Adjustment of status under INA section 245(i) is unavailable to a respondent who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act,  absent a waiver.  Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

http://www.justice.gov/eoir/vll/intdec/vol25/3745.pdf

A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.

Here, section 120.14(1) of the New York Penal Law is itself divisible because the “deadly weapon” may or may not be a firearm under 18 U.S.C. § 921(a). The statute contains an element—use of a “deadly weapon”—that could be satisfied by removable conduct—that is, possession or carrying of “any loaded weapon from which a shot . . . may be discharged.” However, it also contains elements that are satisfied by conduct that would not render the respondent removable. For example, the use of a knife or some forms of a “dangerous instrument,” such as a vehicle, to commit a violation would not be a removable offense because the use of a firearm, as defined in 18 U.S.C. § 921(a), is not involved. Moreover, the use of “what appears to be a pistol” to commit a violation would also not be a removable offense under section 237(a)(2)(C), because a plastic water pistol, for example, is not a firearm under 18 U.S.C. § 921(a). Because section 120.14(1) can result in a categorical match or mismatch of elements when compared with section 237(a)(2)(C) of the Act, it is divisible, regardless of the fact that not one of the three subdivisions standing alone is categorically a firearms offense under section 237(a)(2)(C).

http://www.justice.gov/eoir/vll/intdec/vol25/3744.pdf

For a respondent to independently qualify for adjustment of status under INA section 245(i) as a derivative grandfathered individual, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.

http://www.justice.gov/eoir/vll/intdec/intdec/vol25/3743.pdf

Making threats with intent to terrorize in violation of Cal. Pen. Code § 422 is categorically a crime involving moral turpitude. The BIA properly identified and interpreted § 422 and its analysis is accorded some deference. The BIA correctly observed that § 422 requires “willful” conduct, and, based on that determination, and on this court’s holding that a violation of § 422 categorically constitutes a crime of violence, the BIA held that § 422 “requires sufficient mens rea.”

Although  criminal threats alone, without any attendant serious physical harm, do not necessarily implicate moral turpitude, the particular threat crime at issue here is categorically a crime involving moral turpitude for three reasons:

First, the underlying conduct threatened is itself a crime of moral turpitude. Section 422 criminalizes only those statements that threaten “death or great bodily injury.” Cal. Penal Code § 422. The “intentional infliction” of such an injury constitutes a crime of moral turpitude. Second, § 422 criminalizes only that conduct which results in substantial harm by being “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” as to “caus[e] the threatened “person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” The statute does not criminalize “emotional outbursts” or “mere angry utterances or ranting soliloquies, however violent,” but rather proscribes a narrow category of speech that “instill[s] fear in others.”  Finally, the mens rea required by § 422 constitutes the evil intent required to render conduct morally turpitudinous.

Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Thomas J. Whelan, Senior District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf

An asylum applicant who has established past persecution but no longer has a well-founded fear of persecution may nevertheless warrant a discretionary grant of humanitarian asylum based not only on compelling reasons arising out of the severity of the past persecution, but also on a “reasonable possibility that he or she may suffer other serious harm” upon removal to his or her country under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (2011).   “Other serious harm” may be wholly unrelated to the applicant’s past harm and need not be inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion, but the harm must be so serious that it equals the severity of persecution. In determining whether an applicant has established a “reasonable possibility” of “other serious harm,” adjudicators should focus on current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the
potential for new physical or psychological harm that the applicant might suffer.

http://www.justice.gov/eoir/vll/intdec/vol25/3742.pdf

A respondent convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the respondent may establish by presenting evidence outside of the record of conviction.

Here, the respondent was convicted of possession of less than one-half ounce of marijuana and that he credibly testified regarding his acquisition of the marijuana at a party for $100. Considering this evidence, the Immigration Judge determined that the respondent had shown that he was convicted of possessing a “small” amount of marijuana “for no remuneration,” which would be a misdemeanor under the CSA. However, the respondent bears the burden of proving a lack of intent to distribute the marijuana for remuneration. Although the respondent’s conviction requires a finding of an intent to either distribute or give the marijuana to others, the record contains no clear indication whether the intended distribution was for remuneration or not. Tellingly, the respondent never was asked about, nor did he testify regarding, his intent to give or distribute the marijuana to others without payment. Remanded.

http://www.justice.gov/eoir/vll/intdec/vol25/3741.pdf

The BIA erred in holding that, although Petitioner was thirteen or fourteen years old at the time of the relevant offense, the Federal Juvenile Delinquency Act (“FJDA”), did not apply to Petitioner’s conviction because Petitioner was charged as an adult and received his conviction after reaching majority age.  Petitioner’s conviction constituted a juvenile adjudication. Petitioner was also eligible for a waiver under former section 212(c) (under Judulang v. Holder, 132 S. Ct. 476, 485-86 (2011).

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/07-72316.pdf

The government motion to remand this case in light of the Supreme Court’s decision in Judulang v. Holder, 132 S.
Ct. 476 (2011) is granted.

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/09/07-71613.pdf

Where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA. The IJ wrongly held that Mendoza-Pablo had not been persecuted because he had never personally “witnessed any atrocities” and he was never “personally challenged or confronted” by the Guatemalan military forces that attacked Todos Santos.

A. Wallace Tashima and Johnnie B. Rawlinson, Circuit Judges, and Jed S. Rakoff, Senior District Judge

Dissenting in part, concurring in part, Rawlinson: “I agree in principle that an infant may be subjected to persecution. However, I do not agree that the facts of this case compel a conclusion that Petitioner Juan Ubaldo MendozaPablo was subjected to persecution as an infant.”

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/07-73592.pdf

David Aranda Rodriguez has filed a petition for rehearing en banc in this consolidated matter. Rodriguez has had a longterm presence in the United States and has two United States citizen daughters, one of whom suffers from asthma. He does not appear to have any criminal convictions. In light of ICE Director John Morton’s June 17, 2011 memo regarding prosecutorial discretion, and the November 17, 2011 follow-up memo providing guidance to ICE Attorneys, the government shall advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to Petitioner’s pending petition for rehearing.

William C. Canby, Jr., Diarmuid F. O’Scannlain, and Raymond C. Fisher

Dissenting, O’Scannlain

http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/06-74444.pdf