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Cases & Decisions
CA9 Holds Petitioner was Legitimated Under Salvadoran Law
(1047 KB - 12/21/2011)
The court found that the Petitioner, born out-of-wedlock, failed to establish a claim of derivative citizenship through his mother, because the subsequent marriage of his parents established his paternity by legitimation. (
Romero-Mendoza v. Holder
, 12/19/11) AILA Doc. No. 11122101.
AILA Doc. No. 11122101.
CA9 Allows IJ to Consider Pleading-Stage Admission in Establishing Removability
(482 KB - 12/12/2011)
, the court held that the IJ was entitled to rely on Petitioner’s pleading-stage admission that his drug offense involved methamphetamine and that therefore, he was convicted of a removable offense. (
Pagayon v. Holder
, 12/8/11) AILA Doc. No. 11121249.
AILA Doc. No. 11121249.
CA9 Reaffirms California First-Degree Burglary as an Aggravated Felony
(41 KB - 12/8/2011)
The court held that Petitioner’s conviction of first-degree burglary is an aggravated felony as established by the state court’s abstract of judgment. The court also rejected Petitioner’s ineffective assistance of counsel claim. (
Kwong v. Holder
, 12/7/11) AILA Doc. No. 11120865.
AILA Doc. No. 11120865.
CA9 Finds No Abandonment of AOS Where Petitioner Departed without Advance Parole
(88 KB - 12/1/2011)
Over dissent, the court found that where Petitioner unintentionally drove into Mexico without advance parole, he did not abandon his NACARA adjustment of status because 8 CFR §245.13(k)(1) applies only to “desired” departures. (
Lezama-Garcia v. Holder
, 11/30/11) AILA Doc. No. 11120167.
AILA Doc. No. 11120167.
CA9 Says CA Residential Burglary Is a Particularly Serious Crime
(30 KB - 11/21/2011)
The court held that a conviction for residential burglary under Cal. Penal code §459 is a crime of violence under 18 USC §16(b) and is therefore a bar to withholding of removal as a particularly serious crime. (
Lopez-Cardona v. Holder
, 11/18/11) AILA Doc. No. 11112160.
AILA Doc. No. 11112160.
CA9 Refuses to Place Time Limitation on GMC for Registry
(72 KB - 11/9/2011)
Though the registry statute, INA §249, does not specify a time period for good moral character, the court found that the IJ’s determination based on conduct stretching many years and leading up to the hearing was permissible. (
Gutierrez v. Holder
, 11/7/11) AILA Doc. No. 11110940.
AILA Doc. No. 11110940.
CA9 Says SIJ Parole Is an Admission “In Any Status” for Cancellation Purposes
(78 KB - 11/9/2011)
The court found that Petitioner’s 1992 parole as a Special Immigrant Juvenile under INA §245(h) qualified as an admission “in any status” for purposes of cancellation of removal under INA §240A(a). (
Garcia v. Holder
AILA Doc. No. 11110936.
CA9 Affirms Dismissal of District Court Action in Reinstatement Case
(54 KB - 10/26/2011)
The court upheld the finding that Duran Gonzales II applies retroactively and that Plaintiffs are ineligible for I-212 waivers, and affirmed the denial of Plaintiff’s motion to amend the class and file an amended complaint. (
Duran Gonzales v. DHS
, 10/25/11) AILA Doc. No. 11102764.
AILA Doc. No. 11102764.
CA9 Dismisses Petition; Discusses Exhaustion of Administrative Remedies
(60 KB - 10/26/2011)
The court found that Petitioner did not exhaust his administrative remedies in challenging the IJ’s ruling that he committed a particularly serious crime where his arguments to the BIA centered on whether he had a well-founded fear. (
Ardsi v. Holder
, 10/24/11) AILA Doc. No. 11102763.
AILA Doc. No. 11102763.
CA9 on Impact of Weekends and Holidays on Voluntary Departure (Updated 1/23/2012)
(482 KB - 10/12/2011)
The court held that where voluntary departure expires on a weekend or holiday, and a motion that would affect voluntary departure is filed the next business day, voluntary departure expires on the next business day. (
Meza-Vallejos v. Holder
, 10/11/11; amended 1/20/12). AILA Doc. No. 11101232.
AILA Doc. No. 11101232.
CA9 on Authentication of Foreign Documents
(25 KB - 9/27/2011)
The court found that the IJ erred by refusing to allow Petitioner to authenticate foreign documents through his own testimony and concluded that he was statutorily eligible for adjustment of status as the unmarried son of a U.S. citizen. (
Jiang v. Holder
, 9/26/11) AILA Doc. No. 11092767.
AILA Doc. No. 11092767.
CA9 Finds ELF Is a Terrorist Organization; Grants Deferral under CAT
(57 KB - 9/27/2011)
The court upheld the BIA’s findings that the Eritrean Liberation Front is a Tier III terrorist organization and that Petitioner engaged in terrorist activities, but finding the possibility of torture more likely than not, granted deferral. (
Haile v. Holder
, 9/26/11) AILA Doc. No. 11092764.
AILA Doc. No. 11092764.
CA9 Remands CAT Claim for Deferral of Removal from Honduras
(97 KB - 9/23/2011)
The court found that the BIA mischaracterized the record with regard to one expert’s consistency with DOS reports, criticized the expert’s testimony for reasons not supported by the record, and failed to acknowledge a second expert witness. (
Cole v. Holder
, 9/22/11) AILA Doc. No. 11092363.
AILA Doc. No. 11092363.
CA9 Rejects Challenge to §212(c) Special Motion to Reopen Deadline
(41 KB - 9/20/2011)
The court held that the April 26, 2005 deadline to file motions to reopen for §212(c) relief is a constitutionally sound procedural rule and that absent exceptional circumstances, petitioners that miss the deadline are not entitled to relief. (
Luna v. Holder
, 9/19/11) AILA Doc. No. 11092061.
AILA Doc. No. 11092061.
CA9 Rejects Leap Year Argument in Defining “One Year” Term of Imprisonment
(107 KB - 9/15/2011)
The court held that for purposes of INA §101(a)(43)(F), a sentence of 365 days qualifies as a “term of imprisonment [of] at least one year,” even when the sentence was served in whole or in part during a leap year. (
Habibi v. Holder
, 9/14/11; amended 12/8/11). AILA Doc. No. 11091567.
AILA Doc. No. 11091567.
CA9 Says BIA Erred in Refusing to Permit Withdrawal of Prior Attorney’s Admissions
(260 KB - 9/14/2011)
The court held that the attorney’s admission of the NTA’s allegation that Petitioner smuggled his brother was the result of ineffective assistance. The BIA erred in not permitting Petitioner to withdraw the admission. (
Santiago-Rodriguez v. Holder
, 9/9/11) AILA Doc. No. 11091468.
AILA Doc. No. 11091468.
CA9 Says Incorrect Standards Were Applied in Refusing to Excuse Late Asylum Application
(236 KB - 9/14/2011)
The IJ applied incorrect legal standards when finding Petitioner had not shown changed or extraordinary circumstances to excuse his late application and the IJ erred in finding that the application was not filed in a reasonable time period. (
Singh v. Holder
, 9/8/11) AILA Doc. No. 11091462.
AILA Doc. No. 11091462.
CA9 Limits CSPA Auto-Conversion and Priority Date Retention to F-2A Petitions
(56 KB - 9/7/2011)
The court found reasonable the BIA’s decision in
Matter of Wang
that the CSPA under INA §203(h)(3) does not permit automatic conversion and/or priority date retention for derivative beneficiaries of F-3 and F-4 petitions. (
De Osorio v. Mayorkas
, 9/2/11) AILA Doc. No. 11090770.
AILA Doc. No. 11090770.
CA9 Finds Jurisdiction to Review Denial of Relief Despite BIA Remand on Collateral Issue
(43 KB - 9/7/2011)
The court found jurisdiction to review the BIA’s denial of relief where the BIA remands under 8 CFR §1003.1(d)(6) for completion of background checks that are required before alternative relief may be granted. (
Li v. Holder
, 9/1/11) AILA Doc. No. 11090761.
AILA Doc. No. 11090761.
CA9 Finds Minor Who Lived in Iran for Six Years Did Not Abandon LPR Status
(73 KB - 8/26/2011)
The court held that when determining whether a minor has abandoned LPR status, the intent of the LPR parents is imputed to the child until the child becomes an adult at which point he may legally demonstrate his individual intent. (
Khoshfahm v. Holder
, 8/25/11). AILA Doc. No. 11082623.
AILA Doc. No. 11082623.
; Finds Jurisdiction to Review Particularly Serious Crime Determination
(81 KB - 8/26/2011)
The court found jurisdiction to review the decision that a conviction is a particularly serious crime and remanded to the BIA for a clear explanation of its finding that Petitioner’s DUI conviction barred him from relief. (
Delgado v. Holder
, 8/19/11) AILA Doc. No. 11082666.
AILA Doc. No. 11082666.
CA9 on Credibility and Corroboration in Chinese Christian Asylum Case
(66 KB - 8/26/2011)
The court held that although the adverse credibility finding was based on mischaracterizations of testimony and trivial inconsistencies, Petitioner failed to respond to the request for corroborative evidence or explain his failure to do so. (
Ren v. Holder
, 8/19/11) AILA Doc. No. 11082665.
AILA Doc. No. 11082665.
CA9 Finds Jurisdiction; Says BIA Remand Is a Final Order
(50 KB - 8/26/2011)
The court held that the BIA’s reversal of asylum and remand for voluntary departure proceedings was a final order and that neither
Dada v. Mukasey
, nor the 2009 voluntary departure regulations undermines the court’s jurisdiction. (
Pinto v. Holder
, 8/12/11) AILA Doc. No. 110826660.
AILA Doc. No. 11082660.
CA9 Eliminates “Missing Element” Rule in Modified Categorical Approach
(287 KB - 8/11/2011)
The en banc court overruled the court’s prior holding in
Navarro-Lopez v. Gonzales
, that the modified categorical approach does not apply when the crime of conviction is missing an element of the generic crime. (
United States v. Aguila-Montes de Oca
, 8/11/11) AILA Doc. No. 11081135.
AILA Doc. No. 11081135.
CA9 Interprets Reach of SAW Confidentiality Provision
(63 KB - 8/11/2011)
The court held that the SAW confidentiality provision, INA §210(b)(6)(A), applies exclusively to the application and that there is no violation when the challenged information is obtained via questioning at an inspection checkpoint. (
Soriano-Vino v. Holder
, 8/10/11) AILA Doc. No. 11081133.
AILA Doc. No. 11081133.
CA9 Finds Record Inconclusive Under Modified Categorical Approach (Updated 8/1/11)
(82 KB - 8/1/2011)
The court found the record inconclusive as to how Cal. Health & Safety Code §11352(a) was violated and that the BIA erred in concluding the conviction was an aggravated felony. (
Young v. Holder
reh’g en banc granted
7/29/11) AILA Doc. No. 11013163.
AILA Doc. No. 11013163.
CA9 En Banc Court Overrules Equal Protection Holding in
(154 KB - 7/14/2011)
The en banc court held that equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA. (
Nunez-Reyes v. Holder
, 7/14/11) AILA Doc. No. 11071430.
AILA Doc. No. 11071430.
CA9 Says Violation of California Counterfeiting Statute Is an Aggravated Felony
(215 KB - 7/25/2011)
The court found that willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark in violation of Cal. Penal Code §350(a)(2) is an aggravated felony. (
Rodriguez-Valencia v. Holder
, 7/21/11) AILA Doc. No. 11072567.
AILA Doc. No. 11072567.
CA9 Remands, Finds Counsel Rendered Ineffective Assistance
(230 KB - 7/25/2011)
The court found that counsel’s failure to file a stay of voluntary departure, or seek any other avenue of relief, was not a tactical decision and that Petitioner was prejudiced by counsel’s assistance in his efforts to adjust his status. (
Singh v. Holder
, 7/21/11) AILA Doc. No. 11072566.
AILA Doc. No. 11072566.
CA9 Remands for BIA to Decide if Consultant’s Actions Excuse Untimely Asylum Application
(236 KB - 7/25/2011)
On rehearing, the court held that the BIA erred as a matter of law in finding that fraudulent deceit by an immigration consultant cannot constitute an “extraordinary circumstance” that excuses an otherwise untimely asylum application. (
Viridiana v. Holder
, 7/19/11) AILA Doc. No. 11072564.
AILA Doc. No. 11072564.
CA9 Finds Pro-Labor Position Constitutes Protected Political Opinion
(46 KB - 7/15/2011)
The court found that the BIA ignored the anti-government opinion Chinese officials imputed to Petitioner as motivation for abuse, and erroneously concluded that his pro-labor activities did not constitute an expression of political opinion. (
Hu v. Holder
, 7/14/11) AILA Doc. No. 11071567.
AILA Doc. No. 11071567.
CA9 Remands for Credibility Evaluation in “Reason to Believe” Case
(56 KB - 7/15/2011)
The court found that the IJ’s failure to evaluate Petitioner’s credibility in determining whether there was “reason to believe” he was knowingly engaged in drug trafficking was a fundamental flaw that precludes effective review. (
Gomez-Granillo v. Holder
, 7/14/11) AILA Doc. No. 11071566.
AILA Doc. No. 11071566.
CA9 Finds Nexus in Mexico Whistleblowing Asylum Case
(32 KB - 7/11/2011)
The court held that exposure of corruption in the Mexican government and Petitioner’s refusal to accede to corrupt demands were political acts that qualify Petitioner as a whistleblower for asylum and withholding of removal. (
Perez-Ramirez v. Holder
, 7/8/11) AILA Doc. No. 11071168
AILA Doc. No. 11071168.
CA9 Finds California 2nd Degree Burglary Is Not an Aggravated Felony or CIMT
(92 KB - 7/11/2011)
The court held that 2nd-degree burglary under Cal. Penal Code §459 is not categorically an aggravated felony and that the BIA misread 9th Cir. case law in concluding that it categorically qualifies as a CIMT. (
Hernandez-Cruz v. Holder
, 7/8/11; amended 8/31/11) AILA Doc. No. 11071166.
AILA Doc. No. 11071166.
CA9 on Definition of “Conviction” under INA §101(a)(48)
(230 KB - 7/6/2011)
The court found that the right to appeal a sentence on remand does not alter the conclusion that Petitioner was “convicted” under INA §101(a)(48), which requires only a formal judgment of guilt, not that all appeals be exhausted or waived. (
Planes v. Holder
, 7/5/11) AILA Doc. No. 11070660.
AILA Doc. No. 11070660.
CA9 on Impact of Recent Supreme Court Decisions on Equitable Tolling
(54 KB - 7/5/2011)
The court held that under
Holland v. Florida
, individuals who are not entitled to counsel can justify the equitable tolling of a limitations period, such as the motion to reopen deadline, where counsel’s behavior is egregious. (
Avagyan v. Holder
, 7/1/11) AILA Doc. No. 11070560.
AILA Doc. No. 11070560.
CA9 Remands, Finds Nexus in Armenian Whistleblowing Asylum Claim
(37 KB - 7/1/2011)
The court granted the petition for review in a case involving an Armenian petitioner who faces retaliation from a notorious criminal for pursuing his prosecution and exposing his ties to corrupt government officials. (
Antonyan v. Holder
, 6/29/11) AILA Doc. No. 11070162.
AILA Doc. No. 11070162.
CA9 Declines to Review Denial of Stay of Removal
(62 KB - 7/1/2011)
The court found no jurisdiction to review the BIA’s interim order denying a stay of removal pending the disposition of Petitioner’s motion to reopen, because it was not part of a “final order of removal” as defined under INA §101(a)(47). (
Shaboyan v. Holder
, 6/29/11) AILA Doc. No. 11070161.
AILA Doc. No. 11070161.
CA9 Allows Consideration of Alien’s Admission in Determining Removability (Withdrawn)
(245 KB - 6/27/2011)
Cheuk Fung S-Yong
, the court held that an IJ may consider an alien’s admissions regarding removability if they are corroborated by the narrow set of documents that are part of the record of conviction. (
Pagayon v. Holder
, 6/24/11; withdrawn 12/8/11) AILA Doc. No. 11062762.
AILA Doc. No. 11062762.
CA9 Finds California Concealed Weapon Conviction Is a Firearms Offense
(37 KB - 6/23/2011)
The court held that a conviction for carrying a concealed weapon under California Penal Code §12025(a) is categorically a removable firearms offense under INA §237(a)(2)(C). (
Gil v. Holder
, 6/22/11) AILA Doc. No. 11062363.
AILA Doc. No. 11062363.
CA9 Says Corroboration Not Required When Determining Timeliness of Asylum Claim
(63 KB - 6/23/2011)
The en banc court found that the BIA improperly imported the corroboration requirement of INA §208(b)(1)(B)(ii), governing the merits of asylum, into §208(a)(2)(B), requiring applications to be filed within one year of arrival in the U.S. (
Singh v. Holder
, 6/17/11) AILA Doc. No. 11062361.
AILA Doc. No. 11062361.
CA9 Says EAD Grant Does Not Confer Admission Status for Cancellation of Removal
(54 KB - 6/6/2011)
The court held that the grant of work authorization pending the approval of adjustment of status does not confer admission status on an undocumented alien for purposes of calculating seven years continuous residence for cancellation. (
Guevara v. Holder
, 6/3/11) AILA Doc. No. 11060668.
AILA Doc. No. 11060668.
CA9 on “Admitted in Any Status” for Cancellation of Removal
(49 KB - 6/6/2011)
The court held that an approved I-130 Petition for Alien Relative does not confer admission status on an undocumented alien for purposes of showing seven years of continuous residence for cancellation of removal. (
Vasquez de Alcantar v. Holder
, 6/3/11) AILA Doc. No. 11060666.
AILA Doc. No. 11060666.
CA9 Says Reinstatement Does Not Apply to Petitioner Who Sought Relief Pre-IIRIRA
(57 KB - 6/2/2011)
The court held that reinstatement of removal under INA §241(a)(5) is impermissibly retroactive when applied to individuals who applied for discretionary relief prior to IIRIRA’s effective date. (
Chay Ixcot v. Holder
, 6/1/11) AILA Doc. No. 11060263.
AILA Doc. No. 11060263.
Oh v. Gonzales
, Says 30-Day Appeal Deadline Is Not Jurisdictional
(236 KB - 6/1/2011)
Finding no ambiguity, the court refused to apply
deference to the BIA’s decision in Liadov and concluded that the 30 day deadline for appeals under 8 CFR §1003.38 is not jurisdictional. (
Irigoyen-Briones v. Holder
, 5/31/11) AILA Doc. No. 11060163.
AILA Doc. No. 11060263.
CA9 Affirms Injunction Blocking Portions of AZ SB 1070 from Taking Effect
Federal government lawsuit challenging Arizona's controversial immigration legislation, SB-1070. Updates and related resources include key pleadings, declarations, briefs, court orders and decisions. (
U.S. v. Arizona
) AILA Doc. No. 10070661.
AILA Doc. No. 10070661.
CA9 Says WA Criminal Assistance Is Not Categorically an Aggravated Felony
(240 KB - 5/18/2011)
The court held that Petitioner’s misdemeanor conviction for rendering criminal assistance in violation of Wash. Rev. Code §9A.76.080 is not categorically an aggravated felony obstruction of justice crime under INA §101(a)(43)(S). (
Hoang v. Holder
, 5/17/11) AILA Doc. No. 11051860.
AILA Doc. No. 11051860.
CA9 Remands for Decision on Whether CA Failure to Register Is a CIMT
(30 KB - 5/12/2011)
The court remanded to the BIA to determine whether failure to register as a sex offender under California law constitutes a CIMT given the “significant intervening developments” in CIMT analysis since the BIA’s 2007 decision. (
Pannu v. Holder
, 5/11/11) AILA Doc. No. 11051266.
AILA Doc. No. 11051266.
CA9 Says BIA Failed to Consider Service to the Community in §212(c) Case
(38 KB - 5/9/2011)
The court remanded, finding that the BIA failed to consider all of the positive factors bearing on Petitioner’s application for 212(c) relief because it did not consider substantial evidence of Petitioner’s value and service to the community. (
Zheng v. Holder
, 5/6/11) AILA Doc. No. 11050961.
AILA Doc. No. 11050961.
CA9 Says Res Judicata Binds IJ/BIA to Proceed with §212(c) Case
(43 KB - 5/5/2011)
The court held that res judicata binds the BIA to the district court’s decision that Petitioner is eligible for §212(c) relief and that
do not constitute a change in the law to bar res judicata. (
Paulo v. Holder
, 5/4/11) AILA Doc. No. 11050560.
AILA Doc. No. 11050560.
CA9 Discusses Credibility and Corroboration in Asylum
(80 KB - 5/4/2011)
The court found that where the IJ has reason in the record to doubt credibility, an absence of evidence may suffice to reject credibility where the need for the evidence is plain and the evidence is reasonably accessible. (
Singh v. Holder
, 5/3/11) AILA Doc. No. 11050430.
AILA Doc. No. 11050430.
CA9 Says Additional Incidents of Persecution Cast Doubt on Credibility
(32 KB - 5/2/2011)
The court held that the inclusion of three additional incidents of arrest and mistreatment that were added to Petitioner’s claim in a supplemental declaration materially altered his claim in a way that casted doubt on his credibility. (
Zamanov v. Holder
, 4/29/11) AILA Doc. No. 11050260.
AILA Doc. No. 11050260.
CA9 Says Alien’s Admissions at Pleading Stage Relieved Government of Burden
(67 KB - 4/25/2011)
The court held that admissions made by an alien or through counsel that are accepted by the IJ at the pleading stage are binding; no further evidence concerning the facts admitted or law conceded is necessary. (
Perez-Mejia v. Holder
, 4/21/11; amended 11/23/11)
AILA Doc. No. 11042538.
CA9 Upholds Denial of Sexual Orientation Asylum Claim from Mexico
(286 KB - 4/18/2011)
The court upheld the finding that Petitioner did not meet his burden of showing that the government was unable or unwilling to control his attackers where he failed to report sexual abuse. Original opinion follows. (
Castro-Martinez v. Holder
, 4/15/11; amended 12/5/11) AILA Doc. No. 11041830.
AILA Doc. No. 11041830.
CA9 Reverses Course on
Acosta v. Gonzales
(53 KB - 4/12/2011)
The court gave
Matter of Briones
, and held that aliens 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
, 4/11/11) AILA Doc. No. 11041260.
AILA Doc. No. 11041260.
CA9 Upholds Requirement that Past Persecution Occur in Country of Removal
(32 KB - 4/11/2011)
The court upheld 8 CFR §1208.16(b)(1)(i), requiring past persecution to have occurred in the country of removal, and denied asylum to Petitioner who suffered spousal abuse only in the U.S. (
Gonzalez-Medina v. Holder
, 4/7/11) AILA Doc. No. 11041161.
AILA Doc. No. 11041161.
CA9 Says BIA Has Jurisdiction to Review Post-Removal Motion
(49 KB - 4/11/2011)
The court reaffirmed
Coyt v. Holder
and found that 8 CFR §1003.2(d) does not bar BIA jurisdiction to review a motion to reconsider and reopen filed after the petitioner has been involuntarily removed from the United States. (
Reyes-Torres v. Holder
, 4/7/11) AILA Doc. No. 11041160.
AILA Doc. No. 11041160.
CA9 on “Changed Circumstances” and the One-Year Asylum Deadline
(59 KB - 4/7/2011)
“Changed circumstances” does not require an entirely new conflict in the applicant’s country of origin, nor does the law preclude an applicant who has always feared persecution from seeking asylum because the risk of persecution increases. (
Vahora v. Holder
, 4/5/11) AILA Doc. No. 11040765.
AILA Doc. No. 11040765.
CA9 Clarifies Standard for Stays of Removal in Light of
Nken v. Holder
(47 KB - 4/4/2011)
The court held that where the alien makes a threshold showing that irreparable harm is probable absent a stay, the court will then weigh the equities according to the general balancing approach set forth in
Abassi v. INS
Leiva-Perez v. Holder
, 4/1/11) AILA Doc. No. 11040465.
AILA Doc. No. 11040465.
(65 KB - 4/4/2011)
The court held that the district court has habeas jurisdiction to review a bond determination for an alien facing prolonged detention while a petition for review is pending, and that the government must prove that detention is justified. (
Singh v. Holder
, 3/31/11) AILA Doc. No. 11040464.
AILA Doc. No. 11040464.
CA9 Says WA Third Degree Child Molestation Is a Crime of Child Abuse
(25 KB - 4/4/2011)
The court held that a felony conviction for third-degree child molestation in violation of Wash. Rev. Code 9A.44.089 constitutes a crime of child abuse within the meaning of INA §237(a)(2)(E)(i). (
Jimenez-Juarez v. Holder
, 3/31/11) AILA Doc. No. 11040463.
AILA Doc. No. 11040463.
CA9 Refuses to Impute Physical Presence of Mother to Child
(25 KB - 4/4/2011)
The court upheld the BIA’s determination that the physical presence of Petitioner’s mother could not be imputed to her for purposes of qualifying for cancellation of removal under INA §240A(b)(1). (
Saucedo-Arevalo v. Holder
, 3/29/11) AILA Doc. No. 11040462.
AILA Doc. No. 11040462.
CA9 Attributes Lie of One Spouse to the Other in Assessing Credibility
(32 KB - 3/29/2011)
The court held that a deception unrelated to escaping immediate danger or gaining entry into the United States can form the basis for an adverse credibility determination, even if it turns out to be irrelevant to the claim. (
Singh v. Holder
, 3/25/11) AILA Doc. No. 11032962.
AILA Doc. No. 11032962.
CA9 Remands to BIA for Consideration of Gabryelsky Relief
(37 KB - 3/24/2011)
The court held that former INA §212(c) applies in deportation proceedings that commenced before the April 1, 1997 effective date of IIRIRA, even if the proceedings include deportation charges based on post-IIRIRA offenses. (
Pascua v. Holder
, 3/23/11) AILA Doc. No. 11032461.
AILA Doc. No. 11032461.
CA9 Finds Jurisdiction to Review Final Removal Order under VWP
(39 KB - 3/24/2011)
The court found jurisdiction to review the final order issued by DHS against a visa waiver entrant, but concluded that Petitioner failed to show that the allegedly unknowing waiver of his right to a removal hearing resulted in prejudice. (
Bingham v. Holder
, 3/23/11) AILA Doc. No. 11032460.
AILA Doc. No. 11032460.
CA9 Remands Indo-Fijian Asylum Claim
(68 KB - 3/22/2011)
The IJ/BIA erred in failing to conduct an individualized analysis of changed conditions after Petitioner established past persecution, and the BIA abused its discretion in denying Petitioner’s motion to reopen following the 2006 coup in Fiji. (
Ali v. Holder
, 3/18/11) AILA Doc. No. 11032233.
AILA Doc. No. 11032233.
CA9 Upholds IJ Denial of Motion to Suppress
(72 KB - 3/14/2011)
The court found that the county deputy sheriff’s detention of Petitioners at a gas station while waiting for an immigration agent to arrive did not constitute an egregious violation of Petitioners’ Fourth Amendment rights. (
Martinez-Medina v. Holder
, 3/11/11) AILA Doc. No. 11031432.
AILA Doc. No. 11031432.
CA9 Says §241(a)(6) Detainees Are Entitled to a Bond Hearing
(159 KB - 3/8/2011)
The court reversed the district court and held that an individual facing prolonged detention under INA §241(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community. (
Diouf v. Napolitano
, 3/7/11) AILA Doc. No. 11030823.
AILA Doc. No. 11030823.
CA9 Remands, Finding No Retroactive Bar to §212(c) Under IIRIRA
(71 KB - 3/2/2011)
The court held that Petitioner, who was a SAW lawful temporary resident when he pleaded guilty in 1989, had a settled expectation of the availability of §212(c) relief at the time of his plea. (
Gallegos-Vasquez v. Holder
, 3/1/11) AILA Doc. No. 11030231.
AILA Doc. No. 11030231.
CA9 Remands, Discusses Adverse Credibility and Deliberate Fabrication
(241 KB - 2/24/2011)
The court upheld the IJ’s adverse credibility determination as supported by substantial evidence, but found that the heightened requirements for determining that Petitioner’s application for asylum was frivolous were not met. (
Liu v. Holder
, 2/23/11) AILA Doc. No. 11022471.
AILA Doc. No. 11022471.
CA9 Upholds Removal of Palestinian Citizen with Alleged Ties to Hamas
(46 KB - 2/17/2011)
The court held that the BIA’s determination that Petitioner was inadmissible in that he was likely to engage in terrorist activity or provide material support to a terrorist organization was supported by substantial evidence. (
Abufayad v. Holder
, 2/16/11) AILA Doc. No. 11021764.
AILA Doc. No. 11021764.
CA9 Remands VAWA Special-Rule Cancellation Case
(37 KB - 2/15/2011)
The court held that the mistreatment of Petitioner’s children by their LPR father constituted battery, a heightened level of violence is not required, and the IJ erred in relying on state law to determine what constitutes battery. (
Lopez-Birrueta v. Holder
, 2/14/11) AILA Doc. No. 11021562.
AILA Doc. No. 11021562.
CA9 Rejects Equal Protection Challenge to 10-Year Non-LPR Cancellation Rule
(29 KB - 2/14/2011)
The court found a rational basis for requiring 10 years continuous residence with exceptions for certain absences, as opposed to a total-number-of-days requirement where Petitioners fell short of 10 years by only a few weeks. (
Hernandez-Mancilla v. Holder
, 2/10/11) AILA Doc. No. 11021460.
AILA Doc. No. 11021460.
CA9 Upholds Jury Verdict Against Arizona Rancher for Assault and IIED
(19 KB - 2/4/2011)
The court upheld the verdict in favor of 4 immigrants on claims of assault and intentional infliction of emotional distress against an Arizona rancher. The case was presided over by the late Chief Judge (D. Ariz.), John Roll. (
Vicente v. Barnett
, unpublished, 2/3/11) AILA Doc. No. 11020462.
AILA Doc. No. 11020462.
CA9 Finds IJ Abused Discretion in Refusing Continuance
(43 KB - 2/4/2011)
Matter of Hashmi
, the court remanded the case to the IJ to afford Petitioner the opportunity to apply for adjustment, noting that USCIS delay in adjudicating I-130s is no reason to deny a reasonable continuance request. (
Malilia v. Holder
, 2/3/11) AILA Doc. No. 11020461.
AILA Doc. No. 11020461.
CA9 Finds No Nexus to Political Opinion in Indian Asylum Claim
(50 KB - 2/2/2011)
The court found that the harm Petitioner suffered at the hands of the Indian police was motivated by the desire to stop publication of Petitioner’s father’s book, rather than to persecute Petitioner for his political opinion. (
Sharma v. Holder
, 2/1/11) AILA Doc. No. 11020266.
AILA Doc. No. 11020266.
CA9 Upholds Prior Decision on Review of Sua Sponte Reopening
(45 KB - 1/31/2011)
The court held that the Supreme Court decision,
Kucana v. Holder
, did not change the court’s holding in
Ekimian v. INS
that there is no sufficiently meaningful standard to allow court review of sua sponte reopening. (
Mejia-Hernandez v. Holder
, 1/27/11) AILA Doc. No. 11013161.
AILA Doc. No. 11013161.
CA9 Finds Immigration Consultant Fraud Excuses Late-Filed Asylum Application
(72 KB - 1/21/2011)
The court held that the immigration consultant fraud that caused the late filing of Petitioner’s application constitutes an “extraordinary circumstance” warranting tolling of the deadline. (
Viridiana v. Holder
, 1/19/11; withdrawn 7/19/11) AILA Doc. No. 11012166.
AILA Doc. No. 11012166.
CA9 Reverses Adverse Credibility in Chinese Christian Asylum Claim
(35 KB - 1/21/2011)
The court reversed the adverse credibility finding as improperly based on the IJ’s perception of Petitioner’s ignorance of Christian doctrine, misstatements that did not go to the heart of the claim, and insufficient evidence of evasiveness. (
Li v. Holder
, 1/19/11) AILA Doc. No. 11012163.
AILA Doc. No. 11012163.
CA9 Dissent Says Attorneys Have a Duty to Investigate All Grounds for Asylum
(28 KB - 1/6/2011)
The court denied rehearing and rehearing en banc where the attorneys failed to inquire into and raise FGM as a basis for asylum from Eritrea. Judge Pregerson dissented, citing the adverse effect the decision will have on asylum seekers. (
Teclezghi v. Holder
, 1/4/11) AILA Doc. No. 11010660.
AILA Doc. No. 11010660.
CA9 Finds IJ Erred in Requiring Corroboration of Inconclusive Conviction Record
(70 KB - 1/5/2011)
REAL ID did not overrule
which held that the alien’s burden of proving cancellation eligibility is met where the conviction record is inconclusive as to whether the crime is an aggravated felony. (
Rosas-Castaneda v. Holder
, 1/4/11; amended 9/12/11) AILA Doc. No. 11010532.
AILA Doc. No. 11010532.
CA9 Remands Wife’s Asylum Claim, Upholds Adverse Credibility for Husband
(41 KB - 1/4/2011)
In a case involving separate claims of a couple from Egypt, the court upheld the IJ’s adverse credibility determination as to the husband, but remanded the wife’s claim where the BIA failed to address the IJ’s findings as to her testimony. (
Rizk v. Holder
, 1/3/11) AILA Doc. No. 11010465.
AILA Doc. No. 11010465.
CA9 on District Court Review of Adjustment Denial
(32 KB - 1/3/2011)
The court held that the district court lacks jurisdiction to review an alien’s challenge to the government’s denial of an application for adjustment of status while removal proceedings are simultaneously pending. (
Cabaccang v. USCIS
, 12/29/10) AILA Doc. No. 11010364.
AILA Doc. No. 11010364.
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