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Cases & Decisions
Q&A by AILF and Co-Counsel
Class counsel in
addresses issues that have arisen following the Ninth Circuit’s adverse decision, including the effective date of the decision, qualifications for class membership, and strategies for class members and others affected by the decision. (9th Cir. Nov. 30, 2007)
AILA Doc. No. 07123165.
CA9 Finds Asylum Applicant May Authenticate Documents by Own Testimony
The court held that an asylum applicant may seek to authenticate public documents by any established means – including through an applicant’s own testimony if consistent with the Federal Rules of Evidence. (
Vatyan v. Mukasey
AILA Doc. No. 07122869.
CA9 Finds BIA Abused Discretion in Denying MTR Based on Ineffective Counsel
CA9 held that Petitioner had been deprived of meaningful review due to the ineffective assistance of counsel and was entitled to a presumption of prejudice. It found that she failed to establish past persecution in Armenia, but remanded re future persecution. (
Grigoryan v. Keisler
AILA Doc. No. 07121663.
CA9 Finds AZ Solicitation to Possess 4 Pounds of Marijuana for Sale is a CIMT
The court held that a conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. §13-1002(A) and (B)(2), and §13-3405(A)(2) and (B)(6) is a crime involving moral turpitude. (
Barragan-Lopez v. Mukasey
AILA Doc. No. 07121436.
CA9 Finds INA §242(g) Bars Jurisdiction Over Bivens Action for False Arrest
The court held that INA §242(g) barred district court jurisdiction over Plaintiffs’ Bivens claim for false arrest because it arose “from the decision ...to commence [removal] proceedings,” and an alternative habeas remedy was available under INA §242(e)(2). (
Sissoko v. Rocha
AILA Doc. No. 07120769.
CA9 Finds Bangladeshi Bihari Eligible for Asylum & Disfavored Group Member
The court held that the cumulative effect of the harms that Petitioner suffered as a Bihari was so severe that no reasonable fact-finder could conclude that it did not rise to the level of persecution. (
Ahmed v. Keisler
AILA Doc. No. 07120461.
CA9 Vacates Preliminary Injunction in I-212,
CA9 ruled in favor of the gov't and vacated the preliminary injunction in a class action challenging DHS' willful refusal to follow
Perez-Gonzalez v. Ashcroft
. The court held that the rule in that case is no longer the law of the circuit. (
Duran Gonzalez v. DHS
AILA Doc. No. 07120362.
CA9 Finds AZ Attempted Public Sexual Indecency to a Minor Not an Aggravated Felony
CA9 held that attempted public sexual indecency to a minor under AZ law does not constitute attempt to commit the sexual abuse of a minor under INA §101(a)(43)(A) and (U) under the categorical approach or in this case the modified categorical approach. (
Rebilas v. Keisler
AILA Doc. No. 07110532.
CA9 En Banc Court Vacates
Suntharalinkam v. Gonzales
Over dissent by Judge Kozinski, the en banc court granted Petitioner’s motion to withdraw his petition for review, conditioned, at the government’s request, upon vacatur of the panel opinion reported at 458 F.3d 1034 (9th Cir. 2006). (
Suntharalinkam v. Keisler
AILA Doc. No. 06091911.
CA9 Finds CA Statutory Rape Statute Does Not Categorically Involve Moral Turpitude
The court held that Cal. Penal Code §261.5(d), which prohibits engaging in intercourse with a minor under the age of 16 where the perpetrator is 21 years of age or older, is not categorically a crime involving moral turpitude. (
Quintero-Salazar v. Keisler
AILA Doc. No. 07101660.
CA9 Holds Birth of Two USC Children Is Not a Basis for MTR for Asylum
CA9 held that Chinese asylum applicants could not establish changed circumstances sufficient to satisfy the exception to the time and numerical bars applicable to a motion to reopen based on the birth of children in the U.S. and the threat of forced sterilization. (
He v. Gonzales
AILA Doc. No. 07101562.
CA9 Finds IJ Erred in Denying Asylum as a Matter of Discretion
The court found that Petitioner’s use of false documents in fleeing Iraq was not a proper reason for a discretionary denial of asylum. The court also found that Petitioner presented clear reasons for not applying for asylum in 3 other countries.(
Gulla v. Gonzales
AILA Doc. No. 07101261.
CA9 Reverses IJ’s Determination that Asylum Seeker Must Prove Identity
The court held that INA §208(d)(5)(A) imposes duties on the AG and DOS to check the identities of asylum applicants and that there is no new burden on an asylum-seeker under this provision. (
Kalouma v. Gonzales
AILA Doc. No. 07101260.
CA9 En Banc Court Holds Accessory After the Fact is Not a Crime Involving Moral Turpitude
CA9 held that a CA conviction for accessory after the fact is not a crime involving moral turpitude because the conduct underlying the conviction does not necessarily involve baseness or depravity nor does the statute require a showing of such conduct. (
Navarro-Lopez v. Gonzales
AILA Doc. No. 07092667.
CA9 Discusses Aggravated Felony Fraud Provisions in the Context of Federal Tax Crimes
The court held that subscribing to a false statement on, and aiding in the preparation of, a tax return in violation of 26 USC §7206(1) and (2) are aggravated felonies, where the loss to the government exceeds $10,000. (
Kawashima v. Gonzales
AILA Doc. No. 07092666.
CA9 Finds Arizona Aggravated DUI a Crime Involving Moral Turpitude
A violation of Arizona Revised Statutes §28-1381(A)(1), driving under the influence aggravated by operating a vehicle without a valid license, is a crime involving moral turpitude. (
Marmolejo-Campos v. Gonzales
AILA Doc. No. 07092665.
CA9 Holds Smuggling Continues Until the Smuggler Ceases to Transport Individuals
CA9 held that smuggling under INA §212(a)(6)(E)(i) continues until the transporter ceases to carry the individuals, and found that Petitioner knowingly aided and abetted the smuggling, thus preventing good moral character for suspension of deportation. (
Covarrubias v. Gonzales
AILA Doc. No. 07061167.
CA9 Refuses to Allow FFOA Treatment Where Pretrial Diversion Was Previously Granted
The court held that Petitioner could not be considered a “first time offender” when ,in a previous arrest for drug possession, he was granted “pretrial diversion” under a state rehabilitation scheme that did not require him to plead guilty. (
Melendez v. Gonzales
AILA Doc. No. 07092664.
CA9 Finds IJ Should Consider Asylum Claim from Small Child’s Perspective
The court found that the IJ erred in not looking at the events from the perspective of Petitioners who were children at the time of the past harm. (
Hernandez-Ortiz v. Gonzales
AILA Doc. No. 07091868.
CA9 Finds Cambodian Prison Guard Not Subject to Persecutor Bar to Asylum
The court found that a Cambodian prison guard, who unlocked doors to prisoners’ cells based on instructions from superiors and led them back to their cells after interrogations, was not subject to the persecutor bar to asylum and withholding. (
Im v. Gonzales
AILA Doc. No. 07091867.
CA9 Finds Conditional Parolee under INA §236(a) Ineligible for Adjustment of Status
The court held that a person who is conditionally paroled under INA §236(a) is not “paroled into the United States” for purposes of adjustment of status under INA §245(a). (
Ortega-Cervantes v. Gonzales
AILA Doc. No. 07091766.
CA9 Remands for Proper Country of Removal; Refuses to Rule on W/H and CAT
CA9 found that IJ did not follow the proper steps under
and erred in designating Ethiopia as the country of removal. It refused to rule on the withholding and CAT claims because each presumes removal to Ethiopia. (
Hadera v. Gonzales
AILA Doc. No. 07090768.
CA9 Discusses Drug Trafficking as Particularly Serious Crime Bar to Withholding
CA9 held that the AG did not exceed his authority by creating a strong presumption that drug trafficking offenses constitute particularly serious crimes in Matter of Y-L-, but found that the BIA erred in applying Y-L- to a plea made prior to the decision. (
Miguel-Miguel v. Gonzales
AILA Doc. No. 07090473.
CA9 Finds Petitioner Eligible for Cancellation Based on Inconclusive Record of Conviction
The court found that in submitting a record of conviction that is inconclusive as to the exact nature of his conviction, Petitioner met his burden of proving that he was not convicted of an aggravated felony for purposes of cancellation of removal. (
Sandoval-Lua v. Gonzales
AILA Doc. No. 07090472.
CA9 Says INA §101(a)(13) May Not be Applied Retroactively to LPRs With Pre-IIRAIRA Guilty Pleas
The court held that IIRAIRA's new definition of “admission” abrogated the Fleuti doctrine, as derived from the former definition of “entry.” However, the new INA §101(a)(13) may not be applied retroactively to LPRs who pled guilty pre-IIRAIRA. (
Camins v. Gonzales
AILA Doc. No. 07090471.
CA9 Upholds 8 CFR §212.7(d) and Allows its Retroactive Application in Denial of §212(h) Waiver
The court held that 8 CFR §212.7(d)'s heightened hardship standard for §212(h) cases involving a “violent or dangerous” crime, is a permissible exercise of AG authority and may be applied to convictions that occurred before the effective date of the regulation. (
Mejia v. Gonzales
AILA Doc. No. 07090469.
CA9 Finds Sworn Affidavit Not Required for Rescission of In Absentia Removal Order
The court held that Petitioner’s pro se letter, along with other circumstantial evidence, was sufficient to overcome the presumption of service and to demonstrate that she did not receive notice for purposes of rescinding her in absentia removal order. (
Sembiring v. Gonzales
AILA Doc. No. 07090468.
CA9 Finds District Court Jurisdiction Over Narrow Claim of Ineffective Assistance of Counsel
CA9 held that the district court has jurisdiction over a habeas petition claiming ineffective assistance of counsel that arises from an attorney’s failure to file a timely petition for review, because the claim does not require review of a final order. (
Singh v. Gonzales
AILA Doc. No. 07090467.
CA9 Finds Jurisdiction to Review Due Diligence Claim for Tolling of Motion to Reopen Deadline
The court found that the question of whether Petitioner acted with due diligence for purposes of equitable tolling of the motion to reopen deadline was a reviewable mixed question of law and undisputed fact. (
Ghahremani v. Gonzales
AILA Doc. No. 07082066.
CA9 Finds IIRAIRA’s Repeal of Suspension of Deportation Impermissibly Retroactive
CA9 used an objective reliance test to hold that one who had been convicted of a potentially deportable offense would reasonably have relied on suspension when she applied for naturalization. Thus its repeal was impermissibly retroactive as to her. (
Hernandez De Anderson v. Gonzales
AILA Doc. No. 07081360.
CA9 Rejects Polygraph Results and Medical Exam in MTR Indian Asylum Claim
CA9 held that polygraph evidence is not evidence that was previously unavailable within the meaning of 8 CFR §1003.2(c). The court also refused to consider a medical report regarding Petitioner’s scars for the same reason. (
Goel v. Gonzales
AILA Doc. No. 07072761.
CA9 Rejects Negative Inference without Credibility Finding in Asylum Claim
The court found the IJ erred in relying on the negative inference drawn from Petitioner’s refusal to allow access to his Canadian immigration file. The court held that the IJ failed to make an express credibility determination, or to analyze Petitioner’s claim. (
Singh v. Gonzales
AILA Doc. No. 07072468.
Matter of Blake
, Denies §212(c) Relief Based on Comparable Grounds Rule
CA9 upheld the BIA’s decision in
Matter of Blake
, finding Petitioner ineligible under former INA §212(c) because the aggravated felony ground of deportability for sexual abuse of a minor has no comparable ground of inadmissibility in INA §212(a). (
Abebe v. Gonzales
AILA Doc. No. 07071673.
CA9 Finds Forced Abortion is Broad Concept; Does Not Require Physical Force
The court held that Petitioner suffered persecution where his wife was forced by her employer to abort her pregnancy, and she cried during the abortion that was performed without anesthesia. The court held he also qualified for withholding. (
Tang v. Gonzales
AILA Doc. No. 07071960.
CA9 Finds Jurisdiction Over Habeas Appeal Filed After REAL ID’s Enactment
The court held that a habeas petition is “pending” in district court within the meaning of §106(c) of the REAL ID Act, when the notice of appeal was not filed at the time the Act was enacted, but was filed within the 60-day period. (
Singh v. Gonzales
AILA Doc. No. 07070968.
CA9 Holds USC Grandchild is Not a Qualifying Relative for Cancellation of Removal
CA9 held that a U.S. citizen grandchild, in the lawful custody of non-citizen grandparents, does not meet the statutory definition of “child” for purposes of cancellation of removal, nor do they qualify by virtue of a de facto parent-child relationship. (
Moreno-Morante v. Gonzales
AILA Doc. No. 07070564.
CA9 Dismisses Habeas Challenge to Length of Detention as Moot
Petitioner’s habeas claim which challenged only the length of his detention and did not raise any issues with respect to the lawfulness of the deportation order, was rendered moot upon his removal from the United States. (Abdala v. INS, 6/4/07)
AILA Doc. No. 07062969.
CA9 Discusses “Paying Down” the Loss to the Victims of a Fraud Offense
The court held that Petitioner, who repaid the stolen money to her victims only after her fraudulent scheme was discovered, cannot “pay down” the victims' loss below the $10,000 threshold so that her offense no longer qualifies as an aggravated felony. (
Kharana v. Gonzales
AILA Doc. No. 07061168.
CA9 Holds Time Served Under Recidivist Statute May Count Toward Prison Term for §212(c) Purposes
The court held that an IJ may include time served under a recidivist statute or other sentencing enhancement when considering eligibility for §212(c) relief. (
Saravia-Paguada v. Gonzales
AILA Doc. No. 07053166.
CA9 Says Exclusion Order and Removal Interrupt Continuous Physical Presence
The court held that the accrual of Petitioner’s continuous physical presence for purposes of cancellation of removal was terminated when he was ordered excluded and removed from the United States. (
Landin-Zavala v. Gonzales
AILA Doc. No. 07053165.
CA9 Upholds Constitutionality of GMC Regulation in Naturalization Proceedings
CA9 held 8 CFR §316.10(b)(3)(iii), which permits an adverse moral character finding for naturalization purposes based on acts that occurred within the relevant statutory period even if the conviction was entered outside the statutory period, is not ultra vires. (
U.S. v. Dang
AILA Doc. No. 07053164.
CA9 Says Waiver of Inadmissibility Does Not Waive Continuous Residence for Legalization
CA9 upheld the denial of Petitioner’s legalization application. A waiver of inadmissibility would waive INA §212(a)(9)(A)(ii)(II) for departing under a deportation order, but would not cure the resulting lack of continuous residence since 1/1/82. (
Pedroza-Padilla v. Gonzales
AILA Doc. No. 07052171.
CA9 Finds BIA Error in AWO Where Petitioner Alleged “Procedural Irregularity” in IJ Proceedings
The court held that the BIA erred when it summarily affirmed the IJ’s decision, and thereby failed to consider and decide Petitioner’s claim that his statutory and constitutional right to counsel was violated. (
Montes-Lopez v. Gonzales
AILA Doc. No. 07052170.
CA9 Holds §315 Bar to Citizenship Applies Only to Alienage Exemption from Compulsory Military Service
CA9 held that INA §315’s bar to naturalization for seeking exemption from military service based on alienage applies only to compulsory service and not to a person who voluntarily enlists, but is later honorably discharged at his request on the basis of alienage. (
Gallarde v. INS
AILA Doc. No. 07052169.
CA9 En Banc Court Finds Jurisdiction to Review Removal Orders “Reinstated” by the BIA
Molino-Camacho v. Ashcroft
, the en banc court found jurisdiction over a petition for review where the BIA reversed the IJ’s grant of asylum and ordered Petitioner to voluntarily depart. (
Lolong v. Gonzales
AILA Doc. No. 07052166.
CA9 Holds Expedited Removal Order Interrupts Continuous Physical Presence
The court held that an expedited removal order interrupts continuous physical presence in the U.S. for purposes of cancellation of removal under INA §240A(b)(1). (
Juarez-Ramos v. Gonzales
AILA Doc. No. 07052165.
CA9 Finds Ukrainian Whistleblower Was Persecuted for his Political Opinion
The court held that the BIA erred in finding that Petitioner’s whistleblowing was not political opinion. The court found his whistleblowing was political because it was directed “toward a government institution.” (
Fedunyak v. Gonzales
AILA Doc. No. 07041064.
CA9 Holds California Stalking Conviction is Not a “Crime of Violence”
On petition for rehearing, the court held that Petitioner’s conviction for stalking under California Penal Code §646.9 does not qualify as a crime of violence under 18 USC §16(b), and is therefore, not an aggravated felony. (
Malta-Espinoza v. Gonzales
AILA Doc. No. 07032664.
CA9 Upholds IJs Adverse Credibility Finding; Dissent Chastises Majority
The court upheld the IJ’s adverse credibility finding based on an inconsistency regarding a crucial date, the implausibility of Petitioner’s story and propensity for dishonesty. (
Don v. Gonzales
AILA Doc. No. 07031262.
CA9 Revises its Interpretation of “Questions of Law” Under INA §242(a)(2)(D)
On rehearing, the court held that its jurisdiction over “questions of law” under INA §242(a)(2)(D) includes not only issues of statutory interpretation, but alsothe application of statutes or regulations to undisputed facts. (
Ramadan v. Gonzales
AILA Doc. No. 07030873.
CA9 En Banc Court Upholds Validity of Reinstatement Regulations at 8 CFR §241.8
The en banc court reversed the 3-judge panel decision and held that 8 CFR §241.8, which delegates authority to reinstate prior removal orders to immigration officers, and does not require a hearing before an IJ, comports with due process. (
Morales-Izquierdo v. Gonzales
AILA Doc. No. 07030872.
CA9 Finds Petitioner Was Denied His Statutory Right to Counsel
The court held that Petitioner did not properly waive his right to counsel and that he was denied this right when the IJ refused to continue proceedings to allow him to appear with his attorney. (
Hernandez-Gil v. Gonzales
AILA Doc. No. 07030871.
CA9 Holds Leave Without Pay Does Not Constitute Continued Employment in Violation of IRCA
(697 KB - 3/6/2007)
Placing an employee on leave without pay does not constitute continuing to employ an alien in violation of IRCA unless that individual is continuing to perform a service for the employer for which it is providing remuneration. (
Incalza v. Fendi North America, Inc.
AILA Doc. No. 07030690.
CA9 Finds Petitioner Was Not Properly Served with Order to Show Cause (Updated 5/21/07)
CA9 held that the govt failed to show that Petitioner or a responsible person at his address signed the certified mail receipt for his order to show cause.
Matter of Grijalva
permits a presumption of effective service for hearing notices, not OSCs. (
Chaidez v. Gonzales
AILA Doc. No. 07022768.
CA9 Holds Res Judicata Bars Initiation of Second Removal Proceedings
The court held that the doctrine of res judicata bars the government from initiating a second deportation case on the basis of a charge that could have been brought in the first case when, due to a change in the law, the first case was dismissed. (
Bravo-Pedroza v. Gonzales
AILA Doc. No. 07022767.
CA9 Finds “Other Resistance” in CPC Cases Does Not Require Motivation Proof
The court found that to fit within “other resistance to a coercive population control" (CPC), an applicant must show that the government was enforcing a CPC program and the applicant resisted the program. (
Lin v. Gonzales
AILA Doc. No. 07022066.
CA9 Finds Jurisdiction to Review Withholding and CAT Claim despite CIMT
The court rejected the government’s argument that the AG has absolute discretion in determining whether any crime is a “particularly serious crime,” finding that Petitioner had presented a question of law with regard to his withholding and CAT claims. (
Morales v. Gonzales
AILA Doc. No. 07021461.
CA9 Refuses to Equitably Toll the Filing Deadline for Untimely Motion to Reopen
The court found that Petitioner did not act diligently by delaying the filing of a motion to reopen until he had received the response to his request to join in the motion. The court held that equitable tolling of the deadline was not warranted. (
Valeriano v. Gonzales
AILA Doc. No. 07021372.
CA9 Holds AZ Domestic Assault Statute Does Not Categorically Involve Moral Turpitude
The court held that Arizona’s misdemeanor domestic assault statute requires neither the willful intent nor the type of injury that is necessary for domestic assault to qualify as a categorical crime involving moral turpitude. (
Fernandez-Ruiz v. Gonzales
AILA Doc. No. 07021371.
CA9 Rejects Retroactivity Challenge to “Stop-Time” Rule Under INA §240A(d)(1)(B)
CA9 held that INA §240A(d)(1)(B), which stops accrual of continuous residence upon commission of certain crimes for purposes of cancellation, is not impermissibly retroactive where the petitioner was not eligible for relief at the time of his plea. (
Valencia-Alvarez v. Gonzales
AILA Doc. No. 07020267.
CA9 Upholds USCIS’s Denial of Multinational Manager Petition
The court held that while a company’s small size may be considered as one factor in determining whether its operations are substantial enough to support a manager, the record indicated that USCIS did not exclusively rely on this factor in denying the petition. (
Family, Inc. v. USCIS
AILA Doc. No. 07020266.
CA9 Amends its Hosseini Decision with Footnote on Confidentiality
At govt request, the court amended its 9/28/06 decision to include a footnote which states: “The government points out that it is precluded by regulation from disclosing any information relating to [Petitioner’s] asylum application ‘without written consent.’” (
Hosseini v. Gonzales
AILA Doc. No. 07013176.
CA9 Allows Motion to Reopen Filed After Removal and Illegal Reentry
The court held that 8 CFR §1003.23(b)(1), which precludes a person who is “the subject of” proceedings from filing a motion to reopen after departing the U.S., did not bar Petitioner’s motion after he was removed and reentered illegally. (
Lin v. Gonzales
AILA Doc. No. 07013172.
CA9 Transfers Case to BIA to Consider Contested Issues and Conduct Factfinding
Under INA §242(b)(4)(A), the court cannot rely on the district court’s record in reviewing habeas cases converted to petitions for review. As there was also no administrative record, the court transferred the case to the BIA to resolve contested issues. (
Rafaelano v. Wilson
AILA Doc. No. 07012314.
CA9 Finds a Refugee Is Subject to Removal Even if Status Is Not Terminated
CA9 concluded that, based on a plain reading the statute and deferring to the BIA’s interpretation in
In re Smirko
, a person who arrives in the U.S. as a refugee may be removed even if refugee status has never been terminated under INA §207(c)(4). (
Kaganovich v. Gonzales
AILA Doc. No. 07011764.
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