Oroudjian v. Holder
**Due process, failure to file timely brief, Notice of Appeal**
The record does not support a conclusion that Oroudjian’s due process rights were violated. Oroudjian did not lack notice that his appeal could be summarily dismissed for failure to file a timely brief. Failure to file the brief was not on account of lack of notice, but on account of counsel’s admitted error in not signing the first submission and in not assuring that the signed brief would meet the deadline. In addition, the BIA did not deny Oroudjian a full and fair hearing by rejecting the brief instead of accepting his Notice of Appeal. Oroudjian’s Notice of Appeal failed to
state its reasoning with the specificity necessary to adequately apprise the BIA of the reasons for appeal.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/03/12/06-72945.pdf
Tijani v. Holder
**Credit card fraud, CPC section 532(a)(1), CIMT; deference to BIA precedent**
Tijani’s string of credit card fraud crimes in violation of Cal. Penal Code § 532a(1) are categorically crimes involving moral turpitude. Fraud is implicit in the nature of a crime under section 532a(1). While the statute of conviction does not explicitly list intent to defraud as an element, “ a crime nevertheless may involve moral turpitude if such intent is implicit in the nature of the crime.” A crime under § 532a(1) is committed only when a person by a knowing falsehood obtains property, money, or credit. In addition, an intent to repay is not a defense. the Court’s recent decision in Marmolejo- Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) does not require the Court to direct the BIA to adhere to its decision in In re Kinney, 10 I & N Dec. 548 (1964). Marmolejo-Campos concerned the deference this Court should give a BIA opinion when reviewing a challenge to a BIA decision. Deference is not due the agency in construing state law, i.e. determining that an element of a California statute is fraud.
Concurring, dissenting: Tashima
The majority employs an unauthorized noncategorical mode of analysis in concluding that the petitioner was convicted of a crime involving moral turpitude. “In open defiance of our recent en banc holding in Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc), that the determination of whether a crime is a CIMT is committed to the Board of Immigration Appeals (“BIA”), the majority refuses to grant the BIA’s published,
precedential decision that the crime involved here is not a CIMT the deference to which it is entitled and, instead, makes its own free-wheeling determination that the crime involved is a CIMT. It not only ignores the BIA’s precedential decision, but fails to adhere to the categorical-approach analysis of Taylor v. United States, 495 U.S. 575 (1990).”
http://www.ca9.uscourts.gov/datastore/opinions/2010/03/11/05-70195.pdf
Amin v. Holder
**Credibility**
Substantial evidence supports the IJ’s adverse credibility finding because at least two of the inconsistencies cited by the IJ go to the heart of Amin’s claim, and the IJ relied on these inconsistencies after confronting Amin about them and weighing Amin’s explanations. First, Amin testified that her family had not had any problems with the Cameroonian government after Amin came to the United States. This testimony of Amin, however, was inconsistent with a letter from the Provincial Chairman of the Southern Cameroon National Council (“SCNC Letter”) that Amin included with her asylum application stating that after Amin left the country, security forces had come to her residence every week and that the government had arrested and detained Amin’s relatives. Second, Amin testified that when she was seventeen, the principal of her school called the police after Amin organized a student strike because the principal knew that Amin must have been involved, and that the phone call resulted in Amin’s arrest and abuse. This was inconsistent with Amin’s testimony detailing that, both before and after the strike and arrest, Amin was held in high esteem by those running the school.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/03/10/05-74674.pdf
Najmabadi v. Holder (3/9)
**MTR, changed country conditions, Iran**
The BIA did not abuse its discretion in denying Najmabadi’s motion to reopen. The BIA considered Najmabadi’s motion to be premised on the fact that circumstances in Iran have significantly declined since her hearing, and as a result she has a viable claim of persecution based on direct and imputed political opinion, and the fact that she is a ‘westernized woman.’ The BIA correctly held that the evidence submitted by Najmabadi in her motion to reopen, which established the existence of torture and punishment for dissenters, was in evidence at the prior hearing. The evidence addressed general conditions affecting the population at large, and was not linked to Najmabadi’s “particular circumstances.” There was also no evidence, which fell “outside the realm of speculation,” that established that “returnees from the United States will likely face persecution.” Najmabadi’s failed to introduce previously unavailable, material evidence– it was not “qualitatively different” from that submitted at her initial asylum hearing. The evidence Najmabadi presents in her motion to reopen does not share an individualized relevancy. There is no indication that the Board failed to credit Najmabadi’s affidavit, as it characterized her motion as premised on her “direct and imputed political opinion, and the fact that she is a ‘westernized woman’ ” and specifically referenced both Iran’s “limitations on the freedoms of women” and its punishment of dissenters. In addition, even assuming that Najmabadi is a member of a disfavored group, she points to no evidence of an individualizedthreat to persecute her.
Dissent: Pregurson
Najmabadi should be granted the chance to reopen her case to provide evidence regarding the persecution of individuals returned from the West to Iran.
http://www.ca9.uscourts.gov/datastore/opinions/2010/03/09/05-72401.pdf
Tampubolan v. Holder (3/9)
**Disfavored group analysis/withholding**
The BIA erred in failing to apply disfavored group analysis to petitioners’ withholding claim because the record compels a finding that Christians in Indonesia are a disfavored group. The Indonesian government’s support of, or at the very least, acquiescence in, militant expressions of Islam has subjected Christians to violent persecution in Indonesia. The record demonstrates that Christian churches throughout Indonesia have been burned, bombed, and vandalized by Muslim extremists, and Petitioners’ family members who remain in Indonesia have been affected by these attacks. The Religious Freedom Report notes that the government failed to hold accountable religious extremists who killed and terrorized Christians, even as it fully prosecuted and punished Christian leaders for subversion. Therefore, a remand to the BIA is necessary for it to determine whether the combination of disfavored group evidence and evidence of individualized risk is sufficient to establish a clear probability that petitioners will be persecuted if removed to Indonesia.
http://www.ca9.uscourts.gov/datastore/opinions/2010/03/09/06-70811.pdf
De Paz Caal v. Holder
**Persecution, wff of**
Substantial evidence supports the agency’s finding that De Paz Caal failed to establish past persecution because her experiences in Guatemala did not rise to the level of persecution. Substantial evidence also supports the agency’s finding that De Paz Caal did not demonstrate a well-founded fear of future persecution because her two voluntary return trips to Guatemala undermined her claim, and because she failed to show the harm to her brother was part of a pattern of persecution closely tied to her.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/03/08/07-74796.pdf
Solis v. Holder
**Credibility; COR, pretermission, due process, EP**
Substantial evidence supports the agency’s adverse credibility determination because Solis failed to produce his brother’s testimony at the hearing to corroborate his claim, where his brother was the only witness to events forming the basis of Solis’ claim and was available to testify. In addition, Solis’ argument that the IJ’s pretermission of his cancellation of removal claim violated due process fails, as does his contention that the qualifying relative requirement for cancellation of removal violates equal protection.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/03/08/07-71619.pdf
Li v. Holder
**Due process**
Li contends the agency violated his right to due process by holding removal proceedings in the absence of his retained counsel. Because the IJ and BIA did not have the benefit of Hernandez-Gil v. Gonzales, 476 F.3d 803, 808-09 (9th Cir. 2007) at the time of their decisions, the case will be remanded.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/03/08/06-70866.pdf
Arias-Ordonez v. Holder
**Conviction for illegal entry, collateral attack on prior removal order, due process**
The order to report for removal misinformed Arias-Ordonez about his eligibility for possible relief. The order stated that there was “no administrative relief which may be extended,” which was untrue. An individual deported in absentia has a statutory right to explain why he did not appear and to move to reopen proceedings. The original removal order therefore could not justify a conviction for illegal reentry because the government affirmatively and
prejudicially misled Arias-Ordonez. In addition, none of the subsequent reinstatements provide an independent basis for conviction of illegal reentry because they reinstated a removal that did not comply with due process.
http://www.ca9.uscourts.gov/datastore/opinions/2010/03/08/08-10259.pdf
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