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Cases & Decisions
Government Decides not to Seek Rehearing in
Bona v. Gonzales
On December 5, 2005, the government notified CA9 that it would not seek rehearing in
Bona v. Ashcroft
. AILF appeared as amicus in Bona, where the Court struck down the regulation that bars a parolee, as an “arriving alien,” from adjusting status if he or she is in removal proceedings.
AILA Doc. No. 05120714.
CA9 Addresses One-Year Asylum Bar Post-REAL ID
The court lacked jurisdiction over whether the IJ erroneously found that Petitioner failed to demonstrate “changed circumstances,” which would excuse her untimely asylum application, because the alleged IJ error did not raise a legal issue. (
Ramadan v. Gonzales
AILA Doc. No. 05120713.
CA9 Awards EAJA Fees
The Court determined that Petitioner was entitled to recover fees under EAJA, but declined to adopt a per se rule that immigration law is a specialty area warranting enhanced hourly rates. (
Thangaraja v. Gonzales
AILA Doc. No. 05120711.
CA9 Overturns Negative Credibility Determination of Chinese Christian
The Court found that minor discrepancies were insufficient to support an adverse credibility finding, and that the record compelled a finding of past persecution and a well-founded fear of future persecution on account of Petitioner’s Christian religion. (
Quan v. Gonzales
AILA Doc. No. 05120261.
CA9 Instructs Attorneys to Give Court Notice of Reopened Proceedings
Where the BIA reopens proceedings while a petition for review is pending, the parties must notify the court, the Ninth Circuit advised. Reopening usurps the court’s jurisdiction by eliminating the final order which was the subject of the petition for review. (
Timbreza v. Gonzales
AILA Doc. No. 05113012.
CA9 Says Finding of Inadmissibility for Alien Smuggling Requires an Affirmative Act of Assistance
The court held that a finding of inadmissibility for alien smuggling under §212(a)(6)(E)(i) requires some form of affirmative assistance to the illegally entering alien. Knowledge alone is not enough. (
Altamirano v. Gonzales
AILA Doc. No. 05111660.
CA9 Critical of Own Precedent Decisions & Says REAL ID Act Will Help Clarify Matters in Future Asylum Cases
CA9 held that Petitioner’s testimony was not inconsistent, implausibleor evasive. It expressed concern over its rules that obscure clear standards and stated its relief that the REAL ID Act would clarify the grounds for an adverse credibility determination. (
Jibril v. Gonzales
AILA Doc. No. 05102811.
CA9 Upholds Regulation Preventing Arriving Aliens from Renewing AOS Applications in Removal Proceedings
The court found that the regulation, which bars arriving aliens from renewing a previously denied adjustment application in removal proceedings only, was not inconsistent with INA §245(a). (
Jia-Jin Jiang v. Gonzales
AILA Doc. No. 05102560.
CA9 Holds BIA Abused Its Discretion in Denying Motion to Reopen Indian Asylum Claim
The Court found that Petitioner established prima facie eligibility for asylum by showing other family members have been harmed since her asylum hearing. The Court rejected the BIA’s characterization of Petitioner’s affidavit as “self-serving.” (
Bhasin v. Gonzales
AILA Doc. No. 05101768.
CA9 Reverses IJ & Criticizes Her Predisposition to Discredit Testimony of Asylum-Seekers
The Court held that substantial evidence did not support the IJ’s negative credibility determination. It noted that it had reversed this IJ’s credibility determination in several previous cases and instructed the BIA to remand the case to a different IJ. (
Smolniakova v. Gonzales
AILA Doc. No. 05101760.
CA9 Strikes Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings
Adopting the rationale of CA1 in
Succar v. Ashcroft
, the court held 8 CFR §1245.1(c)(8) invalid because it directly conflicts with INA §245(a) and “creates absurd result when viewed in light of the larger statutory scheme.” (
Bona v. Gonzales
AILA Doc. No. 05100769.
CA9 Withdraws Somalian Class Action Decision; Orders Remand
CA9 withdrew its prior decision in light of the Supreme Court’s decision in
Jama v. ICE
, but remanded with instructions “to vacate the injunction and to reconsider the class certification in light of the Supreme Court's decision in
Ali v. Gonzales
AILA Doc. No. 05091661.
Cordes v Gonzalez
Vacated (Updated 4/3/08)
On 2/25/08, CA9 vacated the panel opinion from 2005, stating that the BIA sua sponte reopened the proceedings, vacated the revmoval order and remanded to the immigration judge. As a result of the remand, the court stated that it lost jurisdiction of the case. (
Cordes v. Gonzalez
AILA Doc. No. 05091660.
CA9 Finds that Mexican Homosexual with AIDS Is Eligible for Asylum
In finding eligibility for asylum, the Court held that Petitioner, a homosexual from Mexico who was forced by a police officer to perform sex acts, was subjected to past persecution. (
Boer-Sedano v. Gonzales
AILA Doc. No. 05091262.
CA9 Finds that IJ Must Not Ignore Inconsistencies Simply Because They Weaken an Asylum Claim
The Court found that its cases do not mandate that an IJ ignore repeated and blatant inconsistencies that weaken a claim for asylum. (
Kaur v. Gonzales
AILA Doc. No. 05090961.
CA9 Rules Against Family Firmly Resettled in Canada in Effort to Discourage Forum Shopping
The Court held that a family who abandoned its refugee application in Canada after residing there for 4 years, was presumed to be firmly resettled. The Court found that forum shopping undermined the integrity of the international asylum regime. (
Maharaj v. Gonales
AILA Doc. No. 05080761.
CA9 Finds Russian Jew’s Cumulative Harm Amounted to Persecution
The Court found that the sustained economic pressure faced by Petitioner, the nature and extent of the physical violence she experienced, and the restrictions on her ability to practice her religion cumulatively amounted to persecution. (
Krovota v. Gonzales
AILA Doc. No. 05083161.
CA9 Construes Pending Habeas Appeal as Timely Filed Petition for Review
CA9 construes pending habeas appeal as a timely filed petition for review, finding this in line with Congressional intent in passing the REAL ID Act. Court declines comment on cases where the pending habeas petition requires further factual development. (
Alvarez-Barajas v. Gonzales
AILA Doc. No. 05082960.
CA9 Finds that Asylum Hearing of Russian Pentecostal Did Not Comport with Due Process
The Court found that the IJ’s conduct was prejudicial, having excluded the testimony of several key witnesses, including Petitioner’s grandmother and an expert who could have affected the outcome of the proceedings. (
Zolotukhin v. Gonzales
AILA Doc. No. 05082466.
CA9 Finds Regulation Barring BIA Review of Motions to Reopen After Departure Does Not Apply to Certain Individuals
Based on the plain language of 8 CFR 1003.2(d), the court concluded that it does not apply to an individual who first departs the U.S., then becomes the subject of removal proceedings, returns, and then files a motion to reopen. (
Gulzar Singh v. Gonzales
AILA Doc. No. 05072168.
CA9 Finds Adverse Credibility Determination Not Supported by Substantial Evidence; Rejects Finding of Changed Circumstances
The Court found that the false statement made by Petitioner was unrelated to his asylum claim and could not serve as a basis for a negative credibility determination. (
Marcos v. Gonzales
AILA Doc. No. 05070767.
CA9 Denies Asylum Finding Victim Failed to Show Honduran Government is Unable or Unwilling to Control Rape
CA9 found that the Honduran asylum-seeker who had been raped by a member of a local criminal gang failed to meet her burden of proof, stating Petitioner had not shown that the Honduran government was unable or unwilling to control rape in Honduras. (
Castro-Perez v. Gonzales
AILA Doc. No. 05062115.
En Banc CA9 Reconciles Intra-Circuit Conflict in Finding that a Family May Constitute a “Particular Social Group”
CA9 overruled prior decisions that held that a family is not a “particular social group,” finding that the South African petitioners were targeted on account of their family relationship, but remanded the case to the BIA to determine persecution. (
Thomas v. Gonzales
AILA Doc. No. 05062113.
CA9 Holds that a Child of a Parent Forcibly Sterilized Is Not Automatically Eligible for Asylum
Court held that a child is not automatically eligible for asylum because the child’s parent was forcibly sterilized. (
Zhang v. Gonzalez
AILA Doc. No. 05061664.
CA9 Claims Jurisdiction to Examine Circumstances Causing Late Filing of Asylum Claim When IJ & BIA Fail to Do So
CA9 found that the IJ and BIA had failed to address Petitioner’s argument that his failure to file within one year was due to extraordinary circumstances remanded. It also overturned the IJ’s ruling that Petitioner was targeted for purely personal reasons. (
Sagaydak v. Gonzales
AILA Doc. No. 05061363.
CA9 Reverses CAT Denial and Reiterates Test for Determining “Acquiescence” of a Public Official
CA9 rejected the
Matter of S-V-
test of acquiescence and reiterated that the test in CA9 is that Petitioners “need only prove that the government is aware of the third party’s tortuous conduct and does nothing to intervene to prevent it” for CAT claims. (
Ochoa v. Gonzalez
AILA Doc. No. 05061362.
CA9 Instructs Courts on REAL ID
(8 KB - 6/3/2005)
Notice from the 9th Circuit Court of Appeals to district courts within the circuit, providing instructions on transfers of cases in the aftermath of the Real ID Act of 2005.
AILA Doc. No. 05060371.
CA9 Remands VAWA Cancellation Case
The court found that the IJ’s credibility determination was skewed by his own stereotypical assumptions about domestic violence and further found that the IJ’s refusal to allow expert testimony to address those credibility concerns violated due process.(
Lopez-Umanzor v. Gonzales
AILA Doc. No. 05060361.
CA9 Finds Negligent Manslaughter is Not a Crime of Violence
Applying the Supreme Court's rationale in
Leocal v. Ashcroft
, CA9 found that a CA conviction for gross vehicular manslaughter while intoxicated was not a crime of violence because the statute does not require active use of force to inflict injury. (
Lara-Cazares v. Gonzales
AILA Doc. No. 05060165.
CA9 Addresses REAL ID Judicial Review Provisions
Following the 5/11/05 enactment of the REAL ID Act, the court reviewed the merits of a petition for review filed by an individual with criminal convictions. (
Fernandez-Ruiz v. Gonzales
AILA Doc. No. 05060164.
CA9 Finds BIA Has Authority to Extend Notice of Appeal Deadline in “Rare Circumstances”
Where Petitioner made a prima facie showing that overnight mail carrier failed to timely deliver the notice of appeal, the court found that the BIA abused its discretion when it failed to consider the “rare circumstances” exception. (
Oh v. Gonzales
AILA Doc. No. 05060163.
CA9 Holds Disabled Russian Child and His Parents Constitute a “Particular Social Group”
The Court held that a disabled child and his parents are eligible for asylum and entitled to withholding because the harm to the child amounts to persecution. The Court also found that the harm is persecution to the parents as well. (
Tchoukhrova v. Gonzales
AILA Doc. No. 05050975.
CA9 Questions Reliability of Asylum Officer’s Assessment; Finds, Standing Alone, Insufficient Evidence to Support Adverse Credibility Finding
The Court determined that none of the four reasons cited by the IJ were valid grounds for making an adverse credibility determination and, in particular, pointed out the unreliability of the AO’s Assessment to Refer. (
Singh v. Gonzales
AILA Doc. No. 05050974.
CA9 Finds Torture of Soldier by Eritrean Army Not Justified by State of War
The Court granted withholding of removal and CAT relief to an Eritrean soldier who was tortured for his opposition to the war with Sudan, finding that as a deserter he had a well-founded fear of future harm. (
AILA Doc. No. 05050973.
CA9 Refuses to Review “Literally Incomprehensible” Asylum Opinion by IJ
The Court found the IJ’s decision, which the BIA affirmed without opinion, to be “literally incomprehensible,” notimg that the IJ made confusing statements in his opinion. (
Recinos de Leon v. Gonzales
AILA Doc. No. 05050967.
CA9 Finds Chinese Christian Woman from Indonesia Established Well-Founded Fear of Future Persecution (Updated 5/21/07)
CA9 reversed the BIA’s determination that there was no evidence that the Indonesian government was unable or unwilling to control the perpetrators of religious and ethnic violence. It relied on the voluminous record, including DOS reports and expert testimony. (
Lolong v. Gonzales
AILA Doc. No. 05050964.
CA9 Finds Denial of Right to Counsel
CA9 found that the IJ violated Petitioner’s right to counsel because he failed to afford him a reasonable time to obtain counsel. It notedthat practical considerations, like detention status and English language ability, should inform the determination. (
Biwot v. Gonzales
AILA Doc. No. 05050410.
CA9 Grants Petition for Review of Asylum Seeker Whose Wife Was Forcibly Sterilized
CA9 held that Petitioner was entitled to withholding of removal due to the involuntary sterilization of his wife. It found that sterilization was a permanent and continuing harm and well founded fear can[t be eliminated with changed conditions or relocation. (
Qu v. Gonzales
AILA Doc. No. 05040770.
CA9 Holds Failure to Raise Past FGM in Asylum Claim Constitutes Ineffective Assistance of Counsel
CA9 found that the failure to raise FGM suffered as a girl in Somalia was ineffective assistance, holding FGM amounts to persecution on account of her particular social group, which could be defined as Somali females. (
Mohammed v. Gonzales
AILA Doc. No. 05040761.
CA9 Holds “All Alien Homosexuals” Are Members of a Particular Social Group in Granting Petition for Review for Gay Lebanese Man
Court finds that a Lebanese national established a well-founded fear of persecution because he was “outed” as a homosexual and because of his AIDS infection. In so finding the Court held that “all alien homosexuals” are members of a particular social group. (
Karouni v. Gonzales
AILA Doc. No. 05040668.
CA9 Reverses Removability Finding Based on Voter Fraud
The court held that Petitioner was not removable for having voted in violation of Hawaii law because she did not “knowingly” commit voter fraud and, thus, lacked the requisite mental state for violating the Hawaiian statute at issue. (
McDonald v. Gonzales
AILA Doc. No. 05040465.
CA9 Holds that Filing a Timely Motion to Reopen and Stay Request Tolls the Voluntary Departure Period
Where a person files a motion to reopen and request for a stay of removal or voluntary departure prior to the expiration of the voluntary departure period, the court held that the departure period is tolled while the BIA is adjudicating the motion. (
Azarte v. Ashcroft
AILA Doc. No. 05031713.
CA9 Says Hearsay Evidence From Self-Interested Witness Insufficient to Prove Removability
Petitioner’s removability for “alien smuggling” was not established by “clear, unequivocal and convincing evidence” because the only information concerning his activities was contained in the hearsay affidavit of a self-interested witness. (
Hernandez-Guadarrama v. Ashcroft
AILA Doc. No. 05031161.
CA9 Orders Evidentiary Hearing on Unlawful Arrest and Forced Departure Claims
If border agents unlawfully arrested and forced petitioner to depart while proceedings were pending, he can apply for suspension of deportation and INS would be estopped from using his subsequent attempted reentry to render him removable, the court ruled. (
Salgado-Diaz v. Ashcroft
AILA Doc. No. 05020967.
CA9 Remands BIA’s Motion to Reopen Due to Lack of Explanation for its Basis
The court held that the BIA abused its discretion when it denied petitioner’s motion to reopen without explanation. The court affirmed case law requiring the BIA to provide specific and cogent reasons for its decisions. (
Movsisian v. Ashcroft
AILA Doc. No. 05020966.
CA9 Looks to Restitution Order to Determine Conviction for Welfare Fraud is Aggravated Felony
CA9 held that the IJ properly looked to the restitution order contained in Petitioner’s plea agreement to determine that her conviction for welfare fraud involved more than $10,000 in loss to the State of California and, thus, constituted an aggravated felony. (
Ferreira v. Ashcroft
AILA Doc. No. 05012764.
CA9 Concludes Record of Conviction for “Grand Theft” Under California Law is Aggravated Felony
Though the CA law under which Petitioner was convicted for “Grand Theft” proscribed conduct broader than for “theft” for an INA aggravated felony, the record showed a guilty plea to all of the elements of the generic aggravated felony “theft” offense. (
Martinez-Perez v. Ashcroft
AILA Doc. No. 05012761.
CA9 Says INA Does Not Bar Judicial Review of Denial of Withholding of Removal By One With Aggravated Felony Conviction
CA9 found jurisdiction to review BIA’s denial of withholding of removal, notwithstanding INA § 242(a)(2)(C), because denial of relief was not predicated on Petitioner’s having suffered a conviction for aggravated felony, but rather on merits of the claim. (
Unuakhaulu v. Ashcroft
AILA Doc. No. 05012760.
CA9 Holds That Incarceration in a County Jail Constitutes Confinement “To a Penal Institution” for the Purposes of INA § 101(f)(7)
Petitioner’s incarceration in a county jail for more than 180 days subsequent to a conviction for vehicular manslaughter constituted confinement “to a penal institution” for the purposes of INA § 101(f)(7). (
Gomez-Lopez v. Ashcroft
AILA Doc. No. 05012462.
CA9 Finds Nevada Conviction For Attempting to Be Under the Influence of THC Is Not A Controlled Substance Offense
CA9 found that a conviction for “attempting to be under the influence of . . . THC-carboxylic acid” was not a removable offense because it was not shown to be a conviction for other than possession of 30 grams or less of marijuana for personal use. (
Prides Medina v. Ashcroft
AILA Doc. No. 05012460.
CA9 Says CAT Claimants Must Exhaust Administrative Remedies Before Filing Habeas Petitions
The Court found that Petitioner was barred from pursuing habeas corpus to raise a claim for relief in the form of “deferral of removal” under CAT because MTR was not previously filed. (
Huang v. Ashcroft
AILA Doc. No. 05012162.
CA9 Holds BIA Acted Ultra Vires In Issuing Order of Removal In the First Instance (Updated 5/21/07)
The Court held that the BIA exceeded its authority in entering an order of removal in the first instance after reversing the IJ’s grant of discretionary relief. (
Molina-Camacho v. Ashcroft
AILA Doc. No. 05011374.
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