JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE WHERE BIA DID NOT INTERPRET A STATUTE BUT MERELY PROVIDED A "GUIDE" TO LATER INTERPRETATION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court of appeals owes no Chevron deference to BIA decision where it did not interpret a statute, but merely provided a "guide" to later interpretation).
JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE WHERE STATUTE IS CLEAR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court need not defer to BIA, under Chevron, where statute is clear: "When Congress has spoken directly to the issue, as it has here, our inquiry is over and Chevron deference does not apply.").
JUDICIAL REVIEW - DEFERENCE - ARGUMENT THAT NO CHEVRON DEFERENCE IS DUE TO BIA WHEN IT INTERPRETS THE DEFINITION OF A CRIMINAL OFFENSE, SUCH AS SEXUAL ABUSE OF A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court did not reach the question whether deference was owed to the BIA's interpretation of a criminal offense, such as "sexual abuse of a minor."), citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) (according no deference where the statute in question "is not a statute which the BIA administers or has any particular expertise in interpreting, no deference is accorded to the BIA's interpretation.").
ARTICLE - NINTH CIRCUIT DEFINES SEXUAL ABUSE OF A MINOR ACCORDING TO FEDERAL CRIMINAL STATUTE TO REQUIRE MINOR UNDER 16 YEARS OLD WITH AGE DIFFERENCE OF FOUR YEARS
In Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc), the Ninth Circuit held that a California conviction of consensual sex under the four penal statutes with a minor is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes.
RELIEF - CRIME-RELATED NONIMMIGRANT VISAS - CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
When dealing with crime victims and crime informants, counsel should check whether they might be candidates for relief under U.S. law that mirrors the protections in the United Nations Convention against Transnational Organized Crime or any of its protocols (such as the protocol against human trafficking or the protocol against migrant smuggling). The Third Circuit has directed the BIA to analyze what type of relief must be provided in Rranci v. Mukasey __ F.3d __ (3d Cir. 2008). Thanks to Rex Chen of Catholic Charities of Newark
AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008) (California conviction of second-degree robbery, in violation of Penal Code 211, constitutes an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) and 18 U.S.C. 16(b), since by its nature there is a substantial risk that physical force will be used in its commission, even though the elements require only force rather than physical force).
RELIEF - REFUGEE STATUS - REFUGEE STATUS ENDS UPON ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT, SO IMMIGRATION AUTHORITIES NEED NOT TERMINATE IT BEFORE REMOVAL
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008)(refugee status ends upon adjustment of status to lawful permanent resident, so immigration authorities need not terminate it before removal).
JUDICIAL REVIEW - BIA APPEAL - EXHAUSTION - NO ABUSE OF DISCRETION TO FAIL TO CONSIDER ARGUMENT NOT RAISED BEFORE IMMIGRATION JUDGE BUT RAISED FOR THE FIRST TIME IN MOTION FOR RECONSIDERATION
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008) (BIA did not abuse discretion to refuse to consider argument not raised before immigration judge, but raised for the first time on appeal in motion for reconsideration), citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) ("While we have never articulated precisely what constitutes raising an issue with the district court, we have found issues to be waived when they are raised for the first time in motions requesting reconsideration or in replies to responses.").
INTERPRETER - DUE PROCESS
Matter of Thomas, 19 I. & N. Dec 464, 465 (BIA 1987)
(presence of competent interpreter is essential for respondent's meaningful participation and fundamental fairness of hearing); see Tun v. Gonzales, 485 F.3d 1014, 1025-31 (8th Cir. 2007) (citing Matter of Thomas, and remanding on due process concerns where translation was problematic).
OVERVIEW - POST-DEPORTATION RETURN TO UNITED STATES AFTER PREVAILING ON PETITION FOR REVIEW
AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml.
