Romero contends that he obtained derivative citizenship from his mother’s naturalization in this country, in accordance with 8 U.S.C. § 1432. The sole issue on appeal is whether Romero’s paternity was legitimated under Salvadoran law, by the inclusion of his father’s name on his birth certificate which would defeat his claim of derivative citizenship. Although Romero was born out of wedlock, his parents’ subsequent marriage prior to his mother’s naturalization established Romero’s paternity by legitimation.  Romero asserts that because he was not legitimated under Salvadoran law as it existed at the time of his birth, the change in the Salvadoran constitution did not change his legitimation status.  However, the BIA has definitely ruled that the 1983 amendment to the Salvadoran constitution eliminating legitimacy distinctions served to legitimate any child born out of wedlock.  The fact that Romero was born prior to the enactment of the 1983 constitutional amendment and his contention that his father did not necessarily consent to civil registration of his son’s birth certificate do not negate Petitioner’s legitimation under Salvadoran law.

Raymond C. Fisher and Johnnie B. Rawlinson, Circuit Judges, and Robert J. Timlin, Senior District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/19/08-74674.pdf

The Opinion filed September 14, 2011, slip op. 17559, and appearing at 658 F.3d 977 (9th Cir. 2011), is amended as follows: At slip op. 17564, in the first sentence of the second full paragraph; 658 F.3d at 980, in the first sentence of the fourth full paragraph, change “It is undisputed that Habibi’s California domestic violence conviction is a ‘crime of violence.’ ” to “Habibi effectively conceded before the IJ that his conviction for domestic violence in California qualifies as a conviction for a ‘crime of violence.’ ” With this amendment, the panel has voted to deny the petition for panel rehearing.

The petition for panel rehearing is DENIED.

Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and Lyle E. Strom, Senior District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/06-72111.pdf

See also: http://newimmigrationcases.com/2011/09/14/habibi-v-holder-pub/

The petition for panel rehearing is granted. The Opinion filed June 24, 2011, slip op. 8617, and appearing at 642 F.3d 1226 (9th Cir. 2011), is withdrawn.  The IJ was entitled to rely on Pagayon’s pleading-stage admission that he had been convicted of a removable drug offense. Pagayon failed to carry his burden of proving that he is entitled to relief from removal, or that the IJ violated his  due-process rights.

Alex Kozinski, Chief Judge, N. Randy Smith, Circuit Judge, and Frederic Block, District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/08/07-74047.pdf

See also: http://newimmigrationcases.com/2011/06/24/pagayon-v-holder-pub/

Kwong’s conviction of first-degree burglary under California Penal Code § 459 was a conviction of an aggravated felony, and was sufficiently established by the state court’s abstract of judgment. That abstract noted that Kwong had pleaded guilty to a violation of § 459 of the Penal Code and described the crime as “Burglary — First Deg.” Section 460 of the Code defines first-degree and second-degree burglary; first-degree burglary is “burglary of an inhabited dwelling house, vessel . . . which is inhabited and designed for habitation, floating home . . . , or trailer coach . . . , or the inhabited portion of any other building.” Cal. Penal Code § 460(a). The amended § 460(a) requires unlawful entry of an inhabited structure to meet its definition of first-degree burglary.

The abstract of judgment also indicated that Kwong had been sentenced to two years of imprisonment.  Lopez-Cardona flatly held that, under Becker, first-degree burglary in violation of California Penal Code § 459 was a crime of violence within the meaning of 18 U.S.C. § 16(b).

Kwong’s claim of ineffective assistance of counsel is  rejected.

William C. Canby, Jr., Carlos T. Bea* and Milan D. Smith, Jr., Circuit Judges

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/07/04-72167.pdf

The opinion filed on April 15, 2011, is amended.

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/05/08-70343.pdf

See also: http://newimmigrationcases.com/2011/04/15/castro-martinez-v-holder-pub/

The opinion filed on June 21, 2011, 651 F.3d 969, is withdrawn.  The BIA correctly concluded that Carrillo de Palacios returned to the United States after being “ordered removed under . . . any . . . provision of law, and . . . enter[ed] or attempt[ed] to reenter the United States without being admitted,” which renders her inadmissible under INA § 212 (a)(9)(C)(i)(II). The BIA also correctly concluded that she does not satisfy the requirements of INA § 212(a)(9)(C)(ii)’s exception to inadmissibility. In order to be eligible under INA section 212(a)(9)(C)(ii), an alien must remain outside the United States for more than ten years before returning to the United States. By requiring repeat immigration offenders to pay the penalty of waiting ten years outside the United States before receiving the privilege of lawful reentry, § 1182(a)(9)(C)(ii) promotes Congress’s underlying policy goals of making admission more difficult for immigration recidivists.

Susan P. Graber and Milan D. Smith, Jr., Circuit Judges, and Roger T. Benitez,* District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/12/01/09-72059.pdf

On March 25, 2004, Lezama was driving a company truck from Long Beach, California, to a company office in San Diego.He could not locate his destination, and found himself in traffic on the “I-5” freeway going toward the Mexico border near San Ysidro, California. As he neared the border, he was unable to locate an exit and tried to move out of traffic, but a police officer motioned for him to keep going. He drove into Mexico, immediately turned around to come back to the United States, but was turned away.   He was subsequently charged as an arriving alien.  Because Lezama’s departure was not “desired,” his NACARA § 202 application was not abandoned under § 245.13(k)(1). His application remains pending. Under NACARA § 202(c)(2), while his application remains pending, he is not removable. And even if his departure rendered him an “arriving alien,” he remains eligible for adjustment of status.

Alfred T. Goodwin and Johnnie B. Rawlinson, Circuit Judges, and J. Michael Seabright,** District Judge

Dissenting, Rawlinson: The majority opinion relies on an argument and analysis that has never been advanced by the Petitioner.  The majority opinion gives absolutely no deference to the agency’s interpretation of its regulation. The majority opinion also relies on prefatory language in the regulation and ignores the substance of the regulation.

http://www.ca9.uscourts.gov/datastore/opinions/2011/11/30/06-74703.pdf

The BIA also did not err in determining that Bains’s conviction for receipt of stolen property under CPC § 496(a), for which he was sentenced to at least one year imprisonment, constituted an aggravated felony theft offense.

http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/23/09-73075.pdf