that are not required by California Penal Code Sec. 1016.5. Furthermore, the California Court of Appeal for the Second District, Division 6 found that the foreign national's lengthy criminal history, immigration-related custody hold at the time of her underlying criminal proceedings, and brief departure from the U.S. to avoid federal prosecution for illegal reentry made any argument relating to prejudice disingenuous.

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  • Correo-Ruiz v. Lynch- filed December 30, 2015
  • The Ninth Circuit held that foreign nationals could prove detrimental reliance in the context of a five-factor retroactivity analysis pertaining to their applications to adjust status to Lawful Permanent Residence ("Green Card") despite inadmissibility under Immigration and Nationality Act Sec. 212(a)(9)(C) if foreign nationals incurred expenses while seeking to adjust status during the 21-month period between when the Ninth Circuit issued a precedent decision finding them eligible for such benefit despite their having unlawfully reentered the U.S. following their departure after having accrued a statutorily significant period of unlawful presence and when the BIA issued its own precedent decision finding them ineligible for such benefit because of their unlawfully reentering the U.S. following their departure after having accrued a statutorily significant period of unlawful presence.

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  • U.S. v. Cisneros-Rodriguez- filed December 23, 2015
  • The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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  • Jang v. Lynch- filed December 22, 2015
  • The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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  • Viloria v. Lynch- filed December 21, 2015
  • The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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  • People v. Asghedom- filed December 18, 2015
  • The California Court of Appeal for the Sixth District found that a foreign national can establish the requisite prejudice for a motion to vacate under California Penal Code Sec. 1016.5 regarding a criminal conviction that has negative immigration-related consequences by establishing that it was reasonably probable that the foreign national would not have pleaded guilty or no contest if properly advised. The California Court of Appeal for the Sixth District held that such "reasonably probable" standard may be met by addressing the factors that are relevant to such issue, including but not limited to the presence or absence of other plea offers, the seriousness of the charges in relation to the plea bargain, the foreign national's criminal record, the foreign national's priorities in plea bargaining, the foreign national's aversion to immigration-related consequences, and whether the foreign national had reason to believe that the charges would allow an immigration-neutral bargain that a California Superior Court would accept.

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  • Mondaca-Vega v. Lynch- filed December 15, 2015
  • The Ninth Circuit held en banc that where the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement seeks to deport an alleged foreign national who presents credible evidence of U.S. citizenship, such claim to U.S. citizenship may be rebutted by "clear, unequivocal, and convincing" evidence, identical to the traditional civil intermediate burden of proof. The Ninth Circuit also held that a U.S. District Court's findings of fact in an alienage-determination case are reviewed on appeal for "clear error" because such determination if based on the location of the relevant foreign national's birth is a factual finding.

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  • Matter of Calvillo Garcia- filed December 9, 2015
  • The BIA held that a term of confinement in a substance-abuse-treatment facility imposed as a condition of probation pursuant to article 42.12, Section 14(a) of the Texas Code of Criminal Procedure constitutes a "term of confinement" under Section 101(a)(48)(B) of the Immigration and Nationality Act ("INA") for purposes of determining if an offense is a "Crime-of-Violence" Aggravated Felony under INA Sec. 101(a)(43)(F).

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  • Matter of Castro-Lopez- filed December 2, 2015
  • The BIA held that ten years of continuous physical presence required by 8 C.F.R. Sec. 1240.66(c)(2) for relevant foreign nationals seeking Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents under Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA Cancellation") should be measured from a relevant foreign national's most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. Sec. 1240.66(c)(1).

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  • Flores-Rios v. Lynch- filed December 1, 2015
  • The Ninth Circuit found that whether someone qualifies as being a member of a particular social group for purposes of Asylum and Withholding of Removal, the analysis requires looking to whether that group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. The Ninth Circuit added that the third criterion, i.e., being socially distinct within the society in question, should be analyzed through the lens of perception as a group by society as opposed to the Ninth Circuit's prior precedent's focusing instead on perception of the persecutor. The Ninth Circuit held that "the family" nonetheless remains under such a revised analysis "the quintessential particular social group."

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  • Matter of Y-S-L-C-- filed November 23, 2015
  • The BIA held that (1) the requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inappropriate regarding a foreign-national respondent's testimony regarding events of which he or she has personal knowledge and (2) conduct by an immigration judge that can be perceived as bullying or hostile is never proper, particularly in cases involving minor respondents, and may result in remand to a different immigration judge.

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  • U.S. v. Garcia-Jimenez- filed November 19, 2015
  • The Ninth Circuit held that a foreign national who is being sentenced in relation to being prosecuted for illegal reentry into the U.S. cannot have such sentence increased based on a finding of having been previously convicted of a Crime of Violence if the statutory language of the very conviction that is being found to be a Crime of Violence does not match or is not narrower than the federal generic definition of that crime.

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  • Mancilla-Delafuente v. Lynch- filed November 2, 2015
  • The Ninth Circuit held that a conviction under a statute that contains an element of "intent to defraud" as necessary to be convicted for any activity proscribed by that statute is for a Crime Involving Moral Turpitude and, furthermore, renders a foreign national ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation"), even though the statutory petty-offense exception may otherwise apply, if the maximum possible sentence includes at least a year of imprisonment.

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  • Matter of J-S-S-- filed November 2, 2015
  • The BIA held that (1) neither party bears a formal burden of proof in removal proceedings to establish whether or not a foreign-national respondent is mentally competent, but where signs of incompetency are identified, the relevant immigration judge should determine if a preponderance of the evidence establishes that that foreign-national respondent is competent and (2) an immigration judge's finding of competency is a finding of fact that the BIA reviews to determine if it is clearly erroneous.

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  • Rodriguez v. Robbins- filed October 28, 2015
  • The Ninth Circuit affirmed in part the U.S. District Court's permanent injunction requiring that any member of the previously certified class, composed of (1) foreign nationals purportedly held in mandatory immigration-related custody due to perceived criminal activity, (2) foreign nationals purportedly held in mandatory immigration-related custody due to being perceived as Arriving Aliens, and (3) foreign nationals purportedly held in discretionary immigration-related custody due to being perceived as a threat to the community or a flight risk, to be provided automatically a bond hearing once her/his immigration-related detention reaches six months, that such bond hearings be before an immigration judge who should maintain a contemporaneous record of such bond hearings and should consider alternatives to detention, and that at such bond hearings the need for continued detention based on threat to the community or flight risk be established only by clear and convincing evidence. The Ninth Circuit held that bond hearings should be provided periodically at six-month intervals for class members detained for more than twelve months, but the Ninth Circuit declined to require that immigration judges during such bond hearings consider likelihood of removal in the future or length of prospective detention in the future. The Ninth Circuit declined to extend class certification to foreign nationals purportedly held in discretionary immigration-related custody due to being perceived as having administratively and judicially final orders of removal and are awaiting actual physical removal but who have received an administrative or judicial stay of removal because the Ninth Circuit found that such a paradoxical sub-class does not exist.

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  • Matter of Garcia-Ramirez- filed October 28, 2015
  • The BIA held again that (1) where a foreign national has the right to a hearing before an immigration judge, a voluntary departure or return does not break that relevant foreign national's continuous physical presence for purposes of Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") in the absence of evidence that the relevant foreign national was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border and (2) proof that a foreign national who had the right to a hearing before an immigration judge was fingerprinted and/or photographed before being allowed depart the U.S. voluntarily is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.

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  • Matter of Castrejon-Colino- filed October 28, 2015
  • The BIA held that (1) where a foreign national has the right to a hearing before an immigration judge, a voluntary departure or return does not break that relevant foreign national's continuous physical presence for purposes of Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") in the absence of evidence that the relevant foreign national was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border and (2) proof that a foreign national who had the right to a hearing before an immigration judge was fingerprinted and/or photographed before being allowed depart the U.S. voluntarily is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.

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  • Dimaya v. Lynch- filed October 19, 2015
  • The Ninth Circuit held that a California conviction for residential burglary under California Penal Code Sec. 459 with a sentence of at least a year of imprisonment cannot render a foreign national removable for a "Crime-of-Violence" Aggravated Felony because of the unconstitutional vagueness of the particular definition of "Crime of Violence" found at 18 U.S.C. Sec. 16(b), on which the Ninth Circuit had erroneously relied in previously finding that a conviction for residential burglary under California Penal Code Sec. 459 with a sentence of at least a year of imprisonment categorically was for a "Crime-of-Violence" Aggravated Felony. The Ninth Circuit found that a state conviction cannot render one removable for being a "Crime-of-Violence" Aggravated Felony if such rendering is based on that state conviction falling within the unconstitutionally vague definition of "Crime of Violence" found at 18 U.S.C. Sec. 16(b).

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  • Moscoso-Castellanos v. Lynch- filed October 13, 2015
  • The Ninth Circuit held that for purposes of the "Stop-Time Rule" for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") the date of service of a Notice to Appear triggers a stopping of the clock regarding the requisite period of continuous presence even if that Notice to Appear does not specify a date and location of a removal hearing. Such holding overturned the Ninth Circuit's prior published precedent, which the Ninth Circuit found was superseded by the BIA's intervening published decision to which the Ninth Circuit deferred because it was a reasonable interpretation of an otherwise ambiguous statutory subsection.

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  • U.S. v. Gonzalez-Flores- filed June 8, 2015 BUT amended October 13, 2015
  • The Ninth Circuit affirmed the lower U.S. District Court's denial of a foreign national's claim that his initial removal order was invalid based on the foreign national's argument that the relevant immigration judge violated his due-process rights. Instead, the Ninth Circuit found that even though the relevant immigration judge did fail to inform the foreign national that he might have been eligible for voluntary departure, the defendant could not show any actual prejudice, i.e., negative consequences, from the relevant immigration judge's mistake because the foreign national could show that it was even plausible that he would have been granted voluntary departure given his lack of positive equities and his lack of proof that similarly situated foreign nationals actually received voluntary departure. Therefore, the Ninth Circuit concluded, the foreign national was correctly convicted of being found in the U.S. after having already been removed.

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  • Ruiz-Vidal v. Lynch- filed June 17, 2015 BUT withdrawn and amended October 9, 2015
  • The Ninth Circuit found that a U.S.-lawful-permanent-resident foreign national was removable for a Controlled-Substances-Related Offense because he had pleaded no contest to simple possession of a controlled substance under California Health & Safety Code Sec. 11377(a) but as a "Lesser Included Offense" of California Health & Safety Code Sec. 11379(a), which outlaws sale of methamphetamine and of which he was originally charged as violating. Specifically, using the "Modified Categorical Approach," the Ninth Circuit held that clear and convincing evidence proved that the foreign national had pleaded to and was convicted of possession of methamphetamine despite the term "methamphetamine" not specifically existing within the charge of which he was ultimately convicted because such term nonetheless existed within the original charge.

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  • Chavez-Solis v. Lynch- filed October 6, 2015
  • The Ninth Circuit held that a California conviction for possession of child pornography under California Penal Code Sec. 311.11(a) is not an Aggravated Felony because its definition of "sexual conduct" is indivisibly overbroad when compared to the federal generic definition of the crime.

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  • Zumel v. Lynch- filed September 29, 2015
  • The Ninth Circuit held that the "intent to endanger" requirement under the terrorist-activity-related ground for inadmissibility pertains to a factual issue, as opposed to a legal one, that the BIA must review for clear error.

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  • P. Singh v. Lynch- filed September 21, 2015
  • The Ninth Circuit held that the REAL ID Act permits background documents to serve as a sole basis for an adverse-credibility determination in relation to applications for Asylum, Withholding of Removal, and Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), thereby justifying the denial of such applications.

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  • Matter of R-K-K-- filed September 8, 2015
  • The BIA held that (1) significant similarities between statements submitted by applicants in different proceedings can be considered by an immigration judge in making an adverse-credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings and (2) when relying on inter-proceeding similarities, the relevant immigration judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.

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  • Avendano-Hernandez v. Lynch- filed September 3, 2015
  • The Ninth Circuit held that it does not have jurisdiction to review whether the BIA correctly found a conviction to constitute a "Particularly Serious Crime" in relation to determining eligibility for Withholding of Removal where the BIA properly characterizes the facts and circumstances surrounding the conviction. Turning to the issue of Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), the Ninth Circuit found that because gender identity and sexual orientation are two different concepts, the BIA erred in assuming anti-discrimination laws in Mexico protect transgendered individuals when significant record evidence establishes the opposite.

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  • Quijada-Aguilar v. Lynch- filed September 1, 2015
  • The Ninth Circuit held that a California conviction for voluntary manslaughter under California Penal Code Section 192(a) with a sentence of at least one year of imprisonment cannot be deemed a "Crime-of-Violence" Aggravated-Felony "Particularly Serious Crime" rendering one ineligible for Withholding of Removal because the minimum intent required to commit such a crime, i.e., reckless conduct, results in the crime being overbroad when compared to the definition of "Crime of Violence" under 18 U.S.C. Sec. 16, which requires intentional use of force or substantial risk that force will be intentionally used. Regarding Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), the Ninth Circuit held that the aggregate risk of torture must be considered, as opposed to individual risks of torture being treated as separate claims.

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  • Andrade v. Lynch- filed August 27, 2015
  • The Ninth Circuit held regarding applications for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") that when the BIA considers country-conditions reports that discuss torture conducted by a foreign-national applicant's home country but concludes that such country-conditions reports do not establish that the foreign-national applicant will likely be tortured upon return to her/his home country then the BIA has fulfilled its requirements in relation to such country-conditions reports. The Ninth Circuit found that when country-conditions reports establish that foreign-national applicants for Deferral under CAT with gang-related tattoos are tortured upon return to their home country such evidence does not necessarily prove that any tattoos, even ones that are not gange-related, will result in such torture.

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  • Acosta-Oivarria v. Lynch- filed August 26, 2015
  • The Ninth Circuit held that foreign-national applicants for Adjustment of Status to Lawful Permanent Residence ("Green Card") under Immigration and Nationality Act Sec. 245(i) should be permitted to have such applications adjudicated and not denied based on lack of eligibility even if they would otherwise be barred under Immigration and Nationality Act Sec. 212(a)(9)(C) if, in part, their relevant applications were filed based on reasonable reliance on the case law in existence during the 21-month period between when the Ninth Circuit issued a precedent decision finding them eligible for such benefit despite their having unlawfully reentered the U.S. following their departure after having accrued a statutorily significant period of unlawful presence and when the BIA issued its own precedent decision finding them ineligible for such benefit because of their unlawfully reentering the U.S. following their departure after having accrued a statutorily significant period of unlawful presence.

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  • Acevedo v. Lynch- filed August 24, 2015
  • The Ninth Circuit held that a foreign national cannot derive U.S. citizenship from a step-parent, who never adopted that foreign national, because the term "child" under the Immigration and Nationality Act ("INA") is specifically defined regarding derivative citizenship in that it does not include a relationship between a foreign national and a U.S.-citizen step-parent.

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  • Matter of M-A-F- et al.- filed August 21, 2015
  • The BIA held that (1) where a foreign-national applicant has filed an Asylum application before the May 11, 2005 effective date of the REAL ID Act of 2005 and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of Section 208(b)(1)(B)(iii) of the Immigration and Nationality Act ("INA") to credibility determinations; (2) a subsequent Asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis; and (3) where a foreign national has filed more than one application for Asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the one-year statutory time bar applies under INA Sec. 208(a)(2)(B).

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  • Salazar-Gonzalez v. Lynch- filed August 20, 2015
  • The Ninth Circuit held that patently erroneous and legally dead-wrong advice by a prior attorney amounts to ineffective assistance of counsel can be used to establish equitable tolling of the filing deadline for a motion to reopen. The Ninth Circuit found that a foreign national's prior attorney's advice to forfeit the right to appeal to the BIA and instead to leave the U.S. to apply for a visa for which the foreign national was statutorily ineligible was indeed patently erroneous and legally dead-wrong advice by that prior attorney as opposed to, as the BIA erroneously concluded, reasonable tactical advice.

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  • Garcia Macedo v. Lynch- filed August 18, 2015
  • The Ninth Circuit held that the statutory criminal-conviction-related jurisdictional bar concerning the U.S. courts of appeals' review of final orders of removal issued by the BIA does not apply to, and therefore does not stop a U.S. court of appeals from taking jurisdiction over, a petition for review concerning denial by an immigration judge of a procedural motion that is denied for a reason independent of the very criminal conviction that triggers the jurisdictional bar.

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  • U.S. v. Rodriguez-Vega- filed August 14, 2015
  • The Ninth Circuit reversed the lower U.S. District Court's dismissal of a foreign national's petition for writ of habeas corpus because such denial erroneously applied an incorrect legal standard in deciding whether a foreign national's prior attorney's representation fell below an objective standard of reasonableness. The Ninth Circuit found that where the law is clear on the immigration consequence of a foreign national's plea agreement, such as where the Immigration and Nationality Act ("INA") expressly identifies the foreign national's prospective conviction as a ground for removal, then a foreign national's criminal-defense attorney must advise the foreign national that removal would be a virtual certainty even if certain forms of extraordinary immigration-related relief might still be available statutorily. The Ninth Circuit held that whether the plea agreement or the criminal court warns of potential immigration-related consequences is immaterial to the issue of whether a foreign national's criminal-defense attorney's representation fell below an objective standard of reasonableness. The Ninth Circuit also found sufficient specifically regarding the issue of prejudice, and consequently whether it would be reasonably probable that the outcome of the criminal proceedings would be different had a foreign-national criminal defendant been advised properly, evidence of four recent cases before the same U.S. District Court before which the relevant foreign national was convicted wherein the criminal defendants in those four cases were charged with same crime but ultimately pleaded to lesser charges following a plea bargain, but the Ninth Circuit found that a foreign-national criminal defendant could also prove the required prejudice by showing either that s/he settled on a charge in a purposeful attempt to avoid an adverse effect on her/his immigration-related status or that s/he would have taken the relevant criminal case to trial instead of accepting a plea bargain that would result in deportation. Finally, the Ninth Circuit held that an evidentiary hearing is not required regarding post-conviction relief provided that an expansion of the record is nonetheless permitted to allow for the specific issues regarding such request for post-conviction relief may be particularly analyzed by the relevant U.S. District Court.

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  • Madrigal-Barcenas v. Lynch- filed August 10, 2015
  • The Ninth Circuit held following remand from the U.S. Supreme Court that a state drug-paraphernalia-possession conviction can be treated as a Controlled-Substances-Related Offense under the Immigration and Nationality Act ("INA") only if it relates to a controlled substance specifically listed on one of the five federal controlled-substances schedules. The Ninth Circuit found that any of its or the BIA's prior decisions holding otherwise have been overruled by the U.S. Supreme Court.

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  • Matter of D-M-C-P-- filed August 5, 2015
  • The BIA held that (1) neither an immigration judge nor the BIA has jurisdiction to consider whether Asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program and (2) it is improper to deem an application for relief abandoned based on the relevant foreign-national applicant's failure to comply with the biometrics-submission requirement where the record does not reflect that the relevant foreign-national applicant received notifications concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of her/his failure to comply.

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  • Matter of Ordaz- filed July 24, 2015
  • The BIA held that a notice to appear that was served to the relevant foreign national but never resulted in the commencement of removal proceedings does not have a "stop-time" effect for purposes of establishing eligibility for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") pursuant to Section 240A(d)(1) of the Immigration and Nationality Act ("INA").

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  • U.S. v. Santos-Flores- filed July 23, 2015
  • The Ninth Circuit held that a U.S. District Court cannot deny a foreign-national criminal-defendant release on bond based on the likelihood that such foreign-national criminal defendant would be taken into immigration-related custody following such release and thereafter deported, resulting in such foreign-national criminal defendant's not appearing in her/his criminal proceedings.

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  • In re Christian H.- filed July 21, 2015
  • The California Court of Appeal for the First District, Division 3 held that a California Juvenile Court cannot rule on the one hand that it would be in the best interests of a minor to be returned to her/his home country for the purpose of a disposition following a sustained juvenile petition while on the other hand that it would not be in the best interests of a minor to be returned to her/his home country for the purpose of establishing eligibility under the Special Immigrant Juvenile Status ("SIJS") program.

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  • U.S. v. Gonzalez-Corn- filed July 17, 2015
  • The Ninth Circuit affirmed a U.S. District Court's conviction of a foreign-national criminal defendant for illegal reentry after having been deported because the foreign-national criminal defendant's previous deportation was correctly premised on a federal controlled-substances felony conviction, which automatically is a Controlled-Substances-Trafficking Aggravated Felony under the Immigration and Nationality Act ("INA").

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  • U.S. v. Ye- filed July 10, 2015
  • The Ninth Circuit affirmed a U.S. District Court's conviction of foreign-national criminal defendants for provision of false information on a passport application despite the foreign-national criminal defendants' argument that the U.S. District Court erred in not instructing the jury to find that they had specific intent to violate the passport laws because, as the Ninth Circuit found, specific intent is not required to be convicted of such an offense.

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  • U.S. v. Chan- filed July 9, 2015
  • The Ninth Circuit reversed a U.S. District Court's dismissal of a foreign-national criminal defendant's petition for writ of error coram nobis because the basis of affirmative misadvice by a criminal-defense attorney, as opposed to failure to advise on that criminal-defense attorney's own initiative, relating to immigration-related consequences of a proposed plea deal is applicable retroactively, meaning it may be used to have vacated criminal convictions that preceded the Ninth Circuit's precedent decision on which such a basis normally relies. The Ninth Circuit found that the affirmative-misadvice basis existed prior to that Ninth-Circuit precedent decision, which the Ninth Circuit consequently found did not establish a new rule of criminal procedure that would otherwise be inapplicable retroactively.

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  • Matter of R. Huang- filed July 8, 2015
  • The BIA held that a beneficiary of a visa petition who was adopted pursuant to a State-court order that was entered when the beneficiary was more than sixteen years old, but with an effective date prior to his or her sixteenth birthday, may qualify as an adopted child under Section 101(b)(1)(E)(i) of the Immigration and Nationality Act ("INA") so long as the adoption petition was filed before the beneficiary's sixteenth birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively.

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  • U.S. v. Guzman-Ibarez- filed July 6, 2015
  • The Ninth Circuit reversed a U.S. District Court's conviction of a foreign-national criminal defendant's conviction for illegal reentry after deportation because that foreign-national criminal defendant's U.S.-Constitutional Fifth-Amendment Due-Process right had been violated, possibly prejudicially, regarding that underlying deportation order and despite his clear deportability because he was ordered deported without first being advised by the relevant immigration judge of a form of relief for which that foreign-national criminal defendant was statutorily eligible.

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  • Matter of P. Singh- filed June 25, 2015
  • The BIA held that an attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before immigration judges was appropriately suspended from practice before the U.S. Department of Justice's Executive Office for Immigration Review's U.S. Immigration Courts ("Immigration Courts"), the BIA, and the U.S. Department of Homeland Security for a period of sixteen months and prohibited from appearing telephonically before the Immigration Courts for seven years.

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  • Toor v. Lynch- filed June 17, 2015
  • The Ninth Circuit held that the departure-bar regulations concerning motions to reopen or to reconsider made before either an immigration judge or the BIA are invalid, regardless of whether the motioning foreign national departed the U.S. involuntarily or voluntarily because superseding statutory text of makes clear that regardless of whether a foreign national had departed the U.S., his or her right to file a motion to reopen or to reconsider is not limited by a departure.

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  • Coquico v. Lynch- filed June 17, 2015
  • The Ninth Circuit held that a misdemeanor conviction for "unlawful laser activity" in violation of California Penal Code Sec. 417.26 is not a categorical "Crime Involving Moral Turpitude" because, using the "Categorical Approach," that crime can be violated by conduct which resembles only simple assault with no turpitudinous tendencies rather than a terrozing threat, which turpitudinous.

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  • Matter of Pena- filed June 16, 2015
  • The BIA held that a foreign national returning to the U.S. who has been granted Lawful Permanent Residence ("Green Card") cannot be regarded as seeking an admission and may not be charged with inadmissibility under Section 212(a) of the Immigration and Nationality Act ("INA") if he or she does not fall within any of the exceptions in INA Sec. 101(a)(13)(C).

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  • Kerry v. Din- filed June 15, 2015
  • The U.S. Supreme Court found that the U.S. Constitutional rights of a U.S. citizen were not violated by the denial of a full explanation from the U.S. Department of State of why that U.S. citizen's foreign-national husband's immigrant-visa application was denied. The Court maintained that there was no deprivation of life, liberty, or property; therefore, the U.S. Constitution's Fifth-Amendment Due-Process Clause did not apply. The Court discussed how Due Process has been construed to refer to fundamental rights and concluded that there is no legal precedent that supports the notion that the right to live with one's spouse in the U.S. is a "fundamental right."

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  • Reyes Mata v. Lynch- filed June 15, 2015
  • The U.S. Supreme Court held that because prior precedent has established that U.S. circuit courts of appeals have jurisdiction over a foreign national's petition for review of a BIA decision to deny a motion to reopen proceedings, such jurisdiction therefore extends to cases where the BIA, instead of denying a motion to reopen on its merits, rejects a motion to reopen as untimely, rejects a motion requesting equitable tolling of the time limit, or renders a separate decision not to exercise its sua-sponte authority to reopen. The Court interpreted the U.S. Congress's limiting of the U.S. circuit courts of appeals' jurisdiction to decide the merits of whether the case should be reopened nonetheless not to affect the U.S. circuit courts of appeals' jurisdiction over the BIA's decision to reject a motion to reopen.

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  • Matter of J-R-R-A-- filed June 11, 2015
  • The BIA held that if an applicant for Asylum has competency issues that affect the reliability of her/his testimony, the relevant immigration judge should as a safeguard generally accept her/his fear of harm as subjectively genuine based on the relevant foreign-national applicant's perception of events.

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  • Arce Fuentes v. Lynch- filed June 10, 2015
  • The Ninth Circuit denied a U.S.-lawful-permanent-resident foreign national's petition for review of the BIA's decision finding that her conviction for conspiracy to commit money laundering in violation of 18 U.S.C. Sec. 1956(h) qualified as an "Aggravated Felony" because the amount of funds exceeded $10,000.00 as required by 8 U.S.C. Sec. 1101(a)(43)(D). The Ninth Circuit found that the BIA correctly determined that the $10,000.00 monetary threshold refers to the "specific circumstances" of a money-laundering offense as opposed to an element of a generic crime. Therefore the BIA correctly relied on the "Presentence Report," despite such document's not being a part of what is traditionally perceived as the "Record of Conviction," to determine whether the $10,000.00 threshold amount was met. However, the Ninth Circuit further found that the BIA erred in also relying on the language of charges of which the foreign national was not convicted to find that the $10,000.00 threshold amount was met, but the Ninth Circuit nonetheless concluded that such error was harmless because the BIA specifically referenced the "Presentence Report" as well in its decision.

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  • Garcia-Mendez v. Lynch- filed June 8, 2015
  • The Ninth Circuit found that a foreign national who had entered the U.S. without authorization and who had been convicted of a removable criminal offense was not entitled to seek an 8 U.S.C. Sec. 1182(h)(2) inadmissibility waiver in conjunction with his "Special Rule Cancellation of Removal" application because he does not meet the definition of a "Violence Against Women Act ("VAWA") Self-Petitioner." The Ninth Circuit held that while a "VAWA Self-Petitioner" may seek such a waiver, a "Special Rule Cancellation of Removal" applicant cannot.

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  • Matter of Fajardo Espinoza- filed June 8, 2015
  • A grant of Family-Unity-Program benefits does not constitute an "admission" to the U.S. under Section 101(a)(13)(A) of the Immigration and Nationality Act ("INA") for purposes of establishing that a relevant foreign national has accrued the requisite seven years of continuous residence after having been "admitted in any status" to be eligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation"), thereby refusing to follow the Ninth Circuit's prior published opinion in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006).

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  • Angov v. Lynch- filed December 4, 2013 BUT amended June 8, 2015
  • The Ninth Circuit found that a foreign national who never formally entered into the U.S. has no U.S. Constitutional Fifth-Amendment right to procedural Due Process. Even though the relevant immigration judge, within that immigration judge's discretion, admitted into evidence an unsworn, unauthenticated, and hearsay letter prepared for litigation by the U.S. Department of State to form the sole credibility-based ground for denying Asylum to the foreign national, the immigration judge was not obligated to require the letter writer to testify and to be cross-examined regarding it.

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  • Medina-Nunez v. Lynch- filed June 8, 2015
  • The Ninth Circuit found that its prior published precedent was no longer tenable because of the BIA's intervening and contradictory published opinion finding that acceptance into the Family Unity Program ("FUP") did not constitute an "admission" into the U.S. Such prior published precedent by the Ninth Circuit was found untenable by the Ninth Circuit not only because the BIA's intervening contradictory interpretation of the Immigration and Nationality Act on the relevant issue, i.e., the definition of "admission" and whether it included acceptance into FUP, but also because the Ninth Circuit's prior published precedent did not state that its interpretation followed from the unambiguous terms of the statute. Consequently, for purposes of Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation"), which requires tan applicant to have resided in the U.S. for at least "7 years after having been admitted in any status," the foreign national was not eligible for relief from removal.

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  • Matter of Francisco-Alonzo- filed June 2, 2015
  • The BIA held that in order to determine whether a conviction is for a "Crime-of-Violence" Aggravated Felony under 18 U.S.C. Sec. 16(b), the proper inquiry is whether the conduct caused by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the "ordinary case," but such approach was specifically not following within the jurisdiction of the Ninth Circuit in the Ninth Circuit's subsequent decisions in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and U.S. v. Hernandez-Lara (9th Cir. Mar. 29, 2016).

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  • Mellouli v. Lynch- filed June 1, 2015
  • The U.S. Supreme Court held that a state controlled-substances-related conviction cannot render a foreign national removable for a Controlled-Substances-Related Offense unless it establishes the name of the controlled substance at issue and unless that established controlled substance exists on one of the five federal controlled-substances schedules listed under the Controlled Substances Act. The U.S. Supreme Court further held that without a complete match between the list of controlled substances outlawed by a state and the five federal controlled-substances schedules under the Controlled Substances Act, a Controlled-Substances-Related Offense under the Immigration and Nationality Act cannot be proven without the name of the controlled substance at issue being established.

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  • Matter of Z-Z-O-- filed May 26, 2015
  • The BIA held that (1) an immigration judge's predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly-erroneous standard of review, thereby overruling Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), and (2) whether a foreign-national Asylum applicant has an objectively reasonable fear of persecution based on the events that a relevant immigration judge found may occur upon that foreign-national applicant's return to the country of removal is a legal determination that is subject to de-novo review.

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  • Mtoched v. Lynch- filed May 22, 2015
  • The Ninth Circuit held that U.S. Immigration Laws could properly be applied to a foreign national within the Commonwealth of the Northern Mariana Islands even though that foreign national entered that territory, committed the crime, and was convicted all before the U.S. Immigration Laws were even extended to the territory by 48 U.S.C. Sec. 1806. The Ninth Circuit found that such application is permissibly retroactive, in that the new laws apply to past convictions so the foreign national's conviction for assault with a deadly weapon not only was for a Crime Involving Moral Turpitude but also rendered that foreign national removable under the Immigration and Nationality Act.

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  • Garcia v. Lynch- filed May 20, 2015
  • The Ninth Circuit held that a foreign national's waiver of appeal from an immigration judge's removal order was not considered and not intelligent and therefore not valid when it was based on the relevant immigration judge's erroneous determination that the foreign national's conviction was for an Aggravated Felony that rendered that foreign national ineligible for relief from removal. Consequently, the Ninth Circuit found that the BIA had jurisdiction over the foreign national's motion for reconsideration.

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  • Zavala v. Ives- filed May 18, 2015
  • The Ninth Circuit ruled that if the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement detains a foreign national during a period of pending possible criminal prosecution, s/he is subsequently entitled to credit toward a criminal sentence for the detention period served. The Ninth Circuit added that the foreign national is also entitled to credit for such time spent even after s/he is indicted or charges are filed. The Ninth Circuit interpreted the sentencing-credit statute in a manner that established that one must be held under "official detention" to have such time being held credited toward a potential criminal sentence and held that detention of a foreign national by the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement pending possible criminal prosecution counts as such "official detention."

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  • Matter of Agour- filed May 18, 2015
  • Adjustment of status constitutes an "admission" for purposes of determining a relevant foreign national's eligibility to apply for a waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act ("INA").

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  • Maldonado v. Lynch- filed March 27, 2015 BUT amended May 18, 2015
  • The Ninth Circuit en banc held regarding applications for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") that (1) if there is "solid evidence" that a foreign national was physically present in the U.S. despite having been removed then a petition for review before the Ninth Circuit concerning a Deferral-under-CAT application is not moot because the foreign national has a "personal stake in the outcome of the lawsuit" and (2) an immigration judge must consider all relevant evidence in determining whether a Deferral-under-CAT applicant has demonstrated that it is more likely than not that s/he will be tortured if removed, including the possibility of relocation within the Deferral-under-CAT applicant's country of removal, but the Deferral-under-CAT applicant is not required to demonstrate that internal relocation within that country is impossible.

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  • Matter of J-H-J-- filed May 12, 2015
  • The BIA held that a foreign national who adjusted status in the U.S., and who has not entered as a Lawful Permanent Resident, is not barred from establishing eligibility for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA") as a result of an Aggravated-Felony conviction, thereby withdrawing Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

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  • Torres-Valdivias v. Lynch- filed September 5, 2014 BUT amended May 8, 2015
  • The Ninth Circuit found that the BIA's heightened-standard rule under Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), regarding discretionary-relief applicants who have been convicted of violent or dangerous crimes could be applied to adjustment-of-status applications, does not obligate the "Categorical Approach" to be used, and is subject to discretion that is unreviewable by the Ninth Circuit.

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  • Matter of Fitzpatrick- filed May 7, 2015
  • The BIA held that a foreign national who voted in an election involving candidates for federal office in violation of 18 U.S.C. Sec. 611(a) is removable under Section 237(a)(6)(A) of the Immigration and Nationality Act ("INA") regardless of whether that foreign national knew that he or she was committing an unlawful act by voting.

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  • Matter of Montiel- filed April 17, 2015
  • The BIA held that removal proceedings can be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction.

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  • Ortega Melendres v. Arpaio- filed April 15, 2015
  • The Ninth Circuit found that the defendants, which included the Maricopa County Sheriff's Office and its sheriff, used unconstitutional practices that extended beyond the regular policies of what they can usually do in the patrol context. The Ninth Circuit held that a sheriff's office cannot consider race as a factor in determining where to conduct patrol operations and in deciding whom to stop and to investigate for immigration violations.

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  • Matter of Simeio Solutions, LLC- filed April 9, 2015
  • The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) because a change in the place of employment of a foreign-national beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers ("LCA") be certified to the U.S. Department of Homeland Security with respect to that foreign national beneficiary may affect eligibility for H-1B nonimmigrant status, it is therefore a material change for purposes of 8 C.F.R. Secs. 214.2(h)(2)(i)(E) and (11)(i)(A) and (2) when there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B nonimmigrant petition with the corresponding LCA.

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  • Matter of Christo's, Inc.- filed April 9, 2015
  • The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) a foreign national who submits false documents representing a nonexistent or fictitious marriage but who never entered into or attempted or conspired to enter into a marriage, may intend to evade the U.S. Immigration Laws but is not, by such act alone, considered to have "entered into" or "attempted or conspired to enter into" a marriage for purposes of Section 204(c) of the Immigration and Nationality Act ("INA") and (2) misrepresentations relating to a nonexistent marriage may nonetheless render the beneficiary inadmissible under INA Sec. 212(a)(6)(C)(i) relating to an application for Adjustment of Status.

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  • Matter of Leacheng International, Inc.- filed April 9, 2015
  • The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) the definition of "doing business" at 8 C.F.R. Sec. 204.5(j)(2) contains no requirement that a petitioner for a multinational manager or executive must provide goods and/or services to an unaffiliated third party and (2) a petitioner may establish that it is "doing business" by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

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  • Marquez Carrillo v. Holder- filed March 31, 2015
  • The Ninth Circuit held that a conviction for domestic violence under California Penal Code Section 273.5(a) constitutes a categorical crime of domestic violence within the meaning of 8 U.S.C. Sec. 1227(a)(2)(E)(i), rendering the relevant foreign national removable.

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  • Matter of Cerda Reyes- filed March 24, 2015
  • The BIA held that the rules for applying for a bond redetermination at 8 C.F.R. Sec. 1003.19(c) relate to venue, not jurisdiction.

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  • Matter of L-A-C-- filed March 19, 2015
  • The BIA held that (1) if an immigration judge finds that a foreign-national applicant for Asylum and for Withholding of Removal has not provided reasonably available corroborating evidence to establish her/his claim, the relevant immigration judge should first consider that foreign-national applicant's explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the foreign-national applicant's proceedings for that foreign-national applicant to obtain the evidence and (2) although an immigration judge should consider a foreign-national Asylum applicant's explanation for the absence of corroborating evidence, Section 208(b)(1)(B)(ii) of the Immigration and Nationality Act ("INA") does not require the immigration judge to identify the specific evidence necessary to meet the foreign-national applicant's burden of proof and to provide an automatic continuance for the applicant to obtain that evidence.

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  • Matter of Vides Casanova- filed March 11, 2015
  • The BIA held that the relevant foreign-national respondent is removable under Section 237(a)(4)(D) of the Immigration and Nationality Act ("INA") because the totality of the record supported the conclusion that the relevant foreign-national respondent, through his "command responsibility" in his former roles as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador given that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction he did not hold the perpetrators accountable.

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  • Khudaverdyan v. Holder- filed February 27, 2015
  • The Ninth Circuit held that an Asylum applicant may demonstrate persecution on account of imputed political opinion if s/he shows that the persecutor thought that the Asylum applicant was attempting to expose corruption in a governing institution and mistreated the Asylum applicant as a result, even if the Asylum applicant in fact had no such intention. An Asylum applicant doesn't need to show it was because of her/his actual political opinion that s/he was persecuted; it is enough to show imputed, i.e., perceived, political opinion for both Asylum and Withholding-of-Removal claims.

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  • Martinez-Hernandez v. Holder- filed February 24, 2015
  • The Ninth Circuit found that the BIA did not abuse its discretion by denying a foreign national's claim that his prior counsel was ineffective for failure to seek Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation"). The Ninth Circuit held that to have a successful claim for ineffective assistance of counsel to reopen removal proceedings, a foreign national needs to show that he was prejudiced by the prior counsel's failure. However, the relevant foreign national failed to do so because, in the absence of any evidence or argument relating to hardship to a qualifying relative, something that is required for Non-LPR Cancellation, he did not make the necessary threshold showing that his being granted Non-LPR Cancellation was even plausible.

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  • Hernandez-Gonzalez v. Holder- filed February 13, 2015
  • The Ninth Circuit held that a weapon-possession conviction, to which a sentence enhancement was added based on the weapon possession's being "for the benefit of, at the direction of, or in the association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members" does not constitute a "Crime Involving Moral Turpitude." Despite BIA published precedent arguing the contrary, a crime that in itself involves no moral turpitude, e.g., possession of a billy club, does not become turpitudinous merely by having been committed to promote, further, or assist criminal activity by gang members.

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  • Matter of Cross- filed February 12, 2015
  • The BIA held that a person born out of wedlock may qualify as a legitimated "child" of her/his biological parents under Section 101(c)(1) of the Immigration and Nationality Act ("INA") for purposes of citizenship if s/he was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State, if otherwise eligible, thereby overruling in part Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006).

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  • Eddie E. v. Superior Court- filed February 11, 2015
  • The California Court of Appeal for the Fourth District, Division 3 found that the purpose of the Special Immigrant Juvenile Status ("SIJS") program is to help foreign-national juveniles who have been abused, abandoned, or neglected to get Lawful Permanent Residence ("Green Card") and consequently reversed the holding of the California Superior-Court Judge to deny a foreign-national juvenile's request for certain SIJS-prerequisite findings be made, namely, that he had been abandoned by one or both of his parents and that remaining in the U.S. would be in his best interest. Holding that only one parent needs to be shown to have abused, abandoned, or neglected a requesting foreign-national juvenile, that death of a parent amounts to an abandonment, and that remaining in the U.S. would be in the relevant foreign-national juvenile's best interests, the California Court of Appeal for the Fourth District, Division 3 granted that foreign-national juvenile's petition for writ of mandate and ordered the California Superior-Court Judge to make the requested SIJS-prerequisite findings.

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  • Matter of Chairez- filed February 11, 2015
  • The BIA held that with respect to Aggravated-Felony convictions, immigration judges must follow the law of the U.S. Court of Appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. U.S., 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant U.S. Court of Appeals. Moreover, the BIA found that because the U.S. Court of Appeals for the Tenth Circuit has taken an approach to divisibility different that that adopted in Matter of Chairez, 26 I&N Dec. 349, the law of the U.S. Court of Appeals for the Tenth Circuit must be followed by immigration judges in its respective jurisdiction.

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  • Matter of Esquivel-Quintana- filed January 9, 2015
  • The BIA held that (1) for a statutory-rape offense that may include a sixteen- or seventeen-year-old victim to be categorically a "Sexual-Abuse-of-a-Minor" Aggravated Felony under Section 101(a)(43)(A) of the Immigration and Nationality Act ("INA"), the relevant statute must require a meaningful age differential between the victim and the perpetrator and (2) the offense of unlawful intercourse with a minor in violation of California Penal Code Sec. 261.5(c), which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes "sexual abuse of a minor" and is therefore an Aggravated Felony under INA Sec. 101(a)(43)(A), but such a finding conflicts with the previously published opinion by the Ninth Circuit in Estrada-Espinoza v. Mukasey (9th Cir. 2008) (en banc).

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  • Matter of O.A. Hernandez- filed January 8, 2015
  • The BIA held that the offense of "deadly conduct" in violation of Section 22.05(a) of the Texas Penal Code, which punishes a person who "recklessly engages in conduct that places another in imminent danger of serious bodily injury," is categorically a "Crime Involving Moral Turpitude."

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  • Abdisalan v. Holder- filed December 15, 2014 BUT amended January 6, 2015
  • The Ninth Circuit en banc held that when the BIA issues a decision that denies some claims but remands any other claims for relief to the relevant immigration judge for further proceedings, then that decision is not a final order of removal with regard to any of the claims; therefore, it does not trigger the thirty-day window for a foreign national to file a petition for review with the Ninth Circuit.

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