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2012

  • CA9 Finds Petitioner Ineligible for Withholding Due to Conviction for “Particularly Serious Crime”(532 KB - 12/7/2012)
    The court found that the petitioner was ineligible for withholding of removal because he had been convicted of a “particularly serious crime” within the meaning of INA §241(b)(3)(B)(ii), and upheld the revocation of his asylee status. (Pechenkov v. Holder, 12/3/12)
    AILA Doc. No. 12120761.
  • CA9 Defers to Briones, Holds §212(a)(9)(C)(i)(I) Trumps §245(i)(621 KB - 10/19/2012)
    In an en banc decision, the court gave deference to Matter of Briones, and held that individuals who are inadmissible under INA §212(a)(9)(C)(i)(I) may not seek adjustment of status under INA §245(i). (Garfias-Rodriguez v. Holder, 10/19/12)
    AILA Doc. No. 12101947.
  • CA9 Dismisses Remaining Claims in Religious Worker Concurrent Filings Lawsuit (Updated 10/5/12) (10/16/2012)
    The Court held that prohibiting religious workers from filing an adjustment application concurrently with the visa petition does not violate RFRA or the plaintiff’s due process rights. (Ruiz-Diaz v. USA, 8/20/10). Courtesy of Robert Gibbs
    AILA Doc. No. 10082330.
  • CA9 Holds California Conviction for Attempted Kidnapping is Crime of Violence(487 KB - 10/11/2012)
    The court held that the petitioner’s California conviction for attempted kidnapping is an aggravated felony, because under the statute, kidnapping presents a substantial risk of force and is thus a categorical crime of violence. (Delgado-Hernandez v. Holder, 10/9/12)
    AILA Doc. No. 12101142.
  • CA9 Finds BIA Used Incorrect Standard to Review CAT Claim(503 KB - 10/4/2012)
    The court held that the BIA failed to apply a “clear error” standard of review when it overruled the IJ’s grant of CAT protection, noting that the BIA “failed to grapple with the evidentiary record.” (Ridore v. Holder, 10/3/12)
    AILA Doc. No. 12100455.
  • CA9 Rejects BIA’s Interpretation of CSPA in Matter of Wang(514 KB - 9/26/2012)
    The court held that the plain language of INA §203(h)(3) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries, including F3 and F4 derivative beneficiaries. (De Osorio v. Mayorkas, 9/26/12)
    AILA Doc. No. 12092653.
  • Washington Drywall Company Appeals OCAHO I-9 Fine to CA9(616 KB - 9/25/2012)
    Opening brief of Petitioner from a final decision issued by OCAHO assessing a fine against Ketchikan Drywall Services, Inc. for I-9 paperwork violations. Petitioner maintains that the fine of $173,250 is excessive and inconsistent with the statute.
    AILA Doc. No. 12092560.
  • CA9 on Modified Categorical Approach(543 KB - 9/19/2012)
    The court held that the record of conviction was inconclusive as to whether the petitioner was convicted of an aggravated felony, and thus the petitioner did not satisfy his burden of showing he was eligible for cancellation of removal. (Young v. Holder, 9/17/12)
    AILA Doc. No. 12091958.
  • CA9 Finds IJ Violated Right to Counsel by Denying Motion to Continue(486 KB - 9/19/2012)
    The court found that the IJ violated the petitioner’s right to counsel by denying his motion to continue and requiring him to proceed unrepresented, and held that the petitioner did not need to show the violation prejudiced him. (Montes-Lopez v. Holder, 9/18/12)
    AILA Doc. No. 12091951.
  • CA9 Finds No Right to Counsel for LPR “Applicant for Admission”(479 KB - 9/19/2012)
    The court held the LPR petitioner had no right to counsel during questioning at the border because officers properly determined he was an “applicant for admission” based on their conclusion that he had engaged in illegal activity. (Gonzaga-Ortega v. Holder, 9/14/12)
    AILA Doc. No. 12091950.
  • CA9 Rebukes Government on Deportation of Exculpatory Witness(491 KB - 9/18/2012)
    The court held that the government cannot deport witnesses who can provide exculpatory evidence for a criminal defendant - in this case charged with alien smuggling - without allowing defense counsel an opportunity to interview them. (U.S. v. Leal-Del Carmen, 9/14/12)
    AILA Doc. No. 12091848.
  • CA9 Holds Time Spent in U.S. Territory Does Not Count Toward Natz Residency Requirement(475 KB - 9/17/2012)
    The court held that the plaintiff’s time spent residing in the Commonwealth of the Northern Mariana Islands did not count toward the five-year residence requirement for naturalization. (Eche v. Holder, 9/11/12)
    AILA Doc. No. 12091748.
  • CA9 Holds Written Advisals Are Sufficient Notice of Frivolous Asylum Application Consequences(476 KB - 9/7/2012)
    The court held that the written advisals provided on Form I–589 asylum application are sufficient notice under INA §208(d)(4)(A) of the consequences of filing a frivolous asylum application. (Cheema v. Holder, 9/6/12)
    AILA Doc. No. 12090754.
  • CA9 Holds CA Sexual Battery is Not Aggravated Felony(490 KB - 9/6/2012)
    The court granted the petition, holding that the crime of sexual battery in California is not categorically an aggravated felony, and that none of the evidence they could consider established that the petitioner’s victim was a minor. (Sanchez-Avalos v. Holder, 9/4/12)
    AILA Doc. No. 12090655.
  • CA9 Remands Case to Determine Term of Imprisonment(500 KB - 9/6/2012)
    In order to decide whether the petitioner is eligible for relief under former 212(c), the court remanded to determine whether the petitioner’s term of imprisonment was over five years given his time in pre-trial psychiatric confinement. (Corpuz v. Holder, 8/31/12)
    AILA Doc. No. 12090661.
  • CA9 Lacks Jurisdiction to Review Challenge to 8 C.F.R. §208.31(472 KB - 8/30/2012)
    The court held it lacked jurisdiction to review the petitioner’s challenge to the regulations – which bar him from seeking asylum because he is subject to reinstatement – because DHS has not completed the reasonable fear proceedings. (Ortiz-Alfaro v. Holder, 8/27/12)
    AILA Doc. No. 12083054.
  • CA9 Holds Petitioner Is Removable for Controlled Substance Offense(466 KB - 8/27/2012)
    The court found that the petitioner is removable because the documents of conviction in his criminal case established that he was convicted of possessing methamphetamine, and not merely of possession of a controlled substance generally. (Cabantac v. Holder, 8/23/12)
    AILA Doc. No. 12082743.
  • CA9 Finds Conviction Under Uniform Code of Military Justice Is Not Aggravated Felony(553 KB - 8/20/2012)
    The court found that the respondent, who had used a government computer to access pornography and was convicted under the UCMJ for violating an order or regulation, had not been convicted of an aggravated felony. (Aguilar-Turcios v. Holder, 8/15/12)
    AILA Doc. No. 12082041.
  • CA9 Denies Cancellation Citing Supreme Court Ruling on Imputation(461 KB - 8/13/2012)
    The court previously had held the petitioner could impute her father’s legal status to herself to satisfy §240A(a), but reversed its decision & denied cancellation following the Supreme Court’s decision in Holder v. Martinez Gutierrez. (Mojica v. Holder, 8/10/12)
    AILA Doc. No. 12081354.
  • CA9 Finds No Jurisdiction to Review Denial of MTR for Prosecutorial Discretion(463 KB - 8/10/2012)
    The court ruled that it lacked jurisdiction to review Petitioners’ contention that the agency abused its discretion in denying a motion to reopen to seek prosecutorial discretion. (Vilchiz-Soto v. Holder, 8/9/12)
    AILA Doc. No. 12081043.
  • CA9 Reverses Injunction on AZ SB 1070 “Show Me Your Papers” Provision, Remands to District Court(460 KB - 8/8/2012)
    In accordance with the Supreme Court’s decision in Arizona v. U.S., the court reversed the district court’s grant of a preliminary injunction on Arizona SB 1070 Section 2(B), and affirmed the enjoinder of Sections 3, 5(C), and 6. (U.S. v. Arizona, 8/8/12)
    AILA Doc. No. 12080848.
  • CA9 Strikes Down Asylum Termination Regulations(486 KB - 8/8/2012)
    Quoting The Beatles, “All You Need Is Love,” the court found that under INA §208(c)(2), Congress conferred the authority to terminate asylum exclusively on DOJ (not DHS) and invalidated 8 CFR §§208.24(a) and 1208.24(a) as ultra vires. (Nijjar v. Holder, 8/1/12)
    AILA Doc. No. 12080845.
  • CA9 Holds California Conviction for Resisting an Officer Is Not Categorical Crime of Violence(482 KB - 7/10/2012)
    The court held that a California conviction for resisting an executive officer is not a categorical crime of violence, and remanded the case to the BIA to apply the modified categorical approach. (Flores-Lopez v. Holder, 7/9/12)
    AILA Doc. No. 12071045.
  • CA9 on the Material Support Bar and Administrative Waiver Process(493 KB - 7/6/2012)
    The court held that the material support bar does not include an implied exception for legitimate political violence or support under duress, and noted it deferred to the administrative waiver process supplied by Congress. (Annachamy v. Holder, 7/3/12)
    AILA Doc. No. 12070662.
  • CA9 Denies 212(h) Waiver for Failure to Meet Heightened Hardship Standard(470 KB - 7/3/2012)
    The court upheld the BIA’s denial of a 212(h) waiver, holding that the petitioner committed a “violent or dangerous” crime and that he failed to satisfy the heightened hardship standard required by 8 C.F.R.§ 1212.7(d). (Rivera-Peraza v. Holder, 6/29/12)
    AILA Doc. No. 12070341.
  • CA9 Finds Jurisdiction over Denial of Alien Crew Member Asylum Claim(469 KB - 7/2/2012)
    The court found that it had jurisdiction to review the denial of an alien crew member’s “asylum-only” proceeding because it is the functional equivalent of a final order of removal, but denied the petition for review. (Nian v. Holder, 6/28/12)
    AILA Doc. No. 12070251.
  • CA9 Finds BIA Erred In Making Factual Determinations(499 KB - 6/29/2012)
    The court found that the Board committed legal error by engaging in prohibited de novo review and by making its own factual determination when it reversed the IJ’s determination that the petitioner was admissible. (Rodriguez v. Holder, 6/27/12)
    AILA Doc. No. 12062947.
  • CA9 Finds No Due Process Violation in Video Conference Hearing(473 KB - 6/20/2012)
    The court found that the petitioner’s video-conference hearing on the merits of his cancellation of removal application did not violate his right to due process, but noted that such determinations must be made on a case-by-case basis. (Vilchez v. Holder, 6/19/12)
    AILA Doc. No. 12062055.
  • CA9 Affirms EB-1 Denial by District Court(459 KB - 6/13/2012)
    The court affirmed the denial of an EB-1 visa petition and adopted the district court’s opinion, which upheld USCIS’s determination that the petitioner did not prove sustained acclaim sufficient to demonstrate extraordinary ability. (Rijal v. USCIS, 6/13/12)
    AILA Doc. No. 12061356.
  • CA9 Declines to Rehear Case On Definition of Conviction En Banc(485 KB - 6/5/2012)
    The court denied the petition for panel rehearing en banc in a case discussing the definition of “conviction” under INA § 101(a)(48). The dissent argues the panel exceeded its authority, and got the case wrong on its merits. (Planes v. Holder, 6/5/12)
    AILA Doc. No. 12060557.
  • CA9 to Rehear Case on Credibility Determinations En Banc(457 KB - 5/8/2012)
    The court ordered that Oshodi v. Holder, which discussed credibility determinations under the REAL ID Act, be reheard en banc. (Oshodi v. Holder, 5/3/12)
    AILA Doc. No. 12050852.
  • CA9 Remands on Review of Consular Immigrant Visa Denial(545 KB - 4/25/2012)
    The court found the record on appeal was insufficient to determine whether it had jurisdiction to review the plaintiff’s motion to compel the defendants to act on his request to reconsider his DS-230 application. (Rivas v. Napolitano, 4/25/12, amended 3/28/13)
    AILA Doc. No. 12042551.
  • CA9 Finds Misprision of Felony Not CIMT(487 KB - 4/24/2012)
    The court found that misprision of a felony is not categorically a CIMT, and noted that the fact an offense violates “societal duties” is not enough to make it a CIMT; otherwise, every crime would be a CIMT. (Robles-Urrea v. Holder, 4/23/12)
    AILA Doc. No. 12042454.
  • CA9 on Standard of Review for Particularly Serious Crime Determination(549 KB - 4/5/2012)
    The court held that determining whether a crime is particularly serious for the purposes of a withholding claim is an inherently discretionary decision, and that they will review such decisions for abuse of discretion. (Arbid v. Holder, 4/3/12, amended 11/9/12)
    AILA Doc. No. 12040547.
  • CA9 on 212(c) Relief and Retroactivity(239 KB - 3/23/2012)
    The court found that individuals convicted of a CIMT prior to the enactment of IIRIRA remain eligible for § 212(c) relief, regardless of whether they pleaded guilty or proceeded to trial. (Peng v. Holder, 3/22/12)
    AILA Doc. No. 12032362.
  • CA9 on Derivative Citizenship and Legitimation in Arizona(66 KB - 3/13/2012)
    The court found that petitioner’s paternity was established by legitimation under Arizona law, which provides that every child is the legitimate child of its natural parents, holding that legitimation does not require an affirmative act. (Anderson v. Holder, 3/12/12)
    AILA Doc. No. 12031366.
  • CA9 Applies Collateral Estoppel in Nigerian CAT Claim(485 KB - 3/7/2012)
    The court held that collateral estoppel bound the BIA to the findings that led to the petitioner’s first grant of CAT deferral, and concluded that the BIA erred in denying a motion to reopen to introduce new evidence. (Oyeniran v. Holder, 3/6/12; amended 5/3/12)
    AILA Doc. No. 12030761.
  • CA9 Finds Violation of California Penal Code § 647(b) is CIMT(32 KB - 3/5/2012)
    The court found that the petitioner’s conviction in California for disorderly conduct involving prostitution was a crime involving moral turpitude (CIMT), and that the petitioner was deportable for having been convicted of two CIMTs. (Rohit v. Holder, 2/29/12)
    AILA Doc. No. 12030563.
  • CA9 to Rehear Grafias-Rodriguez En Banc(225 KB - 3/2/2012)
    The court ordered that Garfias-Rodriguez v. Holder, in which the Ninth Circuit held that aliens who are inadmissible under INA §212(a)(9)(C)(i)(I) may not seek adjustment of status under INA §245(i), be reheard en banc. (Garfias-Rodriguez v. Holder, 3/1/12)
    AILA Doc. No. 12030261.
  • CA9 Finds California Conviction for Making Threats “With Intent to Terrorize” to be CIMT(481 KB - 2/21/2012)
    The court held that a conviction for making threats “with intent to terrorize” in violation of California Penal Code § 422 is a crime involving moral turpitude. (Latter-Singh v. Holder, 2/17/12)
    AILA Doc. No. 12022149.
  • CA9 Remands 212(c) Case Due to Judulang v. Holder(466 KB - 2/14/2012)
    The court found that the petitioner’s conviction was not a juvenile adjudication because he was charged as an adult, but remanded the case to the BIA to determine whether he was eligible for a 212(c) waiver in light of Judulang. (Rangel-Zuazo v. Holder, 2/13/12)
    AILA Doc. No. 12021447.
  • CA9 on Continuous Physical Presence Requirement(226 KB - 2/10/2012)
    The court found that the petitioner was not eligible for cancellation of removal because he had been subject to a “formal, documented process” sufficient to break continuous physical presence. (Gomez Zarate v. Holder, 2/9/12)
    AILA Doc. No. 12021066.
  • CA9 Finds Petitioner Suffered Past Persecution as an Infant(49 KB - 2/7/2012)
    The court found that the petitioner suffered past persecution as an infant in Guatemala where his indigenous family suffered severe persecution, and where the petitioner suffered deprivations directly attributable to the persecution. (Mendoza-Pablo v. Holder, 2/7/12)
    AILA Doc. No. 12020767.
  • CA9 on Prosecutorial Discretion in Rehearing Cases (2/6/2012)
    The court issued five published decisions on 2/6/12, each one ordering the government to advise the court whether it intended to exercise prosecutorial discretion in the case. (San Agustin v. Holder, 2/6/12, and others)
    AILA Doc. No. 12020646.
  • CA9 on Derivative Citizenship and Equal Protection(235 KB - 2/1/2012)
    The court held the petitioner did not derive citizenship under the controlling statute - 8 U.S.C. § 1432(a) - because only one of his parents naturalized before his eighteenth birthday, and that the statute did not deny equal protection. (U.S. v. Casasola, 1/30/12)
    AILA Doc. No. 12020160.
  • CA9 on 212(c) Retroactivity and Stipulated Facts Trials(42 KB - 1/30/2012)
    The court found that the repeal of INA § 212(c) cannot be retroactively applied to noncitizens who, relying on the possibility of discretionary relief, agreed to a stipulated facts trial prior to the repeal of §212(c) relief. (Tyson v. Holder, 1/27/12)
    AILA Doc. No. 12013067.
  • CA9 on Credibility Findings under the REAL ID Act(676 KB - 1/27/2012)
    The court found that the BIA complied with its remand mandate by considering the REAL ID Act’s impact on the immigration judge’s finding that the petitioner’s claims were not sufficiently corroborated for his request for CAT relief. (Oshodi v. Holder, 1/26/12)
    AILA Doc. No. 12012768.
  • CA9 Remands Appeal from Illegal Re-entry Conviction(217 KB - 1/20/2012)
    The court found that the defendant, who challenged his conviction based on a collateral attack of the removal order, was not meaningfully informed of his eligibility for relief, and remanded the case for consideration of prejudice. (U.S. v. Melendez-Castro, 1/18/12)
    AILA Doc. No. 12012069.
  • CA9 on USCIS Jurisdiction over Petitions to Remove Conditions on Residence(217 KB - 1/20/2012)
    The Court found that USCIS does not lose jurisdiction of a petition to remove conditions placed on residence if it does not adjudicate the petition within 90 days, as required by INA § 216(c)(3)(A). (Chettiar v. Holder, 1/17/12)
    AILA Doc. No. 12012066.