2004

CA9 Vacates AWO Case and Remands for BIA Opinion (12/27/2004)
The Ninth Circuit vacated an AWO decision because the AWO prevented the court from knowing the BIA's actual reasons for its decision, and thus prevented the court from discerning its own jurisdiction. The court remanded the case for clarification from the BIA. (Lanza v. Ashcroft, 11/22/04). AILA Doc. No. 04122713.
AILA Doc. No. 04122713.
CA9 Strikes Down Reinstatement Regulation (12/1/2004)
The court invalidated the regulation permitting DHS officers to unilaterally reinstate a prior order without a hearing. The court held that the regulation was ultra vires to INA § 240, which requires an immigration judge to determine removabililty. (Morales-Izquierdo v. Ashcroft, 11/18/04). AILA Doc. No. 04120168.
AILA Doc. No. 04120168.
Finding Past Persecution, CA9 Reverses IJ Determination (11/22/2004)
In finding that petitioner suffered past persecution, the court affirmed that a showing of serious bodily injury or medical attention is not required to establish persecution. (Mihalev v. Ashcroft, 11/9/04). AILA Doc. No. 04112263.
AILA Doc. No. 04112263.
CA9 Strikes Down Reinstatement Regulation (11/18/2004)
The court invalidated the regulation permitting DHS officers to unilaterally reinstate a prior order without a hearing. The court held that the regulation was ultra vires to INA § 240, which requires an immigration judge to determine removabililty. (Morales-Izquierdo v. Ashcroft, 11/18/04). AILA Doc. No. 04111840.
AILA Doc. No. 04111840.
CA9 Refuses to Extend Lujan-Armendariz to Convictions That Have Not Yet Been Expunged (11/8/2004)
The court held that neither the INA nor the Administrative Procedure Act authorized its review of the BIA's decision to affirm petitioner’s appeal without opinion. (Chavez-Perez v. Ashcroft, 10/26/04). AILA Doc. No. 04110870.
AILA Doc. No. 04110870.
CA9 Finds Violation of the Right to Choice of Counsel (10/29/2004)
The court held that petitioners were denied their statutory and Fifth Amendment due process right to counsel of their choice when the IJ banned an entire law firm from representing them at their deportation hearing. (Baltazar-Alcazar v. Ashcroft, 10/21/04). AILA Doc. No. 04102914.
AILA Doc. No. 04102914.
CA9 Finds “Disfavored Status” of Ethnic Chinese in Indonesia Supports Well-Founded Fear of Persecution (10/26/2004)
The court held that the record established that ethnic Chinese in Indonesia have "disfavored status" and that petitioner was specifically targeted for persecution. Thus, the court concluded that petitioner had a well-founded fear of persecution. (Sael v. Ashcroft, 10/14/2004). AILA Doc. No. 04102617.
AILA Doc. No. 04102617.
CA9 Permits Post-Removal Habeas Review Over Citizenship Claim (10/26/2004)
The court held that petitioners have a Fifth Amendment right to review of colorable citizenship claims and may obtain such review via habeas corpus even after accepting deportation and waiving their right to appeal an IJ's decision. (Rivera v. Ashcroft, 10/18/04). AILA Doc. No. 04102616.
AILA Doc. No. 04102616.
CA9 Strikes Down Age-Out Provisions of V Visa Regulation (10/22/2004)
The court held that by re-separating families originally reunited under the LIFE Act, the age-out provisions in 8 C.F.R. § 214.15(g) (terminating V nonimmigrant status the day before the visa holder’s 21st birthday) were contrary to the congressional intent underlying the LIFE Act. (Akhtar v. Burzynski, 10/5/04). AILA Doc. No. 04102260.
AILA Doc. No. 04102260.
CA9 Applies Exhaustion Exception and Orders Remand in Repapering Case (10/21/2004)
The court reaffirmed that issues arising after briefing to the BIA is completed need not be exhausted and that motions to reopen are not administrative remedies “as of right.” The court remanded the issue of whether the BIA was obligated to follow INS and EOIR memoranda instructing repapering. (Alacaraz v. INS, 10/1/04). AILA Doc. No. 04102199.
AILA Doc. No. 04102199.
CA9 Affirms Dismissal of Post-Removal Detention Habeas Petitions Filed Before the 90-Day Removal Period Expired (Updated 11/8/04) (10/5/2004)
The court held that habeas petitioners whose removal is not reasonably foreseeable cannot raise a colorable due process claim for release until the 90-day removal period has expired. (Khoutesouvan et al. v. Morones, 10/27/04). AILA Doc. No. 04100572.
AILA Doc. No. 04100572.
CA9 Withdraws Armentero Decision Regarding Whom to Sue in Habeas Cases (9/16/2004)
The court granted the government’s rehearing petition, withdrew its prior published decision, and deferred submission of the case pending oral argument. (Armentero v. INS, 9/1/04).
AILA Doc. No. 04091660.
CA9 Finds Ineffective Assistance of Counsel Due Process Violations Apply Only After Proceedings Commence (9/15/2004)
The court found that prior counsel’s erroneous advice regarding petitioners’ eligibility for relief from removal did not amount to a due process violation because the erroneous advice was given prior to commencement of proceedings and, thus, did not taint the fairness of the hearing itself. (Lara-Torres v. Ashcroft, 9/8/04). AILA Doc. No. 04091566.
AILA Doc. No. 04091566.
CA9 Rules Section 241(a)(5) Reinstatement Impermissible, Unless Prior Proceeding Comported with Due Process; Prior Order Is Reviewable Via Habeas (9/15/2004)
Applying the rationale of St. Cyr to INA § 241(a)(5)’s bar to “review,” the court held that habeas review remains available to raise a due process challenge to a prior order that has been reinstated. (Arreola-Arreola v. Ashcroft, 9/8/04). AILA Doc. No. 04091565.
AILA Doc. No. 04091565.
CA9 Affirms That State Felony Simple Possession Conviction is Not an Aggravated Felony Under the INA (9/14/2004)
The court held that state felony drug offenses are not aggravated felonies for immigration purposes unless the offense contains a drug trafficking element or is punishable under federal law. (Cazarez-Gutierrez v. Ashcroft, 01/26/04). AILA Doc. No. 04091414.
AILA Doc. No. 04091414.
CA9 Denies Untimely EAJA Motion (9/13/2004)
The court held that petitioner had erroneously calculated the filing deadline for requesting attorneys’ fees under the Equal Access to Justice Act. Petitioner calculated the deadline from the date the mandate issued rather than the date of “final judgment.” (Zheng v. INS, 9/3/04). AILA Doc. No. 04091375.
AILA Doc. No. 04091375.
CA9 Upholds Asylum Denial in FGM Case (9/13/2004)
The court affirmed the denials of petitioners’ applications for asylum and withholding of removal, reasoning that their fear was not well-founded because both petitioners testified that they would not allow their daughter to undergo FGM, even if they were ostracized by their families. (Abebe v. Ashcroft, 8/13/2004).
AILA Doc. No. 04091367.
CA9 Addresses Whether Returning LPR is Properly Charged with Inadmissibility for Making a False USC Claim (9/13/2004)
The court ruled that the BIA’s failure to decide whether petitioner was convicted of a CIMT made it impossible to determine whether he was “seeking admission” under INA § 101(a)(13)(C)(v) and, therefore, whether he could be charged with inadmissibility under INA § 212(a)(6)(C). (Toro-Romero v. Ashcroft, 8/30/04). AILA Doc. No. 04091362.
AILA Doc. No. 04091362.
CA9 Limits DHS’ Power to Reinstate and Deny AOS (8/27/2004)
The court held: adjustment applicants who filed I-212 waiver applications prior to reinstatement proceedings are not subject to reinstatement; § 245(i) applicants are not subject to INA § 212(a)(6)(A)(i); and that an approved I-212 waiver application waives INA § 212(a)(9), including the permanent bar. (Perez-Gonzales v. Ashcroft, 8/13/2004). AILA Doc. No. 04082743.
AILA Doc. No. 04082743.
CA9 Reverses Asylum Denial Where Claim Based on Mixed-Race, Mixed Religion Marriage in Fiji (8/24/2004)
The Ninth Circuit found that the cumulative effect of the threats and attacks on petitioners by their family members was sufficient to establish past persecution and that the Fijian government was unable or unwilling to control petitioners’ persecutors. (Faruk v. Ashcroft, 8/4/2004). AILA Doc. No. 04082468.
AILA Doc. No. 04082468.
CA9 Finds That BIA Erroneously Applied AWO Regulation, Remands Case (8/24/2004)
The court concluded that streamlining was not warranted because the issue -- whether deferred enforced departure status is the functional equivalent of parole for purposes of adjustment of status under the Chinese Student Protection Act -- was novel and applicable to numerous other aliens. (Chong Shin Chen v. Ashcroft, 8/10/2004). AILA Doc. No. 04082467.
AILA Doc. No. 04082467.
CA9 Finds Extreme Economic Discrimination Against Palestinians Supports Fear of Future Persecution (8/24/2004)
The court found that petitioners “would not be able to avoid the state-sponsored economic discrimination” against Palestinians in Kuwait and also held that they could not be removed to Jordan because DHS failed to present evidence that Jordan was willing to accept them. (El Himri v. Ashcroft, 8/2/2004). AILA Doc. No. 04082466.
AILA Doc. No. 04082466.
CA9 Addresses 2001 Regulation Expanding Asylum Eligibility (8/24/2004)
The court held that, pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), asylum may be granted if an applicant establishes (1) past persecution on account of a protected ground and (2) a reasonable possibility of "other serious harm" upon deportation, which need not be on account of a protected ground. (Belishta v. Ashcroft, 8/9/2004). AILA Doc. No. 04082464.
AILA Doc. No. 04082464.
CA9 Finds Persecution on Account of Political Opinion in Mixed Motive Case (8/17/2004)
Reversing the IJ’s conclusion that the persecutor’s sole motivation was a desire for revenge against petitioner’s father, the court held that persecution allegedly inflicted at the behest of an influential criminal figurehead was at least in part on account of petitioner’s political opinion. (Deloso v. Ashcroft, 8/2/04). AILA Doc. No. 04081766.
AILA Doc. No. 04081766.
CA9 Finds Failure to Timely File BIA Appeal Amounted to Prejudicial Ineffective Assistance of Counsel (8/13/2004)
Even though the BIA considered a later motion to reopen, the court found that petitioners had been prejudiced by prior counsel’s failure to timely file a notice of appeal, in part, because they were deprived of the in-depth review of the IJ's factual conclusion that would have been available on direct appeal. (Siong v. Ashcroft, 7/23/04). AILA Doc. No. 04081322.
AILA Doc. No. 04081322.
CA9 Amends Rationale in Prior Decision Barring Relief Where Motion to Reopen was Filed After Voluntary Departure Period Expired (8/13/2004)
The Ninth Circuit amended its rationale in a prior decision which barred relief for an individual who overstayed voluntary departure where a motion to reopen was filed after the voluntary departure period, but before the end of the 90-day period for a motion to reopen. (DeMartinez v. Ashcroft, Amended 7/2/04). AILA Doc. No. 04081362.
AILA Doc. No. 04081362.
CA9 Finds Persons Born In the Commonwealth of the Northern Mariana Islands after 1/9/78 are U.S. Citizens (8/9/2004)
The Ninth Circuit held that persons born in the Commonwealth of the Northern Mariana Islands (CNMI) after 1/9/78, the effective date of the Covenant between the CNMI and the United States, are U.S. citizens. (Sabangan et al. v. Powell, 7/1/04). AILA Doc. No. 04080973.
AILA Doc. No. 04080973.
CA9 Finds Harm to Relatives Abroad Supports Well-Founded Fear of Persecution (8/9/2004)
The court found that petitioner’s credibility, the lack of any contradictory evidence, and the evidence of the harm to petitioner’s relatives abroad compelled the conclusion that the denials of petitioner’s applications for asylum and withholding were not supported by substantial evidence. (Njuguna v. Ashcroft, 6/28/04). AILA Doc. No. 04080970.
AILA Doc. No. 04080970.
CA9 Finds It Lacks Jurisdiction to Review Fraud Waiver(38 KB - 8/9/2004)
Court finds a review of the decision affirming statutory ineligibility for an INA § 237(a)(1)(H) waiver would be futile because of the alternative holding that even if the petitioner were eligible, he wouldn't merit a favorable exercise of discretion. Concludes it lacks jurisdiction. (San Pedro v. Ashcroft, 6/23/2004). AILA Doc. No. 04080968.
AILA Doc. No. 04080968.
CA9 Holds that Circumstantial Evidence of Mixed Motive May Suffice for Asylum (7/27/2004)
The court reiterated that it has “consistently allowed circumstantial evidence to suffice” as evidence of motive and that "many persecutors have mixed motives." (Garcia-Martinez v. Ashcroft, 6/14/2004). AILA Doc. No. 04072762.
AILA Doc. No. 04072762.
CA9 Finds Unexcused Failure to Timely File Petition for Review Bars Habeas Corpus Review (7/26/2004)
The Ninth Circuit addressed prudential exhaustion, holding in two cases that the filing a petition for review constitutes a judicial remedy which, absent certain extenuating circumstances, must be exhausted before a petitioner may obtain habeas review in district court. (Liang v. Ashcroft, 6/7/2004 & Acevedo-Carranza v. Ashcroft, 6/7/2004). AILA Doc. no. 04072672.
AILA Doc. No. 04072672.
CA9 Requires Claim-Based Exhaustion Before the BIA in Habeas Case (7/26/2004)
The court reasoned that mandating exhaustion in habeas actions did not conflict with the distinction between “judicial review” and “habeas corpus” in St. Cyr. The court held that petitioner failed to exhaust because he could have raised his claims with the BIA prior to filing his habeas, but he failed to do so. (Sokha Sun v. Ashcroft, 6/4/2004). AILA Doc. No. 04072667.
AILA Doc. No. 04072667.
CA9 Finds Bar to Review Where IJ Had Reason to Believe Illicit Drug Trafficking Activity (7/26/2004)
The Ninth Circuit held that the bar to judicial review of a removal order may apply when an Immigration Judge finds "reason to believe" the alien was involved in illicit drug trafficking. The court held that because substantial evidence supports the IJ’s finding, the court lacks jurisdiction. (Lopez-Molina v. Ashcroft, 6/2/2004).
AILA Doc. No. 04072663.
CA9 Finds that Voluntary Departure Period is Automatically Stayed in Pending Transitional Rule Cases (7/26/2004)
The Ninth Circuit held that – in transitional rule cases - the voluntary departure period does not begin to run until the circuit court’s mandate issues. In so holding, the court upheld the applicability of its long-standing position in Contreras-Aragon v. INS to transitional rule cases. (Elian v. Ashcroft, 6/2/2004).
AILA Doc. No. 04072662.
CA9 Limits Review to Official Record in Domestic Violence Removability Determination (7/26/2004)
Employing the categorical approach set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), the Ninth Circuit held that the IJ erred when he considered facts regarding petitioner’s domestic violence conviction which were not part of the official record of conviction. (Tokatly v. Ashcroft, 6/10/2004).
AILA Doc. No. 04072661.
CA9 Adopts BIA’s Test for Determining Whether an Individual Has Effectuated an “Entry” Under Pre-IIRIRA Law (7/12/2004)
Citing Matter of Patel, the court held that no entry was effectuated under former INA § 101(a)(13) in Sidhu, when petitioner was detained by immigration before exiting the secondary inspection area (Sidhu v. Ashcroft, 5/27/04); and in Mariscal-Sandoval, when INS failed to promptly issue a parole extension (Mariscal-Sandoval v. Ashcroft, 5/28/04). AILA Doc. No. 04071267.
AILA Doc. No. 04071267.
CA9 Denies Motion for Stay of Voluntary Departure Period Filed After Expiration of Such Period (7/9/2004)
The Court reiterated that a petition for review does not automatically stay the voluntary departure period, and found that a Motion to Stay filed after the period expired is essentially a request to extend or reinstate the period. The Court cited INA § 240B(f), depriving the courts of authority to grant or extend a period of voluntary departure. (Garcia v. Ashcroft, 5/27/04).
AILA Doc. No. 04070967.
CA9 Withdraws Prior Decision Finding No Aggravated Felony in Drug Case (5/11/2004)
For the purpose of reviewing whether jurisdiction vests with the Court, the Ninth Circuit withdrew its prior decision holding that a state felony drug offense is not an aggravated felony for immigration purposes unless the offense contains a drug trafficking element or is punishable under federal law. (Cazarez-Gutierrez v. Ashcroft, 04/26/04).
AILA Doc. No. 04051163.
CA9 Rejects Government's Arguments on Exception to Zadvydas' Indefinite Detention Bar (5/11/2004)
The Ninth Circuit rejected the Government's argument that there is an exception to Zadvydas' six-month limitation on detention of post-final order permanent residents, for particularly dangerous individuals where there are circumstances, such as mental illness, that help to create the danger. (Tuan Thai v. Ashcroft, 05/03/04).
AILA Doc. No. 04051161.
CA9 Holds Failure to Notify Petitioner of Impact of Departure Is Violation of Due Process (4/30/2004)
The Ninth Circuit held that application of the rule that a departure while a BIA appeal is pending results in withdrawal of the appeal, where the petitioner was not notified of the impact of the departure, violates due process. (Martinez De Bojorquez v. Ashcroft, 4/22/04). AILA Doc. No. 04043071.
AILA Doc. No. 04043071.
CA9 Applies Bar to Relief for Overstaying VD To Motion to Reopen Petitioner (4/30/2004)
The Ninth Circuit held that the bar to relief for overstaying voluntary departure applies to an individual who filed a motion to reopen for adjustment of status after the VD period ended but before the end of the 90-day period for a motion to reopen. (DeMartinez v. Ashcroft, 4/16/04). AILA Doc. No. 04043066.
AILA Doc. No. 04043066.
CA9 Finds Due Process Violation in Proceeding After Withdrawal of Counsel (4/29/2004)
The Ninth Circuit found that the IJ violated due process by permitting counsel to withdraw without advising petitioner of his right to counsel or asking for a waiver of the right, and continuing the hearing for only 2 hours after the withdrawal. (Tawadrus v. Ashcroft, 04/15/04). AILA Doc. No. 04042962.
AILA Doc. No. 04042962.
CA9 Affirms Denial of Asylum and Withholding Based on Terrorist/National Security Grounds (4/29/2004)
The Ninth Circuit found lack of jurisdiction to review an IJ determination that a petitioner who, the judge concluded, had engaged in terrorist activity, and held that substantial evidence supported a finding of ineligibility for withholding as a likely danger to security. (Bellout v. Ashcroft, 4/12/04). AILA Doc. No. 04042961.
AILA Doc. No. 04042961.
CA9 Finds It Has Jurisdiction to Review Discretionary Denial of Motion to Reopen (4/27/2004)
The Court found that the BIA’s denial of Petitioner’s motion to reopen was not a judgment regarding the granting of a ground of relief set forth in INA § 242(a)(2)(B)(i) and, therefore, that provision did not bar its jurisdiction. (Medina-Morales v. Ashcroft, 04/07/04). AILA Doc. No. 04042768.
AILA Doc. No. 04042768.
CA9 Construes Motion for Stay of Removal as Motion to Stay Voluntary Departure Period (4/27/2004)
The Ninth Circuit held that a motion for a stay of removal filed during the pendency of a petition for review will be construed to include a motion to stay voluntary departure provided the motion for a stay of removal is filed prior to the expiration of the voluntary departure period. (Desta v. Ashcroft, 4/14/04). AILA Doc. No. 04042767.
AILA Doc. No. 04042767.
CA9 Asserts Jurisdiction to Review BIA Denial of Motion to Reopen (4/13/2004)
The Ninth Circuit held that it had jurisdiction to review a motion to reopen by a respondent granted voluntary departure. The petitioner sought to resurrect an abandoned adjustment application based on his relationship to a USC stepfather was not a judgment on a ground of relief in 242(a)(2)(B)(i). (Medina-Morales v. Ashcroft, 4/7/04). AILA Doc. No. 04041363.
AILA Doc. No. 04041363.
CA9 Remands Case for Consideration of Whether the Five-Year Bar to Adjustment Continues beyond the Five-Year Period (4/12/2004)
The Ninth Circuit Court remanded the case to the BIA for consideration in the first instance of whether the five-year bar for failing to depart during a voluntary departure period continued to bar petitioner from adjustment of status, where the five-year bar period expired while the petition for review was pending. (Velezmoro v. Ashcroft, 4/1/04). AILA Doc. No. 04041275.
AILA Doc. No. 04041275.
CA9 Finds Jurisdictional Authority and Denies Appeal in Marriage Fraud Case (4/12/2004)
The Court held that the determination of whether Petitioner entered into her marriage in good faith and not for the purpose of evading U.S. immigration law was not a discretionary decision within INA § 242(a)(2)(B)’s bar to review. Finding evidence of marriage fraud to be sufficient, the Court denied the appeal. (Nakamoto v. Ashcroft, 4/1/04). AILA Doc. No. 04041274.
AILA Doc. No. 04041274.
CA9 Affirms Denial of Untimely Motion to Reopen, But Remands for CAT Claim (4/12/2004)
The Ninth Circuit held that a change in U.S. asylum law does not constitute "changed circumstances" for an untimely motion to reopen asylum and withholding, but remanded the case on holding that torture for CAT purposes may occur while in the custody or physical control of public officials or private individuals. (Azanor v. Ashcroft, 4/1/04). AILA Doc. No. 04041273.
AILA Doc. No. 04041273.
CA9 Finds Self-Defense is Not a Persecutory Act (4/12/2004)
Holding that the determination of whether an individual engaged in the persecution of others must be individualized, and that self-defense is not to be considered a persecutory act, the Ninth Circuit remanded the case for a new hearing. (Vukmirovic v. Ashcroft, 4/5/04). AILA Doc. No. 04041272.
AILA Doc. No. 04041272.
CA9 Concludes that California Conviction for Mayhem with a Sentence Longer than One Year is a Crime of Violence (4/12/2004)
The Ninth Circuit Court held that the statutory definition of mayhem implies a substantial risk that physical force may be used in the process of committing the offense, and a conviction for mayhem with a sentence longer than one year, is a crime of violence under INA § 101(a)(43)(F). (Ruiz-Morales v. Ashcroft, 3/24/04). AILA Doc. No. 04041268.
AILA Doc. No. 04041268.
CA9 Grants Asylum to Spouse Where the Marriage was Not Legally Recognized by the Chinese Government (4/12/2004)
The Ninth Circuit held that a spouse married in a traditional Chinese wedding ceremony can establish past persecution and qualify as a refugee on the basis of his wife’s forced abortion and sterilization, notwithstanding the fact that China would not legally recognize the marriage . (Ma v. Ashcroft, 3/15/04). AILA Doc. No. 04041267.
AILA Doc. No. 04041267.
CA9 Reviews EAJA Fees Application as Unopposed When Government Fails to Timely File Opposition (4/12/2004)
The Ninth Circuit granted EAJA fees, finding that it was within its discretion to consider the EAJA fees application to be unopposed when the government failed to timely file opposition without substantial justification. (Gwaduri v. INS, 3/18/04). AILA Doc. No. 04041266.
AILA Doc. No. 04041266.
CA9 Reverses Denial of the Waiver of the Joint Filing Requirement for Petition to Removal of Conditions (4/12/2004)
Finding evidence of the bona fides of the marriage to be sufficient and the IJ to have improperly imposed personal values, the Ninth reversed the IJ's denial of the application to waive the joint filing requirements of the petition to remove conditions on permanent resident status. (Damon v. Ashcroft, 3/11/04). AILA Doc. No. 04041265.
AILA Doc. No. 04041265.
CA9 Concludes First Lawful Admission Date Governs in Grounds of Removal (3/30/2004)
The Ninth Circuit held that the first lawful admission date constitutes the relevant admission date in cases where there may be two or more possible admission dates, for purposes of deportability under INA § 237(a)(2)(A)(i). (Shivaraman v. Ashcroft, 3/12/04). AILA Doc. No. 04033068.
AILA Doc. No. 04033068.
CA9 Requires Notice of Hearing to Both Minor and Adult to Whom the Minor is Released (3/30/2004)
In requiring notice to the adult, the Ninth Circuit Court reasoned that "the regulatory framework ...contemplates that no minor alien under age eighteen should be presumed responsible for understanding his rights and responsibilities in preparing for and appearing at final immigration proceedings." (Flores-Chavez v. Ashcroft, 3/25/04). AILA Doc. No. 04033066.
AILA Doc. No. 04033066.
CA9 Holds that Habeas Stay Request is Not Governed by 242(f)(2) (3/16/2004)
The Circuit Court held that it had jurisdiction in the interlocutory appeal, and that the section 242(f)(2) bar to enjoining removal applied only to permanent injunction requests, whereas the Habeas request was for a temporary injunction. (Faruqi v. DHS, 3/1/04). AILA Doc. No. 04031612.
AILA Doc. No. 04031612.
CA9 Finds No Time Limitation on Motion to Reopen Under Former INA § 242B(c)(3)(B) (3/16/2004)
The Ninth Circuit held that neither the statute nor any BIA or Court interpretations place any time limits on filing a Motion to Reopen an in absentia order based on lack of notice under former INA § 242B(c)(3)(B). (Andia v. Ashcroft, 3/2/04). AILA Doc. No. 04031611.
AILA Doc. No. 04031611.
CA9 Finds the CSPA Applies to Adjustment Applications Pending on Appeal (3/1/2004)
The Circuit Court held that the Child Protection Act (CSPA) applies to individuals who had pending adjustment applications on appeal on the date of enactment, 8/6/02. The Court rejected the government’s argument that “final determination” meant the final agency decision. (Padash v. Ashcroft, 02/19/04). AILA Doc. No. 04030171.
AILA Doc. No. 04030171.
CA9 Holds that the Lautenberg Amendment Does Not Apply to Asylum Applicants (3/1/2004)
Holding that there is no equal protection violation, the Ninth Circuit found that the Lautenberg Amendments apply to only refugees outside the United States, and not to asylum applicants within the United States. (Halaim v. Ashcroft, 02/18/04). AILA Doc. No. 04030170.
AILA Doc. No. 04030170.
CA9 Remands Ag Fel Re-Entry Case for Review of Prejudice in Prior Defective Removal (3/1/2004)
Remanding for review of prejudice in petitioner's removal hearing, the Ninth Circuit found the prior aggravated felony removal to be defective in that the IJ did not adequately explain appeal rights, the petitioner did not affirmatively express intention to forego appeal, and the IJ erroneously told the petitioner that no relief was available. (U.S. v. Pallares-Galan, 02/20/04)
AILA Doc. No. 04030163.
CA9 Finds No Jurisdiction to Review Due Process Claim Where Not Raised Below (2/20/2004)
The Ninth Circuit found that the petitioner must have raised his challenges with the IJ or the BIA for the Ninth Circuit to have jurisdiction to review claims of due process rights violations. (Barron v. Ashcroft, 02/10/04). AILA Doc. No. 04022061.
AILA Doc. No. 04022061.
CA9 Finds Resistence to Coercive Population Control Program Sufficient for Asylum (2/6/2004)
The Court found the petitioner eligible for asylum because she had been forced to undergo a pregnancy examination, threatened with forced abortion and sterilization of her husband, denied a marriage license, and an arrest warrant was issued for her when she sent out wedding invitations regardless of the denied license. (Li v. Ashcroft, 01/29/04). AILA Doc. No. 04020611.
AILA Doc. No. 04020611.
CA9 Finds State Felony Simple Possession Conviction is Not an Aggravated Felony under the INA (Decision Withdrawn by Court Order on 04/26/04) (2/6/2004)
Joining the Second and Third Circuits, the Ninth Circuit held that state felony drug offenses are not aggravated felonies for immigration purposes unless the offense contains a drug trafficking element or is punishable under federal law. (Cazarez-Gutierrez v. Ashcroft, 01/26/04). AILA Doc. No. 04020610.
AILA Doc. No. 04020610.
CA9 Reverses Asylum Denial for Iranian (1/28/2004)
The Ninth Circuit reversed the decisions of the BIA and the IJ, finding that where mixed motives for persecution are present, asylum eligibility is satisfied as long as it is shown that at least one of the motives is “on account of” one of the five statutory grounds. (Rabie Jahed v. INS, 01/20/04). AILA Doc. No. 04012811.
AILA Doc. No. 04012811.
CA9 Reverses BIA Denial of Ineffective Assistance of Counsel Motion to Reopen for Minor (2/2/2004)
The Court found that the minor's counsel was incompetent, that the minor was prejudiced by his counsel's incompetence, and that the minor was denied a full and fair hearing because the IJ "may have to take an affirmative role in securing representation by competent counsel" and did not do so. (Lin v. Ashcroft, 01/26/04). AILA Doc. No. 04020212.
AILA Doc. No. 04020212.
CA9 Reverses Finding of Lack of Credibility in Asylum/CAT Case (1/5/2004)
The Ninth Circuit reversed an IJ's holding of lack of credibility based on the petitioner's demeanor and method of answering questions, when there were no major inconsistencies in his testimony and where he was not given a chance to explain the lack of corroborating evidence. (Arulampalam v. Ashcroft, 12/19/03). AILA Doc. No. 04010524.
AILA Doc. No. 04010524.
CA9 Refuses to Toll DV Adjustment Deadline (1/5/2004)
The Ninth Circuit held that the statutory deadline for filing an adjustment of status application based on the DV lottery cannot be equitably tolled where the petitioner was defrauded by a notary. (Carrillo-Gonzales, 12/31/03). AILA Doc. No. 04010523.
AILA Doc. No. 04010523.

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