2005

Government Decides not to Seek Rehearing in Bona v. Gonzales (12/7/2005)
On December 5, 2005, the government notified the Court of Appeals for the Ninth Circuit that it would not seek rehearing in the landmark case Bona v. Ashcroft, 425 F.3d 663 (9th Cir. 2005). AILF appeared as amicus in Bona, where the Court struck down the regulation that bars a parolee, as an “arriving alien,” from adjusting status if he or she is in removal proceedings.
AILA Doc. No. 05120714.
CA9 Addresses One-Year Asylum Bar Post-REAL ID (12/7/2005)
The court lacked jurisdiction over whether the IJ erroneously found that Petitioner failed to demonstrate “changed circumstances,” which would excuse her untimely asylum application, because the alleged IJ error did not raise a legal issue. Rather, the court said it involved a “predominately factual” determination. (Ramadan v. Gonzales, 11/2/05).
AILA Doc. No. 05120713.
CA9 Awards EAJA Fees (12/7/2005)
The Court determined that Petitioner was entitled to recover fees under EAJA, but declined to adopt a per se rule that immigration law is a specialty area warranting enhanced hourly rates. (Thangaraja v. Gonzales, 11/3/05). AILA Doc. No. 05120711.
AILA Doc. No. 05120711.
CA9 Overturns Negative Credibility Determination of Chinese Christian & Finds Past Persecution and Well-Founded Fear (12/2/2005)
The Court found that minor discrepancies were insufficient to support an adverse credibility finding. In addition, the Court found that the record compelled a finding of past persecution and a well-founded fear of future persecution on account of Petitioner’s Christian religion. (Quan v. Gonzales, 11/7/05). AILA Doc. No. 05120561.
AILA Doc. No. 05120261.
CA9 Instructs Attorneys to Give Court Notice of Reopened Proceedings (11/30/2005)
Where the BIA reopens proceedings while a petition for review is pending, the parties must notify the court, the Ninth Circuit advised. Reopening usurps the court’s jurisdiction by eliminating the final order which was the subject of the petition for review. (Timbreza v. Gonzales, 6/7/05). AILA Doc. No. 05113012.
AILA Doc. No. 05113012.
CA9 Says Finding of Inadmissibility for Alien Smuggling Requires an Affirmative Act of Assistance (11/16/2005)
The court held that a finding of inadmissibility for alien smuggling under §212(a)(6)(E)(i) requires some form of affirmative assistance to the illegally entering alien. Knowledge alone is not enough. (Altamirano v. Gonzales, 10/31/05). AILA Doc. No. 05111660.
AILA Doc. No. 05111660.
CA9 Critical of Own Precedent Decisions & Says REAL ID Act Will Help Clarify Matters in Future Asylum Cases (10/28/2005)
The Court held that Petitioner’s testimony was not inconsistent, not implausible and not evasive based on the record. The Court expressed concern over its rules that obscure clear standards and stated its relief that the REAL ID Act would clarify the grounds on which an IJ could make an adverse credibility determination. (Jibril v. Gonzales, 9/19/05). AILA Doc. No. 05102811.
AILA Doc. No. 05102811.
CA9 Upholds Regulation Preventing Arriving Aliens from Renewing AOS Applications in Removal Proceedings (10/25/2005)
The court found that the regulation, which bars arriving aliens from renewing a previously denied adjustment application in removal proceedings only, was not inconsistent with INA §245(a). (Jia-Jin Jiang v. Gonzales, 9/23/05).
AILA Doc. No. 05102560.
CA9 Holds BIA Abused Its Discretion in Denying Motion to Reopen Indian Asylum Claim (10/17/2005)
The Court found that Petitioner established prima facie eligibility for asylum by showing other family members have been harmed since her asylum hearing. The Court rejected the BIA’s characterization of Petitioner’s affidavit as “self-serving.” (Bhasin v. Gonzales, 9/1/05). AILA Doc. No. 09101768.
AILA Doc. No. 05101768.
CA9 Reverses IJ & Criticizes Her Predisposition to Discredit Testimony of Asylum-Seekers (10/17/2005)
The Court held that substantial evidence did not support the IJ’s negative credibility determination. The Court noted that it had reversed the IJ’s credibility determination in several previous cases and instructed the BIA to remand the case to a different IJ. (Smolniakova v. Gonzales, 9/7/05). AILA Doc. No. 05101760.
AILA Doc. No. 05101760.
CA9 Strikes Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings (10/7/2005)
Adopting the rationale of the First Circuit in Succar v. Ashcroft, the court held that 8 C.F.R. §1245.1(c)(8) is invalid because it directly conflicts with INA §245(a) and “creates absurd result when viewed in light of the larger statutory scheme.” (Bona v. Gonzales, 9/30/05). AILA Doc. No. 05100769.
AILA Doc. No. 05100769.
CA9 Follows Succar v. Ashcroft and Strikes Down the Regulation Barring “Arriving Aliens” in Removal Proceedings from Adjusting Status (10/5/2005)
In a precedent decision, CA9 joined two other federal appeals courts and invalidated 8 C.F.R. § 245.1(c)(8) after finding that it conflicted with INA § 245(a). Bona v. Gonzales, No. 03-71596. The invalidated regulation bars all “arriving aliens” – which includes the majority of parolees – from adjusting status if they are in removal proceedings. AILA Doc. No. 05100570.
AILA Doc. No. 05100570.
CA9 Withdraws Somalian Class Action Decision; Orders Remand (9/16/2005)
The court withdrew its prior precedent decision in light of the Supreme Court’s decision in Jama v. ICE, but remanded the case to district court with instructions “to vacate the injunction and to reconsider the class certification in light of the Supreme Court's decision in Padilla.” (Ali v. Gonzales, 8/26/05). AILA Doc. No. 05091661.
AILA Doc. No. 05091661.
CA9 Cordes v Gonzalez Vacated (Updated 4/3/08) (4/3/2008)
On February 25, 2008, the Ninth Circuit vacated the panel opinion from 2005. The court stated that the BIA sua sponte reopened the proceedings, vacated the order of removal and remanded the case to the immigration judge. As a result of the remand, the court stated that they lost jurisdiction of the case. Additionally, the court distinguished Cordes from Lolong. AILA Doc No 05091660.
AILA Doc. No. 05091660.
CA9 Finds that Mexican Homosexual with AIDS Is Eligible for Asylum (9/12/2005)
In finding eligibility for asylum, the Court held that Petitioner, a homosexual from Mexico who was forced by a police officer to perform sex acts, was subjected to past persecution. The Court further held that it would be unreasonable for a homosexual with AIDS to relocate within Mexico. (Boer-Sedano v. Gonzales, 8/12/05)
AILA Doc. No. 05091262.
CA9 Finds that IJ Must Not Ignore Inconsistencies Simply Because They Weaken an Asylum Claim (9/9/2005)
The Court found that its cases do not mandate that an IJ ignore repeated and blatant inconsistencies that weaken a claim for asylum. Rather, the Court found that when inconsistencies are accompanied by other indications of dishonesty, an adverse credibility determination may be supported by substantial evidence. (Kaur v. Gonzales, 8/11/05). AILA Doc. No. 05090961.
AILA Doc. No. 05090961.
CA9 Rules Against Family Firmly Resettled in Canada in Effort to Discourage Forum Shopping (9/7/2005)
The Court held that a family who abandoned its refugee application in Canada after residing there for 4 years, who enjoyed free health care, public schooling and work authorization, was presumed to be firmly resettled. The Court found that forum shopping undermined the integrity of the international asylum regime. (Maharaj v. Gonales, 8/4/05). AILA Doc. No. 05080761.
AILA Doc. No. 05080761.
CA9 Finds Russian Jew’s Cumulative Harm Amounted to Persecution (8/31/2005)
The Court found that the sustained economic pressure faced by Petitioner, the nature and extent of the physical violence she experienced, and the restrictions on her ability to practice her religion amounted to persecution. The Court found that the cumulative effect of this harm compelled a finding of persecution. (Krovota v. Gonzales, 8/4/05). AILA Doc. No. 05083161.
AILA Doc. No. 05083161.
CA9 Construes Pending Habeas Appeal as Timely Filed Petition for Review (8/29/2005)
The court construes pending habeas appeal as a timely filed petition for review, finding this in line with Congressional intent in passing the REAL ID Act. Court declines comment on cases where the pending habeas petition requires further factual development.” (Alvarez-Barajas v. Gonzales, 8/11/05). AILA Doc. No. 05082960.
AILA Doc. No. 05082960.
CA9 Finds that Asylum Hearing of Russian Pentecostal Did Not Comport with Due Process (8/24/2005)
The Court found that the IJ’s conduct was prejudicial and declared that Petitioner was denied due process. The Court found that the IJ excluded the testimony of several key witnesses, including Petitioner’s grandmother and an expert who could have affected the outcome of the proceedings. (Zolotukhin v. Gonzales, 8/3/05). AILA Doc. No. 05082466.
AILA Doc. No. 05082466.
CA9 Finds Regulation Barring BIA Review of Motions to Reopen After Departure Does Not Apply to Certain Individuals (7/21/2005)
Based on the plain language of 8 C.F.R. section 1003.2(d), the court concluded that it does not apply to an individual who first departs the U.S., then becomes the subject of removal proceedings, returns, and then files a motion to reopen. (Gulzar Singh v. Gonzales, 6/24/05). AILA Doc. No. 05072168.
AILA Doc. No. 05072168.
CA9 Finds Adverse Credibility Determination Not Supported by Substantial Evidence; Rejects Finding of Changed Circumstances (7/7/2005)
The Court found that the false statement made by Petitioner was unrelated to his asylum claim and could not serve as a basis for a negative credibility determination. The Court also rejected the IJ’s finding that conditions in the Philippines had changed because the IJ’s cite did not reference the NPA, the group Petitioner feared. (Marcos v. Gonzales, 6/9/05). AILA Doc. No. 05070767.
AILA Doc. No. 05070767.
CA9 Denies Asylum Finding Victim Failed to Show Honduran Government is Unable or Unwilling to Control Rape (6/21/2005)
The Court found that the Honduran asylum-seeker who had been raped by a member of a local criminal gang failed to meet her burden of proof. The Court declined to overturn the IJ’s decision because Petitioner had not shown that the Honduran government was unable or unwilling to control rape in Honduras. (Castro-Perez v. Gonzales, 6/1/05). AILA Doc. No. 05062115.
AILA Doc. No. 05062115.
En Banc CA9 Reconciles Intra-Circuit Conflict in Finding that a Family May Constitute a “Particular Social Group” (6/21/2005)
The Court overruled prior decisions that expressly or implicitly held that a family may not constitute a “particular social group.” The Court held that the South African Petitioners were targeted on account of their family relationship, but remanded the case to the BIA to determine, inter alia, if the harm suffered amounted to persecution. (Thomas v. Gonzales, 6/3/05). Doc. No. 05062113.
AILA Doc. No. 05062113.
CA9 Holds that a Child of a Parent Forcibly Sterilized Is Not Automatically Eligible for Asylum (6/16/2005)
Court held that a child is not automatically eligible for asylum because the child’s parent was forcibly sterilized. The Court also found, however, that the IJ’s determination that the child had not suffered persecution on account of a protected ground was not supported by substantial evidence and remanded the case. (Zhang v. Gonzalez, 5/26/05). AILA Doc. No. 05061664.
AILA Doc. No. 05061664.
CA9 Claims Jurisdiction to Examine Circumstances Causing Late Filing of Asylum Claim When IJ & BIA Fail to Do So (6/13/2005)
The Court found that the IJ and BIA had failed to address Petitioner’s argument that his failure to file within one year was due to extraordinary circumstances remanded. The Court also overturned the IJ’s ruling that Petitioner was targeted for purely personal reasons, holding the ruling was not supported by substantial evidence. (Sagaydak v. Gonzales, 5/4/05). AILA Doc. No. 05061363.
AILA Doc. No. 05061363.
CA9 Reverses CAT Denial and Reiterates Test for Determining “Acquiescence” of a Public Official (6/13/2005)
With regard to Petitioners’ CAT claim, the Court rejected the BIA’s test of acquiescence set forth in Matter of S-V- and reiterated that the test in the Ninth Circuit is that Petitioners “need only prove that the government is aware of the third party’s tortuous conduct and does nothing to intervene to prevent it.” (Ochoa v. Gonzalez, 5/16/05). AILA Doc. No. 05061362.
AILA Doc. No. 05061362.
CA9 Instructs Courts on REAL ID(8 KB - 6/3/2005)
Notice from the 9th Circuit Court of Appeals to district courts within the circuit, providing instructions on transfers of cases in the aftermath of the Real ID Act of 2005. AILA Doc. No. 05060371.
AILA Doc. No. 05060371.
CA9 Remands VAWA Cancellation Case (6/3/2005)
The court found that the IJ’s credibility determination was skewed by his own stereotypical assumptions about domestic violence and further found that the IJ’s refusal to allow expert testimony to address those credibility concerns violated due process. (Lopez-Umanzor v. Gonzales, 5/6/05). AILA Doc. No. 05060361.
AILA Doc. No. 05060361.
CA9 Finds Negligent Manslaughter is Not a Crime of Violence (6/1/2005)
Applying the rationale of the Supreme Court in Leocal v. Ashcroft, the court found that a California conviction for gross vehicular manslaughter while intoxicated was not a crime of violence because the statute does not require the active use of force to inflict injury. (Lara-Cazares v. Gonzales, 5/23/05).
AILA Doc. No. 05060165.
CA9 Addresses REAL ID Judicial Review Provisions (6/1/2005)
Following the 5/11/05 enactment of the REAL ID Act of 2005, the first appellate court has issued a decision addressing the Act’s amendments to the judicial review provisions of INA § 242. The court reviewed the merits of a petition for review filed by an individual with criminal convictions. (Fernandez-Ruiz v. Gonzales, 5/31/05). AILA Doc. No. 05060164.
AILA Doc. No. 05060164.
CA9 Finds BIA Has Authority to Extend Notice of Appeal Deadline in “Rare Circumstances” (6/1/2005)
Where Petitioner made a prima facie showing that overnight mail carrier failed to timely deliver the notice of appeal, the court found that the BIA abused its discretion when it failed to consider whether Petitioner qualified for the “rare circumstances” exception. (Oh v. Gonzales, 5/2/05). AILA Doc. No. 05060163.
AILA Doc. No. 05060163.
CA9 Holds Disabled Russian Child and His Parents Constitute a “Particular Social Group” (5/9/2005)
The Court held that a disabled child and his parents are eligible for asylum and entitled to withholding of removal because the harm to the child amounts to persecution. The Court also found that the harm is persecution to the parents as well, because the child and his parents constitute a particular social group. (Tchoukhrova v. Gonzales, 4/21/05). AILA Doc. No. 05050975.
AILA Doc. No. 05050975.
CA9 Questions Reliability of Asylum Officer’s Assessment; Finds, Standing Alone, Insufficient Evidence to Support Adverse Credibility Finding (5/9/2005)
The Court determined that none of the four reasons cited by the IJ were valid grounds for making an adverse credibility determination and, in particular, pointed out the unreliability of the AO’s Assessment to Refer. The Court also cited various studies that confirm the difficulty individuals have in remembering chronologies and dates. (Singh v. Gonzales, 4/13/05). AILA Doc. No. 05050974.
AILA Doc. No. 05050974.
CA9 Finds Torture of Soldier by Eritrean Army Not Justified by State of War (5/9/2005)
The Court granted withholding of removal and CAT relief to an Eritrean soldier who was tortured for his opposition to the war with Sudan. The Court found that as a deserter he had a well-founded fear of future harm, but remanded his asylum claim to the AG for the exercise of discretion. The Court also asked for a new IJ to be assigned. (Nuru v.Gonzales, 4/21/05). AILA Doc. No. 05050973.
AILA Doc. No. 05050973.
CA9 Refuses to Review “Literally Incomprehensible” Asylum Opinion by IJ (5/9/2005)
The Court found the IJ’s decision, which the BIA affirmed without opinion, to be “literally incomprehensible.” The Court noted that the IJ made confusing statements in his opinion regarding credibility, past persecution, future persecution, country conditions and internal relocation. The Court remanded the claim to the BIA. (Recinos de Leon v. Gonzales, 3/11/05). AILA Doc. No. 05050967.
AILA Doc. No. 05050967.
CA9 Finds Chinese Christian Woman from Indonesia Established Well-Founded Fear of Future Persecution (Updated 5/21/07) (5/9/2005)
The Court reversed the BIA’s determination that there was no evidence that the Indonesian government was unable or unwilling to control the perpetrators of religious and ethnic violence. In doing so, the Court relied on the voluminous record, including State Department reports and expert testimony. (Lolong v. Gonzales, 3/18/05). AILA Doc. No. 05050964.
AILA Doc. No. 05050964.
CA9 Finds Denial of Right to Counsel (5/4/2005)
The court found that the IJ violated Petitioner’s right to counsel because he failed to afford him a reasonable time to obtain counsel. Although what constitutes a reasonable time is “fact-specific,” the court said that practical considerations, such as detention status and English language ability, should inform the determination. (Biwot v. Gonzales, 4/14/05). AILA Doc. No. 05050410.
AILA Doc. No. 05050410.
CA9 Grants Petition for Review of Asylum Seeker whose Wife Was Forcibly Sterilized Finding, as a Matter of Law, Claim Could Not Be Rebutted by Changed Conditions or Relocation (4/7/2005)
The Court held that Petitioner, who suffered past persecution due to the involuntary sterilization of his wife, was entitled to withholding of removal. The Court found that sterilization was a permanent and continuing harm and it was not possible, as a matter of law, to eliminate his well founded fear with changed conditions or relocation. (Qu v. Gonzales, 3/8/05).
AILA Doc. No. 05040770.
CA9 Holds Failure to Raise Past FGM in Asylum Claim Constitutes Ineffective Assistance of Counsel (4/7/2005)
Petitioner suffered from FGM as a girl in Somalia. She was represented by counsel who failed to raise FGM as a part of her initial asylum claim. The Court found that the failure to do so was ineffective assistance, holding FGM amounts to persecution on account of her particular social group, which could be defined as Somalian females. (Mohammed v. Gonzales, 3/10/05). AILA Doc No 05040761.
AILA Doc. No. 05040761.
CA9 Holds “All Alien Homosexuals” Are Members of a Particular Social Group in Granting Petition for Review for Gay Lebanese Man (4/6/2005)
Court finds that Petitioner, a Lebanese national, established a well-founded fear of persecution because of his homosexuality, because he was “outed” as a homosexual, and because of his AIDS infection. In so finding the Court held that “all alien homosexuals” are members of a particular social group. (Karouni v. Gonzales, 3/7/05). AILA Doc. No. 05040668.
AILA Doc. No. 05040668.
CA9 Reverses Removability Finding Based on Voter Fraud (4/4/2005)
The court held that Petitioner was not removable for having voted in violation of Hawaii law because she did not “knowingly” commit voter fraud and, thus, lacked the requisite mental state for violating the Hawaiian statute at issue. (McDonald v. Gonzales, 3/2/05). AILA Doc. No. 05040465.
AILA Doc. No. 05040465.
CA9 Holds that Filing a Timely Motion to Reopen and Stay Request Tolls the Voluntary Departure Period (3/17/2005)
Where a person files a motion to reopen and request for a stay of removal or voluntary departure prior to the expiration of the voluntary departure period, the court held that the departure period is tolled while the BIA is adjudicating the motion. (Azarte v. Ashcroft, 1/18/05). AILA Doc. No. 05031713.
AILA Doc. No. 05031713.
CA9 Says Hearsay Evidence From Self-Interested Witness Insufficient to Prove Removability (3/11/2005)
Petitioner’s removability for “alien smuggling” was not established by “clear, unequivocal and convincing evidence” because the only information concerning his activities was contained in the hearsay affidavit of a self-interested witness. (Hernandez-Guadarrama v. Ashcroft, 01/10/05). AILA Doc. No. 05031161.
AILA Doc. No. 05031161.
CA9 Orders Evidentiary Hearing on Unlawful Arrest and Forced Departure Claims (2/9/2005)
If border agents unlawfully arrested and forced petitioner to depart while deportation proceedings were pending, as he alleged, he can apply for suspension of deportation and INS would be estopped from using his subsequent attempted reentry to render him removable, the court ruled. (Salgado-Diaz v. Ashcroft, 1/31/05). AILA Doc. No. 05020967.
AILA Doc. No. 05020967.
CA9 Remands BIA’s Motion to Reopen Due to Lack of Explanation for its Basis (2/9/2005)
The court held that the BIA abused its discretion when it denied petitioner’s motion to reopen without explanation. In so holding, court rejected the government’s position that an explanation was not required and affirmed case law requiring the BIA to provide specific and cogent reasons for its decisions. (Movsisian v. Ashcroft, 1/20/05). AILA Doc. No. 05020966.
AILA Doc. No. 05020966.
CA9 Looks to Restitution Order to Determine Conviction for Welfare Fraud is Aggravated Felony (1/27/2005)
The Court held that the Immigration Judge properly looked to the restitution order contained in Petitioner’s plea agreement to determine that her conviction for welfare fraud involved more than $10,000 in loss to the State of California and, thus, constituted an aggravated felony under INA § 101(a)(43)(M)(i). (Ferreira v. Ashcroft, 12/1/04). AILA Doc. No. 05012764.
AILA Doc. No. 05012764.
CA9 Concludes Record of Conviction for “Grand Theft” Under California Law is Aggravated Felony (1/27/2005)
Though the California law under which Petitioner was convicted for “Grand Theft” proscribed conduct broader than that constituting “theft” for aggravated felony under the INA, Petitioner’s record of conviction showed that he pled guilty to all of the elements of the generic aggravated felony “theft” offense. (Martinez-Perez v. Ashcroft, 12/29/04). AILA Doc. No. 05012761.
AILA Doc. No. 05012761.
CA9 Says INA Does Not Bar Judicial Review of Denial of Withholding of Removal By One With Aggravated Felony Conviction (1/27/2005)
The Court held it had jurisdiction to review BIA’s denial of Petitioner’s application for withholding of removal, notwithstanding provisions of INA § 242(a)(2)(C), because denial of relief was not predicated on Petitioner’s having suffered a conviction for aggravated felony, but rather on merits of the claim. (Unuakhaulu v. Ashcroft, 12/20/04). AILA Doc. No. 05012760.
AILA Doc. No. 05012760.
CA9 Holds That Incarceration in a County Jail Constitutes Confinement “To a Penal Institution” for the Purposes of INA § 101(f)(7) (1/24/2005)
Petitioner’s incarceration in a county jail for more than 180 days subsequent to a conviction for vehicular manslaughter constituted confinement “to a penal institution” for the purposes of INA § 101(f)(7). (Gomez-Lopez v. Ashcroft, 01/03/05).
AILA Doc. No. 05012462.
CA9 Finds Nevada Conviction For Attempting to Be Under the Influence of THC Is Not A Controlled Substance Offense under INA § 237(a)(2)(B)(i) (1/24/2005)
The Court found that a conviction for “attempting to be under the influence of . . . THC-carboxylic acid” was not a removable offense under INA § 237(a)(2)(B)(i) because it was not established that it was a conviction for an offense other than possession of 30 grams or less of marijuana for personal use. (Prides Medina v. Ashcroft, 01/04/05). AILA Doc. No. 05012460.
AILA Doc. No. 05012460.
CA9 Says CAT Claimants Must Exhaust Administrative Remedies Before Filing Habeas Petitions (1/21/2005)
The Court found that: (1) Petitioner was barred from pursuing a writ of habeas corpus to raise a claim for relief in the form of “deferral of removal” under CAT because MTR was not previously filed; and (2) the time limit for filing MTRs for CAT relief applies to both claims for withholding and deferral of removal. (Huang v. Ashcroft, 12/7/04). AILA Doc. No. 05012162.
AILA Doc. No. 05012162.
CA9 Holds BIA Acted Ultra Vires In Issuing Order of Removal In the First Instance (Updated 5/21/07) (1/13/2005)
The Court held that the BIA exceeded its authority in entering an order of removal in the first instance after reversing the IJ’s grant of discretionary relief. Because the BIA’s order was not a “final order of removal,” the Court lacked jurisdiction to entertain a petition for review under INA § 242. (Molina-Camacho v. Ashcroft, 12/28/04). AILA Doc. No. 05011374.
AILA Doc. No. 05011374.

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