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):
The text of the United States Code cannot prevail over the Statutes at
Large when the two are inconsistent. The jurisdictional bar of §242(f)(1)
of the Immigration and Nationality Act, codified at 8 U.S.C. §1252(f)(1),
does not apply to an order that enjoins or restrains the operation of
§235(d)(2) of the William Wilberforce Trafficking Victims Protection
Reauthorization Act, codified at 8 U.S.C. §1232(d)(2).
Back to Beginning of Cases
A Form I-213 is presumed to be reliable in the absence of evidence to the
contrary presented by the alien.
Back to Beginning of Cases
Congress has clearly and unambiguously precluded the court from asserting
jurisdiction over the merits of individual expedited removal orders, even
with regards to constitutional challenges to such orders. An alien subject
to 8 C.F.R. §208.13(c)(4)’s transit bar may still avoid expedited
removal by establishing a reasonable fear of persecution or torture for
purposes of withholding of removal and protection under the Convention
Against Torture; the reasonable fear of persecution screening standard
used to determine, in expedited removal proceedings, whether further consideration
of withholding of removal is warranted is the same standard required to
establish a well-founded fear of persecution in the ordinary asylum context;
an alien in expedited removal proceedings, but not subject to the transit
bar, need only establish that there is a significant possibility, taking
into account the credibility of the statements made by the alien in support
of the alien’s claim and such other facts as are known to the officer,
that the alien could establish the well-founded fear of persecution necessary
for asylum.
Back to Beginning of Cases
The record compelled a conclusion that an asylum seeker was attacked by
police officers in his native Guatemala where the asylum seeker presented
evidence he had known two of the men for about 20 years before the incident,
he was told by people in his small town that they were in fact police
officers, these individuals were wearing police uniforms at the time of
the attack, they were armed with visible handguns typical of national
police officers, and the Public Ministry confirmed these individuals left
the police force shortly after the attack.
Back to Beginning of Cases
It was reasonable for the Board of Immigration Appeals to conclude that
an asylum seeker’s failure to mention the first of two alleged interrogations
from his application, together with his questionable explanation for that
omission, undermined his credibility; while the omission itself was not
enough to undermine his credibility, his shifting explanation could be
reasonably viewed as internally inconsistent, and therefore, implausible.
The asylum seeker’s questionable testimony about his injuries, and
his failure to mention those injuries at all in his asylum application,
supported an adverse credibility determination.
Back to Beginning of Cases
(1) A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not
waive a respondent’s removability under section 237(a)(1)(D)(i)
of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent
residence was terminated for failure to file a joint petition, a reason
separate and independent from fraud.
Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995),
aff’d
Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996), reaffirmed.
(2) A section 237(a)(1)(H) fraud waiver cannot be used in place of, or
in conjunction with, a “good faith” waiver under section 216(c)(4)(B)
of the INA, 8 U.S.C. § 1186a(c)(4)(B) (2018), to waive the requirement
to file a joint petition to remove conditions on residence under section
216 of the INA, 8 U.S.C. § 1186a.
Back to Beginning of Cases
Where the adjudication of a non-citizen’s visa application implicates
the constitutional rights of a citizen, due process requires that the
government provide the citizen with timely and adequate notice of a decision
that will deprive the citizen of that interest.
Back to Beginning of Cases
A defendant demonstrated a reasonable probability that if he had been properly
advised of the immigration consequences of his plea, he would not have
pleaded no contest to an offense that would subject him to mandatory deportation
where he incorrectly assumed that his status as a lawful permanent resident
shielded him from any possible adverse immigration consequences mentioned
by the prosecutor at his plea hearing, and his counsel failed to advise
him otherwise.
Back to Beginning of Cases
The provisions of 8 U.S.C. §1252(a)(2)(D) grant the appellate court
jurisdiction to review a question of law or a mixed question of law and
fact presented in a challenge to an agency denial of cancellation of removal
for failure to establish the required hardship.
Back to Beginning of Cases
Vacatur of a conviction underlying a removal order does not excuse a late
motion to reopen. The period of probation imposed in state court does
not need to match the one-year limit on probation under the Federal First
Offender Act for the conviction to not be a conviction for purposes of
immigration law; the key question is whether state-court defendants would
have been eligible for relief under the FFOA had their offenses been prosecuted
as federal crimes. The crimes of burglary, receiving stolen property and
possession of drug paraphernalia in violation of California law are not
crimes of moral turpitude.
Back to Beginning of Cases
When an applicant seeking protection under the Convention Against Torture
posits multiple theories for why he might be tortured, the relevant inquiry
is whether—considering all possible sources of and reasons for torture—the
total probability that the applicant will be tortured exceeds 50 percent.
Although the Board of Immigration Appeals may reject credible testimony
if it is outweighed by other more persuasive evidence, when the agency
has credited an expert, it cannot reject that expert’s testimony
for the sole reason that it is not corroborated by additional evidence.
Back to Beginning of Cases
Where the record contains only an alien’s recollection as to what
his attorney said of the likely immigration consequences of his plea,
the record does not conclusively establish that he is doomed on the first
prong of Strickland v. Washington.
Back to Beginning of Cases
A petitioner suffered harm that rose to the level of past persecution where
he was forced to flee his home after being repeatedly assaulted, had his
life threatened, was between the ages of 16 and 18 when the attacks occurred,
his brother was also attacked; and precedent has recognized that Mann
Party members have faced persistent threats in the region of India where
the petitioner was attacked. The past-persecution analysis is informed
by comparing the facts of a petitioner’s case with those of similar cases.
Back to Beginning of Cases
An alien’s receipt of temporary protected status was not an admission
for purposes of 8 U.S.C. §1229b(a) and he therefore could not meet
the statutory requirement that he have seven years of continuous residence
in the United States after admission for purposes of lawful permanent
resident cancellation of removal.
Back to Beginning of Cases
A noncitizen of the United States—who initially was subject to mandatory
detention under 8 U.S.C. § 1226(c)—is not entitled to a bond
hearing under 8 U.S.C. § 1226(a) while awaiting a decision from this
court on a petition for review.
Back to Beginning of Cases
An INTERPOL Red Notice did not, by itself, establish probable cause that
there were serious reasons to believe that an alien had committed a serious
nonpolitical crime where the notice contained errors that cast doubt on
its reliability, and it failed to articulate any specific crime of which
the alien was accused; a Red Notice constitutes documentary evidence like
any other that an immigration judge should be entitled to give weight,
it is not per se insufficient to warrant a one-year bar to asylum.
Back to Beginning of Cases
Although the Board of Immigration Appeals may rely on a previous adverse
credibility determination to deny a motion to reopen if that earlier finding
still factually undermines the petitioner’s new argument, a motion
to reopen based on changed country conditions was not foreclosed by a
previous adverse credibility finding where the petitioner presented evidence
that was independent of the facts that formed the prior credibility finding
and filled some gaps on which the adverse credibility finding was predicated.
Back to Beginning of Cases
A conviction for second degree burglary of a dwelling under section 140.25(2)
of the New York Penal Law is categorically a conviction for generic burglary
under section 101(a)(43)(G) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1101(a)(43)(G) (2018), because the statute requires
burglary of a structure or vehicle that has been adapted or is customarily
used for overnight accommodation.
United States v. Stitt, 139 S. Ct. 399 (2018),
followed.
Back to Beginning of Cases
An applicant for cancellation of removal bears the burden of proving that
a conviction was vacated because of a substantive or procedural defect
in the criminal proceedings, and not solely for immigration purposes or
for rehabilitative or equitable reason.
Back to Beginning of Cases
Dissuading or attempting to dissuade a witness from reporting a crime,
in violation of California Penal Code §136.1(b)(1), is not a categorical
match to an offense relating to obstruction of justice aggravated felony
under 8 U.S.C. §1101(a)(43)(S), so an alien’s §136.1(b)(1)
conviction did not render him removable.
Back to Beginning of Cases
(1) The time and place requirement in section 239(a)(1) of the Immigration
and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing
rule, not a jurisdictional requirement.
(2) An objection to a noncompliant notice to appear will generally be considered
timely if it is raised prior to the closing of pleadings before the Immigration Judge.
(3) A respondent who has made a timely objection to a noncompliant notice
to appear is not generally required to show he or she was prejudiced by
missing time or place information.
(4) An Immigration Judge may allow the Department Homeland Security to
remedy a noncompliant notice to appear without ordering the termination
of removal proceedings.
Back to Beginning of Cases
An alien challenging reinstatement may show that he suffered a gross miscarriage
of justice on the ground that an underlying conviction was invalid due
to a merits-based defect, and would not be required to show due diligence,
but where a lawful permanent resident’s removal order had not been
reinstated and his challenge to his removal order was subject to the regulatory
number and time bar for motions to reopen, none of the circumstances in
which an alien may challenge a removal order based on the claim that a
conviction underlying a removal order is invalid were applicable.
Back to Beginning of Cases
The Department of Justice was properly enjoined from withholding grants
made pursuant to the Edward Byrne Memorial Justice Assistance Grant Program
based on immigration enforcement-related conditions. Facial constitutional
challenges to 8 U.S.C. §1373 and §1644 are not yet justiciable.
Back to Beginning of Cases
The respondent’s conviction for unlawfully selling or otherwise disposing
of a firearm or ammunition in violation of 18 U.S.C. § 922(d)
(2018) does not render him removable as charged under section 237(a)(2)(C)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C)
(2018), because § 922(d) is categorically overbroad and indivisible
relative to the definition of a firearms offense.
Back to Beginning of Cases
An asylum applicant failed to establish extraordinary circumstances to
excuse his delay in filing his asylum application where he blamed his
three-year delay on his incapacity or legal disability due to ignorance
of the relevant immigration laws, his young age of 22 years at the time
of his arrival, his lack of English-language skills, and the stress he
experienced from fleeing his home country.
Back to Beginning of Cases
An Immigration Judge may rely on impeachment evidence as part of a credibility
determination where the evidence is probative and its admission is not
fundamentally unfair, and the witness is given an opportunity to respond
to that evidence during the proceedings.
Back to Beginning of Cases
A respondent who raises an objection to missing time or place information
in a notice to appear for the first time in a motion to reopen has forfeited
that objection.
Back to Beginning of Cases
A district court did not abuse its discretion in finding the government’s
position was substantially justified in an immigration case where the
government’s position was found persuasive by no fewer than six
federal judges in the course of the case, and as many judges were persuaded
by the government’s position as were persuaded by the plaintiffs’ position.
Back to Beginning of Cases
which generally bars reopening reinstated orders of removal, is not subject
to an exception for removal orders that result in a gross miscarriage
of justice; the Board of Immigration Appeals lacks authority to reopen
such reinstated removal orders sua sponte.
Back to Beginning of Cases
The failure of a notice to appear to include time and date information
does not deprive the immigration court of subject matter jurisdiction.
Back to Beginning of Cases
The permanent inadmissibility bar of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 applies retroactively to unlawful
reentries made before IIRIRA’s effective date—provided the
alien failed to apply for adjustment before that date— because doing
so does not impose a new legal consequence based on past conduct. Aliens
are statutorily entitled to counsel, at no expense to the government,
at their reasonable fear hearings. If an alien fails to show a reasonable
possibility of future torture, then government acquiescence is irrelevant.
Back to Beginning of Cases
There was no inconsistency between an asylum seeker’s declaration
and his testimony where his written declaration did not specify how he
arrived at the hospital after being tortured, and he testified the police
had taken him. The fact that the police were aware of the asylum seeker’s
phone number and address, and that he came to the police station for questioning
the last time they called him, supports his answer that the police wanted
to see him again but were not looking for him.
Back to Beginning of Cases
-
People v. Manzanilla - filed June 13, 2022, publication ordered July 6, 2022, (California Court
of Appeal’s Second District, Div. Eight)
A defendant was entitled to vacate his felony conviction where counsel
failed to advise him that his nolo contendere plea meant mandatory deportation;
counsel failed to defend against the immigration consequences of his charge
by seeking an immigration-safe plea; and the defendant did not understand
that he faced mandatory deportation when he entered his plea.
Back to Beginning of Cases
An alien’s receipt of temporary protected status was not an admission,
and he therefore could not meet the statutory requirement that he have
seven years of continuous residence in the United States after admission
for purposes of lawful permanent resident cancellation of removal.
Back to Beginning of Cases
When an applicant seeking protection under the Convention Against Torture
posits multiple theories as to why he might be tortured, the relevant
inquiry is whether—considering all possible sources of and reasons
for torture—the total probability that the applicant will be tortured
exceeds 50 percent. Although the Board of Immigration Appeals may reject
credible testimony if it is outweighed by other more persuasive evidence,
when the agency has credited an expert, it cannot reject that expert’s
testimony for the sole reason that it is not corroborated by additional evidence.
Back to Beginning of Cases
The Board of Immigration Appeals may rely on a previous adverse credibility
determination to deny a motion to reopen if that earlier finding still
factually undermines the petitioner’s new argument.
Back to Beginning of Cases
Cite as 2022 S.O.S. 20-1775
The writ of certiorari is dismissed.
Back to Beginning of Cases
Federal courts lack jurisdiction to review the discretionary determination
of whether a particular noncitizen poses a danger to the community such
that he is not entitled to bond.
Back to Beginning of Cases
A defendant’s contemplation of his life in Mexico, contemporaneous
with his guilty plea, is persuasive evidence he knew he would be deported.
Back to Beginning of Cases
A respondent who is subject to a deferred adjudication that satisfies the
elements of sections 101(a)(48)(A)(i) and (ii) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A)(i)
and (ii) (2018), has been “convicted by a final judgment”
within the meaning of the particularly serious crime bar under section
241(b)(3)(B)(ii) of the INA, 8 U.S.C. § 1231(b)(3)(B)(ii) (2018).
Back to Beginning of Cases
First-degree burglary of a dwelling under Oregon Revised Statutes §164.225
is an aggravated felony; for offenses that are not defined by statute
as per se particularly serious crimes, the Board of Immigration Appeals
has established a multi-factor test to determine on a case-by-case basis
whether a crime is particularly serious, and there is not any subset of
such cases that is exempt from this multi-factor analysis based solely
on the elements of the offense.
Back to Beginning of Cases
Forgery under California Penal Code §472 is a crime involving moral
turpitude.
Back to Beginning of Cases
-
People v. Soto - filed May 9, 2022, publication ordered June 6, 2022, , (California Court
of Appeal’s Third District)
A trial court erred in concluding a generic advisement regarding the potential
immigration consequences of a plea satisfied Penal Code §1473.7.
Back to Beginning of Cases
(1) Matter of G‑G‑S‑, 26 I&N Dec. 339 (BIA 2014), is overruled.
(2) Immigration adjudicators may consider a respondent’s mental health
in determining whether an individual, “having been convicted by
a final judgment of a particularly serious crime, constitutes a danger
to the community of the United States.” 8 U.S.C. § 1158(b)(2)(A)(ii);
see id § 1231(b)(3)(B)(ii).
Back to Beginning of Cases
The BIA held (1) Any fact that establishes or increases the permissible
range of punishment for a criminal offense is an “element”
for purposes of the categorical approach, even if the term “element”
is defined differently under State law.
Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed.
(2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes,
which punishes possession with intent to deliver a controlled substance,
is divisible with respect to the identity of the controlled substance
possessed, and the respondent’s conviction under this statute is
one for a controlled substance violation under section 237(a)(2)(B)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i)
(2018), under the modified categorical approach.
Back to Beginning of Cases
The 9th Circuit held the BIA erred in affirming an immigration judge’s
denial of protection under the Convention Against Torture to a gay Nigerian
man where the board failed to consider an excommunication notice from
the Council of Traditional Rulers of the man’s community stating
that he was subject to execution for being gay, or making more than a
fleeting reference to a collection of letters and affidavits from family
members about the attacks and threats against them, and the man, after
his sexuality was publicly revealed; the BIA also erred in concluding
the man had filed a frivolous asylum application, because any fabrication
concerning the name of the hotel where he was discovered with his boyfriend
did not concern a material element of his asylum claim.
Back to Beginning of Cases
The BIA held (1) The Supreme Court’s construction of “physical
force” in
Johnson v. United States, 559 U.S. 133 (2010), and
Stokeling v. United States, 139 S. Ct. 544 (2019), controls our interpretation of 18 U.S.C.
§ 16(a) (2018), which is incorporated by reference into section
237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court’s construction
of “physical force” in
United States v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment
under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive
touching, it is overbroad with respect to § 16(a) and therefore is
not categorically a crime of domestic violence under section 237(a)(2)(E)(i)
of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
Back to Beginning of Cases
The 9th Circuit held a federal appellate court may deny a petition for
review based on the BIA’s lack of jurisdiction under 8 U.S.C. §1231(a)(5),
even when the BIA did not rule on that basis.
Back to Beginning of Cases
The 9th Circuit held the BIA did not abuse its discretion in concluding
that a petitioner did not warrant equitable tolling of the time limitation
on his motion to reopen based on alleged ineffective assistance of counsel
where the petitioner failed to show that his prior counsel acted deficiently
in failing to file earlier untimely motions to reopen; the agency did
not abuse its discretion in concluding that the petitioner did not sufficiently
demonstrate materially changed country conditions in Mexico to excuse
the untimely filing of his motion.
Back to Beginning of Cases
The BIA held (1) If a State court’s
nunc pro tunc order modifies or amends the subject matter of a conviction based
on a procedural or substantive defect in the underlying criminal proceedings,
the original conviction is invalid for immigration purposes and we will
give full effect to the modified conviction; however, if the modification
or amendment is entered for reasons unrelated to the merits of the underlying
proceedings, the modification will not be given any effect and the original
conviction remains valid.
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003),
rev’d on other grounds,Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), followed.
(2) Section 18.2-248 of the Virginia Code, which criminalizes the distribution
of a controlled substance, is divisible with respect to the identity
of the specific “controlled substance” involved in a violation
of that statute.
Back to Beginning of Cases
The 9th Circuit held where an alien’s proceedings were initiated
with a Notice of Referral to Immigration Judge and not a Notice to Appear,
the rule from
Pereira v. Sessions was inapplicable; even if NTAs and NORs are analogous, when hearing details
are later provided, there is no jurisdictional defect.
Back to Beginning of Cases
The 9th Circuit held an employer’s conduct violated the provisions
of Chapter 77 of Title 18 of the U.S. Code that prohibit forced labor
and trafficking of persons into forced labor where the employer admitted
that the plaintiffs believed that their ability to remain lawfully in
the U.S. depended on their continued employment and the plaintiffs alleged
they were recruited to work under the TN Visa program for professional
employees established under the North American Free Trade Agreement but
were forced to work as general laborers.
Back to Beginning of Cases
The BIA held a finding of guilt in a proceeding that affords defendants
all of the constitutional rights of criminal procedure that are applicable
without limitation and that are incorporated against the States under
the Fourteenth Amendment is a “conviction” for immigration
purposes under section 101(a)(48)(A) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(48)(A) (2018).
Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), clarified.
Back to Beginning of Cases
The BIA held Larceny in the third degree under section 53a-124(a) of the
Connecticut General Statutes is not a theft offense aggravated felony
under section 101(a)(43)(G) of the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference
a definition of “larceny” under section 53a-119 of the Connecticut
General Statutes that is overbroad and indivisible with respect to the
generic definition of a theft offense.
Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and
Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), not followed.
Back to Beginning of Cases
The BIA held when the Department of Homeland Security raises the mandatory
bar for filing a frivolous asylum application under section 208(d)(6)
of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6)
(2018), an Immigration Judge must make sufficient findings of fact and
conclusions of law on whether the requirements for a frivolousness determination under
Matter of Y‑L‑, 24 I&N Dec. 151 (BIA 2007), have been met.
Back to Beginning of Cases
The 9th Circuit held a violation of California Penal Code § 273.5(a)
is categorically a crime of domestic violence under 8 U.S.C. §1227(a)(2)(E)(i);
a criminal information and minute order are sufficient to establish that
conviction. In light of
Mathis v. United States, California Penal Code § 261(a)(4) is now indivisible.
Back to Beginning of Cases
The BIA held an applicant for adjustment of status under section 209(b)
of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2018),
must possess asylee status at the time of adjustment, and thus an applicant
whose asylee status has been terminated cannot adjust to lawful permanent
resident status under this provision.
Back to Beginning of Cases
The California Court of Appeal's Second District held a trial court did
not abuse its discretion in denying a request for pretrial mental-health
diversion pursuant to California Penal Code § 1001.36 where the record
supported a reasonable belief the defendant will not refrain from using
methamphetamine if he is treated in the community without conviction and
supervised probation, his use of the drug causes him to become unstable
and psychotic, and the voices in his head had told him to start a brush
fire which led to the arson charges against him.
Back to Beginning of Cases
The 9th Circuit held an individual’s inadmissible status renders
that individual’s reentry illegal for purposes of reinstatement
of a prior removal order under 8 U.S.C. §1231(a)(5), regardless of
the individual’s manner of reentry.
Back to Beginning of Cases
The 9th Circuit held a court lacks jurisdiction to consider an alien’s
unexhausted challenge to his hearing notice. An adverse credibility determination
was adequately supported by substantial evidence where an alien never
raised his claim of part harm during the processing of multiple prior
deportations, and when he did finally raise such harms in conjunction
with his current deportation, he continuously altered his story about
those harms in terms of the nature and timing of his injuries.
Back to Beginning of Cases
The 9th Circuit held a noncitizens must receive a Notice to Appear in a
single document specifying the time and date of the noncitizen’s
removal proceedings, otherwise any
in-absentia removal order directed at the noncitizen is subject to rescission pursuant
to 8 U.S.C. §1229a(b)(5)(C)(ii).
Back to Beginning of Cases
The BIA held The amount of forfeiture ordered in a criminal proceeding
may be considered in determining whether a crime of fraud or deceit resulted
in a loss to a victim or victims exceeding $10,000 pursuant to section
101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(M)(i) (2018), if the amount set forth in the order is sufficiently
tethered and traceable to the conduct of conviction.
Back to Beginning of Cases
The 9th Circuit held a defendant who accepted a plea agreement in which
he waived his right to collaterally attack his conviction cannot use a
declaratory action and motion to clarify or to carve out a collateral
legal issue from a potential habeas petition and to use the Declaratory
Judgment Act as a substitute to challenge his sentence.
Back to Beginning of Cases
The BIA held Section 714.1 of the Iowa Code is divisible with respect to
whether a violation of the statute involved theft by taking without consent
or theft by fraud or deceit, permitting an Immigration Judge to review
the conviction record under a modified categorical approach to determine
whether the violation involved aggravated felony theft as defined in section
101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(G) (2018).
Back to Beginning of Cases
The California Court of Appeal's Fifth District held California Penal Code
§ 1001.36 does not confer a
sua-sponte duty on trial courts to consider mental-health diversion, but courts must
give serious consideration to this critical alternative. A defendant cannot
establish the ineffectiveness of his counsel to request mental-health
diversion where the record did not establish that the defendant was eligible
for diversion.
Back to Beginning of Cases
The BIA held because the identity of the “controlled dangerous substance”
possessed is an element of the crime of possession of a controlled dangerous
substance under section 2C:35-10(a)(1) of the New Jersey Statutes Annotated,
the statute is divisible with respect to the specific substance possessed,
and the record of conviction can be examined under the modified categorical
approach to determine whether that substance is a controlled substance
under Federal law.
Back to Beginning of Cases
The 9th Circuit held in a criminal proceeding under 8 U.S.C. §1326,
an alien may not challenge the validity of a removal order unless the
alien demonstrates exhaustion of available administrative remedies, that
the removal proceedings improperly deprived the alien of the opportunity
for judicial review, and that entry of the order was fundamentally unfair;
each of the statutory requirements of §1326(d) is mandatory.
Back to Beginning of Cases
The BIA held a respondent receives sufficient written notice to support
the entry of an
in-absentia order of removal, even if he or she was served with a noncompliant notice
to appear that did not specify the time or place of the hearing, where
the respondent was properly served with a statutorily compliant notice
of hearing specifying this information.
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished.
Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), and
Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.
Back to Beginning of Cases
The 9th Circuit held the BIA was not unreasonable in rejecting a proposed
particular social group of female nurses on the ground that nursing is
not an immutable characteristic. Venue under 8 U.S.C. §1252(b)(2)
was proper in the Ninth Circuit where the immigration judge in this case
formally transferred venue from Salt Lake City to Boise; thereafter the
alien never physically appeared in Salt Lake City, but rather remained
in Boise; the IJ indicated that proceedings were conducted in Boise, and
the BIA held that proper venue was in the Ninth Circuit; both final hearing
notices designated Boise as the location for the final hearing; and; the
statute expressly allows any of the participants in a removal hearing
to appear at the designated hearing location by video conference, pursuant
to §1129a(b)(2)(A)(iii), and the IJ and the government attorney elected
to do so from Salt Lake City.
Back to Beginning of Cases
The 9th Circuit held notice provided to a minor who was released on her
own recognizance, without notice of her hearing to a reasonable adult,
was sufficient where there was no adult present to assume responsibility
for the minor and no adult ever entered an agreement with the government
to assume responsibility for the minor.
Back to Beginning of Cases
-
People v. Abdelsalam - filed Jan. 6, 2022, (California Court of Appeal’s Second District,
Div. Eight)
The California Court of Appeal's Second District, DIV Eight held neither
California Penal Code § 1473.7, nor any other authority, requires
a court to articulate on the record that it is using the preponderance
of the evidence standard when denying the motion.
Back to Beginning of Cases
The California Court of Appeal's Second District, Div Eight held objective
circumstances justified a border patrol agent’s decision to stop
a minivan and investigate where the vehicle entered a restricted area
where the agent knew people would cut through the border fence and get
picked up by large passenger vehicles. When police give an incomplete
admonition about the consequences of refusing chemical testing, the law
limits the permissible sanction to the extent of actual notice.
Back to Beginning of Cases
The 9th Circuit held an alien’s conditional discharge for his Georgia
drug offense was a conviction under the Immigration and Nationality Act;
it satisfied the requirements for situations in which an adjudication
of guilt has been withheld because the conditional discharge required
the alien to plead guilty to or be found guilty of possessing marijuana,
and imposed probation. The personal-use exception of 8 U.S.C. §1227(a)(2)(B)(i)
does not unambiguously direct courts to use either the categorical approach
or the circumstance-specific approach; the circumstance-specific approach
permits a petitioner to be deported on the basis of circumstances that
were not judicially determined to have been present and which he may not
have had an opportunity, prior to conviction, to dispute, but the approach
still requires fundamentally fair procedures and requires the government
to prove that the quantity of marijuana exceeded 30 grams by clear and
convincing evidence.
Back to Beginning of Cases
The 9th Circuit held the phrase “an offense” in the cancellation
of removal statute at 8 U.S.C §1229b(b)(1)(C) includes the multiple
criminal convictions described in §1182(a)(2)(B).
Back to Beginning of Cases
The 9th Circuit held Arizona Revised Statutes §13-3405(A)(4) s overbroad
and divisible; a lawful permanent resident’s §13-3505(A) convictions,
which involved categories in the statute involving the smallest quantity
of marijuana, were not crimes involving moral turpitude.
Back to Beginning of Cases
The 9th Circuit held the BIA need not provide a detailed explanation of
every argument or piece of evidence in its decision to demonstrate that
it considered the relevant evidence.
Back to Beginning of Cases
The 9th Circuit held in the absence of an opportunity to cross-examine
its declarants, the BIA erred in relying on a probation report to conclude
that a petitioner had been convicted of a particularly serious crime rendering
him ineligible for withholding of removal; the government deprives an
individual of a fundamentally fair hearing when it fails to make a good-faith
effort to afford him a reasonable opportunity to confront and to cross-examine
the witness against him.
Back to Beginning of Cases
The 9th Circuit held Christians in Indonesia are a disfavored group, but
the BIA must also consider a petitioner’s status as an evangelical
Christian, as well as evidence presented indicating that evangelical Christians
have experienced a particular increase in violence and persecution, beyond
that experienced by Indonesian Christians in general, in determining whether
the petitioner had an individualized risk of persecution.
Back to Beginning of Cases
The California Court of Appeal's Fourth District, Div One held where a
petitioner’s adverse immigration consequences predate Jan. 1, 2017,
a court assessing the timeliness of a Penal Code § 1473.7 motion
must determine when the petitioner would have had reason to seek legal
help or otherwise investigate new forms of postconviction relief, and
evaluate diligence from that point forward, in light of all the circumstances.
Back to Beginning of Cases
The BIA held a notice to appear that does not specify the time or place
of a respondent’s initial removal hearing does not end the accrual
of physical presence for purposes of voluntary departure at the conclusion
of removal proceedings under section 240B(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later
served with a notice of hearing specifying this information.
Posos‑Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021), followed.
Matter
of Viera‑Garcia and Ordonez‑Viera, 28 I&N Dec. 223 (BIA 2021), overruled in part.
Back to Beginning of Cases
The 9th Circuit held The BIA did not abuse its discretion in denying equitable
tolling of the 30-day motions deadline to a petitioner seeking reconsideration
of an order of removal who failed to present any evidence suggesting that
he diligently pursued his rights during the time between his removal based
on his conviction under 18 U.S.C. §16(b) and the time that statute
was invalidated as unconstitutional.
Back to Beginning of Cases
The 9th circuit held in reviewing a reinstatement order, the court has
jurisdiction under 8 U.S.C. §1252(a)(2)(D) to entertain a collateral
attack on the underlying removal order only if the petitioner can show
that he suffered a gross miscarriage of justice in the initial immigration
hearing. A valid exclusion order is not disturbed by post-conviction relief.
When a removal order is legally valid at the time of entry and execution,
a petitioner cannot challenge a reinstatement of that order as a gross
miscarriage of justice based on developments that call into question the
original removal order, but which occurred after the petitioner was removed
from this country.
Back to Beginning of Cases
The 9th Circuit held there is no colorable constitutional claim exception
to the limits Congress placed on the court’s jurisdiction to review
challenges to expedited removal orders.
Back to Beginning of Cases
The 9th Circuit held The term “proceeds,” as used in 18 U.S.C.
§982(a)(6)(A)(ii)(I)(7), extends to receipts and is not limited to
profit. The amounts a defendant paid to H-1B beneficiary employees who
performed legitimate work for the clients of the defendant’s company
were still proceeds obtained indirectly from his unlawful act of submitting
fraudulent visa applications.
Back to Beginning of Cases
The BIA held the respondent’s conviction for carjacking under section
215(a) of the California Penal Code is categorically a conviction for
an aggravated felony crime of violence under section 101(a)(43)(F) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).
Back to Beginning of Cases
The 9th Circuit held the stop-time rule – which sets out the circumstances
under which a period of continuous physical presence is deemed to end
for cancellation of removal – is not triggered by a final order
of removal.
Back to Beginning of Cases
The California Court of Appeal's Fifth District held California Penal Code
§ 1001.36(b)(1)(A) does not wholly preclude from diversion defendants
who suffer from both excluded and included mental health disorders from
mental health diversion; § 1001.36(b)(1)(A) requires only that a
defendant suffers from one qualified mental health disorder.
Back to Beginning of Cases
-
People v. Murillo - filed Oct. 25, 2021, publication ordered Nov. 23, 2021 (California Court
of Appeal’s Fourth District, Div. Three)
The California Court of Appeal’s Fourth District, Div. Three held
California Penal Code § 1473.6 utilizes the same procedural rules
that are used for adjudicating a petition for writ of habeas corpus, so
a trial court cannot engage in judicial fact finding at the initial state
of the motion process, prior to the issuance of an order to show cause,
when a defendant moves to vacate his conviction under that statute.
Back to Beginning of Cases
The 9th Circuit held a group of plaintiffs did not make a clear showing
that U.S. Immigrations and Customs Enforcement directives in response
to the COVID-19 pandemic reflected deliberate indifference to medical
needs and reckless disregard of known health risk; ICE’s national
directives did not create excessive conditions of punishment either; plaintiffs
bringing §504 claim under the Rehabilitation Act must show that they
were denied the benefits of the program solely by reason of a disability.
Back to Beginning of Cases
The U.S. Supreme Court held to show a violation of clearly established
law, a plaintiff must identify a case that put an officer on notice that
his specific conduct was unlawful; precedent involving similar facts can
help move a case beyond the otherwise hazy borders between excessive and
acceptable force and thereby provide an officer notice that a specific
use of force is unlawful, but a case involving officers responding to
a noise complaint and encountering an unarmed man was not sufficiently
similar to a case involving response to a serious alleged incident of
domestic violence possibly involving a chainsaw, and an encounter with
an armed man, for the rule from the first case to govern the outcome of
the second.
Back to Beginning of Cases
The 9th Circuit held when a defendant waives his appellate rights, he knows
that he is giving up all appeals, no matter what unforeseen events may
happen; although there always remains a chance the law could change in
a defendant’s favor, the defendant knowingly and voluntarily assumes
that risk because he receives a presumably favorable deal under existing
law. While an appellate waiver does not apply to an illegal sentence,
an illegal sentence does not include an illegal conviction.
Back to Beginning of Cases
The BIA held An Immigration Judge has the authority to inquire into the
bona fides of a marriage when considering an application for adjustment
of status under section 245(a) of the Immigration and Nationality Act,
8 U.S.C. § 1255(a) (2018).
Back to Beginning of Cases
The 9th Circuit held First-degree assault under Washington Revised Code
§ 9A.36.011 is categorically a crime-of-violence aggravated felony.
Back to Beginning of Cases
The California Court of Appeal’s Fourth District, Div. Two held an
independent standard of review applies to all prejudice determinations
under California Penal Code §1473.7(a)(1). A defendant bringing a
claim under §1473.7 or §1016.5 can show prejudice by convincing
the court that he would have chosen to lose the benefits of the plea bargain
despite the possibility or probability deportation would nonetheless follow.
Back to Beginning of Cases
The 9th Circuit held a petitioner must provide meaningful guidance to the
Board of Immigration Appeals of the issues contested on appeal; a generalized
and conclusory statement about the proceedings before the immigration
judge does not suffice. When a petitioner gives detailed reasons to support
her appeal, either in a separate brief or on the Notice of Appeal itself,
summary dismissal under 8 C.F.R. §1003.1(d)(2)(i)(E), for failure
to file a brief, violates her due process rights. The board may not ignore
a pro se petitioner’s inartful legal arguments if they suffice to
give notice of the petitioner’s reasons for appeal.
Back to Beginning of Cases
The BIA held (1) A Notice to Appear that does not specify the time and
place of a respondent’s initial removal hearing does not deprive
the Immigration Judge of jurisdiction over the respondent’s removal
proceedings.
Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished;
Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and
Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent’s
initial removal hearing constitutes a “charging document”
as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate
a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
Back to Beginning of Cases
The Ninth Circuit held a petitioner must file a motion to reopen under
8 U.S.C. §1229a(b)(5)(C)(i) to challenge an in absentia removal order
within 180 days; the 180-day timeline will not be tolled or stayed when
a petitioner mistakenly files an appeal to the Board of Immigration Appeals,
and if the petitioner does not file a motion to reopen with the immigration
judge, the removal order becomes final at the end of the 180-day period.
Back to Beginning of Cases
The Ninth Circuit held an alien’s convictions for robbery in the
second degree and attempted robbery in the second degree, in violation
of Washington law, do not qualify as aggravated felony theft offenses
under 8 U.S.C. §§1101(a)(43)(G), (U).
Back to Beginning of Cases
The Ninth Circuit held that substantial evidence supported a denial of
asylum to an alien who submitted false information in her asylum application
regarding her arrest record and in her visa application regarding her
employment; while this latter factor alone might not support an adverse
credibility finding, it was an appropriate factor to consider when the
alien made no attempt during her hearing to explain why she needed to
provide the false information. An alien’s omission regarding her
husband’s employment was not a proper basis for an adverse credibility
determination, where the omission might be a collateral or ancillary omission
that, under the totality of the circumstances, had no tendency to suggest
the alien fabricated her claim.
Back to Beginning of Cases
The BIA held a person who enters the United States as a refugee and later
adjusts in the United States to lawful permanent resident status is not
precluded from establishing eligibility for a waiver of inadmissibility
under section 212(h) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(h) (2018), based on a conviction for an aggravated felony,
because he or she has not “previously been admitted to the United
States as an alien lawfully admitted for permanent residence” under
that provision.
Back to Beginning of Cases
The 9th Circuit held the Board of Immigration Appeals erred in relying
on a probation report to conclude an alien had been convicted of a particularly
serious crime when the alien did not have an opportunity to cross-examine
the author of the report, or the underlying declarant.
Back to Beginning of Cases
The 9th Circuit held child endangerment, in violation of California Penal
Code §273a(a), does not constitute a crime of child abuse, child
neglect, or child abandonment within the meaning of 8 U.S.C. §1227(a)(2)(E)(i).
Back to Beginning of Cases
The 9th Circuit held an immigration judge provided sufficient safeguards
to protect the due process rights of a lawful permanent resident who had
been found mentally incompetent in removal proceedings by appointing a
qualified representative, granting every continuance requested, compelling
document productions from the Department of Homeland Security, ensuring
the representative was able to file written pleadings and applications
for relief, personally questioning the resident, and reviewing the record
evidence submitted to support the claims for relief. A particularly serious
crime determination is inherently discretionary and that jurisdiction
to review such determinations exists only when the petitioner raises a
constitutional or legal question, not simply where he asks for re-weighing
of factors. An immigration judge is not always required to reference a
petitioner’s mental health in making the particularly serious crime
determination; consideration of mental illness is required only where
the petitioner presents evidence directly attributing the crime to his
mental illness. While police in the Dominican Republic do injure detainees,
the government does not demonstrate intentional complicity and the record
does not compel the conclusion that any individual detainee is more likely
than not to be tortured.
Back to Beginning of Cases
The 9th Circuit An exception to the law of the case doctrine applies when
a prior decision was clearly erroneous and enforcement of the prior decision
would work a manifest injustice. At most, an adverse credibility determination
may be used to invalidate an applicant’s testimony, but the falsus
in uno, falsus in omnibus maxim may not be used to wipe out an entire
claim that is corroborated by other evidence. On a motion to reopen the
Board of Immigration Appeals is required to accept as true the facts stated
in an affidavit unless they are inherently unbelievable.
Back to Beginning of Cases
The California Court of Appeal's Fifth District held California Penal Code
§1473.7(b) contains a general rule requiring the court to deem the
motion timely in certain circumstances, and a discretionary exception
that permits the court to deem the motion untimely if the moving party
did not act with reasonable diligence in bringing the motion after specific
triggering events; the absence of reasonable diligence does not automatically
result in the motion being deemed untimely, and a court has the discretionary
authority, after considering the totality of the circumstances, to deem
a motion timely even if the moving party did not act with reasonable diligence.
Back to Beginning of Cases
The 9th Circuit held that Circuit precedent applying the single factor
rule, which required the court to sustain an adverse credibility determination
from the Board of Immigration Appeals, so long as one of the agency’s
identified grounds was supported by substantial evidence, cannot be reconciled
with the REAL ID Act; there is no bright-line rule under which some number
of inconsistencies requires sustaining or rejecting an adverse credibility
determination.
Back to Beginning of Cases
The 9th Circuit held noncitizens with reinstated removal orders, while
eligible to seek withholding and Convention Against Torture relief, are
not eligible to seek asylum.
Back to Beginning of Cases
The California Court of Appeal's Second District, Div. One held that a
petitioner seeking judicial findings that would enable him to petition
the U.S. Citizenship and Immigration Services to classify him as a special
immigrant juvenile under federal immigration law has the burden of proving
by a preponderance of the evidence the facts supporting SIJ status; where
a trial court has found his evidence did not support the requested findings,
the petitioner has the burden on appeal of showing that he is entitled
to the SIJ findings as a matter of law.
Back to Beginning of Cases
The 9th Circuit held that a petitioner failed to present sufficient evidence
to permit a rational trier of fact to find that his parents obtained a
legal separation, by a preponderance of the evidence; parents cannot be
said to have legally separated within the meaning of former §321(a)
of the Immigration and Nationality Act unless they had a validly recognized
relationship in the first place.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration Appeals is permitted
to afford substantial weight to inconsistencies that bore directly on
an asylum-seeker’s claim of persecution; although omissions are
less probative of credibility than inconsistencies created by direct contradictions
in evidence and testimony, when the omission was concerning events and
circumstances that the alien experienced directly, on direct examination,
about the specific event that allegedly prompted him to flee, an immigration
judge could afford substantial weight to the discrepancies. An IJ can
rely on an alien’s evasive and unresponsive demeanor while testifying
after providing examples of his evasiveness.
Back to Beginning of Cases
The California Court of Appeal's First District, Div. Two held a trial
court erred in rejecting a defendant’s Penal Code §1473.7 motion
where she was no longer in custody in the underlying case and she showed
it was reasonably probable that she would not have entered her no contest
plea if she had known its adverse immigration consequences; her probation
status in a wholly separate case did not bar her motion.
Back to Beginning of Cases
The 9th Circuit held that following
Rehaif v. U.S., the government must—in order to gain a conviction under 18 U.S.C.
§922(g)(5)(B)— prove a defendant knew he was admitted into
the country under a nonimmigrant visa as defined by §922(g); establishing
that the defendant knew his visa was called an H-1B visa is not enough,
he government must show that the defendant knew his particular visa was
nonimmigrant—knowledge that can be established by demonstrating
the defendant knew that his visa was classified as a nonimmigrant visa,
or by showing he knew his visa possessed the components that constitute
a nonimmigrant visa.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration appeals impermissibly
applied the rule from
Matter of Cortes Medina retroactively to an alien who became removable under 8 U.S.C. §1227(a)(2)(A)(i) after
Cortes Medina classified his offense as a crime involving moral turpitude and his conviction
became a potential ground for removal after
Cortes Medina was decided.
Back to Beginning of Cases
The 9th Circuit held an immigration judge erred by failing to give specific,
cogent reasons for rejecting an alien’s reasonable, plausible explanations
for the discrepancies tied to her declaration concerning the distance
she traveled in a police truck before escaping on foot after officers
raped her and being rescued by her husband; the judge further erred by
discounting the alien’s supporting documentation without giving
her adequate notice and opportunity to provide corroborative evidence.
Substantial-evidence review does not require the Board of Immigration
Appeals to credit the credibility finding of a judge who cherry-picks
from—or misconstrues—the record to reach it.
Back to Beginning of Cases
The 9th Circuit held non-citizens whose removal orders have been reinstated
are statutorily entitled to counsel under 8 U.S.C. §1362, at no expense
to the government, at their reasonable fear hearings before an immigration
judge; in the absence of exceptional circumstances, denying a continuance
despite the noncitizen’s inability to retain counsel within 10 days
is not a denial of this entitlement where, at the time the asylum officer
notified the non-citizen of the negative fear determination and the non-citizen
requested IJ review, the asylum officer informed the non-citizen of the
opportunity to have counsel, such as by providing the non-citizen with
a list of legal service providers; the statutory entitlement to counsel
does not mean that a noncitizen must have counsel before an IJ can proceed,
but only that a non-citizen must at least be informed of the entitlement
to counsel and have an opportunity to seek counsel within §208.31(g)(1)’s
constraints.
Back to Beginning of Cases
The 9th Circuit held A requestor must exhaust his administrative remedies
under the Freedom of Information Act so long as an agency properly responds
before suit is filed.
Back to Beginning of Cases
The 9th Circuit held that vehicle theft under California Vehicle Code §10851(a)
is indivisible in its treatment of accessories after the fact, and therefore,
is not an aggravated felony theft offense under 8 U.S.C. §1101(a)(43)(G).
Back to Beginning of Cases
The 9th Circuit held that substantial evidence supported the denial of
withholding of removal under the serious nonpolitical crime bar where
an arrest warrant declaring the alien in contempt of court for failing
to attend a pretrial hearing created an indication of reliability by including
the alien’s name and identifying information, explaining that he
was accused of aggravated murder, listing the names of the victims, and
implying that the charged murders were gang related; the Interpol Red
Notice contained a brief description of events allegedly involving the
alien; and the alien admitted that the identifying information in the
documents fit his description, his testimony placed him within several
miles of the murder at the time of the crime, and the alien conceded that
the Salvadoran arrest warrant issued for him requires a witness, suggesting
the Salvadoran government had additional evidence. An alien’s concession
of safety combined with an inability to do more than speculate that the
police would not protect him from gang violence provided substantial evidence
to support the denial of Convention Against Torture protection.
Back to Beginning of Cases
The 9th Circuit held substantial evidence supported a finding that the
incidents of harm an alien experienced in India did not rise to the level
of persecution where there was no indication he experienced significant
physical harm, he was only detained one time for less than 24-hours, the
threats he received were generally anonymous and vague, the police did
not threaten his life if he returned to his business after the police
seized his files, and he did not claim he was foreclosed from finding
other employment. Substantial evidence supported a finding that the alien
did not have an objectively reasonable fear of future persecution where
there was only a speculative possibility that his alleged persecutors
would still be interested in him, his family remained safe in India, and
he was able to visit India without interference.
Back to Beginning of Cases
The 9th Circuit held that there is no colorable constitutional claim exception
to the limits Congress placed on the court’s jurisdiction to review
challenges to expedited removal orders.
Back to Beginning of Cases
The 9th Circuit held an alien was not put on notice that his alleged false
claim of citizenship would be at issue at a hearing where his alleged
false claim of citizenship had not been raised by the immigration judge
for two years, and the last time it had been discussed the IJ implied
it would only be dispositive if the Department of Homeland Security sustained
a false claim of citizenship charge against him, but such a charge was
never brought; this failure to put an alien on notice that his alleged
false claim of citizenship would be at issue during the hearing violated
due process.
Back to Beginning of Cases
The 9th Circuit held the plain language of 8 U.S.C. §1252(g) barred
judicial review of an alien’s claims challenging the government’s
execution of his removal order. A Board of Immigration Appeals interim
order denying a stay of removal pending resolution of a motion to reopen
is not a final order subject to judicial review.
Back to Beginning of Cases
The 9th Circuit held an alien was ineligible for cancellation of removal
due to his conviction of an offense described under 8 U.S.C. § 1182(a)(2),
which describes a ground of inadmissibility, even though he had been admitted
into the U.S.
Back to Beginning of Cases
The BIA held Section 240A(c)(6) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(c)(6) (2018), bars an applicant, who has previously
been granted special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit.
II, 111 Stat. 2160, 2193, 2198 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), from applying for cancellation
of removal under section 240A(a) or (b)(1) of the Act.
Back to Beginning of Cases
The 9th Circuit held the exhaustion requirement of 8 U.S.C. §1252(d)(1)
contains an exception for cases in which exhaustion would be futile; where
the agency’s position on the question at issue appears already set,
and it is very likely what the result of recourse to administrative remedies
would be, such recourse would be futile and is not required. A Board of
Immigration Appeals rule categorically barring people erroneously perceived
to be gang members from recognition as a particular social group is inconsistent
with the requisite fact-based analysis required for proposed particular
social groups; the board may not reject a group solely because it had
previously found a similar group in a different society to lack social
distinction or particularity.
Back to Beginning of Cases
The 9th Circuit held if the alien is an applicant for admission, then the
alien has the burden of establishing...that the alien is clearly and beyond
doubt entitled to be admitted and is not inadmissible; an applicant for
relief from removal has the burden of establishing eligibility, and if
the evidence indicates that one or more of the grounds for mandatory denial
of relief may apply, the alien shall have the burden of proving by a preponderance
of the evidence that such grounds do not apply; the preponderance of the
evidence burden is comparatively much easier to meet than the clearly
and beyond doubt burden; the clearly and beyond doubt burden did not apply
to a petitioner who had been admitted into the U.S. before he applied
for adjustment.
Back to Beginning of Cases
The 9th Circuit held Hawaii’s fourth degree theft statute, a petty
misdemeanor involving property valued at less than $250, is overbroad
with respect to the Board of Immigration Appeals’ definition of
a crime involving moral turpitude; Hawaii’s fourth degree theft
statute is indivisible. An alien’s admissions regarding removability
can satisfy the government’s burden of proof if the immigration
judge relies on those admissions. Where the BIA considers an issue on
the merits and ignores a procedural defect, the court cannot decline to
consider the issue based on the defect.
Back to Beginning of Cases
The BIA held
(1) The offense of aggravated statutory rape under section 39-13-506(c)
of the Tennessee Code Annotated is categorically a “crime of child
abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The Supreme Court’s holding that a statutory rape offense does
not qualify as “sexual abuse of a minor” based solely on the
age of the participants, unless it involves a victim under 16, does not
affect our definition of a “crime of child abuse” in
Matter of Velazquez‑Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s
statutory rape offense falls within this definition.
Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017),
distinguished.
Back to Beginning of Cases
The 9th Circuit held under the circumstance-specific approach from
Nijhawan v. Holder, the district court is not limited to reviewing the record in the applicant’s
criminal case.
Back to Beginning of Cases
The 9th Circuit held Conspiracy under California Penal Code §182(a)(1)
is overbroad but divisible as to the target crime, and the sale and transport
of a controlled substance under California Health and Safety Code §11352
is overbroad and divisible as to controlled substance. When a statute
places the burden of proof on an applicant for immigration relief to show
the absence of a disqualifying conviction, and the applicant stands convicted
under a divisible statute that includes some offenses that are disqualifying
and others that are not, and the record of conviction is ambiguous concerning
which category fits the applicant’s crime, then the applicant has
failed to carry the required burden of proof.
Back to Beginning of Cases
The Attorney General of the U.S. decided that
(1)
Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board
should no longer follow
A-C-A-A- I in pending or future cases and should conduct proceedings consistent with
this opinion and the opinions in
Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L‑E‑A‑ III”), and
Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A‑B- III”).
(2) The Board’s longstanding review practices that
A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on
immigration court stipulations, are restored.
Back to Beginning of Cases
(1) Immigration Judges and the Board lack the authority to recognize the
equitable defense of laches in removal proceedings.
(2) The respondent’s willful misrepresentations regarding his name,
location of his residence, timing of his departure from Rwanda, and membership
in political organizations on his Registration for Classification as Refugee
(Form I-590) and supporting documents were “material” within
the meaning of section 212(a)(6)(C)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), and he is therefore
removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2018).
(3) The evidence indicatesthat the respondent ordered, incited, assisted,
or otherwise participated in the Rwandan genocide, and he did not produce
sufficient countervailing evidence to demonstrate that he is not subject
to the genocide bar at section 212(a)(3)(E)(ii) of the Act.
Back to Beginning of Cases
The 9th Circuit held the jurisdiction of the immigration court vests upon
the filing of a notice to appear, even one that does not at the time inform
the alien of the time, date, and location of the hearing.
Back to Beginning of Cases
The California Court of Appeal's Fourth District, Div. Three held the rule
from the California Supreme Court’s decision in
People v. Vivar pertaining to Penal Code §1473.7 does not apply to §1018 cases
involving immigration advisements; a trial court’s warning that
deportation will result is not categorical a bar to relief; a generic
advisement of consequences, does not constitute a bar to relief; where
counsel admitted he was not aware of the specific immigration consequences
of the individual charges the defendant was facing, he could not have
provided accurate and affirmative advice as to the consequences of a guilty
plea to any particular count as required by §1016.3.
Back to Beginning of Cases
The Attorney General of the U.S. held
(1)
Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.
(2) While rulemaking proceeds and except when a court of appeals has held
otherwise, immigration judges and the Board should apply the standard
for administrative closure set out in
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and
Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).
Back to Beginning of Cases
The 9th Circuit held although decisions regarding the admission and exclusion
of foreign nationals are subject to the doctrine of consular non reviewability,
there is a circumscribed judicial inquiry for review of consular decisions
that involve a violation of constitutional rights; a foreign national
seeking admission into the U.S. has no constitutional right to entry,
and so he personally has no ability to bring a cause of action challenging
his denial of admission. The liberty specially protected by the Due Process
Clause does not include a right of familial association that itself includes
a right of an adult child to bring his alien parent into the U.S.
Back to Beginning of Cases
The 9th Circuit held inherent plausibility in the context of adverse credibility
determinations refers to the inherent believability of testimony in light
of background evidence; an immigration judge must provide specific and
cogent reasons, including citations to record evidence, in support of
an implausibility finding, and may not base that finding on speculation
or conjecture; the judge also must provide a witness an opportunity to
explain a perceived implausibility during the merits hearing; the cited
evidence in the record, including a witness’s own testimony, need
not conclusively establish that the witness’s testimony is false,
and the judge’s implausibility finding will ultimately hinge on
the application of a reasonable evaluation of the testimony and evidence
based on common sense.
Back to Beginning of Cases
The 9th Circuit held in absence of clear evidence to the contrary, the
court may presume that public officers properly discharge their duties,
and an alien declaration stating that he did not remember receiving a
copy of a Notice to Appear falls short of the evidence needed to rebut
the presumption of regularity. Absent a showing of prejudice, improper
service of an NTA on a minor alien released from Department of Homeland
Security custody can be cured if DHS later perfects service before substantive
removal proceedings begin. An immigration judge erred by failing to credit
evidence showing that proof of a a minor’s alienage was tainted
because it was obtained from his juvenile court records in violation of
California privacy laws.
Back to Beginning of Cases
The 9th Circuit held an alien’s forgery conviction under California
Penal Code §470a categorically constitutes an aggravated felony offense
relating to forgery under 8 U.S.C. §1101(a)(43)(R), thus rendering
him ineligible for voluntary departure.
Back to Beginning of Cases
The 9th Circuit held a non-citizen was not admitted as required by 8 U.S.C.
§1182(a)(6)(A)(i) and §1255(a) when agents at a border patrol
checkpoint in San Clemente, California, apprehended and released him after
he showed them his then-valid temporary resident card; assuming these
actions could amount to inspection and authorization, the event did not
take place at a port of entry, as the checkpoint sits well within the
U.S. Noncitizens factually admitted at a U.S. port of entry while they
hold temporary resident status do not magically become unadmitted once
their temporary resident status ends. A noncitizen builds up physical-presence
time under §1229c(b)(1)(A) from the moment he enters the U.S. until
the moment he receives a single document, e.g., a notice to appear (“NTA”)
that provides him with all the information listed in §1229(a).
Back to Beginning of Cases
The BIA held
(1) Immigration Judges may exercise their discretion to rescind an
in-absentia removal order and grant reopening where a foreign national has established
through corroborating evidence that her/his late arrival at a removal
hearing was due to “exceptional circumstances” under section
240(e)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229a(e)(1) (2018), and, in doing so, should consider factors such as
the extent of the foreign national’s tardiness, whether the reasons
for the foreign national’s tardiness are appropriately exceptional,
and any other relevant factors in the totality of the circumstances.
(2) Corroborating evidence may include, but is not limited to, affidavits,
traffic and weather reports, medical records, verification of the foreign
national’s arrival time at the courtroom, and other documentation
verifying the cause of the late arrival; however, general statements—without
corroborative evidence documenting the cause of the tardiness—are
insufficient to establish exceptional circumstances that would warrant
reopening removal proceedings.
Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997),
reaffirmed and clarified.
Back to Beginning of Cases
The 9th Circuit held defendant claiming that voluntary compliance moots
a case bears the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected to recur.
In the context of post-judgment proceedings in which a district court
has retained jurisdiction to enforce an injunction or a consent decree,
some orders are sufficiently final to warrant appellate jurisdiction absent
any imposed sanction. The Department of Homeland Security has legal custody
over minors held under Title 42 because it maintains physical control
and exercises decision-making authority over such minors.
Back to Beginning of Cases
The 9th Circuit held Congress has made it a crime to enter the U.S. unless
an alien presents himself for inspection at an approved time and place;
8 U.S.C. §1325(a)(1) does not violate the non-delegation doctrine,
and is not unconstitutionally vague—facially or as applied to aliens
convicted for entering the U.S. at a time or place other than as designated
by immigration officers.
Back to Beginning of Cases
The U.S. Supreme Court held when foreign nationals were removed from the
United States, reentered without authorization, and the Department of
Homeland Security reinstated their prior removal orders, 8 U.S.C §1231
governs their detention–not §1226.
Back to Beginning of Cases
The 9th Circuit held although a federal appellate court lacks jurisdiction
to reweigh an exercise of discretion in denying voluntary departure, it
has jurisdiction to review constitutional claims or questions of law in
the denial of such relief, including whether the Board of Immigration
Appeals and immigration judge (“IJ”) failed to consider the
appropriate factors or relied on improper evidence. The duty to advise
an alien of apparent eligibility to apply for benefits under Title 8,
Chapter V of the Code of Federal Regulations, is triggered whenever the
facts before the IJ raise a reasonable possibility that the foreign national
may be eligible for such relief, and that the failure to advise can be
excused when the foreign national’s eligibility for relief is not
plausible. The judge-made exception to 8 U.S.C. §1326(d)(1) does
not apply to the jurisdictional exhaustion requirement governing final
orders of removal under 8 U.S.C. §1252(d)(1).
Back to Beginning of Cases
The 9th Circuit held n alien’s conditional discharge for his Georgia
drug offense was a conviction under the Immigration and Nationality Act;
it satisfied the requirements for situations in which an adjudication
of guilt has been withheld because the conditional discharge required
the alien to plead guilty to, or be found guilty of possessing marijuana,
and imposed probation. The personal-use exception of 8 U.S.C. §1227(a)(2)(B)(i)
does not unambiguously direct courts to use either the categorical approach
or the circumstance-specific approach; the circumstance-specific approach
permits a petitioner to be deported on the basis of circumstances that
were not judicially determined to have been present and which he may not
have had an opportunity, prior to conviction, to dispute, but the approach
still requires fundamentally fair procedures and requires the government
to prove that the quantity of marijuana exceeded thirty grams by clear
and convincing evidence.
Back to Beginning of Cases
The BIA held
(1) An applicant for adjustment of status with Special Immigrant Juvenile
status may, in conjunction with a waiver under section 245(h)(2)(B) of
the Immigration and Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018),
seek to waive his or her inadmissibility under section 212(a)(2)(A)(i)(II)
of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018), based on
a single offense of simple possession of 30 grams or less of marijuana.
(2) The “simple possession” exception at section 245(h)(2)(B)
calls for a circumstance‑specific inquiry into the nature of the
conduct surrounding an applicant’s simple possession offense.
Back to Beginning of Cases
The Attorney General of the U.S. decided that
(1)
Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and
Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.
(2) Immigration judges and the Board of Immigration Appeals (“BIA”)
should no longer follow
A-B- I or
A-B- II when adjudicating pending or future cases. Instead, pending forthcoming
rulemaking, immigration judges and the BIA should follow pre-A-B- I precedent, including
Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
Back to Beginning of Cases
The Attorney General of the U.S. decided that
(1)
Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety so as to return the immigration system
to the preexisting state of affairs pending completion of the ongoing
rulemaking process and the issuance of a final rule addressing the definition
of “particular social group.”
(2) Immigration judges and the Board of Immigration Appeals should no longer follow
L-E-A- II when adjudicating pending and future cases.
Back to Beginning of Cases
The 9th Circuit held the Board of Immigration Appeal erred by reviewing
an immigration judge’s grant of deferral of removal under the Convention
Against Torture
de
novo, rather than for clear error; the foreign national met her burden of proof
to establish that it is more likely than not that she will suffer future
torture if removed to Mexico where state police arrested and brutally
tortured her until she confessed to the kidnapping and murder of a five-year old boy.
Back to Beginning of Cases
The U.S. Supreme Court held a criminal offense with a
mens
rea of “recklessness” does not qualify as a violent felony under
the Armed Career Criminal Act’s elements clause.
Back to Beginning of Cases
The 9th Circuit held notice to appear (“NTA”) sufficient to
trigger the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”)’s stop-time rule is a single document
containing all the information about an individual’s removal hearing
specified in 8 U.S.C. §1229(a)(1).
Back to Beginning of Cases
The U.S. Supreme Court held a recipient of temporary protected status (“TPS”)
who entered the United States unlawfully is not eligible under 8 U.S.C.
§1255 for lawful permanent resident status merely by dint of his
TPS; §1255 provides that eligibility for adjustment of status, i.e.,
a Green Card from within the U.S., generally requires an admission into
the country—defined to mean the lawful entry of the alien after
inspection and authorization by an immigration officer, and TPS status
does not eliminate the effect of an unlawful entry.
Back to Beginning of Cases
The BIA held the mere continuation of an activity in the United States
that is substantially similar to the activity from which an initial claim
of past persecution is alleged and that does not significantly increase
the risk of future harm is insufficient to establish “changed circumstances”
to excuse an untimely asylum application within the meaning of section
208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).
Back to Beginning of Cases
-
People v. Casillas - filed June 4, 2021 (California Court of Appeal’s Second District, Div. One)
The California Court of Appeal's Second District, Div. One held a trial
court properly admitted evidence of a defendant’s immigration status
and deportation history where the evidence was strongly probative on the
question of motive and the trial court took steps to minimize the potential
for any undue prejudice.
Back to Beginning of Cases
The 9th Circuit held the departure bar provision in 8 C.F.R. §1003.23(b)(1)
does not apply in the context of
sua-sponte reopening.
Back to Beginning of Cases
-
People v. Castillo - filed May 12, 2021, publication ordered June 1, 2021 (California Court
of Appeal’s Second District, Div. Eight)
The California Court of Appeal's Second District, Div Eight held
Padilla v. Kentucky announced a new rule by imposing an obligation on trial counsel to understand
and accurately explain the immigration consequences of a plea to a defendant
before the entry of that plea;
Padilla cannot be applied retroactively to cases that were final at the time the
opinion was issued, and there was no ineffective assistance where counsel
allegedly failed in 1989 to give unsolicited advice.
Back to Beginning of Cases
The U.S. Supreme Court held the Ninth U.S. Circuit Court of Appeals’
judge-made rule that a reviewing court must treat the noncitizen’s
testimony as credible and true absent an explicit adverse credibility
determination is inconsistent with the Immigration Nationality Act.
Back to Beginning of Cases
-
People v. Graham - filed May 27, 2021 (California Court of Appeal’s Second District, Div. Two)
The California Court of Appeal's Second District, Div Two held a request
for pretrial diversion under Penal Code §1001.36 must be made prior
to the return of a verdict.
Back to Beginning of Cases
The 9th Circuit held the government may parole a returning lawful permanent
resident into the United States for prosecution without proving at the
border that the LPR was seeking an admission under 8 U.S.C. §1101(a)(13)(C),
when such a determination depends on facts that are not practically ascertainable
at the border; but at subsequent removal proceedings, the government must
prove by clear and convincing evidence that the returning LPR falls within
one of the exceptions under §1101(a)(13)(C).
Back to Beginning of Cases
The 9th Circuit held where an alien sought Convention Against Torture relief
based on the physical abuse she suffered at the hands of her former domestic
partner, the record did not compel a finding that the alien would suffer
future torture if returned to Jamaica because even if she had suffered
past torture, her circumstances had changed in that a Jamaican court had
issued a protection order and her former partner had left her household;
in assessing the likelihood of future torture, the adjudicator must consider
all evidence relevant to the possibility of future torture, including
whether circumstances or conditions have changed significantly with respect
to the particular individual, and not merely information about general
changes in the country.
Back to Beginning of Cases
The U.S. Supreme Court held all three of the statutory requirements of
8 U.S.C. §1326(d) are mandatory; the statute’s first two requirements
are not satisfied just because a noncitizen was removed for an offense
that should not have rendered him removable.
Back to Beginning of Cases
The 9th Circuit held Bivens remedies are available when a U.S. citizen
claims a border patrol agent violated the Fourth Amendment by using excessive
force while carrying out official duties within the U.S. and violated
the First Amendment by engaging in retaliation for protected speech.
Back to Beginning of Cases
The 9th Circuit held where it has not been proven that a custody order
was entered in error, was contrary to law, or otherwise did not reflect
the true legal relationship between a petitioner’s parents, a nunc
pro tunc order cannot retroactively establish a naturalized parent’s
sole legal custody for the purposes of derivative citizenship under former
8 U.S.C. §1432(a).
Back to Beginning of Cases
The California Court of Appeal's Second District, Div. Five held to prevail
on an actual innocence claim, a petitioner must demonstrate it is more
likely than not, in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt; a Schlup finding is within
the scope of what the Legislature intended as a court finding of factual
innocence.
Back to Beginning of Cases
The 9th Circuit held the Board of Immigration Appeals (“BIA”)
erred in disregarding part of an alien’s application to reopen removal
proceedings simply because it lacked corroboration where the alien’s
sworn declaration was not inherently unbelievable, and there was no evidence
in the record to contradict it. The BIA abused its discretion by concluding
the alien should have confirmed her hearing date through the immigration
court’s automated system, as only evidence suggesting that she was
advised of the system were the written instructions she could not read,
and her family had no reason to suspect that the hearing was not on Dec.
7, based on how numerical dates are typically written in Latin America;
the BIA erred in not addressing whether the alien had any motive for failing
to appear, and whether an in-absentia removal order would cause unconscionable results.
Back to Beginning of Cases
The 9th Circuit held n immigration judge did not commit an abuse of discretion
in deeming an asylum-seeker’s application abandoned where the judge
had instructed the asylum-seeker, and her counsel, to complete biometrics
requirements before her merits hearing, ensured that she had the relevant
instructions, and warned her that her failure to comply could result in
her application being deemed abandoned. The clear text of 8 C.F.R. §1003.47(c)
places the burden on the applicant to comply with biometrics requirements
in conformity with the instructions to the application, which in turn
direct the applicant to call a particular telephone number if she does
not receive the requisite biometric receipt notices after her submission.
Back to Beginning of Cases
The California Supreme Court held An independent review standard applies
to determine if a defendant demonstrated a reasonable probability that
if he had been properly advised by counsel about the immigration consequences
of his plea; under this standard, a defendant demonstrated a reasonable
probability that if he had been properly advised by counsel about the
immigration consequences of his plea, he wouldn’t have pleaded guilty
to an offense subjecting him to mandatory deportation where there was
no evidence counsel ever advised the defendant about the immigration consequences,
or that she even understood them herself, the defendant had robust ties
to the United States, and there were objective and contemporaneous facts
corroborating his claim he would never have pleaded guilty if his attorney
had informed him of the plea’s consequences.
Back to Beginning of Cases
The U.S. Supreme Court held a notice to appear sufficient to trigger the
Illegal Immigration Reform and Immigrant Responsibility Act’s stop-time
rule is a single document containing all the information about an individual’s
removal hearing specified in 8 U.S.C. §1229(a)(1).
Back to Beginning of Cases
The 9th Circuit held Nevada Revised Statutes §453.337 is a divisible
statute because possession of a specific controlled substance is an element
of the crime, and not merely a means of committing the possession-for-sale
offense; although the Nevada schedules of controlled substances are not
coterminous with the listing of prohibited substances delineated in the
Controlled Substances Act, §453.337 is not fatally overbroad, because
a jury must unanimously agree that a defendant possessed a specific controlled
substance in order to convict under the statute.
Back to Beginning of Cases
The U.S. Supreme Court held while 28 U.S.C. § 2254(a) permits a federal
court to entertain an application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State court, a habeas
petitioner does not remain in custody under a conviction after the sentence
imposed for it has fully expired, merely because of the possibility that
the prior conviction will be used to enhance the sentences imposed for
any subsequent crimes of which he is convicted.
Back to Beginning of Cases
The 9th Circuit held ineffective assistance of a habeas corpus petitioner’s
state-court counsel satisfies the good cause standard under the rule of
Rhines v. Weber for a petitioner’s failure to exhaust his claims.
Back to Beginning of Cases
The BIA held an Immigration Judge may rely on fraud or a willful misrepresentation
of a material fact made by an alien during an interview before the United
States Citizenship and Immigration Services to remove the conditional
basis of an alien’s permanent resident status in assessing whether
the alien has demonstrated, for purposes of adjustment of status in removal
proceedings, that she is not inadmissible under section 212(a)(6)(C)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018).
Back to Beginning of Cases
The 9th Circuit held the statute authorizing reinstatement of prior removal
orders, 8 U.S.C. §1231(a)(5), precludes most collateral attacks on
the validity of the removal order being reinstated, unless the petitioner
can show that a gross miscarriage of justice occurred during the earlier
removal proceedings; even that narrow sliver of jurisdiction is foreclosed
when the underlying order was an expedited removal order.
Back to Beginning of Cases
-
Matter of A-S-M-, 28 I&N Dec. 282 (BIA April 9, 2021)
The BIA held where the Department of Homeland Security states that an applicant
may be removed to a country pursuant to section 241(b)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1231(b)(2) (2018), the applicant
may seek withholding of removal from that country in withholding-only
proceedings, even if that country is different from the country of removal
that was originally designated in the reinstated removal order on which
the withholding‑only proceedings are based.
Back to Beginning of Cases
The 9th Circuit held nonprofit organizations that represent asylum-seekers
had Article III standing to challenge a Department of Justice and Department
of Homeland Security joint interim rule which categorically denies asylum
to aliens arriving at the border with Mexico unless they have first applied
for, and have been denied, asylum in Mexico or another country through
which they have traveled; the rule is unlawful under the Administrative
Procedures Act on the ground that the rule is not in accordance with law
and is in excess of statutory limitations because it is not consistent
with 8 U.S.C. §1158.
Back to Beginning of Cases
The 9th Circuit held the first-degree burglary of a dwelling under Oregon
Revised Statutes §164.225 is not categorically a crime involving
moral turpitude; burglary constitutes a CIMT when it requires proof that
the defendant burglarized a regularly or intermittently occupied dwelling.
Back to Beginning of Cases
The 9th Circuit held In order to establish the requisite nexus for asylum
relief, a protected ground must be a but-for cause of the wrongdoer’s
act and must play more than a minor role; the fact that an unprotected
ground, such as a personal dispute, also constitutes a central reason
for persecution does not bar asylum; if a retributory motive exists alongside
a protected motive, an applicant need show only that a protected ground
is one central reason for her persecution. Political opinions encompass
more than electoral politics or formal political ideology or action; feminism
qualifies as a political opinion within the meaning of the relevant statutes.
Where an alien’s testimony concerning equality between the sexes,
her work habits, and her insistence on autonomy compelled the conclusion
that she has a feminist political opinion and the evidence showed her
political opinion was at least one central reason for her past persecution,
the alien established that her political opinion was a reason for her
persecution for purposes of withholding of removal.
Back to Beginning of Cases
The BIA held the offense of aggravated unlicensed operation of a motor
vehicle in the first degree in violation of section 511(3)(a)(i) of the
New York Vehicle and Traffic Law, which prohibits a person from driving
under the influence of alcohol or drugs while knowing or having reason
to know that his or her license is suspended, is categorically a crime
involving moral turpitude.
Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
Back to Beginning of Cases
The 9th Circuit held petty theft in violation of California Penal Code
484(a) is a crime involving moral turpitude. An alien failed to establish
prima facie eligibility for asylum based on his history of drug use and
his fear of persecution or torture under Philippine President Rodrigo
Duterte’s anti-drug program where the alien did not contend that
he suffered past persecution, and merely speculated that someone in the
Philippines could report his past drug use to the government, or that
he might succumb to the temptation to begin using drugs again.
Back to Beginning of Cases
(1) The “offense clause” of the Federal conspiracy statute,
18 U.S.C. § 371 (2012), is divisible and the underlying substantive
crime is an element of the offense.
(2) Because the substantive offense underlying the respondent’s Federal
conspiracy conviction—namely, selling counterfeit currency in violation
of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude,
his conviction for conspiring to commit this offense is likewise one for
a crime involving moral turpitude.
Back to Beginning of Cases
The 9th Circuit held a defendant’s prior conviction for possessing
a firearm in furtherance of a drug trafficking crime under 18 U.S.C. §924(c)
constituted a controlled substance offense under U.S.S.G. §4B1.2.
Back to Beginning of Cases
The 9th Circuit held nonprofit organizations that represent asylum-seekers
had Article III standing to challenge a Department of Justice and Department
of Homeland Security joint interim rule which categorically denies asylum
to aliens arriving at the border with Mexico unless they have first applied
for, and have been denied, asylum in Mexico or another country through
which they have traveled; the rule is unlawful under the Administrative
Procedures Act on the ground that the rule is not in accordance with law
and is in excess of statutory limitations because it is not consistent
with 8 U.S.C. §1158.
Back to Beginning of Cases
The 9th Circuit held the Board of Immigration Appeals in finding an asylum-seeker’s
proposed social group comprised of El Salvadoran men with intellectual
disabilities who exhibit erratic behavior was not cognizable by treating
the term intellectual disability as if it were applied by a layperson,
instead of recognizing that the term as used in the asylum application,
which referred to an explicit medical diagnosis with several specific
characteristics; the clinical term intellectual disability may satisfy
the particularity and social distinction requirements necessary to qualify
for asylum and withholding of removal; the fact that the average layperson
may not be able to accurately identify an individual with an intellectual
disability does not make the clinical definition subjective or amorphous,
and that similarly, the possibility that individuals within the group
may have subdiagnoses or concurrent diagnoses does not make the group
overbroad. The possibility that individuals with intellectual disabilities
are subsumed in a larger group of persecuted individuals with mental illnesses
does not control the social distinction analysis, because the question
is whether individuals with intellectual disabilities are singled out
for greater persecution than the general population. If individuals are
treated badly because they manifest a certain condition, that treatment
by itself suggests that the group of people with that condition is viewed
as socially distinct, because they have been singled out for mistreatment.
Back to Beginning of Cases
-
People v. Curry - filed March 2, 2021, publication ordered March 22, 2021, (California
Court of Appeal’s Third District)
The California Court of Appeal's Third District held Penal Code §1001.36
contemplates mental health diversion until sentencing and entry of judgment.
Back to Beginning of Cases
The 9th Circuit held petitioner’s personal circumstances may act
as a necessary predicate to the success of a motion to reopen where the
new personal circumstances make the provided changed country conditions
evidence relevant to the petitioner’s changed personal circumstances;
the Board of Immigration Appeals did not abuse its discretion in concluding
that an alien failed to establish materially changed country conditions
to warrant reopening of his removal proceedings where the alien provided
evidence of changes in his personal circumstances, along with evidence
supporting his argument that, given his changed personal circumstances,
he could now be persecuted or tortured based on current country conditions
in Mexico, but he did not provide evidence of actual changed country conditions
between his original 2003 hearing and his 2016 motion to reopen.
Back to Beginning of Cases
The 9th Circuit held an alien’s proposed social group comprised of
witnesses who … could testify against gang members based upon what
they witnessed was not discrete and lacked definable boundaries. An alien
failed to establish that past torture occurred with the consent or acquiescence
of a public official where his testimony indicated that the police never
learned about harm he suffered as a result of his witnessing a robbery
and receiving a subsequent threat. A court cannot independently take judicial
notice of a report that was not a part of the record.
Back to Beginning of Cases
The BIA held the respondent’s conviction for assault by means of
force likely to produce great bodily injury in violation of section 245(a)(4)
of the California Penal Code is categorically one for a crime involving
moral turpitude. Matter of Wu, 27 I&N Dec. 8 (BIA 2017), followed.
Back to Beginning of Cases
The 9th Circuit held an asylum-seeker did not establish past persecution,
where her alleged persecutor issued vague threats, confronted her several
times over a period of weeks, did not perform any acts of violence, and
never followed through on any of his threats; though condemnable, the
unfulfilled threats were not so overwhelming to necessarily constitute
persecution. A proposed social group comprised of Salvadoran women who
refuse to be girlfriends of MS gang members and Salvadoran women who refuse
to be victims of violent sexual predation of gang members lacked social
distinction.
Back to Beginning of Cases
The BIA held
(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C.
§ 371 (2012), is overbroad relative to the generic definition of
a crime involving moral turpitude, and divisible between the offense clause,
which may or may not involve moral turpitude, and the defraud clause of
the statute, which is categorically a crime involving moral turpitude.
(2) To determine whether a conspiracy conviction under the offense clause
of 18 U.S.C. § 371 constitutes a crime involving moral turpitude,
the underlying statute of conviction should be examined under the categorical,
and if applicable, modified categorical approach.
(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012),
punishing fraud and misuse of visas, permits, and other documents, is
overbroad and divisible such that the modified categorical approach is
applicable and it was proper to consider the conviction records.
Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified.
(4) The respondent’s conviction for conspiracy to commit visa fraud
in violation of 18 U.S.C. §§ 371 and 1546(a) is a conviction
for a crime involving moral turpitude under the modified categorical approach.
Back to Beginning of Cases
The U.S. Supreme Court held under the Immigration and Nationality Act,
certain nonpermanent residents seeking to cancel a lawful removal order
bear the burden of showing they have not been convicted of a disqualifying
offense; an alien has not carried that burden when the record shows he
has been convicted under a statute listing multiple offenses, some of
which are disqualifying, and the record is ambiguous as to which crime
formed the basis of his conviction.
Back to Beginning of Cases
The 9th Circuit held the restricted-residence exception to the firm resettlement
bar applies when the country’s authorities are unable or unwilling
to protect the asylum applicant from persecution by nongovernment actors.
An applicant suffered past persecution in Somalia, where he was physically
beaten by members of a militant terrorist organization that also kept
tabs on him by contacting his brother and threatening to kill him, and
the brother, if they disobeyed the group’s command to close their
movie theater that played Islamically forbidden films.
Back to Beginning of Cases
The 9th Circuit held California Health and Safety Code §11350 is divisible
as to controlled substance; where an alien’s conviction under the
statute involved cocaine, the alien was properly ordered removed for an
offense relating to a controlled substance under Immigration and Nationality
Act §237(A)(2)(B)(i).
Back to Beginning of Cases
The 9th Circuit held a defendant’s prior conviction for the attempted
transportation of marijuana under Arizona Revised Statutes §13-3405(A)(4)
did not qualify as a controlled substance offense subjecting him to application
of a recidivist sentencing enhancement under U.S.S.G. §4B1.2(b) because
the Arizona statute under which the defendant was convicted included hemp
in its definition of marijuana, and the federal Controlled Substances
Act in effect at the time of a defendant’s federal sentencing excluded hemp.
Back to Beginning of Cases
The 9th Circuit held an amendment to California Penal Code §18.5,
which retroactively reduces the maximum misdemeanor sentence to 364 days,
cannot be applied retroactively for purposes of removability under 8 U.S.C.
§1227(a)(2)(A)(i).
Back to Beginning of Cases
The BIA held an applicant for special rule cancellation of removal under
section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(b)(2) (2018), based on spousal abuse must demonstrate both that
the abuser was his or her lawful spouse and possessed either United States
citizenship or lawful permanent resident status at the time of the abuse.
Back to Beginning of Cases
The BIA erred in concluding an asylum-seeker failed to establish a nexus
between her persecution and her status as a property owner where the board
found property ownership was the real reason she was targeted for persecution;
it is sufficient under mixed motive precedent for the petitioner to show
that a protected ground was a cause of the persecutors’ acts. Sweeping
retaliation towards a family unit over time can demonstrate a kind of
animus distinct from purely personal retribution.
Back to Beginning of Cases
The BIA’s determination that illicit trafficking in firearms means
any unlawful trading or dealing in firearms is entitled to deference;
18 U.S.C. §922(a)(1)(A) is a categorical match to illicit trafficking
in firearms under 8 U.S.C. §1101(a)(43)(C).
Back to Beginning of Cases
The 9th Circuit held the jurisdiction of the immigration court vests upon
the filing of a notice to appear, even one that does not at the time inform
the alien of the time, date, and location of the hearing.
Back to Beginning of Cases
The 9th circuit held an asylum-seeker’s proposed social group comprised
of minor Christian males who oppose gang membership is not cognizable
because it lacks particularity and social distinction. The fact that an
asylum-seeker’s uncle was killed by gang members was not an adequate
basis to make the family a social group absent evidence the uncle’s
family membership was a reason that the gang killed him; the murder, coupled
with the existence of generalized violence in Honduras, did not compel
the conclusion that an asylum-seeker would more likely than not experience
torture inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity.
Back to Beginning of Cases
The 9th Circuit held a proposed social group comprised of Mexican wealthy
business owners was not cognizable for purposes of withholding relief
because it lacked social distinction, particularity, or an immutable characteristic.
A petitioner seeking relief under the Convention Against Torture sufficiently
demonstrated that he was the victim of an official perpetration of violence
where he had reasons to believe he was targeted by Mexican judicial police,
an official discouraged him from filing a report, and he filed police
reports and no action was taken.
Back to Beginning of Cases
- U.S. v. Bastide-Hernandez - filed February 2, 2021
The 9th Circuit held that the jurisdiction of the immigration court vests upon
the filing of a notice to appear, even if the notice does not at that
time inform the alien of the time, date, and location of the hearing;
a defective NTA does not affect jurisdiction, but it can create due-process
violations.
Back to Beginning of Cases
The 9th Circuit held that some forms of physical violence are so extreme that
even attempts to commit them constitute persecution for purposes of seeking
asylum; attempted rape is a severe violation of bodily integrity and autonomy,
and so is itself almost always a form of persecution; it is the conduct
of the persecutor, not the subjective suffering from the perspective of
the victim, that matters for purposes of determining what constitutes
persecution.
Back to Beginning of Cases
The BIA held that Individuals who cooperate with law enforcement may constitute
a valid particular social group under the Immigration and Nationality
Act if their cooperation is public in nature, particularly where testimony
was given in public court proceedings, and the evidence in the record
reflects that the society in question recognizes and provides protection
for such cooperation.
Back to Beginning of Cases
The BIA held that Where a notice to appear fails to specify the time or
place of a respondent’s initial removal hearing, the subsequent
service of a notice of hearing specifying this information perfects the
notice to appear and ends the accrual of physical presence for purposes
of voluntary departure at the conclusion of removal proceedings pursuant
to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. §
1229c(b) (2018).
Back to Beginning of Cases
The BIA held that Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes
possession or use of a controlled substance, is divisible with respect
to the identity of the specific “controlled substance” involved
in a violation of that statute.
Back to Beginning of Cases
The 9th Circuit held that the rule of
Nieves v. Bartlett, which held that the presence of probable cause generally defeats a retaliatory
criminal arrest claim under 42 U.S.C. §1983, does not control in
the immigration-bond-revocation context; the standard from
Mt. Healthy City Board of Education v. Doyle applies when an individual who had been detained by ICE and released on
bond claims his immigration arrest and re-detention was retaliation for
his protected speech.
Back to Beginning of Cases
The 9th Circuit held that an immigration judge provided a pro se asylum-seeker
with due process by providing details about the structure of the hearing
and the availability of counsel, and asking numerous questions through
which the asylum-seeker had ample opportunity to develop his testimony;
judges do not need to go beyond their impartial role as independent fact-finders
and essentially act as advocates for pro se asylum applicants. The evidence
did not compel the finding of past persecution where an asylum-seeker
did not testify to any individualized physical attacks or threats, and
he failed to show sufficient economic or psychological harm. An asylum-seeker
failed to establish that the Pakistani government was unable to control
the Taliban, as the standard is not that the government can prevent all
risk of harm.
Back to Beginning of Cases
The BIA held that an Immigration Judge may find a document to be fraudulent
without forensic analysis or other expert testimony where the document
contains obvious defects or readily identifiable hallmarks of fraud and
the party submitting the document is given an opportunity to explain the defects.
Back to Beginning of Cases
- Doe v. Trump - filed December 31, 2020
The 9th Circuit held that the president had statutory authority to issue a proclamation
restricting entry of immigrant visa applicants who cannot demonstrate
that they either will acquire qualifying healthcare coverage within 30
days of entry or have the ability to pay for reasonably foreseeable healthcare expenses.
Back to Beginning of Cases
The 9th Circuit held that a Department of Health and Human Services regulation
allowing the Office of Refugee Resettlement to place an unaccompanied
minor in a secure facility if the minor is “otherwise a danger to
self or others” is inconsistent with the terms of a 1997 settlement
agreement between the United States and a class of all minors subject
to immigration detention; the bond hearing regulations providing a hearing
to unaccompanied minors held in secure or staff-secure placements only
if they request one is also inconsistent with the agreement; regulations
relating to accompanied minors also depart from the agreement where they
limit the circumstances in which accompanied minors may be released, and
they provide for the detention of families together in facilities licensed
not by states but by Immigration and Customs Enforcement itself.
Back to Beginning of Cases
The California Court of Appeal Fourth District, Division Two held that
a defendant was adequately advised of the immigration consequences of
his plea of guilty to the charges of spousal abuse and child abuse where
the admonition on his plea bargain form contained an advisement of the
immigration consequences of his plea, and he explicitly acknowledged that
he understood the specific immigration consequences of his plea. A defendant’s
self-serving statement—after trial, conviction, and sentence—that
with competent advice he would not have accepted a proffered plea bargain,
is insufficient in and of itself to sustain the defendant’s burden
of proof as to prejudice.
Back to Beginning of Cases
The BIA held that the risk of harm to a child required to obtain a conviction
for child neglect in the second degree under section 163.545(1) of the
Oregon Revised Statutes is sufficiently high that the offense 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,
8 U.S.C. § 1227(a)(2)(E)(i) (2018).
Back to Beginning of Cases
The 9th Circuit held that an asylum-seeker waived review of the Board of Immigration
Appeals’ discretionary denial of his application by failing to contest
that aspect of the board’s decision in his opening brief, and instead
raising it for the first time in his reply brief. The board correctly
concluded that the asylum-seeker’s proposed social group of known
drug users lacked definable boundaries and therefore could not serve as
a legally cognizable social group.
Back to Beginning of Cases
The BIA held that (1) Expert testimony is evidence, but only an Immigration
Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent
with an expert’s opinion, it is important, as the Immigration Judge
did here, to explain the reasons behind the factual findings.
Back to Beginning of Cases
The 9th Circuit held that U.S. Citizenship and Immigration Services acted arbitrarily
and capriciously in denying an H-1B temporary worker visa for a computer
programmer where the agency relied solely on the Department of Labor’s
Occupational Outlook Handbook to conclude that a bachelor’s degree
is not normally required for computer programming positions since the
OOH made clear that a bachelor’s degree is not only common, but
typically needed, for computer programmers.
Back to Beginning of Cases
The California Court of Appeal, Fourth District, Division Three held that
A person’s own error in not understanding or knowingly accepting
that a guilty plea will have certain and adverse immigration consequences
may constitute prejudicial error entitling the person to relief under
Penal Code §1473.7.
Back to Beginning of Cases
The 9th Circuit held that a defendant’s Arizona conviction for the attempted
transportation of marijuana was not a categorical match to the federal
offense where the Arizona statute included hemp, and Congress amended
the Controlled Substances Act to exclude hemp from its definition of a
controlled substance before the defendant’s federal conviction and
sentencing.
Back to Beginning of Cases
The 9th Circuit held that judicial review of an expedited removal order, including
the merits of a credible fear determination, is expressly prohibited by
8 C.F.R. §1252(a)(2)(A)(iii); where Congress explicitly withdraws
jurisdiction to review a final order of deportation, authority to review
motions to reconsider or to reopen deportation proceedings is thereby
likewise withdrawn; a court has jurisdiction to consider an immigration
judge’s denial of motions to reopen or reconsider in cases that
involve review of reasonable fear determinations in the context of a reinstatement
of a prior removal order under 8 U.S.C. §1231(a)(5), rather than
a credible fear determination under §1225(b)(1); a decision that
might appear to fall within §1252(a)(2)(B) or §1252(a)(2)(C)
is not reviewable under §1252(a)(2)(D) if it is subject to a separate
prohibition of §1252(a)(2)(A).
Back to Beginning of Cases
The BIA held that (1) Counsel’s acceptance of responsibility for
error does not discharge the disciplinary authority complaint obligation under
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), particularly where the ineffective assistance
allegation is rendered by the same attorney against himself.
(2) A respondent seeking reopening on the basis of a claim of ineffective
assistance of counsel must show a reasonable probability that, but for
counsel’s error, he would have prevailed on his claim.
Back to Beginning of Cases
The 9th Circuit held that to qualify for a derivative visa as a spouse, a person
need not have been married to the principal applicant at the time the
application was filed, so long as the marriage exists when the principal
applicant receives a U visa.
Back to Beginning of Cases
The 9th Circuit held that states and municipalities had standing to challenge
an administrative rule defining public charge; the plaintiffs interests
in preserving immigrants’ access to supplemental benefits is within
the zone of interests protected by the public charge statute; the plaintiffs
demonstrated a high likelihood of success in showing that the rule is
inconsistent with any reasonable interpretation of the public charge statute
and therefore contrary to law. The rule’s promulgation was arbitrary
and capricious since the Department of Homeland Security failed to consider
its financial effects or address concerns about the rule’s effect
on public safety, health, and nutrition, and the agency did not explain
its abrupt change in policy from its previously issued guidance.
Back to Beginning of Cases
The 9th Circuit held that pursuant to 8 U.S.C. §1252(b)(1), there is a 30-day
deadline for seeking review of a reinstatement order; if an alien has
timely challenged his reinstatement order, a federal court has jurisdiction
to consider a collateral attack on his underlying removal order; there
is no diligence requirement that limits the time during which a such a
collateral attack may be made.
Back to Beginning of Cases
The BIA held that (1) Where the temporary protected status (“TPS”)
of an alien who was previously present in the United States without being
admitted or paroled is terminated, the alien remains inadmissible under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2018), and removal proceedings should not be
terminated.
(2) An alien whose TPS continues to be valid is considered to be “admitted”
for purposes of establishing eligibility for adjustment of status only
within the jurisdictions of the United States Courts of Appeals for the
Sixth, Eighth, and Ninth Circuits.
The 9th Circuit held that a showing of prejudice is not required when ineffective
assistance of counsel leads to an
in-
absentia order of removal.
Back to Beginning of Cases
The 9th Circuit held that the BIA erred in giving reduced weight to the testimony
of a specialist in gang activity based on alleged inconsistencies regarding
the expert’s familiarity with an alien’s prison gang where
the expert explicitly wrote in his declaration that his comments on the
gang were based on facts provided by the alien and the board did not cite
any reason to doubt the alien’s testimony; the board erred in discounting
the expert’s testimony because he did not submit a copy of a video
referenced in his testimony, where the video was neither the sole nor
primary basis for his opinion, and the board failed to explain why the
absence of one video diminished the weight of his expert opinion.
Back to Beginning of Cases
The BIA held that absent a showing of prejudice on account of ineffective
assistance of counsel, or a showing that clearly undermines the validity
and finality of the finding, it is inappropriate for the Board to favorably
exercise our discretion to reopen a case and vacate an Immigration Judge’s
frivolousness finding.
Back to Beginning of Cases
The BIA held that where there is substantial and probative evidence that
a beneficiary’s prior marriage was fraudulent and entered into for
the purpose of evading the immigration laws, a subsequent visa petition
filed on the beneficiary’s behalf is properly denied pursuant to
section 204(c) of the Immigration and Nationality Act, 8 U.S.C. §
1154(c) (2018), even if the first visa petition was denied because of
insufficient evidence of a bona fide marital relationship.
Back to Beginning of Cases
The 9th Circuit held that in determining whether a state conviction is a categorical
match for its federal counterpart, the proper point of comparison are
the two drug schedules in effect at the time of the conviction. An alien’s
2011 conviction for possession for sale of marijuana, in violation of
California Health & Safety Code §11359, was a drug trafficking
aggravated felony because the state and federal schedules defined marijuana
the same way at the time of his conviction.
Back to Beginning of Cases
The 9th Circuit held that an amendment to California Penal Code §18.5, which
retroactively reduces the maximum misdemeanor sentence to 364 days, cannot
be applied retroactively for purposes of removability under 8 U.S.C. §1227(a)(2)(A)(i).
Back to Beginning of Cases
The 9th Circuit held that the offense of knowingly sponsoring or exhibiting an
animal in a fighting venture under 7 U.S.C. §2156(a)(1) is a crime
involving moral turpitude; an alien who has been convicted of a crime
involving moral turpitude, for which a sentence of one year or longer
may be imposed, has been convicted of an offense under 8 U.S.C. §1227(a)(2)
that makes the alien ineligible for cancellation of removal under 8 U.S.C.
§1229b(b)(1)(C).
Back to Beginning of Cases
The Fourth District, Division Two held that a trial judge did not abuse
her discretion in excluding evidence that a domestic violence victim had
applied for a visa that is only available to domestic violence victims
who cooperate in prosecuting their abusers, even though the evidence was
relevant, since the victim had given a statement and preliminary hearing
testimony before she knew about the visa program, and her trial testimony
was consistent with her prior accounts; any error was also harmless since
the physical evidence of the abuse was overwhelming.
Back to Beginning of Cases
The 9th Circuit held that Oregon’s former marijuana delivery statute is
not an illicit trafficking of a controlled substance offense, and thus
an alien’s conviction for that offense did not make him removable
as an aggravated felon.
Back to Beginning of Cases
The 9th Circuit held that a lawful permanent resident convicted of an aggravated
felony was not entitled to coram nobis relief where he waited two years,
without a valid reason, before filing his petition for a writ of error
coram nobis after learning that the only way he could avoid removal was
to challenge his conviction. Uncertainty or ambiguity in the law is not
itself a valid reason to delay seeking coram nobis relief.
Back to Beginning of Cases
The 9th Circuit held that a district court did not abuse its discretion by issuing
some form of preliminary injunctive relief to a group of detainees at
an Immigration and Customs Enforcement processing center where the detainees
presented evidence that the government likely failed to meet its constitutional
duty to provide reasonably safe conditions to them during the COVID-19
pandemic; the detainees were likely to suffer irreparable harm absent
relief given COVID-19’s high mortality rate, and the equities and
public interest tipped in their favor in light of the lack of criminal
records of many of the detainees and the alternative means available to
prevent them from absconding if released.
Back to Beginning of Cases
The 9th Circuit held that substantial evidence supported the denial of asylum
and withholding of removal on adverse credibility grounds to an applicant
from the Democratic Republic of Congo where there were inconsistencies
in his testimony, an omission, and implausibilities in the record; without
credible testimony, the asylum-seeker could not establish a well-founded
fear of persecution for asylum and withholding relief.
Back to Beginning of Cases
The BIA held that if a criminal conviction was charged as a ground of removability
or was known to the Immigration Judge at the time cancellation of removal
was granted under section 240A(a) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole
factual predicate for a charge of removability in subsequent removal proceedings.
Back to Beginning of Cases
The 9th Circuit held that under 18 U.S.C. §2246(5)(A), the phrase pending
… deportation does not require a finding of actual or inevitable
removal from the United States; it is enough that the government had initiated
removal proceedings, creating the possibility of deportation.
Back to Beginning of Cases
The BIA held that
(1) In assessing whether to admit the testimony of a witness as an expert,
an Immigration Judge should consider whether it is sufficiently relevant
and reliable for the expert to offer an informed opinion, and if it is
admitted, the Immigration Judge should then consider how much weight the
testimony should receive.
(2) In considering how much weight to give an expert’s testimony,
the Immigration Judge should assess how probative and persuasive the testimony
is regarding key issues in dispute for which the testimony is being offered.
Back to Beginning of Cases
The 9th Circuit held that the phrase at the time of application for admission,
as used in 8 U.S.C. §1182(a)(7), refers to the particular point in
time when a noncitizen submits an application to physically enter the
United States.
Back to Beginning of Cases
The 9th Circuit held that chevron deference applies to the Board of Immigration
Appeals’ determination that a conviction under California Penal
Code §245(a)(1) is categorically a crime involving moral turpitude.
Back to Beginning of Cases
The 9th Circuit held that an alien’s conviction for being a felon in possession
of a firearm or ammunition constitutes a particularly serious crime barring
withholding of removal. A stowaway retains stowaway status when granted asylum.
Back to Beginning of Cases
The 9th Circuit held that under 8 U.S.C. §1254a(b)(5)(A), there can be no
judicial review of non-constitutional claims that fundamentally attack
the Secretary of Homeland Security’s specific Temporary Protected
Status determinations, nor review of the substance of her discretionary
analysis in reaching those determinations; the statute does not bar review
of a challenge to an agency pattern or practice that is collateral to,
and distinct from, the specific TPS decisions and their underlying rationale.
The level of deference that courts owe to the president in his executive
decision to exclude foreign nationals who have not yet entered the United
States may be greater than the deference to an agency in its administration
of a humanitarian relief program established by Congress for foreign nationals
who have lawfully resided in the country for some time.
Back to Beginning of Cases
The 9th Circuit held that under 8 U.S.C. §1254a(b)(5)(A), there can be no
judicial review of non-constitutional claims that fundamentally attack
the Secretary of Homeland Security’s specific Temporary Protected
Status determinations, nor review of the substance of her discretionary
analysis in reaching those determinations; the statute does not bar review
of a challenge to an agency pattern or practice that is collateral to,
and distinct from, the specific TPS decisions and their underlying rationale.
The level of deference that courts owe to the president in his executive
decision to exclude foreign nationals who have not yet entered the United
States may be greater than the deference to an agency in its administration
of a humanitarian relief program established by Congress for foreign nationals
who have lawfully resided in the country for some time.
Back to Beginning of Cases
The 9th Circuit held that a plaintiff had standing to seek prospective relief
enjoining the issuance of certain immigration detainers where he faced
an ongoing and prospective detention injury when he commenced suit. A
proposed class consisting of persons subject to a detainer that was issued
solely on the basis of electronic database checks satisfies the commonality
and typicality requirements for certification; 8 U.S.C. §1252(b)(9)
does not bar claims that challenge the legality of a detention and are
independent of the removal process; 8 U.S.C. §1252(f)(1) does not
bar injunctive relief for such claims either. The presence or absence
of probable cause determines whether the government violates the Fourth
Amendment when issuing a detainer, not state law restrictions.
Back to Beginning of Cases
The 9th Circuit held that substantial evidence did not support a finding that
the El Salvadoran government was both able and willing to control a gang
whose members attacked an asylum-seeker, and killed his son, where he
received threats from the gang and received protection from the government,
but the government withdrew its protection after he testified against
the gang members; the law does not require applicants to wait until gang
members carry out their deadly threats before they are eligible for asylum.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration Appeals erred by conducting
a de novo review of a judge’s factual findings pertaining to a grant
of deferral of removal under the Convention Against Torture, rather than
reviewing them for clear error, as required by 8 C.F.R. §1003.1(d)(3)(i).
Back to Beginning of Cases
The 9th Circuit held that the domestic violence waiver established under 8 U.S.C.
§1227(a)(7), and made applicable to cancellation of removal by 8
U.S.C. §1229b(b)(5), is limited to crimes of domestic violence and stalking.
Back to Beginning of Cases
The BIA held that (1) After an Immigration Judge has set a firm deadline
for filing an application for relief, the respondent’s opportunity
to file the application may be deemed waived, prior to a scheduled hearing,
if the deadline passes without submission of the application and no good
cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was
deprived of a full and fair hearing where he has not shown that conducting
the hearing by video conference interfered with his communication with
the Immigration Judge or otherwise prejudiced him as a result of technical
problems with the video equipment.
Back to Beginning of Cases
The 9th Circuit held that California Health & Safety Code §11378’s
inclusion of geometrical isomers of methamphetamine does not reflect a
legislative determination that such isomers actually exist. The purpose
of the categorical approach is to ascertain whether the defendant was
necessarily convicted in state court of conduct that would also violate
the relevant federal law; if there is no realistic probability that this
is not the case, the goal of the inquiry is surely satisfied.
Back to Beginning of Cases
The 9th Circuit held that in order to base an adverse credibility determination
on a petitioner’s non responsiveness, an immigration judge must
identify specific instances, supported by the record, where the petitioner
did not respond. Although REAL ID Act omissions need not go to the heart
of a claim to be considered when evaluating an applicant’s credibility,
they must still be weighed in light of the totality of the circumstances
and all relevant factors; a collateral omission that has no tendency to
suggest an applicant fabricated his claim is insufficient to support an
adverse credibility determination.
Back to Beginning of Cases
The 9th Circuit held that perjury under California Penal Code §118(a) is
an aggravated felony.
Back to Beginning of Cases
The 9th Circuit held that the plain and unambiguous text of 8 C.F.R. §1003.2(c)(1)
does not require a non-citizen seeking to reopen an earlier application
for relief to attach a new application for relief to a motion to reopen.
Back to Beginning of Cases
The 9th Circuit held that an alien who had not been lawfully admitted for permanent
residence at the time of his mother’s naturalization did not qualify
for derivative citizenship under former 8 U.S.C. §1432(a)(5)’s
begins to reside permanently requirement.
Back to Beginning of Cases
The 9th Circuit held that an alien’s ability to elude her pursuers at great
effort and risk, while in hiding, did not establish that she would be
able to avoid persecution or torture by relocating within her native Cameroon.
A decision by the Board of Immigration Appeals requiring that a proposed
social group have ocular visibility was inconsistent with board precedent;
the alien did not waive her challenge to the board’s social distinction
determination by redefining her proposed social group in her appeal.
Back to Beginning of Cases
The 9th Circuit held that the federal generic definition of murder excludes the
killing of an unborn fetus. The federal unborn child protection statute,
18 U.S.C. §1841, has no applicability or reach beyond its own provisions.
California Penal Code §187(a) is divisible because it creates distinct
crimes for the unlawful killing of a human being and the unlawful killing
of a fetus.
Back to Beginning of Cases
The 9th Circuit held that an alien’s conviction under California Penal Code
§288.3(a), for attempting to communicate with a child with the intent
to commit lewd or lascivious acts upon that child, was categorically a
crime involving moral turpitude that made him removable. Because not all
of §288.3(a)’s enumerated offenses involve moral turpitude,
the panel explained that the statute is not categorically a crime involving
moral turpitude, but the full range of conduct proscribed by §288.3(a)
with a specific intent of violating §288 is a crime involving moral
turpitude.
Back to Beginning of Cases
The 9th Circuit held that an alien’s illegal presence in the country is
not a crime; plaintiff’s right to be free from unlawful stops because
of a suspicion of unauthorized presence has been established since at
least 2012.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration Appeals erred in denying immigration
relief to an alien who claimed she suffered frequent and severe abuse
at the hands of her domestic partner in Nicaragua; substantial evidence
did not support the Board’s determination that the Nicaraguan government
was able and willing to protect her from persecution by her domestic partner,
or that a public official acting under the color of law had not acquiesced
to her torture, where the alien had reported her partner’s abuse
to police, but the police took no action after her partner paid the officers
a bribe; the Board erred by selectively considering country conditions
evidence indicating that the Nicaraguan government was making positive
strides in combating domestic violence and rape, while failing to take
into account other evidence regarding the government’s failure to
enforce, or lack of effective enforcement of, laws criminalizing rape
and domestic violence.
Back to Beginning of Cases
The 9th Circuit held that
matter of A-B- did not announce a new categorical exception to withholding of removal
for victims of domestic violence or other private criminal activity, but
rather it reaffirmed the Board of Immigration Appeals’ existing
framework for analyzing the cognizability of particular social groups,
requiring that such determinations be individualized and conducted on
a case-by-case basis; a particular social group must exist independently
of the harm asserted.
Back to Beginning of Cases
The 9th Circuit held that the language of 8 U.S.C. §1101(a)(43)(S), which
describes an aggravated felony offense relating to obstruction of justice,
is unambiguous in requiring a nexus to an ongoing or pending proceeding
or investigation; California Penal Code §32, is not a categorical
match with obstruction of justice under §1101(a)(43)(S) because the
text of §32 and its practical application demonstrate that it encompasses
interference with proceedings or investigations that are not pending or ongoing.
Back to Beginning of Cases
The BIA held that (1) Where an alien who has been personally served with
a notice to appear advising him of the requirement to notify the Immigration
Court of his correct address fails to do so and is ordered removed in
absentia for failure to appear for the scheduled hearing, reopening of
the proceedings to rescind his order of removal based on a lack of proper
notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration
and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years
indicates a lack of due diligence and may properly be found to undermine
the veracity of his claim that he has taken actions to maintain his rights
in the underlying removal proceedings.
Back to Beginning of Cases
The California Court of Appeal, Second District, division Twoheld that
Wende’s constitutional underpinnings do not apply to appeals from the
denial of postconviction relief; counsel appointed in such appeals is
required to independently review the entire record and, if counsel so
finds, file a brief advising the appellate court that there are “no
arguable issues to raise on appeal”; the defendant has a right to
file a supplemental brief; and an appellate court has the duty to address
any issues raised by the defendant but otherwise may dismiss the appeal
without conducting an independent review of the record.
Back to Beginning of Cases
The 9th Circuit held that a technical violation for purposes of 8 C.F.R. §245.1(d)(2)(ii)
occurs only if the violation is a consequence of the U.S. Citizenship
and Immigration Services’ inaction on a pending application; if
the violation is caused by anything within the alien’s control,
such as substantive ineligibility for an extension of lawful status, there
is no technical violation; where an alien claims that a lapse in status
was caused by USCIS’s inaction on an application to extend lawful
status, a technical violation occurs only if the alien’s application
to maintain lawful status is ultimately granted.
Back to Beginning of Cases
-
Matter of REYES, 28 I&N Dec. 52 – filed July 30, 2020
The Attorney General of the U.S. decided that
(1) If all of the means of committing a crime, based on the elements of
the statute of conviction, amount to one or more of the offenses listed
in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C.
§1101(a)(43), then an alien who has been convicted of that crime
has necessarily been convicted of an aggravated felony for purposes of the INA.
(2) The respondent’s conviction for grand larceny in the second degree
under New York Penal Law § 155.40(1) qualifies as a conviction for
an aggravated felony for purposes of the INA. DHS charged that the respondent
had been convicted of either aggravated-felony theft or aggravated-felony
fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C.
§ 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes
aggravated-felony theft, and the parties do not dispute that the other
means of violating the New York statute correspond to either aggravated-felony
theft or aggravated-felony fraud.
Back to Beginning of Cases
The BIA held that Section 13-3407 of the Arizona Revised Statutes, which
criminalizes possession of a dangerous drug, is divisible with regard
to the specific “dangerous drug” involved in a violation of
that statute.
Back to Beginning of Cases
The 9th Circuit held that Oregon Revised Statutes §475.992(1)(a), which criminalizes
manufacture or delivery of a controlled substance, is divisible as between
its manufacture and delivery terms; a conviction under that statute is
an aggravated felony; an alien’s §475.992(1)(a) conviction
can qualify as a particularly serious crime barring withholding of removal.
Back to Beginning of Cases
- Robinson v. Lewis - filed July 20, 2020
When a California court denies a claim in a petition for writ of habeas
corpus, and the petitioner subsequently files the same or a similar claim
in a petition for writ of habeas corpus directed to the original jurisdiction
of a higher court, a California court will not consider whether the petition
was timely but rather whether the claims presented within the petition
were timely; the court will not consider whether the gap delay, by itself,
made the claims raised in the petition untimely, and no specific time
limits exist for when a new petition for a writ of habeas corpus must
be filed in a higher court after a lower court denies the petition.
Back to Beginning of Cases
The Attorney General of the U.S. decided that:
(1) Under Department of Justice regulations implementing the Convention
Against Torture, an act constitutes "torture" only if it is
inflicted or approved by a public official or other person "acting
in an official capacity." 8 C.F.R. § 1208.18(a)(1). This official
capacity requirement limits the scope of the Convention to actions performed
"under color of law."
Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). Nothing in
Matter of Y-L-, or any other Board precedent, should be construed to endorse a distinct,
"rogue official" standard.
(2) The "under color of law" standard draws no categorical distinction
between the acts of low- and high-level officials. A public official,
regardless of rank, acts "under color of law" when he "exercise[s]
power ‘possessed by virtue of . . . law and made possible only because
[he was] clothed with the authority of . . . law.’"
West v. Atkins, 487 U.S. 42, 47 (1988) (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).
Back to Beginning of Cases
The BIA held that under section 235(b)(2)(C) of the Immigration and Nationality
Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on
land from a contiguous foreign territory may be returned by the Department
of Homeland Security to that country pursuant to the Migrant Protection
Protocols, regardless of whether the alien arrives at or between a designated
port of entry.
Back to Beginning of Cases
- Silva v. Barr - filed July 10, 2020
The 9th Circuit held that an alien’s conviction for petty theft under California
Penal Code §484(a) is a crime involving moral turpitude.
Back to Beginning of Cases
The director of the U.S. Department of Justice’s Executive Office
for Immigration Review decided that an
amicus curiae is not a party in recognition and accreditation proceedings and has no
authority to seek further action following the conclusion of an administrative
review under 8 C.F.R. § 1292.18.
Back to Beginning of Cases
The 9th Circuit held that a petitioner seeking asylum and withholding of removal
failed to establish that his proposed social groups comprised of Mexican
professionals who refuse to cooperate with drug cartels and agronomists
who refuse to help cultivate drugs are socially distinct where he presented
no evidence that Mexican society views either proposed social groups as
distinct, and the evidence indicated that almost anybody can be targeted
by the drug cartels.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration Appeals erred by relying on
national efforts to combat drug cartels in concluding that petitioner
seeking relief under the Convention Against Torture had failed to establish
the acquiescence of a public official; the petitioner’s testimony
regarding multiple instances of acquiescence in the past involving her
personal circumstances as a lesbian, and extensive country conditions
evidence documenting the widespread problem of public official acquiescence
in crimes by a specific drug cartel generally, established the requisite
level of acquiescence by public officials; the petitioner could not safely
relocate within Mexico to avoid future torture where there was no affirmative
evidence that there is a general or specific area within Mexico where
petitioner could safely relocate, and the evidence indicated that the
cartel, and that homosexual individuals are at heightened risk, throughout
much of Mexico.
Back to Beginning of Cases
U.S. Supreme Court held that the limits on appellate review imposed by
8 U.S.C. §1252(e)(2) does not violate the Suspension Clause, as applied
to an asylum-seeker asserting a fear of persecution in his native country;
§1252(e)(2) does not violate the Due Process Clause as applied to
an foreign national seeking initial entry.
Back to Beginning of Cases
The BIA held that an alien who has conspired to enter into a marriage for
the purpose of evading the immigration laws by seeking to secure a K-1
fiancé(e) nonimmigrant visa is subject to the bar under section
204(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)(2) (2018). For purposes of section 204(c)(2) of the Act, a conspiracy requires an
agreement to enter into a marriage for the purpose of evading the immigration
laws and an overt act in furtherance of that agreement.
Back to Beginning of Cases
The Ninth Circuit held that California Penal Code §261.5(c) is not
a categorical match to the general federal definition of sexual abuse
of a minor. In evaluating the need to avoid unwarranted sentencing disparities
under 18 U.S.C. §3553(a), a district court did not abuse its discretion
by focusing on national parity rather than giving definitive weight to
the defendant’s proffered regional data.
Back to Beginning of Cases
The Ninth Circuit held that The Board of Immigration Appeals properly concluded
that an asylum seeker’s proposed social group of wealthy landowners
in Colombia is not cognizable because it lacks particularity and social
distinction; to have the social distinction necessary to establish a particular
social group, there must be evidence showing that society in general perceives,
considers, or recognizes persons sharing the particular characteristic
to be a group.
Back to Beginning of Cases
U.S. Supreme Court held that the defense counsel’s failure to investigate
abundant, readily available, compelling mitigating evidence established
counsel’s deficient performance; the prejudice inquiry under Strickland
is not limited to cases in which there was little or no mitigation evidence
presented.
Back to Beginning of Cases
The BIA held that to prevail on a motion to reopen alleging changed country
conditions where the persecution claim was previously denied based on
an adverse credibility finding in the underlying proceedings, the respondent
must either overcome the prior determination or show that the new claim
is independent of the evidence that was found to be not credible.
Back to Beginning of Cases
The Ninth Circuit held that a conviction for being under the influence
of a controlled substance, in violation of California Health and Safety
Code §11550(a), is divisible with respect to controlled substance
such that the modified categorical approach applies to determining whether
a conviction under the statute is a controlled-substance offense as defined
by federal law.
Back to Beginning of Cases
The California Court of Appeals, Second Appellate District, Division Six
held that a defendant was entitled to pursue a motion to vacate her conviction,
based on the 2019 version of California Penal Code §1473.7 and despite
having had denied earlier her motion to her conviction that referenced
the 2017 version of California Penal Code §1473.7, on the basis that,
due to an error, she did not meaningfully understand that a mandatory
consequence of her plea would make her permanently ineligible to ever
become a legal resident of the United States.
Back to Beginning of Cases
The Ninth Circuit held that a federal appellate court generally lacks jurisdiction
to review a final order of removal against a non-citizen whose commission
of a certain type of crime rendered her removable, but the court retains
jurisdiction to review legal questions, including whether 8 U.S.C. §1252(a)(2)(C)’s
jurisdictional bar applies. While §1432(a)(3) discriminates on the
basis of gender, a petitioner lacked standing to challenge this provision
where her paternity and maternity were both established during her youth.
Because both fathers and mothers can legitimate a child after the child’s
birth, legitimation is not inherently discriminatory.
Back to Beginning of Cases
The Ninth Circuit held that although Congress conferred exclusively on
the attorney general the authority to terminate asylum, the federal regulations
specifically contemplate that an immigration judge may terminate asylum
after notice is provided by the Department of Homeland Security; a judge
erred in admitting, and relying upon, a record of investigation that purportedly
confirmed that some of the asylum application materials were fraudulent
where that ROI did not identify any of the named individuals, present
supporting evidence to explain the nature of the investigation, produce
the referenced exemplars, or proffer any government witnesses about the
alleged fraud.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s conviction for felony vehicular
flight from a pursuing police car while driving against traffic, in violation
of California Vehicle Code §2800.4, is categorically a crime involving
moral turpitude that made him removable.
Back to Beginning of Cases
The U.S. Supreme Court affirmed that neither 8 U.S.C. 1252(a)(2)(C) nor
8 U.S.C. 1252(a)(2)(D) preclude judicial review of a noncitizen’s
factual challenges to a Convention Against Torture order.
Back to Beginning of Cases
The Office of the Director for the U.S. Department of Justice’s Executive
Office for Immigration Review decided that: (1) The Assistant Director for Policy has the discretion to extend the
deadline for a request for reconsideration made
pursuant to 8 C.F.R. § 1292.13(e), but not for a request for reconsideration
made pursuant to 8 C.F.R. § 1292.16(f) or § 1292.17(d). The
30-day deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e),
§ 1292.16(f), and § 1292.17(d) is otherwise mandatory and not
subject to equitable tolling. (2) A request for reconsideration made pursuant
to 8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d)
must demonstrate an error of fact or law in the previous decision. (3)
The standard of review for administrative reviews conducted under 8 C.F.R.
§ 1292.18 is de novo. (4) Unless overruled by subsequent precedent
or superseded by statute, regulation, or binding federal court decision,
prior precedent decisions of the Board of Immigration Appeals remain binding
in recognition and accreditation proceedings after January 18, 2017, including
consideration of requests for reconsideration pursuant to 8 C.F.R. §§
1292.13(e), 1292.16(f), or 1292.17(d) and administrative reviews conducted
under 8 C.F.R. § 1292.18. (5) In addition to establishing the requirements
for partial accreditation, an organization seeking full accreditation
for an individual pursuant to 8 C.F.R. § 1292.12(a)(6) must establish
that the individual possesses “skills essential for effective litigation.”
Such skills include, at a minimum, “the ability to advocate a client's
position at a hearing before an Immigration Judge by presenting documentary
evidence and questioning witnesses, to present oral arguments before the
Board, and to prepare motions and briefs for consideration by an Immigration
Judge and/or [the] Board.” Matter of EAC, Inc., 24 I&N Dec.
556 (BIA 2008), followed.
Back to Beginning of Cases
Ninth Circuit held that a BIA decision is reviewable under Bonilla v. Lynch
where it is obvious that the agency has denied sua-sponte relief not as
a matter of discretion but rather because it erroneously believed either
that the law forbade it from exercising its discretion or that exercising
its discretion would be futile. An appeals court generally lacks jurisdiction
to review claims that the BIA should have exercised its sua-sponte power
in a given case. Review of a settled-course claim is abuse of discretion,
as it asks the court to evaluate the BIA’s exercise of its sua-sponte
authority in a given case.
Back to Beginning of Cases
The BIA decided that the absence of a checked alien classification box
on a Notice to Appear (Form I-862) does not, by itself, render the notice
to appear fatally deficient or otherwise preclude an Immigration Judge
from exercising jurisdiction over removal proceedings, and it is therefore
not a basis to terminate the proceedings of an alien who has been returned
to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez,
27 I&N Dec. 762 (BIA 2020), followed.
Back to Beginning of Cases
The BIA held that a Notice to Appear lacking the time, date, and location
of a petitioner’s initial removal hearing does not deprive the BIA
of jurisdiction over removal proceedings under 8 C.F.R. §1003.14;
8 C.F.R. §1003.18(b) anticipates that when the address of the immigration
court is not included in the NTA, the court can provide notice of that
information at a later time in a subsequent Notice of Hearing.
Back to Beginning of Cases
The Ninth Circuit denied that the government’s motion for a stay
pending appeal of the district court’s preliminary injunction enjoining
Presidential Proclamation No. 9945, Suspension of Entry of Immigrants
Who Will Financially Burden the United States Health Care System.
Back to Beginning of Cases
The Ninth Circuit certified that the following questions of state law to
the Arizona Supreme Court: 1. Is Arizona’s possession of drug paraphernalia
statute, A.R.S. §13-3415,divisible as to drug type? 2. Is Arizona’s
drug possession statute, A.R.S. §13-3408, divisible as to drug type?
3.Put another way, is jury unanimity (or concurrence) required as to which
drug or drugs listed in A.R.S. §13-3401(6), (19), (20), or (23) was
involved in an offense under either statute?
Back to Beginning of Cases
The Ninth Circuit held that the Nevada law punishing the possession of
visual presentation depicting sexual conduct of persons under 16 years
of age applies to a broader range of conduct then 8 U.S.C. §1101(a)(43)(A)
and therefore is not a sexual-abuse-of-a-minor aggravated felony.
Back to Beginning of Cases
The U.S. Supreme Court affirmed that for purposes of cancellation-of-removal
eligibility, an 8 U.S.C. §1182(a)(2) offense committed during the
initial seven years of residence does not need to be one of the offenses
of removal.
Back to Beginning of Cases
The Ninth Circuit held that Solorio-Ruiz v. Sessions—which held that
carjacking in violation of California Penal Code §215 is not a crime
of violence because that statute requires only force in excess of that
required to seize the vehicle—is no longer good law following the
U.S. Supreme Court’s decision in Stokeling v. U.S; but carjacking
under §215 is still not a crime of violence because §215 may
be violated through fear of injury to property alone; §215 is not
a categorical match to U.S.S.G. §4B1.2(a)(1) or §4B1.2(a)(2),
and it is not divisible.
Back to Beginning of Cases
The Ninth Circuit held that the language of 8 U.S.C. §1231(a)(5) unambiguously
and permanently bars the reopening of a reinstated prior removal order;
§1231(a)(5) provides that an alien forfeits the right to file a motion
to reopen by reentering the country illegally; withholding of removal
and protection under the Convention Against Torture are available in reinstatement
proceedings, and some collateral attack on an underlying order during
reinstatement proceedings may be available if the petitioner can show
that he suffered a gross miscarriage of justice in the initial proceeding.
Back to Beginning of Cases
The BIA decided that for purposes of determining whether an alien is subject
to the firm resettlement bar to asylum, a viable and available offer to
apply for permanent residence in a country of refuge is not negated by
the alien’s unwillingness or reluctance to satisfy the terms for
acceptance.
Back to Beginning of Cases
The Ninth Circuit ruled that the relevant foreign national’s emergency
motion to remand pursuant to the All Writs Act as a petition for a writ
of habeas corpus, and we transfer it to the Southern District of California.
Back to Beginning of Cases
The Ninth Circuit held that although 8 U.S.C. §1231(a)(6) requires
an individualized bond hearing before an immigration judge for an alien
detained for six months or longer when the alien’s release or removal
is not imminent, the statute does not require additional bond hearings
every six months.
Back to Beginning of Cases
The Ninth Circuit held that the 2011 panel decision in Diouf v. Napolitano—construing
8 U.S.C. §1231(a)(6) as requiring an individualized bond hearing
before an immigration judge for an alien detained for six months or longer
when the alien’s release or removal is not imminent—is not
clearing irreconcilable with the U.S. Supreme Court’s decision in
Jennings v. Rodriguez.
Back to Beginning of Cases
The Ninth Circuit held that an applicant for adjustment of status cannot
be regarded as personally responsible for failing to maintain lawful status
when that failure occurs due to a mistake on her lawyer’s part;
8 C.F.R. §1245.1(d)(2) is invalid to the extent it excludes reasonable
reliance on the assistance of counsel from the circumstances covered by
the statutory phrase other than through no fault of his own.
Back to Beginning of Cases
The BIA decided that (1) The exceptional and extremely unusual hardship
for cancellation of removal is based on a cumulative consideration of
all hardship factors, but to the extent that a claim is based on the health
of a qualifying relative, an applicant needs to establish that the relative
has a serious medical condition and, if he or she is accompanying the
applicant to the country of removal, that adequate medical care for the
claimed condition is not reasonably available in that country. (2) The
Immigration Judge properly determined that the respondent did not establish
eligibility for cancellation of removal because he did not demonstrate
that his qualifying relatives will experience hardship, including medical,
economic, and emotional hardship, that rises to the level of exceptional
and extremely unusual.
Back to Beginning of Cases
The Ninth Circuit held that Immigration detention violates the Due Process
Clause unless a special justification outweighs the constitutionally protected
interest in avoiding physical restraint; once a person is standing on
U.S. soil—regardless of the legality of entry—he or she is
entitled to due process.
Back to Beginning of Cases
The U.S. Supreme Court affirmed that a person who has unlawfully taken
a vehicle in violation of Vehicle Code §10851 is not disqualified
from Proposition 47 relief because the person cannot prove he intended
to keep the vehicle away from the owner indefinitely.
Back to Beginning of Cases
The BIA decided that the Immigration Judge properly determined that the
respondent was a flight risk and denied his request for a custody redetermination
where, although he had a pending application for asylum, he had no family,
employment, or community ties and no probable path to obtain lawful status
so as to warrant his release on bond.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s removal from the United States
while his appeal was pending before the Board of Immigration Appeals did
not withdraw his appeal under 8 C.F.R. §1003.4.
Back to Beginning of Cases
The BIA decided that (1) An Interpol Red Notice may constitute reliable
evidence that indicates the serious nonpolitical crime bar for asylum
and withholding of removal applies to an alien. (2) The respondent’s
violation of article 345 of the Salvadoran Penal Code, which proscribes
participation in an illicit organization whose purpose is the commission
of crimes, was “serious” within the meaning of the serious
nonpolitical crime bar.
Back to Beginning of Cases
The Ninth Circuit denied that the U.S. Departments of Homeland Security’s
and Justice’s request for a stay, pending a final decision on appeal,
of the U.S. District Court's order stopping them from enforcing its third-country-bar-to-asylum
regulation against non-Mexican asylum seekers who were metered at the
U.S. border before July 16, 2019.
Back to Beginning of Cases
The U.S. Supreme Court affirmed that a defendant’s prior conviction
for Colorado second-degree burglary of a dwelling was a conviction for
a violent felony, and he was therefore properly subject to an enhancement
under the Armed Career Criminal Act.
Back to Beginning of Cases
The U.S. Supreme Court affirmed that Kansas statutes criminalizing the
act of using another person’s Social Security number on federal
and state tax-withholding forms are not expressly preempted by the Immigration
Reform and Control Act; the state laws also do not fall into a field that
is implicitly reserved exclusively for federal regulation, nor do they
conflict with federal law.
Back to Beginning of Cases
The Ninth Circuit held that The Board of Immigration Appeals erred by conducting
a de novo review of a judge’s factual findings pertaining to a grant
of deferral of removal under the Convention Against Torture, rather than
reviewing them for clear error, as required by 8 C.F.R. §1003.1(d)(3)(i).
Back to Beginning of Cases
California Supreme Court held that a felony conviction for misuse of personal
identifying information under Penal Code §530.5(a) cannot be reduced
to misdemeanor shoplifting under Proposition 47.
Back to Beginning of Cases
The BIA decided that sexual solicitation of a minor in violation of section
3-324(b) of the Maryland Criminal Law with the intent to engage in an
unlawful sexual offense under section 3-307 is categorically a crime involving
moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017),
reaffirmed.
Back to Beginning of Cases
The Attorney General decided that (1) The Board of Immigration Appeals
should consider de novo the application of law to the facts of this case,
including whether the deprivations that the respondent would be likely
to encounter upon removal to Mexico would constitute "torture"
within the meaning of the Department of Justice regulations implementing
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S.
85 (entered into force for United States Nov. 20, 1994). (2) To constitute
"torture" under these regulations, an act must, among other
things, "be specifically intended to inflict severe physical or mental
pain or suffering." 8 C.F.R. § 1208.18(a)(5). "‘[T]orture’
does not cover ‘negligent acts’ or harm stemming from a lack
of resources." Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA
2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).
(3) To constitute "torture," an act must also be motivated by
"such purposes as obtaining from him or her or a third person information
or a confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or intimidating
or coercing him or her or a third person, or for any reason based on discrimination
of any kind." 8 C.F.R. § 1208.18(a)(1).
Back to Beginning of Cases
The U.S. Supreme Court affirmed that the rule of Bivens v. Six Unknown
Federal Narcotics Agents does not extend to claims based on a cross-border shooting.
Back to Beginning of Cases
The Ninth Circuit held that a spousal relationship must exist for a spouse
at the time of the filing of the initial U-visa petition for the spouse
to be eligible for derivative U-visa status.
Back to Beginning of Cases
The BIA decided that (1) An alien’s status as a landowner does not
automatically render that alien a member of a particular social group
for purposes of asylum and withholding of removal. (2) To establish a
particular social group based on landownership, an alien must demonstrate
by evidence in the record that members of the proposed group share an
immutable characteristic and that the group is defined with particularity
and is perceived to be socially distinct in the society in question. (3)
The respondent’s proposed particular social groups—comprised
of landowners and landowners who resist drug cartels in Guatemala—are
not valid based on the evidence in the record.
Back to Beginning of Cases
The California Court of Appeal Fourth Appellate District, Division Two
decided that a border patrol agent had insufficient evidence to suspect
a defendant was engaged in criminal activity where the defendant was driving
in a known smuggling corridor in a vehicle which had crossed the United
States-Mexico border the prior week; she slowed and changed lanes after
he pulled alongside her in an unmarked car, rolled down his window, and
stared at her; she drove at approximately 50 miles per hour to stay behind
him; and she then refused to look at him when she ultimately passed him
a few minutes later.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s felony conviction for Possession
of Marijuana for Sale under California Health & Safety Code §11359
made her removable even though the conviction had been recalled and reclassified
as a misdemeanor under California’s Proposition 64.
Back to Beginning of Cases
The BIA decided that where the Department of Homeland Security returns
an alien to Mexico to await an immigration hearing pursuant to the Migrant
Protection Protocols and provides the alien with sufficient notice of
that hearing, an Immigration Judge should enter an in absentia order of
removal if the alien fails to appear for the hearing.
Back to Beginning of Cases
The Ninth Circuit held that a robbery conviction under Oregon’s criminal
code did not justify deportation because the offense is not a categorical
theft offense and therefore not an aggravated felony.
Back to Beginning of Cases
The Ninth Circuit held that The Board of Immigration Appeals could not
consider a petitioner’s Convention Against Torture claim on remand
where an appellate court had expressly disposed of that issue in the prior
petition for review and remanded only for further consideration of the
petitioner’s withholding claim. A petitioner’s proposed social
group of Guatemalans who report criminal activity of gangs to police was
not cognizable due to the lack of society-specific evidence of social
distinction.
Back to Beginning of Cases
The BIA decided that in assessing whether to grant an alien’s request
for a continuance regarding an application for collateral relief, the
alien’s prima facie eligibility for relief and whether it will materially
affect the outcome of proceedings are not dispositive, especially where
other factors—including the uncertainty as to when the relief will
be approved or become available—weigh against granting a continuance.
Back to Beginning of Cases
The Ninth Circuit held that a spousal relationship must exist at the time
of filing of a U-visa petition for a spouse to be eligible for derivative
U-visa status; immigration-fraud concerns and the underlying purposes
of the different visa categories provide a rational basis for the different
treatment of U-visa spouses as compared to other spouses.
Back to Beginning of Cases
The Ninth Circuit held that The Board of Immigration Appeals can properly
regard an aggravated assault with a deadly weapon or dangerous instrument
as substantially more turpitudinous than a mere simple assault. Aggravated
assault under Arizona Revised Statutes §§13-1203(A)(2) and 13-1204(A)(2)
is a crime involving moral turpitude.
Back to Beginning of Cases
The BIA decided that a notice to appear that does not include the address
of the Immigration Court where the Department of Homeland Security will
file the charging document, see 8 C.F.R. § 1003.15(b)(6) (2019),
or include a certificate of service indicating the Immigration Court in
which the charging document is filed, see 8 C.F.R. § 1003.14(a) (2019),
does not deprive the Immigration Court of subject matter jurisdiction.
Back to Beginning of Cases
The California Court of Appeal, Fourth District, Division Three held that
a trial court asked to make special-immigrant-juvenile findings needs
to first determine if the immigrant child was either declared a dependent
of the court or placed under the custody of a court-appointed guardian,
then determine whether the immigrant child cannot reunify with one or
both parents because of abuse, neglect, abandonment, or a similar basis
pursuant to California law, and lastly, decide whether it is not in the
best interests of the child to be returned to her previous country; California
superior courts must issue their findings on a Judicial Council form created
for this purpose.
Back to Beginning of Cases
The Ninth Circuit held that a B-2 nonimmigrant whose lawful status has
lapsed is precluded from establishing lawful domicile in California by
operation of federal law for purposes; therefore, such a B-2 nonimmigrant
who’s overstayed in California is not required to pursue a divorce
in California as opposed to her country of residence even if her spouse
is lawfully domiciled in California.
Back to Beginning of Cases
The BIA decided that the offense of making terroristic threats in violation
of section 609.713, subdivision 1, of the Minnesota Statutes is categorically
a crime involving moral turpitude.
Back to Beginning of Cases
The Ninth Circuit held that a U.S. District Court did not abuse its discretion
in allowing a defendant to withdraw her guilty plea to illegal reentry
under 8 U.S.C. §1326 following the Ninth Circuit’s ruling in
Lorenzo v. Sessions that the definition of methamphetamine applicable
to convictions under §11378 is broader than the definition of methamphetamine
under the federal Controlled Substances Act because that decision effectively
invalidated her underlying removal.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s removal from the United States
while his appeal was pending before the Board of Immigration Appeals did
not withdraw his appeal under 8 C.F.R. §1003.4.
Back to Beginning of Cases
The BIA decided that (1) An Immigration Judge may rely on inconsistencies
to support an adverse credibility finding as long as either the Immigration
Judge, the applicant, or the Department of Homeland Security has identified
the discrepancies and the applicant has been given an opportunity to explain
them during the hearing. (2) An Immigration Judge may, but is not required
to, personally identify an obvious inconsistency where it is reasonable
to assume that the applicant was aware of it and had an opportunity to
offer an explanation before the Immigration Judge relied on it.
Back to Beginning of Cases
The California Court of Appeal held that although it is now established
that an attorney’s failure to specifically advise a client about
the immigration consequences of a plea can constitute ineffective assistance
of counsel, a defendant with a conviction from 2002 is not entitled to
the benefit of this development in Sixth-Amendment jurisprudence. Prevailing
under Penal Code §1473.7 does not require a defendant to prove a
violation of his constitutional rights, and only requires contemporaneous
evidence demonstrating a reasonable probability that but for the alleged
error that defendant would not have entered a guilty plea.
Back to Beginning of Cases
The Ninth Circuit held that in making an adverse credibility determination,
an immigration judge may not rely on an asylum officer’s subjective
conclusions about a foreign-national applicant’s demeanor or veracity
at an earlier interview; where a foreign-national applicant’s testimony
was consistent with, but more detailed than, her asylum application, that
foreign-national applicant’s testimony is not “per se”
lacking in credibility.
Back to Beginning of Cases
The BIA decided that (1) Torturous conduct committed by a public official
who is acting “in an official capacity,” that is, “under
color of law” is covered by the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987;
for the United States Apr. 18, 1988), but such conduct by an official
who is not acting in an official capacity, also known as a “rogue
official,” is not covered by the Convention. (2) The key consideration
in determining if a public official was acting under color of law is whether
he was able to engage in torturous conduct because of his government position
or if he could have done so without a connection to the government.
Back to Beginning of Cases
The Ninth Circuit held that five-year statute of limitations set out by
28 U.S.C. § 2462 does not apply to denaturalization proceedings.
Back to Beginning of Cases
The California Court of Appeal, Fourth District, Division Two found that
federal law does not conflict with the Immigration Consultant Act; there
is a clear federal intent to allow the states to penalize federally unauthorized
persons for providing representation in immigration matters.
Back to Beginning of Cases
The Ninth Circuit held that a non-citizen who seeks a 8 U.S.C. §237(a)(1)(H)
waiver is otherwise admissible even though he failed to return to his
country of origin for at least two years, as required by 8 U.S.C. §1182(e).
Back to Beginning of Cases
The Ninth Circuit held that frivolous asylum application bar in 8 U.S.C.
§1158(d)(6) precludes an applicant from receiving all benefits under
the Immigration and Nationality Act.
Back to Beginning of Cases
The Ninth Circuit held that neither §701(a)(2) of the Administrative
Procedure Act nor 8 U.S.C. §1252(a)(2)(B)(ii) bar a district court
from reviewing an alien’s challenge to the denial of his U visa petition.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s conviction for first-degree
unlawful imprisonment under Hawaii Revised Statutes §707-721(1) is
categorically a crime involving moral turpitude that made him removable.
Back to Beginning of Cases
The Ninth Circuit held that the language of 8 U.S.C. §1231(a)(5) unambiguously
and permanently bars reopening a reinstated prior removal order; §1231(a)(5)
also provides that an alien forfeits the right to file a motion to reopen
by reentering the country illegally.
Back to Beginning of Cases
The BIA decided that reopening of proceedings to terminate a grant of asylum
is warranted if the Department of Homeland Security has demonstrated that
evidence of fraud in the original proceeding was not previously available
and is material because, if known, it would likely have opened up lines
of inquiry that could call the alien’s eligibility for asylum into doubt.
Back to Beginning of Cases
The BIA decided that (1) To qualify for a waiver of inadmissibility under
section 209(c) of the Immigration and Nationality Act, 8 U.S.C. §
1159(c) (2012), an alien who is found to be a violent or dangerous individual
must establish extraordinary circumstances, which may be demonstrated
by a showing of exceptional and extremely unusual hardship to the alien
or to his qualifying relatives.
Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), followed. (2) Even if an alien establishes
exceptional and extremely unusual hardship, the favorable and adverse
factors presented must be balanced to determine if a waiver should be
granted in the exercise of discretion.
Back to Beginning of Cases
The Ninth Circuit held that absent any prejudice to the government, a premature
petition for review of an immigration order may ripen upon final disposition
of the case by the Board of Immigration Appeals. The BIA abused its discretion
in denying an alien’s appeal of an immigration judge’s denial
of her motion to reopen, where the IJ in the underlying removal proceeding
ordered the alien removed in absentia on the basis of an amended notice
to appear of which she did not receive proper notice.
Back to Beginning of Cases
The Attorney General referred that (1) The tests set forth in
Matter of Cota-Vargas,
Matter of Song, and
Matter of Estrada will no longer govern the effect of state-court orders that modify, clarify,
or otherwise alter a criminal alien’s sentence. (2) Such state-court
orders will be given effect for immigration purposes only if based on
a procedural or substantive defect in the underlying criminal proceeding;
these orders will have no effect for immigration purposes if based on
reasons unrelated to the merits of the underlying criminal proceeding,
such as rehabilitation or the avoidance of immigration consequences.
Back to Beginning of Cases
The Attorney General referred that (1) The Immigration and Nationality
Act’s “good moral character” standard requires adherence
to the generally accepted moral conventions of the community, and criminal
activity is probative of non-adherence to those conventions. (2) Evidence
of two or more convictions for driving under the influence during the
relevant period establishes a presumption that an alien lacks good moral
character under INA § 101(f), 8 U.S.C. § 1101(f). (3) Because
only aliens who possessed good moral character for a 10-year period are
eligible for cancellation of removal under section 240A(b) of the INA,
8 U.S.C. § 1229b(b), such evidence also presumptively establishes
that the alien’s application for that discretionary relief should
be denied.
Back to Beginning of Cases
The Ninth Circuit held that in removal proceedings commenced against a
noncitizen after the non-citizen has already entered the country, an immigration
judge lacks authority to grant the non-citizen a U-visa waiver of inadmissibility
under 8 U.S.C. §1182(d)(3)(A)(ii). An alien’s conviction under
California Health and Safety Code §11359 was a drug trafficking aggravated
felony that made him inadmissible and ineligible for adjustment of status.
Back to Beginning of Cases
The BIA decided that (1) The crime of dissuading a witness in violation
of section 136.1(b)(1) of the California Penal Code is categorically an
aggravated felony offense relating to obstruction of justice under section
101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(S) (2012).
Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), followed. (2) The holding in
Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), may be applied retroactively.
Back to Beginning of Cases
The BIA decided that (1) The offense of menacing in violation of section
163.190 of the Oregon Revised Statutes is categorically a crime involving
moral turpitude. (2) The element of actual inflicted fear is not necessary
to determine that a crime categorically involves moral turpitude where
the State statute requires evil or malicious intent, and the level of
threatened harm, or magnitude of menace implicit in the threat, is serious
and immediate.
Matter of Solon, 24 I&N Dec. 239 (BIA 2007), distinguished.
The Ninth Circuit held that the government cannot establish by clear and
convincing evidence a non-citizen’s continuous presence in the United
States when the alleged time of reentry without submitting any direct
evidence of where the non-citizen was for more than a decade.
Back to Beginning of Cases
The BIA decided that (1) Because the identity of the drug involved is an
element of the crime of possession of a controlled substance under section
124.401(5) of the Iowa Code, the statute is divisible (in the case of
marijuana, methamphetamine, or amphetamine) as to the specific drug involved,
and the record of conviction can be examined under the modified categorical
approach to determine whether that drug is a controlled substance under
Federal law. (2) The respondent’s conviction for possession of methamphetamine
in violation of section 124.401(5) of the Iowa Code is a violation of
a law relating to a controlled substance under section 237(a)(2)(B)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012).
Back to Beginning of Cases
The Ninth Circuit held that an Oregon third-degree robbery is not a violent
felony under the Armed Career Criminal Act force clause because it doesn’t
require physically violent force. First-degree robbery in violation of
Oregon law is not a categorically violent offense.
Back to Beginning of Cases
The Ninth Circuit held that when a minor over the age of 14 was never detained
by immigration authorities, and he filed an affirmative application for
asylum, the government did not have an obligation to provide notice of
his deportation hearing to a responsible adult living with the minor.
Back to Beginning of Cases
The Ninth Circuit held that derivative beneficiaries of an alien entrepreneur
in the immigrant investor program who receive conditional legal permanent
residence status have the right to seek review of the denial of an I-829
petition to remove the conditions on their permanent residence status;
the plain language of 8 U.S.C. §1186b(c)(3)(D) unambiguously establishes
that Congress did not intend to limit such review to the alien entrepreneur.
Back to Beginning of Cases
The Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the
federal courts of jurisdiction to review the denial of a national-interest
waiver related to an alien’s application for a work visa.
Back to Beginning of Cases
The Ninth Circuit held that the three-factor test developed by the Board
of Immigration Appeals for determining whether retaliation for opposition
to official corruption or whistleblowing constitutes persecution on account
of a political opinion corresponds to the federal precedent for whistleblowing
cases and therefore is reasonable.
Back to Beginning of Cases
The Ninth Circuit held that a defendant’s prior Nevada conviction
for attempted battery with substantial bodily harm in violation of Nevada
Revised Statutes §200.481(2)(b) and § 193.330 qualifies as a
felony conviction for a crime of violence under U.S.S.G. §2K2.1.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s reliance on his lawyer’s
erroneous advice that he was not required to update his fingerprints with
the Department of Homeland Security before a hearing on his application
for relief was reasonable and constituted good cause to grant a continuance.
Back to Beginning of Cases
The BIA decided that (1) The standard of proof necessary to bar the approval
of a visa petition based on marriage fraud under section 204(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012), is "substantial
and probative evidence." (2) The degree of proof necessary to constitute
"substantial and probative evidence" is more than a preponderance
of evidence, but less than clear and convincing evidence; that is, the
evidence has to be more than probably true that the marriage is fraudulent.
(3) The nature, quality, quantity, and credibility of the evidence of
marriage fraud contained in the record should be considered in its totality
in determining if it is "substantial and probative."(4) The
application of the "substantial and probative evidence" standard
requires the examination of all of the relevant evidence and a determination
as to whether such evidence, when viewed in its totality, establishes,
with sufficient probability, that the marriage is fraudulent. (5) Both
direct and circumstantial evidence may be considered in determining whether
there is "substantial and probative evidence" of marriage fraud
under section 204(c) of the Act, and circumstantial evidence alone may
be sufficient to constitute "substantial and probative evidence."
Back to Beginning of Cases
The Ninth Circuit held that pursuant to 8 U.S.C. §1228, which governs
expedited removal proceedings for non-citizens convicted of committing
aggravated felonies, and through which non-citizens can request reasonable
fear interviews, non-citizens have the privilege of being represented,
at no expense to the government, by counsel.
Back to Beginning of Cases
- People v. Rodriguez - filed August 16, 2019
The California Court of Appeal’s Second Appellate District found
that a trial court abused its discretion in finding a defendant did not
act reasonably and diligently in failing to request relief under Penal
Code §1473.7 before the statute was enacted; the defendant acted
with reasonable diligence by filing his motion within a month after being
advised he had the ability to file a §1473.7 petition, seven months
after the statute took effect, while he was still being detained and his
removal proceedings were ongoing. A court erred in ruling on a §1473.3
motion without a defendant’s waiver of his right to be present,
or without counsel present.
Back to Beginning of Cases
The Ninth Circuit held that a court order compelling the government to
provide specific hygiene items and adequate sleeping accommodations to
detained minors was an interpretation of an agreement pursuant to which
the government agreed to provide safe and sanitary conditions for the
minors, not a modification of the terms of the agreement. The creation,
via an agreement, of a presumption in favor of releasing detained minors
subject to expedited removal, is fully consistent with the Immigration
and Nationality Act and related regulations.
Back to Beginning of Cases
- People v. Moses - filed August 14, 2019
The California Court of Appeal’s Second Appellate District, Division
3 found that the plain terms of Penal Code §236.1(c) include as a
required element that the victim must be a person who is a minor at the
time of commission of the offense; this distinguishes attempted human
trafficking as defined by §236.1(c) from an ordinary criminal attempt
defined in §21a.
Back to Beginning of Cases
The Ninth Circuit held that a returning lawful permanent resident who has
a felony conviction for solicitation to possess marijuana for sale is
inadmissible under 8 U.S.C. §1182(a)(2)(A)(i)(I), even though that
provision refers only to attempt and conspiracy to commit a crime involving
moral turpitude, and not solicitation.
Back to Beginning of Cases
The Ninth Circuit held that without assuming that issue preclusion applies
in immigration adjustment of status proceedings, an issue was actually
litigated only if it was raised, contested, and submitted for determination
in a prior adjudication; when the question of whether an alien was inadmissible
on terrorism-related grounds was not actually litigated in his asylum
proceedings, issue preclusion did not apply to his adjustment of status
proceedings.
Back to Beginning of Cases
The Ninth Circuit held that an alien’s conviction under Oregon Revised
Statute §163.187(1) for strangulation is categorically a crime of
violence within the meaning of 18 U.S.C. §16(a). When a withholding
applicant was sentenced to fewer than five years imprisonment for an aggravated
felony conviction, the BIA may determine that the conviction qualifies
as a particularly serious crime; the applicable legal standard is based
on a list of factors the BIA set forth in Matter of Frentescu, 18 I&N
Dec. 244 (BIA 1982). Where the BIA denies relief on the merits, rather
than based on a conviction, a court retains jurisdiction to review the merits.
Back to Beginning of Cases
The Administrative Appeals Office held that for purposes of adjustment
of status under section 245 of the Act, a recipient of Temporary Protected
Status (TPS) is considered as being in and maintaining lawful status as
a nonimmigrant only during the period that TPS is in effect; a grant of
TPS does not cure or otherwise impact any previous unlawful status nor,
outside the jurisdictions of the U.S. Courts of Appeals for the Ninth
and Sixth Circuits, does it constitute an admission.
Back to Beginning of Cases
- People v. DeJesus - filed July 26, 2019
The California Court of Appeal’s Second Appellate District found
that parolees are not eligible for relief pursuant to California Penal
Code Sec. 1473.7.
Back to Beginning of Cases
The BIA decided that immigration Judges have the authority to deny an application
for temporary protected status in the exercise of discretion.
Back to Beginning of Cases
The Ninth Circuit held that battery resulting in serious bodily injury,
in violation of California Penal Code §243(d), qualifies as a crime
of violence as defined in §4B1.2(a)(1) of the United States Sentencing
Guidelines.
Back to Beginning of Cases
The Ninth Circuit held that the crime of robbery under California Penal
Code Sec. 211 robbery qualifies as a generic theft offense under 8 U.S.C.
Sec. 1101(a)(43)(G), and thus is an aggravated felony under 8 U.S.C. Sec.
1227(a)(2)(A)(iii).
Back to Beginning of Cases
The Ninth Circuit held that an alien who crosses into the country at a
non-designated time or place is not guilty of a violation of 18 U.S.C.
§1325(a)(2); to convict a defendant under §1325(a)(2), the government
must prove that the alien’s criminal conduct occurred at a time
and place designated for examination or inspection by immigration officers,
such as a port of entry open for inspection.
Back to Beginning of Cases
The Ninth Circuit held that Chevron deference applies to the Board of Immigration
Appeals’ precedent establishing that 8 U.S.C. §1229b(b)(1)(C)
does not require analysis under the categorical approach to determine
whether an alien’s violation of a protection order renders him convicted
of an offense under §1227(a)(2)(E)(ii).
Back to Beginning of Cases
The Ninth Circuit held that a state conviction that cannot be determined
to trigger removability as a result of its ambiguity, even after conducting
the modified-categorical approach, cannot be a basis for rendering someone
ineligible for relief from removal because of that same ambiguity.
Back to Beginning of Cases
The Ninth Circuit held that a court has jurisdiction to review a legal
determination by the Board of Immigration Appeals that an alien’s
conviction was for an aggravated felony, and a denial of a motion to reopen
to the extent the decision rested on a ground other than the conviction.
To establish prejudice in the context of a motion to reopen based on ineffective
assistance of counsel, it is not necessary for a petitioner to make out
a prima facie case of eligibility for the ultimate relief sought—a
petitioner need only show that counsel’s deficient performance may
have affected the outcome of the proceedings by showing plausible grounds
for relief. An alien convicted of an aggravated felony with a sentence
of more than five years is statutorily ineligible for asylum and withholding
of removal.
Back to Beginning of Cases
The Ninth Circuit held that a Board of Immigration Appeals denial of a
motion to reopen sua sponte generally is not reviewable because such decisions
are committed to agency discretion; a court has jurisdiction to review
BIA decisions denying sua sponte reopening for the limited purpose of
reviewing the reasoning behind the decisions for legal or constitutional
error. Citation of 10 unpublished decisions falls far short of establishing
that the BIA has effectively adopted a rule that vacatur of an underlying
conviction necessarily requires it to grant reopening sua sponte.
Back to Beginning of Cases
- People v. Chen - filed June 28, 2019
The California Court of Appeal’s Second Appellate District found
that a defendant asserting a claim for relief under Penal Code §1473.7
based on an attorney’s erroneous advisement need not prove the elements
of a claim for ineffective assistance of counsel, the defendant need only
show a reasonable probability of a different outcome in the original proceedings
absent the error; an attorney did not fail to provide a defendant with
the ability to meaningfully understand the consequences of her plea where
the attorney told her of the risk of deportation if she pled guilty to
a felony charge.
Back to Beginning of Cases
The BIA decided that (1) Under the plain language of section 237(a)(3)(D)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(3)(D)(i)
(2012), it is not necessary to show intent to establish that an alien
is deportable for making a false representation of United States citizenship.
(2) Although a Certificate of Naturalization (Form N-550) is evidence
of United States citizenship, the certificate itself does not confer citizenship
status if it is acquired unlawfully.
Back to Beginning of Cases
California Court of Appeal, Fourth District, Div. Three held that to establish
a prejudicial error under Penal Code §1473.7, a person need only
show by a preponderance of the evidence: he did not meaningfully understand
or knowingly accept the actual or potential adverse immigration consequences
of the plea; and had he understood the consequences, it is reasonably
probable he would have instead attempted to defend against the charges.
Back to Beginning of Cases
U.S. Supreme Court held that the residual clause defining a crime of violence,
18 U.S.C. §924(c)(3)(B), is unconstitutionally vague; the imposition
of criminal punishments cannot be made to depend on a judge’s estimation
of the degree of risk posed by a crime’s imagined ordinary case.
Back to Beginning of Cases
The Ninth Circuit held that an individual’s statements regarding
his birthplace constituted evidence of alienage—not identity—and
are suppressable. Law enforcement’s categorical authority to detain
incident to the execution of a search warrant does not extend to a preexisting
plan whose central purpose is to detain, interrogate, and arrest a large
number of individuals without individualized reasonable suspicion.
Back to Beginning of Cases
The Ninth Circuit held that although Congress’ two-year reprieve
for immigrants residing in the Commonwealth of the Northern Mariana Islands
protected immigrants from removability under 8 U.S.C. §1182(a)(6)(A)(i)
on the basis that they had not been admitted or paroled into the United
States, it did not exempt them from removal based on other grounds of
removability. Residence in the commonwealth before U.S. immigration law
became effective does not count toward the residence required for naturalization
as a U.S. citizen.
Back to Beginning of Cases
The BIA decided that if an alien has been convicted of violating a State
drug statute that includes a controlled substance that is not on the Federal
controlled substances schedules, he or she must establish a realistic
probability that the State would actually apply the language of the statute
to prosecute conduct involving that substance in order to avoid the immigration
consequences of such a conviction, reaffirming Matter of Ferreira, 26
I&N Dec. 415 (BIA 2014).
Back to Beginning of Cases
U.S. Supreme Court held that generic remaining-in burglary occurs under
18 U.S.C. Sec. 924(e) when the defendant forms the intent to commit a
crime at any time while unlawfully remaining in a building or structure.
The intent to commit a crime must be contemporaneous with unlawful entry
or remaining, but the defendant's intent is contemporaneous with the unlawful
remaining so long as the defendant forms the intent at any time while
unlawfully remaining. The Michigan home-invasion statute substantially
corresponds to or is narrower than generic burglary.
Back to Beginning of Cases
The Ninth Circuit held that robbery in the third degree in violation of
Oregon Revised Statutes Sec. 164.395 is not categorically a crime involving
moral turpitude because (a) it includes theft of a vehicle whether the
intent to deprive the owner of such property permanently or temporarily,
(b) the BIA’s more expansive standard relating to theft-related
crimes involving moral turpitude does not apply retroactively, and (c)
the minimal force require for conviction is insufficient to label the
offense a crime involving moral turpitude.
Back to Beginning of Cases
California Court of Appeal held that the plain language of Penal Code Sec.
1473.7(d) establishes that a moving party is entitled to a hearing. The
hearing can be held without the moving party if counsel is present and
the court finds good cause as to why the moving party cannot be present.
If the moving party is indigent and cannot attend the hearing because
he is in federal custody awaiting deportation, counsel should be appointed.
Back to Beginning of Cases
The BIA held that an Immigration Judge has the authority to dismiss removal
proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding
that it is an abuse of the asylum process to file a meritless asylum application
with the U.S. Citizenship and Immigration Services for the sole purpose
of seeking cancellation of removal in the Immigration Court.
Back to Beginning of Cases
The Ninth Circuit held that an asylum seeker was statutorily ineligible
for asylum and withholding of removal where there were serious reasons
to believe he committed a serious nonpolitical crime since he was involved
in a financial scheme embezzling public funds and he admitted that his
involvement in the scheme stemmed from purely economic reasons. Torture
does not include pain or suffering arising only from, inherent in, or
incidental to lawful sanctions, including the death penalty.
Back to Beginning of Cases
The Ninth Circuit held that The Board of Immigration Appeals does not per
se err when it concludes that arguments raised for the first time on appeal
do not have to be entertained.
Back to Beginning of Cases
The BIA held that pursuant to section 240(b)(5)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission
of an in absentia order of removal nor termination of the proceedings
is required where an alien who was served with a notice to appear that
did not specify the time and place of the initial removal hearing failed
to provide an address where a notice of hearing could be sent. Pereira
v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
Back to Beginning of Cases
The BIA held that neither rescission of an in absentia order of removal
nor termination of the proceedings is required where an alien did not
appear at a scheduled hearing after being served with a notice to appear
that did not specify the time and place of the initial removal hearing,
so long as a subsequent notice of hearing specifying that information
was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018),
distinguished.
Back to Beginning of Cases
The Ninth Circuit held that parole into the United States under 8 U.S.C.
Sec. 1182(d)(5) is not an "admission in any status" for purposes
of meeting the residency requirement for cancellation of removal.
Back to Beginning of Cases
California Court of Appeal held that a petition for writ of mandate was
not the proper vehicle for a defendant to seek to have his conviction
vacated where he pled guilty before a magistrate judge, but the judge
had become a superior court judge by the time judgment was pronounced.
A superior court judge cannot mandate another superior court judge to
vacate a judgment because the superior court judge who pronounced judgment
is not an inferior tribunal.
Back to Beginning of Cases
The Ninth Circuit held that robbery on a government reservation in violation
of 18 U.S.C. Sec. 2111 is categorically a "crime of violence"
under Sec. 924(c)(3)(A), even if done by "intimidation" alone.
Back to Beginning of Cases
The Ninth Circuit held that Federal immigration law does not recognize
a state's policy decision to expunge, recall or reclassify a valid state
conviction. A conviction vacated for reasons unrelated to the merits of
the criminal proceedings -such as equitable, rehabilitation, or immigration
hardship reasons- may be used as a conviction in removal proceedings,
whereas a conviction vacated because of a procedural or substantive defect
in the criminal proceedings may not.
The Ninth Circuit held that The Department of Homeland Security is entitled
to a stay of a preliminary injunction barring it from implementing its
Migrant Protection Protocols since DHS is likely to prevail on its contention
that 8 U.S.C. Sec. 1225(b)(1) "applies" only to applicants for
admission who are processed under its provisions. Under that reading of
the statute, Sec. 1225(b)(1) does not apply to an applicant who is processed
under Sec. 1225(b)(2)(A), even if that individual is rendered inadmissible
by Sec. 1182(a)(6)(C) or (a)(7). The DHS is also likely to prevail on
its claim that a preliminary injunction on the implementation of its MPP
was inappropriate since the MPP qualifies as a general statement of policy
and general statements of policy are exempted from the Administrative
Procedure Act's notice-and-comment requirement.
Back to Beginning of Cases
The Ninth Circuit held that California's timeliness rule for habeas petitions,
although discretionary, met the firmly established criteria for a "firmly
established and regularly followed" rule as of Jan. 6, 2000. A habeas
petitioner established cause to excuse his default due to the confluence
of several factors, including actions by his counsel that constituted
abandonment, but the California Supreme Court's conclusory denial of his
claims on their merits did not preclude a district court from conducting
a prejudice inquiry.
Back to Beginning of Cases
The Ninth Circuit held that under 8 C.F.R. Sec. 1240.11(a)(2), an immigration
judge is required to inform a petitioner subject to removal proceedings
of "apparent eligibility to apply for any of the benefits enumerated
in this chapter," and the "apparent eligibility" standard
is triggered whenever the facts before the IJ raise a reasonable possibility
that the petitioner may be eligible for relief. "Special Immigrant
Juvenile" status is a form of relief covered by the "apparent
eligibility" standard of 8 C.F.R. SEC. 1240.11(a)(2).
Back to Beginning of Cases
Idrees v. Barr
- filed April 30, 2019
The Ninth Circuit held that the BIA’s decision not to certify a claim,
and therefore to accept a procedurally improper appeal, is committed to
agency discretion under 5 U.S.C. §701(a) and not subject to judicial
review absent constitutional or legal error.
Back to Beginning of Cases
California Court of Appeal’s Fourth Appellate District, Division
One held that the Legislature wrote Penal Code Sec. 1473.7 with the intent
that an order granting or denying a motion under that section would be
appealable. In 2003, a criminal defense attorney did not have a general
duty to discuss the immigration consequences of a guilty plea with a client.
Back to Beginning of Cases
The Ninth Circuit held that the U.S. cannot preliminarily enjoin California
AB 450's requirement that employers alert employees before federal immigration
inspections since the notice requirement will neither burden the federal
government nor conflict with federal activities. The U.S. cannot preliminarily
enjoin California AB 103's inspection requirements on facilities that
house civil immigration detainees since these are duplicate inspection
requirements otherwise mandated under California law and are imposed on
state and local detention facilities. The section of AB 103 that requires
examination of the circumstances surrounding the apprehension and transfer
of immigration detainees discriminates against and impermissibly burdens
the federal government, and so is unlawful under the doctrine of intergovernmental
immunity. The U.S. cannot preliminarily enjoin California SB 54's provision
limiting the cooperation between state and local law enforcement and federal
immigration authorities since any obstruction is consistent with California's
prerogatives under the Tenth Amendment and the anti commandeering rule.
Back to Beginning of Cases
The Attorney General of the U.S. decided that (1) Matter of X-K-, 23 I&N
Dec. 731 (BIA 2005), was wrongly decided and is overruled. (2) An alien
who is transferred from expedited removal proceedings to full removal
proceedings after establishing a credible fear of persecution or torture
is ineligible for release on bond. Such an alien must be detained until
his removal proceedings conclude, unless he is granted parole.
Back to Beginning of Cases
The BIA held that under the plain language of section 101(a)(43)(H) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(H) (2012),
kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony.
Back to Beginning of Cases
The Ninth Circuit held that a felony conviction under California Penal
Code Sec. 245(a)(1) is a crime of violence. The fact of a Sec. 245(a)(1)
conviction establishes that the defendant was convicted of an offense
punishable by more than one year in prison. A wobbler conviction is punishable
as a felony, even if the court later exercises its discretion to reduce
the offense to a misdemeanor.
Back to Beginning of Cases
The Ninth Circuit held that when Coast Guard officers detain individuals
in service of the Immigration & Nationality Act, they act as immigration
agents subject to the same regulations as their counterparts in the immigration
agencies. Evidence of alienage may be excluded for a regulatory violation
where the agency violated one of its regulations. The subject regulation
serves a "purpose of benefit to the alien" and the violation
"prejudiced interests of the alien which were protected by the regulation."
Coast Guard officers violated 8 C.F.R. Sec. 287.8(b)(2) by detaining an
individual solely on the basis of his race. Sec. 287.8(b)(2) was intended
to reflect constitutional restrictions on the ability of immigration officials
to interrogate and detain persons in this country. Prejudice can be presumed
when the regulation is violated since the regulation is mandated by the
Constitution. The fruit-of-the-poisonous-tree doctrine does not extend
backwards to taint evidence that existed before any official misconduct
took place.
Back to Beginning of Cases
The California Court of Appeal, Fourth District, Division Three held that
when federal immigration law is clear that a conviction will result in
deportation, a defense attorney renders deficient representation if he
does not accurately advise his client of that consequence.
Back to Beginning of Cases
The 9th Circuit held that a Mexican police officer seeking asylum did not establish
past harm rising to the level of persecution, where he received two death
threats from hitmen for drug cartel, to cooperate with them in transporting
drugs to the Mexican border. While death threats can constitute persecution,
they constitute persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual suffering or harm.
Back to Beginning of Cases
The U.S. Supreme Court held that the class of people referenced in 8 U.
S. C. Sec. 1226(c)(1) as the alien is fixed by the predicate offenses
identified in subparagraphs (A)–(D).
Back to Beginning of Cases
The California Court of Appeal, First District, Division Four held that
under the provisions of Proposition 47, identity theft must be treated
as misdemeanor petty theft if the value of the personal identifying information
at issue does not exceed $950.
Back to Beginning of Cases
The 9th Circuit held that a defendant's Washington state conviction for felony
harassment qualifies as a crime of violence, as defined in U.S.S.G. Sec.
4B1.2. The conviction qualified as a crime of violence under Sec. 4B1.2(a)'s
force clause because it necessarily entailed the threatened use of violent
physical force. A defendant's Washington state conviction for second degree
assault did not qualify as a crime of violence under the force clause
of Sec. 4B1.2(a). It also did not qualify as a crime of violence under
Sec. 4B1.2(a)'s residual clause because the offense, in the ordinary case,
does not present a serious potential risk of physical injury to another,
and it is not similar in kind to the crimes listed in the enumerated offenses clause.
Back to Beginning of Cases
The 9th Circuit held that the Board of Immigration Appeals can consider sentencing
enhancements when it determines that a petitioner was convicted of a per
se particularly serious crime.
Back to Beginning of Cases
The California Court of Appeal, Second District, Division Two held that
the Expungement under Penal Code Sec. 1203.4 has no effect on the federal
immigration consequences of a conviction for an aggravated felony. In
immigration proceedings when a deportable conviction has been vacated
by the state court, it nevertheless remains a deportable conviction if
it was vacated solely for rehabilitative reasons or to allow the convicted
person to remain in this country. If it was vacated for procedural or
substantive infirmaries, it is no longer valid for immigration purposes.
A defendant established that he lacked an understanding of the immigration
consequences of his plea where his attorney admittedly incorrectly advised
him on the potential immigration consequences and the effect of expungement
or reductions of felonies in immigration cases.
Back to Beginning of Cases
The 9th Circuit held that the BIA erred in denying asylum relief to an applicant
without considering whether the conditions of her offer of resettlement
in South Africa were too restricted for her to be firmly resettled. The
BIA also erred in applying the firm-resettlement rule as a limitation
on the evidence the board considered in support of the applicant's claim
for relief from removal and in applying the rule to bar the applicant's
withholding of removal claim.
Back to Beginning of Cases
The 9th Circuit held that no circuit precedent has held that the text of 8 U.S.C.
Sec. 1227(a)(2)(A)(ii) unambiguously foreclosed the BIA’s interpretation
that an alien will be deportable when he commits an act, which, in and
of itself, constitutes a complete, individual, and distinct crime, and
then commits another such act, even though one may closely follow the
other, be similar in character, and even be part of an overall plan of
criminal misconduct.
Back to Beginning of Cases
The 9th Circuit held that the appellate courts are bound by the U.S. Supreme Court's
determination that the phrase "crime involving moral turpitude"
is not unconstitutionally vague. Recent case law did not reopen inquiry
into the constitutionality of the phrase. An alien's Washington conviction
for communicating with a minor for immoral purposes is a crime of moral
turpitude.
Back to Beginning of Cases
The 9th Circuit held that second-degree assault under Washington law is overbroad
when compared to the generic definition of aggravated assault because
only the former encompasses assault with intent to commit a felony. Washington's
assault statute is indivisible. Washington second-degree assault does
not qualify as a "crime of violence" under the enumerated clause
of U.S.S.G. Sec. 4B1.2. Second-degree murder under Washington law is overbroad
when compared to the generic definition of murder because only the former
covers felony murder. Washington's second-degree murder statute is indivisible.
Washington's second-degree murder is not a "crime of violence"
under the enumerated clause of Sec. 4B1.2 or under the force/elements
clause of Sec. 4B1.2(a)(2).
Back to Beginning of Cases
The 9th Circuit held that immigration court jurisdiction is governed by federal
immigration regulations which do not require that the charging document
include the time and date of an alien's initial removal hearing.
Back to Beginning of Cases
The 9th Circuit held that the plain language of 8 C.F.R. Sec. 1208.13(b)(3) does
not require the government to propose a city, state, or other type of
locality as the area of relocation, rather the Department of Homeland
Security may properly propose a specific or a more general area as the
place of safe relocation. The Board of Immigration Appeals must then conduct
its safe relocation analysis with respect to that proposed area, however
specifically or generally defined. In considering the reasonableness of
an political asylum petitioner's relocation, the BIA must consider whether
the petitioner would be substantially safer in a new location if he were
to continue expressing his political opinion. It cannot assume the petitioner
will silence his political activity to avoid harm.
Back to Beginning of Cases
The 9th Circuit held that there is no duress exception to the material support
terrorist bar in 8 U.S.C. Sec. 1182(a)(3)(B)(iv)(VI), nor a de minimis
funds exception.
Back to Beginning of Cases
The 9th Circuit held that when determining whether an offense is "punishable"
by a certain term of imprisonment, courts must consider both a crime's
statutory elements and sentencing factors. A defendant's offense was not
punishable by more than one year in prison where the actual maximum term
that the defendant could have received under state law was for less than a year.
Back to Beginning of Cases
The 9th Circuit held that the crime of robbery under California Penal Code Sec.
211 robbery qualifies as a generic theft offense under 8 U.S.C. Sec. 1101(a)(43)(G),
and thus is an aggravated felony under 8 U.S.C. Sec. 1227(a)(2)(A)(iii).
Back to Beginning of Cases
The 9th Circuit held that assuming that unlawful aliens in this country hold some
degree of rights under the Second Amendment, 8 USC Sec. 922(g)(5)(A) is
still constitutional under intermediate scrutiny.
Back to Beginning of Cases
The 9th Circuit held that a conviction for class one misdemeanor domestic violence
assault under Arizona Revised Statutes 13-1203 and 13-3601 is a crime
of domestic violence under 8 U.S.C. 1227(a)(2)(E) that renders a foreign
national convicted of such offense removable. The statute is divisible
and, under the modified categorical approach, there can be a sufficient
factual basis to support that one intentionally or knowingly caused any
physical injury to another person. Furthermore, the domestic relationships
enumerated under Arizona's domestic violence provision, Arizona Revised
Statutes 3-3601(A), are coextensive with the domestic relationships described
in section 1227(a)(2)(E)(i).
Back to Beginning of Cases
The BIA held that (1) An alien makes a willful misrepresentation under
section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(C)(i) (2012), when he or she knows of or authorizes
false statements in an application filed on the alien’s behalf.
(2) An alien’s signature on an immigration application establishes
a strong presumption that he or she knows of and has assented to the contents
of the application, but the alien can rebut the presumption by establishing
fraud, deceit, or other wrongful acts by another person.
Back to Beginning of Cases
The 9th Circuit held that the retroactivity analysis from
Montgomery Ward & Co. v. FTC is only applicable when an agency consciously overrules or otherwise alters
its own rule or regulation, or expressly considers and openly departs
from a circuit court decision. The U.S. Attorney General's decision in
In re Silva-Trevino did not change the law establishing that felony endangerment under Arizona
Revised Statutes Sec. 13-1201 is a crime involving moral turpitude.
Back to Beginning of Cases
U.S Supreme Court held that the term "burglary" in the Armed
Career Criminal Act includes burglary of a structure or vehicle that has
been adapted or is customarily used for overnight accommodation. Although
the risk of violence is diminished if a vehicle is only used for lodging
part of the time, there is no reason to believe that Congress intended
to make a part-time/full-time distinction.
Back to Beginning of Cases
The 9th Circuit held that the federal prosecution of any person who "encourages
or induces" an alien to come to, enter, or reside in the United States
if the encourager knew, or recklessly disregarded the fact that such coming
to, entry, or residence is or will be in violation of law, is unconstitutionally
over broad in violation of the First Amendment because it criminalizes
a substantial amount of protected expression in relation to its narrow
band of legitimately prohibited conduct and unprotected expression.
Back to Beginning of Cases
The California Court of Appeal, Fifth District held that a sentence enhancement
cannot be imposed under Penal Code Sec. 667.5(b) if the conviction on
which it was based has been reclassified from a felony to a misdemeanor
pursuant to Proposition 47 before sentencing. The "washout"
provision of Sec. 667.5(b) disregards prison terms for convictions reduced
under Proposition 47.
Back to Beginning of Cases
The BIA held that an applicant for adjustment of status who was admitted
on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner,
and was later divorced must submit an affidavit of support from the petitioner
to establish that he or she is not inadmissible as a public charge under
section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(4) (2012).
Back to Beginning of Cases
The 9th Circuit held that the void-for-vagueness doctrine does not apply to any
grounds of inadmissibility, and the crime-involving-moral-turpitude statute,
8 U.S.C. Sec. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague.
Back to Beginning of Cases
The California Court of Appeal, First District, Division Three held that
a defendant may appeal denial of a factual-innocence motion pursuant to
Penal Code Sc. 1237(b).
Back to Beginning of Cases
The California Court of Appeal, Second District, Division Six held that
a successful Proposition 47 petitioner may subsequently challenge any
felony-based enhancement that is based on that previously designated felony,
now reduced to a misdemeanor, so long as the judgment containing the enhancement
was not final when Proposition 47 took effect. When part of a sentence
is stricken on review, on remand for resentencing, a full resentencing
as to all counts is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.
Back to Beginning of Cases
The 9th Circuit held that a habeas-corpus petitioner was entitled to equitable
tolling between the date of the one-year Antiterrorism and Effective Death
Penalty Act deadline for filing a federal habeas petition and the date
he filed his amended federal petition, even if the claims asserted in
the original and amended petitions do not share a common core of operative
facts. A district court could not consider documentary evidence on the
merits of a habeas-corpus petitioner's request for an evidentiary hearing
on his claims that trial counsel rendered ineffective assistance during
the guilt phase where he did not submit that evidence to the state courts
in the manner required under state law. Nevada's “avoid lawful arrest”
aggravating circumstance passes constitutional muster. Nevada's one-year
deadline for the filing of petitions for post-conviction relief is an
independent and adequate state procedural bar to federal review.
Back to Beginning of Cases
The 9th Circuit held that the phrase "particularly serious crime," as
used in 8 U.S.C. Sec. 1231(b)(3)(B), is not unconstitutionally vague on
its face. Although the statute to some extent provides an uncertain standard
to be applied to a wide range of fact-specific scenarios, the inquiry
requires consideration of what a petitioner actually did.
Back to Beginning of Cases
The 9th Circuit held that a violation of California Penal Code Sec. 288(c)(1)
is not categorically a crime involving moral turpitude since the statute
lacks the corrupt scienter requirement that is the touchstone of moral
turpitude. Sec. 288(c)(1) does not require intent to injure or actual
injury, although it does involve a protected class of persons. Sec. 288(c)(1)
contains a single, indivisible set of elements such that the modified
categorical approach does not apply. Sec. 288(c)(1) is not categorically
a crime of child abuse under 8 U.S.C. Sec. 1227(a)(2)(E)(1).
Back to Beginning of Cases
The California Court of Appeal, Sixth District held that a defendant may
raise a challenge to his sentence based on amendments to the Penal Code
that took effect while his appeal was pending, despite his failure to
obtain a certificate of probable cause in support of his appeal, since
the changes in the law were implicitly incorporated into his plea agreement
and he was not contesting the validity of his plea.
Back to Beginning of Cases
The 9th Circuit held that a grant of regulatory employment authorization under
8 C.F.R. Sec. 274a.12(b)(20) does not confer lawful immigration status
for purposes of establishing eligibility for status adjustment under 8
U.S.C. Sec. 1255(k)(2).
Back to Beginning of Cases
The BIA held that where the evidence regarding an application for protection
under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United
States Apr. 18, 1988), plausibly establishes that abusive or squalid conditions
in pretrial detention facilities, prisons, or mental health institutions
in the country of removal are the result of neglect, a lack of resources,
or insufficient training and education, rather than a specific intent
to cause severe pain and suffering, an Immigration Judge’s finding
that the applicant did not establish a sufficient likelihood that he or
she will experience "torture" in these settings is not clearly
erroneous.
Back to Beginning of Cases
The California Court of Appeal, Third District held that denial of a petition
for reduction of offense pursuant to Health and Safety Code Sec. 11361.8(b)
requires proof by the prosecution, by a preponderance of the evidence,
of an unreasonable risk of danger to public safety.
Back to Beginning of Cases
The BIA held that an Immigration Judge has initial jurisdiction over an
asylum application filed by a respondent who was previously determined
to be an unaccompanied alien child but who turned 18 before filing the
application.
Back to Beginning of Cases
The BIA held that the amendment to section 18.5 of the California Penal
Code, which retroactively lowered the maximum possible sentence that could
have been imposed for an alien’s State offense from 365 days to
364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II)
(2012), to a past conviction for a crime involving moral turpitude "for
which a sentence of one year or longer may be imposed."
Back to Beginning of Cases
The 9th Circuit held that a district court did not abuse its discretion in granting
a preliminary injunction requiring the government to provide a prompt
hearing before a neutral decisionmaker at which noncitizen minors could
challenge the allegations of gang membership being advanced against them
since the existing Office of Refugee Resettlement procedures appeared
inadequate to protect against the risk of minors being erroneously taken
away from their sponsors and Flores hearings were not sufficient to protect
the Trafficking Victims Protection Reauthorization Act's rights of the
minors. The injunction is consistent with the TVPRA's mandate that the
ORR place unaccompanied children in the least restrictive setting that
is in the best interest of the child since the preliminary injunction
calls for minors to be released back to their previous sponsors, whom
the government has already determined to be suitable, and nothing in the
order prohibits the government from transferring minors to ORR custody
within 72 hours, as required by the TVPRA.
Back to Beginning of Cases
The California Court of Appeal’s Fourth District, Division Two held
that a defendant's Penal Code Sec. 1473.7 motion to vacate his conviction
should have been granted when he established that his trial attorney had
misadvised him about the immigration consequences of his guilty plea and
that counsel's incorrect advice prejudiced defendant in that there is
a reasonable probability that defendant would not have pled guilty if
properly advised.
Back to Beginning of Cases
The Fourth District, Division One held that a trial court may be found
to have abused its discretion on the issue of ineffective assistance of
counsel if its factual findings are not supported by substantial evidence
or if it misinterprets or misapplies the applicable legal standard. Prior
to the U.S. Supreme Court's 2010 decision in
Padilla v. Kentucky, an attorney's failure to inform a defendant of the immigration ramifications
of guilty or no contest pleas could not support a claim of ineffective
assistance of counsel because such a failure did not fall below a general
standard of reasonableness.
Back to Beginning of Cases
The 9th Circuit held that a when Coast Guard officers detain individuals in service
of the Immigration & Nationality Act, they act as immigration agents
subject to the same regulations as their counterparts in the immigration
agencies. Evidence of alienage may be excluded for a regulatory violation
where the agency violated one of its regulations. The subject regulation
serves a "purpose of benefit to the alien" and the violation
"prejudiced interests of the alien which were protected by the regulation."
Coast Guard officers violated 8 C.F.R. Sec. 287.8(b)(2) by detaining an
individual solely on the basis of his race. Sec. 287.8(b)(2) was intended
to reflect constitutional restrictions on the ability of immigration officials
to interrogate and detain persons in this country. Prejudice can be presumed
when the regulation is violated since the regulation is mandated by the
Constitution. The fruit-of-the-poisonous-tree doctrine does not extend
backwards to taint evidence that existed before any official misconduct
took place.
Back to Beginning of Cases
The Attorney General held that (1) Consistent with Matter of Castro-Tum,
27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority
to terminate or dismiss removal proceedings. (2) Immigration judges may
dismiss or terminate removal proceedings only under the circumstances
expressly identified in the regulations, see 8 C.F.R. § 1239.2(c),
(f), or where the Department of Homeland Security fails to sustain the
charges of removability against a respondent, see 8 C.F.R. § 1240.12(c).
(3) An immigration judge’s general authority to “take any
other action consistent with applicable law and regulations as may be
appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does not provide
any additional authority to terminate or dismiss removal proceedings beyond
those authorities expressly set out in the relevant regulations. (4) To
avoid confusion, immigration judges and the Board should recognize and
maintain the distinction between a dismissal under 8 C.F.R. § 1239.2(c)
and a termination under 8 C.F.R. § 1239.2(f).
Back to Beginning of Cases
The First District, Division One held that Penal Code Sec. 1473.7 is not
applicable to a person under probation at the time the motion is presented.
A revocation of probation does not encompass the admonitions required
in a guilty plea. There is no authority that requires a trial court in
a probation hearing to remind a person again of the immigration consequences
in a revocation proceeding; there is also no authority for the idea that
an attorney's failure to discuss immigration consequences with a defendant
previously advised falls below professional standards.
Back to Beginning of Cases
The 9th Circuit held that an asylum officer did not deprive an alien of due process
by providing him a Spanish-language interpreter rather than an interpreter
in his native language where the alien advised the asylum officer that
he understood "a lot" of Spanish, did not indicate that he had
problems understanding the interpreter, stated that the asylum officer's
summary of his testimony was correct, and had an opportunity to correct
any errors or submit additional evidence on review before the immigration
judge. Reasonable fear review proceedings are expedited and not full evidentiary
hearings, and immigration judges are not required to provide detailed
decisions outlining all the claims raised by the alien. An immigration
judge has sua sponte jurisdiction to reopen proceedings.
Back to Beginning of Cases
The 9th Circuit held that an alien who is charged with unlawful re-entry in violation
of 8 U.S.C. Sec. 1326 can collaterally attack the validity of a prior
removal that serves as a predicate element for the conviction. A person
is exempt from the exhaustion requirements and will have adequately shown
deprivation of judicial review, if the immigration judge, in the prior
removal proceeding, does not inform the alien of the right to appeal.
A defendant whose prior removal proceeding was conducted in absentia satisfies
the exhaustion and deprivation of judicial review requirements and that
removal cannot properly serve as a predicate for a conviction for illegal
re-entry. California battery was not a categorical crime of violence in
2008, so a judge erred in 2008 in removing a defendant for a crime of
domestic violence under Immigration and Nationality Act Sec. 237(a)(2)(E)(i)
based on his California battery conviction. An alien who has been removed
through expedited removal proceedings automatically satisfies the requirements
for exhaustion and deprivation of judicial review. A person should not
be stripped of the important legal entitlements that come with lawful
permanent resident status through a legally erroneous decision that he
had no meaningful opportunity to contest. Lawful permanent residents cannot
be removed on an expedited basis.
Back to Beginning of Cases
The 9th Circuit held that Washington's accomplice liability statute renders its
drug trafficking law broader than generic federal drug trafficking laws
under the Armed Career Criminal Act (“ACCA”), and Washington's
drug trafficking law is thus not categorically a "serious drug offense"
under the ACCA.
Back to Beginning of Cases
The 9th Circuit held that an alien's Nevada conviction for conspiracy to possess
certain drugs is overbroad when compared to the generic definition of
conspiracy because the Nevada statute lacks the requisite "overt
act" element. The categorical approach may not be used to determine
the removability of the alien. Nevada Revised Statutes Sec. 199.480 is
indivisible so the modified categorical approach cannot be applied to
it. Nevada Revised Statutes Sec. 454.351 is categorically overbroad relative
to the substances controlled under 21 U.S.C. Sec. 802. The statute is
also indivisible.
Back to Beginning of Cases
The BIA held that (1) An “offense relating to obstruction of justice”
under section 101(a)(43)(S) of the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43)(S) (2012), encompasses offenses covered by chapter
73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521
(2012), or any other Federal or State offense that involves (1) an affirmative
and intentional attempt (2) that is motivated by a specific intent (3)
to interfere either in an investigation or proceeding that is ongoing,
pending, or reasonably foreseeable by the defendant, or in another’s
punishment resulting from a completed proceeding. Matter of Valenzuela
Gallardo, 25 I&N Dec. 838 (BIA 2012), clarified. (2) A conviction
for accessory to a felony under section 32 of the California Penal Code
that results in a term of imprisonment of at least 1 year is a conviction
for an aggravated felony offense relating to obstruction of justice under
section 101(a)(43)(S) of the Act.
Back to Beginning of Cases
The 9th Circuit held that robbery in violation of California Penal Code Sec. 211
is no longer a "crime of violence" under 18 U.S.C. Sec. 16.
This change in the law governing the crime-of-violence analysis provided
a defendant with a plausible ground for dismissal of an indictment for
illegally reentering the United States after having been deported and
after having been convicted of an "aggravated felony."
Back to Beginning of Cases
The California Court of Appeal, Fifth Appellate District held that A de
novo standard of review applies in assessing the trial court's denial
of a defendant's Penal Code Sec. 1473.7 motion, the defense counsel's
performance was not deficient where the evidence supported a finding that
counsel had accurately advised the defendant about the specific consequences
a no contest plea would have on his legal resident status.
Back to Beginning of Cases
The BIA held that a notice to appear that does not specify the time and
place of an alien’s initial removal hearing vests an Immigration
Judge with jurisdiction over the removal proceedings and meets the requirements
of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. §
1229(a) (2012), so long as a notice of hearing specifying this information
is later sent to the alien.
Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
Back to Beginning of Cases
The 9th Circuit held that an alien suffered past persecution in his native country
where he was subjected to threats, home invasions, beatings, and the murder
of relatives and neighbors by a group of guerillas. Since the guerrillas
were motivated, at least in part, by his family's government and military
Service, the harm suffered by the alien bore a nexus to a protected ground.
Significantly or materially outdated country reports cannot suffice to
rebut a presumption of future persecution. For purposes of evaluating
an application for Convention Against Torture relief, the "government
acquiescence" standard does not require actual knowledge or willful
acceptance of torture-awareness and willful blindness will suffice. The
acquiescence standard is met where the record demonstrates that public
officials at any level would acquiesce in the torture the petitioner is
likely to suffer. Evidence showing widespread corruption of public officials
can be highly probative on this point.
Back to Beginning of Cases
The BIA held that (1) A conviction does not attain a sufficient degree
of finality for immigration purposes until the right to direct appellate
review on the merits of the conviction has been exhausted or waived. (2)
Once the Department of Homeland Security has established that a respondent
has a criminal conviction at the trial level and that the time for filing
a direct appeal has passed, a presumption arises that the conviction is
final for immigration purposes, which the respondent can rebut with evidence
that an appeal has been filed within the prescribed deadline, including
any extensions or permissive filings granted by the appellate court, and
that the appeal relates to the issue of guilt or innocence or concerns
a substantive defect in the criminal proceedings. (3) Appeals, including
direct appeals, and collateral attacks that do not relate to the underlying
merits of a conviction will not be given effect to eliminate the finality
of the conviction.
Back to Beginning of Cases
The 9th Circuit held that an alien's convictions for indecent exposure under Washington
Revised Code Sec. 9A.88.010(1) and Sec. 9A.88.010(2)(b) are not categorically
crimes involving moral turpitude. Both statutes are indivisible such that
the modified categorical approach is inapplicable.
Back to Beginning of Cases
The 9th Circuit held that pursuant to Sentencing Guidelines Amendment 798, robbery
under California Penal Code Sec. 211 is not a "crime of violence"
because it is no longer a categorical match to a combination of Guidelines-described
robbery and extortion. Amendment 798's alteration of the definition of
extortion in the Guidelines' "crime of violence" section is
not retroactive. Absent vagueness rising to the level of a constitutional
violation, there is no rule of law that would allow a federal appellate
court to strike down a Guidelines section because it is ambiguous.
Back to Beginning of Cases
The 9th Circuit held that a lawful permanent resident's admitted use of cocaine
did not trigger the stop-time rule for cancellation of removal because
lawful permanent residents are not subject to the grounds of inadmissibility.
Back to Beginning of Cases
The 9th Circuit held that an alien's conviction for possession for sale of cocaine
salt in violation of California Health & Safety Code Sec. 11351 qualifies
as an aggravated felony. That conviction remains a valid ground of deportation
despite its expungement. An alien was ineligible for relief under Immigration
and Nationality Act Sec. 212(c) because he was convicted of an aggravated
felony after the effective date of Sec. 440(d) of the Antiterrorism and
Effective Death Penalty Act. An alien's fear that he would be perceived
as having money as a returnee from the United States did not establish
that any harm to him upon his return to Mexico would rise to the level
of torture.
Back to Beginning of Cases
The 9th Circuit held that assault with a deadly weapon or instrument other than
a firearm or by means of force likely to produce great bodily injury under
California Penal Code Sec. 245(a)(1), as it was written prior to its amendment
in 2011, categorically qualifies as a conviction for a "crime of
violence" within the meaning of 18 U.S.C. Sec. 16(a). A violation
of Sec. 245(a)(1) requires an intentional use of force. An immigration
judge's failure to inform a defendant of his eligibility for discretionary
relief from removal at the time of his deportation did not render the
defendant's removal invalid if it was not plausible that he would have
been granted such relief.
Back to Beginning of Cases
The 9th Circuit held that battery committed with the use of a deadly weapon under
Nevada Revised Statute Sec. 200.481(2)(e)(1) is categorically a crime
of violence as defined in 18 U.S.C. Sec. 16(a).
Back to Beginning of Cases
The 9th Circuit held that an alien adopted by a U.S. Citizen had standing to assert
a constitutional challenge to 8 U.S.C. Sec. 1433--which requires citizen-parents
of foreign-born, adopted children to petition for naturalization of their
children, while exempting biological parents and adoptive parents who
naturalized after adoption--on behalf of his adoptive mother. Because
a legitimate governmental interest is rationally related to Sec. 1433's
requirement that citizen-parents petition to naturalize their adopted,
foreign-born children, Sec. 1433 does not violate the Fifth Amendment's
Equal Protection Clause. An alien's conviction for third-degree escape
under Arizona Revised Statutes Sec. 13-2502 is not a crime of violence
because it does not necessarily involve the "physical force"
required by the generic federal definition of "crime of violence"
under 18 U.S.C. Sec. 16.
Back to Beginning of Cases
The California Supreme Court held that a child's nonresident, noncustodial
parent does not need to be joined as a party in her parentage action seeking
special immigrant juvenile findings. So long as the absent parent has
received adequate notice, the action may proceed even if the parent is
beyond the personal jurisdiction of the court and cannot be joined as
a party. The action may also proceed regardless of whether the court believes
it was filed primarily for the purpose of obtaining the protections from
abuse, neglect, or abandonment that federal immigration law provides.
Back to Beginning of Cases
The Attorney General of the U.S. decided that:
(1) An immigration judge may grant a motion for a continuance of removal
proceedings only “for good cause shown.” 8 C.F.R. § 1003.29;
(2) The good-cause standard is a substantive requirement that limits the
discretion of immigration judges and prohibits them from granting continuances
for any reason or no reason at all;
(3) The good-cause standard requires consideration and balancing of multiple
relevant factors when a respondent alien requests a continuance to pursue
collateral relief from another authority—for example, a visa from
the Department of Homeland Security. See Matter of Hashmi, 24 I&N
Dec. 785, 790 (BIA 2009);
(4) When a respondent requests a continuance to pursue collateral relief,
the immigration judge must consider primarily the likelihood that the
collateral relief will be granted and will materially affect the outcome
of the removal proceedings; and
(5) The immigration judge should also consider relevant secondary factors,
which may include the respondent’s diligence in seeking collateral
relief, DHS’s position on the motion for continuance, concerns of
administrative efficiency, the length of the continuance requested, the
number of hearings held and continuances granted previously, and the timing
of the continuance motion.
Back to Beginning of Cases
The 9th Circuit held that an alien's conviction for witness tampering under Oregon
Revised Statutes Sec. 162.285 is not categorically a crime involving moral
turpitude because the statute captures conduct that is neither fraudulent
nor base, vile, or depraved. The Oregon statute is divisible because its
subsections criminalize different conduct and require different elements
for conviction, but an alien's conviction under Sec. 162.285(b)–for
knowingly inducing or attempting to induce a witness to be absent from
any official proceeding to which the person has been legally summoned–is
not a categorical match for a crime involving moral turpitude.
Back to Beginning of Cases
The 9th Circuit held that a Department of Homeland Security determination of a
Visa Waiver Program entrant's removability constitutes an "order
of removal." Asylum-only proceedings behave like a stay of enforcement
of a removal order, and the denial of an asylum application in asylum-only
proceedings "finalizes" DHS's removal order of a VWP entrant
because the VWP entrant is entitled to no other forms of relief.
Back to Beginning of Cases
The 9th Circuit held that the generic crime of child abuse includes acts and omissions
that create at least a "reasonable probability" that a child
will be harmed. An alien's conviction for "Child Abuse and Neglect"
under Nevada Revised Statutes Sec. 200.508(2)(b)(1) is broader than the
generic definition because it includes conduct that creates a "reasonable
foreseeability" of harm to a child, while the generic crime requires
a "reasonable probability" of harm.
Back to Beginning of Cases
The BIA held that the categorical approach does not govern whether violating
a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible
for cancellation of removal under section 240A(b)(1)(C) of the Act, 8
U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need
only decide whether the alien has been convicted within the meaning of
the Act and whether that conviction is for violating a protection order
under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173
(BIA 2017), followed.
Back to Beginning of Cases
The 9th Circuit held that an inmate made the necessary showing to file a successive
habeas corpus petition asserting that California's second-degree felony-murder
rule is unconstitutionally vague since the U.S. Supreme Court's decision in
Johnson v. U.S. came out after he filed his first petition, and
Johnson announced a new rule of constitutional law retroactively applicable to
cases on collateral review. A successive habeas corpus petition "relies
on" a qualifying new rule of constitutional law for purposes of 28
U.S.C. Sec. 2244(b) so long as the rule substantiates the petitioner's
claim, even if the rule does not conclusively decide the claim, or if
the rule would need a non-frivolous extension for the petitioner to get relief.
Back to Beginning of Cases
The BIA held that (1) The offense of sponsoring or exhibiting an animal
in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1)
(2006) is categorically a crime involving moral turpitude. Matter of Ortega-Lopez,
26 I&N Dec. 99 (BIA 2013), reaffirmed. (2) An alien is ineligible
for cancellation of removal under section 240A(b)(1)(C) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), for having
“been convicted of an offense under” section 237(a)(2)(A)(i)
of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), irrespective of both
the general “admission” requirement in section 237(a) and
the temporal (within 5 years of admission) requirement in section 237(a)(2)(A)(i)(I).
Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), reaffirmed.
Back to Beginning of Cases
The 9th Circuit held that an alien who is charged with unlawful re-entry in violation
of 8 U.S.C. Sec. 1326 can collaterally attack the validity of a prior
removal that serves as a predicate element for the conviction. A person
is exempt from the exhaustion requirements and will have adequately shown
deprivation of judicial review, if the immigration judge, in the prior
removal proceeding, does not inform the alien of the right to appeal.
A defendant whose prior removal proceeding was conducted in absentia satisfies
the exhaustion and deprivation of judicial review requirements and that
removal cannot properly serve as a predicate for a conviction for illegal
re-entry. California battery was not a categorical crime of violence in
2008 , so a judge erred in 2008 in removing a defendant for a crime of
domestic violence under Immigration and Nationality Act Sec. 237(a)(2)(E)(i)
based on his California battery conviction. An alien who has been removed
through expedited removal proceedings automatically satisfies the requirements
for exhaustion and deprivation of judicial review. A person should not
be stripped of the important legal entitlements that come with lawful
permanent resident status through a legally erroneous decision that he
had no meaningful opportunity to contest. Lawful permanent residents cannot
be removed on an expedited basis.
Back to Beginning of Cases
The 9th Circuit held that a petitioner established past persecution where he presented
evidence he had suffered physical mistreatment by the police and that
he was forbidden from practicing his religion through coercive means.
Back to Beginning of Cases
The 9th Circuit held that a violation of 18 U.S.C. Sec. 1591(a) and Sec. 1591(b)(1)
requires that a defendant use force, threats of force, fraud, coercion,
or any combination of such means, to commit sex trafficking. The jury
does not need to be unanimous as to the specific means, or combination
of means, used.
Back to Beginning of Cases
The 9th Circuit held that while the exclusionary rule does not ordinarily apply
to administrative proceedings, administrative tribunals are still required
to exclude evidence that was obtained by deliberate violations of the
Fourth Amendment, or by conduct a reasonable officer should know is in
violation of the Constitution. Raids that result from law enforcement
affidavits containing material and reckless inaccuracies constitute a
Fourth Amendment violation, and a reasonable officer should have known
the conduct was unconstitutional. Where the law enforcement agency conducting
an unlawful search both has a policy of sharing information with another
law enforcement agency and shares the information for the purpose of spurring
the second agency to initiate an investigation and enforcement action,
the latter enforcement action falls within the initial agency's zone of
primary interest.
Back to Beginning of Cases
The 9th Circuit held that the doctrine of consular non-reviewability addresses
the scope of review rather than the federal courts' power to hear a case.
The Administrative Procedure Act provides no avenue for review of a consular
officer's adjudication of a visa on the merits. A court can only review
a consular officer's denial of a visa for constitutional error, where
the visa application is denied without a "facially legitimate and
bona fide reason."
Back to Beginning of Cases
The California Court of Appeal, First Appellate District, Division Two
held that Penal Code Sec. 1473.7(a)(1) authorizes a noncitizen convicted
of a crime upon pleading no contest who is now free from custody to prosecute
a motion to vacate that conviction for ineffective assistance of counsel
when the conviction has caused unforeseen actual or potential adverse
immigration consequences, without limitation.
Back to Beginning of Cases
The California Court of Appeal, Second District, Division Six held that
a defendant failed to prove that his attorney provided him with ineffective
representation by failing to investigate an immigration-neutral alternative
disposition in plea bargaining where he could not identify any immigration-neutral
disposition to which the prosecutor was reasonably likely to agree.
Back to Beginning of Cases
The 9th Circuit held that for the Board of Immigration Appeals to retain jurisdiction
when remanding to an immigration judge, the BIA must expressly retain
jurisdiction and qualify or limit the scope of remand. If the BIA fails
to do either of these things, the scope of the remand is general and the
IJ may reconsider any of his prior decisions.
Back to Beginning of Cases
The U.S. Supreme Court held that a putative notice to appear that fails
to designate the specific time or place of the noncitizen's removal proceedings
is not a “notice to appear under 8 U.S.C. Sec. 1229(a),” and
so does not trigger the stop-time rule.
Back to Beginning of Cases
The California Court of Appeal, Fourth District, Division One held that
a person who has been convicted of grand theft is eligible for resentencing
pursuant to Proposition 47 if the value of the property taken was $950
or less. A defendant is entitled to file a new petition for resentencing
where his original petition was filed before the proper allocation of
the burden of proof and the facts necessary to resentencing on a Vehicle
Code Sec. 10851 conviction were clearly established. The changes made
by Proposition 47 do not apply to crimes based on the receipt of stolen property.
Back to Beginning of Cases
The 9th Circuit held that a Board of Immigration Appeals decision–which
created a blanket rule prohibiting the consideration of a petitioner's
mental health in making a determination of whether he had committed a
particularly serious crime–was contrary to Congress's clearly expressed
intent that the particularly serious crime determination, in cases where
a conviction falls outside the only statutorily enumerated per se category
of particularly serious crimes, requires a case-by-case analysis. The
BIA's two rationales for its broad rule–that the Agency could not
reassess a criminal court's findings and that mental health is never relevant
to the particularly serious crime determination–are unpersuasive
and are inconsistent with the law of this circuit and the BIA's own decisions.
Back to Beginning of Cases
The 9th Circuit held that an alien's conviction to a Washington charge of “Assault
of a Child in the Third Degree–Criminal Negligence and Substantial
Pain–With Sexual Motivation” is a categorical match for sexual
abuse of a minor, an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(A).
Back to Beginning of Cases
The 9th Circuit held that a conviction for assault with a deadly weapon under
Nevada Revised Statutes Sec. 200.471 categorically qualifies as a crime
of violence under the elements clause of U.S.S.G. Sec. 4B1.2(a) because
the statute requires proof that the defendant placed the victim in fear
of bodily harm and thus necessarily entails the use or threatened use
of violent physical force against the person of another. Robbery under
Nevada Revised Statutes Sec. 200.380 is not a categorical crime of violence
under the elements clause, nor a categorical match for "generic robbery"
under the enumerated offenses clause, because the offense can be accomplished
by instilling fear of injury to property alone, robbery under Sec. 200.380
likewise does not qualify as "extortion" under the enumerated
offenses clause, whose Aug. 1, 2016, amendment narrowed the definition
by requiring that the wrongful use of force, fear, or threats be directed
against the person of another, not property. Coercion under Nevada Revised
Statutes Sec. 207.190 does not qualify as a crime of violence because
it is not one of the offenses listed in the enumerated offenses clause.
The felony version of the offense is not a categorical match under the
elements clause, since it does not have as an element the use, attempted
use, or threatened use of violent physical force against the person of another.
Back to Beginning of Cases
The BIA held that (1) An alien provides “material support”
to a terrorist organization if the act has a logical and reasonably foreseeable
tendency to promote, sustain, or maintain the organization, even if only
to a de minimis degree.
(2) The respondent afforded material support to the guerillas in El Salvador
in 1990 because the forced labor she provided in the form of cooking,
cleaning, and washing their clothes aided them in continuing their mission
of armed and violent opposition to the Salvadoran Government.
Back to Beginning of Cases
The 9th Circuit held that an alien's testimony was not sufficiently persuasive
to demonstrate eligibility for asylum relief based on his wife's alleged
abortion and sterilization where he admittedly was not present for the
procedures and he provided no evidence to corroborate his claims. When
a judge gives notice that an asylum-seeker's testimony will not be sufficient
and gives the alien adequate time to gather corroborating evidence, and
the alien then provides no meaningful corroboration or an explanation
for its absence, the judge may deny the application for asylum.
Back to Beginning of Cases
The BIA held that (1) The term "prostitution" in section 101(a)(43)(K)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i)
(2012), which provides that an offense relating to the owning, controlling,
managing, or supervising of a prostitution business is an aggravated felony,
is not limited to offenses involving sexual intercourse but is defined
as engaging in, or agreeing or offering to engage in, sexual conduct for
anything of value.
(2) The offense of keeping a place of prostitution in violation of section
944.34(1) of the Wisconsin Statutes is categorically an aggravated felony
under section 101(a)(43)(K)(i) of the Act.
Back to Beginning of Cases
- People v. Ogunmowo - filed May 9, 2018
The California Court of Appeal’s Second Appellate District held that a
de-novo standard of review applies to a trial court’s decision to deny a
foreign-national defendant’s motion to vacate his conviction pursuant
to California Penal Code Sec. 1473.7 because of the prejudicial ineffective
assistance of his former attorney. The Court of Appeal held that the foreign-national
defendant was prejudiced by counsel’s deficient performance because
he was misadvised about the immigration consequences of his guilty plea,
which resulted in his automatic deportation, even though he had clearly
stated in his declarations that he wanted to avoid deportation at all costs.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national’s mere inability to
recall some events, without evidence of an inability to understand the
nature and object of the proceedings, is insufficient to show mental incompetency.
Citing the standards set by the BIA in
Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), the Ninth Circuit held that in order
to demonstrate mental incompetency to participate in immigration proceedings
a foreign national must show: (1) some inability to comprehend or to assist
and to participate in the proceedings; (2) some inability to consult with
or to assist her/his counsel, or representative if pro se; and (3) lack
of a reasonable opportunity to present evidence and to examine witnesses,
including the cross-examination of opposing witnesses.
Back to Beginning of Cases
The Ninth Circuit held that, while a foreign national placed in reinstatement
proceedings under 8 U.S.C. Sec. 1231(a)(5) generally cannot challenge
the validity of her prior removal order in the reinstatement proceedings
itself, s/he retains the right, conferred by 8 U.S.C. Sec. 1229a(b)(5)(C)(ii),
to seek rescission of a removal order entered
in absentia, based on lack of notice, by filing a motion to reopen at any time.
Back to Beginning of Cases
The Ninth Circuit held that, to be eligible for cancellation of removal
under the Nicaraguan Adjustment and Central American Act, ten years must
have elapsed since the foreign national committed
any disqualifying act.
Back to Beginning of Cases
The BIA held that the Department of Homeland Security has the authority
to file a motion to reconsider in Immigration Court and that a foreign
national who is in withholding-of-removal-only proceedings and who is
subject to a reinstated order of removal pursuant to Section 241(a)(5)
of the Immigration and Nationality Act is ineligible for asylum.
Back to Beginning of Cases
The BIA held that the offense of stalking in violation of California Penal
Code Section 646.9 is not a “crime of stalking” under Section
237(a)(2)(E)(i) of the Immigration and Nationality Act, overruling its
prior decision in
Matter of Sanchez-Lopez, 26 I. & N. Dec. 71 (BIA 2012).
Back to Beginning of Cases
The U.S. Supreme Court affirmed the Ninth Circuit’s holding that
the statutory definition of a “crime of violence” under 18
U.S.C. Sec. 16(b) as incorporated in the Immigration and Nationality Act
is unconstitutionally vague.
The Ninth Circuit held that a foreign national’s Oregon theft convictions
were not crimes involving moral turpitude because theft, under Oregon
law, does not require a literally-permanent taking of property. The Ninth
Circuit held that the BIA’s recent decision in
In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), in which the BIA changed the law
to recognize theft offenses as crimes involving moral turpitude even if
they did not involve a permanent intent to deprive, does not apply retroactively
in this matter because the balance of retroactivity factors weighed heavily
in the foreign national’s favor.
Back to Beginning of Cases
The BIA held that its previous holding in
Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), regarding the validity of vacated
convictions for immigration purposes, is reaffirmed and modified the decision
to give it nationwide application, declining to follow
Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002). If a court vacates a foreign national’s
conviction based on a procedural or substantive defect, rather than for
reasons solely related to rehabilitation or immigration hardships, the
BIA will consider the conviction eliminated for immigration purposes on
a nationwide basis, including in cases arising in the Fifth Circuit.
Back to Beginning of Cases
The Ninth Circuit held that the BIA decision in
Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014) – which created a blanket rule
prohibiting the consideration of a petitioner’s mental health in
making a determination of whether he had committed a particularly serious
crime – was contrary to Congress’s clearly expressed intent
that the particularly-serious-crime determination, in cases where a conviction
falls outside the only statutorily enumerated
per-se category of particularly serious crimes, requires a case-by-case analysis.
The Ninth Circuit held that the BIA’s two rationales for its broad
rule – (1) that the agency could not reassess a criminal court’s
findings, and (2) that mental health is never relevant to the particularly-serious-crime
determination – are unpersuasive and inconsistent with the law of
the Ninth Circuit and the BIA’s own decisions.
Back to Beginning of Cases
Matter of Cervantes Nunez - filed March 15, 2018
The BIA held that the crime of attempted voluntary manslaughter in violation
of California Penal Code Sections 192(a) and 664, a crime which requires
that a defendant act with the specific intent to cause the death of another
person, is categorically an aggravated-felony crime of violence under
Section 101(a)(43)(F) of the Immigration and Nationality Act, notwithstanding
that the complete offense of voluntary manslaughter itself is not such
an aggravated felony.
Back to Beginning of Cases
The BIA held that in deciding whether a State offense is punishable as
a felony under the Federal Controlled Substances Act and is therefore
an aggravated-felony drug-trafficking crime under Section 101(a)(43)(B)
of the Immigration and Nationality Act, adjudicators need not look solely
to the provision of the Controlled Substances Act that is most similar
to the State statute of conviction. The BIA further held that the foreign
national’s conviction under New Jersey Statutes Section 2C:35-7
for possession with intent to distribute cocaine within 1,000 feet of
school property is for an aggravated-felony drug-trafficking crime because
his State offense satisfies all of the elements of 21 U.S.C. Sec. 841(a)(1)(2012)
and would be punishable as a felony under that provision.
Back to Beginning of Cases
The Ninth Circuit held that, where an immigration judge or the BIA has
not made an explicit finding of adverse credibility, the foreign-national
applicant or witness shall have the rebuttable presumption of credibility
“on appeal” – meaning, the presumption is rebuttable
only in appeals to the BIA, not in petitions for judicial review. The
Ninth Circuit further held that, in the absence of an explicit adverse-credibility
determination, it is required to accept the foreign national’s testimony as true.
Back to Beginning of Cases
The Attorney General referred the BIA’s decision in
Matter of E-F-H-L-, 26 I. & N. Dec. 319 (BIA 2014), to himself for review and vacated
that decision. The BIA, after granting the foreign national’s appeal
from denial of his application for asylum and for withholding of removal
without an evidentiary hearing, remanded the matter to the immigration
court, holding that the foreign national was entitled to a full evidentiary
hearing. Based on the parties’ joint motion, the immigration judge
on remand administratively closed the removal proceedings to allow the
adjudication of a Form I-130, Petition for Alien Relative, which had been
filed on behalf of the foreign national. Subsequently, the foreign national
withdrew his application for asylum and for withholding of removal with
prejudice. Because of this withdrawal of that application with prejudice,
the Attorney General concluded that the BIA’s decision was effectively
mooted, vacated the decision, and directed the immigration court to recalendar
and to restore the matter to its active docket.
Back to Beginning of Cases
The Ninth Circuit affirmed the U.S. District Court’s dismissal for
failure to state a claim of the foreign national’s petition challenging
the denial of his naturalization application, holding that his conviction
for nonconsensual sodomy in violation of California Penal Code Section
286(i) is an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(A) because
the conduct falls entirely within the generic definition of “rape”
as articulated in
Castro-Baez v. Reno, 217 F.3d 1057 (9th 2000).
Back to Beginning of Cases
The U.S. Supreme Court reversed the Ninth Circuit and held that, pursuant
to the immigration provisions 8 U.S.C. Sec. 1225(b), 1226(a), and 1226(c),
foreign nationals do not have the right to periodic bond hearings during
the course of their detention. The Supreme Court held that the Ninth Circuit
adopted implausible statutory constructions of the three provisions and
remanded with instructions for the Ninth Circuit instead to consider the
merits of the constitutional arguments in the proceedings.
Back to Beginning of Cases
The BIA held that the crime of misprision (concealment) of felony in violation
of 18 U.S.C. Sec. 4 (2006) is categorically a crime involving moral turpitude
in jurisdictions outside of the Ninth Circuit. This decision does not
apply in the jurisdiction of the Ninth Circuit because of its opposite
holding in
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) that misprision of felony is
not categorically a crime involving moral turpitude.
Back to Beginning of Cases
The BIA held that an immigration judge, when deciding whether to consider
a border or airport interview in making a foreign national's credibility
determination, should assess the accuracy and reliability of the interview
based on the totality of the circumstances, rather than relying on any
one factor among a list or mandated set of inquiries.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national was entitled to asylum relief
for persecution based on the political opinion imputed to him by the Chinese
government for his having organized a protest of the government's eminent
domain policy requiring the forced relocation of millions of citizens,
which the U.S. Department of State has recognized as a source of widespread
animosity. In the amended opinion, the Ninth Circuit remanded for consideration
of whether the foreign national has met the other elements of asylum relief
before the BIA exercises discretion whether to grant asylum.
Back to Beginning of Cases
The Ninth Circuit held that reinstated removal orders are administratively
final for detention purposes even for foreign nationals in withholding-only
proceedings and that detention of foreign nationals subject to reinstated
removal orders is governed by 8 U.S.C. Sec. 1231(a), which does not authorize
bond hearings.
Back to Beginning of Cases
The Ninth Circuit held that, following
Matter of Avetisyan, 25 I. & N. Dec. 688 (2012), it now has jurisdiction to review the
BIA's decisions on whether to grant administrative closure - a decision
to continue a matter by taking it off an immigration judge's or the BIA's
docket - because the list of non-exhaustive factors set forth in
Avetisyan provides a sufficiently meaningful standard against which to review the
appropriateness of such decisions. Prior to
Avetisyan, the Ninth Circuit had held that it lacked jurisdiction over denials of
administrative closure.
Back to Beginning of Cases
The Ninth Circuit held that when Congress passed the Child Status Protection
Act, Pub. L. No. 107-208, 116 Stat. 927, it intended the "age of
the [foreign national] on the date of the parent's naturalization,"
as defined in 8 U.S.C. Sec. 1151(f)(2), to refer to statutory age - that
is, age calculated according to 8 U.S.C. Sec. 1153(h)(1). The Ninth Circuit
therefore reversed the BIA's affirmation of an immigration judge's seemingly
perverse determination that when the relevant foreign national's parent
naturalized that foreign national was no longer protected by the Child
Status Protection Act even if that foreign national would have been protected
by the Child Status Protection Act had his/her parent never naturalized
in the first place.
Back to Beginning of Cases
- People v. Landaverde- filed February 7, 2018
The California Court of Appeal's Second Appellate District held that California
Penal Code Section 1473.7 provides a procedural means to vacate a judgment
of a conviction that was legally invalid, but it does not affect the standards
by which motions to vacate pleas based on an alleged Sixth Amendment violation
due to ineffective assistance of counsel are decided. The Court of Appeal
held that a foreign national defendant who seeks to vacate a conviction
on this ground must still establish two prongs under
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), that her/his counsel's performance fell
below an objective standard of reasonableness and that s/he was prejudiced
by that deficient performance. Prior to the U.S. Supreme Court's 2010
decision in
Padilla v. Kentucky, 559 U.S. 356 (2010), a defense attorney's failure to advise a foreign-national
defendant of the immigration consequences of her/his plea did not constitute
deficient performance. Because the foreign national's 1998 guilty plea
was final in the relevant case, the Court of Appeal held that
Padilla could not be applied retroactively to vacate his conviction.
Back to Beginning of Cases
The BIA held that in deciding whether to set a bond, an immigration judge
should consider the nature and circumstances of a foreign national's criminal
activity, including not only convictions but also arrests, to determine
if that foreign national is a danger to the community. The BIA found that
driving under the influence is a significant adverse consideration in
bond proceedings. The BIA concluded that evidence of family and community
ties generally does not mitigate a foreign national's dangerousness.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national's conviction for carjacking
under California Penal Code Section 215(a) is not categorically a "crime
of violence" aggravated felony that made him ineligible for relief
from removal because, in light of the U.S. Supreme Court's holding in
Johnson v. United States, 559 U.S. 133, 140 (2010), carjacking does not require the use of violent
force capable of causing physical pain or injury to another person. The
Ninth Circuit consequently held that
Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010), which held that a carjacking conviction
under California Penal Code Section 215 is categorically a crime of violence,
is no longer good law.
Back to Beginning of Cases
The Ninth Circuit held that neither the Due Process Clause nor the Immigration
and Nationality Act creates a categorical right to government-funded,
court-appointed counsel for foreign-national minors during removal proceedings.
While this case specifically concerned an accompanied minor, the Ninth
Circuit did not address whether the analysis would change in the case
of unaccompanied minors.
Back to Beginning of Cases
The BIA held that, in removal proceedings arising within the specific jurisdictions
of U.S. Court of Appeals for the Fifth Circuit and the Ninth Circuit only,
a foreign national who was "waved through" at a port entry has
established an admission "in any status" within the meaning
of Section 240A(a)(2) of the Immigration and Nationality Act ("INA").
The BIA held that, in removal proceedings outside the Fifth Circuit and
Ninth Circuit, to establish continuous residence in the U.S. for seven
years after having been admitted "in any status" under Section
240A(a)(2) of the INA, a foreign national must prove that he or she possessed
some form of lawful immigration status at the time of admission. The BIA
remanded to the relevant immigration judge to determine whether the foreign
national in the relevant matter was "waved through" at the port
of entry, and, if so, whether she satisfies the other factors that would
make her eligible for cancellation of removal.
Back to Beginning of Cases
- People v. Perez- filed January 23, 2018
The California Court of Appeal's Fourth Appellate District held that California
Penal Code Section 1473.7, which went into effect on January 1, 2017 and
allows a foreign national no longer in custody to vacate a conviction
based on his/her failure to understand the potential immigration consequences
at the time of a guilty plea, can be applied retroactively. The Court
of Appeal further found that trial courts need only evaluate whether a
foreign national satisfies the required elements to bring the motion to
vacate. In the relevant case, the Court of Appeal determined that the
trial court did not err in denying the relevant foreign national's motion
to vacate where the change-of-plea form established that he had an interpreter
who explained to him the immigration consequences at the time of the guilty
plea and that he was explicitly informed by the court that he would be
deported if he pled guilty.
Back to Beginning of Cases
The BIA held that, in the case of a foreign national seeking asylum or
withholding of removal based on a membership in a particular social group,
a newly proposed particular social group will not be considered on appeal
if it was not first articulated in front of an immigration judge. The
BIA declined to remand proceedings for the relevant immigration judge
to make factual findings regarding the foreign national's newly articulated
particular social group because the foreign national was represented by
counsel before that immigration judge and had the opportunity to advance
the exact delineation of the proposed social group before that immigration
judge. Thus, the new particular social group was not "new, previously
unavailable material evidence" meriting remand.
Back to Beginning of Cases
The Ninth Circuit held that, where a foreign national is in expedited-removal
proceedings, does not waive the fourteen-day waiting period for judicial
review, and is allowed to consult with counsel before the removal order
is executed, a showing of prejudice is required in order for the foreign
national to prevail on a due process claim based on denial of right to counsel.
Back to Beginning of Cases
The Ninth Circuit affirmed the U.S. District Court's dismissal for lack
of jurisdiction of a foreign national's action challenging the Department
of Homeland Security ("DHS")'s denial of the I-130 visa petitions
he filed on behalf of his wife and her children. The Ninth Circuit held
that the Adam Walsh Child Protection and Safety Act of 2006 applies to
petitions that were filed, but not yet adjudicated, before the statute's
effective date. The Ninth Circuit further held that the Adam Walsh Act
does not violate the Ex Post Factor Clause even if the convictions for
the offenses covered by the statute occurred before the statute's effective
date. The Ninth Circuit held that it had no jurisdiction to review determinations
of the Secretary of DHS with respect to the "no risk" provision
of the Adam Walsh Act, which requires I-130 petitioners to show that they
pose "no risk" to the beneficiaries of their petitions, because
the Immigration and Nationality Act bars review of any decision the authority
for which is specified as falling under sole and unreviewable discretion
of the Secretary of DHS.
Back to Beginning of Cases
The Ninth Circuit held that the Nevada conspiracy statute, Nevada Revised
Statutes Section 199.480, is overbroad when compared to the generic definition
of conspiracy because the Nevada statute lacks the requisite "overt
act" element, and thus is indivisible. The Ninth Circuit further
held that the Nevada drug statute, Nevada Revised Statutes Section 454.351,
is categorically overbroad when compared to Section 102 of the Controlled
Substances Act, and thus is indivisible.
Back to Beginning of Cases
The Ninth Circuit held that the BIA erred by failing to recognize that
the medical record upon which the immigration judge heavily relied was
nearly a year old and that it may have no longer reflected a foreign national's
mental state. The Ninth Circuit concluded that the immigration judge did
not adequately ensure that the Department of Homeland Security ("DHS")
complied with its obligation to provide the court with relevant materials
in its possession that would inform the court about the foreign national's
mental competency, as required by standards set out by the BIA in
Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). The Ninth Circuit held that where
DHS is providing ongoing medical care to a foreign national as a detainee,
it necessarily possesses relevant medical records, and thus has an obligation
to introduce those records to the immigration judge. The Ninth Circuit
remanded to the BIA with instructions to remand to the immigration judge
for a proper competence evaluation based on current mental health reviews
and medical records.
Back to Beginning of Cases
The Ninth Circuit affirmed two foreign nationals' misdemeanor convictions
in the U.S. District Court, under Section 275(a) of the Immigration and
Nationality Act for attempting to enter the U.S. "at any time or
place other than as designated by immigration officers," holding
that a place "designated by immigration officers" refers to
a specific immigration facility, not an entire geographic area.
Back to Beginning of Cases
The BIA held that the Department of Homeland Security is not precluded
by res judicata from initiating a separate proceeding to remove an alien
as one convicted of an aggravated felony burglary offense under Section
101(a)(43)(G) of the Immigration and Nationality Act ("INA"),
based on the same conviction that supported a crime of violence aggravated
felony charge under another section of the INA, Section 101(a)(43)(F),
in the prior proceeding. The BIA held that home invasion in the first
degree in violation of Michigan Compiled Laws section 750.110a(2) is a
categorical burglary offense under Section 101(a)(43)(G) of the INA.
Back to Beginning of Cases
The Ninth Circuit reversed the U.S. District Court's dismissal of a foreign
national's collateral attack against the validity of his 2009 order of
removal based on the classification of his underlying conviction, for
possession of a controlled substance with intent to distribute under a
Washington drug trafficking statute, as an aggravated felony. The Ninth
Circuit held that Washington Revised Code section 69.50.401 is overbroad
compared to its federal analogue, because the former has a more inclusive
mens rea requirement for accomplice liability. Therefore, the Ninth Circuit
held that under a more straightforward application of the categorical
approach, the foreign national's conviction cannot support an aggravated
felony determination, and that his collateral attack on the underlying
deportation order should have been successful. The Ninth Circuit also
held that, because under Washington law a jury need not agree on whether
a defendant is a principal or accomplice, the Washington drug trafficking
statute is not divisible so far as the distinction between those roles
is concerned. Furthermore, the Ninth Circuit held that the foreign national's
waiver of right to seek judicial review of the removal order was not considered
and intelligent where the notice of intent to issue a final administrative
removal order suggested that the he could contest removability only on
factual grounds, he was not represented, and he never had the benefit
of appearing before an immigration judge despite requesting a hearing.
Back to Beginning of Cases
The BIA held that the inquiry as to whether a violation of a protection
order renders an alien removable under Section 237(a)(2)(E)(ii) of the
Immigration and Nationality Act is not governed by the categorical approach,
even if a conviction underlies the charge; instead, an immigration judge
should consider the probative and reliable evidence of regarding what
a state court has determined about the alien's violation.
Back to Beginning of Cases
The Ninth Circuit held that a felony hit and run conviction under California
Vehicle Code section 20001(a) was a crime involving moral turpitude that
renders a foreign national ineligible for cancellation or removal. The
Ninth Circuit held that California Vehicle Code section 20001(a) is divisible
into several crimes, some of which may involve moral turpitude and some
of which may not. Applying the modified categorical approach, the Ninth
Circuit concluded that a foreign national's admission in his plea agreement,
which said that he was involved in a car accident that led to injury,
satisfied the elements for a felony conviction for a traditional hit and
run causing injuries, which qualifies as a crime involving moral turpitude
under current controlling precedent.
Back to Beginning of Cases
The Ninth Circuit held that an alien is "admitted" when he presents
himself for inspection and is waved through a port of entry. The Ninth
Circuit held that the phrase "admitted in any status," as used
in Section 240A(a)(2) of the Immigration and Nationality Act plainly encompasses
every status recognized by immigration statutes, lawful or unlawful.
Back to Beginning of Cases
The BIA held that an immigration judge does not have authority to terminate
removal proceedings to give an arriving alien an opportunity to present
an asylum claim to the Department of Homeland Security in the first instance.
Back to Beginning of Cases
The BIA held that the term "rape" in Section 101(a)(43)(A) of
the Immigration and Nationality Act encompasses an act of vaginal, anal,
or oral intercourse, or digital or mechanical penetration, no matter how
slight. The BIA held that the term "rape" also requires that
the underlying sexual act be committed without consent, which may be shown
by a statutory requirement that the victim's ability to appraise the nature
of the conduct was substantially impaired and the offender had a culpable
mental state as to such impairment.
Back to Beginning of Cases
The BIA held that criminally negligent homicide in violation of section
125.10 of the New York Penal Law is categorically not a crime involving
moral turpitude because it does not require that a perpetrator have a
sufficiently culpable mental state.
Back to Beginning of Cases
The BIA held that an alien "has previously been admitted to the United
States as an alien lawfully admitted for permanent residence" within
the meaning of Section 212(h) of the Immigration and Nationality Act if
he or she was inspected, admitted, and physically entered the country
as a lawful permanent resident at any time in the past, even if such admission
was not the alien's most recent acquisition of lawful permanent resident status.
Back to Beginning of Cases
The BIA held that an alien seeking to qualify for the exception to inadmissibility
in Section 212(a)(6)(A)(ii) of the Immigration and Nationality Act must
satisfy all three subclauses of that section, including the requirement
that the alien be "a VAWA self-petitioner."
Back to Beginning of Cases
The Ninth Circuit held that a foreign national's departure from the U.S.,
without more, does not provide clear and convincing evidence of a "considered"
and "intelligent" waiver of the right to appeal, and therefore
does not meet the constitutional requirements of a valid waiver. The Ninth
Circuit further held that the immigration judge's failure to inform the
foreign national that his departure would constitute a waiver of his previously
reserved right to appeal to the BIA rendered his purported waiver invalid.
Back to Beginning of Cases
The BIA held that, where a petitioner seeking to prove a familial relationship
submits a birth certificate that was not registered contemporaneously
with the birth, an adjudicator must consider the birth certificate, as
well as all the other evidence of record and the circumstances of the
case, to determine whether the petitioner has submitted sufficient reliable
evidence to demonstrate the claimed relationship by a preponderance of evidence.
Back to Beginning of Cases
The BIA held that a misrepresentation is material under Section 212(a)(6)(C)(i)
of the Immigration and Nationality Act when it tends to shut off a line
of inquiry that is relevant to the alien's admissibility and that would
predictably have disclosed other facts relevant to his eligibility for
a visa, other documentation, or admission to the United States. The BIA
held that in determining whether an alien assisted or otherwise participated
in extrajudicial killing, an adjudicator should consider two factors:
(1) the nexus between the alien's role, acts, or inaction and the extrajudicial
killing; and (2) his scienter, meaning his prior or contemporaneous knowledge
of the killing.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national's conviction for misdemeanor
domestic violence assault under Arizona Revised Statutes Sections 13-1203
and 13-3601 was a crime of domestic violence under Section 237(a)(2)(E)
of the Immigration and Nationality Act ("INA") that renders
him removable. The Ninth Circuit held that Arizona Revised Statute Section
13-1203 is divisible and that, under the modified categorical approach,
the record provided a sufficient factual basis to support a finding that
the foreign national was convicted of a class 1 misdemeanor under Arizona
Revised Statutes Section 13-1203(A)(1), which requires intentionally or
knowingly causing any physical injury to another person. The Ninth Circuit
further held that Arizona Revised Statutes Section 13-1203(A)(1) is a
crime of violence as defined in 18 U.S.C. Sec. 16(a) and that the domestic
relationships enumerated under Arizona's domestic violence provision,
Arizona Revised Statutes Section 13-3601(A), are coextensive with the
domestic relationships described in Section 237(a)(2)(E) of the INA.
Back to Beginning of Cases
The BIA held that robbery under Section 211 of the California Penal Code,
which includes the element of asportation of property, is categorically
an aggravated felony theft offense under Section 101(a)(43)(G) of the
Immigration and Nationality Act, regardless of whether a violator merely
aided and abetted in the asportation of property stolen by a principal.
Back to Beginning of Cases
The BIA held that entry into a pretrial intervention agreement under Texas
law qualifies as a "conviction" for immigration purposes under
Section 101(a)(48)(A) of the Immigration and Nationality Act, where a
respondent admits sufficient facts to warrant a finding of guilt at the
time of his entry into the agreement and a judge authorizes an agreement
ordering the respondent to participate in a pretrial intervention program,
under which he is required to complete community supervision and community
service, pay fees and restitution, and comply with a no-contact order.
Back to Beginning of Cases
The Ninth Circuit held that, where a foreign national in removal proceedings
showed clear signs of mental incompetency, an immigration judge erred
by failing to determine whether procedural safeguards were required pursuant to
In re M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011). The Ninth Circuit further held
that the BIA abused its discretion by failing to explain why it allowed
the immigration judge to disregard
In re M-A-M-'s rigorous procedural requirements, and remanded to the BIA with instructions
to remand to the immigration judge for a new hearing consistent with
In re M-A-M-.
Back to Beginning of Cases
The Ninth Circuit held that a conspiracy statute of California Penal Code
Section 182(a)(1) is overbroad but divisible as to the target crime, and
that the target crime of sale and transport of a controlled substance
under California Health and Safety Code Section 11352 is also overbroad
but divisible as to the specific controlled substance. Thus, Ninth Circuit
applied the modified categorical approach to review the BIA's decision
finding a foreign national ineligible for cancellation of removal. The
Ninth Circuit held that the record was inconclusive because the foreign
national's guilty plea could have rested on an overt act that did not
related to heroin. The Ninth Circuit further held that
Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), which held that a petitioner
cannot carry the burden of demonstrating eligibility for cancellation
of removal by establishing an inconclusive record, remains good law because
it is not irreconcilable with the later Supreme Court cases of
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and
Descamps v. United States, 133 S. Ct. 2276 (2013). Thus, the Ninth Circuit concluded that the foreign
national is ineligible for cancellation because with respect to eligibility
for relief, she bears the burden of proof to show that her conviction
did not relate to a controlled substance, and she could not meet this
burden on an inconclusive record.
Back to Beginning of Cases
The BIA held that burglary of a dwelling in violation of Section 164.225
of the Oregon Revised Statues is a crime involving moral turpitude, even
though the statute does not require that a person be present at the time
of the offense, provided that the dwelling is at least intermittently occupied.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national's California conviction
for second degree murder, based on aiding and abetting theory, makes him
removable for having been convicted of an aggravated felony. The Ninth
Circuit held that California law on aiding and abetting, which looks to
the natural and probable consequences of an act the defendant intended,
had not materially changed since the Supreme Court decided
Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that absent a showing that the law had
been applied in some "special" way, a California conviction
for aiding and abetting a removable offense is also a removable offense.
The Ninth Circuit concluded that there is nothing special about the California
aiding and abetting law that brings it or the foreign national's conduct
outside the generic definition of aiding and abetting.
Back to Beginning of Cases
The Ninth Circuit held that the crime of delivery of a controlled substance
under Oregon Revised Statutes Section 475.992(1)(a) is not a categorical
aggravated felony because its definition of "delivery" includes
mere solicitation, and the federal Controlled Substances Act does not
punish soliciting delivery of controlled substances. The Ninth Circuit
further held that the modified categorical approach does not apply because
the Oregon law is indivisible with respect to whether an "attempt"
is accomplished by solicitation.
Back to Beginning of Cases
The BIA held that an alien who adjusts status under Section 209(b) of the
Immigration and Nationality Act ("INA") changes his or her status
from that of an alien granted asylum to that of an alien lawfully admitted
for permanent residence, thereby terminating the alien's asylee status.
The BIA held that the restrictions on removal in Section 208(c)(1)(A)
of INA do not apply to an alien granted asylum whose status is adjusted
to that of an alien lawfully admitted for permanent residence pursuant
to Section 209(b) of the INA.
Back to Beginning of Cases
The Ninth Circuit held that the witness protection provisions of Article
24 of the United Nations Convention Against Transnational Organized Crime
("UN-CATOC") do not provide an independent basis for relief
from removal, because UN-CATOC is not self-executing, and has not been
implemented through congressional legislation. The Ninth Circuit held
that where a foreign national is targeted in his home country not on account
of his political opinion or membership in a particular social group, but
on account of his role in a drug-trafficking investigation, the foreign
national is not entitled to withholding of removal or Convention Against
Torture relief.
Back to Beginning of Cases
The BIA held that an offense may be a "specified offense against a
minor" within the meaning of Section 111(7) of the Adam Walsh Child
Protection and Safety Act of 2006 even if it involved an undercover police
officer posing as a minor, rather than an actual minor.
Back to Beginning of Cases
The Ninth Circuit held that when there is a question of whether the BIA's
dismissal for lack of jurisdiction or an immigration judge's "no
reasonable fear" determination is the final order, the BIA's dismissal
is the administratively final order, because even diligent foreign nationals
(especially pro se litigants) can fall victim to the constellation of
confusing and conflicting information provided by the agency on how and
where to seek judicial review of reasonable fear determinations made in
connection with reinstatement of removal orders. Thus, the Ninth Circuit
held that it has jurisdiction over petitions for review of negative reasonable
fear determinations if it is filed within 30 days of the BIA's decision
on appeal of such determinations, even if the BIA dismisses based on lack
of jurisdiction. The Ninth Circuit then vacated the immigration judge's
order to deny withholding of removal and remanded to the BIA to give proper
consideration of the foreign national's testimony, to give proper weight
to the country conditions report, and to apply the correct legal standards
for his Convention Against Torture claim.
Back to Beginning of Cases
The Ninth Circuit held that when there is a question of whether the BIA's
dismissal for lack of jurisdiction or an immigration judge's "no
reasonable fear" determination is the final order, the BIA's dismissal
is the administratively final order, because even diligent foreign nationals
(especially pro se litigants) can fall victim to the constellation of
confusing and conflicting information provided by the agency on how and
where to seek judicial review of reasonable fear determinations made in
connection with reinstatement of removal orders. Thus, the Ninth Circuit
held that it has jurisdiction over petitions for review of negative reasonable
fear determinations if it is filed within 30 days of the BIA's decision
on appeal of such determinations, even if the BIA dismisses based on lack
of jurisdiction. The Ninth Circuit then vacated the immigration judge's
order to deny withholding of removal and remanded to the BIA to give proper
consideration of the foreign national's testimony, to give proper weight
to the country conditions report, and to apply the correct legal standards
for his Convention Against Torture claim.
Back to Beginning of Cases
The Ninth Circuit held that when a foreign-national applicant for Asylum,
Withholding of Removal, and/or Deferral of Removal under Convention Against
Torture fails to meet her initial burden of presenting credible testimony,
the immigration judge is under no obligation under
Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) to provide the applicant with notice and
opportunity to present additional corroborating evidence. The Ninth Circuit
further held that when an immigration judge considers a foreign-national
applicant's submitted corroborating evidence, but deems that evidence
insufficient, the immigration judge need not afford the applicant an opportunity
to provide additional evidence.
Back to Beginning of Cases
The Ninth Circuit held that the BIA abused its discretion when it denied
a foreign national's motion to reopen removal proceedings without considering
the new evidence of increased violence towards homosexuals in Ethiopia,
and remanded the matter to the BIA to properly consider the changed country
conditions submitted with the foreign national's motion. The Ninth Circuit
also held that it has jurisdiction to review the petition for review under
exception to the jurisdictional bar under Section 242(a)(2)(C) of the
Immigration and Nationality Act that because while the section eliminates
judicial review of final order of removal based on a foreign national's
criminal conviction, it does not preclude judicial review of constitutional
claims or questions of law.
Back to Beginning of Cases
The BIA held that an essential element of an aggravated felony receipt
of stolen property offense under Section 101(a)(43)(G) of the Immigration
and Nationality Act ("INA") is that an offender must receive
property with the "knowledge or belief" that it has been stolen,
and this element excludes a mens rea equivalent to a "reason to believe."
The BIA also held that a conviction for receipt of a stolen motor vehicle
under Section 32-4-5 of the South Dakota Codified Laws categorically does
not define an aggravated felony receipt of stolen property offense under
Section 101(a)(43)(G) of the INA because it is divisible with respect
to the necessary mens rea and only requires, at a minimum, that an offender
have a "reason to believe" that the vehicle received was stolen.
Back to Beginning of Cases
The U.S. Supreme Court held that the gender line Congress drew in Section
1409(c) of the Immigration and Nationality Act, which creates an exception
for an unwed U.S.-citizen mother but not for such a father, to the physical-presence
requirement for the transmission of U.S. citizenship to a child born abroad,
is incompatible with the U.S. Constitution's Fifth Amendment's requirement
that the government accord to all persons "the equal protection of
the laws."
Back to Beginning of Cases
The Ninth Circuit held that a foreign national's conviction for fleeing
from a police officer under California Vehicle Code Section 2800.2 is
not a crime of moral turpitude, because the conduct criminalized does
not necessarily create the risk of harm that characterizes a crime of
moral turpitude. The Ninth Circuit held that the categorical approach
applies rather than the modified categorical approach, because the elements
of California Vehicle Code Section 2800.2 are clearly indivisible.
Back to Beginning of Cases
The BIA held that a certificate of citizenship, unlike a Certificate of
Naturalization, does not confer U.S. citizenship but merely provides evidence
that the applicant previously obtained citizenship status. The BIA held
that judicial proceedings to revoke naturalization are not required to
cancel a certificate of citizenship, which the Department of Homeland
Security can cancel administratively upon a determination that an applicant
is not entitled to the claimed citizenship status.
Back to Beginning of Cases
The BIA held that the aggravated felony receipt of stolen property provision
in Section 101(a)(43)(G) of the Immigration and Nationality Act does not
require that unlawfully received property be obtained by means of common
law theft or larceny.
Back to Beginning of Cases
The Ninth Circuit held
en banc that a foreign national, who has been a "habitual drunkard"
during the requisite time period of at least 10 years immediately preceding
the date of his application for cancellation of removal, fails to establish
good moral character and is ineligible for cancellation. The
en banc court held that substantial evidence supports the BIA's finding that the
foreign national has been a "habitual drunkard," given the evidence
of his more-than-ten-year history of alcohol abuse, conviction for driving
under the influence, and his daughter's testimony that his liver failed
from drinking. The en banc court further held that the term "habitual
drunkard" is not unconstitutionally vague because it readily lends
itself to an objective factual inquiry, and held that the statutory "habitual
drunkard" provision under Section 101(f)(1) of the Immigration and
Nationality Act does not violate equal protection.
Back to Beginning of Cases
The Ninth Circuit held that the Oregon Revised Statutes Section 163.427(1)(a)
is divisible and that conviction under Section 163.427(1)(a)(A) is sexual
abuse of a minor within the general federal definition and therefore an
aggravated felony for purposes of Section 101(a)(43) of the Immigration
and Naturalization Act ("INA"). Accordingly, the Ninth Circuit
held that a foreign national who has been convicted of sexual abuse of
a minor under Oregon Revised Statutes Section 163.427(1)(a)(A) has also
been convicted of committing a particularly serious crime under INA Sections
208(b)(2)(A)(ii) and 208(b)(2)(B)(i). Thus, the Ninth Circuit held that
the BIA properly terminated the foreign national's asylee status.
Back to Beginning of Cases
The BIA held that a particular social group based on family membership
may be cognizable depending on the nature and degree of the relationships
involved and how those relationships are regarded by the society in question.
The BIA held that in order to establish eligibility for asylum on the
basis of membership in a particular social group composed of family members,
an applicant must not only demonstrate that he or she is a member of the
family but also that the family relationship is at least one central reason
for the claimed harm.
Back to Beginning of Cases
The BIA held that where the record contains some evidence from which a
reasonable factfinder could conclude that one or more grounds for mandatory
denial of application for relief may apply, the alien bears the burden
under 8 C.F.R. Sec. 1240.8(d) to prove by a preponderance of evidence
that such grounds do not apply.
Back to Beginning of Cases
The BIA held that the persecutor bar in Section 241(b)(3)(B)(i) of the
Immigration and Nationality Act, applies to an alien who assists or otherwise
participates in the persecution of an individual because of that person's
race, religion, nationality, membership in a particular social group,
or political opinion, without regard to the alien's personal motivation
for assisting or participating in the persecution.
Back to Beginning of Cases
The Ninth Circuit held that it has jurisdiction over petitions for review
from negative reasonable fear determinations if such determinations were
made in the context of the reinstatement of an expedited removal order.
The Ninth Circuit further held that the BIA's decision to dismiss the
relevant foreign national's appeal of an immigration judge's denial of
a motion to reopen or to reconsider constituted a final order of removal
given the specific circumstances of the case, including the fact that
that immigration judge's decision on the motion to reopen or to reconsider
advised the relevant foreign national of a right to appeal to the BIA
even though no such right actually exists. Thus, the petition for review,
which was filed within thirty days of the BIA's dismissal rather than
within thirty days of the relevant immigration judge's denial, was timely
under the specific circumstances of this case.
Back to Beginning of Cases
The BIA held that, in determining whether a statute is divisible under
Mathis v. United States, 136 S. Ct. 2243 (2016), immigration judges may consider or "peek"
at an alien's conviction record only to discern whether statutory alternatives
define "elements" or "means," provided State law does
not otherwise resolve the question.
Back to Beginning of Cases
The BIA held that the primary consideration for an immigration judge in
evaluating whether to administratively close or recalendar proceedings
is whether the party opposing administrative closure has provided a persuasive
reason for the case to proceed and be resolved on the merits. The BIA
also held that, in considering administrative closure, an immigration
judge cannot review whether an alien falls within the enforcement priorities
of the Department of Homeland Security, which has exclusive jurisdiction
over matters of prosecutorial discretion.
Back to Beginning of Cases
The Ninth Circuit held that a foreign national, who was present in the
Commonwealth of Northern Mariana Islands ("CNMI") without admission
or parole on November 28, 2009 and who never had a valid entry document,
was deemed by law to be an applicant for admission to the U.S. by his
mere presence in the CNMI, since the immigration laws of the U.S. became
applicable to the CNMI on November 28, 2009. The Ninth Circuit held that
the foreign national was thus inadmissible to the U.S. under Section 212(a)(7)
of the Immigration and Nationality Act which makes any foreign national
applicant inadmissible if the applicant lacks a valid entry document at
the time of application for admission.
Back to Beginning of Cases
The BIA held that assault with a deadly weapon or force likely to produce
great bodily injury under California law is categorically a crime involving
moral turpitude.
Back to Beginning of Cases
The BIA held that a sexual offense in violation of a statute enacted to
protect children is a crime involving moral turpitude when the victim
is under 14 years of age, or is under 16 and the age differential between
the perpetrator and victim is significant, or both, even though the statute
requires no culpable mental state as to the age of the child. The BIA
also held that sexual solicitation of a minor under Section 3-324(b) of
the Maryland Criminal Law with the intent to engage in an unlawful sexual
offense in violation of Section 3-307 of the Maryland Criminal Law is
categorically a crime involving moral turpitude.
Back to Beginning of Cases
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
The California Supreme Court reversed the decision of the lower courts
denying a foreign national's timely motion to withdraw his guilty plea,
which would subject him to mandatory deportation, based on California
Penal Code Section 1018 on grounds of mistake or ignorance. The California
Supreme Court held that receipt of the standard advisement as set forth
in California Penal Code Section 1016.5, which states that a criminal
conviction "may" have adverse immigration consequences, does
not bar a foreign national defendant from seeking to withdraw a guilty
plea on that basis. The California Supreme Court remanded to the trial
court to determine whether, after considering all relevant factors, the
foreign national has shown good cause for withdrawing his plea.
Back to Beginning of Cases
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 terrorizing threat, which turpitudinous.
Back to Beginning of Cases
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
