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2008

  • CA9 Overturns One-Year Deadline Denial in Iranian Asylum Case(51 KB - 6/24/2009)
    The court found that it has jurisdiction to consider the timeliness of the asylum application because it was a mixed question of law and fact. The court noted that although there was a discrepancy about Petitioner’s departure date from Iran, the ineluctable conclusion was that he filed within one year. (Khunaverdiants v. Mukasey, 11/18/08). AILA Doc. No. 08120968.
  • CA9 Denies Petition for Rehearing En Banc and Amends Opinion in Kalilu (12/9/2008)
    The court denied the petition for rehearing en banc in this case and made three small amendments to its earlier opinion on eligibility for adjustment of status. The court remanded the determination that Petitioner filed a frivolous asylum application to the BIA in light of Matter of Y-L-. (Kalilu v. Mukasey, 11/20/08). AILA Doc. No. 08120967.
  • CA9 Holds Undisputed Admission of Entry Date Satisfies One-Year Deadline(39 KB - 6/24/2009)
    The court held that it had jurisdiction to determine the timeliness of the asylum application because it raised a question of law. The court held that a judicial admission of an entry date within one year of filing an asylum application was an undisputed fact and established that the application was not time-barred. (Hakopian v. Mukasey, 11/19/08). AILA Doc. No. 08120966.
  • CA9 Remands for Habeas Review of Citizenship Claim Prior to Final Order of Removal(48 KB - 6/24/2009)
    The court reverses the district court’s dismissal for lack of jurisdiction and remands, finding that the petitioner does not have to wait until his removal proceedings are completed and a final removal order is issued before he can secure habeas review of his citizenship claim. (Flores-Torres v. Mukasey, 11/10/08). AILA Doc. No. 08112064.
  • CA9 Finds Violation of 18 U.S.C. § 1015(a) Does Not Require False Statement to be Material as an Element of the Offense(51 KB - 6/24/2009)
    The court affirmed conviction concluding that 18 U.S.C. § 1015(a) does not require that false statements be “material” as an element of the offense. (United States of America v. Youssef, 11/5/08). AILA Doc. No. 08110763.
  • CA9 Finds 245(i) Is Statute of Repose, Not Subject to Equitable Tolling for Ineffective Assistance of Counsel(54 KB - 6/24/2009)
    The court denied the petition for review concluding that the 245(i) deadline operates as a statute of repose, for which equitable tolling based on ineffective assistance of counsel is not available. Does not find due process violation in previous counsel’s failure to comply with filing requirements. (Balam-Chuc v. Mukasey, 10/24/08). AILA Doc. No. 08110567.
  • CA9 Finds Petitioner who Purchased Green Card Does Not Qualify for Equitable Estoppel(44 KB - 6/24/2009)
    The court denies petition for review, finding the petitioner fails to qualify for estoppel as she paid a govt. employee $10K for a fraudulent green card, and was not ignorant of the scheme. Also, finds that as petitioner conceded removability and did not apply for relief from removal, her due process claims are without merit. (Shin v. Mukasey, 10/23/08). AILA Doc. No. 08110560.
  • CA9 Holds Non-Aggravated Felony Crimes Can Be Bars to Asylum and Withholding(137 KB - 6/24/2009)
    The court deferred to the BIA’s interpretation that for purposes of withholding, the INA permits a determination that an applicant’s crime is particularly serious even though the crime is not an aggravated felony. In addition, a non-aggravated felony may bar asylum without first being classified as such by regulation. (Delgado v. Mukasey, 10/8/08). AILA Doc. No. 08110470.
  • CA9 Upholds Adverse Credibility Finding for Gay Guatemalan with One Dissent(55 KB - 6/23/2009)
    The court declined to apply the law of the case for this claim that had been remanded once to the BIA, finding that it would constitute a manifest injustice. The court then held that the IJ and BIA adverse credibility determinations were well supported by substantial uncontroverted evidence. One judge dissented. (Martinez v. Mukasey, 10/6/08). AILA Doc. No. 08110469.
  • CA9 Finds BIA Erred in Holding that Statutory Rape Conviction Constituted Aggravated Felony(75 KB - 6/23/2009)
    The court grants petition for review, finding that the petitioner’s conviction under California penal code statutory rape provisions does not constitute the aggravated felony “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101(a)(43). (Estrada-Espinoza v. Mukasey, 10/20/08). AILA Doc. No. 08102965.
  • CA9 Reverses Armenian Asylum Denial and Finds IJ Erred on Fingerprints(106 KB - 6/23/2009)
    The court held that Petitioner, an Armenian who was threatened, beaten, and detained because of his mixed ethnicity and political opinion, was statutorily eligible for asylum. The court found that the IJ abused her discretion in denying his motion for a continuance to comply with his fingerprint requirements. (Karapetyan v. Mukasey, 9/16/08). AILA Doc. No. 08102769.
  • CA9 Finds Pattern of Persecution of Homosexual Men in Jamaica(61 KB - 6/23/2009)
    The court held that the evidence in the record compelled the conclusion that there exists a pattern or practice of persecution of gay men in Jamaica and remanded Petitioner’s withholding claim. The court also remanded his CAT claim in light of the government’s acquiescence and involvement in the torture of gay men. (Bromfield v. Mukasey, 9/15/08) AILA Doc. No. 08102768.
  • CA9 Rejects Social Group Claim in Salvadoran Gang-Related Asylum Claim(61 KB - 6/23/2009)
    The court held that substantial evidence supported the BIA’s finding that Petitioner’s fear based on family membership was not well-founded. The court also upheld the BIA’s rejection of his proposed social group of “young [men] in El Salvador resisting gang violence” because it lacked particularity and visibility. (Santos-Lemus v. Mukasey, 9/8/08) AILA Doc. No. 08102763.
  • CA9 Denies MTR of Iranian Who Claimed Conversion to Christianity (10/14/2008)
    The court first upheld the denial of the motion to reopen for adjustment of status finding that it was rightly rejected as barred by the 90-day deadline. The court also held that the BIA properly rejected the motion to reopen based on changed circumstances in Iran, finding that the new evidence was not material. (Toufighi v. Mukasey, 8/18/08). AILA Doc. No. 08101468.
  • CA9 Remands Sierra Leonean Case for Consideration of Humanitarian Asylum (10/14/2008)
    The court held that substantial evidence supported the IJ’s findings that country conditions that affected Petitioner in Sierra Leone had improved. The court, however, rejected the BIA’s discretionary denial of humanitarian asylum. The court held that the BIA erred in failing to consider the harm to Petitioner’s family. (Sowe v. Mukasey, 8/19/08) AILA Doc. No. 08101466.
  • CA9 Finds BIA Cannot Cure Legal Error in Later Motion to Reopen (10/7/2008)
    The court held that the BIA erred as a matter of law when it construed that Petitioner’s properly raised CAT claim was abandoned. The court, considering a legal issue of first impression, found that the BIA could not cure this legal error in its subsequent consideration of Petitioner’s motion to reopen. (Doissaint v. Mukasey, 8/18/08). AILA Doc. No. 08100761.
  • CA9 Grants Petition for Review of Now Divorced K-1’s Denied I-485 which “Languish(ed) in the Agency’s File Cabinet”(48 KB - 6/23/2009)
    The court granted the petition and remanded to the BIA, finding that there is nothing in the plain language of INA §245(d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends by divorce two years later. (Choin v. Mukasey, 8/12/08). AILA Doc. No. 08100664.
  • CA9 Addresses Prolonged Detention and Opportunity for a Bond Hearing under INA §1226(a)(64 KB - 6/23/2009)
    The court reverses and remands because it could not determine whether the petitioner had been afforded a bond hearing due to an inadequate record. It held that his detention was permissible under INA §1226(a), but that §1226(a) requires the AG to provide an alien with the opportunity to challenge the necessity of his detention. (Casas-Castrillon v. DHS, 7/25/08). AILA Doc. No. 08100660.
  • CA9 Upholds Denial of Habeas Claim as Petitioner Failed to Establish Indefinite Detention(85 KB - 6/23/2009)
    The court held that where a removal order is administratively final, but removal is stayed pending the resolution of a petition for review, detention is authorized under INA §1226(a). It rejected the Zadvydas challenge because the petitioner’s detention end date was uncertain, but not indefinite. (Prieto-Romero v. Clark, 7/25/08). AILA Doc. No. 08100263.
  • CA9 Upholds Arizona Employer Sanctions Law Requiring E-Verify(82 KB - 6/23/2009)
    The court upheld the Legal Arizona Workers Act, which imposes state sanctions on employers who hire unauthorized workers and makes participation in E-Verify mandatory for all employers. (CPLC v. Napolitano, 9/17/08). AILA Doc. No. 08091730.
  • CA9 Defines “One Central Reason” in Mixed-Motive Asylum Claim (9/16/2008)
    The court held that its previous mixed-motive jurisprudence has been superseded by the REAL ID Act and the new “one central reason” standard. The court defined a “central” reason as a reason of primary importance to the persecutors, one that was essential to their decision, and a cause of the persecutors’ act. Parussimova v. Mukasey, 7/24/08). AILA Doc. No. 08091663.
  • CA9 Applies Navarro-Lopez to Find Federal Tax Crimes Do Not Constitute Aggravated Felonies (8/26/2008)
    The court held that for purposes of determining whether a conviction constitutes an aggravated felony under INA §101(a)(43)(M)(i), where the statute of conviction does not require proof of monetary loss, Navarro-Lopez prohibits examination of the record of conviction to determine if the loss exceeded $10,000. (Kawashima v. Gonzales, 9/18/07). AILA Doc. No. 08082667.
  • CA9 Holds Voluntary Return Trips Home Support Adverse Credibility Finding (8/22/2008)
    The court noted that it is well-established that an asylum applicant’s history of willingly returning to his or her home country militates against a finding of past persecution or a well-founded fear. The court found that Petitioner’s two voluntary returns to Indonesia supported the IJ’s adverse credibility finding. (Loho v. Mukasey, 7/8/08) AILA Doc. No. 08082270.
  • CA9 Finds No-Match Letter Does not Provide Constructive Knowledge of Immigration Violations(86 KB - 8/19/2008)
    In Aramark v. SEIU, the 9th circuit held that receipt of a no-match letter does not serve as constructive knowledge that an individual is not authorized to work. Recently the 9th Circuit denied en banc review of the decision. The denial of the request for en banc review is at the end of the original opinion. (Aramark v. SEIU, 06/16/08). AILA Doc. No. 08081960.
  • CA9 Reverses Adverse Credibility Finding and IJ’s Exclusion of Witnesses (8/1/2008)
    The court held that substantial evidence did not support the adverse credibility finding because the components of that determination were neither substantial nor did they go to the heart of Petitioner’s asylum claim. The court also held that the IJ committed an error of law by excluding the testimony of two witnesses. (Morgan v. Mukasey, 6/25/08). AILA Doc. No. 08080161.
  • CA9 Rejects Adverse Credibility Finding in Iraqi Chaldean Asylum Case (7/30/2008)
    The court rejected the three bases identified by the IJ and BIA for the negative credibility determination, namely that it was unlikely Petitioner could withstand the pressure of the Ba’ath party, her failure to mention her rape in her asylum application, and her failure to explain the consequences of her leg infection. (Mousa v. Mukasey, 6/27/08). AILA Doc. No. 08073064.
  • CA9 Upholds Denial of Asylum for Failure to Meet 1-Year Deadline Exception (7/30/2008)
    The court held that it had jurisdiction to review the denial of asylum based on the one-year deadline under the REAL ID Act. The court found that in Petitioner’s case, where there was no explanation for the delay in filing, his 364-day wait after his lawful status expired was not a reasonable period. (Husyev v. Mukasey, 6/16/08). AILA Doc. No. 08073063.
  • CA9 Discusses “Maximum Penalty Possible” Under the Petty Offense Exception (7/18/2008)
    The court held that because the statutory maximum sentence for bribery of a public official under 18 USC §201(b) was fifteen years, the petty offense exception under INA §212(a)(2)(A)(ii)(II) did not apply to Petitioner despite the fact that the sentencing guideline range for the offense was zero to six months. (Mendez-Mendez v. Mukasey, 5/8/08). AILA Doc. No. 08071874.
  • CA9 Finds AZ Attempted Public Sexual Indecency to a Minor is Not Categorically an Aggravated Felony (7/18/2008)
    The court held that Petitioner’s conviction for attempted public sexual indecency to a minor under Arizona Revised Statutes §§13-1001 and 13-1403(B) did not constitute attempted sexual abuse of a minor under INA §101(a)(43)(A) and (U) under either the categorical or the modified categorical approach. (Rebilas v. Mukasey, 5/16/08). AILA Doc. No. 08071873.
  • CA9 Holds Oregon Identity Theft is Not Categorically an Aggravated Felony Theft Offense (7/18/2008)
    The court held that a conviction for identity theft in violation of Or. Rev. Stat. §154.800, which criminalizes identity theft, is not categorically an aggravated felony under INA §101(a)(43)(G) because the statute punishes conduct that goes beyond the scope of a generic theft offense. (Mandujano-Real v. Mukasey, 5/22/08). AILA Doc. No. 08071872.
  • CA9 Finds Jurisdiction to Review IJ’s Denial of Motion to Continue (7/18/2008)
    The court held that INA §242(a)(2)(B)(ii) does not strip jurisdiction over challenges to an IJ’s denial of a continuance because an IJ’s authority to grant a continuance is not “specified under [the relevant] subchapter to be in the discretion of the Attorney General....” (Sandoval-Luna v. Mukasey, 5/22/08). AILA Doc. No. 08071871.
  • CA9 Upholds Asylum Frivolousness Finding and Permanent Benefits Bar (7/18/2008)
    In this decision, the court adopted the analytical framework for making frivolousness determinations in Matter of Y-L-. The court held that a remand was not necessary because all of the element of Y-L- were met. The court found that the finding of frivolousness should not be taken lightly, but was appropriate in this case. (Ahir v. Mukasey, 6/2/08). AILA Doc. No. 08071870.
  • CA9 Remands Frivolous Asylum Finding for BIA to Address Issues (7/18/2008)
    The court remanded the case for the BIA to determine if the language of INA §208(d)(6) requires the IJ to make a final determination on the merits of the asylum application, or whether the language only requires the IJ to make a final determination that the application was frivolous. (Chen v. Mukasey, 6/3/08). AILA Doc. No. 08071869.
  • CA9 Remands Asylum Claim where IJ Failed to Make Credibility Finding (7/3/2008)
    The court held that the IJ erred by failing to make a credibility finding. The court noted that instances where the IJ has conflated an adverse credibility finding with an adverse decision on the merits have been appearing before the court with increasing frequency. The court found that the proper course was to remand. (Huang v. Mukasey, 3/24/08). AILA Doc. No. 08070364.
  • CA9 Finds Evading a Police Officer Under California Law is Not Categorically an Aggravated Felony (Updated 7/18/08)(62 KB - 3/18/2009)
    The court held that evading an officer in violation of Cal. Vehicle Code, §2800.2(a) is not categorically an aggravated felony “crime of violence” and that there was insufficient evidence to conclude that Petitioner pleaded guilty to an aggravate felony “theft offense” for the unlawful taking of a vehicle. (Penuliar v. Mukasey, 4/22/08). AILA Doc. No. 08070260.
  • CA9 Upholds Denial of MTR Asylum Claim Based on Changed Circumstances(61 KB - 3/18/2009)
    The court held that the BIA’s interpretation of INA §208(a)(2)(D) and §240(c)(7) in Matter of C-W-L- was reasonable and deferred to it. The court upheld the BIA’s finding that Petitioner could apply for asylum only by filing a motion to reopen, subject to time and number limitations, despite a change in circumstances. (Chen v. Mukasey, 5/2/08). AILA Doc. No. 08062665.
  • CA9 Finds Subjective Intent is Not Relevant to “Changed Circumstances”(61 KB - 3/18/2009)
    The court held that there was no support in the statute, case law, or purposes of the statute for the IJ’s holding that Petitioner did not qualify for the changed circumstances exception to asylum filing deadline solely because his subjective intent to apply existed before the expiration of the one-year period. (Fakhry v. Mukasey, 5/5/08). AILA Doc. No. 08062662.
  • CA9 Finds Aiding and Abetting Assault with a Deadly Weapon is an Aggravated Felony(59 KB - 3/18/2009)
    The court held that a person convicted of aiding and abetting an assault with a deadly weapon under Cal. Penal Code §245(a)(1) has committed a crime of violence, and thus an aggravated felony, as if he had personally committed the offense. (Ortiz-Magana v. Mukasey, 4/28/08). AILA Doc. No. 08062661.
  • CA9 Finds Record Compels Conclusion of Imputed Political Opinion Nexus(51 KB - 3/18/2009)
    The court held that Petitioner demonstrated the facts necessary to prove an imputed political opinion claim. The court concluded that there was substantial evidence to compel the conclusion that Petitioner was persecuted on account of an imputed political opinion and was thus eligible for asylum. (Silaya v. Mukasey, 5/6/08). AILA Doc. No. 08062564.
  • CA9 Discusses Ineffective Assistance Rendered by Non-Attorney(51 KB - 3/17/2009)
    The court held that knowing reliance upon the advice of a non-attorney cannot support a claim for ineffective assistance of counsel in removal proceedings. (Hernandez v. Mukasey, 4/30/08). AILA Doc. No. 08062561.
  • CA9 Finds “Annoying or Molesting a Child” Under CA Law is Not Categorically a CIMT(244 KB - 3/17/2009)
    The court held that a misdemeanor conviction under Cal. Penal Code §647.6(a), for annoying or molesting a child under the age of eighteen is not categorically a crime involving moral turpitude. (Nicanor-Romero v. Mukasey, 4/24/08). AILA Doc. No. 08062560.
  • CA9 Rejects CAT Claim of Mentally Disabled Man for Lack of Specific Intent(51 KB - 3/17/2009)
    The court held that it lacked jurisdiction to review the IJ’s finding that Petitioner’s robbery conviction was a particularly serious crime. The court rejected his CAT claim holding that he failed to establish that the harm he would suffer in a mental institution in Mexico was specifically intended to cause harm. (Villegas v. Mukasey, 4/23/08). AILA Doc. No. 08052261.
  • CA9 Refuses to Allow VWP Entrant to Contest Removal Through Adjustment of Status(41 KB - 3/17/2009)
    The court held that a Visa Waiver Pilot entrant may not contest removal through adjustment of status, where he was neither eligible for adjustment of status, nor had filed the adjustment application within the 90-day period of authorized stay. (Momeni v. Chertoff, 3/31/08). AILA Doc. No. 08052260.
  • CA9 Allows Family Unity Smuggling Waiver for Cancellation of Removal Applicants(61 KB - 3/17/2009)
    The court held that its conclusion in Moran v. Ashcroft, that an applicant for cancellation of removal is eligible for a family unity waiver for smuggling when the smuggled person was the applicant’s spouse, parent, son or daughter, was not dicta and is controlling. (Sanchez v. Mukasey, 4/2/08). AILA Doc. No. 08052157.
  • CA9 Holds Felony Cultivation of Marijuana is Categorically an Aggravated Felony(47 KB - 3/17/2009)
    The court held that a conviction for felony cultivation of marijuana under Cal. Health & Safety Code §11358 categorically falls within the generic definition of “drug trafficking crime” and thus constitutes an aggravated felony under INA §101(a)(43)(B). (United States v. Reveles-Espinoza, 4/15/08). AILA Doc. No. 08052158.
  • CA9 Reverses District Court, Finds Plaintiff Eligible for Benefits Under ABC Settlement Agreement(43 KB - 3/17/2009)
    The court held that Plaintiff’s asylum application, filed on January 31, 1991, demonstrated his membership in the ABC class and was a writing that indicated his intent to receive the benefits of the ABC agreement, notwithstanding the fact that the application did not explicitly reference the agreement. (Chaly-Garcia v. United States, 11/29/07). AILA Doc. No.08050545
  • CA9 Finds Adjustment Unavailable to Persons Who Enter the U.S. by Fraudulent Means(48 KB - 3/17/2009)
    The court held that Petitioner, who obtained entry into the United States by presenting an identification that was not his own to an immigration officer, was statutorily ineligible for adjustment of status under INA §245(a). (Orozco v. Mukasey, 3/25/08). AILA Doc. No. 08050544.
  • CA9 Finds Possession with Intent to Sell Marijuana is an Aggravated Felony(57 KB - 3/17/2009)
    Amendement to decision in Rendon v. Mukasey, 2/15/08. (Rendon v. Mukasey, 3/19/08). AILA Doc. No. 08050539.
  • CA9 Finds Jurisdiction to Review CAT Claim despite Aggravated Felony(38 KB - 3/17/2009)
    The court held that the jurisdiction stripping provision of INA §242(a)(2)(C), which bars review of final orders of removal for criminal offenses, did not deprive the court of jurisdiction over denials of deferral of removal under CAT. The court upheld the IJ’s denial of deferral based on internal relocation. (Lemus-Galvan v. Mukasey, 3/11/08). AILA Doc. No. 08041765.
  • CA9 Remands Asylum One-Year Deadline Issue re: Age of Minors to BIA(34 KB - 3/17/2009)
    The court noted that the regulations do not define whether individuals under twenty-one years of age are “minors” under 8 CFR §1208.4(a)(5)(ii) and the BIA did not address the issue. The court stated that when the BIA has not yet considered an issue in the first instance, the proper course of action is to remand it. (Al-Mousa v. Mukasey, 3/5/08). AILA Doc. No. 08041071.
  • CA9 Amends Grigoryan Decision; Instructs BIA to Grant MTR(54 KB - 3/17/2009)
    The court amended its November 19, 2007 decision regarding ineffective assistance of counsel in an asylum claim by an Armenian-Turkish woman who had been harmed in Azerbaijan. The court found that the BIA erred in failing to presume prejudice and abused its discretion in denying the motion to reopen. (Grigoryan v. Mukasey, 2/5/08). AILA Doc. No. 08040465.
  • CA9 Finds CA Conviction for False ID to a Peace Officer is Not a Crime Involving Moral Turpitude(56 KB - 3/16/2009)
    The court held that because the crime of false identification to a peace officer under Cal. Penal Code §148.9(a) does not require fraudulent intent, it is not categorically a crime involving moral turpitude. (Blanco v. Mukasey, 3/3/08). AILA Doc. No. 08040464.
  • CA9 Discusses Class Membership Under the Barahona-Gomez Settlement(67 KB - 3/16/2009)
    The court concluded that Petitioners were class members under the Barahona-Gomez settlement. Petitioners were “scheduled” for a merits hearing between February 13, 1997 and April 1, 1997, their hearing was continued to a date after IIRIRA took effect, and they were denied relief on the basis of the stop-time rule. (Navarro v. Mukasey, 3/4/08). AILA Doc. No. 08040463.
  • CA9 Remands Frivolousness Finding for BIA to Apply Matter of Y-L- Factors(42 KB - 3/16/2009)
    The court remanded the BIA’s frivolous asylum application finding to allow the BIA to apply the procedural guidelines set forth in Matter of Y-L-, a precedent decision issued 5 months after the frivolousness finding in Petitioner’s case. The court found that the BIA abused its discretion in denying his motion to reopen. (Kalilu v. Mukasey, 2/14/08). AILA Doc. No. 08040462.
  • CA9 Finds Late Arrival to Court is Not a Failure to Appear for In Absentia Purposes(52 KB - 3/16/2009)
    The court held that Petitioner, who arrived two hours late for his hearing due to his car’s mechanical failure, but arrived while the immigration judge was still in the courtroom did not fail to appear for his hearing. Petitioner was therefore not required to demonstrate exceptional circumstances in order to reopen proceedings. (Perez v. Mukasey, 2/14/08). AILA Doc. No. 08040366.
  • CA9 Finds Possession with Intent to Sell Marijuana is an Aggravated Felony(55 KB - 3/16/2009)
    The court held that a state felony conviction for possession with intent to sell a controlled substance contains a trafficking element and is therefore an aggravated felony within the meaning of INA §101(a)(43)(B). (Rendon v. Mukasey, 2/15/08). AILA Doc. No. 08040363.
  • CA9 Finds CA Conviction for Counterfeit of a Registered Mark is a Crime Involving Moral Turpitude(45 KB - 3/16/2009)
    The court held that a conviction for counterfeit of a registered mark in violation of Cal. Penal Code §350(a)(2) is a crime involving moral turpitude. (Tall v. Mukasey, 2/27/08). AILA Doc. No. 08040361.
  • CA9 Finds Failure to Register as a Sex Offender in NV is Not a Crime Involving Moral Turpitude(64 KB - 3/16/2009)
    The court held that failure to register as a sex offender under Nev. Rev. Stat. §179D.550 is not a crime of moral turpitude. The BIA’s grant of a motion to reconsider which expressly affirms the prior decision does not divest the court of jurisdiction over a petition for review of the underlying removal order. (Plasencia-Ayala v. Mukasey, 2/7/08). AILA Doc. No. 08030772.
  • CA9 Holds Forgery Under Cal. Penal Code §475(c) is Not Categorically an Aggravated Felony(62 KB - 3/16/2009)
    The court held that Cal. Penal Code §475(c) encompasses conduct involving real, unaltered documents and is therefore, not categorically an offense “relating to…forgery” under INA §101(a)(43)(R). (Vizcarra-Ayala v. Mukasey, 1/23/08). AILA Doc. No. 08030771.
  • CA9 Finds Ineffective Assistance of Counsel Without Strict Adherence to Lozada(55 KB - 3/16/2009)
    The court held that where an attorney has been suspended after failing to respond to prior charges of ineffective assistance, the failure to inform counsel of the accusations or file a complaint as required by Lozada would be futile and does not bar an ineffective assistance of counsel claim. (Apolinar v. Mukasey, 1/24/08). AILA Doc. No. 08030770.
  • CA9 Amends Kalouma Decision re: Proof of Identity in Asylum Claims(57 KB - 3/16/2009)
    In response to a petition for rehearing by the government, the court amended its Aug. 27, 2007 decision (AILA Doc. No. 07101260) with a few additional paragraphs of analysis. The court rejected the government’s reliance on Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003). Judge Tallman’s dissent was also amended. (Kalouma v. Gonzales, 1/15/08). AILA Doc. No. 08030762.
  • CA9 Rejects Withholding and CAT Claim of Salvadoran Gang Member(45 KB - 2/4/2009)
    The court rejected Petitioner’s argument that his indelible gang tattoos and membership (or former membership) in a gang would qualify as a particular social group. The court found that Petitioner had not met his burden of proof for CAT relief and failed to show he would be tortured by the Salvadoran government. (Arteaga v. Mukasey, 12/27/07). AILA Doc. No. 08020766.
  • CA9 Holds Fourth Degree Assault Under WA Law is not Categorically a Crime of Violence(39 KB - 2/4/2009)
    The court held that a conviction for fourth degree assault in violation of Wash. Rev. Code §9A.36.041 is not categorically an aggravated felony “crime of violence” under INA §101(a)(43)(F). (Perez v. Mukasey, 1/22/08). AILA Doc. No. 08020765.
  • CA9 Holds CA Hit and Run Statute is Not Categorically a Crime Involving Moral Turpitude (2/7/2008)
    The court held that a violation of Cal. Vehicle Code §20001(a), leaving the scene of an accident resulting in bodily injury or death, is not categorically a crime involving moral turpitude. (Cerezo v. Mukasey, 1/14/08). AILA Doc. No. 08020763.
  • CA9 Holds Credited Pre-Conviction Time Served Counts Toward §101(f)(7) Good Moral Character Bar (2/7/2008)
    The court held that when pre-trial detention is credited against the sentence imposed upon conviction, the period of pre-trial detention must be considered as confinement as a result of a conviction within the meaning of INA §101(f)(7). (Arreguin-Moreno v. Mukasey, 1/14/08). AILA Doc. No. 08020762.
  • CA9 Holds CA Theft of a Vehicle is Not Categorically an Aggravated Felony (1/29/2008)
    The court held that a conviction under Cal. Vehicle Code §10851(a) for theft and unlawful driving or taking of a vehicle is not categorically an aggravated felony theft offense under INA §101(a)(43)(G) because it applies not only to principles and accomplices, but also to accessories after the fact. (United States v. Vidal, 10/10/07). AILA Doc. No. 08012964.
  • CA9 Holds Resisting Arrest Under Arizona Law is a Crime of Violence (1/29/2009)
    The court held that resisting arrest, in violation of Arizona Revised Statutes §13-2508, categorically constitutes a crime of violence and is therefore, an aggravated felony under INA §101(a)(43)(F). (Estrada-Rodriguez v. Mukasey, 12/28/07). AILA Doc. No. 08012963.
  • CA9 Discusses Jurisdiction Over Nationality Claims in the Context of REAL ID (1/29/2008)
    The district court lacked jurisdiction over Petitioner’s habeas challenge to his final order of removal, which was filed after the REAL ID Act’s effective date. REAL ID does not violate the Suspension Clause because Petitioner still has an opportunity for judicial review of his nationality claim through a motion to reopen. (Iasu v. Smith, 12/18/07). AILA Doc. No. 08012962.
  • CA9 Upholds Adverse Credibility Finding and BIA’s Voluntary Departure Cut (1/8/2008)
    The court held that substantial evidence supported the IJ’s credibility determination due to inconsistencies. The court also upheld the BIA’s reduction in voluntary departure from 90 to 30 days finding that 90 days was statutorily impermissible. The court, in dicta, blamed its backlog on the stays of removal it grants. (Rivera v. Mukasey, 12/7/07). AILA Doc. No. 08010867.
  • CA9 Rejects MTR Asylum Claim Based on Changed Conditions in Iran (1/8/2008)
    The court held that because the IJ had found Petitioner’s conversion was not genuine and that apostasy would not be imputed to him, the BIA did not abuse its discretion in concluding that the evidence of changed conditions was not material and that Petitioner failed to establish prima facie eligibility for asylum. (Toufighi v. Mukasey, 12/13/07). AILA Doc. No. 08010866.
  • CA9 Finds IJ Denied Petitioner His Statutory Right to Counsel (1/8/2008)
    The court held that when Petitioner’s attorney failed to appear in court, the IJ did not take reasonable steps to ensure that Petitioner’s statutory right to counsel was honored, and the IJ’s refusal to allow a continuance resulted in a denial of right to counsel that prejudiced Petitioner. (Mendoza-Mazariegos v. Mukasey, 12/6/07). AILA Doc. No. 08010865.