Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007) (California conviction of stalking, in violation of Penal Code 646.9, did not constitute aggravated felony crime of violence under categorical or modified categorical analysis, but not discussing whether this offense constituted "stalking" within the meaning of the domestic violence ground of deportation, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).)

To say that there is judicial hostility to asylum applicants who flee gangs in Central America is an understatement. See De Paula v. U.S. Attorney General, 2008 U.S. App. LEXIS 5663 (11th Cir. 2008), Flores-Coreas v. Mukasey, 2008 U.S. App. LEXIS 2403 (1st Cir. 2008), Marquez-Perez v. Mukasey, 2008 U.S. App. LEXIS 4398 (5th Cir. 2008), Hernandez-Donis v. Attorney General, 2007 U.S. App. LEXIS 5648 (3rd Cir. 2007), In re Anonymous, (BIA, April 17, 2008). Immigration Judges in Boston and Arlington, VA recently granted relief to applicants.

AILF has issued a new Practice Advisory that addresses Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), its current status, and preliminary strategies and arguments - both within and outside of the Ninth Circuit - to avoid its negative impact. In Orozco, the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA 245(a) because he or she has not been "admitted."
See http://www.ailf.org/lac/pa/orozco-pa.pdf

Matter of ASB, 24 I. & N, Dec. 493 (BIA 2008) (Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous; BIA retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts).

Matter of VK, 24 I. & N. Dec. 500 (BIA 2008) (the BIA reviews de novo an IJs finding regarding the likelihood that a noncitizen will be tortured, since that finding relates to whether the statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact).

Ochieng v. Mukasey, 520 F.3d 1110, 1114-15 (10th Cir. 2008) (the definition of "child abuse" under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), set forth in dictum in a precedent BIA decision, was entitled to deference because it was based on a permissible construction of the statute), applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); accord Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th Cir. 2005); but cf. Velasquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir.

Serna-Guerra v. Mukasey, ___ F.3d ___, 2008 WL 2228868 (5th Cir. 2008) (Texas conviction for the unauthorized use of a vehicle, in violation of Tex. Pen. Code 31.07,constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for removal purposes, but "we urge and recommend that that precedent should be reconsidered and overruled by our en banc court."), reluctantly following Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007); United States v. Galvan- Rodriguez, 169 F.3d 217 (5th Cir.

The Ninth Circuit ordered that Estrada-Espinoza v. Mukasey, 498 F.3d 933 (9th Cir. 2007), be reheard en banc. In this case, a panel of the Ninth Circuit found that a statutory rape conviction constituted an aggravated felony (sexual abuse of a minor). The court noted that it was bound by a prior panel decision, Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2002). In its May 6, 2008 order granting rehearing en banc, the court said, "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." The court heard argument on June 25, 2008.

Xian Tuan Ye v. Dept of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006) ("Ye challenges the IJs denial of CAT relief, having failed to do so before the BIA. While ordinarily, under 8 U.S.C. 1252(d)(1), an alien may not raise before this Court an issue or category of relief not raised before the BIA, see Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004), the BIA addressed Yes CAT claim despite this oversight. Accordingly, Yes failure to raise the CAT claim himself is excused, and we have jurisdiction to address it now. See Waldron v.

Ballesteros v. Ashcroft, 452 F.3d 1153, 1158 (10th Cir. 2006) (argument that noncitizen relied on Ninth Circuit law when entering plea agreement required (a) favorable Ninth Circuit decision prior to entry of his plea; and (b) record evidence to support this claim such as evidence that acceptance of plea was conditioned on the plea's inability to affect his immigration status; administrative removal record contains only allegations by counsel of such reliance, but these allegations are not evidence), citing Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003).