Law Firm of Anish Vashistha
About Us
Services
Developments
Consultations
Latest Changes In Immigration Law
(Click Here for Recently Published Case Decisions)
(and Click Here for Attorney Anish Vashistha's Latest Blog Posts)

EXECUTIVE ORDER ON IMMIGRATION (SIX-COUNTRY-REFUGEE BAN) (PLEASE NOTE: UNTIL FURTHER NOTICE THE EXECUTIVE ORDER RELATING TO THE BARS AGAINST REFUGEES AND FOREIGN NATIONALS FROM SIX PARTICULAR COUNTRIES IS ON HOLD)

On March 6, 2017, the President of the United States through an Executive Order announced a new policy by the Department of State and the Department of Homeland Security that certain people would not be permitted entry to the United States for various periods of time from March 16, 2017. These categories of people include the following:

  • Any refugees awaiting resettlement in the U.S. are barred for 120 days and
  • Foreign nationals who are citizens of Iran, Syria, Somalia, Sudan, Libya, or Yemen are barred for ninety days.
  • The announcement makes specific exceptions for holders of valid immigrant and nonimmigrant visas issued prior to the executive order's effective date and does not explicitly apply to Lawful Permanent Residents ("Green-Card holders").

    Back to Top

    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.

    Back to Top

    PROVISIONAL UNLAWFUL PRESENCE WAIVER (I-601A)

    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. The provisional unlawful-presence waiver only waives inadmissibility for unlawful presence, and not inadmissibility for any other reason(s). 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 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. However, at the same time, USCIS has proven to be very conservative in its adjudication of such provisional-unlawful-presence-waiver applications, denying several for various reasons that would not be used to deny a traditional waiver application. In addition, individuals who are currently in removal proceedings and face potential deportation may be able still to pursue a provisional unlawful-presence waiver if they can have their removal proceedings administratively closed. 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.

    Back to Top

    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.

    Back to Top

    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.

    Back to Top

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

    On June 15, 2012, the President of the United States announced a new policy 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 may 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 has 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 can be a daunting task, but the Firm has remained committed to staying abreast of all available information, whether published or not, regarding the adjudication of DACA applications. The Firm is willing and able to assist any individuals who feel they may be eligible for DACA.

    Back to Top

    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):

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

    .

    Back to Beginning of Cases

  • 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. .

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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. .

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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").

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

  • 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).

    Back to Beginning of Cases

  • 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."

    Back to Beginning of Cases

  • 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.

    Back to Beginning of Cases

    Back to Top
    jQuery UI Dialog - Modal form

    Please fill out the form fields below, and
    then click Send. We will respond quickly.

    Testimonials:

    Anish took my case when no other attorney would even try. I am now a US citizen, and I will always be thankful to Anish for making that happen.
    What I like about Mr. Vashistha is his honesty, intelligence, and dedication.
    I was surprised how Anish was able to get in touch with the right people to get my application expedited.
    Anish helped me out and gave me peace of mind that very moment I spoke to him.
    Mr. Vashistha followed through with his promises, and I can't thank him enough for what he did for our family.
    Anish made my case become successful after so many lawyers made me lose hope and money.
    Mr. Vashistha is one of the most concise and detail oriented attorneys I have ever come across.
    Anish is the type of attorney who has your best interest at heart.
    Anish made the entire process very smooth and most importantly, successful!
    I was in a place where I didn't know what was going to happen, and Anish came and fought for me, even in the court during the hearing, he stood up for me!
    We are grateful that Anish was very patient every step of the process and always available to us.
    Since I'm an attorney too, I know my kind, and Anish is one of the best in his field, if not the best.
    © 2016 by Law Firm of Anish Vashistha, A Professional Law Corporation | Call (323) 592-9980, (510) 585-3990, or (661) 776-5770 Now to Schedule a Consultation Today! |