The 9th Circuit held that failure to register as a sex offender was not a crime involving moral turpitude, because (a) it was a strict liability offense, and (b) the actus reus of failure to register is not morally offensive (unlike the underlying sexual offense triggering the requirement). Preliminarily, the Court found that a BIA order granting reconsidering but affirming the earlier result did not oust jurisdiction by eliminating the finality of the prior removal order. Overruled Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007).
The reinstatement statute (INA 245(i)) trumps the special provisions of 245(i), and - deferring to the Board under Chevron - a nunc pro tunc permission to reapply after a removal order cannot retroactively undo the permanent bar to admissibility under INA 212(a)(9)(C).
The Second Circuit upheld the warrantless arrest of Mrs. Melnitsenko against a challenge, finding no egregious violation of the constitution at an ICE checkpoint 107 miles from US-Canada border. However, it struck down the Board's treatment of Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (B.I.A. 2002), finding that it would be irrational to deny reopening for Adjustment of Status simply because the Government opposed the motion to reopen.
The 7th Circuit found that Illinois aggravated assault on a peace officer was not a crime involving moral turpitude (CIMT) unless it involves "bodily injury," as opposed to mere insulting or provoking touching.
Grigoryan v. Mukasey (9th Cir. 2/5/08) (originally published 11/19/07)
PER CURIAM tashima reinhardt pregurson
The 9th Circuit found that where ineffective assistance effectively deprived an alien of all representation, a presumption of prejudice applies. That presumption can be rebutted only if the Govt shows that no "plausible grounds for relief" exist. Here, even though the 9th Cir previously rejected the Petition for Review of the asylum denial, the Court held that the BIA could have ruled otherwise (though not compelled to do so); thus, plausible grounds had been shown.
Where an asylum applicant voluntarily retracted false asylum application, before being detected in falsity, 2d Cir suggested that future bar based on frivolousness may not apply, remanded to BIA for further analysis regarding timely retraction, the possible existance of discretion not to apply lifetime bar.
Note the circuit split: Cf. Lazar v. Gonzales, 500 F.3d 469, 476 (6th Cir. 2007); Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1339 (11th Cir. 2001) (withdrawal does not obviate past frivolousness), with Luciana v. Att’y Gen., 502 F.3d 273, 280 (3d Cir. 2007).
In a criminal reentry case, the 5th Circuit held that the Government didn't meet its burden of proof to show that California burglary (which can be non-residential) conviction was a crime of violence. First, the Govt didn't establish that crime was divisible; second, Govt didn't establish that defendant actually pled guilty to the factual allegations in criminal complaint.
The 1st Cir. held that an Algerian fleeing persecution by the Algerian rebel group FIS had not shown that extortion was on account of his political opinion. He argued that while it began as extortion, his refusal to accede to their request was treated as political opposition, resulting in, among other things, the murder of his brother.
Where FedEx inexplicably failed to deliver a Notice of Appeal to the BIA, and the appeal was denied on that basis, the 6th Cir. found that the Board had authority to decide whether to consider the appeal, regardless. It therefore erred in finding that it lacked such authority; remanded for re-analysis.
In case of denaturalized citizen, found to have been a guard at Nazi concentration camps, United States v. Demjanjuk, 367 F.3d 623, 627 (6th Cir. 2004), 6th cir rejected arguments that the Chief Immigration Judge was without authority to conduct a removal hearing after the denaturalization. [But, one wonders, what of Accardi v. Shaughnessy, 347 U.S. 260 (1954)? Wasn't the utterly strange designation of Chief Judge Creppy something like the ""public prejudgment" in Accardi that made "fair consideration of petitioner's case by the Board of Immigration Appeals ... impossible"? Accardi, 347 U.S. at 264.
U.S. v. Pacheco-Diaz (7th Cir. 1/29/08) (denying rehearing of U.S. v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007).
PER CURIAM easterbrook, sykes, rovner (rovner dissenting)
The 7th Cir. found that multiple drug possession offenses are aggravated felonies. It denied panel rehearing after the Board's decision in Matter of Carachuri-Rosendo, 24 I.&N. Dec. 382 (2007), expressing its agreement with Board Member Pauley's concurrence in that case.
Regarding adjustment of status by arriving aliens.
1. Upheld regulations at 1245.1(c)(8), which say that only USCIS has authority to grant adjustment, not EOIR. Found statute ambiguous as to whether Congress intended to vest authority with the DOJ or DHS - interpretation doesn't make people ineligible, it just governs jurisdiction.
2. No retroactivity problem here, because it only governs jurisdiction (who decides), not eligibility.
3. No due process problem because no liberty interest in discretionary relief like AOS or reopening.
4. BIA's denial of reopening did not violate terms of the remand, since the Court didn't order the Board to reopen, it just remanded for proceedings consistent with its opinion.
5. Petitioner and amicus argued that BIA abused its discretion in not reopening and continuing the case. Court said that related cases like Velarde didn't apply, because in those cases the EOIR would eventually decide on something (whereas here, it would not). It would not make sense for the BIA to reopen a case when it would never adjudicate the issue.
6. In a fn, noted Govt's willingness to resolve the case by other means.
In view of the highly unusual circumstances of this case, we note that there may be avenues of relief still available to Scheerer. The government’s brief emphasizes DHS’s readiness to “take steps that would permit Scheerer to apply for adjustment of status within the applicable regulatory framework.” According to the government, one such option would be for Scheerer to file an adjustment application with USCIS accompanied by a request that the applicable admission bar not be held against him for purposes of his seeking adjustment of status. Alternatively, the government suggests that Scheerer could request a grant of advance parole into the United States following his release from prison in Germany in order to pursue adjustment of status at that time. The government indicates that DHS is willing to entertain either of these proposals.
[Analysis: but isn't the CtApp requiring this unusual Govt concession to do a lot of work, where the Govt is allegedly required to remove someone within 90 days of a removal order (8 USC 1231(a)), and where there appears to be no requirement that USCIS adjudicate before removal? And apart from constitutional guarantees, doesn't an alien have a statutory-based right to have a decision on their applications?
Of course, the oddity of this case is that it involves reopening, rather than a continuance or mtn for abeyance. It seems like those fact patterns would be much stronger for this argument. - CR]
The 3rd Cir, citing Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), found that a conviction on collateral attack is a final conviction for removal purposes, so he was properly removed while attacking his convictions. Mtn to reopen before BIA, arguing that he wasn't an AggFel, was treated as withdrawn when he was deported; CtApp made no comment on that (that order wasn't appealed).
Petitioner filed an asylum claim, denied on the merits, then obtained remand from BIA for pending I-130. On remand, fraud was discovered, IJ refused continuance because he found the asylum app frivolous, barring Petitioner from all relief. I-130 then approved. 7th Cir said it had no jurisdiction over the continuance denial, but could review frivolous finding - which it upheld under substantive evidence standard (finding the de novo standard used in other cases a reflection that those cases involved legal issues). Cf. See Luciana v. Attorney General, 502 F.3d 273, 278–79 (3d Cir. 2007); Chen v. Mukasey, 527 F.3d 935, 939 (9th Cir. 2008); Barreto-Claro v. Attorney General, 275 F.3d 1334, 1338 (11th Cir. 2001). It rejected the argument that USCIS could waive the lifetime bar for a frivolous asylum app, and found that the I-130 certainly was not such a waiver.
Immigration Litigation Update 
