Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2005 WL 1301593 (9th Cir. June 1, 2005)(Arizona conviction of theft, in violation of Ariz. Rev. Stat. 13-1802(A)(1) and (C) (1992), defined as knowingly, and without lawful authority, controlling the property of another with the intent to deprive that person of it, with a sentence of 14 months in custody, constitutes a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for purposes of disqualifying a respondent from eligibility for cancellation of removal under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)).

Taylor v. United States, __ F.3d __ (11th Cir. Jan. 18, 2005) (commission of an aggravated felony offense bars noncitizen from applying for relief not allowed to noncitizens convicted of aggravated felonies, even if immigration authorities fail to charge the noncitizen with deportability as an aggravated felon).

Dave v. Ashcroft, 363 F.3d 649 (7th Cir. April 14, 2004) (discretionary relief from removal is not a liberty or property interest upon which a noncitizen can bring a due process claim).

United States v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. Jan. 26, 2004) (noncitizen who enters country without inspection, then commits aggravated felony, is subject to administrative removal pursuant to 8 U.S.C. 1228(b), even though noncitizen was not formally "admitted" to United States; Congress did not intend to exempt from expedited administrative removal aggravated felons who enter country illegally); accord, Bazan Reyes v. INS, 256 F.3d 600, 60 (7th Cir.2001).

Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) ("An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings.").

Perez-Enriquez v, Ashcroft, 383 F.3d 994 (9th Cir. Sept. 9, 2004) (adjustment of status occurs on date full adjustment is granted, rather than on date noncitizen makes application for adjustment of status under SAW and is granted temporary permanent resident status; therefore inadmissible offense committed while noncitizen was TPR subjects noncitizen to removal under INA 237(a)(1)(A), as inadmissible at time of adjustment of status).

A person who commits a crime involving moral turpitude within five years of last "admission" is deportable if the offense carries a potential sentence of a year. INA 237(a)(2)(A), 8 USC 1227(a)(2)(A). "Admission" is defined by statute as a lawful entry into the United States. See INA 101(a)(13)(A), 8 USC 1101(a)(13)(A). However, the BIA as well as the Ninth Circuit, in Ocampo-Duran v. Ashcroft, have held that where the person had no prior admission (i.e., had entered the U.S.

Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (equal protection does not require granting immigration judges same jurisdiction to adjudicate adjustment petitions in pre-IIRAIRA exclusion proceedings that immigration judges have in deportation proceedings).

Alvarez-Garcia, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (noncitizen in exclusion proceedings has no right to adjust status before the IJ; noncitizen must instead apply to District Director).      With removal proceedings the regulation has eliminated the substantive right of adjustment for parolees entirely, and arguably it is therefore ultra vires to the statute and possibly a due process violation under Alvarez-Garcia.

Adjustment of status, in combination with a waiver under INA 212(h), or 212(c), is available as a defense to deportation on account of a criminal conviction that does not trigger a ground of inadmissibility. Immigration authorities sometimes take the position that Gabryelsky is no longer good law because the regulation on which it rested, 8 C.F.R. 245.1(e), no longer exists. This is incorrect, since the regulation has merely been moved to 8 C.F.R. 245.1(f), without mention of 212(c), but 212(c) is implied under Matter of Gabryelsky.