Immigration Law

Recent Posts

CA9 on Social Group: Flores-Rios v. Lynch
Posted on 1 Dec 2015 by Daniel M. Kowalski

Flores-Rios v. Lynch, Dec. 1, 2015 - "Because few groups are more “readily identifiable than the family,” the BIA’s determination that the petitioner had not shown membership in a particular social group “was manifestly contrary... Read More

CA9 Limits Hernandez-Arias (Admission; IRCA)
Posted on 5 Aug 2014 by Daniel M. Kowalski

"The opinion filed on March 21, 2014 is hereby amended as follows: Following page 12, first full paragraph, the following footnote is appended: 3 Our review in this case is confined to the operation of IRCA and its unique implementing regulations... Read More

CA9 on Aggravated Felony: Aguilar-Turcios II
Posted on 23 Jan 2014 by Daniel M. Kowalski

"In this petition for review of a decision by the Board of Immigration Appeals (“BIA” or “Board”), we address whether Petitioner Rigoberto Aguilar-Turcios’s conviction under Article 92 of the Uniform Code of Military... Read More

Lopez-Rodriguez v. Holder: Aftermath
Posted on 27 Sep 2012 by Daniel M. Kowalski

In Lopez-Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) I was fortunate (damned lucky, really) to prevail in a pro bono case started back in 2006. The panel remanded the case back to the BIA. ICE then withdrew its appeal. (The alien had prevailed... Read More

CA9 on Jurisdiction ("A Trap for the Unwary") - Martinez v. Sessions
Posted on 20 Jul 2017 by Daniel M. Kowalski

Martinez v. Sessions, July 20, 2017 - "In this case, a removed alien challenges a reinstated removal order by claiming that he has a reasonable fear of being persecuted in his home country of El Salvador. An asylum officer interviewed the alien and... Read More

CA9 on Ineffective Assistance of Counsel, Equitable Tolling: Salazar-Gonzalez v. Lynch
Posted on 20 Aug 2015 by Daniel M. Kowalski

"Sometimes, it is difficult to distinguish between a client’s bad luck and a lawyer’s bad advice. Risk is an inherent part of litigation, and lawyers must weigh countless probabilities when advising their clients on what claims to pursue... Read More

DHS: Arizona Solicitation Statute Not Divisible, Not a CIMT
Posted on 27 Oct 2014 by Daniel M. Kowalski

Laura Murray-Tjan writes: "I appealed pretermission of a non-LPR cancellation of removal claim to the Ninth Circuit, arguing that (1) the client's Arizona solicitation conviction can't be a CIMT ground of inadmissibility, as the agency had... Read More

CA9 on Retroactivity, 212(c) - Cardenas-Delgado v. Holder
Posted on 27 Jun 2013 by Daniel M. Kowalski

"Francisco Cardenas-Delgado, a legal permanent resident of the United States since 1976, appeals from the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s (“IJ”) decision that he... Read More

CA9 on Kenya, Evidence, Confidentiality, Authentication: Owino II
Posted on 4 Nov 2014 by Daniel M. Kowalski

"... Owino petitioned for review and we granted the petition. Owino v. Holder , 575 F.3d 956 (9th Cir. 2009) (per curiam). ... The BIA dismissed Owino’s appeal on April 23, 2012. It affirmed the IJ’s denial of Owino’s motion to... Read More

CA9 on Padilla: USA v. Rodriguez-Vega
Posted on 14 Aug 2015 by Daniel M. Kowalski

Court Staff Summary - "Vacating a conviction of misdemeanor attempted transportation of illegal aliens, the panel held that the district court erred in failing to hold, upon a petition under 28 U.S.C. § 2255, that defendant’s counsel was... Read More

CA9 on Social Group, CAT: Cordoba v. Holder; Medina Gonzalez v. Holder
Posted on 28 Sep 2013 by Daniel M. Kowalski

Court staff summary: "The panel granted the petitions for review of Edgar Rene Cordoba and Antonio Medina-Gonzalez from the Board of Immigration Appeals’ decisions denying asylum and withholding of removal on the grounds that their status as... Read More

Is the 'Encourage or Induce' Statute Unconstitutional?
Posted on 19 Sep 2017 by Daniel M. Kowalski

Sept. 19, 2017: In a pending appeal of a federal criminal prosecution, USA v. Sineneng-Smith , a panel of the U.S. Court of Appeals for the Ninth Circuit asked amici to brief the following questions regarding 8 U.S.C. § 1324(a)(1)(A)(iv) " ... Read More

CA9 on Motions to Reopen: Chandra v. Holder
Posted on 12 May 2014 by Daniel M. Kowalski

"We join our sister circuits and hold that a petitioner’s untimely motion to reopen may qualify under the changed conditions exception in 8 C.F.R. § 1003(c)(3)(ii), even if the changed country conditions are made relevant by a change in... Read More

Split En Banc CA9 on Modified Categorical Approach: Young v. Holder
Posted on 18 Sep 2012 by Daniel M. Kowalski

Majority : "The evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal... Read More

CA9 on Due Process, Expedited Removal: USA v. Raya-Vaca
Posted on 11 Nov 2014 by Daniel M. Kowalski

"Victor Manuel Raya-Vaca appeals from a judgment of conviction following a conditional plea of guilty to one count of illegal reentry after having been removed in violation of 8 U.S.C. § 1326. In 2011, Raya-Vaca was arrested while in the United... Read More

  • Blog Post: CA9 on CAT, Nigeria, collateral estoppel: Oyeniran v. Holder

    "Petitioner Daniel O. Oyeniran (“Oyeniran”), a citizen of Nigeria, seeks review of decisions by the Board of Immigration Appeals (“BIA”) to deny him protection under the Convention Against Torture (“CAT”) and to deny his motion to reopen the case to consider new...
  • Blog Post: CA9 on 212(c): Peng v. Holder

    "Section 212(c) is available to aliens who proceeded to trial if they can plausibly argue that they relied on the availability of relief." - Peng v. Holder, Mar. 22, 2012 .
  • Blog Post: CA9 to rehear CSPA case en banc: Cuellar de Osorio v. Mayorkas

    "KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion [ 656 F.3d 954 (2011 )] shall not be cited as precedent by or to any court of the Ninth Circuit." - Cuellar...
  • Blog Post: CA9 to Rehear Oshodi v. Holder En Banc (Credibility; CAT; Nigeria)

    "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion [ 671 F.3d 1002; 2012 U.S. App. LEXIS 1425, January 26, 2012 ] shall not be cited as precedent by or to any court of the Ninth Circuit...
  • Blog Post: CA9 on Conviction, Finality: Planes v. Holder

    Majority - "Every circuit that has given a reasoned opinion on the interpretation of “conviction” in 8 U.S.C. § 1101(a)(48)(A) has reached the same conclusion as the panel does here, namely, that “[t]he term ‘conviction’ means, with respect to an alien, a formal...
  • Blog Post: CA9 on crime of violence: Flores-Lopez v. Holder

    "Carlos Alberto Flores-Lopez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s decision finding that his conviction for resisting an executive officer in violation of section 69 of the California Penal...
  • Blog Post: CA9 on Aggravated Felony: Aguilar-Turcios v. Holder

    "In this petition for review of a decision by the Board of Immigration Appeals (BIA or Board), we address whether Petitioner Rigoberto Aguilar-Turcios’ conviction under Article 92 of the Uniform Code of Military Justice (UCMJ) qualifies as an “aggravated felony” under the modified...
  • Blog Post: CA9 on Term of Imprisonment: Corpuz v. Holder

    "Corpuz contends that the BIA improperly included in his “term of imprisonment” the entire period that he spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial. We grant Corpuz’s petition and remand for further proceedings. ....
  • Blog Post: CA9 on Modified Categorical Approach: Sanchez-Avalos v. Holder

    "Fernando Sanchez-Avalos (“Sanchez”) petitions for review of the BIA’s decision that he is not eligible for waiver of inadmissability because he was convicted of an aggravated felony. See Immigration and Nationality Act (“INA”) § 212(h), codified at 8 U.S.C. §...
  • Blog Post: CA9 on Deporting Material Witnesses: U.S. v. Leal-Del Carmen

    "As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit." - U.S. v. Leal-Del Carmen, Sept. 14, 2012 .
  • Blog Post: Split En Banc CA9 on Modified Categorical Approach: Young v. Holder

    Majority : "The evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. §...
  • Blog Post: CA9 on Right to Counsel: Montes-Lopez v. Holder

    "Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner’s attorney failed to appear at a scheduled merits hearing before an Immigration Judge (“IJ”) because his license to practice law had been temporarily suspended...
  • Blog Post: Lopez-Rodriguez v. Holder: Aftermath

    In Lopez-Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) I was fortunate (damned lucky, really) to prevail in a pro bono case started back in 2006. The panel remanded the case back to the BIA. ICE then withdrew its appeal. (The alien had prevailed before the IJ, and ICE had appealed.) On Sept....
  • Blog Post: CA9 on Clear Error: Ridor v. Holder

    "Ridore argues that the BIA acted beyond the scope of its authority under 8 C.F.R. § 1003.1(d)(3) by reviewing the IJ’s findings under a de novo rather than clear error standard and improperly engaging in its own factfinding. We agree that the BIA committed legal error in vacating the...
  • Blog Post: CA9 on Brand X, Retroactivity, 245(i) and Voluntary Departure: Garifas-Rodriguez v. Holder

    "In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U...
  • Blog Post: CA9 on Hardship, Jurisdiction: Arteaga-De Alvarez v. Holder

    "Petitioner Laura Arteaga de Alvarez (“Arteaga”) is an undocumented Mexican national. She is married to a legal permanent resident, who obtained that status after being granted cancellation of removal in 2003, shortly before the couple married. They have three children who are all United...
  • Blog Post: CA9 on 'Particularly Serious Crime' - Alphonsus v. Holder

    "Anthony Aloysius Alphonsus petitions for review of a BIA decision ordering him removed to his native Bangladesh. The BIA affirmed the immigration judge’s (“IJ”) determination that Alphonsus is ineligible for withholding of removal and withholding under the Convention Against Torture...
  • Blog Post: DOJ Petitions SC for Cert. on CSPA Circuit Split: Mayorkas v. De Osorio

    "By a 6-5 margin, the en banc Ninth Circuit has held that Section 1153(h)(3) grants special priority status to all aged-out derivative beneficiaries, refusing to defer to the contrary interpretation of the Board of Immigration Appeals. That ruling misinterprets the provision’s text and misapplies...
  • Blog Post: CA9 on Third Prong of Lozada: Correa-Rivera v. Holder

    "Here, we need not determine whether Correa-Rivera’s attorney’s ineffectiveness was sufficiently obvious from the record, so as to waive the Lozada requirements, because the BIA’s determination that Correa-Rivera failed to comply with Lozada was erroneous. The BIA held that Correa...
  • Blog Post: En Banc CA9 on 'Social Visibility' - Henriquez-Rivas v. Holder

    "Henriquez-Rivas claims she is entitled to asylum because, as a person who testified in a criminal trial against members of a gang who killed her father in El Salvador, she is a member of a particular social group, on account of which she faces a well-founded fear of persecution if she were to return...
  • Blog Post: CA9 on SB1070: Valle del Sol v. Whiting

    "Laws that limit commercial speech must not be more extensive than necessary to serve a substantial government interest. The district court correctly determined that, though Arizona has a significant government interest in promoting traffic safety, the day labor provisions fail Central Hudson’s...
  • Blog Post: CA9 on EB-3 Visa Recapture: Li v. Kerry

    "Plaintiffs allege that Defendants misallocated immigrant visas to eligible applicants in the employment-based third preference category (EB-3) during the 2008 and 2009 fiscal years. Plaintiffs request that visa numbers be made available to them and other members of their class so that they can...
  • Blog Post: CA9 on Adoption, Chevron, Due Process: Amponsah v. Holder

    "We hold that the BIA’s blanket rule against recognizing nunc pro tunc adoption decrees constitutes an impermissible construction of § 1101(b)(1) and that case-by-case consideration of nunc pro tunc adoption decrees is required. Accordingly, we grant the petition and remand for further...
  • Blog Post: CA9 on Brand X: Duran Gonzales Vacated, Remanded

    "The opinion filed on October 25, 2011, 659 F.3d 930, is withdrawn. A superseding opinion and dissent will be filed concurrently with this order. The Petition for Rehearing En Banc filed on December 9, 2011 is denied as moot. ... Plaintiff-Appellants are Aurelio Duran Gonzales and six other Mexican...
  • Blog Post: CA9 on 'Particularly Serious Crime' - Blandino-Medina v. Holder

    "We affirm the BIA’s decision concerning withholding of removal pursuant to the CAT, but vacate its decision holding that Blandino’s conviction under [Cal. Penal Code] Section 288(a) is a particularly serious crime per se , and remand to the BIA to consider the circumstances of the offense...