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2009

  • CA9 Finds UCMJ Article 92 Is Not Categorically an Aggravated Felony(106 KB - 10/21/2009)
    The court held that a violation of Article 92 of the Uniform Code of Military Justice is not categorically an aggravated felony where Petitioner pled guilty to using a government computer to access pornography. (Aguilar-Turcios v. Holder, 9/29/09; withdrawn 8/29/11) AILA Doc. No. 09102164.
    AILA Doc. No. 09102164.
  • CA9 Finds it Lacks Jurisdiction to Review BIA Decision Dismissing Untimely Notice of Appeal(67 KB - 10/21/2009)
    CA9 dismisses appeal for lack of jurisdiction since the BIA’s denial of petitioner’s motion to reconsider was an exercise of routine discretion. Petitioner challenges only the BIA’s discretionary relief of reconsideration of its prior decision dismissing the untimely notice of appeal. (Turicos v. Holder, 9/29/09). AILA Doc. No. 09102163.
    AILA Doc. No. 09102163.
  • CA9 Affirms BIA Decision Finding Lack of Authority to Extend 30-Day Filing Deadline for an Appeal(64 KB - 10/20/2009)
    CA9 finds that, based on Supreme Court precedent, it must defer to the BIA’s reasonable interpretation in Liadov that the agency lacks authority to extend the thirty-day filing deadline for an appeal. As a result, the BIA did not abuse its discretion in denying petitioner’s motion to reconsider. (Irigoyen-Briones v. Holder, 9/29/09). AILA Doc. No. 09102073.
    AILA Doc. No. 09102073.
  • CA9 Affirms Denial of Extraordinary Ability Visa Summary Judgment(39 KB - 10/5/2009)
    Finding that the Petitioner did not establish evidence of extraordinary ability, the Court affirmed the District Court’s grant of summary judgment for USCIS holding that USCIS’ denial of an extraordinary ability visa was not arbitrary and capricious or contrary to law. (Kazarian v. USCIS, 09/04/09). AILA Doc. No. 09100560.
    AILA Doc. No. 09100560.
  • CA9 Remands to BIA for Consideration of REAL ID Act Corroboration Standard(25 KB - 9/28/2009)
    Court held that corroboration standard in REAL ID Act applies to CAT application filed after effective date of Real ID ACT. The court remanded to BIA for consideration of REAL ID ACT corroboration standard. (Owino v. Holder, 8/4/09). AILA Doc. No. 09092864.
    AILA Doc. No. 09092864.
  • CA9 Applies Categorical Approach and Finds California Drug Offense Renders Individual Removable(37 KB - 9/28/2009)
    Applying the modified categorical approach the court held that a conviction under California Statute Section 11352(a) is a “violation of …any law or regulation of a state... relating to a controlled substance” rendering the individual removable. (Mielewczyk v. Holder, 8/5/09). AILA Doc. No. 09092863.
    AILA Doc. No. 09092863.
  • CA9 Finds California Conviction for Owning and Operating a Chop Shop Is Not an Aggravated Felony(44 KB - 8/13/2009)
    Court holds that a violation of Cal. Veh. Code § 10801 does not categorically qualify as an aggravated felony theft offense, nor does the record establish that the petitioner’s violation constituted a theft offense under the modified categorical approach. Grants petition and remands. (Carrillo-Jaime v. Holder, 7/15/09). AILA Doc. No. 09081364.
    AILA Doc. No. 09081364.
  • CA9 Holds BIA Erred in Finding Application Improperly Filed Because of Unsigned Check(54 KB - 8/13/2009)
    The court grants petition for review and remands. Finds no regulation specifies that USCIS must reject a signed application accompanied by an unsigned check for the right amount of the fee, when all other aspects of the application are complete and proper. (Blanco v. Holder, 7/15/09). AILA Doc. No. 09081362.
    AILA Doc. No. 09081362.
  • CA9 Transfers Nationality Claim to District Court Finding Issue of Material Fact in Dispute(46 KB - 8/10/2009)
    Court transfers proceedings to District Court for a hearing on nationality claim. Holds petition for review in abeyance. Found that an issue of material fact exits concerning the identity of the petitioner’s father, which must be resolved to determine whether petitioner acquired derivative citizenship. (Ayala-Villanueva v. Holder, 7/14/09). AILA Doc. No. 09081070.
    AILA Doc. No. 09081070.
  • CA9 Remands to BIA for Consideration of the Effect of Dada v. Mukasey(53 KB - 8/10/2009)
    The court remands to the BIA to consider whether Dada v. Mukasey applies, and if so, how the option to withdraw requests for voluntary departure should be afforded to those whose voluntary departure period was stayed by the BIA during the pendency of a motion to reopen prior to the holding in Dada. (Nevarez v. Holder, 7/8/09). AILA Doc. No. 09081066.
    AILA Doc. No. 09081066.
  • CA9 Finds the Government May Issue an NTA Stating that the Date and Time of the Hearing Will Be Set Later(66 KB - 8/10/2009)
    Court holds that a Notice to Appear (NTA) that fails to include the date and time of a deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice is in fact later sent. Also finds petitioner was advised of the need to notify the immigration court of a change of address. (Popa v. Holder, 7/6/09). AILA Doc. No. 09081065.
    AILA Doc. No. 09081065.
  • CA9 Finds Conviction for Abuse of Cohabitant is not Categorically a CIMT(75 KB - 7/23/2009)
    The court holds the conviction under the California Penal Code for abuse of a cohabitant is not categorically a crime involving moral turpitude (CIMT). Grants petition for review, reverses, and remands for a determination under the modified categorical approach as to whether the offense qualifies as a CIMT. (Morales-Garcia v. Holder, 6/3/09). AILA Doc. No. 09072372.
    AILA Doc. No. 09072372.
  • CA9 Finds it Lack Jurisdiction to Review Hardship Determination(56 KB - 7/23/2009)
    Court finds the decision as to whether removal would cause the petitioner’s family “exceptional and extremely unusual hardship” is a discretionary determination, which it lacks jurisdiction to review. Rejects argument that the misapplication of facts to the hardship standard creates a colorable constitutional claim. (Mercado v. Mukasey, 5/19/09). AILA Doc. No. 09072371.
    AILA Doc. No. 09072371.
  • CA9 Addresses Imputation of Five-Year Residence Requirement for Cancellation and Brand X(95 KB - 7/9/2009)
    Court holds that, for purposes of satisfying the 5 years of lawful permanent residence required under INA § 240A(a)(1), parent’s status as LPR is imputed to unemancipated minor child residing with parent. Finds BIA’s reliance on Brand X is misplaced. (Escobar v. Holder, 5/27/09). AILA Doc. No. 09070969.
    AILA Doc. No. 09070969.
  • CA9 Holds Portability Provision Does Not Affect USCIS Revocation Authority(67 KB - 7/8/2009)
    The court holds that the Portability Provision of INA § 204(j) does not affect USCIS’s revocation authority, which permits revocation “at any time” for “good and sufficient cause” pursuant to 8 C.F.R. § 205.2, and that the notice of intent to revoke was legally sufficient. (Herrera v. USCIS, 7/6/09). AILA Doc. No. 09070862.
    AILA Doc. No. 09070862.
  • CA9 Finds Possession of Child Pornography is a Crime Involving Moral Turpitude(66 KB - 7/7/2009)
    The court finds that possession of child pornography is a crime involving moral turpitude (CIMT) and that specific intent is not required for a CIMT. Affirms order revoking naturalization for CIMT conviction. (United States v. Santacruz, 4/20/2009). AILA Doc. No. 09070762.
    AILA Doc. No. 09070762.
  • CA9 Grants Petition for Review, Evidence in Support of Removability Related to Irrelevant Time Period(45 KB - 5/14/2009)
    Court concludes removability finding is unsupported by substantial evidence. Sole ground for removability was petitioner’s failure to attend school while on F-1 visa. Proffered evidence was lack of U.S. education listing on asylum application. However, charge in NTA dealt with period after asylum application was filed. (Al Mutarreb v. Holder, 4/6/09). AILA Doc. No. 09051475.
    AILA Doc. No. 09051475.
  • CA9 Holds Evidence Regarding Appellant’s Citizenship Improperly Admitted as Hearsay(66 KB - 5/7/2009)
    The court finds appellant does not have derivative citizenship as his stepfather is not related by blood and was not married to his mother at the time of his birth. But it finds that conviction for being removed, then found in the U.S., was based on improperly admitted hearsay. Reversed and remanded. (United States v. Marguet-Pillado, 3/27/09). AILA Doc. No. 09050764.
    AILA Doc. No. 09050764.
  • CA9 Finds Petitioner with Expunged State Conviction Ineligible for Relief Because of Probation Violation(41 KB - 5/7/2009)
    The court denies the petition holding that Federal First Offender Act (FFOA) relief is not available when the person whose conviction is expunged has violated a condition of probation. It concludes the petitioner is not relieved of the immigration consequences of his 2001 conviction. (Estrada v. Holder, 3/26/09). AILA Doc. No. 09050762.
    AILA Doc. No. 09050762.
  • CA9 Finds Alien Smuggling Inadmissibility Waiver Does Not Apply to Applicants for Cancellation of Removal(75 KB - 5/4/2009)
    The court holds that 8 U.S.C. § 1182(d)(11) does not authorize the Attorney General to waive the “alien smuggling” bar to establishing good moral character for purposes of cancellation of removal. Overrules Moran v. Ashcroft. (Sanchez v. Holder, 3/26/09). AILA Doc. No. 09050467.
    AILA Doc. No. 09050467.
  • CA9 Finds Petitioner with U.S. Citizen Stepfather Cannot Meet Burden to Prove Citizenship(255 KB - 4/21/2009)
    The court finds that the Petitioner, born to two unwed non-citizen parents, cannot be deemed “born in wedlock” under 8 U.S.C. § 1401(g). And, because there is no blood relation with his U.S. citizen stepfather, he cannot meet his burden to prove citizenship under 8 U.S.C. § 1409. (Martinez-Madera v. Holder, 3/16/09). AILA Doc. No. 09042167.
    AILA Doc. No. 09042167.
  • CA9 Denies Petition for Rehearing in Challenge to Arizona Employment Verification Law(279 KB - 4/21/2009)
    The court denies the petition for hearing, and petition for rehearing en banc, of its decision to uphold 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, 3/9/09). AILA Doc. No. 09042166.
    AILA Doc. No. 09042166.
  • CA9 Finds Possession of Green Card Obtained by False Statement is Prosecutable Offense(66 KB - 4/15/2009)
    The court reversed, concluding that 18 U.S.C. § 1546(a) prohibits the possession of an otherwise authentic document that one knows has been procured by means of a false claim or statement. Dismissed the statute of limitations argument, as the crime was a possession offense rather than a false statement offense. (United States v. Krstic, 3/10/09). AILA Doc. No. 09041565.
    AILA Doc. No. 09041565.
  • CA9 En Banc Decision Addresses DUI and Crimes Involving Moral Turpitude(176 KB - 4/14/2009)
    The court denies the petition for review, finding that the BIA’s determination that DUI offenses committed with the knowledge that one’s driver’s license has been suspended or otherwise restricted are crimes involving moral turpitude is a reasonable interpretation of the INA. (Marmolejo-Campos v. Holder, 3/4/09). AILA Doc. No. 09041460.
    AILA Doc. No. 09041460.
  • CA9 Concludes Petitioner’s Claim that Statements Made to Arresting Officer were Unlawfully Obtained is Meritless(56 KB - 3/27/2009)
    Court rejects the petition for review, finding that the petitioner failed to demonstrate that legacy INS violated its regulations in obtaining the information used to prepare the Form I-213, Record of Deportable/Inadmissible Alien, and thus the IJ did not err in denying the petitioner’s motion to suppress the form. Samayoa-Martinez v. Holder (3/3/09). AILA Doc. No. 09032775.
    AILA Doc. No. 09032775.
  • CA9 Interprets Social Group “Membership”(99 KB - 3/16/2009)
    The court held that social group is largely based on “immutable” characteristics or characteristics “fundamental” to group’s identity. Specifically, the court reviewed claim of police persecution for being a supporter of the Roma ethnic minority in Bulgaria (Donchev v. Mukasey, 01/16/09). AILA Doc. No. 09031665.
    AILA Doc. No. 09031665.
  • CA9 Clarifies the One-Year Deadline for Asylum Application(52 KB - 3/13/2009)
    The court held that the first day of the one-year period for filing an asylum application is the day after the applicant arrived in the United States. For example, if applicant arrived on April 9, the deadline for application is April 9 of the following year, not April 8 (Minasyan v. Mukasey, 1/20/09). AILA Doc. No. 09031374.
    AILA Doc. No. 09031374.
  • CA9 “Aggravated Felony” in Withholding of Removal(181 KB - 3/13/2009)
    To determine removability as an aggravated felon, the court must compare the statute of conviction to a generic federal crime. If the federal crime is broader, the alien is removable; if the conviction statute is broader, the court must determine whether the alien was convicted of the elements of the federal crime (Anaya-Ortiz v. Mukasey, 1/27/09). AILA Doc. No. 09031365.
    AILA Doc. No. 09031365.
  • CA9 Holds BIA Erred in Finding Expunged Conviction as Bar to Relief(117 KB - 3/11/2009)
    The court holds the BIA erred in finding the petitioner statutorily ineligible for cancellation on the basis of a set-aside conviction for possession of drug paraphernalia, which had been expunged. Finds that under Lujan-Armendariz, it could not be considered for denial of relief for immigration purposes. (Ramirez-Altamirano v. Mukasey, 4/14/09). AILA Doc. No. 09031160.
    AILA Doc. No. 09031160.
  • CA9 Remands Finding Error in Interpretation of “Religious Occupation”(65 KB - 6/24/2009)
    The court vacates and remands. Finds AAO’s interpretation that all of the duties for the position listed in the I-360 be primarily nonsecular unreasonable. Also finds error in reading of 8 CFR 204.5(m)(2) to require that the “traditional religious function” be one that has been filled in the same manner for any durational period. (Church v. Chertoff, 12/5/08). AILA Doc. No. 09010671.
    AILA Doc. No. 09010671.
  • CA9 Rejects Equal Protection Claim by Petitioner with State Pardon for Controlled Substance Conviction(65 KB - 6/24/2009)
    The court denies the petition for review holding the petitioner failed to demonstrate that the absence of a waiver for inadmissible aliens with a state pardon is wholly irrational [so as] to violate equal protection. (Aguilera-Montero v. Mukasey, 12/1/08). AILA Doc. No. 09010660.
    AILA Doc. No. 09010660.