IMMIGRATION CASE LAW

• Aggravated Felony (Retroactivity)
  
  
• Asylum
  
  
• Asylum and Domestic Violence
  
  
• Absentia (In) Orders of Removal
  
  
• Arriving Aliens in Removal Proceedings
  
  
• Cancellation of Removal
  
  
• Cancellation of Removal and Petty Offense Exception
  
  
• Child Status Protection Act
  
  
• Consular Nonreviewability
  
  
• Counsel, Right To
  
  
• Counsel, Ineffective Assistance of
  
  
• Crimes
  
  
• Extraordinary Ability
  
  
• Inadmissibility
  
  
• Jurisdiction
  
  
• Labor Certification
  
  
• Moral Turpitude
  
  
• NACARA
  
  
• Portability
  
  
• Reentry After Removal
  
  
• Reopening
  
  
• Visa Waiver
  
  
  
  
  

AGGRAVATED FELONY

Ledezma-Galicia is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like Ledezma-Galicia’s, that occurred prior to November 18, 1988. Consequently, we grant Ledezma-Galicia’s petition for review, vacate the district court’s denial of his habeas petition, and dismiss his appeal as moot.
Ledezma-Galicia (9th Circuit) (Important holding concerned with the retroactivity for those convicted of an "aggravated felony.")

ASYLUM

Race
The record compels the conclusion that, contrary to the IJ’s decision, the harm Sinha suffered was “on account of” his race. We remand to the agency to make a finding with respect to the second and third prongs of a past persecution analysis, government inability and severity. If the government was indeed unwilling and/or unable to control Sinha’s attackers, and if the harm he suffered is sufficiently severe, he will have established past persecution and will be entitled to a rebuttable presumption that his fear of future persecution is wellfounded. See 8 C.F.R. § 1208.13(b)(1)(i). Even if the agency determines that the harm Sinha suffered in the past cumulatively does not rise to the level of past persecution, it will be relevant to his ability to show a well-founded fear of future persecution if he is removed to Fiji under the “disfavored group” approach. See Wakkary v. Holder, Slip Op. 05-71539, 2009 WL 595579, *10-11 (9th Cir. Mar. 10, 2009); Sael, 386 F.3d at 925.
Sinha v. Holder (9th Cir. April 2009)

Particular Social Group (Roma)
Donchev does not claim that he was persecuted because of Roma ethnicity (his ethnicity is not Roma, but Bulgarian). Nor does he claim that he was persecuted on account of political opinion. Rather, Donchev claims that he was persecuted because he was in the“particular social group” of friends of Roma individuals, or friends of the Roma people.
Donchev v Mukasey (9th Cir. 2009)

Informants and "particular social group"
Do government informants constitute a “particular social group” for purposes of analyzing their eligibility for asylum? The Ninth Circuit, in a decision by Justice Graber, answers that question “no” and, therefore, denies the petition for review.
Soriano v. Holder (9th Cir. June 2009)

Disfavored Group
The primary question we decide today concerns whether one’s membership in a “disfavored group” — that is, a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted — is pertinent in determining whether an applicant for withholding of removal is eligible for that form of relief. The question arises because we have recognized that membership in a disfavored group is relevant to whether an applicant has a well-founded fear of future persecution for purposes of an asylum claim, but have never determined the role of disfavored group analysis in the context of a claim for withholding of removal. We do so now. Under the Immigration and Nationality Act (“INA”), eligibility for asylum is established by demonstrating “ ‘a wellfounded fear of persecution’ ” on account of “ ‘race, religion.
WAKKARY v. HOLDER (9th Cir. March 10, 2009)

Christians in Indonesia are a disfavored group.
TAMPUBOLON v HOLDER (9th Cir. 2010)

Female Genital Mutilation
in short, we conclude that Mohamed’s claim that she was persecuted “on account of” her membership in a social group, whether it be defined as the social group comprised of Somalian females, or a more narrowly circumscribed group, such as young girls in the Benadiri clan, not only reflects a plausible construction of our asylum law, but the only plausible construction.
(Editor's Note: Most other jurisdictions, including the Board of Immigration Appeals, do not agree with this opinion on FGM.)
Mohammed v. Gonzales (9th Cir. 2005)

Withholding of Removal
When an Immigration Judge issues a decision granting an alien's application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.§ 1231(b)(3)(2000), without a grant of asylum, the decision must include an explicit order of removal.
Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)

DOMESTIC VIOLENCE: ATTORNEY GENERAL REVISITS R-A

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IN ABSENTIA

In Absentia & Establishing Removability
Petitioner's petition for review of the BIA's order removing him from the U.S. was granted, where the record contained no evidence relevant to the charge of removability, and thus the order was not supported by substantial evidence. (Good summary of case law dealing with in absentia orders, althought this case was decided on the grounds that removability was not properly established.)
Al Mutarreb v. Holder, (9th Cir. April 2009)

NINTH CIRCUIT COUT OF APPEALS grants Petition for review of a BIA order where a petitioner arrived late for his immigration hearing due to car trouble and was ordered removed in absentia. When petitioner arrived in court, the Immigration Judge was still in the courtroom. A petition for review of a decision denying petitioner's motion to reopen immigration proceedings after he was ordered removed in absentia is granted where: 1) petitioner arrived late to his immigration hearing due to his car's mechanical failure, but he was in the courtroom when the IJ was still on the bench, and thus, he did not fail to appear for the hearing; and 2) the IJ's failure to reopen or continue his case, even in the absence of exceptional circumstances, was an abuse of discretion.
Perez v. Mukasey, No. 04-73029 (9th Cir. February 14, 2008)

Singh v. INS, 295 F.3d 1037 (9th Cir. 2002)

ARRIVING ALIENS IN REMOVAL PROCEEDINGS

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.Editor's Note: Interesting discussion of 9th Circuit case law, including the Bona case, in the decision.
Matter of Binsar SILITONGA, 25 I&N Dec. 89 (BIA 2009)

CANCELLATION OF REMOVAL

NINTH CIRCUIT holds that a parent's status as an LPR may be imputed to an unemancipated minor.
(Escobar v. Holder, 9th Cir. May 2009)

We must decide whether our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), compels the conclusion that a parent’s status as an alien lawfully admitted for permanent residence may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfying the five-year permanent residence requirement for cancellation of removal under section 240A(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C.§ 1229b(a)(1). Because the rationale and holding of Cuevas- Gaspar apply equally to the five-year permanent residence and the seven-year continuous residence requirements, we conclude that it does.

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CANCELLATION OF REMOVAL AND
PETTY OFFENSE EXCEPTION

Matter of Gabriel ALMANZA-Arenas,
(3) An alien who has been convicted of a crime involving moral turpitude has been“convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section
240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C.§ 1182(a)(2)(A)(ii)(II) (2006).

 

CHILD STATUS PROTECTION ACT

Priority Date Retention Limited to Petitions with Same Petitioner
ISSUE:
Wwhether a derivative beneficiary who has aged out of a fourth-preference visa petition may automatically convert her status to that of a beneficiary of a second-preference category pursuant to section 203(h) of the Act.
To answer this question, the Board of Immigration Appelas (or "BIA") examined whether the CSPA (Child Status Protection Act) intended for the beneficiary of a second-preference visa petition filed by her father to retain the priority date previously accorded to her as the derivative beneficiary of a fourth-preference visa petition filed by her aunt.
HOLDING:
The automatic conversion and priority date retention provisions of the Child Status Protection Act do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.
Matter of Wang (BIA June, 2009)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1151(f)(1) (Supp. II 2002), which allows the beneficiaryof an immediate relative visa petition to retain his status as a "child" after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.
(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf.
In re Rodolfo AVILA-PEREZ 24 I & N Dec. 78 (BIA 2007).

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CONSULAR NONREVIEWABILITY

American Academy of Religion (2nd. Cir. July, 2009)

RIGHT TO COUNSEL

NINTH CIRCUIT COUT OF APPEALS grants Petition for review of a BIA order denying Guatemalan petitioner's application for cancellation of removal where petitioner was denied his statutory right to counsel.
Mendoza-Mazariegos v. Mukasey, 12/6/07)


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INEFFECTIVE ASSISTANCE OF COUNSEL

Criminal Defense Attorneys Must Properly Advise Their Clients Regarding the Consequences of a guilty plea, according to a 2010 decision by the United States Supreme Court. In an interesting concurrence, Justice Alito explains how complicated immigration law is. Justice Alito would have limited the holding to state that criminal defense attorneys may not misadvise their client, otherwise this would consitutute ineffective assistance of counsel and could be the basis for a new hearing.
Padilla v. Kentucky.

ATTORNEY GENERAL MUKASEY ISSUES DECISION IN FINAL DAYS OF BUSH ADMINISTRATION HOLDING THAT THERE IS NO LEGAL OR CONSTITUTIONAL RIGHT TO A LAWYER IN REMOVAL PROCEEDINGS. ACTION IS CONDEMNED BY AILF (American Immigration Lawyer's Foundation) AND WIDELY CRITICIZED BY IMMIGRATION ATTORNEYS THROUGHOUT THE UNITED STATES.
Matter of Compean-Bangalay & J-E-C, 24 I & N Dec. 710 (A.G. January 2009) THIS DECISION WAS VACTED BY ATTORNEY GENERAL HOLDER, JUNE 2009.

Compean-Bangalay, (A.G. June 2009)

NINTH CIRCUIT COURT OF APPEALS grants Petition for review in cancellation of removal case where the petitioner was prejudiced by ineffective assistance of counsel evidenced by the filing of a "boilerplate brief" with irrelevant portions.
Grigoryan v. Mukasey, No. 05-77020, 02/05/08

NINTH CIRCUIT COURT OF APPEALS grants Petition for review in cancellation of removal case where the petitioner was prejudiced by ineffective assistance of counsel.
Molinar v. Mukasey, No. 04-73484, 04-75248, 01/24/08

Torres claims that Brazelton’s performance was deficient under Strickland because Brazelton conceded Torres’s alienage and failed to inform Torres about the advantages of remaining silent. . . We disagree.
Torres-Chavez (June 2009)

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CRIMES

An alien “convicted of an aggravated felony any time after admission is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). An “aggravated felony” includes “an offense that . . . involves fraud or deceit in which the loss to the . . . victims exceeds $10,000.” §1101(a)(43)(M)(i).
Holding: Subparagraph (M)(i)’s $10,000 threshold refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion rather than to an element of the fraud or deceit crime.
NIJHAWAN V. HOLDER (US SUPREME COURT 2009)

For an excellent advisory on Nijhawan by Kathy Brady, click here.

FFOA AND EXPUNGEMENT, PROBATION VIOLATION
The question before us is whether an alien whose state conviction for possession of drug paraphernalia was expunged under state law, but who violated the terms of his probation before expungement, would have been eligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C.§ 3607(a). Generally, expungement of convictions under state rehabilitative statutes does not negate the immigration consequences of the conviction. Notwithstanding this, an alien is not removable if—had he been prosecuted in federal court— he would have qualified for relief under the FFOA. The FFOA relieves certain first-time offenders convicted on drug possession charges of what would otherwise be the immigration consequences of the conviction. However, FFOA relief is unavailable when an offender has violated a condition of probation. See 18 U.S.C. § 3607(a). For this reason, we deny the petition brought by Jose Estuardo Estrada, a native and citizen of Guatemala, whose application for adjustment to permanent resident status was denied and whom the immigration judge (IJ), and Board of Immigration Appeal s (BIA), found ineligible for a waiver under 8 U.S.C. § 1182(h).
Estrada v. Holder (9th Cir. May 2009)

Partiularly Serious Crime
[4] We recognize that one of the aims of Congress in enacting the post-1990 statutory amendments was probably to avoid sweeping minor crimes into the categorical aggravated felony bar. But nothing in the legislative history indicates that Congress intended, by creating a categorical bar and by later relaxing that categorical bar, to eliminate the Attorney General’s pre-existing discretion to determine that, under the circumstances presented by an individual case, a crime was“particularly serious,” whether or not the crime was an aggravated felony. We therefore find the BIA’s interpretation of the statute reasonable, and conclude that the BIA was entitled to determine, by adjudication, that Delgado’s DUI convictions
were particularly serious crimes that barred him from eligibility for withholding of removal under 8 U.S.C.§ 1231(b)(3)(B) and CAT withholding under 8 C.F.R. § 1208.16(d)(2).
Delgado v. Holder (9th Cir. April 2009)

Crimes Involving Moral Turpitude
[11] The Board’s en banc decision in Lopez-Meza was accompanied by a dissent that would have held that aggravated DUI is not a crime involving moral turpitude. Our decision today is likewise accompanied by a vigorous dissent. The existence of such dissents indicates that the question of whether the offense at issue rises to the level of a crime involving moral turpitude is one upon which reasonable minds can differ. Yet Congress left the choice between reasonable interpretations of the INA to the Attorney General and, by his delegation, to the BIA, and “ ‘desired [that body] (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’ ” Brand X, 545 U.S. at 982 (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996)). We are satisfied that the Board’s determination—DUI offenses committed with the knowledge that one’s driver’s license has been suspended or otherwise restricted are crimes involving moral turpitude—is a reasonable interpretation of the INA. The deferential standard that governs our review requires no more.
MARMOLEJO-CAMPOS v. HOLDER (9th Cir. April 2009)

Expungement, Drug Paraphernalia, 9th Circuit:
The court holds the BIA erred in finding the petitioner statutorily ineligible for cancellation on the basis of a set-aside CONVICTION for possession of DRUG PARAPHERNALIA, which had been EXPUNGED. Finds that under Lujan-Armendariz, it c ould not be considered for denial of relief for immigration purposes. (Ramirez-Altamirano v. Mukasey, 2/4/09).
Superseded by the following Amended Opionion (Ramirez-Altamirano v. Mukasey, April 2009)

Attorney General establishes framework to determine if a crime is crime involving moral turpitude.
Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).

(1)Any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt, if not admitted by the defendant, is to be treated as an element of the underlying offense, so that a conviction involving the application of such an enhancement is a conviction for the enhanced offense. Matter of Rodriguez-Cortes,
20 I&N Dec. 587 (BIA 1992), superseded.
(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h) (2000), for an alien convicted of a single offense of simple possession of 30 grams or less of marijuana does not apply to an alien whose conviction was enhanced by virtue of his possession of marijuana in a "drug-free zone," where the enhancement factor increased the maximum penalty for the underlying offense and had to be proved beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.
Matter of MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007)

NINTH CIRCUIT COURT OF APPEALS grants Petition for review case where Lawful Permanent Resident charged with inadmissability for pre-IIRRIRA crimes.
Camins v. Gonzalez, No. 05-70291, 08/28/07.

273.5 conviction not necessarily a crime of moral turpitude.
The court acknowledged that based on precedent “spousal abuse under section 273.5(a) is a crime of moral turpitude.”  But the court went on to note that injury to a cohabitant is distinguishable.   Under the categorical approach, a conviction under California Penal Code 273.5 was not found to constitute a crime involving moral turpitude.
Morales Garcia v. Holder. (9th Cir. 2009)

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EXTRAORDINAY ABILITY

The AAO’s conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). While other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3). “If the agency intended to impose [peer citations] as a threshold requirement, we have little doubt that such records would have been included among the detailed substantive and evidentiary requirements
set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean Church, 549 F.3d at 758.
KAZARIAN v. USCIS (9th. Cir. 2010)

INADMISSIBILITY

Petitioner Young Ok Kepilino appeals the Board of Immigration Appeals’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) decision finding Kepilino inadmissible under section 212(a)(2)(D)(i) of the Immigration and Nationality Act (“INA”) (codified at 8 U.S.C. § 1182(a)(2)(D)(i)). The IJ held 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.” This issue is one of first impression in the Ninth Circuit.
KEPILINO V. GONZALES (9TH. CIR. 2006)

GONZALEZ-ZOQUIAPAN (BIA June 2008)

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JURISDICTION

NINTH CIRCUIT ADDRESSES JURISDICTIONAL ISSUES IN CANCELLATION OF REMOVAL CASE. COURT NOTES AS IT HAS IN THE PAST THAT IT HAS JURISDICTION TO DETERMINE IF PROPER LEGAL STANDARD WAS APPLIED.
MENDEZ-CASTRO v. MUKASEY (9TH Cir. January 12, 2009)

We have held that whether an IJ failed to apply a controlling standard governing a discretionary determination is a question over which we have jurisdiction under which we have jurisdiction under§ 1252(a)(2)(D). See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006) (holding that, “[w]hile we cannot reweigh evidence” underlying a discretionary determination, “we can determine whether the BIA applied the correct legal standard in making its determination”), overruled on other grounds byEstrada-Espinoza v. Mukasey, No. 05-75850, 2008 WL 4615681, at *9 n.15 (9th Cir., Oct. 20, 2008);

Because the IJ applied the correct legal standard in this case, and because we may not proceed further to examine its application of the facts of this case to the “exceptional and extremely unusual hardship” standard, we must conclude that the petitioners’ claims are “so insubstantial and frivolous” as to preclude our jurisdiction over them. Barco-andoval, 516 F.3d at 40.

This case deals with the jurisdiction of the Ninth Circuit pursuant to the Real ID act in adjudicating cases involving issues of law. The court held that it has jurisdiction over “questions of law” as defined in the Real ID Act which includes not only “pure” issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions oflaw and fact. This jurisdiction includes determining whether changed circumstances excuses the failure to file for asylum in one year.
Ramadan v. Gonzalez, (9th Cir. 2007

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LABOR CERTIFICATION

Employer failed to establish bona fide job opportunity where it submitted documentation that it was able to pay the proffered wage, but did not show whether it had any employees. BALCA affirmed CO's denial of the labor certification application.
Matter of Factor's Row, LLC, 2007-INA-00034 (1/16/08).

BALCA upholds the denial of an RIR case, where questions were raised concerning bona fide offer of employment, finding that "virtual office" for a job without a fixed worksite was more likely a fictionalized location for a job offering. It finds the application does not warrant a remand for supervised recruitment.
Matter of PR Consultants Inc., 2007-INA-00066 (1/16/08).

BALCA concludes that regardless of O*NET job classification at issue, position is properly classified as Level II rather than Level I in pre-PERM labor certification application. It upholds CO’s denial, as the Employer failed to meet the prevailing wage.
Matter of Plaza Express Car and Limo Service, 2007-INA-00008 (12/10/07).

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MORAL TURPITUDE

"Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they may come can be seen by considering one of the offenses involved in the case before us. While under our law numerous felonies are deemed not to be morally turpitudinous, all acts of petty theft automatically qualify for that label and the drastic legal consequences that may follow. As some in today’s society might say, and with good reason, “Go figure.”
Ocegueda Nuñez v. Holder (9th. Cir. 2010)

NACARA

Asylum application filed in 1991enough to demonstate ABC registration.
[4] Perhaps recognizing that not all class members would have received prior adjudications, the ABC Agreement provided an alternative means by which class members could exercise their rights—a writing indicating an intent “otherwise to receive the benefits of this agreement.” Am. Baptist Churches, 760 F. Supp. at 800. The Agreement states that“the system of asylum processing ha[d] been significantly changed by regulations effective October 1, 1990.” Id. at 799. One of the primary benefits of the ABC Agreement was that it granted class members an unappealable asylum adjudication before an asylum officer under the regulations in effect on October 1, 1990. Id. Plaintiff submitted his asylum application on January 31, 1991, after the October 1, 1990, regulations had taken effect. Consequently, the application requested an asylum adjudication before an asylum officer under those regulations. Plaintiff’s written asylum application, which demonstrated his membership in the ABC class, thus requested the benefits of the ABC Agreement and was a writing that indicated an intent to receive them.
CHALY-GARCIA (9th Cir. 2007)

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PORTABILITY

Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.
Matter of Jose Marcal Neto (BIA 2010)

REENTRY AFTER REMOVAL

NINTH CIRCUIT COURT OF APPEALS HOLDS THAT ALIENS WHO HAVE BEEN DEPORTED AND/OR REMOVED AND THEN REENTER THE UNITED STATES UNLAWFULLY MAY NOT RELY IN INA §245(i) TO OBTAIN RESIDENCY, EVEN IF THEIR APPLICATION FOR ADJUSTMENT OF STATUS WAS PENDING WHILE PEREZ-GONZALES WAS IN EFFECT.
Morales-Izquierdo 9th Cir. 2010

NINTH CIRCUIT COURT OF APPEALS HOLDS THAT ALIENS WHO HAVE BEEN DEPORTED AND/OR REMOVED AND THEN REENTER THE UNITED STATES UNLAWFULLY MAY NOT RELY IN INA §245(i) TO OBTAIN RESIDENCY. available .
(Duran Gonzalez v. DHS 11/19/07).

THE UNITED STATES SUPREME COURT HELD INA §241(A)(5) APPLIES TO PERSONS WHO ILLEGALLY REENTERED PRIOR TO THE EFFECTIVE DATE OF IIRIRA AND DID NOT TAKE ANY AFFIRMATIVE STEPS TOWARDS LEGALIZING STATUS, BUT EXPRESSLY DECLINED TO DECIDE WHETHER THE PROVISION APPLIES RETROACTIVELY TO PERSONS WHO MADE EFFORTS TO LEGALIZE STATUS.
(FERNANDEZ-VARGAS V. GONZALES, 6/22/06)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of “unlawful presence” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted
In Re BRIONES Decided November 29, 2007

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REOPENING

NINTH CIRCUIT COUT OF APPEALS Ninth Circuit Court of Appeals held that the BIA abused its discretion when it denied the motion to reopen of an "arriving alien" who sought to apply for adjustment of status with USCIS. The BIA's sole reason for denying the motion was that it lacked jurisdiction over an adjustment application under the "interim regulations. (This case also deals with the BIA's standard of review for frivolous asylum claims.)
Kalilu v. Mukasey (9th Cir. Dec. 2007)

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VISA WAIVER OVERSTAY
MOMENI v. CHERTOFF

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