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Developments in Immigration Law

  • Priority-Date Retention Of Employment-Based Immigrant Petitions And Protections For Employment-Based Non immigrant Worker

    Effective as of January 17, 2017, a number of existing practices have been codified in newly established regulations, but a number of changes that did not previously exist in practice include the following:

    • Employment-Based Immigrant Petitions (I-140s) that have been approved for more than 180 days will remain valid for both (A) H-1B extensions that go beyond the sixth year of H-1B nonimmigrant status and (B) I-140-priority-date-retention portability even in the event the sponsoring employer withdraws that approved I-140 or goes out of business, but please note that withdrawal due to fraud, misrepresentation, or material error void applicability of these provisions;
    • An Employment Authorization Document ("Work Permit") valid for one year is available to nonimmigrant workers (A) who maintain E-3, H-1B, H-1B1, L-1 or O-1 status, (B) who have an approved I-140 in the Employment-Based first-preference ("EB-1")-, second-preference ("EB-2")-, or third-preference ("EB-3") categories, (C) who are unable to adjust status, i.e., obtain a Green Card, because the relevant priority date is not yet current, and (D) who are able to establish the existence of "compelling circumstances";
    • Grace Periods of (A) ten (10) days are made available to nonimmigrant workers on E-1, E-2, E-3, L-1, and TN status for immediately before and after their respective employment-validity periods and (B) sixty (60) days are made available to nonimmigrant workers on E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status following termination of employment to permit such nonimmigrant workers time to evaluate their options and/or seek transfers in their employment, change status, or depart the United States; and
    • Automatic Interim Employment Authorization is available to those foreign nationals whose Work Permits have expired and continue to have pending Work-Permit-renewal applications if (A) the Work-Permit-renewal application was timely filed, i.e., prior to the expiration of the last Work Permit, (B) the Work-Permit-renewal application is based on the same category as the expiring/expired Work Permit, and (3) the Work-Permit-renewal application is filed under a category that does not first require adjudication of an underlying application.

    Regarding the Automatic Interim Employment Authorization, the only categories to which it applies are as follows: refugees - (a)(3), asylees - (a)(5), parents or dependent children of people who got permanent residency under Secs. 101(a)(27)(I) of the Immigration and Nationality Act ("INA") - (a)(7), citizens of Micronesia or the Marshall Islands - (a)(8), applicants granted withholding of deportation or removal - (a)(10), TPS - (a)(12) and (c)(19), applicants with pending asylum or withholding of deportation or removal - (c)(8), pending adjustment of status applicants - (c)(9), applicants with pending suspension of deportation and cancellation of removal - (c)(10), applicants for creation of a record of lawful admission for permanent residence - (c)(16), legalization applicants - (c)(20) and (c)(22), LIFE Act adjustment applicants - (c)(24), VAWA cases - (c)(31). Notably, foreign nationals with pending adjustment-of-status ("Green Card") applications or with pending Asylum applications qualify for Automatic Interim Employment Authorization, but spouses of H-1B nonimmigrants (H-4), L-1A/B nonimmigrants (L-2), and E-1/2 nonimmigrants (E-1/2) do not qualify for Automatic Interim Employment Authorization.

  • Provisional Unlawful Presence Waiver (I-601a) And Conditional Consent To Reapply For Admission (I-212)

    Effective August 29, 2016, an update expands on a regulation that originally went into effect on March 4, 2013, allowing certain immigrant-visa applicants who are spouses and/or sons or daughters of United-States citizens or lawful permanent residents to apply for provisional unlawful-presence waivers before they leave the United States for their immigrant-visa interviews at a United-States embassy or consulate abroad. A person is eligible for a provisional-unlawful-presence waiver if s/he:

    • Is seventeen (17) years of age or older;
    • Is the beneficiary of an approved immigrant petition, e.g., I-130, I-360, I-140, and I-526;
    • Has a pending immigrant-visa case with the United States Department of State for the approved immigrant petition and has paid the required immigrant-visa processing fee;
    • Is able to demonstrate that refusal of his/her admission to the United States will cause extreme hardship to his/her United-States-citizen or lawful-permanent-resident spouse or parent;
    • Is physically present in the United States to file his/her application for a provisional unlawful-presence waiver and provide biometrics; and
    • Meets all other requirements for the provisional unlawful-presence waiver, as detailed in its regulation and form instructions.

    The provisional unlawful-presence waiver only waives inadmissibility for unlawful presence and not inadmissibility for any other reason(s). However, if one is no longer in removal or exclusion/deportation proceedings but is nonetheless subject to a final removal or exclusion/deportation order, then s/he can first apply for conditional permission to reapply despite such order, and if such application is approved conditionally, then s/he would then apply for a provisional unlawful-presence waiver. The new process provides a certain level of certainty for those who are granted a provisional waiver that they will be granted an immigrant visa abroad and therefore will be permitted to return to the United States and to be issued a Green Card. The Firm understands the complexities of the adjudication of provisional-unlawful-presence-waiver applications and whether one is eligible to be granted one and is available to assist individuals who believe they may benefit from this new waiver process.

  • Parole In Place For Spouses, Children, And Parents Of Active And Retired Military Personnel ("PIP")

    On November 15, 2013, United States Citizenship and Immigration Services, or USCIS, clarified the category of people who normally would be granted Parole in Place, or "PIP." PIP legalizes the entry of someone who is already present in the United States but whose presence was not immediately preceded by a lawful admission or parole. By being granted PIP, a person may, but not necessarily, instantly become eligible to apply in the United States for lawful-permanent-resident status, also known as a "Green Card," without having to depart the United States, a process known as adjustment of status. Previously, it was not clear as to whom USCIS would exercise its discretion in granting PIP. However, now such discretion will normally be exercised for a person who:

    • Is the spouse, child, or parent of an Active-Duty member of the United States Armed Forces, an individual in the Selected Reserve of the Ready Reserve, OR an individual who previously served in the United States Armed Forces or the Selected Reserve of the Ready Reserve;
    • Is currently physically present in the United States;
    • Has not already been admitted or paroled into the United States (relating only to his/her current presence in the United States and not to any previous trips or prior stays in the United States); and
    • Does not have any serious adverse factors such as one or more certain criminal convictions.

    USCIS has specifically determined that because PIP counts as a parole a person who has been granted PIP will no longer be deemed inadmissible or ineligible for adjustment of status simply for being in the United States without having been admitted or paroled. However, a grant of PIP does not automatically lead to eligibility for adjustment of status, so analysis of whether any other inadmissibility or ineligibility grounds apply must be completed before a person granted PIP applies for adjustment of status.

  • Consideration Of Deferred Action For Childhood Arrivals ("DACA") 

    Pursuant to an order that was issued by the U.S.District Court for the Southern District of Texas on July 16, 2021 but that applies nationwide, U.S. Citizenship and Immigration Services, or USCIS, has limited only to renewals despite still accepting initial applications,  the issuance of benefits under the program anmed Deferred Action for Childhood Arrivals, or DACA, which was first announced June 15, 2012 for certain people, known as "DREAMers", who came to the U.S as children and who met several key guidelines to be considered for such deferred action and to be eligible for work and travel authorization:

    Specifically, USCIS is doing the following:

    -Accepting but not adjudicating, first time requests for consideration of DACA based on the terms of the original DACA policy;
    -Accepting, and approving for those eligible, DACA renewal requests based on terms of the original DACA policy;
    -Accepting, and approving applicants for advanced parole document based on the terms of the original DACA policy; and 
    -Issuing two-year-employment-authorization to those who successfully renew their DACA

    The original DACA- policy requirements remain the same for someone who:

    -Was under the age of 31 as of June 15, 2012;
    -Came to the United States before reaching his/her 16th birthday;
    -Has continuously resided in the United States since June 15, 2007, up to present time;
    -Was  physically present in the United States on June 15, 2012 and at the time of making his/her request for DACA with USCIS;
    -Entered without inspection before June 15, 2012, or his/her lawful immigration status expired as of June 15, 2012;
    -Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
    -Has not been convicted of a felony, significant misdemeanor, and/or three or more other misdemeanors, and separately does not otherwise pose a threat to national security or public safety.




Recently Published Case Decisions

The following are the latest published opinions that relate to U.S. Immigration Law in California
(PLEASE NOTE- the term "Ninth Circuit" refers to the U.S. Court of Appeals for the Ninth Circuit,
and the term "BIA" refers to the U.S. Department of Justice's Board of Immigration Appeals):

The text of the United States Code cannot prevail over the Statutes at Large when the two are inconsistent. The jurisdictional bar of §242(f)(1) of the Immigration and Nationality Act, codified at 8 U.S.C. §1252(f)(1), does not apply to an order that enjoins or restrains the operation of §235(d)(2) of the William Wilberforce Trafficking Victims Protection Reauthorization Act, codified at 8 U.S.C. §1232(d)(2).

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A Form I-213 is presumed to be reliable in the absence of evidence to the contrary presented by the alien.

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Congress has clearly and unambiguously precluded the court from asserting jurisdiction over the merits of individual expedited removal orders, even with regards to constitutional challenges to such orders. An alien subject to 8 C.F.R. §208.13(c)(4)’s transit bar may still avoid expedited removal by establishing a reasonable fear of persecution or torture for purposes of withholding of removal and protection under the Convention Against Torture; the reasonable fear of persecution screening standard used to determine, in expedited removal proceedings, whether further consideration of withholding of removal is warranted is the same standard required to establish a well-founded fear of persecution in the ordinary asylum context; an alien in expedited removal proceedings, but not subject to the transit bar, need only establish that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish the well-founded fear of persecution necessary for asylum.

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The record compelled a conclusion that an asylum seeker was attacked by police officers in his native Guatemala where the asylum seeker presented evidence he had known two of the men for about 20 years before the incident, he was told by people in his small town that they were in fact police officers, these individuals were wearing police uniforms at the time of the attack, they were armed with visible handguns typical of national police officers, and the Public Ministry confirmed these individuals left the police force shortly after the attack.

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It was reasonable for the Board of Immigration Appeals to conclude that an asylum seeker’s failure to mention the first of two alleged interrogations from his application, together with his questionable explanation for that omission, undermined his credibility; while the omission itself was not enough to undermine his credibility, his shifting explanation could be reasonably viewed as internally inconsistent, and therefore, implausible. The asylum seeker’s questionable testimony about his injuries, and his failure to mention those injuries at all in his asylum application, supported an adverse credibility determination.

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(1) A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition, a ‍reason separate and independent from fraud. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), aff’d Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996), reaffirmed.

(2) A section 237(a)(1)(H) fraud waiver cannot be used in place of, or in conjunction with, a “good faith” waiver under section 216(c)(4)(B) of the INA, 8 U.S.C. § ‍1186a(c)(4)(B) (2018), to waive the requirement to file a joint petition to remove conditions on residence under section 216 of the INA, 8 U.S.C. § 1186a.

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Where the adjudication of a non-citizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.

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  • People v. Lopez - filed Sept. 26, 2022, (California Court of Appeal’s Second District, Div. Two)

A defendant demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pleaded no contest to an offense that would subject him to mandatory deportation where he incorrectly assumed that his status as a lawful permanent resident shielded him from any possible adverse immigration consequences mentioned by the prosecutor at his plea hearing, and his counsel failed to advise him otherwise.

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The provisions of 8 U.S.C. §1252(a)(2)(D) grant the appellate court jurisdiction to review a question of law or a mixed question of law and fact presented in a challenge to an agency denial of cancellation of removal for failure to establish the required hardship.

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Vacatur of a conviction underlying a removal order does not excuse a late motion to reopen. The period of probation imposed in state court does not need to match the one-year limit on probation under the Federal First Offender Act for the conviction to not be a conviction for purposes of immigration law; the key question is whether state-court defendants would have been eligible for relief under the FFOA had their offenses been prosecuted as federal crimes. The crimes of burglary, receiving stolen property and possession of drug paraphernalia in violation of California law are not crimes of moral turpitude.

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When an applicant seeking protection under the Convention Against Torture posits multiple theories for why he might be tortured, the relevant inquiry is whether—considering all possible sources of and reasons for torture—the total probability that the applicant will be tortured exceeds 50 percent. Although the Board of Immigration Appeals may reject credible testimony if it is outweighed by other more persuasive evidence, when the agency has credited an expert, it cannot reject that expert’s testimony for the sole reason that it is not corroborated by additional evidence.

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Where the record contains only an alien’s recollection as to what his attorney said of the likely immigration consequences of his plea, the record does not conclusively establish that he is doomed on the first prong of Strickland v. Washington.

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A petitioner suffered harm that rose to the level of past persecution where he was forced to flee his home after being repeatedly assaulted, had his life threatened, was between the ages of 16 and 18 when the attacks occurred, his brother was also attacked; and precedent has recognized that Mann Party members have faced persistent threats in the region of India where the petitioner was attacked. The past-persecution analysis is informed by comparing the facts of a petitioner’s case with those of similar cases.

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An alien’s receipt of temporary protected status was not an admission for purposes of 8 U.S.C. §1229b(a) and he therefore could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal.

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A noncitizen of the United States—who initially was subject to mandatory detention under 8 U.S.C. § 1226(c)—is not entitled to a bond hearing under 8 U.S.C. § 1226(a) while awaiting a decision from this court on a petition for review.

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An INTERPOL Red Notice did not, by itself, establish probable cause that there were serious reasons to believe that an alien had committed a serious nonpolitical crime where the notice contained errors that cast doubt on its reliability, and it failed to articulate any specific crime of which the alien was accused; a Red Notice constitutes documentary evidence like any other that an immigration judge should be entitled to give weight, it is not per se insufficient to warrant a one-year bar to asylum.

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Although the Board of Immigration Appeals may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument, a motion to reopen based on changed country conditions was not foreclosed by a previous adverse credibility finding where the petitioner presented evidence that was independent of the facts that formed the prior credibility finding and filled some gaps on which the adverse credibility finding was predicated.

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A conviction for second degree burglary of a dwelling under section 140.25(2) of the New York Penal Law is categorically a conviction for generic burglary under section 101(a)(43)(G) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §‍ 1101(a)(43)(G) (2018), because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. United States v. Stitt, 139 S. Ct. 399 (2018), followed.

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An applicant for cancellation of removal bears the burden of proving that a conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reason.

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Dissuading or attempting to dissuade a witness from reporting a crime, in violation of California Penal Code §136.1(b)(1), is not a categorical match to an offense relating to obstruction of justice aggravated felony under 8 U.S.C. §1101(a)(43)(S), so an alien’s §136.1(b)(1) conviction did not render him removable.

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(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement.

(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge.

(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information.

(4) An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings.

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An alien challenging reinstatement may show that he suffered a gross miscarriage of justice on the ground that an underlying conviction was invalid due to a merits-based defect, and would not be required to show due diligence, but where a lawful permanent resident’s removal order had not been reinstated and his challenge to his removal order was subject to the regulatory number and time bar for motions to reopen, none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable.

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The Department of Justice was properly enjoined from withholding grants made pursuant to the Edward Byrne Memorial Justice Assistance Grant Program based on immigration enforcement-related conditions. Facial constitutional challenges to 8 U.S.C. §1373 and §1644 are not yet justiciable.

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The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § ‍922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. §‍ 1227(a)(2)(C) (2018), because § ‍922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.

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An asylum applicant failed to establish extraordinary circumstances to excuse his delay in filing his asylum application where he blamed his three-year delay on his incapacity or legal disability due to ignorance of the relevant immigration laws, his young age of 22 years at the time of his arrival, his lack of English-language skills, and the stress he experienced from fleeing his home country.

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An Immigration Judge may rely on impeachment evidence as part of a credibility determination where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings.

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A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.

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A district court did not abuse its discretion in finding the government’s position was substantially justified in an immigration case where the government’s position was found persuasive by no fewer than six federal judges in the course of the case, and as many judges were persuaded by the government’s position as were persuaded by the plaintiffs’ position.

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which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; the Board of Immigration Appeals lacks authority to reopen such reinstated removal orders sua sponte.

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The failure of a notice to appear to include time and date information does not deprive the immigration court of subject matter jurisdiction.

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The permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. Aliens are statutorily entitled to counsel, at no expense to the government, at their reasonable fear hearings. If an alien fails to show a reasonable possibility of future torture, then government acquiescence is irrelevant.

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There was no inconsistency between an asylum seeker’s declaration and his testimony where his written declaration did not specify how he arrived at the hospital after being tortured, and he testified the police had taken him. The fact that the police were aware of the asylum seeker’s phone number and address, and that he came to the police station for questioning the last time they called him, supports his answer that the police wanted to see him again but were not looking for him.

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  • People v. Manzanilla - filed June 13, 2022, publication ordered July 6, 2022, (California Court of Appeal’s Second District, Div. Eight)

A defendant was entitled to vacate his felony conviction where counsel failed to advise him that his nolo contendere plea meant mandatory deportation; counsel failed to defend against the immigration consequences of his charge by seeking an immigration-safe plea; and the defendant did not understand that he faced mandatory deportation when he entered his plea.

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An alien’s receipt of temporary protected status was not an admission, and he therefore could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal.

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When an applicant seeking protection under the Convention Against Torture posits multiple theories as to why he might be tortured, the relevant inquiry is whether—considering all possible sources of and reasons for torture—the total probability that the applicant will be tortured exceeds 50 percent. Although the Board of Immigration Appeals may reject credible testimony if it is outweighed by other more persuasive evidence, when the agency has credited an expert, it cannot reject that expert’s testimony for the sole reason that it is not corroborated by additional evidence.

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The Board of Immigration Appeals may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument.

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Cite as 2022 S.O.S. 20-1775

The writ of certiorari is dismissed.

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Federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond.

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  • People v. Garcia - filed June 15, 2022, (California Court of Appeal’s Second District, Div. Six)

A defendant’s contemplation of his life in Mexico, contemporaneous with his guilty plea, is persuasive evidence he knew he would be deported.

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A respondent who is subject to a deferred adjudication that satisfies the elements of sections 101(a)(48)(A)(i) and (ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § ‍1101(a)(48)(A)(i) and (ii) (2018), has been “convicted by a final judgment” within the meaning of the particularly serious crime bar under section 241(b)(3)(B)(ii) of the INA, 8 ‍U.S.C. § 1231(b)(3)(B)(ii) (2018).

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First-degree burglary of a dwelling under Oregon Revised Statutes §164.225 is an aggravated felony; for offenses that are not defined by statute as per se particularly serious crimes, the Board of Immigration Appeals has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious, and there is not any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense.

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Forgery under California Penal Code §472 is a crime involving moral turpitude.

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  • People v. Soto - filed May 9, 2022, publication ordered June 6, 2022, , (California Court of Appeal’s Third District)

A trial court erred in concluding a generic advisement regarding the potential immigration consequences of a plea satisfied Penal Code §1473.7.

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(1) Matter of G‑G‑S‑, 26 I&N Dec. 339 (BIA 2014), is overruled.

(2) Immigration adjudicators may consider a respondent’s mental health in determining whether an individual, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” 8 ‍U.S.C. § ‍1158(b)(2)(A)(ii); see id § ‍1231(b)(3)(B)(ii).

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The BIA held (1) Any fact that establishes or increases the permissible range of punishment for a ‍criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed.

(2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent’s conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § ‍1227(a)(2)(B)(i) (2018), under the modified categorical approach.

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The 9th Circuit held the BIA erred in affirming an immigration judge’s denial of protection under the Convention Against Torture to a gay Nigerian man where the board failed to consider an excommunication notice from the Council of Traditional Rulers of the man’s community stating that he was subject to execution for being gay, or making more than a fleeting reference to a collection of letters and affidavits from family members about the attacks and threats against them, and the man, after his sexuality was publicly revealed; the BIA also erred in concluding the man had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where he was discovered with his boyfriend did not concern a material element of his asylum claim.

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The BIA held (1) The Supreme Court’s construction of “physical force” in Johnson v. ‍United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S.‍ Ct. 544 (2019), controls our interpretation of 18 ‍U.S.C. § ‍16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §‍ 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States v. ‍Castleman, 572 U.S. 157 (2014), is inapplicable in this context.

(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § ‍1227(a)(2)(E)(i).

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The 9th Circuit held a federal appellate court may deny a petition for review based on the BIA’s lack of jurisdiction under 8 U.S.C. §1231(a)(5), even when the BIA did not rule on that basis.

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The 9th Circuit held the BIA did not abuse its discretion in concluding that a petitioner did not warrant equitable tolling of the time limitation on his motion to reopen based on alleged ineffective assistance of counsel where the petitioner failed to show that his prior counsel acted deficiently in failing to file earlier untimely motions to reopen; the agency did not abuse its discretion in concluding that the petitioner did not sufficiently demonstrate materially changed country conditions in Mexico to excuse the untimely filing of his motion.

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The BIA held (1) If a State court’s nunc pro tunc order modifies or amends the subject matter of a ‍conviction based on a procedural or substantive defect in the underlying criminal proceedings, the original conviction is invalid for immigration purposes and we will give full effect to the modified conviction; however, if the modification or amendment is entered for reasons unrelated to the merits of the underlying proceedings, the modification will not be given any effect and the original conviction remains valid. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds,Pickering v. ‍Gonzales, 465 F.3d 263 (6th Cir. 2006), followed.

(2) Section 18.2-248 of the Virginia Code, which criminalizes the distribution of a ‍controlled substance, is divisible with respect to the identity of the specific “controlled substance” involved in a violation of that statute.

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The 9th Circuit held where an alien’s proceedings were initiated with a Notice of Referral to Immigration Judge and not a Notice to Appear, the rule from Pereira v. Sessions was inapplicable; even if NTAs and NORs are analogous, when hearing details are later provided, there is no jurisdictional defect.

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The 9th Circuit held an employer’s conduct violated the provisions of Chapter 77 of Title 18 of the U.S. Code that prohibit forced labor and trafficking of persons into forced labor where the employer admitted that the plaintiffs believed that their ability to remain lawfully in the U.S. depended on their continued employment and the plaintiffs alleged they were recruited to work under the TN Visa program for professional employees established under the North American Free Trade Agreement but were forced to work as general laborers.

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The BIA held a finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that are incorporated against the States under the Fourteenth Amendment is a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2018). Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), clarified.

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The BIA held Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of “larceny” under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 ‍F.3d 173 (2d Cir. 2004), not followed.

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The BIA held when the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § ‍1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y‑L‑, 24 I&N Dec. 151 (BIA 2007), have been met.

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The 9th Circuit held a violation of California Penal Code § 273.5(a) is categorically a crime of domestic violence under 8 U.S.C. §1227(a)(2)(E)(i); a criminal information and minute order are sufficient to establish that conviction. In light of Mathis v. United States, California Penal Code § 261(a)(4) is now indivisible.

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The BIA held an applicant for adjustment of status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2018), must possess asylee status at the time of adjustment, and thus an applicant whose asylee status has been terminated cannot adjust to lawful permanent resident status under this provision.

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  • People v. Pacheco - filed Feb. 15, 2022, (California Court of Appeal’s Second District, Div. Six)

The California Court of Appeal's Second District held a trial court did not abuse its discretion in denying a request for pretrial mental-health diversion pursuant to California Penal Code § 1001.36 where the record supported a reasonable belief the defendant will not refrain from using methamphetamine if he is treated in the community without conviction and supervised probation, his use of the drug causes him to become unstable and psychotic, and the voices in his head had told him to start a brush fire which led to the arson charges against him.

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The 9th Circuit held an individual’s inadmissible status renders that individual’s reentry illegal for purposes of reinstatement of a prior removal order under 8 U.S.C. §1231(a)(5), regardless of the individual’s manner of reentry.

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The 9th Circuit held a court lacks jurisdiction to consider an alien’s unexhausted challenge to his hearing notice. An adverse credibility determination was adequately supported by substantial evidence where an alien never raised his claim of part harm during the processing of multiple prior deportations, and when he did finally raise such harms in conjunction with his current deportation, he continuously altered his story about those harms in terms of the nature and timing of his injuries.

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The 9th Circuit held a noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in-absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. §1229a(b)(5)(C)(ii).

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The BIA held The amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to a victim or victims exceeding $10,000 pursuant to section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018), if the amount set forth in the order is sufficiently tethered and traceable to the conduct of conviction.

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The 9th Circuit held a defendant who accepted a plea agreement in which he waived his right to collaterally attack his conviction cannot use a declaratory action and motion to clarify or to carve out a collateral legal issue from a potential habeas petition and to use the Declaratory Judgment Act as a substitute to challenge his sentence.

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The BIA held Section 714.1 of the Iowa Code is divisible with respect to whether a violation of the statute involved theft by taking without consent or theft by fraud or deceit, permitting an Immigration Judge to review the conviction record under a modified categorical approach to determine whether the violation involved aggravated felony theft as defined in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018).

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  • People v. Banner - filed Jan. 21, 2022, (California Court of Appeal’s Fifth District)

The California Court of Appeal's Fifth District held California Penal Code § 1001.36 does not confer a sua-sponte duty on trial courts to consider mental-health diversion, but courts must give serious consideration to this critical alternative. A defendant cannot establish the ineffectiveness of his counsel to request mental-health diversion where the record did not establish that the defendant was eligible for diversion.

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The BIA held because the identity of the “controlled dangerous substance” possessed is an element of the crime of possession of a controlled dangerous substance under section 2C:35-10(a)(1) of the New Jersey Statutes Annotated, the statute is divisible with respect to the specific substance possessed, and the record of conviction can be examined under the modified categorical approach to determine whether that substance is a controlled substance under Federal law.

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The 9th Circuit held in a criminal proceeding under 8 U.S.C. §1326, an alien may not challenge the validity of a removal order unless the alien demonstrates exhaustion of available administrative remedies, that the removal proceedings improperly deprived the alien of the opportunity for judicial review, and that entry of the order was fundamentally unfair; each of the statutory requirements of §1326(d) is mandatory.

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The BIA held a respondent receives sufficient written notice to support the entry of an in-absentia order of removal, even if he or she was served with a noncompliant notice to appear that did not specify the time or place of the hearing, where the respondent was properly served with a statutorily compliant notice of hearing specifying this information. Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished. Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), and Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.

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The 9th Circuit held the BIA was not unreasonable in rejecting a proposed particular social group of female nurses on the ground that nursing is not an immutable characteristic. Venue under 8 U.S.C. §1252(b)(2) was proper in the Ninth Circuit where the immigration judge in this case formally transferred venue from Salt Lake City to Boise; thereafter the alien never physically appeared in Salt Lake City, but rather remained in Boise; the IJ indicated that proceedings were conducted in Boise, and the BIA held that proper venue was in the Ninth Circuit; both final hearing notices designated Boise as the location for the final hearing; and; the statute expressly allows any of the participants in a removal hearing to appear at the designated hearing location by video conference, pursuant to §1129a(b)(2)(A)(iii), and the IJ and the government attorney elected to do so from Salt Lake City.

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The 9th Circuit held notice provided to a minor who was released on her own recognizance, without notice of her hearing to a reasonable adult, was sufficient where there was no adult present to assume responsibility for the minor and no adult ever entered an agreement with the government to assume responsibility for the minor.

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  • People v. Abdelsalam - filed Jan. 6, 2022, (California Court of Appeal’s Second District, Div. Eight)

The California Court of Appeal's Second District, DIV Eight held neither California Penal Code § 1473.7, nor any other authority, requires a court to articulate on the record that it is using the preponderance of the evidence standard when denying the motion.

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  • Elmore v. Gordon - filed Dec. 30, 2021 (California Court of Appeal’s Second District, Div. Eight)

The California Court of Appeal's Second District, Div Eight held objective circumstances justified a border patrol agent’s decision to stop a minivan and investigate where the vehicle entered a restricted area where the agent knew people would cut through the border fence and get picked up by large passenger vehicles. When police give an incomplete admonition about the consequences of refusing chemical testing, the law limits the permissible sanction to the extent of actual notice.

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The 9th Circuit held an alien’s conditional discharge for his Georgia drug offense was a conviction under the Immigration and Nationality Act; it satisfied the requirements for situations in which an adjudication of guilt has been withheld because the conditional discharge required the alien to plead guilty to or be found guilty of possessing marijuana, and imposed probation. The personal-use exception of 8 U.S.C. §1227(a)(2)(B)(i) does not unambiguously direct courts to use either the categorical approach or the circumstance-specific approach; the circumstance-specific approach permits a petitioner to be deported on the basis of circumstances that were not judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute, but the approach still requires fundamentally fair procedures and requires the government to prove that the quantity of marijuana exceeded 30 grams by clear and convincing evidence.

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The 9th Circuit held the phrase “an offense” in the cancellation of removal statute at 8 U.S.C §1229b(b)(1)(C) includes the multiple criminal convictions described in §1182(a)(2)(B).

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The 9th Circuit held Arizona Revised Statutes §13-3405(A)(4) s overbroad and divisible; a lawful permanent resident’s §13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not crimes involving moral turpitude.

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The 9th Circuit held the BIA need not provide a detailed explanation of every argument or piece of evidence in its decision to demonstrate that it considered the relevant evidence.

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The 9th Circuit held in the absence of an opportunity to cross-examine its declarants, the BIA erred in relying on a probation report to conclude that a petitioner had been convicted of a particularly serious crime rendering him ineligible for withholding of removal; the government deprives an individual of a fundamentally fair hearing when it fails to make a good-faith effort to afford him a reasonable opportunity to confront and to cross-examine the witness against him.

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The 9th Circuit held Christians in Indonesia are a disfavored group, but the BIA must also consider a petitioner’s status as an evangelical Christian, as well as evidence presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general, in determining whether the petitioner had an individualized risk of persecution.

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  • People v. Alatorre - filed Nov. 22, 2021, (California Court of Appeal’s Fourth District, Div. One)

The California Court of Appeal's Fourth District, Div One held where a petitioner’s adverse immigration consequences predate Jan. 1, 2017, a court assessing the timeliness of a Penal Code § 1473.7 motion must determine when the petitioner would have had reason to seek legal help or otherwise investigate new forms of postconviction relief, and evaluate diligence from that point forward, in light of all the circumstances.

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The BIA held a notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later served with a notice of hearing specifying this information. Posos‑Sanchez v.‍ Garland, 3 F.4th 1176 (9th Cir. 2021), followed. Matter of Viera‑Garcia and Ordonez‑Viera, 28 I&N Dec. 223 (BIA 2021), overruled in part.

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The 9th Circuit held The BIA did not abuse its discretion in denying equitable tolling of the 30-day motions deadline to a petitioner seeking reconsideration of an order of removal who failed to present any evidence suggesting that he diligently pursued his rights during the time between his removal based on his conviction under 18 U.S.C. §16(b) and the time that statute was invalidated as unconstitutional.

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The 9th circuit held in reviewing a reinstatement order, the court has jurisdiction under 8 U.S.C. §1252(a)(2)(D) to entertain a collateral attack on the underlying removal order only if the petitioner can show that he suffered a gross miscarriage of justice in the initial immigration hearing. A valid exclusion order is not disturbed by post-conviction relief. When a removal order is legally valid at the time of entry and execution, a petitioner cannot challenge a reinstatement of that order as a gross miscarriage of justice based on developments that call into question the original removal order, but which occurred after the petitioner was removed from this country.

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The 9th Circuit held there is no colorable constitutional claim exception to the limits Congress placed on the court’s jurisdiction to review challenges to expedited removal orders.

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The 9th Circuit held The term “proceeds,” as used in 18 U.S.C. §982(a)(6)(A)(ii)(I)(7), extends to receipts and is not limited to profit. The amounts a defendant paid to H-1B beneficiary employees who performed legitimate work for the clients of the defendant’s company were still proceeds obtained indirectly from his unlawful act of submitting fraudulent visa applications.

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The BIA held the respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).

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The 9th Circuit held the stop-time rule – which sets out the circumstances under which a period of continuous physical presence is deemed to end for cancellation of removal – is not triggered by a final order of removal.

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The California Court of Appeal's Fifth District held California Penal Code § 1001.36(b)(1)(A) does not wholly preclude from diversion defendants who suffer from both excluded and included mental health disorders from mental health diversion; § 1001.36(b)(1)(A) requires only that a defendant suffers from one qualified mental health disorder.

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  • People v. Murillo - filed Oct. 25, 2021, publication ordered Nov. 23, 2021 (California Court of Appeal’s Fourth District, Div. Three)

The California Court of Appeal’s Fourth District, Div. Three held California Penal Code § 1473.6 utilizes the same procedural rules that are used for adjudicating a petition for writ of habeas corpus, so a trial court cannot engage in judicial fact finding at the initial state of the motion process, prior to the issuance of an order to show cause, when a defendant moves to vacate his conviction under that statute.

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The 9th Circuit held a group of plaintiffs did not make a clear showing that U.S. Immigrations and Customs Enforcement directives in response to the COVID-19 pandemic reflected deliberate indifference to medical needs and reckless disregard of known health risk; ICE’s national directives did not create excessive conditions of punishment either; plaintiffs bringing §504 claim under the Rehabilitation Act must show that they were denied the benefits of the program solely by reason of a disability.

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The U.S. Supreme Court held to show a violation of clearly established law, a plaintiff must identify a case that put an officer on notice that his specific conduct was unlawful; precedent involving similar facts can help move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful, but a case involving officers responding to a noise complaint and encountering an unarmed man was not sufficiently similar to a case involving response to a serious alleged incident of domestic violence possibly involving a chainsaw, and an encounter with an armed man, for the rule from the first case to govern the outcome of the second.

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The 9th Circuit held when a defendant waives his appellate rights, he knows that he is giving up all appeals, no matter what unforeseen events may happen; although there always remains a chance the law could change in a defendant’s favor, the defendant knowingly and voluntarily assumes that risk because he receives a presumably favorable deal under existing law. While an appellate waiver does not apply to an illegal sentence, an illegal sentence does not include an illegal conviction.

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The BIA held An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018).

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The 9th Circuit held First-degree assault under Washington Revised Code § 9A.36.011 is categorically a crime-of-violence aggravated felony.

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  • People v. Bravo - filed Oct. 4, 2021 (California Court of Appeal’s Fourth District, Div. Two)

The California Court of Appeal’s Fourth District, Div. Two held an independent standard of review applies to all prejudice determinations under California Penal Code §1473.7(a)(1). A defendant bringing a claim under §1473.7 or §1016.5 can show prejudice by convincing the court that he would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.

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The 9th Circuit held a petitioner must provide meaningful guidance to the Board of Immigration Appeals of the issues contested on appeal; a generalized and conclusory statement about the proceedings before the immigration judge does not suffice. When a petitioner gives detailed reasons to support her appeal, either in a separate brief or on the Notice of Appeal itself, summary dismissal under 8 C.F.R. §1003.1(d)(2)(i)(E), for failure to file a brief, violates her due process rights. The board may not ignore a pro se petitioner’s inartful legal arguments if they suffice to give notice of the petitioner’s reasons for appeal.

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The BIA held (1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and ‍Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-‍Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.

(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § ‍212.5(e)(2)(i) (2021).

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The Ninth Circuit held a petitioner must file a motion to reopen under 8 U.S.C. §1229a(b)(5)(C)(i) to challenge an in absentia removal order within 180 days; the 180-day timeline will not be tolled or stayed when a petitioner mistakenly files an appeal to the Board of Immigration Appeals, and if the petitioner does not file a motion to reopen with the immigration judge, the removal order becomes final at the end of the 180-day period.

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The Ninth Circuit held an alien’s convictions for robbery in the second degree and attempted robbery in the second degree, in violation of Washington law, do not qualify as aggravated felony theft offenses under 8 U.S.C. §§1101(a)(43)(G), (U).

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The Ninth Circuit held that substantial evidence supported a denial of asylum to an alien who submitted false information in her asylum application regarding her arrest record and in her visa application regarding her employment; while this latter factor alone might not support an adverse credibility finding, it was an appropriate factor to consider when the alien made no attempt during her hearing to explain why she needed to provide the false information. An alien’s omission regarding her husband’s employment was not a proper basis for an adverse credibility determination, where the omission might be a collateral or ancillary omission that, under the totality of the circumstances, had no tendency to suggest the alien fabricated her claim.

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The BIA held a person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 ‍U.S.C. § ‍1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not “previously been admitted to the United States as an alien lawfully admitted for permanent residence” under that provision.

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The 9th Circuit held the Board of Immigration Appeals erred in relying on a probation report to conclude an alien had been convicted of a particularly serious crime when the alien did not have an opportunity to cross-examine the author of the report, or the underlying declarant.

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The 9th Circuit held child endangerment, in violation of California Penal Code §273a(a), does not constitute a crime of child abuse, child neglect, or child abandonment within the meaning of 8 U.S.C. §1227(a)(2)(E)(i).

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The 9th Circuit held an immigration judge provided sufficient safeguards to protect the due process rights of a lawful permanent resident who had been found mentally incompetent in removal proceedings by appointing a qualified representative, granting every continuance requested, compelling document productions from the Department of Homeland Security, ensuring the representative was able to file written pleadings and applications for relief, personally questioning the resident, and reviewing the record evidence submitted to support the claims for relief. A particularly serious crime determination is inherently discretionary and that jurisdiction to review such determinations exists only when the petitioner raises a constitutional or legal question, not simply where he asks for re-weighing of factors. An immigration judge is not always required to reference a petitioner’s mental health in making the particularly serious crime determination; consideration of mental illness is required only where the petitioner presents evidence directly attributing the crime to his mental illness. While police in the Dominican Republic do injure detainees, the government does not demonstrate intentional complicity and the record does not compel the conclusion that any individual detainee is more likely than not to be tortured.

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The 9th Circuit An exception to the law of the case doctrine applies when a prior decision was clearly erroneous and enforcement of the prior decision would work a manifest injustice. At most, an adverse credibility determination may be used to invalidate an applicant’s testimony, but the falsus in uno, falsus in omnibus maxim may not be used to wipe out an entire claim that is corroborated by other evidence. On a motion to reopen the Board of Immigration Appeals is required to accept as true the facts stated in an affidavit unless they are inherently unbelievable.

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  • People v. Perez - filed Sep. 7, 2021, (California Court of Appeal’s Fifth District)

The California Court of Appeal's Fifth District held California Penal Code §1473.7(b) contains a general rule requiring the court to deem the motion timely in certain circumstances, and a discretionary exception that permits the court to deem the motion untimely if the moving party did not act with reasonable diligence in bringing the motion after specific triggering events; the absence of reasonable diligence does not automatically result in the motion being deemed untimely, and a court has the discretionary authority, after considering the totality of the circumstances, to deem a motion timely even if the moving party did not act with reasonable diligence.

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The 9th Circuit held that Circuit precedent applying the single factor rule, which required the court to sustain an adverse credibility determination from the Board of Immigration Appeals, so long as one of the agency’s identified grounds was supported by substantial evidence, cannot be reconciled with the REAL ID Act; there is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination.

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The 9th Circuit held noncitizens with reinstated removal orders, while eligible to seek withholding and Convention Against Torture relief, are not eligible to seek asylum.

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  • Guardianship of S.H.R. - filed Sept. 2, 2021 (California Court of Appeal’s Second District, Div. One)

The California Court of Appeal's Second District, Div. One held that a petitioner seeking judicial findings that would enable him to petition the U.S. Citizenship and Immigration Services to classify him as a special immigrant juvenile under federal immigration law has the burden of proving by a preponderance of the evidence the facts supporting SIJ status; where a trial court has found his evidence did not support the requested findings, the petitioner has the burden on appeal of showing that he is entitled to the SIJ findings as a matter of law.

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The 9th Circuit held that a petitioner failed to present sufficient evidence to permit a rational trier of fact to find that his parents obtained a legal separation, by a preponderance of the evidence; parents cannot be said to have legally separated within the meaning of former §321(a) of the Immigration and Nationality Act unless they had a validly recognized relationship in the first place.

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The 9th Circuit held that the Board of Immigration Appeals is permitted to afford substantial weight to inconsistencies that bore directly on an asylum-seeker’s claim of persecution; although omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony, when the omission was concerning events and circumstances that the alien experienced directly, on direct examination, about the specific event that allegedly prompted him to flee, an immigration judge could afford substantial weight to the discrepancies. An IJ can rely on an alien’s evasive and unresponsive demeanor while testifying after providing examples of his evasiveness.

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  • People v. Rodriguez - filed Aug. 30, 2021 (California Court of Appeal’s First District, Div. Two)

The California Court of Appeal's First District, Div. Two held a trial court erred in rejecting a defendant’s Penal Code §1473.7 motion where she was no longer in custody in the underlying case and she showed it was reasonably probable that she would not have entered her no contest plea if she had known its adverse immigration consequences; her probation status in a wholly separate case did not bar her motion.

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The 9th Circuit held that following Rehaif v. U.S., the government must—in order to gain a conviction under 18 U.S.C. §922(g)(5)(B)— prove a defendant knew he was admitted into the country under a nonimmigrant visa as defined by §922(g); establishing that the defendant knew his visa was called an H-1B visa is not enough, he government must show that the defendant knew his particular visa was nonimmigrant—knowledge that can be established by demonstrating the defendant knew that his visa was classified as a nonimmigrant visa, or by showing he knew his visa possessed the components that constitute a nonimmigrant visa.

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The 9th Circuit held that the Board of Immigration appeals impermissibly applied the rule from Matter of Cortes Medina retroactively to an alien who became removable under 8 U.S.C. §1227(a)(2)(A)(i) after Cortes Medina classified his offense as a crime involving moral turpitude and his conviction became a potential ground for removal after Cortes Medina was decided.

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The 9th Circuit held an immigration judge erred by failing to give specific, cogent reasons for rejecting an alien’s reasonable, plausible explanations for the discrepancies tied to her declaration concerning the distance she traveled in a police truck before escaping on foot after officers raped her and being rescued by her husband; the judge further erred by discounting the alien’s supporting documentation without giving her adequate notice and opportunity to provide corroborative evidence. Substantial-evidence review does not require the Board of Immigration Appeals to credit the credibility finding of a judge who cherry-picks from—or misconstrues—the record to reach it.

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The 9th Circuit held non-citizens whose removal orders have been reinstated are statutorily entitled to counsel under 8 U.S.C. §1362, at no expense to the government, at their reasonable fear hearings before an immigration judge; in the absence of exceptional circumstances, denying a continuance despite the noncitizen’s inability to retain counsel within 10 days is not a denial of this entitlement where, at the time the asylum officer notified the non-citizen of the negative fear determination and the non-citizen requested IJ review, the asylum officer informed the non-citizen of the opportunity to have counsel, such as by providing the non-citizen with a list of legal service providers; the statutory entitlement to counsel does not mean that a noncitizen must have counsel before an IJ can proceed, but only that a non-citizen must at least be informed of the entitlement to counsel and have an opportunity to seek counsel within §208.31(g)(1)’s constraints.

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The 9th Circuit held A requestor must exhaust his administrative remedies under the Freedom of Information Act so long as an agency properly responds before suit is filed.

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The 9th Circuit held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and therefore, is not an aggravated felony theft offense under 8 U.S.C. §1101(a)(43)(G).

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The 9th Circuit held that substantial evidence supported the denial of withholding of removal under the serious nonpolitical crime bar where an arrest warrant declaring the alien in contempt of court for failing to attend a pretrial hearing created an indication of reliability by including the alien’s name and identifying information, explaining that he was accused of aggravated murder, listing the names of the victims, and implying that the charged murders were gang related; the Interpol Red Notice contained a brief description of events allegedly involving the alien; and the alien admitted that the identifying information in the documents fit his description, his testimony placed him within several miles of the murder at the time of the crime, and the alien conceded that the Salvadoran arrest warrant issued for him requires a witness, suggesting the Salvadoran government had additional evidence. An alien’s concession of safety combined with an inability to do more than speculate that the police would not protect him from gang violence provided substantial evidence to support the denial of Convention Against Torture protection.

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The 9th Circuit held substantial evidence supported a finding that the incidents of harm an alien experienced in India did not rise to the level of persecution where there was no indication he experienced significant physical harm, he was only detained one time for less than 24-hours, the threats he received were generally anonymous and vague, the police did not threaten his life if he returned to his business after the police seized his files, and he did not claim he was foreclosed from finding other employment. Substantial evidence supported a finding that the alien did not have an objectively reasonable fear of future persecution where there was only a speculative possibility that his alleged persecutors would still be interested in him, his family remained safe in India, and he was able to visit India without interference.

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The 9th Circuit held that there is no colorable constitutional claim exception to the limits Congress placed on the court’s jurisdiction to review challenges to expedited removal orders.

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The 9th Circuit held an alien was not put on notice that his alleged false claim of citizenship would be at issue at a hearing where his alleged false claim of citizenship had not been raised by the immigration judge for two years, and the last time it had been discussed the IJ implied it would only be dispositive if the Department of Homeland Security sustained a false claim of citizenship charge against him, but such a charge was never brought; this failure to put an alien on notice that his alleged false claim of citizenship would be at issue during the hearing violated due process.

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The 9th Circuit held the plain language of 8 U.S.C. §1252(g) barred judicial review of an alien’s claims challenging the government’s execution of his removal order. A Board of Immigration Appeals interim order denying a stay of removal pending resolution of a motion to reopen is not a final order subject to judicial review.

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The 9th Circuit held an alien was ineligible for cancellation of removal due to his conviction of an offense described under 8 U.S.C. § 1182(a)(2), which describes a ground of inadmissibility, even though he had been admitted into the U.S.

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The BIA held Section 240A(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(6) (2018), bars an applicant, who has previously been granted special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), from applying for cancellation of removal under section 240A(a) or (b)(1) of the Act.

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The 9th Circuit held the exhaustion requirement of 8 U.S.C. §1252(d)(1) contains an exception for cases in which exhaustion would be futile; where the agency’s position on the question at issue appears already set, and it is very likely what the result of recourse to administrative remedies would be, such recourse would be futile and is not required. A Board of Immigration Appeals rule categorically barring people erroneously perceived to be gang members from recognition as a particular social group is inconsistent with the requisite fact-based analysis required for proposed particular social groups; the board may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity.

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The 9th Circuit held if the alien is an applicant for admission, then the alien has the burden of establishing...that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible; an applicant for relief from removal has the burden of establishing eligibility, and if the evidence indicates that one or more of the grounds for mandatory denial of relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply; the preponderance of the evidence burden is comparatively much easier to meet than the clearly and beyond doubt burden; the clearly and beyond doubt burden did not apply to a petitioner who had been admitted into the U.S. before he applied for adjustment.

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The 9th Circuit held Hawaii’s fourth degree theft statute, a petty misdemeanor involving property valued at less than $250, is overbroad with respect to the Board of Immigration Appeals’ definition of a crime involving moral turpitude; Hawaii’s fourth degree theft statute is indivisible. An alien’s admissions regarding removability can satisfy the government’s burden of proof if the immigration judge relies on those admissions. Where the BIA considers an issue on the merits and ignores a procedural defect, the court cannot decline to consider the issue based on the defect.

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The BIA held

(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez‑Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel‑Quintana v. Sessions, 137 S. ‍Ct. 1562 (2017), distinguished.

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The 9th Circuit held under the circumstance-specific approach from Nijhawan v. Holder, the district court is not limited to reviewing the record in the applicant’s criminal case.

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The 9th Circuit held Conspiracy under California Penal Code §182(a)(1) is overbroad but divisible as to the target crime, and the sale and transport of a controlled substance under California Health and Safety Code §11352 is overbroad and divisible as to controlled substance. When a statute places the burden of proof on an applicant for immigration relief to show the absence of a disqualifying conviction, and the applicant stands convicted under a divisible statute that includes some offenses that are disqualifying and others that are not, and the record of conviction is ambiguous concerning which category fits the applicant’s crime, then the applicant has failed to carry the required burden of proof.

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The Attorney General of the U.S. decided that

(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L‑E‑A‑ III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A‑B- III”).

(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.

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(1) Immigration Judges and the Board lack the authority to recognize the equitable defense of laches in removal proceedings.

(2) The respondent’s willful misrepresentations regarding his name, location of his residence, timing of his departure from Rwanda, and membership in political organizations on his Registration for Classification as Refugee (Form I-590) and supporting documents were “material” within the meaning of section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8‍ U.S.C. § ‍1182(a)(6)(C)(i) (2018), and he is therefore removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § ‍1227(a)(1)(A) (2018).

(3) The evidence indicatesthat the respondent ordered, incited, assisted, or otherwise participated in the Rwandan genocide, and he did not produce sufficient countervailing evidence to demonstrate that he is not subject to the genocide bar at section 212(a)(3)(E)(ii) of the Act.

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The 9th Circuit held the jurisdiction of the immigration court vests upon the filing of a notice to appear, even one that does not at the time inform the alien of the time, date, and location of the hearing.

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  • People v Lopez - filed July 14, 2021 (California Court of Appeal’s Fourth District, Div. Three)

The California Court of Appeal's Fourth District, Div. Three held the rule from the California Supreme Court’s decision in People v. Vivar pertaining to Penal Code §1473.7 does not apply to §1018 cases involving immigration advisements; a trial court’s warning that deportation will result is not categorical a bar to relief; a generic advisement of consequences, does not constitute a bar to relief; where counsel admitted he was not aware of the specific immigration consequences of the individual charges the defendant was facing, he could not have provided accurate and affirmative advice as to the consequences of a guilty plea to any particular count as required by §1016.3.

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The Attorney General of the U.S. held

(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.

(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).

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The 9th Circuit held although decisions regarding the admission and exclusion of foreign nationals are subject to the doctrine of consular non reviewability, there is a circumscribed judicial inquiry for review of consular decisions that involve a violation of constitutional rights; a foreign national seeking admission into the U.S. has no constitutional right to entry, and so he personally has no ability to bring a cause of action challenging his denial of admission. The liberty specially protected by the Due Process Clause does not include a right of familial association that itself includes a right of an adult child to bring his alien parent into the U.S.

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The 9th Circuit held inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence; an immigration judge must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture; the judge also must provide a witness an opportunity to explain a perceived implausibility during the merits hearing; the cited evidence in the record, including a witness’s own testimony, need not conclusively establish that the witness’s testimony is false, and the judge’s implausibility finding will ultimately hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense.

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The 9th Circuit held in absence of clear evidence to the contrary, the court may presume that public officers properly discharge their duties, and an alien declaration stating that he did not remember receiving a copy of a Notice to Appear falls short of the evidence needed to rebut the presumption of regularity. Absent a showing of prejudice, improper service of an NTA on a minor alien released from Department of Homeland Security custody can be cured if DHS later perfects service before substantive removal proceedings begin. An immigration judge erred by failing to credit evidence showing that proof of a a minor’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws.

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The 9th Circuit held an alien’s forgery conviction under California Penal Code §470a categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. §1101(a)(43)(R), thus rendering him ineligible for voluntary departure.

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The 9th Circuit held a non-citizen was not admitted as required by 8 U.S.C. §1182(a)(6)(A)(i) and §1255(a) when agents at a border patrol checkpoint in San Clemente, California, apprehended and released him after he showed them his then-valid temporary resident card; assuming these actions could amount to inspection and authorization, the event did not take place at a port of entry, as the checkpoint sits well within the U.S. Noncitizens factually admitted at a U.S. port of entry while they hold temporary resident status do not magically become unadmitted once their temporary resident status ends. A noncitizen builds up physical-presence time under §1229c(b)(1)(A) from the moment he enters the U.S. until the moment he receives a single document, e.g., a notice to appear (“NTA”) that provides him with all the information listed in §1229(a).

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The BIA held

(1) Immigration Judges may exercise their discretion to rescind an in-absentia removal order and grant reopening where a foreign national has established through corroborating evidence that her/his late arrival at a removal hearing was due to “exceptional circumstances” under section 240(e)(1) of the Immigration and Nationality Act, 8 ‍U.S.C. § 1229a(e)(1) (2018), and, in doing so, should consider factors such as the extent of the foreign national’s tardiness, whether the reasons for the foreign national’s tardiness are appropriately exceptional, and any other relevant factors in the totality of the circumstances.

(2) Corroborating evidence may include, but is not limited to, affidavits, traffic and weather reports, medical records, verification of the foreign national’s arrival time at the courtroom, and other documentation verifying the cause of the late arrival; however, general statements—without corroborative evidence documenting the cause of the tardiness—are insufficient to establish exceptional circumstances that would warrant reopening removal proceedings. Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997), reaffirmed and clarified.

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The 9th Circuit held defendant claiming that voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. In the context of post-judgment proceedings in which a district court has retained jurisdiction to enforce an injunction or a consent decree, some orders are sufficiently final to warrant appellate jurisdiction absent any imposed sanction. The Department of Homeland Security has legal custody over minors held under Title 42 because it maintains physical control and exercises decision-making authority over such minors.

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The 9th Circuit held Congress has made it a crime to enter the U.S. unless an alien presents himself for inspection at an approved time and place; 8 U.S.C. §1325(a)(1) does not violate the non-delegation doctrine, and is not unconstitutionally vague—facially or as applied to aliens convicted for entering the U.S. at a time or place other than as designated by immigration officers.

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The U.S. Supreme Court held when foreign nationals were removed from the United States, reentered without authorization, and the Department of Homeland Security reinstated their prior removal orders, 8 U.S.C §1231 governs their detention–not §1226.

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The 9th Circuit held although a federal appellate court lacks jurisdiction to reweigh an exercise of discretion in denying voluntary departure, it has jurisdiction to review constitutional claims or questions of law in the denial of such relief, including whether the Board of Immigration Appeals and immigration judge (“IJ”) failed to consider the appropriate factors or relied on improper evidence. The duty to advise an alien of apparent eligibility to apply for benefits under Title 8, Chapter V of the Code of Federal Regulations, is triggered whenever the facts before the IJ raise a reasonable possibility that the foreign national may be eligible for such relief, and that the failure to advise can be excused when the foreign national’s eligibility for relief is not plausible. The judge-made exception to 8 U.S.C. §1326(d)(1) does not apply to the jurisdictional exhaustion requirement governing final orders of removal under 8 U.S.C. §1252(d)(1).

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The 9th Circuit held n alien’s conditional discharge for his Georgia drug offense was a conviction under the Immigration and Nationality Act; it satisfied the requirements for situations in which an adjudication of guilt has been withheld because the conditional discharge required the alien to plead guilty to, or be found guilty of possessing marijuana, and imposed probation. The personal-use exception of 8 U.S.C. §1227(a)(2)(B)(i) does not unambiguously direct courts to use either the categorical approach or the circumstance-specific approach; the circumstance-specific approach permits a petitioner to be deported on the basis of circumstances that were not judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute, but the approach still requires fundamentally fair procedures and requires the government to prove that the quantity of marijuana exceeded thirty grams by clear and convincing evidence.

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The BIA held

(1) An applicant for adjustment of status with Special Immigrant Juvenile status may, in conjunction with a waiver under section 245(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018), seek to waive his or her inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § ‍1182(a)(2)(A)(i)(II) (2018), based on a single offense of simple possession of 30 ‍grams or less of marijuana.

(2) The “simple possession” exception at section 245(h)(2)(B) calls for a ‍circumstance‑specific inquiry into the nature of the conduct surrounding an applicant’s simple possession offense.

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The Attorney General of the U.S. decided that

(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.

(2) Immigration judges and the Board of Immigration Appeals (“BIA”) should no longer follow A-B- I or A-B- II when adjudicating pending or future cases. Instead, pending forthcoming rulemaking, immigration judges and the BIA should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

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The Attorney General of the U.S. decided that

(1) Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group.”

(2) Immigration judges and the Board of Immigration Appeals should no longer follow L-E-A- II when adjudicating pending and future cases.

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The 9th Circuit held the Board of Immigration Appeal erred by reviewing an immigration judge’s grant of deferral of removal under the Convention Against Torture de novo, rather than for clear error; the foreign national met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico where state police arrested and brutally tortured her until she confessed to the kidnapping and murder of a five-year old boy.

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The U.S. Supreme Court held a criminal offense with a mens rea of “recklessness” does not qualify as a violent felony under the Armed Career Criminal Act’s elements clause.

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The 9th Circuit held notice to appear (“NTA”) sufficient to trigger the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)’s stop-time rule is a single document containing all the information about an individual’s removal hearing specified in 8 U.S.C. §1229(a)(1).

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The U.S. Supreme Court held a recipient of temporary protected status (“TPS”) who entered the United States unlawfully is not eligible under 8 U.S.C. §1255 for lawful permanent resident status merely by dint of his TPS; §1255 provides that eligibility for adjustment of status, i.e., a Green Card from within the U.S., generally requires an admission into the country—defined to mean the lawful entry of the alien after inspection and authorization by an immigration officer, and TPS status does not eliminate the effect of an unlawful entry.

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The BIA held the mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).

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  • People v. Casillas - filed June 4, 2021 (California Court of Appeal’s Second District, Div. One)

The California Court of Appeal's Second District, Div. One held a trial court properly admitted evidence of a defendant’s immigration status and deportation history where the evidence was strongly probative on the question of motive and the trial court took steps to minimize the potential for any undue prejudice.

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The 9th Circuit held the departure bar provision in 8 C.F.R. §1003.23(b)(1) does not apply in the context of sua-sponte reopening.

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  • People v. Castillo - filed May 12, 2021, publication ordered June 1, 2021 (California Court of Appeal’s Second District, Div. Eight)

The California Court of Appeal's Second District, Div Eight held Padilla v. Kentucky announced a new rule by imposing an obligation on trial counsel to understand and accurately explain the immigration consequences of a plea to a defendant before the entry of that plea; Padilla cannot be applied retroactively to cases that were final at the time the opinion was issued, and there was no ineffective assistance where counsel allegedly failed in 1989 to give unsolicited advice.

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The U.S. Supreme Court held the Ninth U.S. Circuit Court of Appeals’ judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit adverse credibility determination is inconsistent with the Immigration Nationality Act.

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  • People v. Graham - filed May 27, 2021 (California Court of Appeal’s Second District, Div. Two)

The California Court of Appeal's Second District, Div Two held a request for pretrial diversion under Penal Code §1001.36 must be made prior to the return of a verdict.

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The 9th Circuit held the government may parole a returning lawful permanent resident into the United States for prosecution without proving at the border that the LPR was seeking an admission under 8 U.S.C. §1101(a)(13)(C), when such a determination depends on facts that are not practically ascertainable at the border; but at subsequent removal proceedings, the government must prove by clear and convincing evidence that the returning LPR falls within one of the exceptions under §1101(a)(13)(C).

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The 9th Circuit held where an alien sought Convention Against Torture relief based on the physical abuse she suffered at the hands of her former domestic partner, the record did not compel a finding that the alien would suffer future torture if returned to Jamaica because even if she had suffered past torture, her circumstances had changed in that a Jamaican court had issued a protection order and her former partner had left her household; in assessing the likelihood of future torture, the adjudicator must consider all evidence relevant to the possibility of future torture, including whether circumstances or conditions have changed significantly with respect to the particular individual, and not merely information about general changes in the country.

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The U.S. Supreme Court held all three of the statutory requirements of 8 U.S.C. §1326(d) are mandatory; the statute’s first two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable.

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The 9th Circuit held Bivens remedies are available when a U.S. citizen claims a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the U.S. and violated the First Amendment by engaging in retaliation for protected speech.

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The 9th Circuit held where it has not been proven that a custody order was entered in error, was contrary to law, or otherwise did not reflect the true legal relationship between a petitioner’s parents, a nunc pro tunc order cannot retroactively establish a naturalized parent’s sole legal custody for the purposes of derivative citizenship under former 8 U.S.C. §1432(a).

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The California Court of Appeal's Second District, Div. Five held to prevail on an actual innocence claim, a petitioner must demonstrate it is more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt; a Schlup finding is within the scope of what the Legislature intended as a court finding of factual innocence.

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The 9th Circuit held the Board of Immigration Appeals (“BIA”) erred in disregarding part of an alien’s application to reopen removal proceedings simply because it lacked corroboration where the alien’s sworn declaration was not inherently unbelievable, and there was no evidence in the record to contradict it. The BIA abused its discretion by concluding the alien should have confirmed her hearing date through the immigration court’s automated system, as only evidence suggesting that she was advised of the system were the written instructions she could not read, and her family had no reason to suspect that the hearing was not on Dec. 7, based on how numerical dates are typically written in Latin America; the BIA erred in not addressing whether the alien had any motive for failing to appear, and whether an in-absentia removal order would cause unconscionable results.

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The 9th Circuit held n immigration judge did not commit an abuse of discretion in deeming an asylum-seeker’s application abandoned where the judge had instructed the asylum-seeker, and her counsel, to complete biometrics requirements before her merits hearing, ensured that she had the relevant instructions, and warned her that her failure to comply could result in her application being deemed abandoned. The clear text of 8 C.F.R. §1003.47(c) places the burden on the applicant to comply with biometrics requirements in conformity with the instructions to the application, which in turn direct the applicant to call a particular telephone number if she does not receive the requisite biometric receipt notices after her submission.

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The California Supreme Court held An independent review standard applies to determine if a defendant demonstrated a reasonable probability that if he had been properly advised by counsel about the immigration consequences of his plea; under this standard, a defendant demonstrated a reasonable probability that if he had been properly advised by counsel about the immigration consequences of his plea, he wouldn’t have pleaded guilty to an offense subjecting him to mandatory deportation where there was no evidence counsel ever advised the defendant about the immigration consequences, or that she even understood them herself, the defendant had robust ties to the United States, and there were objective and contemporaneous facts corroborating his claim he would never have pleaded guilty if his attorney had informed him of the plea’s consequences.

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The U.S. Supreme Court held a notice to appear sufficient to trigger the Illegal Immigration Reform and Immigrant Responsibility Act’s stop-time rule is a single document containing all the information about an individual’s removal hearing specified in 8 U.S.C. §1229(a)(1).

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The 9th Circuit held Nevada Revised Statutes §453.337 is a divisible statute because possession of a specific controlled substance is an element of the crime, and not merely a means of committing the possession-for-sale offense; although the Nevada schedules of controlled substances are not coterminous with the listing of prohibited substances delineated in the Controlled Substances Act, §453.337 is not fatally overbroad, because a jury must unanimously agree that a defendant possessed a specific controlled substance in order to convict under the statute.

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The U.S. Supreme Court held while 28 U.S.C. § 2254(a) permits a federal court to entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, a habeas petitioner does not remain in custody under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted.

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The 9th Circuit held ineffective assistance of a habeas corpus petitioner’s state-court counsel satisfies the good cause standard under the rule of Rhines v. Weber for a petitioner’s failure to exhaust his claims.

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The BIA held an Immigration Judge may rely on fraud or a willful misrepresentation of a material fact made by an alien during an interview before the United States Citizenship and Immigration Services to remove the conditional basis of an alien’s permanent resident status in assessing whether the alien has demonstrated, for purposes of adjustment of status in removal proceedings, that she is not inadmissible under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 ‍U.S.C. § 1182(a)(6)(C)(i) (2018).

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The 9th Circuit held the statute authorizing reinstatement of prior removal orders, 8 U.S.C. §1231(a)(5), precludes most collateral attacks on the validity of the removal order being reinstated, unless the petitioner can show that a gross miscarriage of justice occurred during the earlier removal proceedings; even that narrow sliver of jurisdiction is foreclosed when the underlying order was an expedited removal order.

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  • Matter of A-S-M-, 28 I&N Dec. 282 (BIA April 9, 2021)

The BIA held where the Department of Homeland Security states that an applicant may be removed to a country pursuant to section 241(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § ‍1231(b)(2) (2018), the applicant may seek withholding of removal from that country in withholding-only proceedings, even if that country is different from the country of removal that was originally designated in the reinstated removal order on which the withholding‑only proceedings are based.

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The 9th Circuit held nonprofit organizations that represent asylum-seekers had Article III standing to challenge a Department of Justice and Department of Homeland Security joint interim rule which categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled; the rule is unlawful under the Administrative Procedures Act on the ground that the rule is not in accordance with law and is in excess of statutory limitations because it is not consistent with 8 U.S.C. §1158.

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The 9th Circuit held the first-degree burglary of a dwelling under Oregon Revised Statutes §164.225 is not categorically a crime involving moral turpitude; burglary constitutes a CIMT when it requires proof that the defendant burglarized a regularly or intermittently occupied dwelling.

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The 9th Circuit held In order to establish the requisite nexus for asylum relief, a protected ground must be a but-for cause of the wrongdoer’s act and must play more than a minor role; the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum; if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is one central reason for her persecution. Political opinions encompass more than electoral politics or formal political ideology or action; feminism qualifies as a political opinion within the meaning of the relevant statutes. Where an alien’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion and the evidence showed her political opinion was at least one central reason for her past persecution, the alien established that her political opinion was a reason for her persecution for purposes of withholding of removal.

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The BIA held the offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits a person from driving under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended, is categorically a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.

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The 9th Circuit held petty theft in violation of California Penal Code 484(a) is a crime involving moral turpitude. An alien failed to establish prima facie eligibility for asylum based on his history of drug use and his fear of persecution or torture under Philippine President Rodrigo Duterte’s anti-drug program where the alien did not contend that he suffered past persecution, and merely speculated that someone in the Philippines could report his past drug use to the government, or that he might succumb to the temptation to begin using drugs again.

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(1) The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is divisible and the underlying substantive crime is an element of the offense.

(2) Because the substantive offense underlying the respondent’s Federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude, his conviction for conspiring to commit this offense is likewise one for a crime involving moral turpitude.

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The 9th Circuit held a defendant’s prior conviction for possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. §924(c) constituted a controlled substance offense under U.S.S.G. §4B1.2.

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The 9th Circuit held nonprofit organizations that represent asylum-seekers had Article III standing to challenge a Department of Justice and Department of Homeland Security joint interim rule which categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled; the rule is unlawful under the Administrative Procedures Act on the ground that the rule is not in accordance with law and is in excess of statutory limitations because it is not consistent with 8 U.S.C. §1158.

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The 9th Circuit held the Board of Immigration Appeals in finding an asylum-seeker’s proposed social group comprised of El Salvadoran men with intellectual disabilities who exhibit erratic behavior was not cognizable by treating the term intellectual disability as if it were applied by a layperson, instead of recognizing that the term as used in the asylum application, which referred to an explicit medical diagnosis with several specific characteristics; the clinical term intellectual disability may satisfy the particularity and social distinction requirements necessary to qualify for asylum and withholding of removal; the fact that the average layperson may not be able to accurately identify an individual with an intellectual disability does not make the clinical definition subjective or amorphous, and that similarly, the possibility that individuals within the group may have subdiagnoses or concurrent diagnoses does not make the group overbroad. The possibility that individuals with intellectual disabilities are subsumed in a larger group of persecuted individuals with mental illnesses does not control the social distinction analysis, because the question is whether individuals with intellectual disabilities are singled out for greater persecution than the general population. If individuals are treated badly because they manifest a certain condition, that treatment by itself suggests that the group of people with that condition is viewed as socially distinct, because they have been singled out for mistreatment.

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  • People v. Curry - filed March 2, 2021, publication ordered March 22, 2021, (California Court of Appeal’s Third District)

The California Court of Appeal's Third District held Penal Code §1001.36 contemplates mental health diversion until sentencing and entry of judgment.

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The 9th Circuit held petitioner’s personal circumstances may act as a necessary predicate to the success of a motion to reopen where the new personal circumstances make the provided changed country conditions evidence relevant to the petitioner’s changed personal circumstances; the Board of Immigration Appeals did not abuse its discretion in concluding that an alien failed to establish materially changed country conditions to warrant reopening of his removal proceedings where the alien provided evidence of changes in his personal circumstances, along with evidence supporting his argument that, given his changed personal circumstances, he could now be persecuted or tortured based on current country conditions in Mexico, but he did not provide evidence of actual changed country conditions between his original 2003 hearing and his 2016 motion to reopen.

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The 9th Circuit held an alien’s proposed social group comprised of witnesses who … could testify against gang members based upon what they witnessed was not discrete and lacked definable boundaries. An alien failed to establish that past torture occurred with the consent or acquiescence of a public official where his testimony indicated that the police never learned about harm he suffered as a result of his witnessing a robbery and receiving a subsequent threat. A court cannot independently take judicial notice of a report that was not a part of the record.

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The BIA held the respondent’s conviction for assault by means of force likely to produce great bodily injury in violation of section 245(a)(4) of the California Penal Code is categorically one for a crime involving moral turpitude. Matter of Wu, 27 I&N Dec. 8 (BIA 2017), followed.

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The 9th Circuit held an asylum-seeker did not establish past persecution, where her alleged persecutor issued vague threats, confronted her several times over a period of weeks, did not perform any acts of violence, and never followed through on any of his threats; though condemnable, the unfulfilled threats were not so overwhelming to necessarily constitute persecution. A proposed social group comprised of Salvadoran women who refuse to be girlfriends of MS gang members and Salvadoran women who refuse to be victims of violent sexual predation of gang members lacked social distinction.

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The BIA held

(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is overbroad relative to the generic definition of a crime involving moral turpitude, and divisible between the offense clause, which may or may not involve moral turpitude, and the defraud clause of the statute, which is categorically a crime involving moral turpitude.

(2) To determine whether a conspiracy conviction under the offense clause of 18 U.S.C. § 371 constitutes a crime involving moral turpitude, the underlying statute of conviction should be examined under the categorical, and if applicable, modified categorical approach.

(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and misuse of visas, permits, and other documents, is overbroad and divisible such that the modified categorical approach is applicable and it was proper to consider the conviction records. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified.

(4) The respondent’s conviction for conspiracy to commit visa fraud in violation of 18 U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach.

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The U.S. Supreme Court held under the Immigration and Nationality Act, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense; an alien has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

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The 9th Circuit held the restricted-residence exception to the firm resettlement bar applies when the country’s authorities are unable or unwilling to protect the asylum applicant from persecution by nongovernment actors. An applicant suffered past persecution in Somalia, where he was physically beaten by members of a militant terrorist organization that also kept tabs on him by contacting his brother and threatening to kill him, and the brother, if they disobeyed the group’s command to close their movie theater that played Islamically forbidden films.

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The 9th Circuit held California Health and Safety Code §11350 is divisible as to controlled substance; where an alien’s conviction under the statute involved cocaine, the alien was properly ordered removed for an offense relating to a controlled substance under Immigration and Nationality Act §237(A)(2)(B)(i).

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The 9th Circuit held a defendant’s prior conviction for the attempted transportation of marijuana under Arizona Revised Statutes §13-3405(A)(4) did not qualify as a controlled substance offense subjecting him to application of a recidivist sentencing enhancement under U.S.S.G. §4B1.2(b) because the Arizona statute under which the defendant was convicted included hemp in its definition of marijuana, and the federal Controlled Substances Act in effect at the time of a defendant’s federal sentencing excluded hemp.

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The 9th Circuit held an amendment to California Penal Code §18.5, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. §1227(a)(2)(A)(i).

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The BIA held an applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse.

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The BIA erred in concluding an asylum-seeker failed to establish a nexus between her persecution and her status as a property owner where the board found property ownership was the real reason she was targeted for persecution; it is sufficient under mixed motive precedent for the petitioner to show that a protected ground was a cause of the persecutors’ acts. Sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from purely personal retribution.

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The BIA’s determination that illicit trafficking in firearms means any unlawful trading or dealing in firearms is entitled to deference; 18 U.S.C. §922(a)(1)(A) is a categorical match to illicit trafficking in firearms under 8 U.S.C. §1101(a)(43)(C).

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The 9th Circuit held the jurisdiction of the immigration court vests upon the filing of a notice to appear, even one that does not at the time inform the alien of the time, date, and location of the hearing.

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The 9th circuit held an asylum-seeker’s proposed social group comprised of minor Christian males who oppose gang membership is not cognizable because it lacks particularity and social distinction. The fact that an asylum-seeker’s uncle was killed by gang members was not an adequate basis to make the family a social group absent evidence the uncle’s family membership was a reason that the gang killed him; the murder, coupled with the existence of generalized violence in Honduras, did not compel the conclusion that an asylum-seeker would more likely than not experience torture inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

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The 9th Circuit held a proposed social group comprised of Mexican wealthy business owners was not cognizable for purposes of withholding relief because it lacked social distinction, particularity, or an immutable characteristic. A petitioner seeking relief under the Convention Against Torture sufficiently demonstrated that he was the victim of an official perpetration of violence where he had reasons to believe he was targeted by Mexican judicial police, an official discouraged him from filing a report, and he filed police reports and no action was taken.

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  • U.S. v. Bastide-Hernandez - filed February 2, 2021

The 9th Circuit held that the jurisdiction of the immigration court vests upon the filing of a notice to appear, even if the notice does not at that time inform the alien of the time, date, and location of the hearing; a defective NTA does not affect jurisdiction, but it can create due-process violations.

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The 9th Circuit held that some forms of physical violence are so extreme that even attempts to commit them constitute persecution for purposes of seeking asylum; attempted rape is a severe violation of bodily integrity and autonomy, and so is itself almost always a form of persecution; it is the conduct of the persecutor, not the subjective suffering from the perspective of the victim, that matters for purposes of determining what constitutes persecution.

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The BIA held that Individuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.

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The BIA held that Where a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018).

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The BIA held that Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific “controlled substance” involved in a violation of that statute.

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The 9th Circuit held that the rule of Nieves v. Bartlett, which held that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. §1983, does not control in the immigration-bond-revocation context; the standard from Mt. Healthy City Board of Education v. Doyle applies when an individual who had been detained by ICE and released on bond claims his immigration arrest and re-detention was retaliation for his protected speech.

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The 9th Circuit held that an immigration judge provided a pro se asylum-seeker with due process by providing details about the structure of the hearing and the availability of counsel, and asking numerous questions through which the asylum-seeker had ample opportunity to develop his testimony; judges do not need to go beyond their impartial role as independent fact-finders and essentially act as advocates for pro se asylum applicants. The evidence did not compel the finding of past persecution where an asylum-seeker did not testify to any individualized physical attacks or threats, and he failed to show sufficient economic or psychological harm. An asylum-seeker failed to establish that the Pakistani government was unable to control the Taliban, as the standard is not that the government can prevent all risk of harm.

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The BIA held that an Immigration Judge may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given an opportunity to explain the defects.

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  • Doe v. Trump - filed December 31, 2020

The 9th Circuit held that the president had statutory authority to issue a proclamation restricting entry of immigrant visa applicants who cannot demonstrate that they either will acquire qualifying healthcare coverage within 30 days of entry or have the ability to pay for reasonably foreseeable healthcare expenses.

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The 9th Circuit held that a Department of Health and Human Services regulation allowing the Office of Refugee Resettlement to place an unaccompanied minor in a secure facility if the minor is “otherwise a danger to self or others” is inconsistent with the terms of a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention; the bond hearing regulations providing a hearing to unaccompanied minors held in secure or staff-secure placements only if they request one is also inconsistent with the agreement; regulations relating to accompanied minors also depart from the agreement where they limit the circumstances in which accompanied minors may be released, and they provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself.

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The California Court of Appeal Fourth District, Division Two held that a defendant was adequately advised of the immigration consequences of his plea of guilty to the charges of spousal abuse and child abuse where the admonition on his plea bargain form contained an advisement of the immigration consequences of his plea, and he explicitly acknowledged that he understood the specific immigration consequences of his plea. A defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he would not have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice.

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The BIA held that the risk of harm to a child required to obtain a conviction for child neglect in the second degree under section 163.545(1) of the Oregon Revised Statutes is sufficiently high that the offense is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

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The 9th Circuit held that an asylum-seeker waived review of the Board of Immigration Appeals’ discretionary denial of his application by failing to contest that aspect of the board’s decision in his opening brief, and instead raising it for the first time in his reply brief. The board correctly concluded that the asylum-seeker’s proposed social group of known drug users lacked definable boundaries and therefore could not serve as a legally cognizable social group.

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The BIA held that (1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.

(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.

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The 9th Circuit held that U.S. Citizenship and Immigration Services acted arbitrarily and capriciously in denying an H-1B temporary worker visa for a computer programmer where the agency relied solely on the Department of Labor’s Occupational Outlook Handbook to conclude that a bachelor’s degree is not normally required for computer programming positions since the OOH made clear that a bachelor’s degree is not only common, but typically needed, for computer programmers.

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The California Court of Appeal, Fourth District, Division Three held that A person’s own error in not understanding or knowingly accepting that a guilty plea will have certain and adverse immigration consequences may constitute prejudicial error entitling the person to relief under Penal Code §1473.7.

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The 9th Circuit held that a defendant’s Arizona conviction for the attempted transportation of marijuana was not a categorical match to the federal offense where the Arizona statute included hemp, and Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance before the defendant’s federal conviction and sentencing.

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The 9th Circuit held that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by 8 C.F.R. §1252(a)(2)(A)(iii); where Congress explicitly withdraws jurisdiction to review a final order of deportation, authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn; a court has jurisdiction to consider an immigration judge’s denial of motions to reopen or reconsider in cases that involve review of reasonable fear determinations in the context of a reinstatement of a prior removal order under 8 U.S.C. §1231(a)(5), rather than a credible fear determination under §1225(b)(1); a decision that might appear to fall within §1252(a)(2)(B) or §1252(a)(2)(C) is not reviewable under §1252(a)(2)(D) if it is subject to a separate prohibition of §1252(a)(2)(A).

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The BIA held that (1) Counsel’s acceptance of responsibility for error does not discharge the disciplinary authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), particularly where the ineffective assistance allegation is rendered by the same attorney against himself.

(2) A respondent seeking reopening on the basis of a claim of ineffective assistance of counsel must show a reasonable probability that, but for counsel’s error, he would have prevailed on his claim.

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The 9th Circuit held that to qualify for a derivative visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U visa.

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The 9th Circuit held that states and municipalities had standing to challenge an administrative rule defining public charge; the plaintiffs interests in preserving immigrants’ access to supplemental benefits is within the zone of interests protected by the public charge statute; the plaintiffs demonstrated a high likelihood of success in showing that the rule is inconsistent with any reasonable interpretation of the public charge statute and therefore contrary to law. The rule’s promulgation was arbitrary and capricious since the Department of Homeland Security failed to consider its financial effects or address concerns about the rule’s effect on public safety, health, and nutrition, and the agency did not explain its abrupt change in policy from its previously issued guidance.

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The 9th Circuit held that pursuant to 8 U.S.C. §1252(b)(1), there is a 30-day deadline for seeking review of a reinstatement order; if an alien has timely challenged his reinstatement order, a federal court has jurisdiction to consider a collateral attack on his underlying removal order; there is no diligence requirement that limits the time during which a such a collateral attack may be made.

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The BIA held that (1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated. (2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

The 9th Circuit held that a showing of prejudice is not required when ineffective assistance of counsel leads to an in- absentia order of removal.

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The 9th Circuit held that the BIA erred in giving reduced weight to the testimony of a specialist in gang activity based on alleged inconsistencies regarding the expert’s familiarity with an alien’s prison gang where the expert explicitly wrote in his declaration that his comments on the gang were based on facts provided by the alien and the board did not cite any reason to doubt the alien’s testimony; the board erred in discounting the expert’s testimony because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the board failed to explain why the absence of one video diminished the weight of his expert opinion.

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The BIA held that absent a showing of prejudice on account of ineffective assistance of counsel, or a showing that clearly undermines the validity and finality of the finding, it is inappropriate for the Board to favorably exercise our discretion to reopen a case and vacate an Immigration Judge’s frivolousness finding.

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The BIA held that where there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2018), even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.

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The 9th Circuit held that in determining whether a state conviction is a categorical match for its federal counterpart, the proper point of comparison are the two drug schedules in effect at the time of the conviction. An alien’s 2011 conviction for possession for sale of marijuana, in violation of California Health & Safety Code §11359, was a drug trafficking aggravated felony because the state and federal schedules defined marijuana the same way at the time of his conviction.

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The 9th Circuit held that an amendment to California Penal Code §18.5, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. §1227(a)(2)(A)(i).

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The 9th Circuit held that the offense of knowingly sponsoring or exhibiting an animal in a fighting venture under 7 U.S.C. §2156(a)(1) is a crime involving moral turpitude; an alien who has been convicted of a crime involving moral turpitude, for which a sentence of one year or longer may be imposed, has been convicted of an offense under 8 U.S.C. §1227(a)(2) that makes the alien ineligible for cancellation of removal under 8 U.S.C. §1229b(b)(1)(C).

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The Fourth District, Division Two held that a trial judge did not abuse her discretion in excluding evidence that a domestic violence victim had applied for a visa that is only available to domestic violence victims who cooperate in prosecuting their abusers, even though the evidence was relevant, since the victim had given a statement and preliminary hearing testimony before she knew about the visa program, and her trial testimony was consistent with her prior accounts; any error was also harmless since the physical evidence of the abuse was overwhelming.

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The 9th Circuit held that Oregon’s former marijuana delivery statute is not an illicit trafficking of a controlled substance offense, and thus an alien’s conviction for that offense did not make him removable as an aggravated felon.

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The 9th Circuit held that a lawful permanent resident convicted of an aggravated felony was not entitled to coram nobis relief where he waited two years, without a valid reason, before filing his petition for a writ of error coram nobis after learning that the only way he could avoid removal was to challenge his conviction. Uncertainty or ambiguity in the law is not itself a valid reason to delay seeking coram nobis relief.

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The 9th Circuit held that a district court did not abuse its discretion by issuing some form of preliminary injunctive relief to a group of detainees at an Immigration and Customs Enforcement processing center where the detainees presented evidence that the government likely failed to meet its constitutional duty to provide reasonably safe conditions to them during the COVID-19 pandemic; the detainees were likely to suffer irreparable harm absent relief given COVID-19’s high mortality rate, and the equities and public interest tipped in their favor in light of the lack of criminal records of many of the detainees and the alternative means available to prevent them from absconding if released.

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The 9th Circuit held that substantial evidence supported the denial of asylum and withholding of removal on adverse credibility grounds to an applicant from the Democratic Republic of Congo where there were inconsistencies in his testimony, an omission, and implausibilities in the record; without credible testimony, the asylum-seeker could not establish a well-founded fear of persecution for asylum and withholding relief.

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The BIA held that if a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.

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The 9th Circuit held that under 18 U.S.C. §2246(5)(A), the phrase pending … deportation does not require a finding of actual or inevitable removal from the United States; it is enough that the government had initiated removal proceedings, creating the possibility of deportation.

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The BIA held that

(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive.

(2) In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered.

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The 9th Circuit held that the phrase at the time of application for admission, as used in 8 U.S.C. §1182(a)(7), refers to the particular point in time when a noncitizen submits an application to physically enter the United States.

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The 9th Circuit held that chevron deference applies to the Board of Immigration Appeals’ determination that a conviction under California Penal Code §245(a)(1) is categorically a crime involving moral turpitude.

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The 9th Circuit held that an alien’s conviction for being a felon in possession of a firearm or ammunition constitutes a particularly serious crime barring withholding of removal. A stowaway retains stowaway status when granted asylum.

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The 9th Circuit held that under 8 U.S.C. §1254a(b)(5)(A), there can be no judicial review of non-constitutional claims that fundamentally attack the Secretary of Homeland Security’s specific Temporary Protected Status determinations, nor review of the substance of her discretionary analysis in reaching those determinations; the statute does not bar review of a challenge to an agency pattern or practice that is collateral to, and distinct from, the specific TPS decisions and their underlying rationale. The level of deference that courts owe to the president in his executive decision to exclude foreign nationals who have not yet entered the United States may be greater than the deference to an agency in its administration of a humanitarian relief program established by Congress for foreign nationals who have lawfully resided in the country for some time.

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The 9th Circuit held that under 8 U.S.C. §1254a(b)(5)(A), there can be no judicial review of non-constitutional claims that fundamentally attack the Secretary of Homeland Security’s specific Temporary Protected Status determinations, nor review of the substance of her discretionary analysis in reaching those determinations; the statute does not bar review of a challenge to an agency pattern or practice that is collateral to, and distinct from, the specific TPS decisions and their underlying rationale. The level of deference that courts owe to the president in his executive decision to exclude foreign nationals who have not yet entered the United States may be greater than the deference to an agency in its administration of a humanitarian relief program established by Congress for foreign nationals who have lawfully resided in the country for some time.

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The 9th Circuit held that a plaintiff had standing to seek prospective relief enjoining the issuance of certain immigration detainers where he faced an ongoing and prospective detention injury when he commenced suit. A proposed class consisting of persons subject to a detainer that was issued solely on the basis of electronic database checks satisfies the commonality and typicality requirements for certification; 8 U.S.C. §1252(b)(9) does not bar claims that challenge the legality of a detention and are independent of the removal process; 8 U.S.C. §1252(f)(1) does not bar injunctive relief for such claims either. The presence or absence of probable cause determines whether the government violates the Fourth Amendment when issuing a detainer, not state law restrictions.

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The 9th Circuit held that substantial evidence did not support a finding that the El Salvadoran government was both able and willing to control a gang whose members attacked an asylum-seeker, and killed his son, where he received threats from the gang and received protection from the government, but the government withdrew its protection after he testified against the gang members; the law does not require applicants to wait until gang members carry out their deadly threats before they are eligible for asylum.

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The 9th Circuit held that the Board of Immigration Appeals erred by conducting a de novo review of a judge’s factual findings pertaining to a grant of deferral of removal under the Convention Against Torture, rather than reviewing them for clear error, as required by 8 C.F.R. §1003.1(d)(3)(i).

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The 9th Circuit held that the domestic violence waiver established under 8 U.S.C. §1227(a)(7), and made applicable to cancellation of removal by 8 U.S.C. §1229b(b)(5), is limited to crimes of domestic violence and stalking.

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The BIA held that (1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

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The 9th Circuit held that California Health & Safety Code §11378’s inclusion of geometrical isomers of methamphetamine does not reflect a legislative determination that such isomers actually exist. The purpose of the categorical approach is to ascertain whether the defendant was necessarily convicted in state court of conduct that would also violate the relevant federal law; if there is no realistic probability that this is not the case, the goal of the inquiry is surely satisfied.

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The 9th Circuit held that in order to base an adverse credibility determination on a petitioner’s non responsiveness, an immigration judge must identify specific instances, supported by the record, where the petitioner did not respond. Although REAL ID Act omissions need not go to the heart of a claim to be considered when evaluating an applicant’s credibility, they must still be weighed in light of the totality of the circumstances and all relevant factors; a collateral omission that has no tendency to suggest an applicant fabricated his claim is insufficient to support an adverse credibility determination.

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The 9th Circuit held that perjury under California Penal Code §118(a) is an aggravated felony.

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The 9th Circuit held that the plain and unambiguous text of 8 C.F.R. §1003.2(c)(1) does not require a non-citizen seeking to reopen an earlier application for relief to attach a new application for relief to a motion to reopen.

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The 9th Circuit held that an alien who had not been lawfully admitted for permanent residence at the time of his mother’s naturalization did not qualify for derivative citizenship under former 8 U.S.C. §1432(a)(5)’s begins to reside permanently requirement.

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The 9th Circuit held that an alien’s ability to elude her pursuers at great effort and risk, while in hiding, did not establish that she would be able to avoid persecution or torture by relocating within her native Cameroon. A decision by the Board of Immigration Appeals requiring that a proposed social group have ocular visibility was inconsistent with board precedent; the alien did not waive her challenge to the board’s social distinction determination by redefining her proposed social group in her appeal.

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The 9th Circuit held that the federal generic definition of murder excludes the killing of an unborn fetus. The federal unborn child protection statute, 18 U.S.C. §1841, has no applicability or reach beyond its own provisions. California Penal Code §187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus.

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The 9th Circuit held that an alien’s conviction under California Penal Code §288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable. Because not all of §288.3(a)’s enumerated offenses involve moral turpitude, the panel explained that the statute is not categorically a crime involving moral turpitude, but the full range of conduct proscribed by §288.3(a) with a specific intent of violating §288 is a crime involving moral turpitude.

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The 9th Circuit held that an alien’s illegal presence in the country is not a crime; plaintiff’s right to be free from unlawful stops because of a suspicion of unauthorized presence has been established since at least 2012.

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The 9th Circuit held that the Board of Immigration Appeals erred in denying immigration relief to an alien who claimed she suffered frequent and severe abuse at the hands of her domestic partner in Nicaragua; substantial evidence did not support the Board’s determination that the Nicaraguan government was able and willing to protect her from persecution by her domestic partner, or that a public official acting under the color of law had not acquiesced to her torture, where the alien had reported her partner’s abuse to police, but the police took no action after her partner paid the officers a bribe; the Board erred by selectively considering country conditions evidence indicating that the Nicaraguan government was making positive strides in combating domestic violence and rape, while failing to take into account other evidence regarding the government’s failure to enforce, or lack of effective enforcement of, laws criminalizing rape and domestic violence.

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The 9th Circuit held that matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board of Immigration Appeals’ existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis; a particular social group must exist independently of the harm asserted.

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The 9th Circuit held that the language of 8 U.S.C. §1101(a)(43)(S), which describes an aggravated felony offense relating to obstruction of justice, is unambiguous in requiring a nexus to an ongoing or pending proceeding or investigation; California Penal Code §32, is not a categorical match with obstruction of justice under §1101(a)(43)(S) because the text of §32 and its practical application demonstrate that it encompasses interference with proceedings or investigations that are not pending or ongoing.

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The BIA held that (1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).

(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

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The California Court of Appeal, Second District, division Twoheld that Wende’s constitutional underpinnings do not apply to appeals from the denial of postconviction relief; counsel appointed in such appeals is required to independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are “no arguable issues to raise on appeal”; the defendant has a right to file a supplemental brief; and an appellate court has the duty to address any issues raised by the defendant but otherwise may dismiss the appeal without conducting an independent review of the record.

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The 9th Circuit held that a technical violation for purposes of 8 C.F.R. §245.1(d)(2)(ii) occurs only if the violation is a consequence of the U.S. Citizenship and Immigration Services’ inaction on a pending application; if the violation is caused by anything within the alien’s control, such as substantive ineligibility for an extension of lawful status, there is no technical violation; where an alien claims that a lapse in status was caused by USCIS’s inaction on an application to extend lawful status, a technical violation occurs only if the alien’s application to maintain lawful status is ultimately granted.

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  • Matter of REYES, 28 I&N Dec. 52 – filed July 30, 2020

The Attorney General of the U.S. decided that

(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA.

(2) The respondent’s conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud.

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The BIA held that Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.

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The 9th Circuit held that Oregon Revised Statutes §475.992(1)(a), which criminalizes manufacture or delivery of a controlled substance, is divisible as between its manufacture and delivery terms; a conviction under that statute is an aggravated felony; an alien’s §475.992(1)(a) conviction can qualify as a particularly serious crime barring withholding of removal.

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  • Robinson v. Lewis - filed July 20, 2020

When a California court denies a claim in a petition for writ of habeas corpus, and the petitioner subsequently files the same or a similar claim in a petition for writ of habeas corpus directed to the original jurisdiction of a higher court, a California court will not consider whether the petition was timely but rather whether the claims presented within the petition were timely; the court will not consider whether the gap delay, by itself, made the claims raised in the petition untimely, and no specific time limits exist for when a new petition for a writ of habeas corpus must be filed in a higher court after a lower court denies the petition.

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The Attorney General of the U.S. decided that:

(1) Under Department of Justice regulations implementing the Convention Against Torture, an act constitutes "torture" only if it is inflicted or approved by a public official or other person "acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). This official capacity requirement limits the scope of the Convention to actions performed "under color of law." Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). Nothing in Matter of Y-L-, or any other Board precedent, should be construed to endorse a distinct, "rogue official" standard.

(2) The "under color of law" standard draws no categorical distinction between the acts of low- and high-level officials. A public official, regardless of rank, acts "under color of law" when he "exercise[s] power ‘possessed by virtue of . . . law and made possible only because [he was] clothed with the authority of . . . law.’" West v. Atkins, 487 U.S. 42, 47 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

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The BIA held that under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory may be returned by the Department of Homeland Security to that country pursuant to the Migrant Protection Protocols, regardless of whether the alien arrives at or between a designated port of entry.

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  • Silva v. Barr - filed July 10, 2020

The 9th Circuit held that an alien’s conviction for petty theft under California Penal Code §484(a) is a crime involving moral turpitude.

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The director of the U.S. Department of Justice’s Executive Office for Immigration Review decided that an amicus curiae is not a party in recognition and accreditation proceedings and has no authority to seek further action following the conclusion of an administrative review under 8 C.F.R. § 1292.18.

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The 9th Circuit held that a petitioner seeking asylum and withholding of removal failed to establish that his proposed social groups comprised of Mexican professionals who refuse to cooperate with drug cartels and agronomists who refuse to help cultivate drugs are socially distinct where he presented no evidence that Mexican society views either proposed social groups as distinct, and the evidence indicated that almost anybody can be targeted by the drug cartels.

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The 9th Circuit held that the Board of Immigration Appeals erred by relying on national efforts to combat drug cartels in concluding that petitioner seeking relief under the Convention Against Torture had failed to establish the acquiescence of a public official; the petitioner’s testimony regarding multiple instances of acquiescence in the past involving her personal circumstances as a lesbian, and extensive country conditions evidence documenting the widespread problem of public official acquiescence in crimes by a specific drug cartel generally, established the requisite level of acquiescence by public officials; the petitioner could not safely relocate within Mexico to avoid future torture where there was no affirmative evidence that there is a general or specific area within Mexico where petitioner could safely relocate, and the evidence indicated that the cartel, and that homosexual individuals are at heightened risk, throughout much of Mexico.

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U.S. Supreme Court held that the limits on appellate review imposed by 8 U.S.C. §1252(e)(2) does not violate the Suspension Clause, as applied to an asylum-seeker asserting a fear of persecution in his native country; §1252(e)(2) does not violate the Due Process Clause as applied to an foreign national seeking initial entry.

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The BIA held that an alien who has conspired to enter into a marriage for the purpose of evading the immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under section 204(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)(2) (2018). For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.

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The Ninth Circuit held that California Penal Code §261.5(c) is not a categorical match to the general federal definition of sexual abuse of a minor. In evaluating the need to avoid unwarranted sentencing disparities under 18 U.S.C. §3553(a), a district court did not abuse its discretion by focusing on national parity rather than giving definitive weight to the defendant’s proffered regional data.

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The Ninth Circuit held that The Board of Immigration Appeals properly concluded that an asylum seeker’s proposed social group of wealthy landowners in Colombia is not cognizable because it lacks particularity and social distinction; to have the social distinction necessary to establish a particular social group, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group.

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U.S. Supreme Court held that the defense counsel’s failure to investigate abundant, readily available, compelling mitigating evidence established counsel’s deficient performance; the prejudice inquiry under Strickland is not limited to cases in which there was little or no mitigation evidence presented.

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The BIA held that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied based on an adverse credibility finding in the underlying proceedings, the respondent must either overcome the prior determination or show that the new claim is independent of the evidence that was found to be not credible.

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The Ninth Circuit held that a conviction for being under the influence of a controlled substance, in violation of California Health and Safety Code §11550(a), is divisible with respect to controlled substance such that the modified categorical approach applies to determining whether a conviction under the statute is a controlled-substance offense as defined by federal law.

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The California Court of Appeals, Second Appellate District, Division Six held that a defendant was entitled to pursue a motion to vacate her conviction, based on the 2019 version of California Penal Code §1473.7 and despite having had denied earlier her motion to her conviction that referenced the 2017 version of California Penal Code §1473.7, on the basis that, due to an error, she did not meaningfully understand that a mandatory consequence of her plea would make her permanently ineligible to ever become a legal resident of the United States.

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The Ninth Circuit held that a federal appellate court generally lacks jurisdiction to review a final order of removal against a non-citizen whose commission of a certain type of crime rendered her removable, but the court retains jurisdiction to review legal questions, including whether 8 U.S.C. §1252(a)(2)(C)’s jurisdictional bar applies. While §1432(a)(3) discriminates on the basis of gender, a petitioner lacked standing to challenge this provision where her paternity and maternity were both established during her youth. Because both fathers and mothers can legitimate a child after the child’s birth, legitimation is not inherently discriminatory.

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The Ninth Circuit held that although Congress conferred exclusively on the attorney general the authority to terminate asylum, the federal regulations specifically contemplate that an immigration judge may terminate asylum after notice is provided by the Department of Homeland Security; a judge erred in admitting, and relying upon, a record of investigation that purportedly confirmed that some of the asylum application materials were fraudulent where that ROI did not identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud.

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The Ninth Circuit held that an alien’s conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of California Vehicle Code §2800.4, is categorically a crime involving moral turpitude that made him removable.

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The U.S. Supreme Court affirmed that neither 8 U.S.C. 1252(a)(2)(C) nor 8 U.S.C. 1252(a)(2)(D) preclude judicial review of a noncitizen’s factual challenges to a Convention Against Torture order.

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The Office of the Director for the U.S. Department of Justice’s Executive Office for Immigration Review decided that: (1) The Assistant Director for Policy has the discretion to extend the deadline for a request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), but not for a request for reconsideration made pursuant to 8 C.F.R. § 1292.16(f) or § 1292.17(d). The 30-day deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e), § 1292.16(f), and § 1292.17(d) is otherwise mandatory and not subject to equitable tolling. (2) A request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d) must demonstrate an error of fact or law in the previous decision. (3) The standard of review for administrative reviews conducted under 8 C.F.R. § 1292.18 is de novo. (4) Unless overruled by subsequent precedent or superseded by statute, regulation, or binding federal court decision, prior precedent decisions of the Board of Immigration Appeals remain binding in recognition and accreditation proceedings after January 18, 2017, including consideration of requests for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f), or 1292.17(d) and administrative reviews conducted under 8 C.F.R. § 1292.18. (5) In addition to establishing the requirements for partial accreditation, an organization seeking full accreditation for an individual pursuant to 8 C.F.R. § 1292.12(a)(6) must establish that the individual possesses “skills essential for effective litigation.” Such skills include, at a minimum, “the ability to advocate a client's position at a hearing before an Immigration Judge by presenting documentary evidence and questioning witnesses, to present oral arguments before the Board, and to prepare motions and briefs for consideration by an Immigration Judge and/or [the] Board.” Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), followed.

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Ninth Circuit held that a BIA decision is reviewable under Bonilla v. Lynch where it is obvious that the agency has denied sua-sponte relief not as a matter of discretion but rather because it erroneously believed either that the law forbade it from exercising its discretion or that exercising its discretion would be futile. An appeals court generally lacks jurisdiction to review claims that the BIA should have exercised its sua-sponte power in a given case. Review of a settled-course claim is abuse of discretion, as it asks the court to evaluate the BIA’s exercise of its sua-sponte authority in a given case.

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The BIA decided that the absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

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The BIA held that a Notice to Appear lacking the time, date, and location of a petitioner’s initial removal hearing does not deprive the BIA of jurisdiction over removal proceedings under 8 C.F.R. §1003.14; 8 C.F.R. §1003.18(b) anticipates that when the address of the immigration court is not included in the NTA, the court can provide notice of that information at a later time in a subsequent Notice of Hearing.

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The Ninth Circuit denied that the government’s motion for a stay pending appeal of the district court’s preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System.

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The Ninth Circuit certified that the following questions of state law to the Arizona Supreme Court: 1. Is Arizona’s possession of drug paraphernalia statute, A.R.S. §13-3415,divisible as to drug type? 2. Is Arizona’s drug possession statute, A.R.S. §13-3408, divisible as to drug type? 3.Put another way, is jury unanimity (or concurrence) required as to which drug or drugs listed in A.R.S. §13-3401(6), (19), (20), or (23) was involved in an offense under either statute?

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The Ninth Circuit held that the Nevada law punishing the possession of visual presentation depicting sexual conduct of persons under 16 years of age applies to a broader range of conduct then 8 U.S.C. §1101(a)(43)(A) and therefore is not a sexual-abuse-of-a-minor aggravated felony.

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The U.S. Supreme Court affirmed that for purposes of cancellation-of-removal eligibility, an 8 U.S.C. §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal.

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The Ninth Circuit held that Solorio-Ruiz v. Sessions—which held that carjacking in violation of California Penal Code §215 is not a crime of violence because that statute requires only force in excess of that required to seize the vehicle—is no longer good law following the U.S. Supreme Court’s decision in Stokeling v. U.S; but carjacking under §215 is still not a crime of violence because §215 may be violated through fear of injury to property alone; §215 is not a categorical match to U.S.S.G. §4B1.2(a)(1) or §4B1.2(a)(2), and it is not divisible.

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The Ninth Circuit held that the language of 8 U.S.C. §1231(a)(5) unambiguously and permanently bars the reopening of a reinstated prior removal order; §1231(a)(5) provides that an alien forfeits the right to file a motion to reopen by reentering the country illegally; withholding of removal and protection under the Convention Against Torture are available in reinstatement proceedings, and some collateral attack on an underlying order during reinstatement proceedings may be available if the petitioner can show that he suffered a gross miscarriage of justice in the initial proceeding.

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The BIA decided that for purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.

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The Ninth Circuit ruled that the relevant foreign national’s emergency motion to remand pursuant to the All Writs Act as a petition for a writ of habeas corpus, and we transfer it to the Southern District of California.

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The Ninth Circuit held that although 8 U.S.C. §1231(a)(6) requires an individualized bond hearing before an immigration judge for an alien detained for six months or longer when the alien’s release or removal is not imminent, the statute does not require additional bond hearings every six months.

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The Ninth Circuit held that the 2011 panel decision in Diouf v. Napolitano—construing 8 U.S.C. §1231(a)(6) as requiring an individualized bond hearing before an immigration judge for an alien detained for six months or longer when the alien’s release or removal is not imminent—is not clearing irreconcilable with the U.S. Supreme Court’s decision in Jennings v. Rodriguez.

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The Ninth Circuit held that an applicant for adjustment of status cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part; 8 C.F.R. §1245.1(d)(2) is invalid to the extent it excludes reasonable reliance on the assistance of counsel from the circumstances covered by the statutory phrase other than through no fault of his own.

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The BIA decided that (1) The exceptional and extremely unusual hardship for cancellation of removal is based on a cumulative consideration of all hardship factors, but to the extent that a claim is based on the health of a qualifying relative, an applicant needs to establish that the relative has a serious medical condition and, if he or she is accompanying the applicant to the country of removal, that adequate medical care for the claimed condition is not reasonably available in that country. (2) The Immigration Judge properly determined that the respondent did not establish eligibility for cancellation of removal because he did not demonstrate that his qualifying relatives will experience hardship, including medical, economic, and emotional hardship, that rises to the level of exceptional and extremely unusual.

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The Ninth Circuit held that Immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint; once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

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The U.S. Supreme Court affirmed that a person who has unlawfully taken a vehicle in violation of Vehicle Code §10851 is not disqualified from Proposition 47 relief because the person cannot prove he intended to keep the vehicle away from the owner indefinitely.

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The BIA decided that the Immigration Judge properly determined that the respondent was a flight risk and denied his request for a custody redetermination where, although he had a pending application for asylum, he had no family, employment, or community ties and no probable path to obtain lawful status so as to warrant his release on bond.

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The Ninth Circuit held that an alien’s removal from the United States while his appeal was pending before the Board of Immigration Appeals did not withdraw his appeal under 8 C.F.R. §1003.4.

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The BIA decided that (1) An Interpol Red Notice may constitute reliable evidence that indicates the serious nonpolitical crime bar for asylum and withholding of removal applies to an alien. (2) The respondent’s violation of article 345 of the Salvadoran Penal Code, which proscribes participation in an illicit organization whose purpose is the commission of crimes, was “serious” within the meaning of the serious nonpolitical crime bar.

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The Ninth Circuit denied that the U.S. Departments of Homeland Security’s and Justice’s request for a stay, pending a final decision on appeal, of the U.S. District Court's order stopping them from enforcing its third-country-bar-to-asylum regulation against non-Mexican asylum seekers who were metered at the U.S. border before July 16, 2019.

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The U.S. Supreme Court affirmed that a defendant’s prior conviction for Colorado second-degree burglary of a dwelling was a conviction for a violent felony, and he was therefore properly subject to an enhancement under the Armed Career Criminal Act.

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The U.S. Supreme Court affirmed that Kansas statutes criminalizing the act of using another person’s Social Security number on federal and state tax-withholding forms are not expressly preempted by the Immigration Reform and Control Act; the state laws also do not fall into a field that is implicitly reserved exclusively for federal regulation, nor do they conflict with federal law.

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The Ninth Circuit held that The Board of Immigration Appeals erred by conducting a de novo review of a judge’s factual findings pertaining to a grant of deferral of removal under the Convention Against Torture, rather than reviewing them for clear error, as required by 8 C.F.R. §1003.1(d)(3)(i).

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California Supreme Court held that a felony conviction for misuse of personal identifying information under Penal Code §530.5(a) cannot be reduced to misdemeanor shoplifting under Proposition 47.

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The BIA decided that sexual solicitation of a minor in violation of section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense under section 3-307 is categorically a crime involving moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed.

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The Attorney General decided that (1) The Board of Immigration Appeals should consider de novo the application of law to the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute "torture" within the meaning of the Department of Justice regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). (2) To constitute "torture" under these regulations, an act must, among other things, "be specifically intended to inflict severe physical or mental pain or suffering." 8 C.F.R. § 1208.18(a)(5). "‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources." Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)). (3) To constitute "torture," an act must also be motivated by "such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind." 8 C.F.R. § 1208.18(a)(1).

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The U.S. Supreme Court affirmed that the rule of Bivens v. Six Unknown Federal Narcotics Agents does not extend to claims based on a cross-border shooting.

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The Ninth Circuit held that a spousal relationship must exist for a spouse at the time of the filing of the initial U-visa petition for the spouse to be eligible for derivative U-visa status.

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The BIA decided that (1) An alien’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal. (2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question. (3) The respondent’s proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence in the record.

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The California Court of Appeal Fourth Appellate District, Division Two decided that a border patrol agent had insufficient evidence to suspect a defendant was engaged in criminal activity where the defendant was driving in a known smuggling corridor in a vehicle which had crossed the United States-Mexico border the prior week; she slowed and changed lanes after he pulled alongside her in an unmarked car, rolled down his window, and stared at her; she drove at approximately 50 miles per hour to stay behind him; and she then refused to look at him when she ultimately passed him a few minutes later.

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The Ninth Circuit held that an alien’s felony conviction for Possession of Marijuana for Sale under California Health & Safety Code §11359 made her removable even though the conviction had been recalled and reclassified as a misdemeanor under California’s Proposition 64.

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The BIA decided that where the Department of Homeland Security returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing.

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The Ninth Circuit held that a robbery conviction under Oregon’s criminal code did not justify deportation because the offense is not a categorical theft offense and therefore not an aggravated felony.

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The Ninth Circuit held that The Board of Immigration Appeals could not consider a petitioner’s Convention Against Torture claim on remand where an appellate court had expressly disposed of that issue in the prior petition for review and remanded only for further consideration of the petitioner’s withholding claim. A petitioner’s proposed social group of Guatemalans who report criminal activity of gangs to police was not cognizable due to the lack of society-specific evidence of social distinction.

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The BIA decided that in assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.

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The Ninth Circuit held that a spousal relationship must exist at the time of filing of a U-visa petition for a spouse to be eligible for derivative U-visa status; immigration-fraud concerns and the underlying purposes of the different visa categories provide a rational basis for the different treatment of U-visa spouses as compared to other spouses.

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The Ninth Circuit held that The Board of Immigration Appeals can properly regard an aggravated assault with a deadly weapon or dangerous instrument as substantially more turpitudinous than a mere simple assault. Aggravated assault under Arizona Revised Statutes §§13-1203(A)(2) and 13-1204(A)(2) is a crime involving moral turpitude.

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The BIA decided that a notice to appear that does not include the address of the Immigration Court where the Department of Homeland Security will file the charging document, see 8 C.F.R. § 1003.15(b)(6) (2019), or include a certificate of service indicating the Immigration Court in which the charging document is filed, see 8 C.F.R. § 1003.14(a) (2019), does not deprive the Immigration Court of subject matter jurisdiction.

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The California Court of Appeal, Fourth District, Division Three held that a trial court asked to make special-immigrant-juvenile findings needs to first determine if the immigrant child was either declared a dependent of the court or placed under the custody of a court-appointed guardian, then determine whether the immigrant child cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis pursuant to California law, and lastly, decide whether it is not in the best interests of the child to be returned to her previous country; California superior courts must issue their findings on a Judicial Council form created for this purpose.

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The Ninth Circuit held that a B-2 nonimmigrant whose lawful status has lapsed is precluded from establishing lawful domicile in California by operation of federal law for purposes; therefore, such a B-2 nonimmigrant who’s overstayed in California is not required to pursue a divorce in California as opposed to her country of residence even if her spouse is lawfully domiciled in California.

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The BIA decided that the offense of making terroristic threats in violation of section 609.713, subdivision 1, of the Minnesota Statutes is categorically a crime involving moral turpitude.

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The Ninth Circuit held that a U.S. District Court did not abuse its discretion in allowing a defendant to withdraw her guilty plea to illegal reentry under 8 U.S.C. §1326 following the Ninth Circuit’s ruling in Lorenzo v. Sessions that the definition of methamphetamine applicable to convictions under §11378 is broader than the definition of methamphetamine under the federal Controlled Substances Act because that decision effectively invalidated her underlying removal.

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The Ninth Circuit held that an alien’s removal from the United States while his appeal was pending before the Board of Immigration Appeals did not withdraw his appeal under 8 C.F.R. §1003.4.

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The BIA decided that (1) An Immigration Judge may rely on inconsistencies to support an adverse credibility finding as long as either the Immigration Judge, the applicant, or the Department of Homeland Security has identified the discrepancies and the applicant has been given an opportunity to explain them during the hearing. (2) An Immigration Judge may, but is not required to, personally identify an obvious inconsistency where it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it.

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The California Court of Appeal held that although it is now established that an attorney’s failure to specifically advise a client about the immigration consequences of a plea can constitute ineffective assistance of counsel, a defendant with a conviction from 2002 is not entitled to the benefit of this development in Sixth-Amendment jurisprudence. Prevailing under Penal Code §1473.7 does not require a defendant to prove a violation of his constitutional rights, and only requires contemporaneous evidence demonstrating a reasonable probability that but for the alleged error that defendant would not have entered a guilty plea.

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The Ninth Circuit held that in making an adverse credibility determination, an immigration judge may not rely on an asylum officer’s subjective conclusions about a foreign-national applicant’s demeanor or veracity at an earlier interview; where a foreign-national applicant’s testimony was consistent with, but more detailed than, her asylum application, that foreign-national applicant’s testimony is not “per se” lacking in credibility.

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The BIA decided that (1) Torturous conduct committed by a public official who is acting “in an official capacity,” that is, “under color of law” is covered by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), but such conduct by an official who is not acting in an official capacity, also known as a “rogue official,” is not covered by the Convention. (2) The key consideration in determining if a public official was acting under color of law is whether he was able to engage in torturous conduct because of his government position or if he could have done so without a connection to the government.

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The Ninth Circuit held that five-year statute of limitations set out by 28 U.S.C. § 2462 does not apply to denaturalization proceedings.

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The California Court of Appeal, Fourth District, Division Two found that federal law does not conflict with the Immigration Consultant Act; there is a clear federal intent to allow the states to penalize federally unauthorized persons for providing representation in immigration matters.

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The Ninth Circuit held that a non-citizen who seeks a 8 U.S.C. §237(a)(1)(H) waiver is otherwise admissible even though he failed to return to his country of origin for at least two years, as required by 8 U.S.C. §1182(e).

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The Ninth Circuit held that frivolous asylum application bar in 8 U.S.C. §1158(d)(6) precludes an applicant from receiving all benefits under the Immigration and Nationality Act.

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The Ninth Circuit held that neither §701(a)(2) of the Administrative Procedure Act nor 8 U.S.C. §1252(a)(2)(B)(ii) bar a district court from reviewing an alien’s challenge to the denial of his U visa petition.

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The Ninth Circuit held that an alien’s conviction for first-degree unlawful imprisonment under Hawaii Revised Statutes §707-721(1) is categorically a crime involving moral turpitude that made him removable.

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The Ninth Circuit held that the language of 8 U.S.C. §1231(a)(5) unambiguously and permanently bars reopening a reinstated prior removal order; §1231(a)(5) also provides that an alien forfeits the right to file a motion to reopen by reentering the country illegally.

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The BIA decided that reopening of proceedings to terminate a grant of asylum is warranted if the Department of Homeland Security has demonstrated that evidence of fraud in the original proceeding was not previously available and is material because, if known, it would likely have opened up lines of inquiry that could call the alien’s eligibility for asylum into doubt.

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The BIA decided that (1) To qualify for a waiver of inadmissibility under section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2012), an alien who is found to be a violent or dangerous individual must establish extraordinary circumstances, which may be demonstrated by a showing of exceptional and extremely unusual hardship to the alien or to his qualifying relatives. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), followed. (2) Even if an alien establishes exceptional and extremely unusual hardship, the favorable and adverse factors presented must be balanced to determine if a waiver should be granted in the exercise of discretion.

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The Ninth Circuit held that absent any prejudice to the government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the Board of Immigration Appeals. The BIA abused its discretion in denying an alien’s appeal of an immigration judge’s denial of her motion to reopen, where the IJ in the underlying removal proceeding ordered the alien removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice.

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The Attorney General referred that (1) The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada will no longer govern the effect of state-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence. (2) Such state-court orders will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding; these orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.

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The Attorney General referred that (1) The Immigration and Nationality Act’s “good moral character” standard requires adherence to the generally accepted moral conventions of the community, and criminal activity is probative of non-adherence to those conventions. (2) Evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that an alien lacks good moral character under INA § 101(f), 8 U.S.C. § 1101(f). (3) Because only aliens who possessed good moral character for a 10-year period are eligible for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien’s application for that discretionary relief should be denied.

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The Ninth Circuit held that in removal proceedings commenced against a noncitizen after the non-citizen has already entered the country, an immigration judge lacks authority to grant the non-citizen a U-visa waiver of inadmissibility under 8 U.S.C. §1182(d)(3)(A)(ii). An alien’s conviction under California Health and Safety Code §11359 was a drug trafficking aggravated felony that made him inadmissible and ineligible for adjustment of status.

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The BIA decided that (1) The crime of dissuading a witness in violation of section 136.1(b)(1) of the California Penal Code is categorically an aggravated felony offense relating to obstruction of justice under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012). Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), followed. (2) The holding in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), may be applied retroactively.

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The BIA decided that (1) The offense of menacing in violation of section 163.190 of the Oregon Revised Statutes is categorically a crime involving moral turpitude. (2) The element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude where the State statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate. Matter of Solon, 24 I&N Dec. 239 (BIA 2007), distinguished.

The Ninth Circuit held that the government cannot establish by clear and convincing evidence a non-citizen’s continuous presence in the United States when the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade.

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The BIA decided that (1) Because the identity of the drug involved is an element of the crime of possession of a controlled substance under section 124.401(5) of the Iowa Code, the statute is divisible (in the case of marijuana, methamphetamine, or amphetamine) as to the specific drug involved, and the record of conviction can be examined under the modified categorical approach to determine whether that drug is a controlled substance under Federal law. (2) The respondent’s conviction for possession of methamphetamine in violation of section 124.401(5) of the Iowa Code is a violation of a law relating to a controlled substance under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012).

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The Ninth Circuit held that an Oregon third-degree robbery is not a violent felony under the Armed Career Criminal Act force clause because it doesn’t require physically violent force. First-degree robbery in violation of Oregon law is not a categorically violent offense.

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The Ninth Circuit held that when a minor over the age of 14 was never detained by immigration authorities, and he filed an affirmative application for asylum, the government did not have an obligation to provide notice of his deportation hearing to a responsible adult living with the minor.

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The Ninth Circuit held that derivative beneficiaries of an alien entrepreneur in the immigrant investor program who receive conditional legal permanent residence status have the right to seek review of the denial of an I-829 petition to remove the conditions on their permanent residence status; the plain language of 8 U.S.C. §1186b(c)(3)(D) unambiguously establishes that Congress did not intend to limit such review to the alien entrepreneur.

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The Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national-interest waiver related to an alien’s application for a work visa.

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The Ninth Circuit held that the three-factor test developed by the Board of Immigration Appeals for determining whether retaliation for opposition to official corruption or whistleblowing constitutes persecution on account of a political opinion corresponds to the federal precedent for whistleblowing cases and therefore is reasonable.

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The Ninth Circuit held that a defendant’s prior Nevada conviction for attempted battery with substantial bodily harm in violation of Nevada Revised Statutes §200.481(2)(b) and § 193.330 qualifies as a felony conviction for a crime of violence under U.S.S.G. §2K2.1.

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The Ninth Circuit held that an alien’s reliance on his lawyer’s erroneous advice that he was not required to update his fingerprints with the Department of Homeland Security before a hearing on his application for relief was reasonable and constituted good cause to grant a continuance.

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The BIA decided that (1) The standard of proof necessary to bar the approval of a visa petition based on marriage fraud under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012), is "substantial and probative evidence." (2) The degree of proof necessary to constitute "substantial and probative evidence" is more than a preponderance of evidence, but less than clear and convincing evidence; that is, the evidence has to be more than probably true that the marriage is fraudulent. (3) The nature, quality, quantity, and credibility of the evidence of marriage fraud contained in the record should be considered in its totality in determining if it is "substantial and probative."(4) The application of the "substantial and probative evidence" standard requires the examination of all of the relevant evidence and a determination as to whether such evidence, when viewed in its totality, establishes, with sufficient probability, that the marriage is fraudulent. (5) Both direct and circumstantial evidence may be considered in determining whether there is "substantial and probative evidence" of marriage fraud under section 204(c) of the Act, and circumstantial evidence alone may be sufficient to constitute "substantial and probative evidence."

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The Ninth Circuit held that pursuant to 8 U.S.C. §1228, which governs expedited removal proceedings for non-citizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, non-citizens have the privilege of being represented, at no expense to the government, by counsel.

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  • People v. Rodriguez - filed August 16, 2019

The California Court of Appeal’s Second Appellate District found that a trial court abused its discretion in finding a defendant did not act reasonably and diligently in failing to request relief under Penal Code §1473.7 before the statute was enacted; the defendant acted with reasonable diligence by filing his motion within a month after being advised he had the ability to file a §1473.7 petition, seven months after the statute took effect, while he was still being detained and his removal proceedings were ongoing. A court erred in ruling on a §1473.3 motion without a defendant’s waiver of his right to be present, or without counsel present.

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The Ninth Circuit held that a court order compelling the government to provide specific hygiene items and adequate sleeping accommodations to detained minors was an interpretation of an agreement pursuant to which the government agreed to provide safe and sanitary conditions for the minors, not a modification of the terms of the agreement. The creation, via an agreement, of a presumption in favor of releasing detained minors subject to expedited removal, is fully consistent with the Immigration and Nationality Act and related regulations.

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  • People v. Moses - filed August 14, 2019

The California Court of Appeal’s Second Appellate District, Division 3 found that the plain terms of Penal Code §236.1(c) include as a required element that the victim must be a person who is a minor at the time of commission of the offense; this distinguishes attempted human trafficking as defined by §236.1(c) from an ordinary criminal attempt defined in §21a.

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The Ninth Circuit held that a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under 8 U.S.C. §1182(a)(2)(A)(i)(I), even though that provision refers only to attempt and conspiracy to commit a crime involving moral turpitude, and not solicitation.

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The Ninth Circuit held that without assuming that issue preclusion applies in immigration adjustment of status proceedings, an issue was actually litigated only if it was raised, contested, and submitted for determination in a prior adjudication; when the question of whether an alien was inadmissible on terrorism-related grounds was not actually litigated in his asylum proceedings, issue preclusion did not apply to his adjustment of status proceedings.

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The Ninth Circuit held that an alien’s conviction under Oregon Revised Statute §163.187(1) for strangulation is categorically a crime of violence within the meaning of 18 U.S.C. §16(a). When a withholding applicant was sentenced to fewer than five years imprisonment for an aggravated felony conviction, the BIA may determine that the conviction qualifies as a particularly serious crime; the applicable legal standard is based on a list of factors the BIA set forth in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). Where the BIA denies relief on the merits, rather than based on a conviction, a court retains jurisdiction to review the merits.

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The Administrative Appeals Office held that for purposes of adjustment of status under section 245 of the Act, a recipient of Temporary Protected Status (TPS) is considered as being in and maintaining lawful status as a nonimmigrant only during the period that TPS is in effect; a grant of TPS does not cure or otherwise impact any previous unlawful status nor, outside the jurisdictions of the U.S. Courts of Appeals for the Ninth and Sixth Circuits, does it constitute an admission.

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  • People v. DeJesus - filed July 26, 2019

The California Court of Appeal’s Second Appellate District found that parolees are not eligible for relief pursuant to California Penal Code Sec. 1473.7.

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The BIA decided that immigration Judges have the authority to deny an application for temporary protected status in the exercise of discretion.

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The Ninth Circuit held that battery resulting in serious bodily injury, in violation of California Penal Code §243(d), qualifies as a crime of violence as defined in §4B1.2(a)(1) of the United States Sentencing Guidelines.

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The Ninth Circuit held that the crime of robbery under California Penal Code Sec. 211 robbery qualifies as a generic theft offense under 8 U.S.C. Sec. 1101(a)(43)(G), and thus is an aggravated felony under 8 U.S.C. Sec. 1227(a)(2)(A)(iii).

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The Ninth Circuit held that an alien who crosses into the country at a non-designated time or place is not guilty of a violation of 18 U.S.C. §1325(a)(2); to convict a defendant under §1325(a)(2), the government must prove that the alien’s criminal conduct occurred at a time and place designated for examination or inspection by immigration officers, such as a port of entry open for inspection.

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The Ninth Circuit held that Chevron deference applies to the Board of Immigration Appeals’ precedent establishing that 8 U.S.C. §1229b(b)(1)(C) does not require analysis under the categorical approach to determine whether an alien’s violation of a protection order renders him convicted of an offense under §1227(a)(2)(E)(ii).

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The Ninth Circuit held that a state conviction that cannot be determined to trigger removability as a result of its ambiguity, even after conducting the modified-categorical approach, cannot be a basis for rendering someone ineligible for relief from removal because of that same ambiguity.

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The Ninth Circuit held that a court has jurisdiction to review a legal determination by the Board of Immigration Appeals that an alien’s conviction was for an aggravated felony, and a denial of a motion to reopen to the extent the decision rested on a ground other than the conviction. To establish prejudice in the context of a motion to reopen based on ineffective assistance of counsel, it is not necessary for a petitioner to make out a prima facie case of eligibility for the ultimate relief sought—a petitioner need only show that counsel’s deficient performance may have affected the outcome of the proceedings by showing plausible grounds for relief. An alien convicted of an aggravated felony with a sentence of more than five years is statutorily ineligible for asylum and withholding of removal.

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The Ninth Circuit held that a Board of Immigration Appeals denial of a motion to reopen sua sponte generally is not reviewable because such decisions are committed to agency discretion; a court has jurisdiction to review BIA decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error. Citation of 10 unpublished decisions falls far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte.

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  • People v. Chen - filed June 28, 2019

The California Court of Appeal’s Second Appellate District found that a defendant asserting a claim for relief under Penal Code §1473.7 based on an attorney’s erroneous advisement need not prove the elements of a claim for ineffective assistance of counsel, the defendant need only show a reasonable probability of a different outcome in the original proceedings absent the error; an attorney did not fail to provide a defendant with the ability to meaningfully understand the consequences of her plea where the attorney told her of the risk of deportation if she pled guilty to a felony charge.

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The BIA decided that (1) Under the plain language of section 237(a)(3)(D)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(3)(D)(i) (2012), it is not necessary to show intent to establish that an alien is deportable for making a false representation of United States citizenship. (2) Although a Certificate of Naturalization (Form N-550) is evidence of United States citizenship, the certificate itself does not confer citizenship status if it is acquired unlawfully.

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California Court of Appeal, Fourth District, Div. Three held that to establish a prejudicial error under Penal Code §1473.7, a person need only show by a preponderance of the evidence: he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.

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U.S. Supreme Court held that the residual clause defining a crime of violence, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague; the imposition of criminal punishments cannot be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ordinary case.

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The Ninth Circuit held that an individual’s statements regarding his birthplace constituted evidence of alienage—not identity—and are suppressable. Law enforcement’s categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion.

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The Ninth Circuit held that although Congress’ two-year reprieve for immigrants residing in the Commonwealth of the Northern Mariana Islands protected immigrants from removability under 8 U.S.C. §1182(a)(6)(A)(i) on the basis that they had not been admitted or paroled into the United States, it did not exempt them from removal based on other grounds of removability. Residence in the commonwealth before U.S. immigration law became effective does not count toward the residence required for naturalization as a U.S. citizen.

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The BIA decided that if an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction, reaffirming Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014).

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U.S. Supreme Court held that generic remaining-in burglary occurs under 18 U.S.C. Sec. 924(e) when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. The intent to commit a crime must be contemporaneous with unlawful entry or remaining, but the defendant's intent is contemporaneous with the unlawful remaining so long as the defendant forms the intent at any time while unlawfully remaining. The Michigan home-invasion statute substantially corresponds to or is narrower than generic burglary.

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The Ninth Circuit held that robbery in the third degree in violation of Oregon Revised Statutes Sec. 164.395 is not categorically a crime involving moral turpitude because (a) it includes theft of a vehicle whether the intent to deprive the owner of such property permanently or temporarily, (b) the BIA’s more expansive standard relating to theft-related crimes involving moral turpitude does not apply retroactively, and (c) the minimal force require for conviction is insufficient to label the offense a crime involving moral turpitude.

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California Court of Appeal held that the plain language of Penal Code Sec. 1473.7(d) establishes that a moving party is entitled to a hearing. The hearing can be held without the moving party if counsel is present and the court finds good cause as to why the moving party cannot be present. If the moving party is indigent and cannot attend the hearing because he is in federal custody awaiting deportation, counsel should be appointed.

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The BIA held that an Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.

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The Ninth Circuit held that an asylum seeker was statutorily ineligible for asylum and withholding of removal where there were serious reasons to believe he committed a serious nonpolitical crime since he was involved in a financial scheme embezzling public funds and he admitted that his involvement in the scheme stemmed from purely economic reasons. Torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, including the death penalty.

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The Ninth Circuit held that The Board of Immigration Appeals does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained.

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The BIA held that pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.

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The BIA held that neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.

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The Ninth Circuit held that parole into the United States under 8 U.S.C. Sec. 1182(d)(5) is not an "admission in any status" for purposes of meeting the residency requirement for cancellation of removal.

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California Court of Appeal held that a petition for writ of mandate was not the proper vehicle for a defendant to seek to have his conviction vacated where he pled guilty before a magistrate judge, but the judge had become a superior court judge by the time judgment was pronounced. A superior court judge cannot mandate another superior court judge to vacate a judgment because the superior court judge who pronounced judgment is not an inferior tribunal.

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The Ninth Circuit held that robbery on a government reservation in violation of 18 U.S.C. Sec. 2111 is categorically a "crime of violence" under Sec. 924(c)(3)(A), even if done by "intimidation" alone.

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The Ninth Circuit held that Federal immigration law does not recognize a state's policy decision to expunge, recall or reclassify a valid state conviction. A conviction vacated for reasons unrelated to the merits of the criminal proceedings -such as equitable, rehabilitation, or immigration hardship reasons- may be used as a conviction in removal proceedings, whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.

The Ninth Circuit held that The Department of Homeland Security is entitled to a stay of a preliminary injunction barring it from implementing its Migrant Protection Protocols since DHS is likely to prevail on its contention that 8 U.S.C. Sec. 1225(b)(1) "applies" only to applicants for admission who are processed under its provisions. Under that reading of the statute, Sec. 1225(b)(1) does not apply to an applicant who is processed under Sec. 1225(b)(2)(A), even if that individual is rendered inadmissible by Sec. 1182(a)(6)(C) or (a)(7). The DHS is also likely to prevail on its claim that a preliminary injunction on the implementation of its MPP was inappropriate since the MPP qualifies as a general statement of policy and general statements of policy are exempted from the Administrative Procedure Act's notice-and-comment requirement.

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The Ninth Circuit held that California's timeliness rule for habeas petitions, although discretionary, met the firmly established criteria for a "firmly established and regularly followed" rule as of Jan. 6, 2000. A habeas petitioner established cause to excuse his default due to the confluence of several factors, including actions by his counsel that constituted abandonment, but the California Supreme Court's conclusory denial of his claims on their merits did not preclude a district court from conducting a prejudice inquiry.

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The Ninth Circuit held that under 8 C.F.R. Sec. 1240.11(a)(2), an immigration judge is required to inform a petitioner subject to removal proceedings of "apparent eligibility to apply for any of the benefits enumerated in this chapter," and the "apparent eligibility" standard is triggered whenever the facts before the IJ raise a reasonable possibility that the petitioner may be eligible for relief. "Special Immigrant Juvenile" status is a form of relief covered by the "apparent eligibility" standard of 8 C.F.R. SEC. 1240.11(a)(2).

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Idrees v. Barr - filed April 30, 2019

The Ninth Circuit held that the BIA’s decision not to certify a claim, and therefore to accept a procedurally improper appeal, is committed to agency discretion under 5 U.S.C. §701(a) and not subject to judicial review absent constitutional or legal error.

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California Court of Appeal’s Fourth Appellate District, Division One held that the Legislature wrote Penal Code Sec. 1473.7 with the intent that an order granting or denying a motion under that section would be appealable. In 2003, a criminal defense attorney did not have a general duty to discuss the immigration consequences of a guilty plea with a client.

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The Ninth Circuit held that the U.S. cannot preliminarily enjoin California AB 450's requirement that employers alert employees before federal immigration inspections since the notice requirement will neither burden the federal government nor conflict with federal activities. The U.S. cannot preliminarily enjoin California AB 103's inspection requirements on facilities that house civil immigration detainees since these are duplicate inspection requirements otherwise mandated under California law and are imposed on state and local detention facilities. The section of AB 103 that requires examination of the circumstances surrounding the apprehension and transfer of immigration detainees discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. The U.S. cannot preliminarily enjoin California SB 54's provision limiting the cooperation between state and local law enforcement and federal immigration authorities since any obstruction is consistent with California's prerogatives under the Tenth Amendment and the anti commandeering rule.

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The Attorney General of the U.S. decided that (1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled. (2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.

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The BIA held that under the plain language of section 101(a)(43)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(H) (2012), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony.

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The Ninth Circuit held that a felony conviction under California Penal Code Sec. 245(a)(1) is a crime of violence. The fact of a Sec. 245(a)(1) conviction establishes that the defendant was convicted of an offense punishable by more than one year in prison. A wobbler conviction is punishable as a felony, even if the court later exercises its discretion to reduce the offense to a misdemeanor.

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The Ninth Circuit held that when Coast Guard officers detain individuals in service of the Immigration & Nationality Act, they act as immigration agents subject to the same regulations as their counterparts in the immigration agencies. Evidence of alienage may be excluded for a regulatory violation where the agency violated one of its regulations. The subject regulation serves a "purpose of benefit to the alien" and the violation "prejudiced interests of the alien which were protected by the regulation." Coast Guard officers violated 8 C.F.R. Sec. 287.8(b)(2) by detaining an individual solely on the basis of his race. Sec. 287.8(b)(2) was intended to reflect constitutional restrictions on the ability of immigration officials to interrogate and detain persons in this country. Prejudice can be presumed when the regulation is violated since the regulation is mandated by the Constitution. The fruit-of-the-poisonous-tree doctrine does not extend backwards to taint evidence that existed before any official misconduct took place.

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The California Court of Appeal, Fourth District, Division Three held that when federal immigration law is clear that a conviction will result in deportation, a defense attorney renders deficient representation if he does not accurately advise his client of that consequence.

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The 9th Circuit held that a Mexican police officer seeking asylum did not establish past harm rising to the level of persecution, where he received two death threats from hitmen for drug cartel, to cooperate with them in transporting drugs to the Mexican border. While death threats can constitute persecution, they constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.

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The U.S. Supreme Court held that the class of people referenced in 8 U. S. C. Sec. 1226(c)(1) as the alien is fixed by the predicate offenses identified in subparagraphs (A)–(D).

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The California Court of Appeal, First District, Division Four held that under the provisions of Proposition 47, identity theft must be treated as misdemeanor petty theft if the value of the personal identifying information at issue does not exceed $950.

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The 9th Circuit held that a defendant's Washington state conviction for felony harassment qualifies as a crime of violence, as defined in U.S.S.G. Sec. 4B1.2. The conviction qualified as a crime of violence under Sec. 4B1.2(a)'s force clause because it necessarily entailed the threatened use of violent physical force. A defendant's Washington state conviction for second degree assault did not qualify as a crime of violence under the force clause of Sec. 4B1.2(a). It also did not qualify as a crime of violence under Sec. 4B1.2(a)'s residual clause because the offense, in the ordinary case, does not present a serious potential risk of physical injury to another, and it is not similar in kind to the crimes listed in the enumerated offenses clause.

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The 9th Circuit held that the Board of Immigration Appeals can consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime.

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The California Court of Appeal, Second District, Division Two held that the Expungement under Penal Code Sec. 1203.4 has no effect on the federal immigration consequences of a conviction for an aggravated felony. In immigration proceedings when a deportable conviction has been vacated by the state court, it nevertheless remains a deportable conviction if it was vacated solely for rehabilitative reasons or to allow the convicted person to remain in this country. If it was vacated for procedural or substantive infirmaries, it is no longer valid for immigration purposes. A defendant established that he lacked an understanding of the immigration consequences of his plea where his attorney admittedly incorrectly advised him on the potential immigration consequences and the effect of expungement or reductions of felonies in immigration cases.

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The 9th Circuit held that the BIA erred in denying asylum relief to an applicant without considering whether the conditions of her offer of resettlement in South Africa were too restricted for her to be firmly resettled. The BIA also erred in applying the firm-resettlement rule as a limitation on the evidence the board considered in support of the applicant's claim for relief from removal and in applying the rule to bar the applicant's withholding of removal claim.

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The 9th Circuit held that no circuit precedent has held that the text of 8 U.S.C. Sec. 1227(a)(2)(A)(ii) unambiguously foreclosed the BIA’s interpretation that an alien will be deportable when he commits an act, which, in and of itself, constitutes a complete, individual, and distinct crime, and then commits another such act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.

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The 9th Circuit held that the appellate courts are bound by the U.S. Supreme Court's determination that the phrase "crime involving moral turpitude" is not unconstitutionally vague. Recent case law did not reopen inquiry into the constitutionality of the phrase. An alien's Washington conviction for communicating with a minor for immoral purposes is a crime of moral turpitude.

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The 9th Circuit held that second-degree assault under Washington law is overbroad when compared to the generic definition of aggravated assault because only the former encompasses assault with intent to commit a felony. Washington's assault statute is indivisible. Washington second-degree assault does not qualify as a "crime of violence" under the enumerated clause of U.S.S.G. Sec. 4B1.2. Second-degree murder under Washington law is overbroad when compared to the generic definition of murder because only the former covers felony murder. Washington's second-degree murder statute is indivisible. Washington's second-degree murder is not a "crime of violence" under the enumerated clause of Sec. 4B1.2 or under the force/elements clause of Sec. 4B1.2(a)(2).

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The 9th Circuit held that immigration court jurisdiction is governed by federal immigration regulations which do not require that the charging document include the time and date of an alien's initial removal hearing.

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The 9th Circuit held that the plain language of 8 C.F.R. Sec. 1208.13(b)(3) does not require the government to propose a city, state, or other type of locality as the area of relocation, rather the Department of Homeland Security may properly propose a specific or a more general area as the place of safe relocation. The Board of Immigration Appeals must then conduct its safe relocation analysis with respect to that proposed area, however specifically or generally defined. In considering the reasonableness of an political asylum petitioner's relocation, the BIA must consider whether the petitioner would be substantially safer in a new location if he were to continue expressing his political opinion. It cannot assume the petitioner will silence his political activity to avoid harm.

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The 9th Circuit held that there is no duress exception to the material support terrorist bar in 8 U.S.C. Sec. 1182(a)(3)(B)(iv)(VI), nor a de minimis funds exception.

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The 9th Circuit held that when determining whether an offense is "punishable" by a certain term of imprisonment, courts must consider both a crime's statutory elements and sentencing factors. A defendant's offense was not punishable by more than one year in prison where the actual maximum term that the defendant could have received under state law was for less than a year.

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The 9th Circuit held that the crime of robbery under California Penal Code Sec. 211 robbery qualifies as a generic theft offense under 8 U.S.C. Sec. 1101(a)(43)(G), and thus is an aggravated felony under 8 U.S.C. Sec. 1227(a)(2)(A)(iii).

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The 9th Circuit held that assuming that unlawful aliens in this country hold some degree of rights under the Second Amendment, 8 USC Sec. 922(g)(5)(A) is still constitutional under intermediate scrutiny.

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The 9th Circuit held that a conviction for class one misdemeanor domestic violence assault under Arizona Revised Statutes 13-1203 and 13-3601 is a crime of domestic violence under 8 U.S.C. 1227(a)(2)(E) that renders a foreign national convicted of such offense removable. The statute is divisible and, under the modified categorical approach, there can be a sufficient factual basis to support that one intentionally or knowingly caused any physical injury to another person. Furthermore, the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes 3-3601(A), are coextensive with the domestic relationships described in section 1227(a)(2)(E)(i).

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The BIA held that (1) An alien makes a willful misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when he or she knows of or authorizes false statements in an application filed on the alien’s behalf.

(2) An alien’s signature on an immigration application establishes a strong presumption that he or she knows of and has assented to the contents of the application, but the alien can rebut the presumption by establishing fraud, deceit, or other wrongful acts by another person.

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The 9th Circuit held that the retroactivity analysis from Montgomery Ward & Co. v. FTC is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The U.S. Attorney General's decision in In re Silva-Trevino did not change the law establishing that felony endangerment under Arizona Revised Statutes Sec. 13-1201 is a crime involving moral turpitude.

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U.S Supreme Court held that the term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. Although the risk of violence is diminished if a vehicle is only used for lodging part of the time, there is no reason to believe that Congress intended to make a part-time/full-time distinction.

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The 9th Circuit held that the federal prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law, is unconstitutionally over broad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.

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The California Court of Appeal, Fifth District held that a sentence enhancement cannot be imposed under Penal Code Sec. 667.5(b) if the conviction on which it was based has been reclassified from a felony to a misdemeanor pursuant to Proposition 47 before sentencing. The "washout" provision of Sec. 667.5(b) disregards prison terms for convictions reduced under Proposition 47.

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The BIA held that an applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4) (2012).

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The 9th Circuit held that the void-for-vagueness doctrine does not apply to any grounds of inadmissibility, and the crime-involving-moral-turpitude statute, 8 U.S.C. Sec. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague.

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The California Court of Appeal, First District, Division Three held that a defendant may appeal denial of a factual-innocence motion pursuant to Penal Code Sc. 1237(b).

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The California Court of Appeal, Second District, Division Six held that a successful Proposition 47 petitioner may subsequently challenge any felony-based enhancement that is based on that previously designated felony, now reduced to a misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect. When part of a sentence is stricken on review, on remand for resentencing, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

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The 9th Circuit held that a habeas-corpus petitioner was entitled to equitable tolling between the date of the one-year Antiterrorism and Effective Death Penalty Act deadline for filing a federal habeas petition and the date he filed his amended federal petition, even if the claims asserted in the original and amended petitions do not share a common core of operative facts. A district court could not consider documentary evidence on the merits of a habeas-corpus petitioner's request for an evidentiary hearing on his claims that trial counsel rendered ineffective assistance during the guilt phase where he did not submit that evidence to the state courts in the manner required under state law. Nevada's “avoid lawful arrest” aggravating circumstance passes constitutional muster. Nevada's one-year deadline for the filing of petitions for post-conviction relief is an independent and adequate state procedural bar to federal review.

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The 9th Circuit held that the phrase "particularly serious crime," as used in 8 U.S.C. Sec. 1231(b)(3)(B), is not unconstitutionally vague on its face. Although the statute to some extent provides an uncertain standard to be applied to a wide range of fact-specific scenarios, the inquiry requires consideration of what a petitioner actually did.

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The 9th Circuit held that a violation of California Penal Code Sec. 288(c)(1) is not categorically a crime involving moral turpitude since the statute lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Sec. 288(c)(1) does not require intent to injure or actual injury, although it does involve a protected class of persons. Sec. 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach does not apply. Sec. 288(c)(1) is not categorically a crime of child abuse under 8 U.S.C. Sec. 1227(a)(2)(E)(1).

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The California Court of Appeal, Sixth District held that a defendant may raise a challenge to his sentence based on amendments to the Penal Code that took effect while his appeal was pending, despite his failure to obtain a certificate of probable cause in support of his appeal, since the changes in the law were implicitly incorporated into his plea agreement and he was not contesting the validity of his plea.

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The 9th Circuit held that a grant of regulatory employment authorization under 8 C.F.R. Sec. 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. Sec. 1255(k)(2).

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The BIA held that where the evidence regarding an application for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience "torture" in these settings is not clearly erroneous.

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The California Court of Appeal, Third District held that denial of a petition for reduction of offense pursuant to Health and Safety Code Sec. 11361.8(b) requires proof by the prosecution, by a preponderance of the evidence, of an unreasonable risk of danger to public safety.

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The BIA held that an Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.

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The BIA held that the amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an alien’s State offense from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2012), to a past conviction for a crime involving moral turpitude "for which a sentence of one year or longer may be imposed."

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The 9th Circuit held that a district court did not abuse its discretion in granting a preliminary injunction requiring the government to provide a prompt hearing before a neutral decisionmaker at which noncitizen minors could challenge the allegations of gang membership being advanced against them since the existing Office of Refugee Resettlement procedures appeared inadequate to protect against the risk of minors being erroneously taken away from their sponsors and Flores hearings were not sufficient to protect the Trafficking Victims Protection Reauthorization Act's rights of the minors. The injunction is consistent with the TVPRA's mandate that the ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child since the preliminary injunction calls for minors to be released back to their previous sponsors, whom the government has already determined to be suitable, and nothing in the order prohibits the government from transferring minors to ORR custody within 72 hours, as required by the TVPRA.

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The California Court of Appeal’s Fourth District, Division Two held that a defendant's Penal Code Sec. 1473.7 motion to vacate his conviction should have been granted when he established that his trial attorney had misadvised him about the immigration consequences of his guilty plea and that counsel's incorrect advice prejudiced defendant in that there is a reasonable probability that defendant would not have pled guilty if properly advised.

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The Fourth District, Division One held that a trial court may be found to have abused its discretion on the issue of ineffective assistance of counsel if its factual findings are not supported by substantial evidence or if it misinterprets or misapplies the applicable legal standard. Prior to the U.S. Supreme Court's 2010 decision in Padilla v. Kentucky, an attorney's failure to inform a defendant of the immigration ramifications of guilty or no contest pleas could not support a claim of ineffective assistance of counsel because such a failure did not fall below a general standard of reasonableness.

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The 9th Circuit held that a when Coast Guard officers detain individuals in service of the Immigration & Nationality Act, they act as immigration agents subject to the same regulations as their counterparts in the immigration agencies. Evidence of alienage may be excluded for a regulatory violation where the agency violated one of its regulations. The subject regulation serves a "purpose of benefit to the alien" and the violation "prejudiced interests of the alien which were protected by the regulation." Coast Guard officers violated 8 C.F.R. Sec. 287.8(b)(2) by detaining an individual solely on the basis of his race. Sec. 287.8(b)(2) was intended to reflect constitutional restrictions on the ability of immigration officials to interrogate and detain persons in this country. Prejudice can be presumed when the regulation is violated since the regulation is mandated by the Constitution. The fruit-of-the-poisonous-tree doctrine does not extend backwards to taint evidence that existed before any official misconduct took place.

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The Attorney General held that (1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority to terminate or dismiss removal proceedings. (2) Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. § 1240.12(c). (3) An immigration judge’s general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does not provide any additional authority to terminate or dismiss removal proceedings beyond those authorities expressly set out in the relevant regulations. (4) To avoid confusion, immigration judges and the Board should recognize and maintain the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under 8 C.F.R. § 1239.2(f).

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The First District, Division One held that Penal Code Sec. 1473.7 is not applicable to a person under probation at the time the motion is presented. A revocation of probation does not encompass the admonitions required in a guilty plea. There is no authority that requires a trial court in a probation hearing to remind a person again of the immigration consequences in a revocation proceeding; there is also no authority for the idea that an attorney's failure to discuss immigration consequences with a defendant previously advised falls below professional standards.

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The 9th Circuit held that an asylum officer did not deprive an alien of due process by providing him a Spanish-language interpreter rather than an interpreter in his native language where the alien advised the asylum officer that he understood "a lot" of Spanish, did not indicate that he had problems understanding the interpreter, stated that the asylum officer's summary of his testimony was correct, and had an opportunity to correct any errors or submit additional evidence on review before the immigration judge. Reasonable fear review proceedings are expedited and not full evidentiary hearings, and immigration judges are not required to provide detailed decisions outlining all the claims raised by the alien. An immigration judge has sua sponte jurisdiction to reopen proceedings.

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The 9th Circuit held that an alien who is charged with unlawful re-entry in violation of 8 U.S.C. Sec. 1326 can collaterally attack the validity of a prior removal that serves as a predicate element for the conviction. A person is exempt from the exhaustion requirements and will have adequately shown deprivation of judicial review, if the immigration judge, in the prior removal proceeding, does not inform the alien of the right to appeal. A defendant whose prior removal proceeding was conducted in absentia satisfies the exhaustion and deprivation of judicial review requirements and that removal cannot properly serve as a predicate for a conviction for illegal re-entry. California battery was not a categorical crime of violence in 2008, so a judge erred in 2008 in removing a defendant for a crime of domestic violence under Immigration and Nationality Act Sec. 237(a)(2)(E)(i) based on his California battery conviction. An alien who has been removed through expedited removal proceedings automatically satisfies the requirements for exhaustion and deprivation of judicial review. A person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he had no meaningful opportunity to contest. Lawful permanent residents cannot be removed on an expedited basis.

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The 9th Circuit held that Washington's accomplice liability statute renders its drug trafficking law broader than generic federal drug trafficking laws under the Armed Career Criminal Act (“ACCA”), and Washington's drug trafficking law is thus not categorically a "serious drug offense" under the ACCA.

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The 9th Circuit held that an alien's Nevada conviction for conspiracy to possess certain drugs is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite "overt act" element. The categorical approach may not be used to determine the removability of the alien. Nevada Revised Statutes Sec. 199.480 is indivisible so the modified categorical approach cannot be applied to it. Nevada Revised Statutes Sec. 454.351 is categorically overbroad relative to the substances controlled under 21 U.S.C. Sec. 802. The statute is also indivisible.

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The BIA held that (1) An “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012), encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012), clarified. (2) A conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice under section 101(a)(43)(S) of the Act.

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The 9th Circuit held that robbery in violation of California Penal Code Sec. 211 is no longer a "crime of violence" under 18 U.S.C. Sec. 16. This change in the law governing the crime-of-violence analysis provided a defendant with a plausible ground for dismissal of an indictment for illegally reentering the United States after having been deported and after having been convicted of an "aggravated felony."

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The California Court of Appeal, Fifth Appellate District held that A de novo standard of review applies in assessing the trial court's denial of a defendant's Penal Code Sec. 1473.7 motion, the defense counsel's performance was not deficient where the evidence supported a finding that counsel had accurately advised the defendant about the specific consequences a no contest plea would have on his legal resident status.

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The BIA held that a notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.

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The 9th Circuit held that an alien suffered past persecution in his native country where he was subjected to threats, home invasions, beatings, and the murder of relatives and neighbors by a group of guerillas. Since the guerrillas were motivated, at least in part, by his family's government and military Service, the harm suffered by the alien bore a nexus to a protected ground. Significantly or materially outdated country reports cannot suffice to rebut a presumption of future persecution. For purposes of evaluating an application for Convention Against Torture relief, the "government acquiescence" standard does not require actual knowledge or willful acceptance of torture-awareness and willful blindness will suffice. The acquiescence standard is met where the record demonstrates that public officials at any level would acquiesce in the torture the petitioner is likely to suffer. Evidence showing widespread corruption of public officials can be highly probative on this point.

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The BIA held that (1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. (2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. (3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

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The 9th Circuit held that an alien's convictions for indecent exposure under Washington Revised Code Sec. 9A.88.010(1) and Sec. 9A.88.010(2)(b) are not categorically crimes involving moral turpitude. Both statutes are indivisible such that the modified categorical approach is inapplicable.

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The 9th Circuit held that pursuant to Sentencing Guidelines Amendment 798, robbery under California Penal Code Sec. 211 is not a "crime of violence" because it is no longer a categorical match to a combination of Guidelines-described robbery and extortion. Amendment 798's alteration of the definition of extortion in the Guidelines' "crime of violence" section is not retroactive. Absent vagueness rising to the level of a constitutional violation, there is no rule of law that would allow a federal appellate court to strike down a Guidelines section because it is ambiguous.

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The 9th Circuit held that a lawful permanent resident's admitted use of cocaine did not trigger the stop-time rule for cancellation of removal because lawful permanent residents are not subject to the grounds of inadmissibility.

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The 9th Circuit held that an alien's conviction for possession for sale of cocaine salt in violation of California Health & Safety Code Sec. 11351 qualifies as an aggravated felony. That conviction remains a valid ground of deportation despite its expungement. An alien was ineligible for relief under Immigration and Nationality Act Sec. 212(c) because he was convicted of an aggravated felony after the effective date of Sec. 440(d) of the Antiterrorism and Effective Death Penalty Act. An alien's fear that he would be perceived as having money as a returnee from the United States did not establish that any harm to him upon his return to Mexico would rise to the level of torture.

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The 9th Circuit held that assault with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury under California Penal Code Sec. 245(a)(1), as it was written prior to its amendment in 2011, categorically qualifies as a conviction for a "crime of violence" within the meaning of 18 U.S.C. Sec. 16(a). A violation of Sec. 245(a)(1) requires an intentional use of force. An immigration judge's failure to inform a defendant of his eligibility for discretionary relief from removal at the time of his deportation did not render the defendant's removal invalid if it was not plausible that he would have been granted such relief.

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The 9th Circuit held that battery committed with the use of a deadly weapon under Nevada Revised Statute Sec. 200.481(2)(e)(1) is categorically a crime of violence as defined in 18 U.S.C. Sec. 16(a).

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The 9th Circuit held that an alien adopted by a U.S. Citizen had standing to assert a constitutional challenge to 8 U.S.C. Sec. 1433--which requires citizen-parents of foreign-born, adopted children to petition for naturalization of their children, while exempting biological parents and adoptive parents who naturalized after adoption--on behalf of his adoptive mother. Because a legitimate governmental interest is rationally related to Sec. 1433's requirement that citizen-parents petition to naturalize their adopted, foreign-born children, Sec. 1433 does not violate the Fifth Amendment's Equal Protection Clause. An alien's conviction for third-degree escape under Arizona Revised Statutes Sec. 13-2502 is not a crime of violence because it does not necessarily involve the "physical force" required by the generic federal definition of "crime of violence" under 18 U.S.C. Sec. 16.

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The California Supreme Court held that a child's nonresident, noncustodial parent does not need to be joined as a party in her parentage action seeking special immigrant juvenile findings. So long as the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.

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The Attorney General of the U.S. decided that:

(1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29;

(2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all;

(3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009);

(4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings; and

(5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

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The 9th Circuit held that an alien's conviction for witness tampering under Oregon Revised Statutes Sec. 162.285 is not categorically a crime involving moral turpitude because the statute captures conduct that is neither fraudulent nor base, vile, or depraved. The Oregon statute is divisible because its subsections criminalize different conduct and require different elements for conviction, but an alien's conviction under Sec. 162.285(b)–for knowingly inducing or attempting to induce a witness to be absent from any official proceeding to which the person has been legally summoned–is not a categorical match for a crime involving moral turpitude.

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The 9th Circuit held that a Department of Homeland Security determination of a Visa Waiver Program entrant's removability constitutes an "order of removal." Asylum-only proceedings behave like a stay of enforcement of a removal order, and the denial of an asylum application in asylum-only proceedings "finalizes" DHS's removal order of a VWP entrant because the VWP entrant is entitled to no other forms of relief.

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The 9th Circuit held that the generic crime of child abuse includes acts and omissions that create at least a "reasonable probability" that a child will be harmed. An alien's conviction for "Child Abuse and Neglect" under Nevada Revised Statutes Sec. 200.508(2)(b)(1) is broader than the generic definition because it includes conduct that creates a "reasonable foreseeability" of harm to a child, while the generic crime requires a "reasonable probability" of harm.

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The BIA held that the categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.

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The 9th Circuit held that an inmate made the necessary showing to file a successive habeas corpus petition asserting that California's second-degree felony-murder rule is unconstitutionally vague since the U.S. Supreme Court's decision in Johnson v. U.S. came out after he filed his first petition, and Johnson announced a new rule of constitutional law retroactively applicable to cases on collateral review. A successive habeas corpus petition "relies on" a qualifying new rule of constitutional law for purposes of 28 U.S.C. Sec. 2244(b) so long as the rule substantiates the petitioner's claim, even if the rule does not conclusively decide the claim, or if the rule would need a non-frivolous extension for the petitioner to get relief.

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The BIA held that (1) The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006) is categorically a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), reaffirmed. (2) An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), for having “been convicted of an offense under” section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), irrespective of both the general “admission” requirement in section 237(a) and the temporal (within 5 years of admission) requirement in section 237(a)(2)(A)(i)(I). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), reaffirmed.

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The 9th Circuit held that an alien who is charged with unlawful re-entry in violation of 8 U.S.C. Sec. 1326 can collaterally attack the validity of a prior removal that serves as a predicate element for the conviction. A person is exempt from the exhaustion requirements and will have adequately shown deprivation of judicial review, if the immigration judge, in the prior removal proceeding, does not inform the alien of the right to appeal. A defendant whose prior removal proceeding was conducted in absentia satisfies the exhaustion and deprivation of judicial review requirements and that removal cannot properly serve as a predicate for a conviction for illegal re-entry. California battery was not a categorical crime of violence in 2008 , so a judge erred in 2008 in removing a defendant for a crime of domestic violence under Immigration and Nationality Act Sec. 237(a)(2)(E)(i) based on his California battery conviction. An alien who has been removed through expedited removal proceedings automatically satisfies the requirements for exhaustion and deprivation of judicial review. A person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he had no meaningful opportunity to contest. Lawful permanent residents cannot be removed on an expedited basis.

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The 9th Circuit held that a petitioner established past persecution where he presented evidence he had suffered physical mistreatment by the police and that he was forbidden from practicing his religion through coercive means.

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The 9th Circuit held that a violation of 18 U.S.C. Sec. 1591(a) and Sec. 1591(b)(1) requires that a defendant use force, threats of force, fraud, coercion, or any combination of such means, to commit sex trafficking. The jury does not need to be unanimous as to the specific means, or combination of means, used.

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The 9th Circuit held that while the exclusionary rule does not ordinarily apply to administrative proceedings, administrative tribunals are still required to exclude evidence that was obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should know is in violation of the Constitution. Raids that result from law enforcement affidavits containing material and reckless inaccuracies constitute a Fourth Amendment violation, and a reasonable officer should have known the conduct was unconstitutional. Where the law enforcement agency conducting an unlawful search both has a policy of sharing information with another law enforcement agency and shares the information for the purpose of spurring the second agency to initiate an investigation and enforcement action, the latter enforcement action falls within the initial agency's zone of primary interest.

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The 9th Circuit held that the doctrine of consular non-reviewability addresses the scope of review rather than the federal courts' power to hear a case. The Administrative Procedure Act provides no avenue for review of a consular officer's adjudication of a visa on the merits. A court can only review a consular officer's denial of a visa for constitutional error, where the visa application is denied without a "facially legitimate and bona fide reason."

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The California Court of Appeal, First Appellate District, Division Two held that Penal Code Sec. 1473.7(a)(1) authorizes a noncitizen convicted of a crime upon pleading no contest who is now free from custody to prosecute a motion to vacate that conviction for ineffective assistance of counsel when the conviction has caused unforeseen actual or potential adverse immigration consequences, without limitation.

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The California Court of Appeal, Second District, Division Six held that a defendant failed to prove that his attorney provided him with ineffective representation by failing to investigate an immigration-neutral alternative disposition in plea bargaining where he could not identify any immigration-neutral disposition to which the prosecutor was reasonably likely to agree.

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The 9th Circuit held that for the Board of Immigration Appeals to retain jurisdiction when remanding to an immigration judge, the BIA must expressly retain jurisdiction and qualify or limit the scope of remand. If the BIA fails to do either of these things, the scope of the remand is general and the IJ may reconsider any of his prior decisions.

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The U.S. Supreme Court held that a putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a “notice to appear under 8 U.S.C. Sec. 1229(a),” and so does not trigger the stop-time rule.

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The California Court of Appeal, Fourth District, Division One held that a person who has been convicted of grand theft is eligible for resentencing pursuant to Proposition 47 if the value of the property taken was $950 or less. A defendant is entitled to file a new petition for resentencing where his original petition was filed before the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code Sec. 10851 conviction were clearly established. The changes made by Proposition 47 do not apply to crimes based on the receipt of stolen property.

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The 9th Circuit held that a Board of Immigration Appeals decision–which created a blanket rule prohibiting the consideration of a petitioner's mental health in making a determination of whether he had committed a particularly serious crime–was contrary to Congress's clearly expressed intent that the particularly serious crime determination, in cases where a conviction falls outside the only statutorily enumerated per se category of particularly serious crimes, requires a case-by-case analysis. The BIA's two rationales for its broad rule–that the Agency could not reassess a criminal court's findings and that mental health is never relevant to the particularly serious crime determination–are unpersuasive and are inconsistent with the law of this circuit and the BIA's own decisions.

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The 9th Circuit held that an alien's conviction to a Washington charge of “Assault of a Child in the Third Degree–Criminal Negligence and Substantial Pain–With Sexual Motivation” is a categorical match for sexual abuse of a minor, an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(A).

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The 9th Circuit held that a conviction for assault with a deadly weapon under Nevada Revised Statutes Sec. 200.471 categorically qualifies as a crime of violence under the elements clause of U.S.S.G. Sec. 4B1.2(a) because the statute requires proof that the defendant placed the victim in fear of bodily harm and thus necessarily entails the use or threatened use of violent physical force against the person of another. Robbery under Nevada Revised Statutes Sec. 200.380 is not a categorical crime of violence under the elements clause, nor a categorical match for "generic robbery" under the enumerated offenses clause, because the offense can be accomplished by instilling fear of injury to property alone, robbery under Sec. 200.380 likewise does not qualify as "extortion" under the enumerated offenses clause, whose Aug. 1, 2016, amendment narrowed the definition by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. Coercion under Nevada Revised Statutes Sec. 207.190 does not qualify as a crime of violence because it is not one of the offenses listed in the enumerated offenses clause. The felony version of the offense is not a categorical match under the elements clause, since it does not have as an element the use, attempted use, or threatened use of violent physical force against the person of another.

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The BIA held that (1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

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The 9th Circuit held that an alien's testimony was not sufficiently persuasive to demonstrate eligibility for asylum relief based on his wife's alleged abortion and sterilization where he admittedly was not present for the procedures and he provided no evidence to corroborate his claims. When a judge gives notice that an asylum-seeker's testimony will not be sufficient and gives the alien adequate time to gather corroborating evidence, and the alien then provides no meaningful corroboration or an explanation for its absence, the judge may deny the application for asylum.

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The BIA held that (1) The term "prostitution" in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

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  • People v. Ogunmowo - filed May 9, 2018

The California Court of Appeal’s Second Appellate District held that a de-novo standard of review applies to a trial court’s decision to deny a foreign-national defendant’s motion to vacate his conviction pursuant to California Penal Code Sec. 1473.7 because of the prejudicial ineffective assistance of his former attorney. The Court of Appeal held that the foreign-national defendant was prejudiced by counsel’s deficient performance because he was misadvised about the immigration consequences of his guilty plea, which resulted in his automatic deportation, even though he had clearly stated in his declarations that he wanted to avoid deportation at all costs.

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The Ninth Circuit held that a foreign national’s mere inability to recall some events, without evidence of an inability to understand the nature and object of the proceedings, is insufficient to show mental incompetency. Citing the standards set by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), the Ninth Circuit held that in order to demonstrate mental incompetency to participate in immigration proceedings a foreign national must show: (1) some inability to comprehend or to assist and to participate in the proceedings; (2) some inability to consult with or to assist her/his counsel, or representative if pro se; and (3) lack of a reasonable opportunity to present evidence and to examine witnesses, including the cross-examination of opposing witnesses.

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The Ninth Circuit held that, while a foreign national placed in reinstatement proceedings under 8 U.S.C. Sec. 1231(a)(5) generally cannot challenge the validity of her prior removal order in the reinstatement proceedings itself, s/he retains the right, conferred by 8 U.S.C. Sec. 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered in absentia, based on lack of notice, by filing a motion to reopen at any time.

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The Ninth Circuit held that, to be eligible for cancellation of removal under the Nicaraguan Adjustment and Central American Act, ten years must have elapsed since the foreign national committed any disqualifying act.

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The BIA held that the Department of Homeland Security has the authority to file a motion to reconsider in Immigration Court and that a foreign national who is in withholding-of-removal-only proceedings and who is subject to a reinstated order of removal pursuant to Section 241(a)(5) of the Immigration and Nationality Act is ineligible for asylum.

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The BIA held that the offense of stalking in violation of California Penal Code Section 646.9 is not a “crime of stalking” under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act, overruling its prior decision in Matter of Sanchez-Lopez, 26 I. & N. Dec. 71 (BIA 2012).

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The U.S. Supreme Court affirmed the Ninth Circuit’s holding that the statutory definition of a “crime of violence” under 18 U.S.C. Sec. 16(b) as incorporated in the Immigration and Nationality Act is unconstitutionally vague.

The Ninth Circuit held that a foreign national’s Oregon theft convictions were not crimes involving moral turpitude because theft, under Oregon law, does not require a literally-permanent taking of property. The Ninth Circuit held that the BIA’s recent decision in In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), in which the BIA changed the law to recognize theft offenses as crimes involving moral turpitude even if they did not involve a permanent intent to deprive, does not apply retroactively in this matter because the balance of retroactivity factors weighed heavily in the foreign national’s favor.

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The BIA held that its previous holding in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), regarding the validity of vacated convictions for immigration purposes, is reaffirmed and modified the decision to give it nationwide application, declining to follow Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002). If a court vacates a foreign national’s conviction based on a procedural or substantive defect, rather than for reasons solely related to rehabilitation or immigration hardships, the BIA will consider the conviction eliminated for immigration purposes on a nationwide basis, including in cases arising in the Fifth Circuit.

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The Ninth Circuit held that the BIA decision in Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014) – which created a blanket rule prohibiting the consideration of a petitioner’s mental health in making a determination of whether he had committed a particularly serious crime – was contrary to Congress’s clearly expressed intent that the particularly-serious-crime determination, in cases where a conviction falls outside the only statutorily enumerated per-se category of particularly serious crimes, requires a case-by-case analysis. The Ninth Circuit held that the BIA’s two rationales for its broad rule – (1) that the agency could not reassess a criminal court’s findings, and (2) that mental health is never relevant to the particularly-serious-crime determination – are unpersuasive and inconsistent with the law of the Ninth Circuit and the BIA’s own decisions.

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Matter of Cervantes Nunez - filed March 15, 2018

The BIA held that the crime of attempted voluntary manslaughter in violation of California Penal Code Sections 192(a) and 664, a crime which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated-felony crime of violence under Section 101(a)(43)(F) of the Immigration and Nationality Act, notwithstanding that the complete offense of voluntary manslaughter itself is not such an aggravated felony.

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The BIA held that in deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated-felony drug-trafficking crime under Section 101(a)(43)(B) of the Immigration and Nationality Act, adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction. The BIA further held that the foreign national’s conviction under New Jersey Statutes Section 2C:35-7 for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated-felony drug-trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. Sec. 841(a)(1)(2012) and would be punishable as a felony under that provision.

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The Ninth Circuit held that, where an immigration judge or the BIA has not made an explicit finding of adverse credibility, the foreign-national applicant or witness shall have the rebuttable presumption of credibility “on appeal” – meaning, the presumption is rebuttable only in appeals to the BIA, not in petitions for judicial review. The Ninth Circuit further held that, in the absence of an explicit adverse-credibility determination, it is required to accept the foreign national’s testimony as true.

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The Attorney General referred the BIA’s decision in Matter of E-F-H-L-, 26 I. & N. Dec. 319 (BIA 2014), to himself for review and vacated that decision. The BIA, after granting the foreign national’s appeal from denial of his application for asylum and for withholding of removal without an evidentiary hearing, remanded the matter to the immigration court, holding that the foreign national was entitled to a full evidentiary hearing. Based on the parties’ joint motion, the immigration judge on remand administratively closed the removal proceedings to allow the adjudication of a Form I-130, Petition for Alien Relative, which had been filed on behalf of the foreign national. Subsequently, the foreign national withdrew his application for asylum and for withholding of removal with prejudice. Because of this withdrawal of that application with prejudice, the Attorney General concluded that the BIA’s decision was effectively mooted, vacated the decision, and directed the immigration court to recalendar and to restore the matter to its active docket.

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The Ninth Circuit affirmed the U.S. District Court’s dismissal for failure to state a claim of the foreign national’s petition challenging the denial of his naturalization application, holding that his conviction for nonconsensual sodomy in violation of California Penal Code Section 286(i) is an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(A) because the conduct falls entirely within the generic definition of “rape” as articulated in Castro-Baez v. Reno, 217 F.3d 1057 (9th 2000).

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The U.S. Supreme Court reversed the Ninth Circuit and held that, pursuant to the immigration provisions 8 U.S.C. Sec. 1225(b), 1226(a), and 1226(c), foreign nationals do not have the right to periodic bond hearings during the course of their detention. The Supreme Court held that the Ninth Circuit adopted implausible statutory constructions of the three provisions and remanded with instructions for the Ninth Circuit instead to consider the merits of the constitutional arguments in the proceedings.

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The BIA held that the crime of misprision (concealment) of felony in violation of 18 U.S.C. Sec. 4 (2006) is categorically a crime involving moral turpitude in jurisdictions outside of the Ninth Circuit. This decision does not apply in the jurisdiction of the Ninth Circuit because of its opposite holding in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) that misprision of felony is not categorically a crime involving moral turpitude.

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The BIA held that an immigration judge, when deciding whether to consider a border or airport interview in making a foreign national's credibility determination, should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.

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The Ninth Circuit held that a foreign national was entitled to asylum relief for persecution based on the political opinion imputed to him by the Chinese government for his having organized a protest of the government's eminent domain policy requiring the forced relocation of millions of citizens, which the U.S. Department of State has recognized as a source of widespread animosity. In the amended opinion, the Ninth Circuit remanded for consideration of whether the foreign national has met the other elements of asylum relief before the BIA exercises discretion whether to grant asylum.

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The Ninth Circuit held that reinstated removal orders are administratively final for detention purposes even for foreign nationals in withholding-only proceedings and that detention of foreign nationals subject to reinstated removal orders is governed by 8 U.S.C. Sec. 1231(a), which does not authorize bond hearings.

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The Ninth Circuit held that, following Matter of Avetisyan, 25 I. & N. Dec. 688 (2012), it now has jurisdiction to review the BIA's decisions on whether to grant administrative closure - a decision to continue a matter by taking it off an immigration judge's or the BIA's docket - because the list of non-exhaustive factors set forth in Avetisyan provides a sufficiently meaningful standard against which to review the appropriateness of such decisions. Prior to Avetisyan, the Ninth Circuit had held that it lacked jurisdiction over denials of administrative closure.

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The Ninth Circuit held that when Congress passed the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927, it intended the "age of the [foreign national] on the date of the parent's naturalization," as defined in 8 U.S.C. Sec. 1151(f)(2), to refer to statutory age - that is, age calculated according to 8 U.S.C. Sec. 1153(h)(1). The Ninth Circuit therefore reversed the BIA's affirmation of an immigration judge's seemingly perverse determination that when the relevant foreign national's parent naturalized that foreign national was no longer protected by the Child Status Protection Act even if that foreign national would have been protected by the Child Status Protection Act had his/her parent never naturalized in the first place.

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  • People v. Landaverde- filed February 7, 2018

The California Court of Appeal's Second Appellate District held that California Penal Code Section 1473.7 provides a procedural means to vacate a judgment of a conviction that was legally invalid, but it does not affect the standards by which motions to vacate pleas based on an alleged Sixth Amendment violation due to ineffective assistance of counsel are decided. The Court of Appeal held that a foreign national defendant who seeks to vacate a conviction on this ground must still establish two prongs under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), that her/his counsel's performance fell below an objective standard of reasonableness and that s/he was prejudiced by that deficient performance. Prior to the U.S. Supreme Court's 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), a defense attorney's failure to advise a foreign-national defendant of the immigration consequences of her/his plea did not constitute deficient performance. Because the foreign national's 1998 guilty plea was final in the relevant case, the Court of Appeal held that Padilla could not be applied retroactively to vacate his conviction.

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The BIA held that in deciding whether to set a bond, an immigration judge should consider the nature and circumstances of a foreign national's criminal activity, including not only convictions but also arrests, to determine if that foreign national is a danger to the community. The BIA found that driving under the influence is a significant adverse consideration in bond proceedings. The BIA concluded that evidence of family and community ties generally does not mitigate a foreign national's dangerousness.

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The Ninth Circuit held that a foreign national's conviction for carjacking under California Penal Code Section 215(a) is not categorically a "crime of violence" aggravated felony that made him ineligible for relief from removal because, in light of the U.S. Supreme Court's holding in Johnson v. United States, 559 U.S. 133, 140 (2010), carjacking does not require the use of violent force capable of causing physical pain or injury to another person. The Ninth Circuit consequently held that Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010), which held that a carjacking conviction under California Penal Code Section 215 is categorically a crime of violence, is no longer good law.

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The Ninth Circuit held that neither the Due Process Clause nor the Immigration and Nationality Act creates a categorical right to government-funded, court-appointed counsel for foreign-national minors during removal proceedings. While this case specifically concerned an accompanied minor, the Ninth Circuit did not address whether the analysis would change in the case of unaccompanied minors.

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The BIA held that, in removal proceedings arising within the specific jurisdictions of U.S. Court of Appeals for the Fifth Circuit and the Ninth Circuit only, a foreign national who was "waved through" at a port entry has established an admission "in any status" within the meaning of Section 240A(a)(2) of the Immigration and Nationality Act ("INA"). The BIA held that, in removal proceedings outside the Fifth Circuit and Ninth Circuit, to establish continuous residence in the U.S. for seven years after having been admitted "in any status" under Section 240A(a)(2) of the INA, a foreign national must prove that he or she possessed some form of lawful immigration status at the time of admission. The BIA remanded to the relevant immigration judge to determine whether the foreign national in the relevant matter was "waved through" at the port of entry, and, if so, whether she satisfies the other factors that would make her eligible for cancellation of removal.

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  • People v. Perez- filed January 23, 2018

The California Court of Appeal's Fourth Appellate District held that California Penal Code Section 1473.7, which went into effect on January 1, 2017 and allows a foreign national no longer in custody to vacate a conviction based on his/her failure to understand the potential immigration consequences at the time of a guilty plea, can be applied retroactively. The Court of Appeal further found that trial courts need only evaluate whether a foreign national satisfies the required elements to bring the motion to vacate. In the relevant case, the Court of Appeal determined that the trial court did not err in denying the relevant foreign national's motion to vacate where the change-of-plea form established that he had an interpreter who explained to him the immigration consequences at the time of the guilty plea and that he was explicitly informed by the court that he would be deported if he pled guilty.

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The BIA held that, in the case of a foreign national seeking asylum or withholding of removal based on a membership in a particular social group, a newly proposed particular social group will not be considered on appeal if it was not first articulated in front of an immigration judge. The BIA declined to remand proceedings for the relevant immigration judge to make factual findings regarding the foreign national's newly articulated particular social group because the foreign national was represented by counsel before that immigration judge and had the opportunity to advance the exact delineation of the proposed social group before that immigration judge. Thus, the new particular social group was not "new, previously unavailable material evidence" meriting remand.

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The Ninth Circuit held that, where a foreign national is in expedited-removal proceedings, does not waive the fourteen-day waiting period for judicial review, and is allowed to consult with counsel before the removal order is executed, a showing of prejudice is required in order for the foreign national to prevail on a due process claim based on denial of right to counsel.

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The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of jurisdiction of a foreign national's action challenging the Department of Homeland Security ("DHS")'s denial of the I-130 visa petitions he filed on behalf of his wife and her children. The Ninth Circuit held that the Adam Walsh Child Protection and Safety Act of 2006 applies to petitions that were filed, but not yet adjudicated, before the statute's effective date. The Ninth Circuit further held that the Adam Walsh Act does not violate the Ex Post Factor Clause even if the convictions for the offenses covered by the statute occurred before the statute's effective date. The Ninth Circuit held that it had no jurisdiction to review determinations of the Secretary of DHS with respect to the "no risk" provision of the Adam Walsh Act, which requires I-130 petitioners to show that they pose "no risk" to the beneficiaries of their petitions, because the Immigration and Nationality Act bars review of any decision the authority for which is specified as falling under sole and unreviewable discretion of the Secretary of DHS.

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The Ninth Circuit held that the Nevada conspiracy statute, Nevada Revised Statutes Section 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite "overt act" element, and thus is indivisible. The Ninth Circuit further held that the Nevada drug statute, Nevada Revised Statutes Section 454.351, is categorically overbroad when compared to Section 102 of the Controlled Substances Act, and thus is indivisible.

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The Ninth Circuit held that the BIA erred by failing to recognize that the medical record upon which the immigration judge heavily relied was nearly a year old and that it may have no longer reflected a foreign national's mental state. The Ninth Circuit concluded that the immigration judge did not adequately ensure that the Department of Homeland Security ("DHS") complied with its obligation to provide the court with relevant materials in its possession that would inform the court about the foreign national's mental competency, as required by standards set out by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). The Ninth Circuit held that where DHS is providing ongoing medical care to a foreign national as a detainee, it necessarily possesses relevant medical records, and thus has an obligation to introduce those records to the immigration judge. The Ninth Circuit remanded to the BIA with instructions to remand to the immigration judge for a proper competence evaluation based on current mental health reviews and medical records.

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The Ninth Circuit affirmed two foreign nationals' misdemeanor convictions in the U.S. District Court, under Section 275(a) of the Immigration and Nationality Act for attempting to enter the U.S. "at any time or place other than as designated by immigration officers," holding that a place "designated by immigration officers" refers to a specific immigration facility, not an entire geographic area.

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The BIA held that the Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under Section 101(a)(43)(G) of the Immigration and Nationality Act ("INA"), based on the same conviction that supported a crime of violence aggravated felony charge under another section of the INA, Section 101(a)(43)(F), in the prior proceeding. The BIA held that home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) is a categorical burglary offense under Section 101(a)(43)(G) of the INA.

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The Ninth Circuit reversed the U.S. District Court's dismissal of a foreign national's collateral attack against the validity of his 2009 order of removal based on the classification of his underlying conviction, for possession of a controlled substance with intent to distribute under a Washington drug trafficking statute, as an aggravated felony. The Ninth Circuit held that Washington Revised Code section 69.50.401 is overbroad compared to its federal analogue, because the former has a more inclusive mens rea requirement for accomplice liability. Therefore, the Ninth Circuit held that under a more straightforward application of the categorical approach, the foreign national's conviction cannot support an aggravated felony determination, and that his collateral attack on the underlying deportation order should have been successful. The Ninth Circuit also held that, because under Washington law a jury need not agree on whether a defendant is a principal or accomplice, the Washington drug trafficking statute is not divisible so far as the distinction between those roles is concerned. Furthermore, the Ninth Circuit held that the foreign national's waiver of right to seek judicial review of the removal order was not considered and intelligent where the notice of intent to issue a final administrative removal order suggested that the he could contest removability only on factual grounds, he was not represented, and he never had the benefit of appearing before an immigration judge despite requesting a hearing.

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The BIA held that the inquiry as to whether a violation of a protection order renders an alien removable under Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act is not governed by the categorical approach, even if a conviction underlies the charge; instead, an immigration judge should consider the probative and reliable evidence of regarding what a state court has determined about the alien's violation.

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The Ninth Circuit held that a felony hit and run conviction under California Vehicle Code section 20001(a) was a crime involving moral turpitude that renders a foreign national ineligible for cancellation or removal. The Ninth Circuit held that California Vehicle Code section 20001(a) is divisible into several crimes, some of which may involve moral turpitude and some of which may not. Applying the modified categorical approach, the Ninth Circuit concluded that a foreign national's admission in his plea agreement, which said that he was involved in a car accident that led to injury, satisfied the elements for a felony conviction for a traditional hit and run causing injuries, which qualifies as a crime involving moral turpitude under current controlling precedent.

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The Ninth Circuit held that an alien is "admitted" when he presents himself for inspection and is waved through a port of entry. The Ninth Circuit held that the phrase "admitted in any status," as used in Section 240A(a)(2) of the Immigration and Nationality Act plainly encompasses every status recognized by immigration statutes, lawful or unlawful.

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The BIA held that an immigration judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.

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The BIA held that the term "rape" in Section 101(a)(43)(A) of the Immigration and Nationality Act encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. The BIA held that the term "rape" also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim's ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.

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The BIA held that criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude because it does not require that a perpetrator have a sufficiently culpable mental state.

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The BIA held that an alien "has previously been admitted to the United States as an alien lawfully admitted for permanent residence" within the meaning of Section 212(h) of the Immigration and Nationality Act if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien's most recent acquisition of lawful permanent resident status.

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The BIA held that an alien seeking to qualify for the exception to inadmissibility in Section 212(a)(6)(A)(ii) of the Immigration and Nationality Act must satisfy all three subclauses of that section, including the requirement that the alien be "a VAWA self-petitioner."

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The Ninth Circuit held that a foreign national's departure from the U.S., without more, does not provide clear and convincing evidence of a "considered" and "intelligent" waiver of the right to appeal, and therefore does not meet the constitutional requirements of a valid waiver. The Ninth Circuit further held that the immigration judge's failure to inform the foreign national that his departure would constitute a waiver of his previously reserved right to appeal to the BIA rendered his purported waiver invalid.

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The BIA held that, where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of evidence.

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The BIA held that a misrepresentation is material under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act when it tends to shut off a line of inquiry that is relevant to the alien's admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. The BIA held that in determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider two factors: (1) the nexus between the alien's role, acts, or inaction and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.

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The Ninth Circuit held that a foreign national's conviction for misdemeanor domestic violence assault under Arizona Revised Statutes Sections 13-1203 and 13-3601 was a crime of domestic violence under Section 237(a)(2)(E) of the Immigration and Nationality Act ("INA") that renders him removable. The Ninth Circuit held that Arizona Revised Statute Section 13-1203 is divisible and that, under the modified categorical approach, the record provided a sufficient factual basis to support a finding that the foreign national was convicted of a class 1 misdemeanor under Arizona Revised Statutes Section 13-1203(A)(1), which requires intentionally or knowingly causing any physical injury to another person. The Ninth Circuit further held that Arizona Revised Statutes Section 13-1203(A)(1) is a crime of violence as defined in 18 U.S.C. Sec. 16(a) and that the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes Section 13-3601(A), are coextensive with the domestic relationships described in Section 237(a)(2)(E) of the INA.

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The BIA held that robbery under Section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under Section 101(a)(43)(G) of the Immigration and Nationality Act, regardless of whether a violator merely aided and abetted in the asportation of property stolen by a principal.

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The BIA held that entry into a pretrial intervention agreement under Texas law qualifies as a "conviction" for immigration purposes under Section 101(a)(48)(A) of the Immigration and Nationality Act, where a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement and a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.

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The Ninth Circuit held that, where a foreign national in removal proceedings showed clear signs of mental incompetency, an immigration judge erred by failing to determine whether procedural safeguards were required pursuant to In re M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011). The Ninth Circuit further held that the BIA abused its discretion by failing to explain why it allowed the immigration judge to disregard In re M-A-M-'s rigorous procedural requirements, and remanded to the BIA with instructions to remand to the immigration judge for a new hearing consistent with In re M-A-M-.

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The Ninth Circuit held that a conspiracy statute of California Penal Code Section 182(a)(1) is overbroad but divisible as to the target crime, and that the target crime of sale and transport of a controlled substance under California Health and Safety Code Section 11352 is also overbroad but divisible as to the specific controlled substance. Thus, Ninth Circuit applied the modified categorical approach to review the BIA's decision finding a foreign national ineligible for cancellation of removal. The Ninth Circuit held that the record was inconclusive because the foreign national's guilty plea could have rested on an overt act that did not related to heroin. The Ninth Circuit further held that Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), which held that a petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, remains good law because it is not irreconcilable with the later Supreme Court cases of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013). Thus, the Ninth Circuit concluded that the foreign national is ineligible for cancellation because with respect to eligibility for relief, she bears the burden of proof to show that her conviction did not relate to a controlled substance, and she could not meet this burden on an inconclusive record.

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The BIA held that burglary of a dwelling in violation of Section 164.225 of the Oregon Revised Statues is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.

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The Ninth Circuit held that a foreign national's California conviction for second degree murder, based on aiding and abetting theory, makes him removable for having been convicted of an aggravated felony. The Ninth Circuit held that California law on aiding and abetting, which looks to the natural and probable consequences of an act the defendant intended, had not materially changed since the Supreme Court decided Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that absent a showing that the law had been applied in some "special" way, a California conviction for aiding and abetting a removable offense is also a removable offense. The Ninth Circuit concluded that there is nothing special about the California aiding and abetting law that brings it or the foreign national's conduct outside the generic definition of aiding and abetting.

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The Ninth Circuit held that the crime of delivery of a controlled substance under Oregon Revised Statutes Section 475.992(1)(a) is not a categorical aggravated felony because its definition of "delivery" includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances. The Ninth Circuit further held that the modified categorical approach does not apply because the Oregon law is indivisible with respect to whether an "attempt" is accomplished by solicitation.

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The BIA held that an alien who adjusts status under Section 209(b) of the Immigration and Nationality Act ("INA") changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien's asylee status. The BIA held that the restrictions on removal in Section 208(c)(1)(A) of INA do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to Section 209(b) of the INA.

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The Ninth Circuit held that the witness protection provisions of Article 24 of the United Nations Convention Against Transnational Organized Crime ("UN-CATOC") do not provide an independent basis for relief from removal, because UN-CATOC is not self-executing, and has not been implemented through congressional legislation. The Ninth Circuit held that where a foreign national is targeted in his home country not on account of his political opinion or membership in a particular social group, but on account of his role in a drug-trafficking investigation, the foreign national is not entitled to withholding of removal or Convention Against Torture relief.

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The BIA held that an offense may be a "specified offense against a minor" within the meaning of Section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006 even if it involved an undercover police officer posing as a minor, rather than an actual minor.

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The Ninth Circuit held that when there is a question of whether the BIA's dismissal for lack of jurisdiction or an immigration judge's "no reasonable fear" determination is the final order, the BIA's dismissal is the administratively final order, because even diligent foreign nationals (especially pro se litigants) can fall victim to the constellation of confusing and conflicting information provided by the agency on how and where to seek judicial review of reasonable fear determinations made in connection with reinstatement of removal orders. Thus, the Ninth Circuit held that it has jurisdiction over petitions for review of negative reasonable fear determinations if it is filed within 30 days of the BIA's decision on appeal of such determinations, even if the BIA dismisses based on lack of jurisdiction. The Ninth Circuit then vacated the immigration judge's order to deny withholding of removal and remanded to the BIA to give proper consideration of the foreign national's testimony, to give proper weight to the country conditions report, and to apply the correct legal standards for his Convention Against Torture claim.

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The Ninth Circuit held that when there is a question of whether the BIA's dismissal for lack of jurisdiction or an immigration judge's "no reasonable fear" determination is the final order, the BIA's dismissal is the administratively final order, because even diligent foreign nationals (especially pro se litigants) can fall victim to the constellation of confusing and conflicting information provided by the agency on how and where to seek judicial review of reasonable fear determinations made in connection with reinstatement of removal orders. Thus, the Ninth Circuit held that it has jurisdiction over petitions for review of negative reasonable fear determinations if it is filed within 30 days of the BIA's decision on appeal of such determinations, even if the BIA dismisses based on lack of jurisdiction. The Ninth Circuit then vacated the immigration judge's order to deny withholding of removal and remanded to the BIA to give proper consideration of the foreign national's testimony, to give proper weight to the country conditions report, and to apply the correct legal standards for his Convention Against Torture claim.

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The Ninth Circuit held that when a foreign-national applicant for Asylum, Withholding of Removal, and/or Deferral of Removal under Convention Against Torture fails to meet her initial burden of presenting credible testimony, the immigration judge is under no obligation under Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) to provide the applicant with notice and opportunity to present additional corroborating evidence. The Ninth Circuit further held that when an immigration judge considers a foreign-national applicant's submitted corroborating evidence, but deems that evidence insufficient, the immigration judge need not afford the applicant an opportunity to provide additional evidence.

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The Ninth Circuit held that the BIA abused its discretion when it denied a foreign national's motion to reopen removal proceedings without considering the new evidence of increased violence towards homosexuals in Ethiopia, and remanded the matter to the BIA to properly consider the changed country conditions submitted with the foreign national's motion. The Ninth Circuit also held that it has jurisdiction to review the petition for review under exception to the jurisdictional bar under Section 242(a)(2)(C) of the Immigration and Nationality Act that because while the section eliminates judicial review of final order of removal based on a foreign national's criminal conviction, it does not preclude judicial review of constitutional claims or questions of law.

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The BIA held that an essential element of an aggravated felony receipt of stolen property offense under Section 101(a)(43)(G) of the Immigration and Nationality Act ("INA") is that an offender must receive property with the "knowledge or belief" that it has been stolen, and this element excludes a mens rea equivalent to a "reason to believe." The BIA also held that a conviction for receipt of a stolen motor vehicle under Section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under Section 101(a)(43)(G) of the INA because it is divisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a "reason to believe" that the vehicle received was stolen.

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The U.S. Supreme Court held that the gender line Congress drew in Section 1409(c) of the Immigration and Nationality Act, which creates an exception for an unwed U.S.-citizen mother but not for such a father, to the physical-presence requirement for the transmission of U.S. citizenship to a child born abroad, is incompatible with the U.S. Constitution's Fifth Amendment's requirement that the government accord to all persons "the equal protection of the laws."

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The Ninth Circuit held that a foreign national's conviction for fleeing from a police officer under California Vehicle Code Section 2800.2 is not a crime of moral turpitude, because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude. The Ninth Circuit held that the categorical approach applies rather than the modified categorical approach, because the elements of California Vehicle Code Section 2800.2 are clearly indivisible.

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The BIA held that a certificate of citizenship, unlike a Certificate of Naturalization, does not confer U.S. citizenship but merely provides evidence that the applicant previously obtained citizenship status. The BIA held that judicial proceedings to revoke naturalization are not required to cancel a certificate of citizenship, which the Department of Homeland Security can cancel administratively upon a determination that an applicant is not entitled to the claimed citizenship status.

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The BIA held that the aggravated felony receipt of stolen property provision in Section 101(a)(43)(G) of the Immigration and Nationality Act does not require that unlawfully received property be obtained by means of common law theft or larceny.

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The Ninth Circuit held en banc that a foreign national, who has been a "habitual drunkard" during the requisite time period of at least 10 years immediately preceding the date of his application for cancellation of removal, fails to establish good moral character and is ineligible for cancellation. The en banc court held that substantial evidence supports the BIA's finding that the foreign national has been a "habitual drunkard," given the evidence of his more-than-ten-year history of alcohol abuse, conviction for driving under the influence, and his daughter's testimony that his liver failed from drinking. The en banc court further held that the term "habitual drunkard" is not unconstitutionally vague because it readily lends itself to an objective factual inquiry, and held that the statutory "habitual drunkard" provision under Section 101(f)(1) of the Immigration and Nationality Act does not violate equal protection.

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The Ninth Circuit held that the Oregon Revised Statutes Section 163.427(1)(a) is divisible and that conviction under Section 163.427(1)(a)(A) is sexual abuse of a minor within the general federal definition and therefore an aggravated felony for purposes of Section 101(a)(43) of the Immigration and Naturalization Act ("INA"). Accordingly, the Ninth Circuit held that a foreign national who has been convicted of sexual abuse of a minor under Oregon Revised Statutes Section 163.427(1)(a)(A) has also been convicted of committing a particularly serious crime under INA Sections 208(b)(2)(A)(ii) and 208(b)(2)(B)(i). Thus, the Ninth Circuit held that the BIA properly terminated the foreign national's asylee status.

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The BIA held that a particular social group based on family membership may be cognizable depending on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. The BIA held that in order to establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.

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The BIA held that where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of application for relief may apply, the alien bears the burden under 8 C.F.R. Sec. 1240.8(d) to prove by a preponderance of evidence that such grounds do not apply.

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The BIA held that the persecutor bar in Section 241(b)(3)(B)(i) of the Immigration and Nationality Act, applies to an alien who assists or otherwise participates in the persecution of an individual because of that person's race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien's personal motivation for assisting or participating in the persecution.

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The Ninth Circuit held that it has jurisdiction over petitions for review from negative reasonable fear determinations if such determinations were made in the context of the reinstatement of an expedited removal order. The Ninth Circuit further held that the BIA's decision to dismiss the relevant foreign national's appeal of an immigration judge's denial of a motion to reopen or to reconsider constituted a final order of removal given the specific circumstances of the case, including the fact that that immigration judge's decision on the motion to reopen or to reconsider advised the relevant foreign national of a right to appeal to the BIA even though no such right actually exists. Thus, the petition for review, which was filed within thirty days of the BIA's dismissal rather than within thirty days of the relevant immigration judge's denial, was timely under the specific circumstances of this case.

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The BIA held that, in determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), immigration judges may consider or "peek" at an alien's conviction record only to discern whether statutory alternatives define "elements" or "means," provided State law does not otherwise resolve the question.

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The BIA held that the primary consideration for an immigration judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The BIA also held that, in considering administrative closure, an immigration judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

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The Ninth Circuit held that a foreign national, who was present in the Commonwealth of Northern Mariana Islands ("CNMI") without admission or parole on November 28, 2009 and who never had a valid entry document, was deemed by law to be an applicant for admission to the U.S. by his mere presence in the CNMI, since the immigration laws of the U.S. became applicable to the CNMI on November 28, 2009. The Ninth Circuit held that the foreign national was thus inadmissible to the U.S. under Section 212(a)(7) of the Immigration and Nationality Act which makes any foreign national applicant inadmissible if the applicant lacks a valid entry document at the time of application for admission.

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The BIA held that assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.

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The BIA held that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude when the victim is under 14 years of age, or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. The BIA also held that sexual solicitation of a minor under Section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of Section 3-307 of the Maryland Criminal Law is categorically a crime involving moral turpitude.

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The Ninth Circuit affirmed the U.S. District Court's grant of summary judgment in favor of a foreign national who was denied adjustment of status to that of a Lawful Permanent Resident by the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services for a perceived lack of lawful entry despite having been married to a U.S. citizen and having been granted Temporary Protected Status ("TPS"). The Ninth Circuit held for purposes of applications for Adjustment of Status and based on the plain language of the Immigration and Nationality Act ("INA"), or alternatively in the absence of any binding agency interpretation, not only that a grant of TPS amounts to the inspection and admission necessary for lawful entry but also that maintenance of TPS is the equivalent of maintenance of valid nonimmigrant status.

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The California Supreme Court reversed the decision of the lower courts denying a foreign national's timely motion to withdraw his guilty plea, which would subject him to mandatory deportation, based on California Penal Code Section 1018 on grounds of mistake or ignorance. The California Supreme Court held that receipt of the standard advisement as set forth in California Penal Code Section 1016.5, which states that a criminal conviction "may" have adverse immigration consequences, does not bar a foreign national defendant from seeking to withdraw a guilty plea on that basis. The California Supreme Court remanded to the trial court to determine whether, after considering all relevant factors, the foreign national has shown good cause for withdrawing his plea.

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The Ninth Circuit held that a foreign national, who has been admitted to the U.S. as a Conditional Permanent Resident, i.e., the foreign national entered the U.S. on an immigrant visa that upon admission granted him Conditional Permanent Resident, and who subsequent to such admission has been convicted of an Aggravated Felony, is ineligible for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA"), which is unavailable to those who have been admitted as Lawful Permanent Residents but who have been convicted of an Aggravated Felony, because such a foreign national's admission as a Conditional Permanent Resident is the equivalent of being admitted as a Lawful Permanent Resident for purposes of determining waiver eligibility.

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The Ninth Circuit held en banc that a foreign-national applicant for Asylum, Withholding of Removal, and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT") is not required to report her/his private persecution to government law-enforcement authorities if such reporting to law-enforcement authorities would be futile, and that such foreign-national applicant can nonetheless establish, without a heightened-proof requirement, that the government of the country from which s/he is seeking protection in the U.S. is unwilling or unable to provide her/him with protection or is more likely than not to permit that foreign-national applicant's torture with the acquiescence of that government through country-conditions reports and news articles."

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The BIA held that a conviction for the crime of transporting a loaded firearm in violation of Oklahoma Statues Sec. 21-1289.13 is categorically for a firearms offense under Section 237(a)(2)(C) of the Immigration and Nationality Act ("INA") even though the term "transporting" is not included in the INA because INA 237(a)(2)(C) is broadly construed to encompass all types of firearms offenses.

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The BIA held that a conviction for the crime of mayhem in violation of California Penal Code Sec. 203, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. Sec. 16(a) (2012).

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The Ninth Circuit held that a conviction for delivery of a controlled substance under Oregon Revised Statutes Sec. 475.992(1)(a) is not for a Controlled-Substances-Trafficking Aggravated Felony and consequently does not render the relevant foreign national statutorily ineligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation") because, in addition to the relevant statute's not containing a "commercial element," the "delivery" portion of the relevant statute includes attempted delivery, for which under Oregon law, but not federal law, mere solicitation qualifies, thereby rendering the relevant statute overbroad. The Ninth Circuit found that the relevant statute, i.e., Oregon Revised Statutes Sec. 475.992(1)(a), also is indivisible with respect to whether an "attempt" is accomplished by solicitation and consequently concluded that the modified categorical approach does not apply.

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The Ninth Circuit held that a conviction for witness tampering under California Penal Code Sec. 136.1(a) is not categorically for a crime involving moral turpitude ("CIMT") because the offense is overly broad and therefore not a categorical match to the generic definition of a CIMT. The Ninth Circuit remanded the matter to the BIA to determine whether California Penal Code Sec. 136.1(a) is divisible and, if so, whether the modified categorical approach would render the relevant foreign national's conviction a CIMT and consequently render the relevant foreign national ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation").

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The Ninth Circuit held that the "one central reason" nexus standard that applies to applications for Asylum, meaning that one central reason for why an applicant would be persecuted upon return to his/her country of origin must be one of the five protected grounds, i.e., race, religion, national origin, social group, or political opinion, does not similarly apply to applications for Withholding of Removal, which instead relies on the "a reason" standard. The Ninth Circuit found that because the "one central reason" standard, which was imposed by the REAL ID Act but only on applications for Asylum, is a stricter standard than the "a central reason" standard, which the REAL ID Act did not stop applying to applications for Withholding of Removal, applicants for Withholding of Removal are permitted to show weaker motives for their prospective persecution than they would in an application for Asylum. Turning to applications under the Convention Against Torture ("CAT"), the Ninth Circuit determined that because there is no "rogue official" exception, an application under CAT may successfully be based on the actions of off-duty police officers, even where they were not acting in an official capacity, so long as they carried out the acts or knowingly acquiesced in the acts. The Ninth Circuit concluded that while an applicant for relief under CAT bears the ultimate burden to prove a likelihood of torture, such applicant does not bear the burden to establish that s/he could not safely relocate within his/her country of origin to avoid future harm.

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The BIA held that for purposes of the Adam Walsh Child Protection and Safety Act of 2006 and Section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act ("INA"), a U.S.-citizen- or Lawful-Permanent-Resident petitioner has been "convicted" of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner's guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.

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The Ninth Circuit held that a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA") cannot be used to excuse convictions that bar a relevant foreign national from being eligible for an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation").

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The Ninth Circuit held that a three-factor test should be applied to determine whether an Asylum claim based on retaliation for whistleblowing amounts to persecution on account of political opinion: (1) whether and to what extent the relevant foreign national engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the relevant foreign national's perceived or actual anticorruption beliefs; and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher-level officials.

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The BIA held that the generic definition of "perjury" under Section 101(a)(43)(S) of the Immigration and Nationality Act ("INA") requires that an offender (1) make a material false statement (2) knowingly or willfully (3) while under oath or affirmation (4) where an oath is authorized or required by law. Based on that definition, the BIA found that a conviction under California Penal Code Sec. 118(a) categorically is a "Perjury" Aggravated Felony under INA 101(a)(43)(S).

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The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that a "National Interest Waiver" under the Employment-Based, Second-Preference category for Lawful Permanent Residence ("Green Card"), meaning the foreign-national beneficiary is neither required to show an employer is offering him/her a job nor required to go through the Labor Certification Application ("PERM") process, if the foreign-national beneficiary demonstrates: (1) that the foreign-national beneficiary's proposed endeavor has both substantial merit and national importance; (2) that s/he is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the U.S. to waive the job offer and PERM requirements. This holding represents a reassessment from the requirements established previously in Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998), which consequently has been vacated.

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The BIA held where the U.S. Department of Homeland Security seeks to re-serve a respondent to effect proper service of a notice to appear that was defective under the regulatory requirements for serving minors under the age of fourteen, a continuance should be granted for that purpose. The BIA nevertheless acknowledges in a footnote that the Ninth Circuit still requires service both on the relevant minor and on the adult to whom the relevant minor is a released if that minor is under eighteen years of age.

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The BIA held that a time-barred application for Asylum may nonetheless be deemed frivolous, regardless of the decision by the U.S. Court of Appeals for the Third Circuit possibly holding otherwise, particularly if the deliberate misrepresentation in question concerns the date of the foreign-national applicant's entry so as to be within one year of the application's filing.

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The BIA confirmed that an applicant for Adjustment of Status under Section 209 of the Immigration and Nationality Act ("INA") must have been either admitted as a refugee or granted asylum. The BIA further determined that Cubans who were paroled into the U.S. under INA Sec. 212(d)(5) only between April 1, 1980 and May 18, 1980 are considered to have been admitted as refugees pursuant to the Refugee Act of 1980. The BIA consequently concluded that a foreign national who was paroled into the U.S. on August 25, 1980 with an Arrival/Departure Record that was stamped "Cuban/Haitian Entrant "Status Pending)" and that indicates that the purpose of the parole was for "Cuban Asylum" is nonetheless ineligible to adjust status under INA Sec. 209 because such foreign national was neither admitted as a refugee nor granted asylum.

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The Ninth Circuit held, in the context of applications for Asylum and for Withholding of Removal under the Immigration and Nationality Act ("INA"), that the BIA did not err in applying the BIA's construction of the "particularity" requirement, which focuses on whether the group is discrete or is, instead, amorphous, because such construction is reasonable and consistent with Ninth-Circuit precedent, which has long required that a particular social group have clear boundaries and that its characteristics have commonly accepted definitions. The Ninth Circuit found that the BIA's articulation of its "social distinction" requirement, which requires evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group, is also reasonable. Applying that framework, the Ninth Circuit determined that the BIA properly found that a proposed particular social group of "former members of Mara 18 gang" lacks particularity and social distinction and, also, that a proposed social group of "deportees from the U.S. to El Salvador" lacks particularity. The Ninth Circuit however, in the context of Withholding of Removal and Deferral of Removal under the Convention Against Torture ("CAT"), reversed the BIA's affirmation of an immigration judge's inference that killings do not arise to "torture" because the Ninth Circuit found that killings do indeed amount to "torture."

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The Ninth Circuit held that the BIA did not err in finding that a person who enters the U.S. fraudulently under the Visa Waiver Program is nonetheless limited by the restrictions of the Visa Waiver Program, including the limitations relating to contesting deportation. Consequently, the Ninth Circuit found that the BIA correctly refused to consider a foreign national's application for Adjustment of Status when such foreign national entered the U.S. under the Visa Waiver Program by using a passport that did not belong to the foreign national and that was from a country that is included under the Visa Waiver Program.

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The Ninth Circuit held that the BIA did not err in applying retroactively to the relevant foreign national the rule announced by the U.S. Supreme Court in Holder v. Martinez Gutierrez, 132 S.Ct. 2011 (2011), that an applicant for cancellation of removal must satisfy the years-of-residence requirement on his/her own, without relying on a parent's residential history, because the relevant five-factor retroactivity analysis, particularly the factors relating to (1) reasonable anticipation of the change in law, (2) the extent of reliance upon the former rule, and (3) the federal government's strong interest in uniform application of the U.S. Immigration Laws, favored retroactive imposition. The Ninth Circuit found that the two other factors from the five-factor retroactivity analysis, namely, (4) whether the particular case is one of first impression, which favored neither party, and (5) the degree of burden that retroactivity imposes on a relevant foreign national, which was the only factor that favored the relevant foreign national, did not override the other three factors.

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The BIA upon receiving the case back from the U.S. Court of Appeals for the Third Circuit affirmed an immigration judge's decision by finding that a conviction under New York Penal Law Sec. 155.25 for petit larceny, despite having a scienter requirement that is less than an intent to deprive the owner permanently of the right to his/her property, categorically is for a crime involving moral turpitude ("CIMT") because the relevant scienter requirement nonetheless involves proof of intent permanently or virtually permanently to appropriate or to deprive the owner of the use of property.

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The BIA reversed an immigration judge's decision by finding that a conviction under Arizona Revised Statutes Sec. 13-805(A) for shoplifting property worth less than $1,000.00 categorically is for a crime involving moral turpitude ("CIMT"). The BIA stated that a theft offense is a CIMT if it involves a taking of or exercise of control over another's property without consent and with an intent to deprive the owner of his/her property either permanently or under circumstances where the owner's property rights are substantially eroded.

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The BIA upon receiving the case back from the U.S. Court of Appeals for the Third Circuit, confirmed that a fraud waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act ("INA") cannot waive a relevant foreign national's removability under INA Sec. 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude ("CIMT"), even if the conviction is based on the underlying fraud.

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The Ninth Circuit held that the reinstatement provision's "reentry" requirement properly applies to those who returned to the U.S. following an executed expedited-removal order at a U.S.-border-crossing point, as opposed to an executed removal ordered by an immigration judge in removal proceedings within the U.S. itself, and that a relevant foreign national's having been allowed to cross back into the U.S. following execution of a removal order but without specific permission to reapply for such allowance does not absolve that foreign national of the reinstatement provision.

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The Ninth Circuit held that there is no violation of procedural Due Process by the aging out of one or more qualifying relatives regarding an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") either because of the failure of an immigration judge to adjudicate the relevant Non-LPR Cancellation application prior to the qualifying relatives' aging out or because of the unavailability of a cap number until after the qualifying relatives' aging out. The Ninth Circuit found that procedural delays, such as routine processing delays, do not deprive a foreign national of a substantive liberty or property interest unless there is a "legitimate claim of entitlement" to have their applications adjudicated within a specified time, something that does not apply in the context of Non-LPR Cancellation. The Ninth Circuit also found that foreign nationals do not have any "settled expectations" that their Non-LPR-Cancellation applications will be adjudicated prior to their qualifying relatives' aging out because foreign nationals are on notice of the eligibility-cut-off provisions of Non-LPR Cancellation. The Ninth Circuit finally found that the existence of a cap of only 4,000 Non-LPR-Cancellation grants per fiscal year is permissible and does not deprive a foreign national of any qualifying liberty interest. However, noteworthy is Ninth Circuit's acknowledgement of a "very unusual circumstance" exception to its above findings when a foreign national can show that s/he engaged in diligent efforts to have an application for relief adjudicated prior to a certain time and failed only because of delays caused by an administrative agency. In fact, in a Concurring Opinion, Ninth-Circuit Judge Watford added that the dispositive factor is the lack of diligence by the relevant foreign nationals in seeking expedited adjudication because had the relevant foreign nationals been diligent in seeking expedited adjudication then the delays would have resulted in the lack of a full and fair opportunity in their respective removal proceedings.

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The Ninth Circuit found that the relevant foreign national's ineffective-assistance-of-counsel claim did not permit equitable tolling of the filing deadline for his otherwise untimely motion to reopen because he had not established due diligence by claiming that he did nothing for six years to try to resolve his immigration-related matter simply based on the advice to wait a few years given to him by an attorney with whom he merely consulted once. However, the Ninth Circuit nonetheless remanded the case to the BIA because the BIA claimed it did not have authority to consider the relevant foreign national's motion to reopen sua sponte, i.e., on the BIA's own motion, based on a faulty legal analysis, namely, the assumption that the foreign national would be ineligible for relief from removal were his removal proceedings reopened because he will not return to having his Lawful Permanent Residence ("Green Card") upon such sought reopening. Because the Ninth Circuit found that the reopening of removal proceedings returns a relevant foreign national to the status s/he had prior to being ordered removed, i.e., as if the reopened removal order never existed, he Ninth Circuit held that while the BIA has sole discretion to determine whether it wants to exercise its sua-sponte authority, it cannot use faulty legal reasoning to conclude that it will not exercise such authority.

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More than a year after the U.S. Attorney General in Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015), vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), based on its having created a split among the various U.S. Courts of Appeals and because of its having been called into question by the U.S. Supreme Court, the BIA clarified that (1) the categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude ("CIMT"); (2) the realistic-probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether the relevant offense is a categorical CIMT, unless of course the controlling case of the governing Federal court holds otherwise; (3) the minimum-reading approach applied by the U.S. Court of Appeals for the Fifth Circuit applies within its jurisdiction instead of the realistic-probability test and results in a conviction for indecency with a child under Texas Penal Code Sec. 21.11(a)(1) not being for a categorical CIMT; and (4) a relevant foreign national who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing under Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), of hardship or other factors to establish that an application for relief from removal warrants a favorable exercise of discretion presumably because sexual abuse of a minor does not meet the level of a violent or dangerous crime that triggers such a heightened evidentiary showing.

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The BIA upon receiving the case back from the U.S. Attorney General, who returned the case to the BIA following the U.S. Supreme Court's decisions in Mathis v. U.S., 136 S.Ct. 2243 (2016), and Descamps v. U.S., 133 S.Ct. 2276 (2013), held that when a criminal statutory subsection lists mens-rea, i.e., intent, requirements in the alternative but without necessitating a prosecutor to establish at least one to the exclusion of the others or otherwise without necessitating a jury to find beyond a reasonable doubt one to the exclusion of the others, then such alternative requirements are merely means, as opposed to elements, of the crime, rendering such criminal statutory subsection indivisibly overbroad for purposes of determining immigration-related consequences.

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The BIA affirmed an immigration judge's decision finding that a conviction for criminal copyright infringement in violation of 17 U.S.C. Sec. 506(a)(1)(A) (2012) and 18 U.S.C. Sec. 2319(b)(1) (2012) is a crime involving moral turpitude ("CIMT") because, although not per se a theft or fraud offense, such offense is nonetheless analogous because it involves stealing another's intellectual property and is inherently fraudulent despite not requiring an intent to defraud. The BIA added to its reasoning by finding that the criminal copyright infringement has a requirement that it be done willfully and has significant societal harm. .

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The Ninth Circuit held that in the context of applications for Asylum and for Withholding of Removal the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement must make a threshold showing, similar to when proving the "persecutor" bar, of particularized evidence raising the inference that the "terrorist" bar could be met before placing the burden on the relevant foreign-national applicant to rebut such presumption. The Ninth Circuit found that the organization that the relevant immigration judge determined was a terrorist organization, triggering the "terrorist" bar, has not been named a terrorist organization. The Ninth Circuit concluded that the BIA had twice addressed the issue but had twice failed to make the required factual findings, thereby resulting in the Ninth Circuit's choosing not to remand the matter to the BIA for further proceedings on the issue of eligibility but instead to find conclusively that the relevant foreign national is indeed eligible for Withholding of Removal.

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The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of jurisdiction of a statutory claim for a right to appointed counsel in removal proceedings, but the Ninth Circuit reversed the U.S. District Court's finding that it did have jurisdiction over a Constitutional claim for such appointed counsel. The Ninth Circuit found that such claims, whether statutory or Constitutional, must be raised in the context of a petition for review from a final order of removal from the BIA and not in a class-action lawsuit filed at the same time that removal proceedings are active. All three of the judges on the three-judge Ninth-Circuit panel deciding the case wrote or otherwise joined separate concurrences confronting the concerns related to minors, which the plaintiffs in the case are, and even adults in removal proceedings without a lawyer and without one being provided to them, and those three judges all concluded that the political process should be utilized, as opposed to the federal courts, to address this concern.

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The BIA reversed an immigration judge's decision by finding that a conviction under California Penal Code Sec. 211 for robbery categorically is for a "Theft" Aggravated Felony regardless of how one can be convicted for such a crime despite obtaining the property of another through that person's consent. The BIA held that an extortionate taking, i.e., one wherein the victim provides consent under duress, amounts to an unconsented taking and can therefore trigger the "Theft" Aggravated-Felony bar if the conviction results in a sentence of a year or more of imprisonment.

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The Ninth Circuit held that the BIA did not commit error in finding that a foreign national is ineligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation") because he did not meet the seven-years-of-continuous-residence requirement that must be met after being "admitted in any status." The Ninth Circuit found that being listed as a derivative on a parent's applications for Asylum and under the Nicaraguan Adjustment and Central American Relief Act ("NACARA") or that having received an Employment Authorization Document based on being named as a derivative beneficiary on those application does not trigger one's being "admitted in any status" for purposes of LPR Cancellation.

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The BIA reaffirmed its prior decision dated February 24, 2016 wherein the BIA stated that (1) for a State offense to qualify as a crime of violence under 18 U.S.C. Sec. 16(a) (2012), the State statute must require as an element the use, attempted use, or threatened use of violent physical force, thereby withdrawing the BIA's prior decision in Matter of Martin, 23 I&N Dec. 491 (BIA 2002) and (2) the crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, therefore is not categorically a crime of violence under 18 U.S.C. Sec. 16(a). However, the BIA clarified that whether indirect means, e.g., poisoning, amounts to a "use of force" that qualifies a criminal statute such as aggravated battery as a crime of violence under 18 U.S.C. Sec. 16(a) (2012) is determined by the law of the U.S. Court of Appeals in whose jurisdiction the relevant foreign national's removal proceedings take place.

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The BIA reversed the finding of an immigration judge that the immigration judge had regulatory authority to decide an application for a nonimmigrant waiver as it applied to a foreign national's petition for U-1 nonimmigrant status. The BIA held that no such jurisdiction existed within the U.S. Immigration Laws and that a contrary decision by the U.S. Court of Appeals for the Seventh Circuit is trumped by the deference owed to the BIA's interpretation of ambiguous statutory language.

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The U.S. Attorney General lifted her previous stay dated October 30, 2015 and remanded the matter to the BIA to take appropriate action in light of the U.S. Supreme Court's decision dated June 23, 2016 in Mathis v. U.S., 136 S. Ct. 2243 (2016), regarding the issue of divisibility of a criminal statute for purposes of determining when the Modified Categorical Approach. The U.S. Attorney General had previously ordered on October 30, 2015 that the BIA's prior decisions regarding that issue be stayed so that she could review the issue, but she determined in her latest decision that such review is no longer required the holding of the U.S. Supreme Court in Mathis v. U.S. clarified that divisibility exists only when there are alternative elements, as opposed to means, which a jury beyond a reasonable doubt and unanimously must conclude for a criminal defendant to be found guilty.

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The Ninth Circuit held that the BIA's remand to an immigration judge solely for further proceedings as to voluntary departure is a sufficiently final order that triggers the thirty-day jurisdictional clock to file a petition for review with the Ninth Circuit regardless of the fact that removal proceedings technically have not completed yet.

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The Ninth Circuit held that the regulation barring a foreign national subject to a reinstated removal order from applying for Asylum is a reasonable interpretation of the statutory scheme despite seemingly inconsistent statutory language and is therefore entitled to deference by the Ninth Circuit, thereby leaving such relevant foreign nationals eligible only for Withholding of Removal and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT").

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The Ninth Circuit held that the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement order reinstating a foreign national's prior removal order does not merit granting a foreign national's petition for review based on a shift in enforcement priorities as established by memoranda issued by the U.S. Department of Homeland Security. Although internal policy changes may have occurred, the Ninth Circuit found that it will not remand the reinstatement order for reevaluation in light of those internal policy changes because such changes relate purely to the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement 's discretion to pursue reinstatement in the first place. The Ninth Circuit also held that the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement is not obligated to await, prior to pursuing reinstatement, adjudication of administrative appeals from one or more denials of any waivers sought by a foreign national. The Ninth Circuit amended its decision only to make it clearer that there is also a jurisdictional bar to collaterally attacking expedited-removal orders.

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The Ninth Circuit found that the alleged inconsistencies found by an immigration judge relating to the relevant foreign national's seeking Asylum, Withholding of Removal, and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT") were unsupported by the record. The Ninth Circuit confronted each alleged inconsistency, concluded that each was either non-existent or procedurally defective for not providing the relevant foreign national an opportunity to explain it, and determined consequently that the BIA erred on each one when the BIA affirmed the immigration judge's adverse-credibility determination.

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The Ninth Circuit upheld the long-standing rule that an expunged controlled-substance-related conviction is still a conviction if there was (1) a guilty or no-contest plea or some other finding of guilt and (2) some form of punishment including probation.

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The Ninth Circuit reversed the BIA's precedential decision in Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), by holding that a conviction under 7 U.S.C. Sec. 2156(a)(1) for sponsoring or exhibiting an animal in an animal-fighting venture, otherwise known as "cockfighting," is not a categorical Crime Involving Moral Turpitude ("CIMT"). Moreover, the Ninth Circuit found that because the criminal activity at issue was never discussed by the BIA in terms of whether the crime at issue involves an action that affects a protected class of victim the case merited remand to the BIA to consider whether that crime can be considered a CIMT at all in light of the Ninth Circuit's previous holding in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), that non-fraudulent CIMT almost always involve an intent to harm someone, the actual infliction of harm on upon someone, or an action that affects a protected class of victim.

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The Ninth Circuit held that while venue may rest with another U.S Court of Appeals the Ninth Circuit is not jurisdictionally barred from hearing a petition for review when unique circumstances warrant the exercise of the Ninth Circuit's inherent transfer authority, separate from the authority granted under 28 U.S.C. Sec. 1631, which is the venue-transfer statute. The Ninth Circuit found that unique circumstances disfavoring transfer of the case existed given that the case had already been fully briefed and had been pending before the Ninth Circuit for a year since completion of that briefing. Nonetheless, the Ninth Circuit clarified that when a petition for review is filed concerning the reinstatement of a removal order, proper venue rests with the jurisdiction in which the reinstatement-related proceedings took place and not the jurisdiction in which the underlying removal proceedings took place.

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The Ninth Circuit affirmed both (1) the class certification by the U.S. District Court of foreign nationals held in immigration-related custody on the basis that they are mandatory detainees for certain criminal history despite not being taken into such immigration-related custody immediately upon release from criminal custody and (2) the determination by the U.S. District Court that such foreign nationals qualify for mandatory detention due to certain criminal history only if their immigration-related custody commences immediately upon completion of their criminal custody.

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The BIA held that the analysis of a foreign national's risk of threat to the community in deciding whether to grant that foreign national on bond necessarily includes not only direct but also circumstantial evidence of dangerousness, including whether the facts and circumstances present national-security considerations.

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The Ninth Circuit held that the U.S. District Court did not err in determining that a conclusion by an officer of the former Immigration and Naturalization Service ("INS") not to accept for filing a naturalization application of an adult foreign national on the mistaken belief that such foreign national was already a U.S. citizen simply because his parents were U.S. citizens did not rise to a level of deliberate indifference, which must be proven to render valid a Constitutional procedural-Due-Process claim. The Ninth Circuit found that such a claim could also be rendered valid by a showing of arbitrary and intentional obstruction by that officer of the former INS but that the relevant foreign national did not attempt to make such a showing. The Ninth Circuit affirmed the finding of the U.S. District Court that the relevant foreign national (1) had not established knowledge on the part of the former INS that its actions or omissions would lead to ineligibility for derivative U.S. citizenship for that foreign national and (2) had not shown that former-INS policymakers were aware of a risk their policies had of rendering minor children of naturalization applicants ineligible to derive U.S. citizenship due to their aging out prior to completion of the naturalization process of their parents prior to the minor children's eighteenth birthdays.

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The Ninth Circuit held that the BIA abuses its discretion in denying an otherwise untimely motion to reopen based on changed country conditions so that a foreign national may apply for Asylum if such motion to reopen establishes (1) a change in conditions in the relevant country between when the foreign national's removal proceedings were last before an immigration judge and when the motion to reopen was filed and (2) a reasonable likelihood that the foreign national if returned to the relevant country faces a one-in-ten chance of persecution based on a protected ground. The Ninth Circuit found that the relevant foreign national's conversion from Buddhism to Christianity in between when his removal proceedings were last before an immigration judge and when his motion to reopen was filed combined with the increase in harmful activity in the relevant foreign national's native Indonesia, in which Christians suffer disfavored status, merited reopening of that foreign national's removal proceedings.

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The Ninth Circuit held that a conviction under California Penal Code Sec. 422 for criminal threats, regardless of whether it is charged merely as an attempt offense, constitutes a categorical a crime of violence under 18 U.S.C. Sec. 16(a) and, if a sentence of a year or more is imposed, renders one removable for "Crime-of-Violence" Aggravated Felony and consequently ineligible for any forms of relief that are barred to foreign nationals convicted of an Aggravated Felony.

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The BIA held that the analysis of whether someone is inadmissible to the U.S. for making a false claim to U.S. citizenship under Section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act ("INA") requires (1) that the relevant foreign national have a subjective intent to obtain a purpose or benefit under the INA or any other federal or State law, with such determination's being an issue of fact to be decided based on direct or circumstantial evidence, and (2) that the purpose or benefit intended to be obtained by the false claim to U.S. citizenship be one that is governed by the INA or any other federal or State law, with such determination's being determined objectively based on whether U.S. citizenship actually affects or matters to the purpose or benefit sought. The BIA found that a "benefit" is something that is identifiable and enumerated in the INA or any other federal or State law while a "purpose" includes avoiding removal proceedings or any other negative legal consequences associated with one's immigration-related status or lack thereof.

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The Ninth Circuit held that, despite procedural rules' not requiring simultaneous filing, it nonetheless has discretion not to consider or to give less weight to evidence submitted after the filing of a detained foreign national's petition for review to prove that such petition for review was indeed timely and therefore falls within the Ninth Circuit's jurisdiction.

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The Ninth Circuit held that an immigration judge's determination in a reasonable-fear proceeding, i.e., a hearing at or after which an immigration judge determines whether a relevant foreign national was properly denied an opportunity to apply before an immigration judge for Withholding of Removal and/or Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), is reviewed not for facial legitimacy and bona fides but rather for substantial evidence. Nonetheless, using that standard, the Ninth Circuit still found that the relevant foreign national had not been incorrectly denied an opportunity to apply before the relevant immigration judge for Withholding of Removal and/or Deferral under CAT because the relevant foreign national had not shown both that the police in the country at issue were aware of the very gang-extortion activities that the relevant foreign national claimed and consequently that those police therefore breached their legal responsibility to stop it.

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The Ninth Circuit held that the BIA did not err in finding that a foreign national was barred from Asylum and Withholding of Removal because of the Serious-Nonpolitical-Crime Bar given that there was probable cause to believe that the relevant foreign national was complicit in the murders in Guatemala of three Salvadoran representatives to the Central American Parliament. The Ninth Circuit found that the BIA was correct in finding the relevant foreign national not to be credible based on the unreasonable explanation for his failing to report his violent interactions for police in his Asylum application. Finally, the Ninth Circuit concluded that the relevant foreign national did not merit Deferral of Removal under the Convention Against Torture ("Deferral under CAT") because the country to which he would be removed, Nicaragua, was not the same in which he claimed he would be tortured, El Salvador.

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The Ninth Circuit affirmed a part of the U.S. District Court's order granting in a class-action lawsuit the foreign-national class's motion to enforce a settlement agreement from 1997 setting a nationwide policy for the detention, release, and treatment of minors detained in immigration-related custody. The Ninth Circuit held that that settlement agreement, which creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards, unambiguously applies both to minors who are accompanied by their parents and to minors who are unaccompanied by their parents. However, the Ninth Circuit concluded that the U.S. District Court erred in applying the settlement agreement to the minors' parents. Finally, the Ninth Circuit agreed with the U.S. District Court's refusal to permit the government to amend the settlement agreement.

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The BIA held that in cases involving issues of mental competency, an Immigration Judge has the discretion to select and to implement appropriate safeguards, which the BIA reviews de novo. .

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The BIA held that any oral misrepresentation under oath with the subjective intent of obtaining one or more immigration-related benefits, regardless of the misrepresentation's immateriality, render the person unable to prove good moral character if such misrepresentation occurred within the relevant good-moral-character period.

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The U.S. Supreme Court held, once again and consistent with its prior decision in Descamps v. U.S., 133 S. Ct. 2276 (2013), that analysis of prior State convictions for determining relevant federal consequences requires a focus on the underlying State crimes' elements, i.e., the constituent parts of the underlying crimes' legal definitions, as opposed to the underlying State crimes' means, i.e., the facts relating to how the crimes were actually committed. The U.S. Supreme Court found that an elements-focused analysis is appropriate because a means-focused analysis would result in (1) review of factors that the U.S. Congress specifically left out of the scope of such review, (2) judges' deciding facts that only a jury is permitted to find, and (3) reliance on factors that were never proven in State criminal court because they were unnecessary for the conviction in the first place. Therefore, the U.S. Supreme Court concluded that when a State criminal statute is overbroad, meaning that more activity will violate its terms than activity that would violate the federal or generic definition of that same crime, then a prior State conviction based on that State criminal statute (a) cannot be used to determine relevant federal consequences and (b) cannot lead to the Modified Categorical Approach, i.e., review of the particular record relating to the relevant prior State conviction. However, the U.S. Supreme Court did note that review of the record of conviction in combination with the text of the State criminal statute underlying the relevant prior State conviction is permitted but only to the extent of determining whether the alternative factors at issue relate to elements or means, and the U.S. Supreme Court concluded that if such combined review does not lead to a certain determination one way or the other, something that would be rare, then the uncertainty should lead to the conclusion that the prior State conviction does not trigger relevant federal consequences.

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The U.S. Supreme Court held that because it is tied four to four, meaning four Justices, i.e., Roberts, Kennedy, Thomas, and Alito, are on one side while the other four Justices, i.e., Ginsburg, Breyer, Sotomayor, and Kagan, are on the other side, a majority decision could not be reached, thereby leaving in place the decision by the lower court, which is the U.S. Court of Appeals for the Fifth Circuit, which sustained the granting of a preliminary injunction issued by the U.S. District Court for the Southern District of Texas blocking from going into effect the Executive Actions issued on November 20, 2014 relating to implementation of Deferred Action for Parental Accountability and of the Expansion of Deferred Action for Childhood Arrivals.

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The Ninth Circuit affirmed the U.S. District Court's order dismissing for failure to state a claim a U.S. citizen's challenge of the denial of her foreign-national husband's immigrant-visa application. The Ninth Circuit found that the U.S. Department of State's consular officer who denied the relevant immigrant-visa application met the required "facially legitimate and bona fide reason" standard when he cited a valid statute of inadmissibility and gave a bona-fide factual reason that provided a "factual connection" to the concluded inadmissibility ground, namely, the belief that the relevant foreign national was a gang associate with ties to a particular gang. The Ninth Circuit held that the standard it used applies to judicial review of a denial that implicates a Constitutional right and was specifically taken from Justice Anthony Kennedy's Concurring Opinion in Kerry v. Din, 135 S.Ct. 2128 (2015).

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The BIA held that the Material-Support Bar, relating to inadmissibility pursuant to Section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act ("INA") for foreign nationals who provided material support to a terrorist organization found, does not include an exception, whether implied or otherwise, for foreign nationals who provided such material support under duress. The BIA found that it does not have authority to grant a waiver under INA Sec. 212(d)(3)(B) of a Material-Support Bar because such authority rests with the U.S. Department of Homeland Security and the U.S. Department of State.

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The Ninth Circuit vacated the U.S. District Court's order granting summary judgment for a U.S.-citizen ex-spouse of a foreign national, who following the couple's divorce sought payment from the U.S.-citizen spouse pursuant to that U.S.-citizen spouse's promise in an affidavit of support to afford the foreign national with an income of least 125 percent of the Federal Poverty Guidelines. The Ninth Circuit held that when a relevant foreign national separates from a household, the sponsor must provide that foreign national with enough income to render that foreign national with at least 125 percent of the Federal Poverty Guidelines for a household size of one. The Ninth Circuit clarified that such analysis is limited to a household size of one and not to any other members of the foreign national's new household, meaning both that the household-size analysis does not include any additional persons for whom the sponsor did not provide an affidavit of support and that the 125-percent-income analysis does not include income from any other members of the foreign national's new household.

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The Ninth Circuit held that a foreign national's claim of a car's mechanical failure alone is insufficient to establish exceptional circumstances excusing that foreign national's failure to appear at a hearing before an immigration judge in that foreign national's removal proceedings. The Ninth Circuit found that the BIA erred in disregarding as inherently unbelievable or incredible the relevant foreign national's claim of her car's mechanical failure but nonetheless concluded that even if accepted as true such claim still does not establish the required exceptional circumstances.

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The BIA held that the analysis as to whether a conviction for a violent offense amounts to a "Crime of Domestic Violence" under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA") is not limited to the Categorical Approach but may instead include a circumstance-specific inquiry, which permits recourse to all probative evidence to determine the relationship between the victim and the offender. The BIA found that the circumstance-specific inquiry includes all documents within the relevant record of conviction as well as other probative evidence such as police reports assuming such evidence is reliable. It is important to note that this determination by the BIA conflicts with a prior precedent issued by the Ninth Circuit. Separately, the BIA further held, specifically concerning an issue related to sentencing for a criminal conviction, that a subsequent clarification order issued in light of a facial discrepancy on a template sentencing order by the same judge who sentenced the relevant foreign national is acceptable to prove what the actual sentence was, namely, whether the relevant foreign national was sentenced solely to probation or instead to a probated imprisonment term.

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The U.S. Supreme Court held that because federal criminal statutes' reliance on the underlying criminalized acts' having occurred in interstate commerce is merely a jurisdictional, as opposed to, substantive element of the crime, a State or foreign criminal statute that mirrors all of the substantive elements, but not necessarily that jurisdictional element, of a federal crime determined to be an Aggravated Felony also meets the definition of Aggravated Felony despite not containing that jurisdictional element.

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The Ninth Circuit found that the BIA erred in making an adverse-credibility finding regarding a foreign national's motion to reopen because (1) the BIA is not permitted in the context of a motion to reopen to make factual findings and must instead credit evidence supporting a motion to reopen unless that evidence is inherently unbelievable and (2) an adverse-credibility finding rendered previously against a foreign national does not automatically lead to an adverse-credibility finding against that same foreign national regarding a new claim for Asylum. The Ninth Circuit held that the maxim falsus in uno, falsus in omnibus--"false in one thing, false in everything"--cannot be used by the BIA to render a foreign national's affidavit inherently unbelievable in the context of a motion to reopen because the maxim is discretionary, not mandatory, and because the BIA in such a context is an appellate body limited to reviewing an immigration judge's factual findings for clear error, as opposed to making factual determinations in the first instance.

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The BIA held that within the jurisdiction of the Ninth Circuit a conviction for solicitation to possess for sale a controlled substance, namely marijuana, triggers the Crime-Involving-Moral-Turpitude ground for inadmissibility under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA") despite that section's only specifically including inchoate, i.e., uncompleted, offenses relating to attempt and conspiracy as opposed to solicitation. The BIA found that the omission of solicitation offenses in combination with the inclusion of attempt and conspiracy offenses should not be interpreted as to mean that solicitation offenses falls outside the purview of INA Sec. 212(a)(2)(A)(i)(I).

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The Ninth Circuit held that a foreign national's presence outside of the U.S. does not render moot, i.e., no longer having practical value, his/her petition for review before the Ninth Circuit regarding an application for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") because the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement has a policy of facilitating the return of some individuals who have been removed from the U.S. but whose petitions for review have been granted by the Ninth Circuit. However, the Ninth Circuit found that the BIA was correct in determining that the relevant foreign national would not be tortured by the El Salvadoran government or with the El Salvadoran government's acquiescence because El Salvadoran law prohibits extrajudicial killings and violence and because substantial evidence supports the finding that the El Salvadoran government enforces those applicable laws, albeit imperfectly, against both gang members and rouge police officers.

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The Ninth Circuit held that the BIA erred regarding an alien-smuggling allegation charged against a foreign national in removal proceedings both (1) in failing to address an immigration judge's seemingly inconsistent credibility findings in part because of that immigration judge's not asking the relevant foreign national about apparent differences between what he testified and what he was alleged to have said previously when apprehended at the border and (2) in failing to make an explicit finding as required that the relevant foreign national engaged in "an affirmative act of help, assistance, or encouragement" of smuggling.

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The Ninth Circuit held that it lacks jurisdiction to review a denial based solely on discretion of an application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents under Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA Cancellation").

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The BIA held that the Failure-to-Appear Aggravated-Felony ground of deportability under Section 101(a)(43)(T) of the Immigration and Nationality Act ("INA") requires a two-step analysis: (1) whether an offense relates to a relevant foreign national's failure to appear before a court first must be analyzed under the Categorical Approach, but (2) whether such failure to appear was (a) pursuant to a court order (b) relating to a felony charge (c) for which a maximum possible sentence of at least two years' imprisonment must be analyzed under the Modified Categorical Approach.

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The Ninth Circuit affirmed the U.S. District Court's dismissal for lack of subject-matter jurisdiction the petition filed by the relevant foreign national to have her date of birth on her naturalization certificate amended because the Ninth Circuit found that federal courts lack authority to modify certificates of naturalization that were issued by an administrative agency.

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The Ninth Circuit reversed the U.S. District Court's dismissal for lack of subject-matter jurisdiction the petition filed by the relevant foreign national to have his date of birth on his naturalization certificate amended because the Ninth Circuit found that federal courts do have authority to modify certificates of naturalization that were issued by a federal court before October 1, 1991, which is the effective date of the Immigration Act of 1990 that divested the federal courts of the authority to amend naturalization certificates issued by a federal court but only prospectively.

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The Ninth Circuit reversed the U.S. District Court's denial of the relevant foreign national'sde-novo naturalization application allegedly based on the relevant foreign national's failure to establish the requisite good moral character due to his having previously declared under oath in a State-court child-custody-related proceeding and not under oath but to law-enforcement officials that he was married to his children's mother when he legally was not. Using a clear-error standard of review, the Ninth Circuit found that a lack-of-good-moral-character finding based not on the enumerated grounds, i.e., automatic bars to such a finding, but rather on the catch-all provision found at Section 101(f) of the Immigration and Nationality Act ("INA") cannot be due to a per-se rule but instead must be rendered only after balancing both favorable and unfavorable factors relating to the relevant naturalization applicant's moral character. The Ninth Circuit remanded the case to the U.S. District Court both to determine the materiality of the relevant foreign national's allegedly perjurious statement under oath in his declaration in the State-court child-custody-related proceeding and consequently to whether such statement under oath amounted to perjury and to consider all relevant factors in making a decision on the relevant foreign national's moral character.

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The Ninth Circuit reaffirmed both the U.S. District Court's grant of summary judgment for a group of a foreign nationals who had been granted Deferred Action for Childhood Arrivals ("DACA") and the U.S. District Court's issuance of a permanent injunction enjoining the State of Arizona's attempt to deny driver's licenses to DACA recipients based on the category of such recipients' Employment Authorization Documents that they received as a benefit of having been granted DACA. The Ninth Circuit found that such attempt by the State of Arizona is preempted by the Immigration and Nationality Act ("INA"), which gives exclusive authority to the federal government in deciding whether a foreign national's presence is authorized by federal law.

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The Ninth Circuit held that the BIA's attempt to interpret the Obstruction-of-Justice Aggravated-Felony ground of deportability under Section 101(a)(43)(S) of the Immigration and Nationality Act ("INA") differently from it had in the past so that it no longer requires a nexus to an ongoing investigation of proceeding raises grave Constitutional doubts based on vagueness of such deportability ground. The Ninth Circuit found that a conviction under California Penal Code Sec. 32, which outlaws accessory to a felony, does not require a nexus to an ongoing investigation or proceeding and therefore categorically is overbroad under the BIA's prior interpretation of INA Sec. 101(a)(43)(S).

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The BIA held that direct sibling-to-sibling DNA test results reflecting a 99.5-percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship.

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The Ninth Circuit held that California Penal Code Secs. 530.5(a) and (d)(2), which outlaw identity theft, are not categorically Crimes Involving Moral Turpitude ("CIMTs") because (1) they are not categorically fraud-related crimes and (2) they do not categorically necessarily involve vile, base, or depraved conduct. The Ninth Circuit found that the BIA's determination that a foreign national is ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") because of having one or more convictions under California Penal Code Secs. 530.5(a) and (d)(2) during the relevant good-moral-character period was erroneous because such determination was premised on a faulty Categorical-Approach analysis.

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The Ninth Circuit held that because "imputed wealthy Americans" do not comprise a cognizable particular social group based on such group's lacking particularity or a discrete class of persons recognized by Mexican society as a particular social group, an otherwise number and time barred motion to reopen seeking to have an Asylum claim heard on such basis was correctly denied by the BIA.

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The BIA held that an "offense relating to a failure to appear by a defendant for service of sentence" is an Aggravated Felony under Section 101(a)(43)(Q) of the Immigration and Nationality Act ("INA") if the underlying offense was "punishable by" imprisonment for a term of five years or more, regardless of the penalty actually ordered or imposed.

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The Ninth Circuit held that California Penal Code Sec. 118(a), which outlaws both oral and written perjury, is not categorically a Crime Involving Moral Turpitude ("CIMT") but is divisible and therefore subject to the Modified Categorical Approach. The Ninth Circuit found that if one is convicted for written perjury, as opposed to oral perjury, under California Penal Code Sec. 118(a), then the conviction is not for a CIMT because the violation need not occur in a judicial proceeding and need not be following an oral oath with its requisite solemnity.

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The BIA held that although the U.S. Department of Homeland Security has exclusive jurisdiction over applications for Adjustment of Status under the legalization provisions of Section 245A of the Immigration and Nationality Act ("INA"), immigration judges and the BIA have jurisdiction to determine whether a foreign national was eligible for a previous adjustment under INA Sec. 245A(b)(1) for purposes of assessing that foreign national's removability and current eligibility for relief from removal. Furthermore, a foreign national seeking to acquire Lawful Permanent Residence ("Green Card") through the legalization provisions of INA Sec. 245A must establish admissibility, both at the time of the initial application for temporary-resident status and again when applying for adjustment to permanent-resident status. Finally, an foreign national who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under INA Sec. 245A(b)(1) was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former INA Sec. 212(c).

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The Ninth Circuit affirmed the U.S. District Court's judgment on the pleadings to denaturalize a foreign national who had been erroneously naturalized as a U.S. citizen when he had committed a robbery within the five years immediately preceding the filing of his relevant naturalization application despite having only been convicted after having already naturalized. The Ninth Circuit found that there were no extenuating circumstances that could otherwise overcome a finding of a lack of good moral character during the required five years immediately preceding the filing of the relevant naturalization application because such requirement of good moral character contains a "catch-all" provision under 8 C.F.R. Sec. 316.10(b)(3)(iii) and because the Ninth Circuit was bound by the criminal-court conviction.

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  • Bianka M. v. Superior Court- filed March 2, 2016

The California Court of Appeal for the Second District, Division 3 held that to the extent a juvenile seeks from a California Superior Court a custody order and/or findings required under the Special Immigration Juvenile Status ("SIJS") program based on one or more that juvenile's parents' abuse, neglect, or abandonment and to the extent that the identity and whereabouts of one or both of the actual or alleged parents are known, not only must all pertinent facts relating to parentage, abuse, neglect, or abandonment be included in a relevant petition but also the parent(s) at issue must be named as a party and must be served a copy of the relevant summons and that petition. Aware that personal jurisdiction over a parent who has never been in the U.S. may be difficult to establish, the California Court of Appeal for the Second District, Division 3 found that a juvenile may attempt instead to obtain the sought relief by entering into a stipulated judgment with that parent.

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The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach. In a Concurring Opinion, Ninth-Circuit Judge Watford added that a conviction that cannot be proven to render a foreign national removable because of its overbreadth necessarily cannot render such foreign national ineligible for an application for relief from removal simply because it cannot be established as to whether that foreign national's actual activity for which s/he was convicted falls inside of or outside of criminal activity proscribed by the Immigration and Nationality Act ("INA").

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  • Pena v. Lynch- filed September 28, 2015 BUT amended February 18, 2016

The Ninth Circuit held that because of a statutory restriction on its authority it does not have jurisdiction to review the affirmation by an immigration judge of a negative credible-fear finding made by an Asylum officer. However, the Ninth Circuit found that it nonetheless retains jurisdiction to review such findings in so far as such review is sought regarding colorable Constitutional claims, such as a violation of procedural Due Process, if any are made.

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The BIA held that the offense of endangering the welfare of a child in violation of Section 260.10(1) of the New York Penal Law, which is knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a "crime of child abuse, child neglect, or child abandonment" under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA").

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The Ninth Circuit held that two separate possession-of-a-controlled-substance convictions relating to two different controlled substances will nonetheless be treated as one offense regarding first-offender treatment under the Federal First Offender Act ("FFOA"), thereby rendering without negative immigration-related consequences if FFOA applies, if the two convictions arise out of a single event, composed a single criminal case, and triggered a single, undivided sentence.

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The Ninth Circuit held that the BIA did not err in interpreting the Immigration and Nationality Act Sec. 245(i) in a manner that does not render a foreign national eligible for adjustment of status to that of Lawful Permanent Residence ("Green Card") under its provisions if such foreign national was substituted in as a beneficiary of a Labor Certification Application after the relevant sunset date even if the Labor Certification Application itself was filed for a different beneficiary on or before that sunset date.

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The Ninth Circuit held that the statutory language of California Penal Code Sec. 273a(a), which defines and outlaws child abuse, is not only indivisible but also broader than the generic federal definition of "Crime of Violence" found at 18 U.S.C. Sec. 16. Therefore, the Ninth Circuit found that a foreign national convicted of a felony under California Penal Code Sec. 273a(a) is not removable for a "Crime-of-Violence" Aggravated Felony.

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The Ninth Circuit held that it retains jurisdiction over petitions for review from an order from the BIA even if that order remands a foreign national's removal proceedings to the relevant immigration judge for proceedings related to voluntary departure but only if all other substantive matters judicially reviewable by the Ninth Circuit have otherwise been finalized. The Ninth Circuit reasoned that it does not have jurisdiction to review a discretionary denial of voluntary departure and therefore does not need to await resolution of remanded proceedings relating only to voluntary departure to take jurisdiction over a petition for review. The Ninth Circuit found though that it did not have jurisdiction over a foreign national's petition for review when that foreign national did not exhaust administratively his Asylum claim and when the manner in which the relevant immigration judge conducted that foreign national's removal proceedings did not deprive that foreign national of Due Process.

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  • People v. Araujo- filed January 7, 2016

The California Court of Appeal for the Second District, Division 6 held that a foreign national does not have a legitimate claim under California Penal Code Sec. 1016.5 to have a criminal conviction with negative immigration-related consequences vacated when the record of conviction establishes that she had been read the plea-form warnings, which include the required immigration-related advisement under California Penal Code Sec. 1016.5, by an interpreter in her native language; had verbally answered affirmatively when asked whether the entire plea form had been read to her; and initialed the immigration-related advisement on the plea form. That holding was not altered simply because the foreign national was not given the immigration-related advisement warning verbally on the record; the plea form had not been signed by the interpreter; and the immigration-related advisement on the plea form contained superfluous immigration-related warnings that are not required by California Penal Code Sec. 1016.5. Furthermore, the California Court of Appeal for the Second District, Division 6 found that the foreign national's lengthy criminal history, immigration-related custody hold at the time of her underlying criminal proceedings, and brief departure from the U.S. to avoid federal prosecution for illegal reentry made any argument relating to prejudice disingenuous.

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The Ninth Circuit held that foreign nationals could prove detrimental reliance in the context of a five-factor retroactivity analysis pertaining to their applications to adjust status to Lawful Permanent Residence ("Green Card") despite inadmissibility under Immigration and Nationality Act Sec. 212(a)(9)(C) if foreign nationals incurred expenses while seeking to adjust status during the 21-month period between when the Ninth Circuit issued a precedent decision finding them eligible for such benefit despite their having unlawfully reentered the U.S. following their departure after having accrued a statutorily significant period of unlawful presence and when the BIA issued its own precedent decision finding them ineligible for such benefit because of their unlawfully reentering the U.S. following their departure after having accrued a statutorily significant period of unlawful presence.

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The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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The Ninth Circuit held en banc that the statutory text of California Penal Code Sec. 10851(a), which outlaws vehicle theft, was both overbroad and indivisible, rendering any conviction under California Penal Code Sec. 10851(a) devoid of any removability-related consequences. Specifically, the Ninth Circuit found that when the statutory language of a crime has within it alternative means of accomplishing that same crime as opposed to accomplishing two separate crimes, then such statutory language is indivisibly overbroad and therefore not subject to the Modified Categorical Approach.

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  • People v. Asghedom- filed December 18, 2015

The California Court of Appeal for the Sixth District found that a foreign national can establish the requisite prejudice for a motion to vacate under California Penal Code Sec. 1016.5 regarding a criminal conviction that has negative immigration-related consequences by establishing that it was reasonably probable that the foreign national would not have pleaded guilty or no contest if properly advised. The California Court of Appeal for the Sixth District held that such "reasonably probable" standard may be met by addressing the factors that are relevant to such issue, including but not limited to the presence or absence of other plea offers, the seriousness of the charges in relation to the plea bargain, the foreign national's criminal record, the foreign national's priorities in plea bargaining, the foreign national's aversion to immigration-related consequences, and whether the foreign national had reason to believe that the charges would allow an immigration-neutral bargain that a California Superior Court would accept.

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The Ninth Circuit held en banc that where the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement seeks to deport an alleged foreign national who presents credible evidence of U.S. citizenship, such claim to U.S. citizenship may be rebutted by "clear, unequivocal, and convincing" evidence, identical to the traditional civil intermediate burden of proof. The Ninth Circuit also held that a U.S. District Court's findings of fact in an alienage-determination case are reviewed on appeal for "clear error" because such determination if based on the location of the relevant foreign national's birth is a factual finding.

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The BIA held that a term of confinement in a substance-abuse-treatment facility imposed as a condition of probation pursuant to article 42.12, Section 14(a) of the Texas Code of Criminal Procedure constitutes a "term of confinement" under Section 101(a)(48)(B) of the Immigration and Nationality Act ("INA") for purposes of determining if an offense is a "Crime-of-Violence" Aggravated Felony under INA Sec. 101(a)(43)(F).

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The BIA held that ten years of continuous physical presence required by 8 C.F.R. Sec. 1240.66(c)(2) for relevant foreign nationals seeking Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents under Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA Cancellation") should be measured from a relevant foreign national's most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. Sec. 1240.66(c)(1).

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The Ninth Circuit found that whether someone qualifies as being a member of a particular social group for purposes of Asylum and Withholding of Removal, the analysis requires looking to whether that group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. The Ninth Circuit added that the third criterion, i.e., being socially distinct within the society in question, should be analyzed through the lens of perception as a group by society as opposed to the Ninth Circuit's prior precedent's focusing instead on perception of the persecutor. The Ninth Circuit held that "the family" nonetheless remains under such a revised analysis "the quintessential particular social group."

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The BIA held that (1) the requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inappropriate regarding a foreign-national respondent's testimony regarding events of which he or she has personal knowledge and (2) conduct by an immigration judge that can be perceived as bullying or hostile is never proper, particularly in cases involving minor respondents, and may result in remand to a different immigration judge.

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The Ninth Circuit held that a foreign national who is being sentenced in relation to being prosecuted for illegal reentry into the U.S. cannot have such sentence increased based on a finding of having been previously convicted of a Crime of Violence if the statutory language of the very conviction that is being found to be a Crime of Violence does not match or is not narrower than the federal generic definition of that crime.

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The Ninth Circuit held that a conviction under a statute that contains an element of "intent to defraud" as necessary to be convicted for any activity proscribed by that statute is for a Crime Involving Moral Turpitude and, furthermore, renders a foreign national ineligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation"), even though the statutory petty-offense exception may otherwise apply, if the maximum possible sentence includes at least a year of imprisonment.

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The BIA held that (1) neither party bears a formal burden of proof in removal proceedings to establish whether or not a foreign-national respondent is mentally competent, but where signs of incompetency are identified, the relevant immigration judge should determine if a preponderance of the evidence establishes that that foreign-national respondent is competent and (2) an immigration judge's finding of competency is a finding of fact that the BIA reviews to determine if it is clearly erroneous.

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The Ninth Circuit affirmed in part the U.S. District Court's permanent injunction requiring that any member of the previously certified class, composed of (1) foreign nationals purportedly held in mandatory immigration-related custody due to perceived criminal activity, (2) foreign nationals purportedly held in mandatory immigration-related custody due to being perceived as Arriving Aliens, and (3) foreign nationals purportedly held in discretionary immigration-related custody due to being perceived as a threat to the community or a flight risk, to be provided automatically a bond hearing once her/his immigration-related detention reaches six months, that such bond hearings be before an immigration judge who should maintain a contemporaneous record of such bond hearings and should consider alternatives to detention, and that at such bond hearings the need for continued detention based on threat to the community or flight risk be established only by clear and convincing evidence. The Ninth Circuit held that bond hearings should be provided periodically at six-month intervals for class members detained for more than twelve months, but the Ninth Circuit declined to require that immigration judges during such bond hearings consider likelihood of removal in the future or length of prospective detention in the future. The Ninth Circuit declined to extend class certification to foreign nationals purportedly held in discretionary immigration-related custody due to being perceived as having administratively and judicially final orders of removal and are awaiting actual physical removal but who have received an administrative or judicial stay of removal because the Ninth Circuit found that such a paradoxical sub-class does not exist.

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The BIA held again that (1) where a foreign national has the right to a hearing before an immigration judge, a voluntary departure or return does not break that relevant foreign national's continuous physical presence for purposes of Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") in the absence of evidence that the relevant foreign national was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border and (2) proof that a foreign national who had the right to a hearing before an immigration judge was fingerprinted and/or photographed before being allowed depart the U.S. voluntarily is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.

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The BIA held that (1) where a foreign national has the right to a hearing before an immigration judge, a voluntary departure or return does not break that relevant foreign national's continuous physical presence for purposes of Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") in the absence of evidence that the relevant foreign national was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border and (2) proof that a foreign national who had the right to a hearing before an immigration judge was fingerprinted and/or photographed before being allowed depart the U.S. voluntarily is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.

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The Ninth Circuit held that a California conviction for residential burglary under California Penal Code Sec. 459 with a sentence of at least a year of imprisonment cannot render a foreign national removable for a "Crime-of-Violence" Aggravated Felony because of the unconstitutional vagueness of the particular definition of "Crime of Violence" found at 18 U.S.C. Sec. 16(b), on which the Ninth Circuit had erroneously relied in previously finding that a conviction for residential burglary under California Penal Code Sec. 459 with a sentence of at least a year of imprisonment categorically was for a "Crime-of-Violence" Aggravated Felony. The Ninth Circuit found that a state conviction cannot render one removable for being a "Crime-of-Violence" Aggravated Felony if such rendering is based on that state conviction falling within the unconstitutionally vague definition of "Crime of Violence" found at 18 U.S.C. Sec. 16(b).

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The Ninth Circuit held that for purposes of the "Stop-Time Rule" for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") the date of service of a Notice to Appear triggers a stopping of the clock regarding the requisite period of continuous presence even if that Notice to Appear does not specify a date and location of a removal hearing. Such holding overturned the Ninth Circuit's prior published precedent, which the Ninth Circuit found was superseded by the BIA's intervening published decision to which the Ninth Circuit deferred because it was a reasonable interpretation of an otherwise ambiguous statutory subsection.

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The Ninth Circuit affirmed the lower U.S. District Court's denial of a foreign national's claim that his initial removal order was invalid based on the foreign national's argument that the relevant immigration judge violated his due-process rights. Instead, the Ninth Circuit found that even though the relevant immigration judge did fail to inform the foreign national that he might have been eligible for voluntary departure, the defendant could not show any actual prejudice, i.e., negative consequences, from the relevant immigration judge's mistake because the foreign national could show that it was even plausible that he would have been granted voluntary departure given his lack of positive equities and his lack of proof that similarly situated foreign nationals actually received voluntary departure. Therefore, the Ninth Circuit concluded, the foreign national was correctly convicted of being found in the U.S. after having already been removed.

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The Ninth Circuit found that a U.S.-lawful-permanent-resident foreign national was removable for a Controlled-Substances-Related Offense because he had pleaded no contest to simple possession of a controlled substance under California Health & Safety Code Sec. 11377(a) but as a "Lesser Included Offense" of California Health & Safety Code Sec. 11379(a), which outlaws sale of methamphetamine and of which he was originally charged as violating. Specifically, using the "Modified Categorical Approach," the Ninth Circuit held that clear and convincing evidence proved that the foreign national had pleaded to and was convicted of possession of methamphetamine despite the term "methamphetamine" not specifically existing within the charge of which he was ultimately convicted because such term nonetheless existed within the original charge.

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The Ninth Circuit held that a California conviction for possession of child pornography under California Penal Code Sec. 311.11(a) is not an Aggravated Felony because its definition of "sexual conduct" is indivisibly overbroad when compared to the federal generic definition of the crime.

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The Ninth Circuit held that the "intent to endanger" requirement under the terrorist-activity-related ground for inadmissibility pertains to a factual issue, as opposed to a legal one, that the BIA must review for clear error.

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The Ninth Circuit held that the REAL ID Act permits background documents to serve as a sole basis for an adverse-credibility determination in relation to applications for Asylum, Withholding of Removal, and Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), thereby justifying the denial of such applications.

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The BIA held that (1) significant similarities between statements submitted by applicants in different proceedings can be considered by an immigration judge in making an adverse-credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings and (2) when relying on inter-proceeding similarities, the relevant immigration judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.

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The Ninth Circuit held that it does not have jurisdiction to review whether the BIA correctly found a conviction to constitute a "Particularly Serious Crime" in relation to determining eligibility for Withholding of Removal where the BIA properly characterizes the facts and circumstances surrounding the conviction. Turning to the issue of Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), the Ninth Circuit found that because gender identity and sexual orientation are two different concepts, the BIA erred in assuming anti-discrimination laws in Mexico protect transgendered individuals when significant record evidence establishes the opposite.

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The Ninth Circuit held that a California conviction for voluntary manslaughter under California Penal Code Section 192(a) with a sentence of at least one year of imprisonment cannot be deemed a "Crime-of-Violence" Aggravated-Felony "Particularly Serious Crime" rendering one ineligible for Withholding of Removal because the minimum intent required to commit such a crime, i.e., reckless conduct, results in the crime being overbroad when compared to the definition of "Crime of Violence" under 18 U.S.C. Sec. 16, which requires intentional use of force or substantial risk that force will be intentionally used. Regarding Deferral of Removal under the Convention Against Torture ("Deferral under CAT"), the Ninth Circuit held that the aggregate risk of torture must be considered, as opposed to individual risks of torture being treated as separate claims.

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The Ninth Circuit held regarding applications for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") that when the BIA considers country-conditions reports that discuss torture conducted by a foreign-national applicant's home country but concludes that such country-conditions reports do not establish that the foreign-national applicant will likely be tortured upon return to her/his home country then the BIA has fulfilled its requirements in relation to such country-conditions reports. The Ninth Circuit found that when country-conditions reports establish that foreign-national applicants for Deferral under CAT with gang-related tattoos are tortured upon return to their home country such evidence does not necessarily prove that any tattoos, even ones that are not gange-related, will result in such torture.

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The Ninth Circuit held that foreign-national applicants for Adjustment of Status to Lawful Permanent Residence ("Green Card") under Immigration and Nationality Act Sec. 245(i) should be permitted to have such applications adjudicated and not denied based on lack of eligibility even if they would otherwise be barred under Immigration and Nationality Act Sec. 212(a)(9)(C) if, in part, their relevant applications were filed based on reasonable reliance on the case law in existence during the 21-month period between when the Ninth Circuit issued a precedent decision finding them eligible for such benefit despite their having unlawfully reentered the U.S. following their departure after having accrued a statutorily significant period of unlawful presence and when the BIA issued its own precedent decision finding them ineligible for such benefit because of their unlawfully reentering the U.S. following their departure after having accrued a statutorily significant period of unlawful presence.

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The Ninth Circuit held that a foreign national cannot derive U.S. citizenship from a step-parent, who never adopted that foreign national, because the term "child" under the Immigration and Nationality Act ("INA") is specifically defined regarding derivative citizenship in that it does not include a relationship between a foreign national and a U.S.-citizen step-parent.

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The BIA held that (1) where a foreign-national applicant has filed an Asylum application before the May 11, 2005 effective date of the REAL ID Act of 2005 and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of Section 208(b)(1)(B)(iii) of the Immigration and Nationality Act ("INA") to credibility determinations; (2) a subsequent Asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis; and (3) where a foreign national has filed more than one application for Asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the one-year statutory time bar applies under INA Sec. 208(a)(2)(B).

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The Ninth Circuit held that patently erroneous and legally dead-wrong advice by a prior attorney amounts to ineffective assistance of counsel can be used to establish equitable tolling of the filing deadline for a motion to reopen. The Ninth Circuit found that a foreign national's prior attorney's advice to forfeit the right to appeal to the BIA and instead to leave the U.S. to apply for a visa for which the foreign national was statutorily ineligible was indeed patently erroneous and legally dead-wrong advice by that prior attorney as opposed to, as the BIA erroneously concluded, reasonable tactical advice.

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The Ninth Circuit held that the statutory criminal-conviction-related jurisdictional bar concerning the U.S. courts of appeals' review of final orders of removal issued by the BIA does not apply to, and therefore does not stop a U.S. court of appeals from taking jurisdiction over, a petition for review concerning denial by an immigration judge of a procedural motion that is denied for a reason independent of the very criminal conviction that triggers the jurisdictional bar.

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The Ninth Circuit reversed the lower U.S. District Court's dismissal of a foreign national's petition for writ of habeas corpus because such denial erroneously applied an incorrect legal standard in deciding whether a foreign national's prior attorney's representation fell below an objective standard of reasonableness. The Ninth Circuit found that where the law is clear on the immigration consequence of a foreign national's plea agreement, such as where the Immigration and Nationality Act ("INA") expressly identifies the foreign national's prospective conviction as a ground for removal, then a foreign national's criminal-defense attorney must advise the foreign national that removal would be a virtual certainty even if certain forms of extraordinary immigration-related relief might still be available statutorily. The Ninth Circuit held that whether the plea agreement or the criminal court warns of potential immigration-related consequences is immaterial to the issue of whether a foreign national's criminal-defense attorney's representation fell below an objective standard of reasonableness. The Ninth Circuit also found sufficient specifically regarding the issue of prejudice, and consequently whether it would be reasonably probable that the outcome of the criminal proceedings would be different had a foreign-national criminal defendant been advised properly, evidence of four recent cases before the same U.S. District Court before which the relevant foreign national was convicted wherein the criminal defendants in those four cases were charged with same crime but ultimately pleaded to lesser charges following a plea bargain, but the Ninth Circuit found that a foreign-national criminal defendant could also prove the required prejudice by showing either that s/he settled on a charge in a purposeful attempt to avoid an adverse effect on her/his immigration-related status or that s/he would have taken the relevant criminal case to trial instead of accepting a plea bargain that would result in deportation. Finally, the Ninth Circuit held that an evidentiary hearing is not required regarding post-conviction relief provided that an expansion of the record is nonetheless permitted to allow for the specific issues regarding such request for post-conviction relief may be particularly analyzed by the relevant U.S. District Court.

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The Ninth Circuit held following remand from the U.S. Supreme Court that a state drug-paraphernalia-possession conviction can be treated as a Controlled-Substances-Related Offense under the Immigration and Nationality Act ("INA") only if it relates to a controlled substance specifically listed on one of the five federal controlled-substances schedules. The Ninth Circuit found that any of its or the BIA's prior decisions holding otherwise have been overruled by the U.S. Supreme Court.

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The BIA held that (1) neither an immigration judge nor the BIA has jurisdiction to consider whether Asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program and (2) it is improper to deem an application for relief abandoned based on the relevant foreign-national applicant's failure to comply with the biometrics-submission requirement where the record does not reflect that the relevant foreign-national applicant received notifications concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of her/his failure to comply.

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The BIA held that a notice to appear that was served to the relevant foreign national but never resulted in the commencement of removal proceedings does not have a "stop-time" effect for purposes of establishing eligibility for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") pursuant to Section 240A(d)(1) of the Immigration and Nationality Act ("INA").

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The Ninth Circuit held that a U.S. District Court cannot deny a foreign-national criminal-defendant release on bond based on the likelihood that such foreign-national criminal defendant would be taken into immigration-related custody following such release and thereafter deported, resulting in such foreign-national criminal defendant's not appearing in her/his criminal proceedings.

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  • In re Christian H.- filed July 21, 2015

The California Court of Appeal for the First District, Division 3 held that a California Juvenile Court cannot rule on the one hand that it would be in the best interests of a minor to be returned to her/his home country for the purpose of a disposition following a sustained juvenile petition while on the other hand that it would not be in the best interests of a minor to be returned to her/his home country for the purpose of establishing eligibility under the Special Immigrant Juvenile Status ("SIJS") program.

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The Ninth Circuit affirmed a U.S. District Court's conviction of a foreign-national criminal defendant for illegal reentry after having been deported because the foreign-national criminal defendant's previous deportation was correctly premised on a federal controlled-substances felony conviction, which automatically is a Controlled-Substances-Trafficking Aggravated Felony under the Immigration and Nationality Act ("INA").

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The Ninth Circuit affirmed a U.S. District Court's conviction of foreign-national criminal defendants for provision of false information on a passport application despite the foreign-national criminal defendants' argument that the U.S. District Court erred in not instructing the jury to find that they had specific intent to violate the passport laws because, as the Ninth Circuit found, specific intent is not required to be convicted of such an offense.

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The Ninth Circuit reversed a U.S. District Court's dismissal of a foreign-national criminal defendant's petition for writ of error coram nobis because the basis of affirmative misadvice by a criminal-defense attorney, as opposed to failure to advise on that criminal-defense attorney's own initiative, relating to immigration-related consequences of a proposed plea deal is applicable retroactively, meaning it may be used to have vacated criminal convictions that preceded the Ninth Circuit's precedent decision on which such a basis normally relies. The Ninth Circuit found that the affirmative-misadvice basis existed prior to that Ninth-Circuit precedent decision, which the Ninth Circuit consequently found did not establish a new rule of criminal procedure that would otherwise be inapplicable retroactively.

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The BIA held that a beneficiary of a visa petition who was adopted pursuant to a State-court order that was entered when the beneficiary was more than sixteen years old, but with an effective date prior to his or her sixteenth birthday, may qualify as an adopted child under Section 101(b)(1)(E)(i) of the Immigration and Nationality Act ("INA") so long as the adoption petition was filed before the beneficiary's sixteenth birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively.

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The Ninth Circuit reversed a U.S. District Court's conviction of a foreign-national criminal defendant's conviction for illegal reentry after deportation because that foreign-national criminal defendant's U.S.-Constitutional Fifth-Amendment Due-Process right had been violated, possibly prejudicially, regarding that underlying deportation order and despite his clear deportability because he was ordered deported without first being advised by the relevant immigration judge of a form of relief for which that foreign-national criminal defendant was statutorily eligible.

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The BIA held that an attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before immigration judges was appropriately suspended from practice before the U.S. Department of Justice's Executive Office for Immigration Review's U.S. Immigration Courts ("Immigration Courts"), the BIA, and the U.S. Department of Homeland Security for a period of sixteen months and prohibited from appearing telephonically before the Immigration Courts for seven years.

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The Ninth Circuit held that the departure-bar regulations concerning motions to reopen or to reconsider made before either an immigration judge or the BIA are invalid, regardless of whether the motioning foreign national departed the U.S. involuntarily or voluntarily because superseding statutory text of makes clear that regardless of whether a foreign national had departed the U.S., his or her right to file a motion to reopen or to reconsider is not limited by a departure.

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The Ninth Circuit held that a misdemeanor conviction for "unlawful laser activity" in violation of California Penal Code Sec. 417.26 is not a categorical "Crime Involving Moral Turpitude" because, using the "Categorical Approach," that crime can be violated by conduct which resembles only simple assault with no turpitudinous tendencies rather than a terrorizing threat, which turpitudinous.

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The BIA held that a foreign national returning to the U.S. who has been granted Lawful Permanent Residence ("Green Card") cannot be regarded as seeking an admission and may not be charged with inadmissibility under Section 212(a) of the Immigration and Nationality Act ("INA") if he or she does not fall within any of the exceptions in INA Sec. 101(a)(13)(C).

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The U.S. Supreme Court found that the U.S. Constitutional rights of a U.S. citizen were not violated by the denial of a full explanation from the U.S. Department of State of why that U.S. citizen's foreign-national husband's immigrant-visa application was denied. The Court maintained that there was no deprivation of life, liberty, or property; therefore, the U.S. Constitution's Fifth-Amendment Due-Process Clause did not apply. The Court discussed how Due Process has been construed to refer to fundamental rights and concluded that there is no legal precedent that supports the notion that the right to live with one's spouse in the U.S. is a "fundamental right."

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The U.S. Supreme Court held that because prior precedent has established that U.S. circuit courts of appeals have jurisdiction over a foreign national's petition for review of a BIA decision to deny a motion to reopen proceedings, such jurisdiction therefore extends to cases where the BIA, instead of denying a motion to reopen on its merits, rejects a motion to reopen as untimely, rejects a motion requesting equitable tolling of the time limit, or renders a separate decision not to exercise its sua-sponte authority to reopen. The Court interpreted the U.S. Congress's limiting of the U.S. circuit courts of appeals' jurisdiction to decide the merits of whether the case should be reopened nonetheless not to affect the U.S. circuit courts of appeals' jurisdiction over the BIA's decision to reject a motion to reopen.

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  • Matter of J-R-R-A-- filed June 11, 2015

The BIA held that if an applicant for Asylum has competency issues that affect the reliability of her/his testimony, the relevant immigration judge should as a safeguard generally accept her/his fear of harm as subjectively genuine based on the relevant foreign-national applicant's perception of events.

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The Ninth Circuit denied a U.S.-lawful-permanent-resident foreign national's petition for review of the BIA's decision finding that her conviction for conspiracy to commit money laundering in violation of 18 U.S.C. Sec. 1956(h) qualified as an "Aggravated Felony" because the amount of funds exceeded $10,000.00 as required by 8 U.S.C. Sec. 1101(a)(43)(D). The Ninth Circuit found that the BIA correctly determined that the $10,000.00 monetary threshold refers to the "specific circumstances" of a money-laundering offense as opposed to an element of a generic crime. Therefore the BIA correctly relied on the "Presentence Report," despite such document's not being a part of what is traditionally perceived as the "Record of Conviction," to determine whether the $10,000.00 threshold amount was met. However, the Ninth Circuit further found that the BIA erred in also relying on the language of charges of which the foreign national was not convicted to find that the $10,000.00 threshold amount was met, but the Ninth Circuit nonetheless concluded that such error was harmless because the BIA specifically referenced the "Presentence Report" as well in its decision.

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The Ninth Circuit found that a foreign national who had entered the U.S. without authorization and who had been convicted of a removable criminal offense was not entitled to seek an 8 U.S.C. Sec. 1182(h)(2) inadmissibility waiver in conjunction with his "Special Rule Cancellation of Removal" application because he does not meet the definition of a "Violence Against Women Act ("VAWA") Self-Petitioner." The Ninth Circuit held that while a "VAWA Self-Petitioner" may seek such a waiver, a "Special Rule Cancellation of Removal" applicant cannot.

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  • Matter of Fajardo Espinoza- filed June 8, 2015

A grant of Family-Unity-Program benefits does not constitute an "admission" to the U.S. under Section 101(a)(13)(A) of the Immigration and Nationality Act ("INA") for purposes of establishing that a relevant foreign national has accrued the requisite seven years of continuous residence after having been "admitted in any status" to be eligible for Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation"), thereby refusing to follow the Ninth Circuit's prior published opinion in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006).

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The Ninth Circuit found that a foreign national who never formally entered into the U.S. has no U.S. Constitutional Fifth-Amendment right to procedural Due Process. Even though the relevant immigration judge, within that immigration judge's discretion, admitted into evidence an unsworn, unauthenticated, and hearsay letter prepared for litigation by the U.S. Department of State to form the sole credibility-based ground for denying Asylum to the foreign national, the immigration judge was not obligated to require the letter writer to testify and to be cross-examined regarding it.

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The Ninth Circuit found that its prior published precedent was no longer tenable because of the BIA's intervening and contradictory published opinion finding that acceptance into the Family Unity Program ("FUP") did not constitute an "admission" into the U.S. Such prior published precedent by the Ninth Circuit was found untenable by the Ninth Circuit not only because the BIA's intervening contradictory interpretation of the Immigration and Nationality Act on the relevant issue, i.e., the definition of "admission" and whether it included acceptance into FUP, but also because the Ninth Circuit's prior published precedent did not state that its interpretation followed from the unambiguous terms of the statute. Consequently, for purposes of Cancellation of Removal for Certain Lawful Permanent Residents ("LPR Cancellation"), which requires tan applicant to have resided in the U.S. for at least "7 years after having been admitted in any status," the foreign national was not eligible for relief from removal.

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  • Matter of Francisco-Alonzo- filed June 2, 2015

The BIA held that in order to determine whether a conviction is for a "Crime-of-Violence" Aggravated Felony under 18 U.S.C. Sec. 16(b), the proper inquiry is whether the conduct caused by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the "ordinary case," but such approach was specifically not following within the jurisdiction of the Ninth Circuit in the Ninth Circuit's subsequent decisions in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and U.S. v. Hernandez-Lara (9th Cir. Mar. 29, 2016).

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The U.S. Supreme Court held that a state controlled-substances-related conviction cannot render a foreign national removable for a Controlled-Substances-Related Offense unless it establishes the name of the controlled substance at issue and unless that established controlled substance exists on one of the five federal controlled-substances schedules listed under the Controlled Substances Act. The U.S. Supreme Court further held that without a complete match between the list of controlled substances outlawed by a state and the five federal controlled-substances schedules under the Controlled Substances Act, a Controlled-Substances-Related Offense under the Immigration and Nationality Act cannot be proven without the name of the controlled substance at issue being established.

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  • Matter of Z-Z-O-- filed May 26, 2015

The BIA held that (1) an immigration judge's predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly-erroneous standard of review, thereby overruling Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), and (2) whether a foreign-national Asylum applicant has an objectively reasonable fear of persecution based on the events that a relevant immigration judge found may occur upon that foreign-national applicant's return to the country of removal is a legal determination that is subject to de-novo review.

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The Ninth Circuit held that U.S. Immigration Laws could properly be applied to a foreign national within the Commonwealth of the Northern Mariana Islands even though that foreign national entered that territory, committed the crime, and was convicted all before the U.S. Immigration Laws were even extended to the territory by 48 U.S.C. Sec. 1806. The Ninth Circuit found that such application is permissibly retroactive, in that the new laws apply to past convictions so the foreign national's conviction for assault with a deadly weapon not only was for a Crime Involving Moral Turpitude but also rendered that foreign national removable under the Immigration and Nationality Act.

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The Ninth Circuit held that a foreign national's waiver of appeal from an immigration judge's removal order was not considered and not intelligent and therefore not valid when it was based on the relevant immigration judge's erroneous determination that the foreign national's conviction was for an Aggravated Felony that rendered that foreign national ineligible for relief from removal. Consequently, the Ninth Circuit found that the BIA had jurisdiction over the foreign national's motion for reconsideration.

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The Ninth Circuit ruled that if the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement detains a foreign national during a period of pending possible criminal prosecution, s/he is subsequently entitled to credit toward a criminal sentence for the detention period served. The Ninth Circuit added that the foreign national is also entitled to credit for such time spent even after s/he is indicted or charges are filed. The Ninth Circuit interpreted the sentencing-credit statute in a manner that established that one must be held under "official detention" to have such time being held credited toward a potential criminal sentence and held that detention of a foreign national by the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement pending possible criminal prosecution counts as such "official detention."

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Adjustment of status constitutes an "admission" for purposes of determining a relevant foreign national's eligibility to apply for a waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act ("INA").

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The Ninth Circuit en banc held regarding applications for Deferral of Removal under the Convention Against Torture ("Deferral under CAT") that (1) if there is "solid evidence" that a foreign national was physically present in the U.S. despite having been removed then a petition for review before the Ninth Circuit concerning a Deferral-under-CAT application is not moot because the foreign national has a "personal stake in the outcome of the lawsuit" and (2) an immigration judge must consider all relevant evidence in determining whether a Deferral-under-CAT applicant has demonstrated that it is more likely than not that s/he will be tortured if removed, including the possibility of relocation within the Deferral-under-CAT applicant's country of removal, but the Deferral-under-CAT applicant is not required to demonstrate that internal relocation within that country is impossible.

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  • Matter of J-H-J-- filed May 12, 2015

The BIA held that a foreign national who adjusted status in the U.S., and who has not entered as a Lawful Permanent Resident, is not barred from establishing eligibility for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act ("INA") as a result of an Aggravated-Felony conviction, thereby withdrawing Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

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The Ninth Circuit found that the BIA's heightened-standard rule under Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), regarding discretionary-relief applicants who have been convicted of violent or dangerous crimes could be applied to adjustment-of-status applications, does not obligate the "Categorical Approach" to be used, and is subject to discretion that is unreviewable by the Ninth Circuit.

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The BIA held that a foreign national who voted in an election involving candidates for federal office in violation of 18 U.S.C. Sec. 611(a) is removable under Section 237(a)(6)(A) of the Immigration and Nationality Act ("INA") regardless of whether that foreign national knew that he or she was committing an unlawful act by voting.

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  • Matter of Montiel- filed April 17, 2015

The BIA held that removal proceedings can be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction.

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The Ninth Circuit found that the defendants, which included the Maricopa County Sheriff's Office and its sheriff, used unconstitutional practices that extended beyond the regular policies of what they can usually do in the patrol context. The Ninth Circuit held that a sheriff's office cannot consider race as a factor in determining where to conduct patrol operations and in deciding whom to stop and to investigate for immigration violations.

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  • Matter of Simeio Solutions, LLC- filed April 9, 2015

The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) because a change in the place of employment of a foreign-national beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers ("LCA") be certified to the U.S. Department of Homeland Security with respect to that foreign national beneficiary may affect eligibility for H-1B nonimmigrant status, it is therefore a material change for purposes of 8 C.F.R. Secs. 214.2(h)(2)(i)(E) and (11)(i)(A) and (2) when there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B nonimmigrant petition with the corresponding LCA.

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  • Matter of Christo's, Inc.- filed April 9, 2015

The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) a foreign national who submits false documents representing a nonexistent or fictitious marriage but who never entered into or attempted or conspired to enter into a marriage, may intend to evade the U.S. Immigration Laws but is not, by such act alone, considered to have "entered into" or "attempted or conspired to enter into" a marriage for purposes of Section 204(c) of the Immigration and Nationality Act ("INA") and (2) misrepresentations relating to a nonexistent marriage may nonetheless render the beneficiary inadmissible under INA Sec. 212(a)(6)(C)(i) relating to an application for Adjustment of Status.

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  • Matter of Leacheng International, Inc.- filed April 9, 2015

The U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services' Administrative Appeals Office ("AAO") held that (1) the definition of "doing business" at 8 C.F.R. Sec. 204.5(j)(2) contains no requirement that a petitioner for a multinational manager or executive must provide goods and/or services to an unaffiliated third party and (2) a petitioner may establish that it is "doing business" by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

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The Ninth Circuit held that a conviction for domestic violence under California Penal Code Section 273.5(a) constitutes a categorical crime of domestic violence within the meaning of 8 U.S.C. Sec. 1227(a)(2)(E)(i), rendering the relevant foreign national removable.

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  • Matter of Cerda Reyes- filed March 24, 2015

The BIA held that the rules for applying for a bond redetermination at 8 C.F.R. Sec. 1003.19(c) relate to venue, not jurisdiction.

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The BIA held that (1) if an immigration judge finds that a foreign-national applicant for Asylum and for Withholding of Removal has not provided reasonably available corroborating evidence to establish her/his claim, the relevant immigration judge should first consider that foreign-national applicant's explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the foreign-national applicant's proceedings for that foreign-national applicant to obtain the evidence and (2) although an immigration judge should consider a foreign-national Asylum applicant's explanation for the absence of corroborating evidence, Section 208(b)(1)(B)(ii) of the Immigration and Nationality Act ("INA") does not require the immigration judge to identify the specific evidence necessary to meet the foreign-national applicant's burden of proof and to provide an automatic continuance for the applicant to obtain that evidence.

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  • Matter of Vides Casanova- filed March 11, 2015

The BIA held that the relevant foreign-national respondent is removable under Section 237(a)(4)(D) of the Immigration and Nationality Act ("INA") because the totality of the record supported the conclusion that the relevant foreign-national respondent, through his "command responsibility" in his former roles as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador given that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction he did not hold the perpetrators accountable.

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The Ninth Circuit held that an Asylum applicant may demonstrate persecution on account of imputed political opinion if s/he shows that the persecutor thought that the Asylum applicant was attempting to expose corruption in a governing institution and mistreated the Asylum applicant as a result, even if the Asylum applicant in fact had no such intention. An Asylum applicant doesn't need to show it was because of her/his actual political opinion that s/he was persecuted; it is enough to show imputed, i.e., perceived, political opinion for both Asylum and Withholding-of-Removal claims.

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The Ninth Circuit found that the BIA did not abuse its discretion by denying a foreign national's claim that his prior counsel was ineffective for failure to seek Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation"). The Ninth Circuit held that to have a successful claim for ineffective assistance of counsel to reopen removal proceedings, a foreign national needs to show that he was prejudiced by the prior counsel's failure. However, the relevant foreign national failed to do so because, in the absence of any evidence or argument relating to hardship to a qualifying relative, something that is required for Non-LPR Cancellation, he did not make the necessary threshold showing that his being granted Non-LPR Cancellation was even plausible.

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The Ninth Circuit held that a weapon-possession conviction, to which a sentence enhancement was added based on the weapon possession's being "for the benefit of, at the direction of, or in the association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members" does not constitute a "Crime Involving Moral Turpitude." Despite BIA published precedent arguing the contrary, a crime that in itself involves no moral turpitude, e.g., possession of a billy club, does not become turpitudinous merely by having been committed to promote, further, or assist criminal activity by gang members.

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The BIA held that a person born out of wedlock may qualify as a legitimated "child" of her/his biological parents under Section 101(c)(1) of the Immigration and Nationality Act ("INA") for purposes of citizenship if s/he was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State, if otherwise eligible, thereby overruling in part Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006).

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The California Court of Appeal for the Fourth District, Division 3 found that the purpose of the Special Immigrant Juvenile Status ("SIJS") program is to help foreign-national juveniles who have been abused, abandoned, or neglected to get Lawful Permanent Residence ("Green Card") and consequently reversed the holding of the California Superior-Court Judge to deny a foreign-national juvenile's request for certain SIJS-prerequisite findings be made, namely, that he had been abandoned by one or both of his parents and that remaining in the U.S. would be in his best interest. Holding that only one parent needs to be shown to have abused, abandoned, or neglected a requesting foreign-national juvenile, that death of a parent amounts to an abandonment, and that remaining in the U.S. would be in the relevant foreign-national juvenile's best interests, the California Court of Appeal for the Fourth District, Division 3 granted that foreign-national juvenile's petition for writ of mandate and ordered the California Superior-Court Judge to make the requested SIJS-prerequisite findings.

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The BIA held that with respect to Aggravated-Felony convictions, immigration judges must follow the law of the U.S. Court of Appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. U.S., 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant U.S. Court of Appeals. Moreover, the BIA found that because the U.S. Court of Appeals for the Tenth Circuit has taken an approach to divisibility different that that adopted in Matter of Chairez, 26 I&N Dec. 349, the law of the U.S. Court of Appeals for the Tenth Circuit must be followed by immigration judges in its respective jurisdiction.

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The BIA held that (1) for a statutory-rape offense that may include a sixteen- or seventeen-year-old victim to be categorically a "Sexual-Abuse-of-a-Minor" Aggravated Felony under Section 101(a)(43)(A) of the Immigration and Nationality Act ("INA"), the relevant statute must require a meaningful age differential between the victim and the perpetrator and (2) the offense of unlawful intercourse with a minor in violation of California Penal Code Sec. 261.5(c), which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes "sexual abuse of a minor" and is therefore an Aggravated Felony under INA Sec. 101(a)(43)(A), but such a finding conflicts with the previously published opinion by the Ninth Circuit in Estrada-Espinoza v. Mukasey (9th Cir. 2008) (en banc).

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The BIA held that the offense of "deadly conduct" in violation of Section 22.05(a) of the Texas Penal Code, which punishes a person who "recklessly engages in conduct that places another in imminent danger of serious bodily injury," is categorically a "Crime Involving Moral Turpitude."

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The Ninth Circuit en banc held that when the BIA issues a decision that denies some claims but remands any other claims for relief to the relevant immigration judge for further proceedings, then that decision is not a final order of removal with regard to any of the claims; therefore, it does not trigger the thirty-day window for a foreign national to file a petition for review with the Ninth Circuit.

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