Set Text Size:

S

S

S

2007

  • Duran Gonzalez Q&A by AILF and Co-Counsel (12/31/2007)
    Class counsel in Duran Gonzalez addresses issues that have arisen following the Ninth Circuit’s adverse decision, including the effective date of the decision, qualifications for class membership, and strategies for class members and others affected by the decision. See Duran Gonzales v. DHS, No. 07-35021, __ F.3d __ (9th Cir. Nov. 30, 2007). AILA Doc. No. 07123165.
  • CA9 Finds Asylum Applicant May Authenticate Documents by Own Testimony (12/28/2007)
    The court held that an asylum applicant may seek to authenticate public documents by any established means – including through an applicant’s own testimony if consistent with the Federal Rules of Evidence. The court found that the IJ erred in requiring official certification. (Vatyan v. Mukasey, 11/27/07). AILA Doc. No. 07122869.
  • CA9 Finds BIA Abused Discretion in Denying MTR Based on Ineffective Counsel (12/16/2007)
    The court held that Petitioner had been deprived of meaningful review due to the ineffective assistance of her counsel and that she was entitled to a presumption of prejudice. The court found that Petitioner failed to establish past persecution in Armenia, but remanded the issue of future persecution to the BIA. (Grigoryan v. Keisler, 11/19/07). AILA Doc. No. 07121663.
  • CA9 Finds AZ Solicitation to Possess 4 Pounds of Marijuana for Sale is a CIMT (12/14/2007)
    The court held that a conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. §13-1002(A) and (B)(2), and §13-3405(A)(2) and (B)(6) is a crime involving moral turpitude. (Barragan-Lopez v. Mukasey, 11/21/07) AILA Doc. No. 07121436.
  • CA9 Finds INA §242(g) Bars Jurisdiction Over Bivens Action for False Arrest (12/7/2007)
    The court held that INA §242(g) barred district court jurisdiction over Plaintiffs’ Bivens claim for false arrest because it arose “from the decision or action by the Attorney General to commence [removal] proceedings,” and an alternative habeas remedy addressing the injury was available under INA §242(e)(2). (Sissoko v. Rocha, 11/14/07). AILA Doc. No. 07120769.
  • CA9 Finds Bangladeshi Bihari Eligible for Asylum & Disfavored Group Member (12/4/2007)
    The court held that the cumulative effect of the harms that Petitioner suffered was so severe that no reasonable fact-finder could conclude that it did not rise to the level of persecution. The court held that Petitioner showed a well-founded fear because Biharis are a disfavored group and he is likely to be targeted. (Ahmed v. Keisler, 10/16/07). AILA Doc. No. 07120461.
  • CA9 Vacates Preliminary Injunction in I-212, Perez-Gonzalez Class Action (12/3/2007)
    The Ninth Circuit ruled in favor of the government and vacated the preliminary injunction in Duran Gonzalez v. DHS, a class action challenging the Department of Homeland Security’s willful refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). The court held that the rule in Perez Gonzalez is no longer the law of the circuit. AILA Doc. No. 07120362.
  • CA9 Finds AZ Attempted Public Sexual Indecency to a Minor Not an Aggravated Felony (11/5/2007)
    The court held that attempted public sexual indecency to a minor under ARS §§13-1001, 13-1403(B) does not constitute attempt to commit the sexual abuse of a minor under INA §101(a)(43)(A) and (U) under either the categorical approach, or based on Petitioner’s record of conviction, the modified categorical approach. (Rebilas v. Keisler, 11/2/07). AILA Doc. No. 07110532.
  • CA9 En Banc Court Vacates Suntharalinkam v. Gonzales (Updated 11/5/07) (10/24/2007)
    Over dissent by Judge Kozinski, the en banc court granted Petitioner’s motion to withdraw his petition for review, conditioned, at the government’s request, upon vacatur of the panel opinion reported at 458 F.3d 1034 (9th Cir. 2006). (Suntharalinkam v. Keisler, 10/31/07). AILA Doc. No. 06091911.
  • CA9 Finds CA Statutory Rape Statute Does Not Categorically Involve Moral Turpitude (10/16/2007)
    The court held that Cal. Penal Code §261.5(d), which prohibits engaging in intercourse with a minor under the age of 16 where the perpetrator is 21 years of age or older, is not categorically a crime involving moral turpitude. (Quintero-Salazar v. Keisler, 10/9/07). AILA Doc. No. 07101660.
  • CA9 Holds Birth of Two USC Children Is Not a Basis for MTR for Asylum (10/15/2007)
    The court, addressing an issue of first impression, held that Chinese asylum applicants could not establish changed circumstances sufficient to satisfy the exception to the time and numerical bars applicable to a motion to reopen based on the birth of children in the United States and the threat of forced sterilization. (He v. Gonzales, 9/4/07). AILA Doc. No. 07101562.
  • CA9 Finds IJ Erred in Denying Asylum as a Matter of Discretion (10/12/2007)
    The court found that Petitioner’s use of false documents in fleeing Iraq was not a proper reason for a discretionary denial of asylum. The court also found that Petitioner presented clear reasons for not applying for asylum in 3 other countries. The court held that under Pula the denial of asylum was not appropriate. (Gulla v. Gonzales, 8/13/07). AILA Doc. No. 07101261.
  • CA9 Reverses IJ’s Determination that Asylum Seeker Must Prove Identity (10/12/2007)
    The court held that INA §208(d)(5)(A) imposes duties on the AG and the Secretary of State to check the identities of asylum applicants and that there is no new burden on an asylum-seeker under this provision. The court held that the IJ erred in finding that the statute required the applicant to provide information. (Kalouma v. Gonzales, 8/28/07). AILA Doc. No. 07101260.
  • CA9 En Banc Court Holds Accessory After the Fact is Not a Crime Involving Moral Turpitude (9/26/2007)
    The court held that a conviction for accessory after the fact under Cal. Penal Code §32 is not a crime involving moral turpitude because the conduct underlying the conviction does not necessarily involve baseness or depravity nor does the statute require a showing of such conduct to sustain a conviction. (Navarro-Lopez v. Gonzales, 09/19/07). AILA Doc. No. 07092667.
  • CA9 Discusses Aggravated Felony Fraud Provisions in the Context of Federal Tax Crimes (9/26/2007)
    The court held that subscribing to a false statement on a tax return in violation of 26 USC §7206(1), and aiding and assisting in the preparation of a false tax return in violation of 26 USC §7206(2), are aggravated felonies under INA §101(a)(43)(M)(i), where the loss to the government exceeds $10,000. (Kawashima v. Gonzales, 9/18/07). AILA Doc. No. 07092666.
  • CA9 Finds Arizona Aggravated DUI a Crime Involving Moral Turpitude (9/26/2007)
    A violation of Arizona Revised Statutes §28-1381(A)(1), driving under the influence aggravated by operating a vehicle without a valid license, is a crime involving moral turpitude. (Marmolejo-Campos v. Gonzales, 9/12/07). AILA Doc. No. 07092665.
  • CA9 Holds Smuggling Continues Until the Smuggler Ceases to Transport Individuals (6/11/2007)
    The court held that smuggling as defined in INA §212(a)(6)(E)(i), continues until the initial transporter ceases to transport the individuals. The court found that Petitioner knowingly aided and abetted the smuggling venture which barred him from establishing good moral character for suspension of deportation. (Covarrubias v. Gonzales, 5/29/07). AILA Doc. No. 07061167.
  • CA9 Refuses to Allow FFOA Treatment Where Pretrial Diversion Was Previously Granted (9/26/2007)
    The court held that Petitioner could not avoid the immigration consequences of a drug conviction as a “first time offender” when, as the result of a previous arrest for drug possession, he was granted “pretrial diversion” under a state rehabilitation scheme that did not require him to plead guilty. (Melendez v. Gonzales, 9/19/07). AILA Doc. No. 07092664.
  • CA9 Finds IJ Should Consider Asylum Claim from Small Child’s Perspective (9/18/2007)
    The court articulated a new rule. The court found that the IJ erred in not looking at the events from the perspective of Petitioners who were children at the time of the past harm. The court found that the IJ should have measured the degree of their injuries by their impact on children of their ages. (Hernandez-Ortiz v. Gonzales, 8/8/07). AILA Doc. No. 07091868.
  • CA9 Finds Cambodian Prison Guard Not Subject to Persecutor Bar to Asylum (9/18/2007)
    The court found that a Cambodian prison guard, who unlocked doors to prisoners’ cells based on instructions from superiors and led them back to their cells after interrogations, was not subject to the persecutor bar to asylum and withholding. The court held that his acts were not integral to the persecution of prisoners. (Im v. Gonzales, 8/13/07). AILA Doc. No. 07091867.
  • CA9 Finds Conditional Parolee under INA §236(a) Ineligible for Adjustment of Status (9/17/2007)
    The court held that a person who is conditionally paroled under INA §236(a) is not “paroled into the United States” for purposes of adjustment of status under INA §245(a). (Ortega-Cervantes v. Gonzales, 9/4/07). AILA Doc. No. 07091766.
  • CA9 Remands for Proper Country of Removal; Refuses to Rule on W/H and CAT (9/7/2007)
    The court found that IJ did not follow the proper steps under the Supreme Court case in Jama v. ICE and erred in designating Ethiopia as the country of removal. The court refused to rule on the withholding of removal and Convention Against Torture claims because each presumes Petitioner’s removal to Ethiopia. (Hadera v. Gonzales, 7/18/07). AILA Doc. No. 07090768.
  • CA9 Discusses Drug Trafficking as Particularly Serious Crime Bar to Withholding (9/4/2007)
    The court held that the AG did not exceed his authority by creating a strong presumption that drug trafficking offenses constitute particularly serious crimes in Matter of Y-L-, but found that the BIA erred in applying Y-L- to Petitioner, who pleaded guilty to a drug trafficking offense prior to the decision. (Miguel-Miguel v. Gonzales, 8/29/07). AILA Doc. No. 07090473.
  • CA9 Finds Petitioner Eligible for Cancellation Based on Inconclusive Record of Conviction (9/4/2007)
    The court found that in submitting a record of conviction that is inconclusive as to the exact nature of his conviction, Petitioner met his burden of proving by a preponderance of the evidence, that he was not convicted of an aggravated felony for purposes of cancellation of removal. (Sandoval-Lua v. Gonzales, 8/28/07). AILA Doc. No. 07090472.
  • CA9 Says INA §101(a)(13) May Not be Applied Retroactively to LPRs With Pre-IIRAIRA Guilty Pleas (9/4/2007)
    The court held that IIRAIRA §301(a)(13), which created a new definition of “admission,” abrogated the Fleuti doctrine, as derived from the former definition of “entry.” However, the new INA §101(a)(13) may not be applied retroactively to LPRs who pleaded guilty pre-IIRAIRA. (Camins v. Gonzales, 8/28/07). AILA Doc. No. 07090471.
  • CA9 Upholds 8 CFR §212.7(d) and Allows its Retroactive Application in Denial of §212(h) Waiver (9/4/2007)
    The court held that 8 CFR §212.7(d), which requires a heightened showing of hardship in §212(h) cases involving a “violent or dangerous” crime, is a permissible exercise of the AG’s authority and may be applied retroactively to convictions that occurred before the effective date of the regulation. (Mejia v. Gonzales, 8/24/07). AILA Doc. No. 07090469.
  • CA9 Finds Sworn Affidavit Not Required for Rescission of In Absentia Removal Order (9/4/2007)
    The court held that Petitioner’s pro se letter, as opposed to a sworn affidavit, along with other circumstantial evidence, was sufficient to overcome the presumption of service and to demonstrate that she did not receive notice of her rescheduled hearing for purposes of rescinding her in absentia removal order. (Sembiring v. Gonzales, 8/24/07). AILA Doc. No. 07090468.
  • CA9 Finds District Court Jurisdiction Over Narrow Claim of Ineffective Assistance of Counsel (9/4/2007)
    The court held that the district court has jurisdiction to review a habeas petition claiming ineffective assistance of counsel, that arises from an attorney’s failure to file a timely petition for review of a BIA decision, because the claim does not require review of a final order of removal under INA §242. (Singh v. Gonzales, 8/24/07). AILA Doc. No. 07090467.
  • CA9 Finds Jurisdiction to Review Due Diligence Claim for Tolling of Motion to Reopen Deadline (8/20/2007)
    The court found that the question of whether Petitioner acted with due diligence for purposes of equitable tolling of the motion to reopen deadline was a reviewable mixed question of law and undisputed fact, and concluded that Petitioner exercised due diligence prior to learning of counsel’s ineffectiveness. (Ghahremani v. Gonzales, 8/17/07). AILA Doc. No. 07082066.
  • CA9 Finds IIRAIRA’s Repeal of Suspension of Deportation Impermissibly Retroactive (8/13/2007)
    The court adopted an objective reliance test and held that Petitioner, who had been convicted of a potentially deportable offense, would reasonably have relied on the existence of suspension when she applied for naturalization and that its subsequent repeal was impermissibly retroactive as applied to her. (Hernandez De Anderson v. Gonzales, 8/9/07). AILA Doc. No. 07081360.
  • CA9 Rejects Polygraph Results and Medical Exam in MTR Indian Asylum Claim (7/27/2007)
    In a case of first impression, the court held that polygraph evidence provided no adequate basis because it is not evidence that was previously unavailable within the meaning of 8 CFR §1003.2(c). The court also refused to consider a medical report regarding Petitioner’s scars for the same reason. (Goel v. Gonzales, 6/14/07) AILA Doc. No. 07072761.
  • CA9 Rejects Negative Inference without Credibility Finding in Asylum Claim (7/24/2007)
    The court found the IJ erred in relying on the negative inference drawn from Petitioner’s refusal to allow access to his Canadian immigration file and denying asylum on that basis. The court held that the IJ failed to make an express credibility determination, or to analyze Petitioner’s claim, and remanded the case. (Singh v. Gonzales, 6/12/07). AILA Doc. No. 07072468.
  • CA9 Upholds Matter of Blake, Denies §212(c) Relief Based on Comparable Grounds Rule (7/16/2007)
    The court upheld the BIA’s decision in Matter of Blake, finding Petitioner ineligible for relief under former INA §212(c) because the aggravated felony ground of deportability for sexual abuse of a minor has no comparable ground of inadmissibility in INA §212(a). (Abebe v. Gonzales, 7/9/07). AILA Doc. No. 07071673.
  • CA9 Finds Forced Abortion is Broad Concept; Does Not Require Physical Force (7/19/2007)
    The court held that Petitioner suffered persecution where his wife was forced to abort her pregnancy by her employer, she was taken by company officials to the company’s women’s clinic, and she cried during the abortion that was performed without anesthesia. The court held he also qualified for withholding. (Tang v. Gonzales, 6/6/07). AILA Doc. No. 07071960.
  • CA9 Finds Jurisdiction Over Habeas Appeal Filed After REAL ID’s Enactment (7/9/2007)
    The court held that a habeas petition is “pending” in district court within the meaning of §106(c) of the REAL ID Act, when the notice of appeal was not filed at the time the Act was enacted, but was filed within the 60-day time period for filing a habeas appeal under Federal Rules of Appellate Procedure 4(a)(1)(B). (Singh v. Gonzales, 6/25/07). AILA Doc. No. 07070968.
  • CA9 Holds USC Grandchild is Not a Qualifying Relative for Cancellation of Removal (7/5/2007)
    The court held that a U.S. citizen grandchild, in the lawful custody of non-citizen grandparents, does not meet the statutory definition of “child” for purposes of cancellation of removal, nor do they qualify by virtue of a de facto parent-child relationship. (Moreno-Morante v. Gonzales, 6/21/07). AILA Doc. No. 07070564.
  • CA9 Allows Motion to Reopen Filed After Removal and Illegal Reentry (6/29/2007)
    The court held that 8 CFR §1003.23(b)(1), which precludes a person who is “the subject of” proceedings from filing a motion to reopen after departing the U.S., did not bar Petitioner’s motion after he was removed and reentered illegally. Petitioner was no longer “the subject of” proceedings upon his removal. (Lin v. Gonzales, 1/5/07). AILA Doc. No. 07062970.
  • CA9 Dismisses Habeas Challenge to Length of Detention as Moot (6/29/2007)
    Petitioner’s habeas claim which challenged only the length of his detention and did not raise any issues with respect to the lawfulness of the deportation order, was rendered moot upon his removal from the United States. As of the date of deportation, there was no extant controversy to be resolved by the district court. (Abdala v. INS, 6/4/07). AILA Doc. No. 07062969.
  • CA9 Discusses “Paying Down” the Loss to the Victims of a Fraud Offense (6/11/2007)
    The court held that Petitioner, who repaid the stolen money to her victims only after her fraudulent scheme was discovered, cannot “pay down” the “loss to the victims” below the statutory threshold of $10,000 so that her offense no longer qualifies as an aggravated felony under INA §101(a)(43)(M)(i). (Kharana v. Gonzales, 5/29/07). AILA Doc. No. 07061168.
  • CA9 Holds Time Served Under Recidivist Statute May Count Toward Prison Term for §212(c) Purposes (5/31/2007)
    The court held that an IJ may include time served under a recidivist statute or other sentencing enhancement when considering eligibility for §212(c) relief. The court found no impermissible retroactive effect in applying the §212(c) IMMACT bar to criminal sentences stemming from pre-IMMACT jury convictions. (Saravia-Paguada v. Gonzales, 5/21/07). AILA Doc. No. 07053166.
  • CA9 Says Exclusion Order and Removal Interrupt Continuous Physical Presence (5/31/2007)
    The court held that the accrual of Petitioner’s continuous physical presence for purposes of cancellation of removal was terminated when he was ordered excluded and removed from the United States. (Landin-Zavala v. Gonzales, 5/25/07). AILA Doc. No. 07053165.
  • CA9 Upholds Constitutionality of GMC Regulation in Naturalization Proceedings (5/31/2007)
    The court held that for purposes of naturalization, 8 C.F.R. §316.10(b)(3)(iii), which permits an adverse moral character finding based on unlawful acts that occurred within the relevant statutory period, for which a conviction was entered outside the statutory period, is not ultra vires to INA §101(f). (U.S. v. Dang, 5/24/07). AILA Doc. No. 07053164.
  • CA9 Says Waiver of Inadmissibility Does Not Waive Continuous Residence for Legalization (5/21/2007)
    The court held that the AAO did not abuse its discretion in denying Petitioner’s legalization application. A waiver of inadmissibility would waive INA §212(a)(9)(A)(ii)(II) for departing the U.S. under a deportation order, but would not cure the resulting lack of continuous residence since January 1, 1982. (Pedroza-Padilla v. Gonzales, 5/15/07). AILA Doc. No. 07052171.
  • CA9 Finds BIA Error in AWO Where Petitioner Alleged “Procedural Irregularity” in IJ Proceedings (5/21/2007)
    The court held that the BIA erred when it summarily affirmed the IJ’s decision, and thereby failed to consider and decide Petitioner’s claim that his statutory and constitutional right to counsel was violated. (Montes-Lopez v. Gonzales, 5/17/07). AILA Doc. No. 07052170.
  • CA9 Holds §315 Bar to Citizenship Applies Only to Alienage Exemption from Compulsory Military Service (5/21/2007)
    The court held that INA §315’s bar to naturalization for individuals who seek exemption from military service based on alienage, applies only to compulsory service and does not apply to a person who voluntarily enlists, but is later honorably discharged at his own request on the basis of alienage. (Gallarde v. INS, 5/11/07). AILA Doc. No. 07052169.
  • CA9 En Banc Court Finds Jurisdiction to Review Removal Orders “Reinstated” by the BIA (5/21/2007)
    Overruling Molino-Camacho v. Ashcroft, the en banc court found jurisdiction over a petition for review where the BIA reversed the IJ’s grant of asylum and ordered Petitioner to voluntarily depart. The IJ’s initial finding of removability constituted an “order of deportation” which was reinstated by the BIA’s decision. (Lolong v. Gonzales, 5/7/07). AILA Doc. No. 07052166.
  • CA9 Holds Expedited Removal Order Interrupts Continuous Physical Presence (5/21/2007)
    The court held that an expedited removal order interrupts continuous physical presence in the U.S. for purposes of cancellation of removal under INA §240A(b)(1). (Juarez-Ramos v. Gonzales, 5/8/07). AILA Doc. No. 07052165.
  • CA9 Finds Ukrainian Whistleblower Was Persecuted for his Political Opinion (4/10/2007)
    The court held that the BIA erred in finding that Petitioner’s whistleblowing was not political opinion. The court found his whistleblowing was political because it was directed “toward a government institution.” The court held that Petitioner was not required to expose government corruption to the public at large. (Fedunyak v. Gonzales, 3/2/07). AILA Doc. No. 07041064.
  • CA9 Holds California Stalking Conviction is Not a “Crime of Violence” (3/26/2007)
    On petition for rehearing, the court held that Petitioner’s conviction for stalking under California Penal Code §646.9 does not qualify as a crime of violence under 18 USC §16(b), and is therefore, not an aggravated felony. (Malta-Espinoza v. Gonzales, 3/2/07). AILA Doc. No. 07032664.
  • CA9 Upholds IJs Adverse Credibility Finding; Dissent Chastises Majority (3/12/2007)
    The court upheld the IJ’s adverse credibility finding based on an inconsistency regarding a crucial date, the implausibility of Petitioner’s story and propensity for dishonesty. The court concluded that although a reasonable factfinder could have found Petitioner credible, no such finding was compelled by the evidence. (Don v. Gonzales, 2/9/07). AILA Doc. No. 07031262.
  • CA9 Revises its Interpretation of “Questions of Law” Under INA §242(a)(2)(D) (3/8/2007)
    On rehearing, the court held that its jurisdiction over “questions of law” under INA §242(a)(2)(D) includes not only issues of statutory interpretation, but also questions involving the application of statutes or regulations to undisputed facts, also known as mixed questions of law and fact. (Ramadan v. Gonzales, 2/22/07). AILA Doc. No. 07030873.
  • CA9 En Banc Court Upholds Validity of Reinstatement Regulations at 8 CFR §241.8 (3/8/2007)
    The en banc court reversed the three-judge panel decision and held that 8 CFR §241.8, which delegates the authority to reinstate prior orders of removal to immigration officers, and does not require a hearing before an immigration judge, comports with due process and is a valid interpretation of the INA. (Morales-Izquierdo v. Gonzales, 2/6/07). AILA Doc. No. 07030872.
  • CA9 Finds Petitioner Was Denied His Statutory Right to Counsel (3/8/2007)
    The court held that Petitioner did not properly waive his right to counsel and that he was denied this right when the IJ refused to continue proceedings to allow him to appear with his attorney. Petitioner was prejudiced because an attorney would have better presented his case of extreme hardship. (Hernandez-Gil v. Gonzales, 2/16/07)
  • CA9 Holds Leave Without Pay Does Not Constitute Continued Employment in Violation of IRCA(697 KB - 3/6/2007)
    An employer does not continue to employ an alien in violation of IRCA unless that individual is continuing to perform a service or labor for the employer for which it is providing remuneration. The holding allows employers to place individuals on leave without pay and avoid an IRCA violation. (Incalza v. Fendi North America, Inc., 03/06/07). AILA Doc. No. 07030690.
  • CA9 Finds Petitioner Was Not Properly Served with Order to Show Cause (Updated 5/21/07) (2/27/2007)
    The court held that the government failed to demonstrate by clear, unequivocal, and convincing evidence, that Petitioner or a responsible person at his address signed the certified mail receipt for his order to show cause. Matter of Grijalva permits a presumption of effective service for hearing notices, not OSCs. (Chaidez v. Gonzales, 2/14/07). AILA Doc. No. 07022768.
  • CA9 Holds Res Judicata Bars Initiation of Second Removal Proceedings (2/27/2007)
    The court held that the doctrine of res judicata bars the government from initiating a second deportation case on the basis of a charge that could have been brought in the first case when, due to a change in the law, the first case was dismissed. (Bravo-Pedroza v. Gonzales, 2/6/07). AILA Doc. No. 07022767.
  • CA9 Agrees with AILF Amicus Brief on Jurisdiction Question (2/23/2007)
    The court, agreeing with an amicus brief submitted by AILF and ACLU, held that federal courts' jurisdiction over questions of law includes not just pure legal questions but the application of facts to law. The immediate issue was whether changed circumstances excuse a late-filed asylum application. (Ramadan v. Gonzales, 2/22/07). AILA Doc. No. 07022366.
  • CA9 Finds “Other Resistance” in CPC Cases Does Not Require Motivation Proof (2/20/2007)
    The court found that to fit within the category of “other resistance to a coercive population control (CPC), an applicant must show that (1) the government was enforcing a CPC program and (2) the applicant resisted the program. The court found that the applicant is not required to show he disapproved of the program. (Lin v. Gonzales, 1/9/07). AILA Doc. No. 07022066.
  • CA9 Finds Jurisdiction to Review Withholding and CAT Claim despite CIMT (2/14/2007)
    The court rejected the government’s argument that the AG has absolute discretion in determining whether any crime is a “particularly serious crime.” The court found that Petitioner had presented a question of law with regard to his withholding and CAT claims and that the court had jurisdiction under INA §242(a)(2)(D). (Morales v. Gonzales, 1/3/07). AILA Doc. No. 07021461.
  • CA9 Refuses to Equitably Toll the Filing Deadline for Untimely Motion to Reopen (2/13/2007)
    The court found that Petitioner did not act diligently by delaying the filing of a motion to reopen until he had received District Counsel’s response to his request to join in the motion. The court held that the motion was untimely and that equitable tolling of the deadline was not warranted. (Valeriano v. Gonzales, 1/23/07)
  • CA9 Holds AZ Domestic Assault Statute Does Not Categorically Involve Moral Turpitude (2/13/2007)
    The court held that Arizona’s misdemeanor domestic assault statute requires neither the willful intent nor the type of injury that is necessary for domestic assault to qualify as a categorical crime involving moral turpitude. (Fernandez-Ruiz v. Gonzales, 11/15/06). AILA Doc. No. 07021371.
  • CA9 Rejects Retroactivity Challenge to “Stop-Time” Rule Under INA §240A(d)(1)(B) (2/2/2007)
    The court held that INA §240A(d)(1)(B), which stops the accrual of continuous residence upon commission of certain crimes for purposes of cancellation of removal, is not impermissibly retroactive where the petitioner was not eligible for relief at the time of his plea, or as of IIRAIRA’s effective date. (Valencia-Alvarez v. Gonzales, 12/6/06). AILA Doc. No. 07020267.
  • CA9 Upholds USCIS’s Denial of Multinational Manager Petition (2/2/2007)
    The court held that while a company’s small size may be considered as one factor in determining whether its operations are substantial enough to support a manager for purposes of INA §203(b)(1)(C), the record indicated that USCIS did not exclusively rely on this factor in denying the petition. (Family, Inc. v. USCIS, 12/4/06). AILA Doc. No. 07020266.
  • CA9 Amends its Hosseini Decision with Footnote on Confidentiality (1/31/2007)
    At the request of the government, the court amended its September 28, 2006 decision in Hosseini v. Gonzales to include a footnote which states: “The government points out that it is precluded by regulation from disclosing any information relating to [Petitioner’s] asylum application ‘without written consent.’” (Hosseini v. Gonzales, 12/28/06). AILA Doc. No. 07013176.
  • CA9 Allows Motion to Reopen Filed After Removal and Illegal Reentry (1/31/2007)
    The court held that 8 CFR §1003.23(b)(1), which precludes a person who is “the subject of” proceedings from filing a motion to reopen after departing the U.S., did not bar Petitioner’s motion after he was removed and reentered illegally. Petitioner was no longer “the subject of” proceedings upon his removal. (Lin v. Gonzales, 1/5/07). AILA Doc. No. 07013172.
  • CA9 Transfers Case to BIA to Consider Contested Issues and Conduct Factfinding (1/23/2007)
    Under INA §242(b)(4)(A), the court cannot rely on the district court’s record in reviewing habeas cases converted to petitions for review. In a case challenging the validity of a deportation order where there was also no administrative record, the court transferred the case to the BIA to resolve contested issues. (Rafaelano v. Wilson, 12/20/06)
  • CA9 Finds a Refugee Is Subject to Removal Even if Status Is Not Terminated (1/17/2007)
    The court concluded that, based on is reading of the plain text of the statute and in deferring to the BIA’s interpretation in In re Smirko, a person who arrives in the United States as a refugee under INA §207 may be removed even if refugee status has never been terminated under INA §207(c)(4). (Kaganovich v. Gonzales, 12/12/06). AILA Doc. No. 07011764.