Capsule updates to CMT book

JUDICIAL REVIEW - PETITION FOR REVIEW - IMPERMISSIBLE BIA FACTFINDING

Padmore v. Holder, ___ F.3d ___, 2010 WL 2365863 (2d Cir. Jun. 15, 2010) (per curiam) (petition for review of removal order granted since BIA impermissibly engaged in factfinding, and impermissibly relied on unproven and disputed allegations as a basis for its decision).

jurisdiction: 
Second Circuit

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - MODIFIED CATEGORICAL ANALYSIS - RECORD OF CONVICTION - POLICE REPORTS - FACTUAL BASIS

Matter of Milian-Dubon, 25 I. & N. Dec. 197 (BIA Feb. 19, 2010) (California conviction of spousal battery, in violation of Penal Code 243(e)(1), constitutes a conviction of domestic violence, triggering deportability under INA 237(a)(2)(E)(i), 8 U.S.C.

jurisdiction: 
BIA

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE

Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

jurisdiction: 
Second Circuit

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC

Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding.

jurisdiction: 
Fourth Circuit

CRIMES OF MORAL TURPITUDE - DEFINITION

Nunez v. Holder, 594 F.3d 1124 (9th Cir. Feb. 10, 2010)

The Ninth Circuit described the difficult moral turpitude question as follows:

Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law.

jurisdiction: 
US Supreme Ct

JUDICIAL REVIEW - PETITION FOR REVIEW - MORAL TURPITUDE DETERMINATION

Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) ("The BIAs conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion. If it does either, we accord Chevron deference. Id. If it does neither, we defer to its conclusion to the extent that it has the "power to persuade." Id. at 909 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).").

jurisdiction: 
Ninth Circuit

MORAL TURPITUDE - SEXUAL INTENT

Nunez v. Holder, ___ F.3d ___, ___, 2010 WL 432417 (9th Cir. Feb. 10, 2010) (acts committed for the purpose of the sexual gratification of the viewer, such as nude dancing, or for the purpose of causing sexual affront, such as mooning, do not necessarily rise to the level of moral turpitude).

jurisdiction: 
Ninth Circuit

RELIEF - NON-LPR CANCELLATION OF REMOVAL

Partap v. Holder, 603 F.3d 1173 (9th Cir. May 10, 2010) (noncitizens unborn daughter did not meet statutory definition of "child" under 8 U.S.C. 1101(b)(1) for purposes of qualifying for cancellation of removal for non-lawful permanent residents).

jurisdiction: 
Ninth Circuit

RELIEF - WAIVERS -- INA 212(c)

Kim v. Holder, __ F.3d ___ (9th Cir. May 3, 2010) (noncitizens held ineligible for INA 212(k) waiver for certain lawful permanent residents where they obtained LPR status through fraud).

jurisdiction: 
Ninth Circuit

JUDICIAL REVIEW - RETROACTIVE APPLICATION OF COURTS INTERPRETATION OF A STATUTE - ONE-AND-ONLY MEANING

Morales-Izquierdo v. DHS, 600 F.3d 1076, 1090 (9th Cir. Apr. 2, 2010) ("when a court interprets a statute, even an ambiguous one, and even when that interpretation conflicts with the court's own prior interpretation, the new interpretation is treated as the statute's one-and-only meaning. See Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("[The] assertion of power to disregard current law in adjudicating cases ...

jurisdiction: 
Ninth Circuit

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