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Selected Monthly Opinions directly from the Ninth Circuit in Petitions for Review from Administrative BIA or CIS cases:  
from 2007  
 JAN  FEB   MAR   APR   MAY   JUN   JUL  AUG  SEP  OCT  NOV  DEC
Ninth Circuit's Selected Precedent Decision
 
OCTOBER 2006  
 

The Ninth Circuit ordered rehearing en banc to resolve an inter- and intra-circuit conflict as to whether, under Leocal v. Ashcroft, 543 U.S. 1 (2004), crimes involving the merely reckless use of force can be crimes of violence or whether it should only be limited to crimes involving intentional conduct.  See Fernandez-Ruiz v. Gonzales, 431 F.3d 1212, 1212 (9th Cir. 2005).

Originally, a panel of the Ninth Circuit found that Fernandez-Ruiz had suffered a class two misdemeanor domestic violence offense that constituted a crime of violence under 18 U.S.C. § 16(a) and rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i). See Fernandez-Ruiz, 410 F.3d at 588.  Because his conviction occurred in 2003, after the 1996 repeal of 8 U.S.C. § 1182(c), Fernandez-Ruiz was ineligible to apply for a discretionary waiver of deportation. Fernandez-Ruiz, 410 F.3d at 588. Because his theft by control of property offense was an aggravated felony, he was ineligible for cancellation of removal. Id.

On rehearing, the Ninth Circuit determined that “[T]he federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), covers only those crimes involving intentional conduct”.  The Ninth Circuit then reasoned that—

“Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner’s documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply.”  The Court then returned the case to the original three-judge panel to decide whether he is removable on other grounds. FERNANDEZ-RUIZ V GONZALES


The Court was asked to determine whether petitioner’s conviction under Washington’s fourth degree assault statute, Wash. Rev. Code § 9A.36.041, constituted a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i), thereby making petitioner removable and ineligible for discretionary relief as an aggravated felon.  The Court granted the petition and remanded to the BIA so that it may issue a precedential decision defining what constitutes a crime of child abuse for purposes of § 1227(a)(2)(E)(i) and apply that definition to petitioner’s conviction in accordance with Taylor v. United States, 495 U.S. 575 (1990). VELAZQUEZ-HERRERA V GONZALEZ

 

The Court was asked to determine whether a particular state crime qualifies as one “involving moral turpitude” under the INA.  The Court concluded that that conviction for domestic battery under California Penal Code section 243(e) does not categorically qualify as a “crime involving moral turpitude”.  See also, In re Sanudo, 23 I. & N. Dec. 968, 973 (2006). J. Berzon wrote the opinion. J. Callahan concurred. GALEANA-MENDOZA V GONZALEZ

The Court was asked to determine the propriety of the BIA’s decision to deny discretionary denial of adjustment of status.  The Court held that it lack jurisdiction to review the BIA’s discretionary denial of adjustment of status, and dismissed the petition. 

BAZUA-COTA V GONZALES

Denying rehearing, the Court was asked to redetermine whether under the “modified” categorical approach, that Cisneros-Perez’s 2001 conviction for battery under California Penal Code section 242 was a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i) and that he was therefore ineligible for cancellation of removal under § 1229b(b)(1)(C).  The Court held that there was insufficient documentation to establish that Cisneros-Perez’s prior conviction necessarily was a crime of domestic violence and granted the petition for review and remanded to the agency for further proceedings.  J. Brenzon and J. Thomas, voted to deny rehearing and J. Callahan votes to grant it.  J. Brenzon wrote the opinion.  CISNEROS-PEREZ V GONZALES

SEPTEMBER 2006

 The question raised by this petition is whether the admissibility of an alien under the Special Agricultural Worker (“SAW”) program is determined only as of the date of admission for lawful temporary residence under 8 U.S.C. § 1160(a)(1), or whether it is determined both as of that date and as of the date of adjustment to lawful permanent residence under § 1160(a)(2). We hold that admissibility is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. We therefore grant the petition for review. PEREZ-ENRIQUEZ V GONZALES 

 

The Court was asked to determine whether the BIA’s denial of Granados-Oseguera’s motion to reopen proceedings based on an ineffective assistance of counsel (IAC) claim should be granted.  The Court granted the petition holding that “In the limited situation where an alien is represented by the same allegedly incompetent counsel throughout agency proceedings including through the filing of his motion to reopen proceedings before the BIA and therefore cannot administratively exhaust a claim for ineffective assistance of counsel, we have jurisdiction to review the denial of the motion to reopen”.  GRANADOS-OSEGURA V GONZALEZ 

 

The Court was asked to determine whether the BIA's streamlined decision affirming the IJ’s order of removal and reducing the period of voluntary departure originally granted by the IJ from 60 to 30 days should be granted.  The Court granted the petition and remanded despite the government’s assertions that the Court lacked jurisdiction to review the BIA’s discretionary decision to reduce the period of voluntary departure under INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), and INA § 240B(f), 8 U.S.C. § 1229c(f). PADILLA PADILLA V GONZALEZ

 AUGUST 2006

The Court was asked to determine whether § 240A of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (codified at 8 U.S.C. § 1229b (2000)) has an impermissibly retroactive effect because it limits § 240A Cancellation of Removal relief to those who have not previously been granted relief under § 212(c) of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1182(c) (repealed 1996)).  The Court denied the petition finding that Congress has unmistakably limited § 240A relief to those who have not received § 212(c) relief and that § 240A does not have a retroactive effect.

Rogelio Cardoso-Tlaseca petitioned for review the Board of Immigration Appeals’ (BIA) January 30, 2004, order denying his motion to reopen its September 30, 2003, order affirming an immigration judge’s (IJ) removal order and denial of his application for adjustment of status.  Cardoso also petitioned for review of the BIA’s order denying his motion to reconsider its January 30, 2004, decision.  In his motions Cardoso asserted that the conviction that had formed the basis for his removal order had been vacated.   The Court granted the petition in 04-70774 and remanded.  CARDOSO-TLASECA V GONZALES

Petitioner sought review of the BIA’s denial of his due process challenges to the proceedings before the IJ. Ornelas-Chavez claims (1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for withholding of removal under section 1231(b)(3); (2) the BIA erred in denying protection under CAT by affirming the IJ’s decision requiring that the alleged torture occur within the control or custody of a state actor who “sanctioned” it; and (3) the IJ’s stereotyping of the way gay men dress and behave prevented him from receiving a fair hearing in violation of his due process rights.   The Court concluded the BIA applied the wrong legal standards to Ornelas Chavez’s claims for withholding of removal under IIRIRA and CAT; therefore, it granted his petition with respect to those claims and did not reach the due process claims because it remand to the BIA for application of the correct standards referenced above. ORNELAS-CHAVEZ V GONZALES 

 

JULY 2006

Navarro-Lopez’ petition for review argued that the BIA’s summary affirmance that his conviction under California Penal Code § 32 for accessory after the fact was a conviction for a crime involving moral turpitude was in error.  The Court applying first the categorical approach established in Taylor v. United States, 495 U.S. 575 (1990), found that the state statute necessarily involves moral turpitude since it requires that a party has a specific intent to impede justice with knowledge that his actions permit a fugitive of the law to remain at large, citing In re Yound, 49 Cal. 3d 257, 264, 776 P.2d 1021, 1024 (Cal. 1989).  Petition denied. NAVARRO-LOPEZ V GONZALES

The petitioner in Salviejo-Fernandez petition for review in forma pro se of the BIA’s finding that Salviejo’s conviction under Cal. Health and Safety Code § 11366 for opening or maintaining a place for the purpose of unlawfully selling a controlled substance was an aggravated felony barring the relief of cancellation of removal under 8 U.S.C. § 1229b(a)(3).  Petition denied.  SALVIEJO-FERNANDEZ V GONZALES

In an issue of first impression in the Ninth Circuit, Kepilino petitions for review the BIA’s summary affirmance of the IJ’s decision that Kepilino’s 1999 prostitution conviction under Hawaii Revised Statute (“H.R.S.”) section 712-1200 rendered her inadmissible under section 212(a)(2)(D)(i) of the INA,  which renders inadmissible any alien who “is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.” 8 U.S.C. § 1182(a)(2)(D)(i). Kepilino contends that her Hawaii prostitution conviction does not trigger section 212(a)(2)(D)(i) because Hawaii’s definition of prostitution is overly broad and “has gone far beyond the well-accepted and understood meaning of prostitution.” The Court granted the petition by agreeing with Kepilino that Hawaii’s definition of prostitution encompasses acts outside of the scope of section 212(a)(2)(D)(i).     KEPILINO V GONZALES

Garcia-Quintero petitioned for review of the BIA’s order that found him removable for alien smuggling, and ineligible for cancellation of removal due to his failure to accrue seven years of continuous residence in the United States after being “admitted in any status.” At the removal hearing, Garcia-Quintero’s counsel attempted to assert the Fifth Amendment’s right against self-incrimination on behalf of Garcia-Quintero.  The IJ required Garcia-Quintero to assert his Fifth Amendment right himself, but allowed his attorney to advise him about when to exercise this right. After invoking the Fifth Amendment several times, Garcia-Quintero admitted that he tried to help his goddaughter unlawfully enter the United States. On the basis of this testimony, the IJ ordered Garcia-Quintero removed for having engaged in alien smuggling. 

Garcia-Quintero appealed the IJ’s ruling to the BIA. In addition to challenging the IJ’s procedure for invoking the Fifth Amendment, Garcia-Quintero moved to remand his case so the IJ could consider his application for cancellation of removal. In an unpublished order, the BIA rejected his appeal, and also denied his motion because it determined that he failed to satisfy the seven-year continuous residence requirement for cancellation of removal. In its ruling, the BIA concluded that Garcia-Quintero’s status as a beneficiary of the Family Unity Program (“FUP”) did not render him “admitted in any status” for the purposes of cancellation of removal.  The BIA’s decision denying the motion to remand involves an interpretation of the interplay between the FUP and the cancellation of removal statute, 8 U.S.C. § 1229b. "As a preliminary matter, we hold that the BIA’s unpublished non-precedential decision does not merit Chevron deference. The decision, however, is eligible for some deference under Skidmore. As for the merits of Garcia-Quintero’s claim for cancellation of removal, he raises an issue of first impression in this circuit as well as in most of our sister circuits—whether his acceptance into the Family Unity Program renders him “admitted in any status” for the purposes of cancellation of removal. We hold that it does, and therefore determine that Garcia-Quintero is eligible for cancellation of removal."  Petition granted. GARCIA-QUINTERO V GONZALES

 

Petitioners presented evidence to the BIA in their motion to reopen the denial of cancellation of removal for failing to establish the required hardships to the qualified relatives and demonstrated that the wife had become critically ill and that traveling to Mexico could threaten her health.  The BIA denied on discretionary grounds but failed to take into account the social and humane considerations and assign weight to each one as required by Arrozal v. . INS, 159 F.3d 429, 433 (9th Cir. 1998) (quoting Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir. 1993)).  The Court granted the petition. FRANCO-ROSENDO V GONZALES

 

 

  
  • Selected Federal Courts Watch
  • The Supreme Court in Gonzales v. Thomas, vacated an en banc judgment from the Ninth Circuit in an asylum case.  The case involve the question whether a particular family fell within the scope of the statutory term of "particular social group".  The Ninth Circuit en banc held that it did but the Supreme Court held that the Ninth Circuit should have applied the "ordinary remand rule" (following the Supreme Court's holding in Orlando Ventura v. INS) requiring that the administrative agency decide the issue (decided on 4/17/2006 under USSC Docket No. 05-552).
  • The Ninth Circuit Ibarra-Flores v. Gonzales, No. 04-71554 (9th Cir. March 06, 2006) Judge Rhoades, writing the Opinion, granted Ibarra-Flores’ petition for review of an order denying an application for cancellation of removal and remanded the matter for further proceedings.  The immigration judge had concluded that petitioner was ineligible for cancellation of removal because he had received administrative voluntary departure.   The immigration judge reached that determination through speculation as the record was unsupported by substantial evidence that what Ibarra-Flores in fact received was “administrative voluntary departure”.  [Link]

    • In Valencia v. Gonzales, No. 03-72028 (9th Cir. March 06, 2006) Judge Bea for the panel of the Ninth Circuit, writing an amended Opinion stated that the crime of engaging in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under California Penal Code section 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. section 16 for purposes of removal laws (This Opinion amends the prior Opinion of the court under Docket No. 03-72028). [Link]

    The Ninth Circuit in Yeghiazaryan  v. Gonzales (Docket No. 03-72159) disagreed with the BIA’s interpretation that 8 CFR. §1003.2(c), which provides 90 days to file a motion to reopen requires simultaneous submission of a petitioner’s motion, brief and supporting evidence, in instances where the petitioner has filed a protective motion and has notified the court that he intends to provide the necessary application for relief and supporting documentation at a later date within the 90-day time period. The Court based its decision on Garcia-Cortez v. Ashcroft, 366 F.3d 749 (9th Cir. 2004) which instructs that when the legal claims are clearly stated in the Notice of Appeal, the BIA violates a petitioner’s due process rights by dismissing a motion to reopen for failure to file supporting material within the prescribed time limit.  The panel, formed by J. Kleinfeld, J. Fisher Circuit Judges, and Senior District Judge Milton I. Shadur, who wrote the Opinion, held that nothing in 8 CFR. §1003.2(c) mandates concurrent submission under such circumstances, nor is there any warning that early filing somehow closes the otherwise available 90-day window.  This case was decided on December 14, 2005. 

    • Valencia v. Gonzales, Docket No. 03-72028. (See amended Opinion, above)

    • Valencia was convicted in California for the unlawful sexual intercourse with a person under eighteen, who was more than three years younger than he, in violation of Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. § 16. 

      In a substituted Opinion after a petition for rehearing, the Ninth Circuit reversed its prior finding dated May 12, 2005, and found that a conviction for Penal Code section 261.5(c) is not a crime of violence under 18 U.S.C. § 16.  In reaching its decision, the Court applied the “categorical approach” laid out in Taylor v.United States, 495 U.S. 575 (1990), requiring that a violation of section 261.5(c) qualifies as a crime of violence and hence an aggravated felony, “if and only if the full range of conduct covered by it falls within the meaning of that term.” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (citation omitted).

      Cal. Penal Code § 261.5(c) does not have “as an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another.” 18 U.S.C. § 16(a).  Therefore, under the Taylor categorical approach, the courts consider whether the “full range of conduct” covered by section 261.5(c) “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). 

      California. Penal Code section 261.5(c) criminalizes consensual sexual intercourse with a victim under eighteen by a perpetrator three years older. The panel stated that since liability can attach even if the victim voluntarily engages in sexual intercourse, section 261.5(c) does not involve an act “against the will” of the victim.  Furthermore, section 261.5(c) has no element of restraint or other aggravating factors that suggest the likely use of physical force in committing the offense.

      The panel was constituted by O’Scannlain, Cowen, and Bea, Circuit Judges. The Substituted Opinion was written by Judge Bea.  The case was decided on December 12, 2005.

      Tapia v. Gonzales, Docket No. 03-74615.

    • On December 6, 2005, the Ninth Circuit in Tapia joined two other circuits in finding that an alien’s brief departure from the United States did not break the continuous physical presence requirement for purposes of cancellation of removal.  Justice Clifton writing the opinion determined that when immigration officials turn an alien away at the border, it does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien's continuous physical presence.   

    • On December 7, 2005, the Ninth Circuit in  Cuevas Gaspar v. Gonzales,  Docket No. 03-73562 found that a Washington conviction for accomplice to residential burglary was not a crime of moral turpitude.
    • On January 12, 2005, the Court decided the case of Penuliar v. Ashcroft, Docket 03-71578, involving a permanent resident alien who pled guilty to two counts of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a), and one count of evading an officer in violation of California Vehicle Code § 2800.2(a).  The Court was reviewing the Board of Immigration Appeals' decision affirming the Immigration Judge's order of classifying both convictions as “aggravated felonies” under the Immigrationand Nationality Act (“INA”). As a result of this finding, the IJ rendered Penuliar ineligible for cancellation of removal and voluntary departure, and ordered him deported as an aggravated felon. The Court granted the petition after rejecting the findings that Penuliar convictions constituted “aggravated felonies” under the INA.
    • On December 28, 2004, the United States Court of Appeals for the Ninth Circuit in Molina-Camacho v. Ashcroft, Docket No. 02-73536, held that the Board of Immigration Appeals acted in excess of jurisdiction (ultra vires) when it issued an order of removal against Molina-Camacho  because neither the regulations nor the statute authorize the Board to issue orders of removal in the first instance.  Instead, the court noted, the Board should have remanded the case because only Immigration Judges are authorized to issues orders of removal.  The Ninth Circuit also found that because the Board's decision was an ultra vires' act, it rendered that portion of its decision a "legal nullity" as well as deprived the Court of Appeals of subject matter jurisdiction because there was no "final order" of removal that it could review.   In doing so, the Ninth Circuit transferred the non-viable petition for review to the United States District Court (as if it had been filed as a petition for a writ of habeas corpus).  This decision could potentially aid a significant number of aliens in the same or similar position as Molina-Camacho to reopen their cases before the Board; and may do so, even if their decisions were rendered several years ago and even if they may have been affirmed by the Court of Appeals.  The potential implications of this decision are enormous not only in the Ninth Circuit, but based on the merits of its rationale, may be extended accross all other sister circuits.  Therefore, aliens who were granted relief by the Immigration Judge but thereafter the decision was appealed by the Government, may be able to reopen their cases if the Board in reversing the Judge's order subsequently entered an order of deportation or removal instead of remanding to the Immigration Judge.
    • The United States Court of Appeals for the Ninth Circuit in Cazarez-Gutierrez v. Ashcroft,  __F.3d__ (9th Cir. 2004), overruled the Board of Immigration Appeals precedent in Matter of Yanez-Garcia 23 I&N 390 (BIA 2002).   In sum, Cazarez-Gutierrez holds that either a first or second state conviction, whether felony or misdemeanor, for simple possession of a controlled substance is not an aggravated felony in the jurisdiction of the Ninth Circuit.  The only exception is if the substance possessed was more than five (5) grams of cocaine base (crack) or any amount of flunitrazepam (a date-rape drug).  In that case a state felony or misdemeanor conviction is an aggravated felony. Furthermore, Cazarez-Gutierrez holds that the very first state conviction for simple possession of a drug, whether felony or misdemeanor, and including cocaine base or flunitrazepam, can be eliminated for immigration purposes by "rehabilitative relief" such as, in California, withdrawal of plea under deferred entry of judgment, Proposition 36, or P.C. §1203.4. 

    • On January 4, 2005, the Ninth Circuit in Medina v. Ashcroft Docket No. 03-71966, granted a petition for review where petitioner's removal on the basis of his conviction for attempt to be under the influence of THC-carboxylic acid is not authorized by 8 U.S.C. section 1227(a)(2)(B)(i).

    • The Ninth Circuit in Salgado-Diaz v. Ashcroft Docket No. 03-73312, granted a petition for review where the petitioner successfully demonstrated that the denial of his request for an evidentiary hearing on his claim of unlawful arrest was a due process violation.  Decided on January 31, 2005.

    • The First Circuit in Katebi v. Ashcroft Docket No. 03-2550, held that if a permanent resident alien who reenters the United States after foreign travel, is not returning from "a temporary visit abroad," the alien will be deemed to have abandoned permanent resident status and will be ordered excluded from the United States.  This case was decided on February 3, 2005.

    • On January 5, 2005, the First Circuit decided two similar cases, Succar v. Ashcroft,  Docket No. 03-2445 and Rivera v. Ashcroft, Docket No. 04-1060, holding in each case that 8 C.F.R. section 245.1(c)(8), barring paroled aliens in removal proceedings from applying for adjustment of status, is invalid as inconsistent with 8 U.S.C. section 1255(a).

    • The Third Circuit on January 4, 2006, decided Yan v. Ashcroft Docket No. 03-3761 granting a petition for review where the Immigration Judge improperly found petitioner was credible, and, at the same time, rejected portions of her testimony without explanation. 

       
      On May 23, 2005, the Ninth Circuit in Lara-Cazares v. Gonzales (Docket No. 03-71568) held that gross vehicular manslaughter while intoxicated does not qualify as a crime of violence within the meaning of 18 U.S.C. section 16.

      •  

      • The Fifth Circuit in Mortera-Cruz v. Gonzales No. 04-60234 (decided on May 9, 2005) held that the Board of Immigration Appeals did not act arbitrarily when it ruled that Mortera-Cruz was inadmissible to the United States under the "unlawful presence" provision of 8 U.S.C. section 1182(a)(9)(C)(i)(I).

      • The Ninth Circuit in Valencia v. Gonzales (05/12/05 - No. 03-72028) held that committing sexual abuse of a minor is an aggravated felony under 8 U.S.C. section 1227(a)(2)(A)(iii) for immigration purposes. (But see Substituted Opinion dated December 12, 2005, supra.)

      • The Seventh Circuit in Labojewski v. Gonzales (05/04/05 - No. 03-2755) held that it was not "impermissibly retroactive" the application of the deportation reinstatement provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. section 1231(a)(5), when applied to an alien who reentered the United States before, but applied for adjustment of status after, the IIRIRA's effective date.  Compare with Castro-Cortez v. INS, 239 F.3d 1037 (2001) in the Ninth Circuit. 

      • The Ninth Circuit in Oh v. Gonzales (05/02/05 - No. 03-73131) decided for the petitioner in her challenge that the Board of Immigration Appeals abused its discretion when it refused to consider her reasonable excuse for the untimely filing of her notice of appeal. 

      • The Ninth Circuit in Sagaydak v. Gonzales (05/04/05 - No. 02-74299) granted petitioner's petition for review where the immigration judge failed to determine whether Sagaydak's late filing of his application for asylum was caused by "extraordinary circumstances".

      • In Lopez-Umanzor v. Gonzales Docket No. 03-72014 (May 6, 2005) the Ninth Circuit granted Lopez-Umanzor's petition for review where the Immigration Judge erred when he refused to allow petitioner to present relevant expert testimony that bore on her credibility.

      • The Sixth Circuit in Akhtar v. Gonzales (04/29/05) Docket Nos. 03-4436, 04-3547, held that the Board of Immigration Appeals abused its discretion in denying Akhtar's motion to reopen where the BIA failed to properly apply its own regulations. 

      • The First Circuit in Cho v. Gonzales (04/19/05) Docket No. 04-1437 granted Cho''s application to remove the conditional nature of her admission to the United States where she satisfied the "good faith" marriage requirement for eligibility under 8 U.S.C. section 1186a(c)(4)(B).

      • The Second Circuit in Vacchio v. Ashcroft  (decided on April 18, 2005, Docket No. 03-2532) held that a petition for a writ of habeas corpus under 28 U.S.C. section 2241, challenging an immigration detention, qualifies as a "civil action" for purposes of compensation of fees under the Equal Access to Justice Act.

      • The Ninth Circuit in Tchoukhrova v. Gonzales decided on April 21, 2005 (Docket No. 03-71129) held that disabled children and their parentsconstitute a statutorily protected group, and a parent who provides care for a disabled child may seek asylum and withholding of removal on the basis of the persecution the child has suffered on account of his disability.

      • On May 25, 2005, the Fifth Circuit in Tesfamichael v. Gonzales (Docket No. 04-61180) granted Tesfamichael's request for a temporary stay of removal where a significant likelihood of success on the merits and irreparable harm were shown.

      • On May 26, 2005, the U.S. Court of Appeals for the Seventh Circuit in Zheng v. Gonzales (Docket No. 04-2402) granted Zheng's petition for review where the Board of Immigration Appeals' denial of Zheng’s claim for withholding of removal was not supported by substantial evidence.

      • On May 26, 2005, the Ninth Circuit in Zhang v. Gonzales (Docket- No. 01-71623) held that a child of a parent who was forcibly sterilized is not “automatically eligible” for asylum under 8 U.S.C. section 1101(a)(42)(B).

      • The Third Circuit in Cao v. Atty. Gen . of the US (Docket No. 03-4256) granted Cao’s petition for review where the Immigration Judge's adverse credibility finding was not supported by substantial evidence in the record.

      • The Eight Circuit in Madjakpor v. Gonzales (Docket No. 02-4117) denied petitioner’s petition for review where he did not present reasonable, substantial, and probative evidence to establish that it is more likely than not that he will be subjected to persecution or torture if he is returned to Togo.

      • The Eight Circuit in Falaja v. Gonzales (Docket No. 04-1840) denied the petition for review where substantial evidence supports the Board of Immigration Appeals' finding that she willfully misrepresented material facts in her attempt to gain asylum.  (Decided on 5/11/2005).

      • The Eight Circuit in Kanyi v. Gonzales (Docket Nos. 04-1939, 04-2727) denied the petition for review over his claims that he did not receive notice of a rescheduled hearing, and that his counsel was ineffective.  These consolidated cases were decided on May 12, 2005.

      • The Ninth Circuit in Oropeza-Wong v. Gonzales (Decided on 5/10/05 under Docket No. 03-71446) held that petitioner was not entitled to a statutory waiver of the conditional basis of his permanent resident status, based on marriage to a US citizen, because he did not meet his burden of proving that he entered his marriage in good faith.

      • The Ninth Circuit in US v. Kwan (Decided on 5/12/05 under Docket No. 03-50315) held that the Anti-terrorism and Effective Death Penalty Act Certificate of Appealability requirement does not apply to a petition for a writ of coram nobis proceedings.

      • The United States Court of Appeals for the Second Circuit in Sepulveda v. Gonzales (Decided on 5/04/05 under Docket No. 03-40643) held that 8 U.S.C. section 1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions regarding an alien's eligibility for relief under 8 U.S.C. section 1229b.

      • The Third Circuit in Singh v. Gonzales (Decided on 5/05/05 under Docket No. 03-2788) granted a petition for review where the petitioner established that the police in his home country of India imputed his father's political opinion to petitioner and then mistreated him based on that opinion.

      • The United States Court of Appeals for the Fourth Circuit in Li v. Gonzales (Docket No. 03-2525, decided on May 2, 2005) held that the Board of Immigration Appeals did not abuse its discretion when it determined that Li was not persecuted for resistance to China's coercive population control program.  Petition denied.

      • The Tenth Circuit in Cruz-Funez v. Gonzales denied the petition for view over petitioners’ claim that they were eligible for asylum based on their class of membership in a "particular social group."  The case was decided on May 3, 2005 under Docket No. 03-9619.

      • The Ninth Circuit in Albillo-De Leon v. Gonzalez, ordered proceedings reopened finding that in this circuit, a petitioner may obtain equitable tolling relief to defeat a statute of limitations to file a motion to reopen under NACARA section 203, by establishing that he was denied of effective assistance of counsel in meeting the deadline for filing a motion to reopen.  This case provides a clear example of the Ninth Circuit's application of the equitable tolling doctrine in applicable circumstances.  The case was decided on June 8, 2005 under Docket No. 02-72046. 

      • The Ninth Circuit in Cabrera-Alvarez v. Gonzalez, Docket No. 04-72487, found that petitioner’s claims that the immigration judge's denial of his cancellation of removal petition violated international law, held that even assuming that the unratified Convention on the Rights of the Child has attained the status of customary international law, petitioner failed to show that the agency's interpretation or application of the statute is inconsistent with the Convention.  This case was decided on September 8, 2005.

    Weekly Summary of Ninth Circuit Criminal Cases
     
    US v. Morales-Perez, Docket No. 05-10115. Attempted possession of a controlled substance under with intent to sell under federal law encompasses the California-defined crime of purchasing cocaine base for purposes of sale. Thus, a conviction under California Health and Safety Code section 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualifies as a predicate drug trafficking offense under the federal sentencing guidelines.  Decided by a panel of the Ninth Circuit on May 31, 2006.  
     
    US v. Camacho-Lopez, Docket No. 05-10455. A panel of the Ninth Circuit reversed a conviction for illegal reentry following deportation where the alien's claim was based on a defect in his earlier deportation proceedings, which invalidated his deportation order and appeal waiver.   Consequently, the defect rendered an essential element of his conviction missing.  Decided by a panel of the Ninth Circuit on May 30, 2006.
     
    US v. Pintado-Isiordia, Docket No. 05-50489.
    A conviction and sentence for illegal reentry after removal is affirmed in part, vacated in part as to his sentence, and remanded for a determination as to whether defendant's conviction for assault with a firearm qualifies as a "crime of violence" under either a categorical approach, or a modified categorical approach.  This case was decided on 5/26/2006.
    http://caselaw.lp.findlaw.com/data2/circs/9th/0550489p.pdf
     

    US v. Diaz-Argueta (05/16/06 - No. 05-10224)
    A sentence for illegally reentering the United States following deportation is vacated pursuant to a claim that the district court failed to take into account all of the statutory sentencing factors set out to guide sentencing.
    http://caselaw.lp.findlaw.com/data2/circs/9th/0510224p.pdf

    US v. Lopez-Solis (05/19/06 - No. 03-10059)
    A sentence for entering the U.S. illegally is vacated pursuant to defendant's claim that his prior conviction for statutory rape was not for "sexual abuse of a minor," and therefore not a "crime of violence" for purposes of sentence enhancement under a sentencing guideline.
    http://caselaw.lp.findlaw.com/data2/circs/9th/0310059p.pdf 
     
     
    (*)  Compiled from Findlaw.com and others. 
    Weekly Summary of Federal Circuit Cases on Deportation, Exclusion and Removal (*)
     
    1st Circuit Court of Appeals

    DaCosta v. Gonzales Docket No. 05-1438,  decided on May 24, 2006.  A panel of the First Circuit denied DaCosta's petition for review of a BIA decision that had denied him adjustment of status because petitioner did not exhaust claims of equitable tolling and estoppel; adjustment of status is a discretionary relief and not a protected interest for due process purposes; the government did not waive arguments; and the order to reopen did not cure violation of voluntary departure order.

    2nd Circuit Court of Appeals

    Wang vs Gonzales Docket No. 03-41020, decided on 5/24/2006.
    Denial of application for asylum and withholding of removal under former 8 U.S.C. section 1182(a)(20) was upheld because the BIA's adverse-credibility determination was proper, where it was based in part on petitioner's failure to mention that his wife was forcibly sterilized three years before he filed his original application in 1992.
    Kambolli vs Gonzales Docket No. 03-40411, decided on 5/26/2006.
    Denial of request for asylum and for withholding of removal under the Immigration and Naturalization Act of 1952 and the UN Convention Against Torture is affirmed to the extent that the denial was supported by substantial evidence and petitioner waived CAT claim. Jurisdiction does not lie to review claim that case should have been referred to a three-member BIA panel.

    Wangchuck vs US Dep't of Homeland Sec. (05/15/06 - No. 04-1307)
    Denial of claims for asylum, withholding of removal, and relief under the Convention Against Torture, is vacated where the BIA failed to determine the petitioner's nationality, incorrectly allocated the burden of proof regarding whether the petitioner was firmly resettled in a third country, applied the wrong legal standard in determining whether the petitioner had a well-founded fear of persecution, and may have ordered petitioner removed to a country to which removal is not authorized. http://caselaw.lp.findlaw.com/data2/circs/2nd/041307p.pdf
     
    Canada vs Gonzales (05/18/06 - No. 03-40051)
    Order of removal from U.S. as a result of conviction for assault of a peace officer in violation of Connecticut General Statutes section 53a-167c(a)(1), a crime of violence making petitioner eligible for removal as an aggravated felon, is upheld over claim that section 53a-167c(a)(1) cannot be cleanly divided between conduct that is categorically a crime of violence and conduct that is not categorically a crime of violence.
    http://caselaw.lp.findlaw.com/data2/circs/2nd/0340051p.pdf

    Francois v. Gonzales (05/19/06 - No. 04-4523)
    Petition for review of a denial of petitioner's claim for relief from removal based upon alleged violations of the Convention Against Torture (CAT) is denied where the generalized allegations of prison conditions petitioner advanced did not rise to the level of "torture" for purposes of the CAT.
    http://caselaw.lp.findlaw.com/data2/circs/3rd/044523p.pdf 

    5th Circuit Court of Appeals

    Guevara v. Gonzales Docket No. 04-60685, decided on 5/22/2006.
    A petition for review of an order of the Board of Immigration Appeals is granted where res judicata barred a collateral jurisdictional attack on a previous decision of the BIA to grant petitioner's motion to reopen and terminate removal proceedings, and thus, the BIA abused its discretion in granting the motion to reconsider on that basis.

    Akhtar v. Gonzales Dockets No. 04-60497, 04-60895, decided on 5/23/2006.
    A regulation precluding applications for adjustment of status from "paroled" "arriving aliens" in removal proceedings, 8 C.F.R. section 245.1(c)(8), is valid under Chevron.

    Delgado-Reynua v. Gonzales Docket No. 04-21019, decided on 5/23/2006.
    Where the Board of Immigration Appeals (BIA) reverses an immigration judge's (IJ) grant of discretionary relief and gives effect to the IJ's original order of removability, the BIA has merely eliminated "impediments to removal" and effected the original removal order, and thus, such disposition does not offend the scope of the powers granted to the BIA.

    6th Circuit Court of Appeals

    US v. Mandycz Docket No. 05-1424, decided on 5/22/2006.
    A denaturalization order issued pursuant to a determination that defendant "illegally procured" his naturalization by failing to acknowledge his service as a prison guard in concentration camps during World War II is affirmed over his claims of error regarding: 1) sufficiency of the evidence; 2) due process; 3) laches; and 4) admission of evidence.
     
    Tran v. Gonzales (05/17/06 - No. 04-3800, 05-3734)
    Petition for review of a Board of Immigration Appeals' decision is granted in part where, although the Illegal Immigration Reform and Immigrant Responsibility Act's (IIRIRA) provision allowing for the deportation of aliens convicted of an aggravated felony was properly applied to petitioner's pre-IIRIRA conviction, a remand for consideration of petitioner's Convention Against Torture claim under the correct standard of review and burden of proof was appropriate.
    http://caselaw.lp.findlaw.com/data2/circs/6th/043800p.pdf
     
    7th Circuit Court of Appeals

    Tunis v. Gonzales (05/15/06 - No. 05-3465)
    Petition for review of denial of relief under the Convention Against Torture is granted and the case returned to the BIA for discussion of the likelihood that petitioner would be subject to female genital mutilation upon return to Sierra Leone.
    http://caselaw.lp.findlaw.com/data2/circs/7th/053465p.pdf
    8th Circuit Court of Appeals

    US Equal Opportunity Comm'n v. Technocrest Sys., Inc. Dockets No. 05-3322, 05-3457, decided on 5/26/2006.
    Partial enforcement of an administrative subpoena issued by the Equal Employment Opportunity Commission (EEOC) in furtherance of an investigation of national origin discrimination is reversed in part where the district court abused its discretion in quashing the EEOC's requests for Department of Labor and the Immigration and Naturalization Service documents and personnel files for all employees.

    Bah v. Gonzales (05/15/06 - No. 05-2152)
    Petition for review of a denial of petitioner's application for asylum and related relief is granted and the case remanded for a changed country conditions analysis where the record compelled a finding of past persecution based upon a protected status, and thus petitioner's well-founded fear of future persecution was presumed to exist.
    http://caselaw.lp.findlaw.com/data2/circs/8th/052152p.pdf
     
    Morales-Alegria v. Gonzales, Docket No. 03-73117, Decided by a panel of the Ninth Circuit on June 06, 2006.  Petitioner sought review of a BIA's dismissal of his appeal from a finding of an IJ that his conviction for the offense of forgery under California Penal Code section 476 rendered him removable as an aggravated felon under section 101(a)(43)(R).  At issue in this finding was whether section 476 statutory requirements were broader than those of the immigration statute.  The Court found that section 476 does require knowledge of the fictitious nature of the instrument, and therefore, it is not broader than the federal definition of "offense relating to...forgery" for purposes of qualifying as an "aggravated felony".  http://caselaw.lp.findlaw.com/data2/circs/9th/0373117p.pdf

    US v. Pintado-Isiordia Docket No. 05-50489, decided on 5/26/2006.
    A conviction and sentence for illegal reentry after removal is affirmed in part, vacated in part as to his sentence, and remanded for a determination as to whether defendant's conviction for assault with a firearm qualifies as a "crime of violence" under either a categorical approach, or a modified categorical approach.

    11th Circuit Court of Appeals

    Savoury v. US Attorney Gen. Docket No. 05-10966, decided on 5/25/2006.
    Jurisdiction lies to hear petition to review determination that petitioner was removable under INA section 212(a)(2)(A)(i)(II) and also ineligible for reentry under section 212(c) due to a prior conviction, which is upheld over petitioner's claims that he is an alien lawfully admitted for permanent residency who was returning to his lawful unrelinquished domicile, that the government violated due process, and petitioner's affirmative defenses of waiver, estoppel, and laches.

    (*) Some cases directly downloadable and linked to Findlaw.com.