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Cases & Decisions
CA9 Vacates AWO Case and Remands for BIA Opinion
The Ninth Circuit vacated an AWO decision because the AWO prevented the court from knowing the BIA's actual reasons for its decision, and thus prevented the court from discerning its own jurisdiction. (
Lanza v. Ashcroft
AILA Doc. No. 04122713.
CA9 Strikes Down Reinstatement Regulation
The court invalidated the regulation permitting DHS officers to unilaterally reinstate a prior order without a hearing. The court held that the regulation was ultra vires to INA § 240, which requires an immigration judge to determine removabililty. (
Morales-Izquierdo v. Ashcroft
AILA Doc. No. 04120168.
Finding Past Persecution, CA9 Reverses IJ Determination
In finding that petitioner suffered past persecution, the court affirmed that a showing of serious bodily injury or medical attention is
required to establish persecution. (
Mihalev v. Ashcroft
AILA Doc. No. 04112263.
CA9 Refuses to Extend Lujan-Armendariz to Convictions That Have Not Yet Been Expunged
CA9 held that a state drug conviction that could be expunged and would otherwise qualify for first offender treatment, but has not yet been expunged, can serve as the basis for removal. (
Chavez-Perez v. Ashcroft
AILA Doc. No. 04110870.
CA9 Finds Violation of the Right to Choice of Counsel
The court held that petitioners were denied their due process right to counsel of their choice when the IJ banned an entire law firm from representing them at their deportation hearing. (
Baltazar-Alcazar v. Ashcroft
AILA Doc. No. 04102914.
CA9 Finds “Disfavored Status” of Ethnic Chinese in Indonesia Supports Well-Founded Fear of Persecution
The court held that the record established that ethnic Chinese in Indonesia have "disfavored status" and that petitioner was specifically targeted for persecution. Thus, the court concluded that petitioner had a well-founded fear of persecution. (
Sael v. Ashcroft
AILA Doc. No. 04102617.
CA9 Permits Post-Removal Habeas Review Over Citizenship Claim
The court held that petitioners have a Fifth Amendment right to review of colorable citizenship claims and may obtain such review via habeas corpus even after accepting deportation and waiving their right to appeal an IJ's decision. (
Rivera v. Ashcroft
AILA Doc. No. 04102616.
CA9 Strikes Down Age-Out Provisions of V Visa Regulation
The court held that by re-separating families originally reunited under the LIFE Act, the age-out provisions in 8 C.F.R. § 214.15(g) (terminating V nonimmigrant status the day before the visa holder’s 21st birthday) were contrary to the congressional intent. (
Akhtar v. Burzynski
AILA Doc. No. 04102260.
CA9 Applies Exhaustion Exception and Orders Remand in Repapering Case
The court reaffirmed that issues arising after briefing to the BIA is completed need not be exhausted. The court remanded the issue of whether the BIA was obligated to follow INS and EOIR memoranda instructing repapering. (
Alacaraz v. INS
AILA Doc. No. 04102199.
CA9 Affirms Dismissal of Post-Removal Detention Habeas Petitions Filed Before the 90-Day Removal Period Expired (Updated 11/8/04)
The court held that habeas petitioners whose removal is not reasonably foreseeable cannot raise a colorable due process claim for release until the 90-day removal period has expired. (
Khoutesouvan et al. v. Morones
AILA Doc. No. 04100572.
CA9 Withdraws Armentero Decision Regarding Whom to Sue in Habeas Cases
The court granted the government’s rehearing petition, withdrew its prior published decision, and deferred submission of the case pending oral argument. (
Armentero v. INS
AILA Doc. No. 04091660.
CA9 Finds Ineffective Assistance of Counsel Due Process Violations Apply Only After Proceedings Commence
The court found that prior counsel’s erroneous advice regarding eligibility for relief did not amount to a due process violation because the erroneous advice was given prior to commencement of proceedings and, thus, did not taint the hearing itself. (
Lara-Torres v. Ashcroft
AILA Doc. No. 04091566.
CA9 Rules Section 241(a)(5) Reinstatement Impermissible
Applying the rationale of
to INA § 241(a)(5)’s bar to “review,” the court held that habeas review remains available to raise a due process challenge to a prior order that has been reinstated. (
Arreola-Arreola v. Ashcroft
AILA Doc. No. 04091565.
CA9 Affirms That State Felony Simple Possession Conviction Not an Aggravated Felony
The court held that state felony drug offenses are not aggravated felonies for immigration purposes unless the offense contains a drug trafficking element or is punishable under federal law. (
Cazarez-Gutierrez v. Ashcroft
AILA Doc. No. 04091414.
CA9 Denies Untimely EAJA Motion
The court held that petitioner had erroneously calculated the filing deadline for requesting attorneys’ fees under the Equal Access to Justice Act by using the date the mandate issued rather than the date of “final judgment.” (
Zheng v. INS
AILA Doc. No. 04091375.
CA9 Upholds Asylum Denial in FGM Case
CA9 affirmed the denials of asylum and withholding, reasoning that the fear was not well-founded because both petitioners testified that they would not allow their daughter to undergo FGM, even if they were ostracized by their families. (
Abebe v. Ashcroft
AILA Doc. No. 04091367.
CA9 Addresses Whether Returning LPR is Properly Charged with Inadmissibility for Making a False USC Claim
The court ruled that the BIA’s failure to decide whether petitioner was convicted of a CIMT made it impossible to determine whether he was “seeking admission” under INA § 101(a)(13)(C)(v) and, therefore, whether he could be charged with inadmissibility. (
Toro-Romero v. Ashcroft
AILA Doc. No. 04091362.
CA9 Limits DHS’ Power to Reinstate and Deny AOS
CA9 held: adjustment applicants who filed I-212s prior to reinstatement proceedings are not subject to reinstatement; § 245(i) applicants are not subject to INA § 212(a)(6)(A)(i); an approved I-212 waives INA § 212(a)(9), including the permanent bar. (
Perez-Gonzales v. Ashcroft
AILA Doc. No. 04082743.
CA9 Reverses Asylum Denial Where Claim Based on Mixed-Race, Mixed Religion Marriage in Fiji
A9 found that the cumulative effect of threats and attacks on petitioners by their family members was sufficient to establish past persecution and that the Fijian government was unable or unwilling to control petitioners’ persecutors. (
Faruk v. Ashcroft
AILA Doc. No. 04082468.
CA9 Finds That BIA Erroneously Applied AWO Regulation, Remands Case
CA9 found that streamlining was not warranted because the issue, whether deferred enforced departure is the equivalent of parole for purposes of adjustment of status under the Chinese Student Protection Act, was novel and applicable to numerous others. (
Chong Shin Chen v. Ashcroft
AILA Doc. No. 04082467.
CA9 Finds Extreme Economic Discrimination Against Palestinians Supports Fear of Future Persecution
The court found that petitioners “would not be able to avoid the state-sponsored economic discrimination” against Palestinians in Kuwait and also held that they could not be removed to Jordan there was no evidence that Jordan was willing to accept them. (
El Himri v. Ashcroft
AILA Doc. No. 04082466.
CA9 Addresses 2001 Regulation Expanding Asylum Eligibility
CA9 held that, pursuant to 8 CFR §1208.13(b)(1)(iii)(B), asylum may be granted if an applicant establishes past persecution on account of a protected ground and a reasonable possibility of "other serious harm" which need not be on account of a protected ground.(
Belishta v. Ashcroft
AILA Doc. No. 04082464.
CA9 Finds Persecution on Account of Political Opinion in Mixed Motive Case
Reversing the IJ’s conclusion that the persecutor’s sole motivation was a desire for revenge against petitioner’s father, CA9 held that persecution inflicted at the behest of an influential criminal figurehead was at least in part on account of political opinion. (
Deloso v. Ashcroft
AILA Doc. No. 04081766.
CA9 Finds Failure to Timely File BIA Appeal Amounted to Prejudicial Ineffective Assistance of Counsel
Even though the BIA considered a later motion to reopen, the court found that petitioners had been prejudiced by prior counsel’s failure to timely file a notice of appeal, in part because they were deprived of the in-depth review of the IJ's factual conclusion. (
Siong v. Ashcroft
AILA Doc. No. 04081322.
CA9 Amends Rationale in Prior Decision Barring Relief Where Motion to Reopen was Filed After Voluntary Departure Period Expired
CA9 amended its rationale in a prior decision which barred relief for an individual who overstayed voluntary departure where a motion to reopen was filed after the voluntary departure period, but before the end of the 90-day period for an MTR. (
DeMartinez v. Ashcroft
, Amended 7/2/04)
AILA Doc. No. 04081362.
CA9 Finds Persons Born In the Commonwealth of the Northern Mariana Islands after 1/9/78 are U.S. Citizens
The Ninth Circuit held that persons born in the Commonwealth of the Northern Mariana Islands (CNMI) after 1/9/78, the effective date of the Covenant between the CNMI and the United States, are U.S. citizens. (
Sabangan et al. v. Powell
AILA Doc. No. 04080973.
CA9 Finds Harm to Relatives Abroad Supports Well-Founded Fear of Persecution
CA9 found that petitioner’s credibility, the lack of contradictory evidence, and the evidence of harm to relatives abroad compelled a conclusion that the denials of petitioner’s applications for asylum and withholding were not supported by substantial evidence. (
Njuguna v. Ashcroft
AILA Doc. No. 04080970.
CA9 Finds It Lacks Jurisdiction to Review Fraud Waiver
(38 KB - 8/9/2004)
Court finds a review of the decision affirming statutory ineligibility for an INA § 237(a)(1)(H) waiver would be futile because of the alternative holding that even if the petitioner were eligible, he wouldn't merit a favorable exercise of discretion. (
San Pedro v. Ashcroft
AILA Doc. No. 04080968.
CA9 Holds that Circumstantial Evidence of Mixed Motive May Suffice for Asylum
The court reiterated that it has “consistently allowed circumstantial evidence to suffice” as evidence of motive and that "many persecutors have mixed motives." (
Garcia-Martinez v. Ashcroft
AILA Doc. No. 04072762.
CA9 Finds Unexcused Failure to Timely File Petition for Review Bars Habeas Corpus Review
CA9 addressed prudential exhaustion, holding that filing a petition for review constitutes a judicial remedy which, absent certain circumstances, must be exhausted before a petitioner may obtain habeas review. (
Liang v. Ashcroft
, 6/7/2004 &
Acevedo-Carranza v. Ashcroft
AILA Doc. No. 04072672.
CA9 Requires Claim-Based Exhaustion Before the BIA in Habeas Case
CA9 reasoned that mandating exhaustion in habeas actions did not conflict with the distinction between “judicial review” and “habeas corpus” in
and held that petitioner failed to exhaust because he could have raised his claims with the BIA. (
Sokha Sun v. Ashcroft
AILA Doc. No. 04072667.
CA9 Finds Bar to Review Where IJ Had Reason to Believe Illicit Drug Trafficking Activity
The Ninth Circuit held that the bar to judicial review of a removal order may apply when an Immigration Judge finds "reason to believe" the alien was involved in illicit drug trafficking. (
Lopez-Molina v. Ashcroft
AILA Doc. No. 04072663.
CA9 Finds that Voluntary Departure Period is Automatically Stayed in Pending Transitional Rule Cases
CA9 held that in transitional rule cases, the voluntary departure period does not begin to run until the circuit court’s mandate issues. (
Elian v. Ashcroft
AILA Doc. No. 04072662.
CA9 Limits Review to Official Record in Domestic Violence Removability Determination
Using the categorical approach set forth by the Supreme Court in
Taylor v. United States
, CA9 held that the IJ erred when he considered facts regarding petitioner’s domestic violence conviction which were not part of the official record of conviction. (
Tokatly v. Ashcroft
AILA Doc. No. 04072661.
CA9 Adopts BIA’s Test for Determining Whether an Individual Has Effectuated an “Entry” Under Pre-IIRIRA Law
CA9 held that no entry was effectuated under former INA § 101(a)(13) when petitioner was detained before exiting the secondary inspection area (
Sidhu v. Ashcroft
, 5/27/04); and when INS failed to promptly issue a parole extension (
Mariscal-Sandoval v. Ashcroft
AILA Doc. No. 04071267.
CA9 Denies Motion for Stay of Voluntary Departure Period Filed After Expiration of Such Period
The Court reiterated that a petition for review does not automatically stay the voluntary departure period, and found that a Motion to Stay filed after the period expired is essentially a request to extend or reinstate the period. (
Garcia v. Ashcroft
AILA Doc. No. 04070999.
CA9 Withdraws Prior Decision Finding No Aggravated Felony in Drug Case
To review whether jurisdiction vests with the Court, CA9 withdrew its prior decision holding that a state felony drug offense is not an aggravated felony unless the offense contains a drug trafficking element or is punishable under federal law. (
Cazarez-Gutierrez v. Ashcroft
AILA Doc. No. 04051163.
CA9 Rejects Government's Arguments on Exception to Zadvydas' Indefinite Detention Bar
CA9 rejected the govt's argument of an exception to Zadvydas' 6-month limitation on detention of post-final order permanent residents for particularly dangerous individuals where there are circumstances, such as mental illness, that help to create the danger. (
Tuan Thai v. Ashcroft
AILA Doc. No. 04051161.
CA9 Holds Failure to Notify Petitioner of Impact of Departure Is Violation of Due Process
The Ninth Circuit held that application of the rule that a departure while a BIA appeal is pending results in withdrawal of the appeal, where the petitioner was not notified of the impact of the departure, violates due process. (
Martinez De Bojorquez v. Ashcroft
AILA Doc. No. 04043071.
CA9 Applies Bar to Relief for Overstaying VD To Motion to Reopen Petitioner
The Ninth Circuit held that the bar to relief for overstaying voluntary departure applies to an individual who filed a motion to reopen for adjustment of status after the VD period ended but before the end of the 90-day period for a motion to reopen. (
DeMartinez v. Ashcroft
AILA Doc. No. 04043066.
CA9 Finds Due Process Violation in Proceeding After Withdrawal of Counsel
The Ninth Circuit found that the IJ violated due process by permitting counsel to withdraw without advising petitioner of his right to counsel or asking for a waiver of the right, and continuing the hearing for only 2 hours after the withdrawal.(
Tawadrus v. Ashcroft
AILA Doc. No. 04042962.
CA9 Affirms Denial of Asylum and Withholding Based on Terrorist/National Security Grounds
CA9 found lack of jurisdiction to review an IJ determination that a petitioner who, the judge concluded, had engaged in terrorist activity, and held that substantial evidence supported a finding of ineligibility for withholding as a likely danger to security. (
Bellout v. Ashcroft
AILA Doc. No. 04042961.
CA9 Construes Motion for Stay of Removal as Motion to Stay Voluntary Departure Period
CA9 held that a motion for a stay of removal filed during the pendency of a petition for review will be construed to include a motion to stay voluntary departure provided the motion for a stay of removal is filed prior to the expiration of the VD period. (
Desta v. Ashcroft
AILA Doc. No. 04042767.
CA9 Finds It Has Jurisdiction to Review Discretionary Denial of Motion to Reopen
The Ninth Circuit held that it had jurisdiction to review a motion to reopen by a respondent granted voluntary departure who sought to resurrect an abandoned adjustment application based on his relationship to a USC stepfather. (
Medina-Morales v. Ashcroft
AILA Doc. No. 04041363.
CA9 Remands for Consideration Five-Year Bar to Adjustment
CA9 remanded for consideration of whether the 5-year bar for failing to depart during a voluntary departure period continued to bar petitioner from adjustment of status, where the bar period expired while the petition for review was pending. (
Velezmoro v. Ashcroft
AILA Doc. No. 04041275.
CA9 Finds Jurisdictional Authority and Denies Appeal in Marriage Fraud Case
CA9 held that the determination of whether a marriage was good faith and not for the purpose of evading U.S. immigration law was not a discretionary decision within INA § 242(a)(2)(B)’s bar to review, but found sufficient evidence of fraud. (
Nakamoto v. Ashcroft
AILA Doc. No. 04041274.
CA9 Affirms Denial of Untimely Motion to Reopen, But Remands for CAT Claim
CA9 held that a change in asylum law does not constitute "changed circumstances" for an untimely motion to reopen, but remanded on holding that torture for CAT purposes may occur while in the custody or physical control of public officials or private individuals. (
Azanor v. Ashcroft
AILA Doc. No. 04041273.
CA9 Finds Self-Defense is Not a Persecutory Act
Holding that the determination of whether an individual engaged in the persecution of others must be individualized, and that self-defense is not to be considered a persecutory act, the Ninth Circuit remanded the case for a new hearing. (
Vukmirovic v. Ashcroft
AILA Doc. No. 04041272.
CA9 Concludes that California Conviction for Mayhem with a Sentence Longer than One Year is a Crime of Violence
CA9 held that the statutory definition of mayhem implies a substantial risk that physical force may be used in the process of committing the offense, and a conviction for mayhem with a sentence longer than one year is a crime of violence. (
Ruiz-Morales v. Ashcroft
AILA Doc. No. 04041268.
CA9 Grants Asylum to Spouse Where the Marriage was Not Legally Recognized by the Chinese Government
CA9 held that a spouse married in a traditional Chinese wedding ceremony can establish past persecution and qualify as a refugee based of his wife’s forced abortion and sterilization, notwithstanding the fact that China would not legally recognize the marriage. (
Ma v. Ashcroft
AILA Doc. No. 04041267.
CA9 Reviews EAJA Fees Application as Unopposed When Government Fails to Timely File Opposition
The Ninth Circuit granted EAJA fees, finding that it was within its discretion to consider the EAJA fees application to be unopposed when the government failed to timely file opposition without substantial justification. (
Gwaduri v. INS
AILA Doc. No. 04041266.
CA9 Reverses Denial of the Waiver of the Joint Filing Requirement for Petition to Removal of Conditions
Finding sufficient evidence of the bona fides of the marriage and the IJ to have improperly imposed personal values, CA9 reversed the IJ's denial of the application to waive the joint filing requirements of the petition to remove conditions. (
Damon v. Ashcroft
AILA Doc. No. 04041265.
CA9 Concludes First Lawful Admission Date Governs in Grounds of Removal
CA9 held that the first lawful admission date constitutes the relevant admission date where there may be two or more possible admission dates, for purposes of deportability under INA § 237(a)(2)(A)(i). (
Shivaraman v. Ashcroft
AILA Doc. No. 04033068.
CA9 Requires Notice of Hearing to Both Minor and Adult to Whom the Minor is Released
In requiring notice to the adult, CA9 reasoned that "the regulatory framework ...contemplates that no minor alien under age eighteen should be presumed responsible for understanding his rights and responsibilities ... at final immigration proceedings." (
Flores-Chavez v. Ashcroft
AILA Doc. No. 04033066.
CA9 Holds that Habeas Stay Request is Not Governed by 242(f)(2)
The Circuit Court held that it had jurisdiction in the interlocutory appeal, and that the section 242(f)(2) bar to enjoining removal applied only to permanent injunction requests, whereas the Habeas request was for a temporary injunction. (
Faruqi v. DHS
AILA Doc. No. 04031612.
CA9 Finds No Time Limitation on Motion to Reopen Under Former INA § 242B(c)(3)(B)
The Ninth Circuit held that neither the statute nor any BIA or Court interpretations place any time limits on filing a Motion to Reopen an in absentia order based on lack of notice under former INA § 242B(c)(3)(B). (
Andia v. Ashcroft
AILA Doc. No. 04031611.
CA9 Finds the CSPA Applies to Adjustment Applications Pending on Appeal
CA9 held that the Child Protection Act applies to individuals who had pending adjustment applications on appeal on the date of enactment, 8/6/02. The Court rejected the government’s argument that “final determination” meant the final agency decision. (
Padash v. Ashcroft
AILA Doc. No. 04030171.
CA9 Holds that the Lautenberg Amendment Does Not Apply to Asylum Applicants
Holding that there is no equal protection violation, the Ninth Circuit found that the Lautenberg Amendments apply to only refugees outside the United States, and not to asylum applicants within the United States. (
Halaim v. Ashcroft
AILA Doc. No. 04030170.
CA9 Remands Ag Fel Re-Entry Case for Review of Prejudice in Prior Defective Removal
Remanding for review of prejudice in petitioner's removal hearing, CA9 found the prior aggravated felony removal to be defective. (
U.S. v. Pallares-Galan
AILA Doc. No. 04030163.
CA9 Finds No Jurisdiction to Review Due Process Claim Where Not Raised Below
The Ninth Circuit found that the petitioner must have raised his challenges with the IJ or the BIA for the Circuit to have jurisdiction to review claims of due process rights violations. (
Barron v. Ashcroft
AILA Doc. No. 04022061.
CA9 Finds Resistence to Coercive Population Control Program Sufficient for Asylum
CA9 found the petitioner eligible for asylum because she had been forced to undergo a pregnancy exam, threatened with forced abortion and sterilization of her husband, denied a marriage license, and an arrest warrant was issued for her. (
Li v. Ashcroft
AILA Doc. No. 04020611.
CA9 Finds State Felony Simple Possession Conviction is Not an Aggravated Felony under the INA (Decision Withdrawn by Court Order on 04/26/04)
Joining CA2 and 3, the Ninth Circuit held that state felony drug offenses are not aggravated felonies unless the offense contains a drug trafficking element or is punishable under federal law. (
Cazarez-Gutierrez v. Ashcroft
AILA Doc. No. 04020610.
CA9 Reverses Asylum Denial for Iranian
CA9 reversed the BIA and the IJ, finding that where mixed motives for persecution are present, asylum eligibility is satisfied if it is shown that at least one of the motives is “on account of” one of the statutory grounds. (
Rabie Jahed v. INS
AILA Doc. No. 04012811.
CA9 Reverses BIA Denial of Ineffective Assistance of Counsel Motion to Reopen for Minor
The Court found that the minor's counsel was incompetent, and that the minor was denied a full and fair hearing because the IJ "may have to take an affirmative role in securing representation by competent counsel" and did not do so. (
Lin v. Ashcroft
AILA Doc. No. 04020212.
CA9 Reverses Finding of Lack of Credibility in Asylum/CAT Case
CA9 reversed an IJ's holding of lack of credibility based on the petitioner's demeanor and method of answering questions, when there were no major inconsistencies in his testimony and he was not given a chance to explain the lack of corroborating evidence. (
Arulampalam v. Ashcroft
AILA Doc. No. 04010524.
CA9 Refuses to Toll DV Adjustment Deadline
The Ninth Circuit held that the statutory deadline for filing an adjustment of status application based on the DV lottery cannot be equitably tolled where the petitioner was defrauded by a notary. (
AILA Doc. No. 04010523.
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