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2006

  • CA9 Holds Stop-Time Rule of INA §240A(d)(1)(B) May Not Be Applied Retroactively (12/28/2006)
    The court held that part B of the permanent stop-time rule of INA §240A(d)(1) may not be applied retroactively to stop the accrual of continuous residence for an individual who pleaded guilty before the enactment of IIRAIRA and was eligible for discretionary relief at the time IIRAIRA became effective. (Sinotes-Cruz v. Gonzales, 11/22/06). AILA Doc. No. 06122865.
    AILA Doc. No. 06122865.
  • CA9 Holds No Abuse of Discretion in BIA’s Refusal to Reissue Decision (12/28/2006)
    The court held that where the BIA complied with its own regulations when serving its notice of decision, it did not later abuse its discretion in refusing to reopen proceedings and reissue the decision despite Petitioner’s allegation of nonreceipt and argument that he was denied the opportunity to appeal. (Singh v. Gonzales, 11/28/06)
    AILA Doc. No. 06122864.
  • CA9 Remands Motion to Reopen Involving Vacated Conviction (12/6/2006)
    The court held that the BIA erred in placing the burden on Petitioner of proving his conviction was vacated due to a substantive or procedural defect and was therefore, no longer valid for immigration purposes. (Nath v. Gonzales, 11/3/06). AILA Doc. No. 06120664.
    AILA Doc. No. 06120664.
  • CA9 Holds “Crime of Domestic Violence” Must be Intentional to Establish Removability (11/28/2006)
    The court held that Petitioner was not removable for conviction of a “crime of domestic violence” because he was convicted under a statute which precludes “reckless” as well as “knowing” or “intentional” conduct and the record of conviction does not establish that his conduct was knowing or intentional. (Fernandez-Ruiz v. Gonzales, 10/26/06)
    AILA Doc. No. 06112810.
  • CA9 Finds No Jurisdiction to Review Discretionary Challenge Recast as Due Process Claim (11/14/2006)
    The court held that it had no jurisdiction to review Petitioner’s claim that the IJ and BIA violated his due process rights by failing to weigh the equities before denying his application for adjustment of status. The court found this to be a challenge to a discretionary decision, recast as a due process claim. (Bazua-Cota v. Gonzales, 10/3/06). AILA Doc. No. 06111461.
    AILA Doc. No. 06111461.
  • CA9 Refuses to Equitably Toll Filing Deadline for Motion to Reconsider (11/14/2006)
    The court refused to equitably toll the filing deadline for Petitioner’s untimely motion to reconsider. The court found that Petitioner was given notice of the significant legal issue in his case, was represented by counsel throughout proceedings, and could have discovered legal authority supporting his case. (Mendez-Alcaraz v. Gonzales, 10/2/06)
    AILA Doc. No. 06111411.
  • CA9 Remands for BIA Consideration of Ineffective Assistance of Counsel Claim (11/2/2006)
    The court held that the failure to file a petition for review or a motion to reopen within Petitioner’s voluntary departure period, despite warnings from the IJ regarding the consequences of failing to depart and clear case law dismissing untimely motions, amounted to ineffective assistance of counsel. (Granados-Oseguera v. Gonzales, 9/25/06). AILA Doc. No. 06110261.
    AILA Doc. No. 06110261.
  • CA9 Finds Iranian MEK Supporter Qualifies for Deferral of Removal under CAT (10/31/2006)
    The court held that Petitioner presented sufficient evidence to show that Iranian officials would be able to identify him as a supporter of the MEK and would likely torture him. Finding that CAT provides relief for pain and suffering beyond lawful sanctions, the court held that he qualified for deferral of removal. (Hosseini v. Gonzales, 9/28/06). AILA Doc. No. 06103161.
    AILA Doc. No. 06103161.
  • CA9 En Banc Panel Discusses Date Admissibility is Determined for SAW Beneficiaries (10/19/2006)
    The court held that admissibility for SAW beneficiaries is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. (Perez-Enriquez v. Gonzales, 09/15/06). AILA Doc. No. 06101918.
    AILA Doc. No. 06101918.
  • CA9 Holds BIA Cannot Change Voluntary Departure Period Granted by IJ in a Streamlined Order (10/19/2006)
    The court held that 8 CFR §1003.1(e)(4), which permits a single Board member to affirm an IJ’s decision without opinion, requires the member to affirm the entirety of the IJ’s decision, including the length of the voluntary departure period. (Padilla-Padilla v. Gonzales, 09/13/06). AILA Doc. No.06101916
    AILA Doc. No. 06101916.
  • CA9 Discusses Retroactivity of Cancellation of Removal Under INA §240A (10/6/2006)
    The court held that Congress clearly intended to limit the availability of cancellation of removal under INA §240A to those who had not previously been granted relief under former INA §212(c). The court also held that INA §240A did not have a retroactive effect. (Maldonado-Galindo v. Gonzales, 08/03/06) AILA Doc. No. 06100671.
    AILA Doc. No. 06100671.
  • CA9 Holds BIA Erred in Denying Motion to Reopen Involving Vacated Conviction (10/6/2006)
    The court held that a person already removed from the U.S. may be entitled to reopen his proceedings where a conviction which played a “key part” in the government’s case for removal is subsequently vacated. The BIA erred in requiring that the vacated conviction constitute the “sole ground” of deportability. (Cardoso-Tlaseca v. Gonzales, 08/21/06) AILA Doc. No. 06100670.
    AILA Doc. No. 06100670.
  • CA9 Finds Reporting of Private Persecution Is Not Prerequisite to Relief (9/22/2006)
    The court found that the only credible evidence that the BIA considered was the fact that Petitioner did not report the incidents of abuse to the Mexican police. The court held that it was error for the BIA to make the reporting of private persecution a prerequisite to a withholding of removal claim. (Ornelas-Chavez v. Gonzales, 8/21/06)
    AILA Doc. No. 06092267.
  • CA9 Discusses “Admitted in Any Status” for Purposes of Cancellation of Removal (9/22/2006)
    The court examined the plain meaning and legislative history of INA §240A, along with BIA and Ninth Circuit precedent, and concluded that acceptance into the Family Unity Program constituted “admitted in any status” for cancellation of removal purposes. (Garcia-Quintero v. Gonzales, 07/24/06)
    AILA Doc. No. 06092261.
  • CA9 Remands Motion to Reopen for BIA Abuse of Discretion (9/21/2006)
    The court held that the BIA’s failure to identify and evaluate the factors favorable to Petitioner’s motion to reopen, which presented new evidence of hardship for cancellation of removal, was an abuse of discretion. (Franco-Rosendo v. Gonzales, 07/18/06)
    AILA Doc. No. 06092146.
  • CA9 Holds Hearsay Evidence May Be Accorded Less Weight In Amended Decision (9/8/2006)
    The court refined its previous decision but reached the same outcome, holding that where an applicant’s testimony consists of hearsay evidence, the statements by the out-of-court declarant need not be taken as true and may be accorded less weight by the trier of fact. (Gu v. Gonzales, 7/21/06)
    AILA Doc. No. 06090878.
  • CA9 Holds Accessory After the Fact is Crime Involving Moral Turpitude (9/5/2006)
    The court held that a conviction under California Penal Code §32, accessory after the fact, is a crime involving moral turpitude. Conviction under this statute requires a knowing, affirmative act to conceal a felony with the specific intent to hinder prosecution, which is contrary to the duties owed society. (Navarro-Lopez v. Gonzales, 07/31/06)
    AILA Doc. No. 06090565.
  • CA9 Finds Eritrean Jehovah’s Witness Lacked Past Harm or Well-Founded Fear (8/23/2006)
    The court held that the IJ’s finding that Petitioner failed to establish past persecution or a well-founded fear was supported by substantial evidence. The dissent disagreed noting that discriminatory treatment based on the religion of those who refuse conscription is persecution based on a protected ground. (Zehatye v. Gonzales, 7/13/06)
    AILA Doc. No. 06082363.
  • CA9 En Banc Panel Finds IJ Lacked Sufficient Evidence on Firm Resettlement (8/22/2006)
    The court reheard the case to determine what evidence DHS must produce to meet its burden of showing the firm resettlement bar applies. It held that DHS must first show the applicant had an offer of official status permitting him to remain in a country indefinitely. If DHS does, the burden shifts to the applicant. (Maharaj v. Gonzales, 6/9/06)
    AILA Doc. No. 06082263.
  • CA9 Finds Peruvian Civil Guard Interpreter Assisted in Persecution (8/22/2006)
    The court first held that IJs’ statutory interpretations are not entitled to Chevron deference under the BIA streamlining process. The court then found the IJ’s determination that Petitioner personally assisted in acts that furthered the persecution of others was supported by substantial evidence. (Miranda-Alvarado v. Gonzales, 3/21/06)
    AILA Doc. No. 06082262.
  • CA9 Strikes Down Physician National Interest Waiver Regulations as Ultra Vires (8/9/2006)
    The court struck down the regulations at 8 CFR §§204.12(b)(1), 204.12(d)(4), 204.12(d)(6) and 245.18(e), holding that they were inconsistent with and ultra vires to the Nursing Relief for Disadvantaged Areas Act of 1999. (Schneider, et al v. Chertoff, 06/07/06)
    AILA Doc. No. 06080963.
  • CA9 Rejects Yemeni Asylum Applicant’s Due Process and CAT Claims (7/27/2006)
    The court rejected Petitioner’s due process claims because he was not precluded from presenting evidence, the IJ considered his documentary evidence, and the evidence did not compel the conclusion that his expert was credible. The court also found that the evidence did not compel the conclusion he would be tortured. (Almaghzar v. Gonzales, 6/8/06)
    AILA Doc. No. 06072776.
  • CA9 Finds IJ Erred by Taking Administrative Notice Without Opportunity to Rebut (7/17/2006)
    The court held that Petitioner was entitled both to notice of the IJ’s intent to take administrative notice of a 1999 Department of State report on Romania and an opportunity to respond to that report. The court found that the report fell plainly into the category of “controversial” fact, not “indisputable” fact. (Circu v. Gonzales, 6/9/06)
    AILA Doc. No. 06071762.
  • CA9 Strikes Down Physician NIW Regulations(61 KB - 6/8/2006)
    The court struck down the regulations at 8 C.F.R. §§204.12(b)(1), 204.12(d)(4), 204.12(d)(6) and 245.18. The court held the regulations were ultra vires to INA §203(b)(2)(B)(ii), which was amended by the Nursing Relief for Disadvantaged Areas Act of 1999. (Schneider et al. v. Chertoff et al., 6/7/06). (Courtesy of Carl Shusterman and AILF LAC.)
    AILA Doc. No. 06060866.
  • CA9 Amends Its January 2006 Decision in Kumar v. Gonzales (5/31/2006)
    In an order dated April 13, 2006, the court removed all references to its finding that the IJ had violated Petitioner’s due process rights by failing to question Petitioner regarding the perceived similarities between numerals on his father’s death certificate and in Petitioner’s asylum application. (Kumar v. Gonzales, 4/13/06)
    AILA Doc. No. 06053165.
  • CA9 Requires Case-Specific Decision on Whether Sexual Abuse of a Minor AgFel Constitutes a Particularly Serious Crime (5/22/2006)
    The court held that INA §242(a)(2)(B) did not preclude review of whether the BIA applied the proper legal standards in evaluating whether a crime was particularly serious so as to render Petitioner ineligible for withholding. The court found the BIA erred by not engaging in a case-specific analysis of that claim. (Afridi v. Gonzales, 4/4/06)
    AILA Doc. No. 06052275.
  • CA9 Upholds Aggravated Felony Finding; Remands on §209(c) Waiver (5/22/2006)
    The court held an Oregon conviction for third degree rape constitutes an aggravated felony under INA §101(a)(43)(A) and the IJ erred by applying the heightened Matter of Jean waiver standard to Petitioner’s §209(c) waiver application without first determining the conviction was for a “violent or dangerous” crime. (Rives-Gomez v. Gonzales, 4/3/06)
    AILA Doc. No. 06052265.
  • CA9 Upholds IJ’s Finding of No Past Persecution But Reverses Finding of No Well-Founded Fear of Future Persecution (5/8/2006)
    The court upheld the IJ’s finding that Petitioner had not suffered past persecution but found that her fear of future harm, based on increasingly severe threats made during a seven-month period in Peru six years ago, was well-founded based on the Shining Path’s “ruthless efficiency” in persecuting opponents. (Canales-Vargas v. Gonzales, 3/21/06)
    AILA Doc. No. 06050873.
  • CA9 Holds IJ Statutory Interpretations Not Entitled to Chevron Deference But Concurs that Peruvian Civil Guardsman Assisted in Persecution (5/8/2006)
    The court refused to accord Chevron deference to IJ's statutory interpretation under the BIA streamlining process but found that substantial evidence supported finding that Petitioner personally assisted in acts that furthered the persecution of others. (Miranda-Alvarado v. Gonzales, 3/21/06)
    AILA Doc. No. 06050865.
  • CA9 Reverses IJ’s Adverse Credibility Determination and Remands Sikh Asylum Case (5/3/2006)
    The court held that the IJ’s adverse credibility finding was improper due to her failure to address explanations for a discrepancy, her reliance on inconsistencies that did not go to the heart of the asylum claim, and speculation. The court held that the IJ’s reliance on State Department reports was also improper. (Singh v. Gonzales, 3/10/06)
    AILA Doc. No. 06050365.
  • CA9 Affirms Former INS Employee’s Conviction for Document Shredding (Updated 9/21/06) (5/2/2006)
    The court affirmed the conviction of a former CSC employee who, along with other CSC employees, shredded an estimated 90,000 INS documents from January to April 2002 as part of an effort to reduce the filing backlog at the CSC. (United States v. Salazar, 4/10/06)
    AILA Doc. No. 06050214.
  • CA9 Addresses Issues of First Impression Regarding Visa Waiver Entrants and Adjustment of Status for Widowed Spouses (5/1/2006)
    The court held: INA §217(b)'s "no-contest" clause does not apply once the VWP entrant properly files an AOS application; and the death of a USC spouse within 2 years of marriage does not deprive a non-citizen spouse of immediate relative status if the visa petition and AOS application were filed before the death. (Freeman v. Gonzales, 4/21/06). AILA Doc. No. 06050161.
    AILA Doc. No. 06050161.
  • CA9 Holds That Applicants for Admission, Including Asylum Seekers, Cannot Be Indefinitely Detained (4/19/2006)
    The court held that the indefinite detention of applicants for admission under INA §235(b) “is unreasonable, unjustified, and in violation of federal law,” that ICE abused its discretion in denying parole, and also granted Petitioner’s motion for immediate release under FRAP 23(b). (Nadarajah v. Gonzales, 3/17/06). AILA Doc. No. 06041962.
    AILA Doc. No. 06041962.
  • CA9 Addresses Interplay Between Discretionary Bar to Judicial Review and Motion to Reopen Denials (4/19/2006)
    The court found it lacked jurisdiction to review of the BIA’s denial of a motion to reopen where the BIA had previously made an adverse discretionary determination concerning relief enumerated in INA §242(a)(2)(B)(i). The court also gave examples of motion to reopen denials over which it would have jurisdiction. (Fernandez v. Gonzales, 3/2/06)
    AILA Doc. No. 06041961.
  • CA9 Holds Voluntary Departure Must Be “Knowing and Voluntary” Before it Breaks Continuous Physical Presence (4/10/2006)
    Voluntary departure only breaks continuous physical presence for cancellation purposes when (1) there is substantial evidence of the order and (2) the person “has been informed of, and has knowingly and voluntarily consented to, the terms of the [voluntary departure] agreement.” (Ibarra-Flores v. Gonzales, 3/6/06)
    AILA Doc. No. 06041064.
  • CA9 Affirms District Court Jurisdiction Over Bivens Suits; Finds 4th Amendment Violation (Updated 4/10/06) (4/10/2006)
    The court held: (1) INA §242 did not preclude Plaintiffs’ Bivens action for monetary damages; and (2) where INS officer had no legal basis to detain Plaintiff pursuant to the expedited removal statute, the officer violated his Fourth Amendment right to be free from unlawful detention. (Sissoko v. USA, 3/16/05)
    AILA Doc. No. 05072165.
  • CA9 Addresses Prevailing Party Status for EAJA Purposes (4/5/2006)
    The court held that a district court order attesting to a voluntary stipulation between a noncitizen and the INS to stay deportation pending the BIA’s adjudication of a motion to reopen conveyed “prevailing party” status under EAJA because it awarded a substantial portion of the relief sought. (Carbonell v. INS, 11/18/05).
    AILA Doc. No. 06040568.
  • CA9 Finds IJ’s Decision Supported by Substantial Evidence and Upholds Asylum Denial (3/20/2006)
    The court found that the IJ’s decision that an ethnic Indian from Fiji did not suffer past persecution or have a well-founded fear was supported by substantial evidence. The court also found that the BIA violated its summary affirmance regulations by including a footnote, but the court held that it was harmless error. (Kumar v. Gonzales, 2/15/06)
    AILA Doc. No. 06032017.
  • CA9 Says §245(i) AOS Trumps Inadmissibility under INA §212(a)(9)(C)(i)(I) (3/14/2006)
    Relying on its analysis in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the court held that Petitioner is eligible for adjustment of status under INA §245(i) despite inadmissibility under INA §212(a)(9)(C)(i)(I) for having illegally reentered after having accrued more than one year of unlawful presence. (Acosta v. Gonzales, 2/23/06)
    AILA Doc. No. 06031462.
  • CA9 Overturns IJ’s Negative Credibility Determination of Asylum Applicant Who Smuggled Falun Gong Material into China (3/6/2006)
    The court held that the IJ did not identify a specific, cogent reason to support his incredibility finding, but instead relied on speculation and conjecture about Petitioner’s position in Chinese society and what someone in her position would do. The court found her eligible for asylum and granted her withholding. (Zhou v. Gonzales, 2/7/06)
    AILA Doc. No. 06030664.
  • CA9 Says Repeal of Suspension of Deportation Has Retroactive Effect (3/1/2006)
    The court said that IIRIRA’s repeal of suspension of deportation would have impermissible retroactive effect if applied to a noncitizen without legal status because it would attach a new disability to his 1988 guilty plea by depriving him of his pre-existing eligibility for suspension of deportation. (Lopez-Castellanos v. Gonzales, 2/16/06).
    AILA Doc. No. 06030161.
  • CA9 Reaffirms Reliance Requirement in Retroactivity Analysis (2/23/2006)
    To establish impermissible retroactive effect, the court held that a petitioner must demonstrate that the underlying conduct would have been different based on reliance on existing immigration laws. Two circuits have disagreed. The issue is currently before the Supreme Court in Fernandez-Vargas v. Gonzales. (Kelava v. Gonzales, 1/12/06).
    AILA Doc. No. 06022366.
  • CA9 Holds Border "Turn Around" Does Not Interrupt Continuity of Presence (2/14/2006)
    The court said that a "short departure from the United States, such as a brief return to the alien's native country for family reasons, does not necessarily interrupt the accrual of an alien's period of physical presence in the United States" for purposes of cancellation of removal. (Tapia v. Gonzales, 12/6/05).
    AILA Doc. No. 06021462.
  • CA9 Says Statutory Rape is Not a Per Se Crime of Violence (Updated 4/10/06) (4/10/2006)
    The court held that, where the minor consents, a conviction for statutory rape under California Penal Code §261.5(c) is not a crime of violence because it does not involve a substantial risk of violence in its commission. (Valencia v. Gonzales, 3/6/06). AILA Doc. No. 09021461.
    AILA Doc. No. 06021461.
  • CA9 Addresses 7 Year Residence Requirement for Cancellation of Removal (2/14/2006)
    Petitioner resided within the U.S. continuously for seven years “after having been admitted in any status” for purposes of cancellation of removal because his mother’s earlier admission for permanent resident status while Petitioner was an unemancipated minor was imputed him. (Cuevas-Gaspar v. Gonzales, 12/7/05). AILA Doc. No. 06021460.
    AILA Doc. No. 06021460.
  • CA9 Finds Likelihood that USC Daughter Would Be Subjected to FGM Requires Remand of Parents’ Claim (1/30/2006)
    The en banc court found that evidence indicated that the probability a US citizen child would be subjected to female genital mutilation (FGM) greatly exceeded the threshold required for asylum eligibility. The court remanded the case on the question of whether her parents could derivatively qualify for asylum. (Abebe v. Gonzales, 12/30/05). AILA Doc. No. 06013011.
    AILA Doc. No. 06013011.
  • CA9 Rejects Asylum Claim of Chinese Christian Giving Little Weight to Hearsay Evidence (Updated 9/8/06) (9/8/2006)
    The Court found that Petitioner failed to demonstrate that he suffered past persecution or had a well-founded fear. The Court also held that where an applicant’s testimony consists of hearsay evidence, the statements by the out-of-court declarant need not be taken as true and may be accorded less weight by the trier of fact. (Gu v. Gonzales, 12/1/05). AILA Doc. No. 06011865.
    AILA Doc. No. 06011865.
  • CA9 Vacates Motion to Reopen Denial Issued Before the End of the 90-Day Filing Period (Updated 4/10/06) (4/10/2006)
    The court held the BIA’s summary denial of a skeletal motion to reopen, in which counsel indicated an intention to file a brief and additional documentation, before the end of the 90-day filing window was arbitrary, irrational, contrary to law and a violation of due process. (Yeghiazaryanv v. Gonzales, 3/10/06). AILA Doc. No. 06011863.
    AILA Doc. No. 06011863.
  • CA9 Denies Government’s Request for Rehearing En Banc in Asylum Case Involving Disabled Russian Child (1/18/2006)
    The Court denied the petition for a rehearing en banc. Seven judges joined in a dissent, stating that the case had profound implications and that by allowing the harms suffered by a child to be imputed to the parent, the panel had created a reverse derivative asylum claim (Tchoukhrova v. Gonzales, 12/5/05). AILA Doc. No. 06011862.
    AILA Doc. No. 06011862.
  • CA9 Says Voluntary Departure Period Is Automatically Tolled If MTR is Filed Before Period Has Expired (1/9/2006)
    The court held that a motion to reconsider filed before the expiration of the voluntary departure period automatically tolls the voluntary departure period while the BIA adjudicates the motion. (Barroso v. Gonzales, 11/18/05).
    AILA Doc. No. 06010962.