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 The Opinion filed June 24, 2011, slip op. 8617, and appearing at 642 F.3d 1226 (9th Cir. 2011), is withdrawn.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/

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/

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 motion for leave to file an amicus brief in support of the petitioner’s petition for rehearing, filed by Northwest Immigrant Rights Project on August 1, 2011, is GRANTED.

The panel has voted to deny the petition for panel rehearing. Judge Fisher has voted to deny the petition for rehearing en banc and Judges Tashima and Wolf have so recommended. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. The petition for panel rehearing and the petition for rehearing en banc are DENIED

By admitting at the pleading stage that he was convicted of possessing cocaine for sale and conceding that he was, therefore, removable, Perez-Mejia relieved the government of its burden of offering further evidence to prove that he was removable. The government is not estopped by its error in granting Perez-Mejia LPR status from correcting its mistake and ordering his removal. Perez-Mejia’s admission to the cocaine offense made him ineligible for a 212(h) waiver of removability.

A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Mark L. Wolf, District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/11/23/07-70118.pdf

A conviction for residential burglary under CPC § 459 constitutes a crime of violence because it is a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Thus, a conviction under CPC § 459 is a “particularly serious crime.” The Court’s recent en banc decision in Aguila-Montes does not change anything because it holds only that a conviction under CPC § 459 does not categorically constitute a conviction for generic burglary. It does not address the previously decided question of whether a conviction under CPC § 459 for residential burglary is an offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Lopez claims CAT relief based on one incident in 2005 in which a group of gang members beat Lopez and his cousin as they were exiting a store. Lopez himself testified that these gang members stopped the beating after they saw police in the area. That the police were willing and able to protect people from this gang is evidence Lopez would not be tortured upon his return. Although gang members beat up Lopez and his cousin in 2005, there is no evidence those gang members knew Lopez or his cousin, nor that the gang members had any reason to hurt them. It could be that Lopez and his cousin were just unfortunate bystanders who were in the wrong place at the wrong time. Further, there is no evidence the gang members are looking for Lopez today. Therefore, Lopez has failed to prove it is more likely than not he will be tortured upon his return to El Salvador.

Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges

http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf

The IJ looked back to a permissible period of time in determining that Gutierrez lacked good moral character. The IJ looked at facts bearing on lack of good moral character that continued into at least the five years preceding the immigration hearing. There is no basis to find that the IJ was restricted to a time period shorter than the shortest time period for the good moral character inquiry specified in other immigration provisions. In addition, while Gutierrez alleges that the IJ’s decision not to allow certain witnesses to testify telephonically violated local procedural rules and his right to due process, this claim lacks merit. In addition to the untimeliness of the request, there were other witnesses present and prepared to testify in person as to the same character evidence. Gutierrez failed to show that he was prejudiced by the exclusion of these witnesses. Finally, Gutierrez alleges that the IJ erred in drawing an adverse inference when he invoked the Fifth Amendment right against self-incrimination when asked if he was driving on a suspended license. However, the IJ was permitted to draw an adverse inference when Gutierrez refused to answer– in a deportation hearing there is no prohibition against drawing an adverse inference when a petitioner invokes his Fifth Amendment right against self-incrimination.

Sidney R. Thomas and Sandra S. Ikuta, Circuit Judges, and Jane A. Restani, Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf

Parole as a Special Immigrant Juvenile qualifies as an admission “in any status” for the purposes of eligibility for LPR cancellation of removal. The BIA did not engage in a meaningful analysis to support its conclusion that SIJS-parolees are not admitted for the purposes of § 1229b(a)(2). Given its summary nature, the BIA’s analysis does not merit significant deference. SIJS-based parolees are not expressly barred by Congress from being considered to have been “admitted in any status.” SIJS-based parole qualifies as one of the “alternative methods for aliens . . . to meet the ‘admitted in any status’ requirement” for cancellation of removal. As is the case for FUP participants, SIJS-parolees are a narrow class of juvenile aliens who must meet heightened eligibility requirements to apply to be classified as a Special Immigrant Juvenile, and SIJS-based parole affords particular benefits. In addition, like FUP beneficiaries, SIJS-based parolees gain special benefits set by Congress.

Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Richard Seeborg, District Judge

http://www.ca9.uscourts.gov/datastore/opinions/2011/11/02/08-73004.pdf

Arsdi did not put the BIA on notice that he took issue with the IJ’s analysis regarding whether his armed robbery was a “particularly serious” crime. As a result, the BIA had no “opportunity to pass on this issue.” Arsdi merely challenged the IJ’s application of the Frentescu factors in concluding that he was ineligible for withholding of removal, which was not enough.

http://www.ca9.uscourts.gov/datastore/opinions/2011/10/24/10-72147

Mr. Myers’s motion to stay issuance of the mandate pending adjudication of his motion to reopen before the BIA is GRANTED.

IKUTA, Circuit Judge, dissenting:

The applicable regulations make clear that filing a motion to reopen does not ordinarily stay the execution of a decision made in a prior proceeding. Rather, the BIA, the Immigration Judge, “or an authorized officer of the Service” must specifically grant such a stay. These are the procedures established by the BIA and DHS under the authority granted by Congress, procedures that apply equally to every alien who ends up in Myers’s situation. Myers, however, asks this court to interject itself into the normal processes of the BIA, and grant a special dispensation to this particular petitioner so that he will not face the prospect of removal even if the BIA declines to issue a stay of execution under its regulations.

http://www.ca9.uscourts.gov/datastore/opinions/2011/10/20/07-72858.pdf