Matter of Diaz and Lopez (issued 1/27/10)
**245(i)/AOS, inadmissible for being unlawfully present for more than a year**
The respondents, who are inadmissible under section 212(a)(9)(C)(i)(I) of the Act, are ineligible for adjustment of status under INA section 245(i). Neither the IJ nor the Board remains bound by the Ninth Circuit’s decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2004) in light of the Board’s subsequently issued decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and the Ninth Circuit’s decision in Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) which overrules Perez-Gonzalez, 379 F.3d 783 (9th Cir. 2004)( holding that adjustment of status under section 245(i) of the Act remained available for respondents who are inadmissible under INA section 12(a)(9)(C)(i)(II)).
Esquivel-Garcia v. Holder
**CHSC section 11350, cancellation, adjustment, Respondent’s admissions**
The IJ erred in determining that Petitioner’s conviction under CH&SC §11350 was a conviction for violating a state law relating to a controlled substance rendering him ineligible for cancellation of removal. First, CHSC § 11350 is categorically overbroad and therefore the modified categorical approach must be used. Both parties submitted a “Criminal History Transcript” describing petitioner’s 1989 conviction as: “11350 HS-POSSESS NARCOTIC CONTROL SUBSTANCE; – CONVICTED -PROB/JAIL; FELONY; SEN: 036 MONTHS PROBATION, 131 DAYS JAIL.” Even if this document is judicially noticeable under Shepard v. United States, the document fails to identify the controlled substance involved in the petitioner’s conviction, making the record inconclusive as to whether the petitioner’s conviction involved a relevant controlled substance. The petitioner’s testimony in immigration court that he thought the substance was heroin does not alter the record of conviction. The government did not meet its burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance under 8 U.S.C. § 1182(a)(2)(A)(i)(II). However, it did not have the benefit Sandoval-Lua, 499 F.3d 1121, 1129-30 (9th Cir. 2007), and the case must thus be remanded to the BIA for further proceedings consistent with Sandoval-Lua to permit the government to put forth reliable evidence to show that the petitioner was convicted of a disqualifying controlled substance offense.
As for Petitioner’s application for adjustment of status, the agency did not err in finding Petitioner ineligible. The petitioner told the IJ “I think [the possessed substance] was heroin.” He therefore ”admits committing acts which constitute the essential elements of” a violation of state law relating to a controlled substance offense under the federal Controlled Substances Act, rendering him inadmissible and ineligible for adjustment of status. http://www.ca9.uscourts.gov/datastore/opinions/2010/01/28/07-70640.pdf
Kawashima v. Holder (Kawashima III)
**Convictions for willfully making and subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return constitute aggravated felonies**
This is the third Kawashima opinion. Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) (“Kawashima II”) is withdrawn. The Court first must decide whether Mr. Kawashima’s conviction for willfully making and subscribing to a false statement on a tax return, in violation of 26 USC § 7206(1),and Mrs. Kawashima’s conviction for aiding and assisting in the preparation of a false tax return, in violation of § 7206(2), constitute aggravated felonies. Section 101(a)(43)(M) of the Act defines an “aggravated felony” to include “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” The Court reaffirms that tax offenses not covered by subsection (M)(ii)’s specific reference to § 7201 qualify as aggravated felonies under subsection (M)(i) where the loss exceeds $10,000.
The next issue is whether the Kawshimas’ convictinos are aggravated felonies within subsection (M)(i)’s definitions. The Court considers the Supreme Court’s recent opinion in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which added a new step to the familiar Taylor categorical/modified-categorical approaches. The Court must first decide whether a requirement under a generic crime is an “element” of the generic crime instead of simply a description of the “particular circumstances” in which the offender committed the crime on a specific occasion. If the requirement is an element, the Court applies the Taylor approach. It it is a “circumstance specific,” the Court ensure that the BIA followed fundamentally fair procedures” to determine whether the offender’s crime satisfies the description of the generic offense. Mr. Kawashima’s conviction under section 7206(1) necessarily involved “fraud or deceit,” and the BIA followed fundamentally fair procedures in finding that the offense resulted in a loss to the government of more than $10,000. Specifically, Mr. Kawashima stipulated in the plea agreement that the “total actual tax loss” was $245,126.
Regarding Mrs. Kawashima’s case, a conviction under § 7206(2) necessarily “involves fraud or deceit” and therefore satisfies the first element of an aggravated felony as described in subsection (M)(i). In Kawashima I, the Court concluded that the ROC did not contain sufficient evidence to establish that her offense resulted in a loss to the government in excess of $10,000. However, under Nijhawan, it is now clear that the BIA is not limited to only those documents which a court applying the modified categorical approach may review. The case must therefore be remanded to the BIA so that it may determine, in light of the Supreme Court’s holding in Nijhawan, what types of evidence it may consider to determine the total loss suffered by the government as a result of Mrs. Kawashima’s crime.
Mr. Kawashima argument that his motion to the BIA was a special motion pursuant to 8 C.F.R. § 1003.44 to seek
§ 212(c) relief fails, and the BIA did not erred in denying it as an untimely motion to reopen.
http://www.ca9.uscourts.gov/datastore/opinions/2010/01/27/04-74313.pdf
Velasco v. Holder
**PSG, material witnesses for government, smugglers**
Smugglers assisted Velasco in entering the United States, and she was warned repeatedly by the smugglers that she should not tell immigration officers anything about her. In one house where she was hiding before crossing the border, Velasco narrowly escaped being raped by the smugglers. At the border, immigration officers discovered Velasco in a smuggler’s car and she was taken into custody. During her time in custody, Velasco’s husband contacted
one of the smugglers and, in anger over the smugglers’ mistreatment of his wife, said that Velasco would tell the immigration officers “everything” about the smugglers. Velasco’s husband was warned that she should not talk. The smugglers proceeded to call Velasco’s sister, parents and sister-in-law to issue similar warnings. They also repeatedly called Velasco herself, threatening to kill her if she helped the government. The IJ did not err in denying Velasco asylum and withholding of removal because material witnesses for the government do not constitute a protected social group. Government material witnesses are often involuntarily recruited for the task. Moreover, former government material witnesses cannot be defined with sufficient particularity, because any person of any origin can be involuntarily placed in that role in any type of legal proceeding. This decision is in accord with precedent holding
that government informants also do not constitute a particular social group. See Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009) (“[A] ‘government informant’ is not a member of a particular social group for the purposes of asylum”).
http://www.ca9.uscourts.gov/datastore/opinions/2010/01/27/08-73295.pdf
Matter of Rose
**Petition to remove conditional basis of permanent residence status when petitioning spouse is deceased**
The death of a petitioning spouse during the 2-year conditional period excuses the general requirement that a petition to remove the conditional basis of an alien spouse’s status must be “joint.” Thus, a separate waiver under INA section 216(c)(4) is not required if the surviving spouse timely files an I-751 petition requesting removal of the conditional basis of his or her status and appears for a personal interview. In this case, a separate section 216(c)(4) waiver of the general requirement that a petition must be jointly filed is not required because the petitioning spouse is deceased.
Murithia v. Holder
**Asy, FGM; changed country conditions, Kenya**
The evidence supports the BIA’s conclusions, and Murithia has not established that a reasonable fact finder would Murithia had not established that she has a well-founded fear she would be forced to undergo FGM because (1) Murithia’s twin sister had remained in Kenya and had not been forced to undergo the procedure; (2) the 2003 Country Report stated that the Kenyan government had outlawed the forced practice of FGM on women; (3) the 2003 Country Report stated that FGM is usually performed on young girls between three and thirteen years of age; and (4) Murithia, who was 27 years of age, was not of an age in which FGM was usually performed.
However, the Court expresses concern that there appears to have been an increase in violence in Kenya following the 2007 elections against Murithia’s ethnic and political groups which may constitute a basis for asking the BIA to reopen her case based on changed country conditions.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/01/25/05-74924.pdf
Ndambo v. Holder
**One yr. bar, asy.; wh, FGM; CAT, gov.acquiesence**
The Court does not have jurisdiction to review the IJ’s determination that Ndambo is time-barred from filing her asylum application. Ndambo’s counsel conceded at oral argument that whether changed circumstances exist in this case is a question of disputed facts. As for withholding, evidence does not compel the conclusion that it is more likely than not that Ndambo’s life or freedom would be threatened if she returned to Kenya. During the years after she separated from her husband and lived in Nairobi, although she received threats, she was not subject to physical harm. Ndambo also does not qualify for relief under the CAT as she did not provide any evidence that the Kenyan government consents or acquiesces to the performance of FGM. Further, Ndambo’s counsel conceded at oral argument that she had abandoned her CAT claim.
http://www.ca9.uscourts.gov/datastore/memoranda/2010/01/25/04-72147.pdf
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