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2013

  • CA9 on BIA’s “Place-of-Filing” Rule(522 KB - 12/27/2013)
    The court vacated and remanded, holding that the BIA’s “place-of-filing” rule is a procedural claims-processing rule, not a jurisdictional bar to the BIA’s authority to consider a motion to reopen. (Hernandez v. Holder, 12/24/13)
    AILA Doc. No. 13122740.
  • CA9 Says IJ/BIA Did Not Violate Due Process by Relying on Hearsay DOS Investigation(741 KB - 12/9/2013)
    The court held that due process is not violated when the IJ/BIA denies asylum based solely on unsworn, unauthenticated hearsay letters detailing a DOS investigation that were prepared for litigation without affording the petitioner the right to confront the charges. (Angov v. Holder, 12/4/13)
    AILA Doc. No. 13120942.
  • CA9 Upholds Waiver Denial(514 KB - 12/9/2013)
    The court holds petitioner is not an inadmissible alien eligible for waiver under INA §237(a)(1)(H), because her charge of removability is not waivable, and because she was being deported based on her conviction for falsifying documents, not for inadmissibility. (Taggar v. Holder, 12/2/13)
    AILA Doc. No. 13120941.
  • CA9 Finds Arizona Conviction for Racketeering Is Aggravated Felony(520 KB - 11/22/2013)
    The court lacked jurisdiction to review the petition, finding that the BIA did not err in determining that Petitioner’s Arizona conviction for racketeering constituted an aggravated felony that rendered him ineligible for cancellation. (Murillo-Prado v. Holder, 11/20/13)
    AILA Doc. No. 13112244.
  • CA9 Affirms Part and Reverses Part of District Court’s H-2A Dismissal of Claims under FLSA(557 KB - 11/18/2013)
    The court affirms in part and reverses in part the district court’s dismissal of claims of Mexican H-2A temporary farmworkers under the Fair Labor Standards Act (FLSA) and relevant state law. (Victor Rivera Rivera et al. v. Peri & Sons Farms, Inc., 11/13/13)
    AILA Doc. No. 13111808.
  • CA9 Overturns Asylum Denial for Pakistani Petitioner(533 KB - 11/7/2013)
    The court overturned the termination of Petitioner’s asylum status, finding that DHS failed to give proper notice of its witnesses or exhibits, and since Petitioner refused to testify, the exhibits could not be used as impeachment evidence. (Urooj v. Holder, 11/6/13)
    AILA Doc. No. 13110746.
  • CA9 Remands Asylum Denial for Russian Citizen Opposing War in Chechnya(549 KB - 10/29/2013)
    The court granted the petition and remanded, holding that the IJ violated due process by allowing the government to introduce a forensic report concerning a medical document without prior notice and by refusing a continuance to investigate the report. (Bondarenko v. Holder, 10/25/13)
    AILA Doc. No. 13102948.
  • CA9 Finds California Sexual Abuse of a Minor Statute Is an Aggravated Felony Crime of Violence(576 KB - 10/23/2013)
    The court denied the petition for review, holding that the conviction of sexual abuse of a minor under California Penal Code section 288(c)(1) is a categorical crime of violence under 18 U.S.C. §16(b), and thus an aggravated felony. (Rodriguez-Castellon v. Holder, 10/22/13)
    AILA Doc. No. 13102344.
  • CA9 Remands for BIA to Reconsider Landownership as Membership in a Particular Social Group(563 KB - 9/27/2013)
    The court granted the petitions to review and remanded for the BIA to reconsider on the question of whether landownership may form the basis for membership in a particular social group for purposes of eligibility for asylum and withholding. (Cordoba v. Holder, 8/13/13)
    AILA Doc. No. 13092746.
  • CA9 Remands Asylum Claim for Prison Guard in India(540 KB - 9/27/2013)
    The court granted the petition for review and remanded, concluding that the BIA misapplied the relevant precedent in determining whether the petitioner’s actions rose to the level of “personal involvement” when triggering the persecutor bar. (Kumar v. Holder, 8/29/13)
    AILA Doc. No. 13092740.
  • CA9 Remands Asylum Claim for Diola from Senegal(540 KB - 9/25/2013)
    The panel vacated the BIA’s adverse credibility finding and remanded, finding the BIA erred by drawing an adverse inference from the low level of persecution detail provided in the mistakenly filed N-400, as well as with alleged inconsistencies with the I-589. (Bassene v. Holder, 9/23/13)
    AILA Doc. No. 13092557.
  • CA9 Upholds Asylum Denial for Guatemalan Rape Victim(550 KB - 9/25/2013)
    The court upheld the BIA’s denial of asylum, finding that petitioner did not show persecution on account of real or imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government. (Garcia-Milian v. Holder, 9/18/13, amended 2/13/14)
    AILA Doc. No. 13092554.
  • CA9 Holds DHS May Terminate Prior Grant of Withholding in Conjunction with Removal Proceedings(513 KB - 9/25/2013)
    The court held that DHS may terminate a prior grant of withholding in conjunction with removal proceedings, so long as it meets its burden of demonstrating the grounds for doing so, and that two separate proceedings are not required under 8 CFR §1208.24(f). (Gutierrez v. Holder, 9/13/13)
    AILA Doc. No. 13092549.
  • CA9 Denies Review of Frivolous Armenian Asylum Claim(509 KB - 9/25/2013)
    The court denied the petition for review of the BIA’s decision affirming an IJ’s determination that the petitioner knowingly filed a frivolous asylum application and that she was statutorily barred from adjustment of status and a 212(i) waiver on that basis. (Kulakchyan v. Holder, 9/18/13)
    AILA Doc. No. 13092543.
  • CA9 Finds it Lacks Jurisdiction to Review Somali Asylum Claim(564 KB - 9/24/2013)
    Despite a mixed BIA decision, the court held it lacked jurisdiction to review the BIA’s underlying denial of asylum, the only issue raised in both petitions for review, because the petitioner failed to file a timely petition for review of that decision. (Abdisalan v. Holder, 9/6/13)
    AILA Doc. No. 13092451.
  • CA9 Rules on Operation Streamline Proceeding(545 KB - 9/23/2013)
    The court held that although the district court did not err under Fed. R. Crim. P. 11(b)(1) by advising the defendants of their rights en masse, it erred by not questioning the defendant individually to ensure that she understood her rights. (U.S. v. Arqueta-Ramos, 9/20/13)
    AILA Doc. No. 13092348.
  • CA9 Remands After BIA Improperly Held Petitioner to Incorrect Legal Standard(516 KB - 9/12/2013)
    The court granted petition for review and remanded after finding that the BIA improperly held that the motion to reopen was numerically barred, erred in restricting the evidence the Petitioner could provide, and erred in failing to consider the evidence tendered. (Zhao v. Holder, 9/6/13).
    AILA Doc. No. 13091242.
  • CA9 Denies Exception to One-Year Asylum Deadline to Jordanian Applicants(102 KB - 8/30/2013)
    The court held the petitioners’ over fifteen-month delay in seeking asylum after changed or extraordinary circumstances was not reasonable where they alleged the delay was due to ineffective assistance of counsel and inability to file after issuance of the NTA. (Al Ramahi v. Holder, 8/6/13)
    AILA Doc. No. 13083042.
  • CA9 Holds Petitioner Has Constitutional Right to Testify in Support of Asylum Application(223 KB - 8/27/2013)
    The court granted the petition for review, finding that the IJ prejudiced the petitioner by denying his constitutional right to testify in support of his asylum application and making an adverse credibility finding based principally on the cross-examination. (Oshodi v. Holder, 8/27/13)
    AILA Doc. No. 13082746.
  • CA9 Grants Asylum Based on Past Persecution of Seventh Day Adventists in Belarus(98 KB - 8/26/2013)
    The court granted asylum, finding that the petitioner established a claim of past persecution based on the abuses endured by her Seventh Day Adventist parents while she was a child in Belarus, and remanded the withholding and CAT claims for further consideration. (Rusak v. Holder, 8/22/13)
    AILA Doc. No. 13082655.
  • CA9 Finds California Conviction of Brandishing a Firearm Is Aggravated Felony(84 KB - 8/26/2013)
    The court dismissed the petition for review, finding the petitioner ineligible for cancelation, because the conviction under California Penal Code §417.3 counted categorically as a “crime of violence,” and therefore as an aggravated felony. (Bolanos v. Holder, 8/21/13)
    AILA Doc. No. 13082654.
  • CA9 on Modified Categorical Approach(81 KB - 8/26/2013)
    Applying the modified categorical approach, the court denied the petition for review, determining that the petitioner was charged as a principal and not as an accessory after the fact under California Vehicle Code § 10851(a). (Duenas-Alvarez v. Holder, 8/20/13)
    AILA Doc. No. 13082653.
  • CA9 Grants Petition for Review of Reinstated Order of Removal and Remands to ICE(148 KB - 8/20/2013)
    The court directed ICE to reconsider the case on remand, holding that because the prior removal order was invalidated on constitutional grounds, the government could not rely on a pre-prosecution determination to reinstate the prior order. (Villa-Anguiano v. Holder, 8/14/13)
    AILA Doc. No. 13082044.
  • CA9 Denies Petition for Review of Order from OCAHO(552 KB - 8/20/2013)
    The court denied petition for review, holding that it is neither arbitrary nor capricious to require that employers complete I-9 Forms and that copying and retaining documents is neither necessary nor sufficient for compliance. (Ketchikan Drywall Services, Inc. v. ICE, OCAHO, 8/6/13).
    AILA Doc. No. 13082060.
  • CA9 Holds Petitioner’s Claim Does Not Fall Within Exception to Exhaustion Requirement(500 KB - 8/14/2013)
    The court dismissed the petition for review, holding that the Petitioner failed to exhaust the only issue raised in her petition, an argument that the government denied her due process by placing her in removal proceedings without her husband. (Sola v. Holder, 6/27/13)
    AILA Doc. No. 13081462.
  • CA9 Upholds BIA Finding that CSPA Does Not Apply to NACARA(522 KB - 8/7/2013)
    The court denied the application for special rule of cancellation, finding the Petitioner, who applied for NACARA as a derivative before he was 21 years old but was over 21 when his father was granted relief, failed to demonstrate that the CSPA applies to NACARA. (Tista v. Holder, 7/8/13)
    AILA Doc. No. 13080741.
  • CA9 Remands for BIA to Grant Withholding to Gay Filipino Petitioner(541 KB - 8/7/2013)
    The court granted in part a petition for review, reversing the BIA’s denial of withholding, and holding that the BIA erred by engaging in its own fact-finding, rather than clear error review, in evaluating the harm suffered by a gay Filipino petitioner. (Vitug v. Holder, 7/24/13)
    AILA Doc. No. 13080759.
  • CA9 Remands for BIA to Reconsider Death of Child in Parent’s Past Persecution Claim(520 KB - 8/7/2013)
    The court remanded for the BIA to reconsider the denial of withholding, giving full weight to past persecution evidence of the death of the daughter of the petitioner, who was a Chinese Christian living in Indonesia. (Sumolang v. Holder, 7/25/13)
    AILA Doc. No. 13080730.
  • CA9 Applies Vartelas and Remands §212(c) Relief Claim(547 KB - 8/5/2013)
    The court vacated the BIA decision and remanded, applying Vartelas and holding that the repeal of §212(c) relief impermissibly attaches new legal consequences to the trial conviction of the petitioner. (Cardenas-Delgado v. Holder, 6/26/13)
    AILA Doc. No. 13080555.
  • CA9 Finds District Court Did Not Have Jurisdiction Over Habeas Petition(74 KB - 6/20/2013)
    The court rejected the petitioner’s argument that she was “in custody” for purposes of 28 U.S.C. § 2241 because the government could have reinstated her 1999 removal order at any time, holding that she was not yet subject to a removal order. (Veltmann-Barragan v. Holder, 6/19/13)
    AILA Doc. No. 13062006.
  • CA9 on Physical Presence Requirement for Voluntary Departure Requests(102 KB - 6/13/2013)
    The court held that the term “physically present,” as used in INA §240B(b), requires uninterrupted physical presence in the U.S. for one year for an alien to be eligible for voluntary departure at the conclusion of removal proceedings. (Corro-Barragan v. Holder, 6/10/13)
    AILA Doc. No. 13061305.
  • CA9 Remands Denial of El Salvadoran Asylum Claim(105 KB - 6/13/2013)
    The court directed the BIA to re-evaluate whether the petitioner’s opposition to the FMLN’s strategy of using violence constitutes a political opinion and address whether the petitioner established a likelihood of future persecution. (Regalado-Escobar v. Holder, 6/5/13)
    AILA Doc. No. 13061304.
  • CA9 Finds CA Health & Safety Code § 11359 is Controlled Substances Crime(495 KB - 6/7/2013)
    The court found that the petitioner failed to meet his burden that California Health & Safety Code §11359 could apply to conduct not related to a controlled substance, and held that the conviction is a categorical crime relating to a controlled substance. (Macias-Carreon v. Holder, 5/30/13)
    AILA Doc. No. 13060743.
  • CA9 Finds Petitioner Is Not Eligible for 212(c) Relief(548 KB - 5/29/2013)
    The court held that the petitioner falls outside of the protective scope of §212(c) because he is an aggravated felon who filed for relief after 11/29/90, regardless of when he was initially admitted to the U.S. (Lawrence v. Holder, 5/21/13)
    AILA Doc. No. 13052946.
  • CA9 Rejects Consular Nonreviewability as Basis for Dismissing Case(591 KB - 5/24/2013)
    The court found that the citation to a broad section of the INA that contains numerous categories of proscribed conduct, without any factual allegations to support the finding, is not a facially legitimate reason for denying a visa for the spouse of a U.S. citizen. (Din v. Kerry, 5/23/13)
    AILA Doc. No. 13052448.
  • CA9 Remands Asylum Case of Former Mexican Soldier(545 KB - 5/20/2013)
    The court remanded the asylum case for the BIA to reconsider whether members of a Mexican drug cartel were responsible for the harm suffered by the petitioner, and to determine whether the government is able to control the cartel. (Tapia Madrigal v. Holder, 5/15/13)
    AILA Doc. No. 13052048.
  • CA9 Rejects Matter of Silva-Trevino(616 KB - 5/17/2013)
    The court held that Matter of Silva-Trevino was wrongly decided, and that the IJ and the BIA improperly considered evidence beyond the record of conviction in holding that the petitioner was convicted of a CIMT. (Olivas-Motta v. Holder, 5/17/13)
    AILA Doc. No. 13051745.
  • CA9 on EAJA Fees(477 KB - 5/15/2013)
    The court denied the motion for attorney’s fees, although one Circuit Judge wrote a concurring opinion noting that “EAJA does not work well when it compels a court to cut off compensation of careful and effective advocacy.” (Sargsyan v. Holder, 5/9/13)
    AILA Doc. No. 13051500.
  • CA9 Finds Asylum Applicant’s Proposed Social Group Lacks Sufficient Particularity(516 KB - 5/15/2013)
    The court held that the petitioner’s proposed social group - which he described as disabled persons, insulin-dependent diabetics, or insulin dependent diabetics who suffer from mental illness - lacked sufficient particularity. (Mendoza-Alvarez v. Holder, 5/3/13)
    AILA Doc. No. 13051558.
  • CA9 on Retroactivity of the Nationality Act of 1940(508 KB - 5/7/2013)
    The court held that the plaintiff was not entitled to a declaratory judgment that he is a U.S. Citizen because the Nationality Act of 1940, which liberalized the residency requirement, did not apply retroactively to the plaintiff. (Friend v. Holder, 4/30/13)
    AILA Doc. No. 13050745.
  • CA9 Orders Bond Hearing in Certain Mandatory Detention Cases(597 KB - 4/30/2013)
    The court upheld the preliminary injunction in the class action lawsuit, ordering the government to provide a bond hearing to individuals who have been mandatorily detained in southern California for more than six months. (Rodriguez v. Robbins, 4/16/13)
    AILA Doc. No. 13043048.
  • CA9 on Standard of Review in Citizenship Cases(631 KB - 4/30/2013)
    The court held it is not required to do a de novo review in citizenship cases, and that the district court’s finding that the petitioner is not a U.S. citizen is not clearly erroneous under a “clear and convincing” standard of proof. (Mondaca-Vega v. Holder, 4/25/13)
    AILA Doc. No. 13043047.
  • CA9 Holds Petitioner is Barred from Seeking Cancellation of Removal(465 KB - 4/26/2013)
    The court held that the petitioner could not apply for cancellation of removal because he had already applied for and received cancellation of removal under NACARA in 2003, and so he was ineligible for later relief under §240A. (Sejdini v. Holder, 4/19/13)
    AILA Doc. No. 13042660.
  • CA9 Upholds Constitutionality of INA § 101(f)(7)(76 KB - 4/16/2013)
    The court upheld the constitutionality of INA § 101(f)(7), noting that there are plausible reasons for its conclusive presumption that an individual lacks good moral character based on a period of incarceration. (Romero-Ochoa v. Holder, 4/10/13)
    AILA Doc. No. 13041610.
  • CA9 Vacates BIA Determination on “Particularly Serious Crime”(128 KB - 4/16/2013)
    The court remanded the case, holding that INA §241(b)(3)(B)(iv) establishes only one category of “per se” particularly serious crimes and requires DHS to conduct a case-by-case analysis of convictions falling outside this category. (Blandino-Medina v. Holder, 4/10/13)
    AILA Doc. No. 13041608.
  • CA9 Upholds Denial of Relief to Petitioner Who Practiced Da Zang Gong(99 KB - 4/16/2013)
    The court upheld the BIA’s denial of asylum to the Chinese petitioner who asserted a fear of persecution on account of his practice of Da Zang Gong, finding there was substantial evidence supporting the IJ’s adverse credibility determination. (Cui v. Holder, 4/10/13)
    AILA Doc. No. 13041609.
  • CA9 Holds California Conviction for Assault with a Deadly Weapon is CIMT(546 KB - 4/9/2013)
    The court found that the petitioner’s conviction for assault with a deadly weapon, in violation of California Penal Code §245(a)(1), is a crime involving moral turpitude. (Ceron v. Holder, 4/2/13)
    AILA Doc. No. 13040958.
  • CA9 Holds Petitioner Not Eligible for Continuous Presence Exception(499 KB - 4/9/2013)
    The court held that the petitioner was not eligible for cancellation of removal because he did not qualify for the continuous physical presence exception available to noncitizens who served in active duty in the U.S. Armed Forces. (Lim v. Holder, 3/26/13)
    AILA Doc. No. 13040956.
  • CA9 Affirms Dismissal of Case Alleging Misallocation of EB-3 Visa Numbers(549 KB - 3/28/2013)
    The court affirmed the dismissal of the complaint alleging misallocation of immigrant visas in the EB-3 category during FY2008-09. Judge Reinhardt concurred, but noted the significance of the problems with the U.S. immigrant visa system. (Li v. Kerry, 3/20/13)
    AILA Doc. No. 13032841.
  • • CA9 Strikes Down BIA Blanket Rule Against Nunc Pro Tunc Adoption Decrees (Withdrawn 9/12/13)(1039 KB - 3/26/2013)
    The court held that the BIA’s blanket rule against giving effect to state court adoption decrees entered nunc pro tunc after a child turned 16 constitutes an impermissible construction of INA §101(b)(1)(E). (Amponsah v. Holder, 3/22/13)
    AILA Doc. No. 13032651.
  • CA9 Holds CA Conviction for Misdemeanor Sexual Battery is CIMT(488 KB - 3/14/2013)
    The court held that there was no realistic probability that California would apply CA Penal Code §243.4(e), misdemeanor sexual battery, to conduct that is not morally turpitudinous. (Gonzalez-Cervantes v. Holder, 3/8/13)
    AILA Doc. No. 13031451.
  • CA9 Holds Government Needs Reasonable Suspicion to Search Laptop at Border(673 KB - 3/13/2013)
    The en banc court held that the forensic examination of the criminal defendant’s computer required a showing of reasonable suspicion under the Fourth Amendment. (United States v. Cotterman, 3/8/13)
    AILA Doc. No. 13031347.
  • CA9 On Illegal Reentry Under INA §241(a)(5)(91 KB - 3/4/2013)
    The court held the petitioner’s last entry to the U.S., in which he showed officials his invalid registration card and they allowed him to enter, met the illegal reentry requirement in §241(a)(5) despite being procedurally regular. (Tamayo-Tamayo v. Holder, 2/28/13, amended 6/18/13)
    AILA Doc. No. 13030454.
  • CA9 Upholds BIA’s Adverse Determination on Extraordinary Circumstances(516 KB - 2/25/2013)
    The court held the asylum application was time-barred, and found the primary reasons the petitioner delayed filing her application were lack of money and inability to speak English, and not the psychiatric problems she suffered. (Gasparyan v. Holder, 2/20/13)
    AILA Doc. No. 13022567.
  • CA9 Remands Asylum Case on Social Visibility Requirement(588 KB - 2/19/2013)
    In an en banc decision, the court held that the BIA misapplied its own precedent on social group membership when it denied petitioner’s asylum claim because of a lack of “social visibility.” (Henriquez-Rivas v. Holder, 2/13/13)
    AILA Doc. No. 13021952.
  • CA9 Remands Case to Allow Petitioner to File Cancellation Application(468 KB - 2/8/2013)
    The court held that the BIA erred in finding that the petitioner did not comply with Lozada in his ineffective assistance of counsel claim, noting it does not require a specific type of submission to prove a bar complaint was filed. (Correa-Rivera v. Holder, 2/6/13)
    AILA Doc. No. 12020850.
  • CA9 Denies Adjustment Where Record on Drug Conviction Is Inconclusive(488 KB - 2/8/2013)
    The court held that the petitioner is ineligible for adjustment due to a 1997 conviction for possession of marijuana for sale, finding the record was unclear as to whether the state court changed his conviction to simple possession. (Lopez-Vasquez v. Holder, 2/1/13)
    AILA Doc. No. 13020849.
  • CA9 Holds California Conviction for False Imprisonment is an Aggravated Felony(460 KB - 2/1/2013)
    The court held that a conviction under California Penal Code §210.5 for false imprisonment is a categorical crime of violence because it involves a substantial risk that force may be used. (Barragan-Lopez v. Holder, 1/29/13)
    AILA Doc. No. 13020151.
  • CA9 Issues Third Opinion in Case on Unlawful Presence and the Permanent Bar (Updated 1/31/13)(1005 KB - 1/31/2013)
    The court removed language permitting the accrual of pre-IIRIRA unlawful presence, denied relief under 212(a)(9)(C)(i)(II), and held that the application of Torres-Garcia to Petitioner was not impermissibly retroactive. (Carrillo de Palacios v. Holder, 1/28/13)
    AILA Doc. No. 11062362.
  • CA9 on Resisting Arrest as a Particularly Serious Crime(559 KB - 1/24/2013)
    The court remanded the case, holding that the BIA did not adequately explain its conclusion that the petitioner’s California conviction for resisting arrest constituted a particularly serious crime. (Alphonsus v. Holder, 1/18/13)
    AILA Doc. No. 13012448.
  • CA9 Holds California Conviction for Simple Kidnapping Not Categorically a CIMT(515 KB - 1/14/2013)
    The court held that simple kidnapping under CPC §207(a) is not categorically a CIMT because it does not involve any elements of a CIMT and California courts have applied the statutes to conduct that is not morally turpitudinous. (Castrijon-Garcia v. Holder, 1/9/13)
    AILA Doc. No. 13011442.
  • CA9 Says IJ May Consider Criminal Act without Conviction in Denying Voluntary Departure(498 KB - 1/3/2013)
    The court held that evidence of bad character is relevant to the IJ’s discretionary decision regarding voluntary departure and upheld the denial where Petitioner admitted to sexual conduct with a minor, even though he was not convicted. (Rojas v. Holder, 12/28/12)
    AILA Doc. No. 13010344.
  • CA9 Upholds IJ’s Finding that Passenger in Car Engaged in Smuggling(504 KB - 1/3/2013)
    The court distinguished Aguilar Gonzalez, finding that Petitioner was more than a passive participant in the attempted smuggling of a friend’s daughter, but rather knowingly participated in and aided the attempted entry. (Sanchez v. Holder, 12/26/12)
    AILA Doc. No. 13010343.
  • CA9 Discusses “Alternative Means of Immigrating” as a Hardship Factor(559 KB - 1/2/2013)
    The court held that the BIA erred as a matter of law by considering Petitioner’s alternative means of immigrating to the U.S. at an undefined point in the future as a factor that necessarily undercuts her claim of hardship. (Arteaga-De Alvarez v. Holder, 12/26/12)
    AILA Doc. No. 13010248.
 
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