9th Circuit: Physical Presence Stops Accruing Upon Receipt of Notice to Appear

By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Ninth Circuit followed the trend set by the Second, Fourth, Sixth, and Seventh Circuits in determining that continuous physical presence for purposes of cancellation of removal stops accruing when the petitioner receives a Notice to Appear (NTA), regardless of whether the notice includes a date and location for the removal hearing. Moscoso-Castellanos v. Lynch, No. 12-72693, 2015 WL 5933279, at *3 (9th Cir. Oct. 13, 2015). Jorge Mario Moscoso-Castellanos, a native and citizen of Guatemala, arrived in the United States [...]

9 Cir limits prolonged immigration imprisonment

The U.S. Court of Appeals for the Ninth Circuit recently reinforced a semblance of rationality that is long tried to inject into the federal government’s civil immigration detention practice. In Rodriguez v. Robbins (Rodriguez III), Nos. 13-56706 & 13-56755, slip op. (9th Cir. October 28, 2015), the court largely affirmed its commitment to critically examining ICE’s conduct inside the vast immigration detention center archipelago. This decision builds off a sustained challenge to detention that advocates have brought before the Ninth Circuit repeatedly since 2009 and in the Central [...]

9 Cir: Overly Broad California Child Pornography Statute Isn’t Aggravated Felony

By: Sarah Flinn The U.S. Court of Appeals for the Ninth Circuit, using the categorical approach, recently determined that the California statute regarding the possession of child pornography, California Penal Code § 311.11(a), is broader than the federal statute and therefore is not considered to be an aggravated felony for purposes of INA § 237(a)(2)(A)(iii) and § 101(a)(43)(I). Chavez-Solis v. Lynch, No. 11–73958, 2015 WL 5806148, at *1, *2 (9th Cir. Oct. 6, 2015). Oscar Chavez-Solis, a native and citizen of Mexico, has been a lawful permanent resident of the United States since 1999. [...]

9 Cir. finds part of crime of violence definition unconstitutional

The U.S. Court of Appeals struck an important blow against the crime of violence type of aggravated felony yesterday holding that part of the term’s definition is unconstitutionally vague. Dimaya v. Lynch, No. 11-71307, slip op. (9th Cir. Oct. 19, 2015). The court held that the so-called “residual clause” of the crime of violence definition fails to provide migrants with sufficient notice of the kind of conduct it prohibits to satisfy the Fifth Amendment Due Process Clause. This case involved a lawful permanent resident twice convicted of first-degree burglary in violation of California [...]

9 Cir takes strong stance on right to effective assistance of counsel

In a well-reasoned and crisply written decision, the U.S. Court of Appeals for the Ninth Circuit bolstered the Sixth Amendment right to counsel for migrant defendants recently. In United States v. Rodriguez-Vega, No. 13-56415, slip op. (9th Cir. Aug. 14, 2015), a three-judge panel held that a defendant who was provided less-than-clear advice about the immigration consequences of conviction was denied the effective assistance of counsel that the Sixth Amendment guarantees. This case involves a twenty-two year-old lawful permanent resident who was convicted of misdemeanor attempted [...]

9 Cir: Shifts longstanding drug paraphernalia case law to follow Supreme Court

The U.S. Court of Appeals for the Ninth Circuit recently held that a drug paraphernalia conviction constitutes a controlled substance offense only if the conviction involved a substance criminalized by federal drug laws. Madrigal-Barcenas v. Lynch, No. 10-72049, slip op. (9th Cir. August 10, 2015). In doing so, the Ninth Circuit adjusted a robust body of case law to conform with the U.S. Supreme Court’s decision in Mellouli v. Lynch, 135 S. Ct. 2828 (2015), a case that I and a team of guest bloggers covered in detail on crImmigration.com. This case involved a migrant convicted of possession [...]

9 Cir: Inconclusive record favors migrant

The U.S. Court of Appeals for the Ninth Circuit reversed course this week holding that a record of conviction that inconclusively identifies whether a migrant is removable must be viewed as failing to prove removability. Almanza-Arenas v. Holder, No. 09-71415, slip. op. (9th Cir. Nov. 10, 2014). This is a significant change for the Ninth Circuit, but also an important move away from the BIA’s position which it adopted when Almanza-Arenas’s case was before it. Matter of Almanza-Arenas, 24 I&N Dec. 771, 774 (BIA 2009). Here’s how I explain this situation in my forthcoming book [...]

9 Cir: Arizona’s no bail law is unconstitutional

After years of litigation, the U.S. Court of Appeals for the Ninth Circuit announced yesterday that Arizona’s no bail law for unauthorized migrants violates the Due Process Clause of the Fourteenth Amendment. Lopez-Valenzuela v. Arpaio, No. 11-16487, slip op. (9th Cir. Oct. 15, 2014) (en banc). This case involved a facial challenge to Arizona’s Proposition 100, a slate of amendments to the state constitution that, among other things, prohibit state judges from setting bail of any amount for people charged with a slew of state felonies if the judge had probable cause to believe that the [...]