Castro-Martinez v. Holder (PUB) oa
Substantial evidence supported the BIA’s conclusion that Castro did not demonstrate that the Mexican government was unwilling or unable to control his attackers, and that he therefore failed to establish eligibility for asylum.
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/
Matter of Camarillo PUB
COR/stop-time rule
The language and design of the INA, the applicable regulations, and the congressional intent behind the provisions of INA section 240A(d)(1) lead to the conclusion that DHS’s service of a notice to appear triggers the “stop-time” rule, regardless of whether the date and time of the hearing have been included in the document. Section 240A(d)(1) does not require the service of both the notice to appear and the notice of hearing to activate the “stop-time” rule. The key date for purposes of the “stop-time” rule is the date when the respondent is served the notice to appear.
http://www.justice.gov/eoir/vll/intdec/vol25/3734.pdf
Carrillo de Palacios v. Holder (PUB)
AOS/EWI after removal
The opinion filed on June 21, 2011, 651 F.3d 969, is withdrawn.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
Lezama v. Holder (PUB)
NACARA, AOS
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
No new cases today!
Bains v. Holder (unpub)
Ag.fel./receipt of stolen property
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
Ventura v. Holder (unpub)
Nexus, PSG; CAT
The BIA properly denied Ventura’s asylum and withholding of removal claims because Ventura failed to establish a nexus between his fear of persecution and one of the protected grounds The only incident of past persecution is Ventura’s encounter with his neighbor, but Ventura’s testimony indicates that these threats arose out of a personal conflict between Ventura’s father and neighbor, not on account of Ventura’s political opinions or organizational membership. Further, Ventura’s fear of being kidnaped is not a sufficient basis for asylum or withholding of removal because asylum is not available to victims of indiscriminate violence, unless they are singled out on account of a protected ground. Ventura produced no evidence that he would actually be targeted for kidnaping, and even if he had, immigrants returning to their home country after living in the United States do not comprise a cognizable social group. Ventura also offered no evidence to show that his neighbor would persist in or act on the threats that he made more than twenty years ago. Ventura’s speculation that he might be kidnaped does not establish a likelihood of torture.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/23/09-70141.pdf
Hovsepyan v. Holder (unpub)
Credibility
Substantial evidence supports the IJ’s adverse credibility determination because Hovsepyan’s inconsistencies concerning the arrest of his brother and the break-in at his family’s home go to the heart of his claim. Hovsepyan’s repeated inconsistencies were not trivial, but rather undermined his version of events “central to” how he was persecuted and why he fled.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/23/08-71349.pdf
Parmar v. Holder (unpub)
Credibility
While the government rightly concedes that the IJ erred in some of her characterizations of Parmar’s testimony, the determination made by the IJ and BIA nonetheless was supported by substantial evidence. The IJ and BIA noted that Parmar was unresponsive, especially regarding questions about the arrest and detention that Parmar claimed precipitated his flight from India. There were also inconsistencies in Parmar’s testimony, notably regarding the timing of his third arrest.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/23/08-70109.pdf
Singh v. Holder (unpub)
MTR
The BIA did not abuse its discretion by denying Singh’s motion to reopen as untimely because the motion was filed over five years after the BIA’s final order and Singh failed to present material evidence of changed circumstances in India to qualify for the regulatory exception to the time limitation for filing motions to reopen.
http://www.ca9.uscourts.gov/datastore/memoranda/2011/11/23/10-73463.pdf
newimmigrationcases
