Yi v. Holder
**Crime of violence, Anchorage Municipal Code section 8.10.010(B)(1)/domestic violence assault**
Martinez-Castillo v. Holder
Remand to the BIA is necessary because the BIA erred in failing to consider Martinez-Castillo’s claim in his appeal that the IJ violated his due process rights and denied him his right to a full and fair hearing by an impartial judge.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/29/08-70691.pdf
Matter of Yauri
**Board denies sua sponte motion to reopen proceedings of an arriving alien seeking adjustment of status where jurisdiction lies with USCIS**
Jurisdiction to adjudicate the Respondent’s adjustment of status application lies with the USCIS because the Respondent is an arriving alien who does not fall within the regulatory exception that would confer jurisdiction over the application on the IJ or the Board. The Respondent’s request to reopen proceedings where she is under a final order of removal so that she can pursue her pending adjustment application with the USCIS is effectively a request to stay her removal order. Because jurisdiction over the adjustment application lies with the USCIS, the Respondent’s stay request should go to DHS. In addition, sua sponte motions will ordinarily not be granted where there is a pending third-party adjudication of an underlying application that is not within the Board’s jurisdiction. The Respondent here presented no exceptional circumstances to persuade the Board to grant her motion. Finally, it is not necessary to grant DHS’s motion to reopen and terminate removal proceedings to allow the Respondent to pursue her application because the USCIS has jurisdiction and has already granted the Respondent LPR status. Reopening is warranted solely for termination of proceedings.
Skhvitaridze v. Holder
**Credibility, corroborating evidence**
Having found petitioner credible, the IJ erred in requiring corroborating evidence (under Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000)) and that the error was not harmless. The corroborating evidence related to some of Skhvitaridze’s most compelling testimony. In finding that Skhvitaridze’s fear of persecution was not objectively reasonable, the IJ pointed to the changed country conditions in Georgia. However, the IJ failed to give full consideration to Skhvitaridze’s testimony. A remand is necessary to determine whether, giving full weight to Skhvitaridze’s credible testimony, Skhvitaridze has an objective fear of persecution.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/28/05-74358.pdf
Jimenez-Barrera v. Holder
**Forcible removal, dismissing appeal**
The BIA erred in relying on 8 C.F.R. § 1003.4 to dismiss the Petitioner’s appeal because Jimenez-Barrera was forcibly removed before filing an appeal. The regulation applies only to departures occurring “subsequent to the taking of an appeal.” The BIA also erred in finding that the appeal was rendered moot by the government’s removal of Jimenez-Barrera under In re Luis-Rodriguez, 22 I. & N. Dec. 747 (BIA 1999). Luis does not stand for the proposition that a forcible removal of a petitioner from the United States by the government automatically moots a pending appeal. The holding in Luis was that the departure of the petitioner did not moot the appeal.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/28/05-77110.pdf
Agni v. Holder
**Crime of violence; crime of domestic violence**
Agni’s conviction under section 9A.36.041 of the Revised Code of Washington for fourth degree domestic violence assault does not make him removable under INA § 237 (a)(2)(E)(i) because the record of conviction does not establish that Agni admitted to using the requisite amount of force to satisfy the federal definition of “a crime of violence.”
However, Agni is removable under INA § 237(a)(2)(E)(ii) for a crime of domestic violence. Under the modified categorical approach, the record of conviction shows that Agni was enjoined under a protection order issued for the purpose of preventing violent or threatening acts of domestic violence. He also admitted in his guilty plea that the order was issued to protect his domestic partner. In addition, facts set forth in the Certification for the Determination of Probable Cause (which was expressly incorporated into the plea agreement with Agni’s consent) establish that the order was issued as a result of Agni’s domestic violence assault conviction and that it required him to maintain a distance of 500 ft. from his domestic partner.
Furthermore, the ROC shows that Agni violated the portion of the order involving “protection against credible threats of violence, repeated harassment, or bodily injury.” The Certification for the Determination of Probable Cause demonstrates that Agni violated the part of the order requiring him stay 500 ft. away from his partner which while not necessarily violent in and of itself, nonetheless still involves protection against violence, threats or harassment.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/28/07-73387.pdf
Perez v. Holder
**IAC**
The BIA erred in finding that Perez presented no evidence that his counsel was inadequate. Also, while a showing of prejudice was required, the BIA did not actually decide that there was no prejudice, but only that counsel’s “tactical decisions” did not cause prejudice.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/27/05-74042.pdf
Simonyan v. Holder
**Credibility**
Substantial evidence supports the BIA’s adverse credibility determination because Simonyan’s statement during his port of entry interview that he did not fear harm from the Armenian government was inconsistent with his testimony that the government threatened him.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/27/06-73287.pdf
Singh v. Holder
**Internal relocation**
Substantial evidence, including Singh’s own testimony, supports the BIA’s finding that, even if Singh’s testimony was credible and he established past persecution, the government met its burden in showing that it is reasonable for Singh to relocate.
http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/27/06-73825.pdf
Kurniawaty v. Holder
**Credibility; withholding/disfavored group analysis**IJ’s adverse credibility determination not supported by substantial evidence because the IJ failed to point to inconsistencies in Kurniawaty’s testimony or offer other specific, cogent reasons for her disbelief of Kurniawaty’s Chinese ethnicity. Substantial evidence supports the BIA’s finding that Kurniawaty failed to establish she suffered past persecution in Indonesia. However, because the BIA declined to apply the Sael disfavored group analysis in analyzing Kurniawaty’s future fear, the case must be remanded for consideration of whether Kurniawaty is entitled to withholding of removal under Sael and Wakkary.http://www.ca9.uscourts.gov/datastore/memoranda/2009/10/27/06-74958.pdf
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