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Court Affirms Preliminary Injunction Ordering CBP to Improve Conditions in Holding Cells

In Doe v. Kelly, the Ninth Circuit issued an opinion affirming the preliminary injunctionissued by the U.S. District Court for the District of Arizona, which found that CBP is violating the constitutional rights of Tucson Sector immigration detainees and ordered CBP to take certain steps to improve conditions in its Tucson Sector holding facilities.

BIA Says DHS Is Not Precluded by Res Judicata from Initiating Separate Proceedings

Declining to follow the Ninth Circuit’s ruling in Bravo-Pedroza v. Gonzales, the BIA held that DHS is not precluded by res judicata from initiating a separate proceeding to remove a foreign national as one convicted of an aggravated felony burglary offense under INA §101(a)(43)(G), based on the same conviction that supported a crime of violence aggravated felony charge under §101(a)(43)(F) in the prior proceeding.

Court Says California Conviction for Second Degree Murder Based on Aiding and Abetting Theory Qualifies as an Aggravated Felony

The Ninth Circuit denied the petition for review, holding that the petitioner’s California conviction for second degree murder, based on an aiding and abetting theory, made him removable for having been convicted of an aggravated felony. The court found that California law on aiding and abetting, which looks to the natural and probable consequences of an act the defendant intended, had not materially changed since the U.S. Supreme Court decided Gonzales v. Duenas-Alvarez in 2007

Court Reverses Denial of Asylum to Homosexual Petitioner from Mexico

The en banc Ninth Circuit reversed the BIA’s denial of asylum to a homosexual citizen of Mexico, finding that the petitioner had shown that Mexican officials were unable or unwilling to protect him from harm by private individuals due to his sexual orientation, and thus that he had established past persecution. The court also concluded that the petitioner was entitled to a presumption of future persecution, and remanded for the BIA to consider whether that presumption was rebutted, and also to consider the petitioner’s claims for withholding of removal and CAT protection, taking into account new evidence of the petitioner’s HIV diagnosis.

Ninth Circuit upholds BIA denial

The Ninth Circuit upheld the BIA’s decision refusing to consider the Peruvian petitioner’s adjustment of status application because he entered the United States using a fraudulent Italian passport to gain the benefits of the Visa Waiver Program (VWP), holding as a matter of first impression that a noncitizen who fraudulently enters the United States under the VWP is subject to the VWP’s limitations, including waiving any challenge to deportation other than asylum. The court also held that the BIA did not err in denying the petitioner’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), finding that the petitioner failed to establish a nexus to a protected ground, and that the harm he suffered was insufficient for CAT protection.

Court Says Noncitizen Issued an Expedited Removal Order at Border Checkpoint Has “Re-Entered” Under INA §241(a)(5)

In a question of first impression for the federal courts, the Ninth Circuit denied the petition for review, holding that a noncitizen who is issued an expedited removal order at a U.S. border-crossing checkpoint has entered the United States for purposes of reinstatement of removal under INA §241(a)(5). The court noted that its decision is limited to the reinstatement provision’s definition of “re-entry,” and that it does not disturb the longstanding common-law definition of “entry.”

Court Says Vehicle Theft Under California Law Is Not a CIMT

The Ninth Circuit granted the petition for review of the BIA’s precedent decision in Matter of Almanza-Arenas, which held that a conviction for vehicle theft under California Vehicle Code §10851(a) constitutes a crime involving moral turpitude (CIMT). The court remanded to the BIA, holding that, because the least of the acts criminalized under §10851(a) is a temporary taking, the statute is overbroad and thus not categorically a CIMT. The court also found that §10851(a) is an indivisible statute under Descamps v. United States.

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