Book updates to AF (Aggravated Felonies)

NATURALIZATION - MILITARY TIME PERIODS

An executive order was issued in July 2002, retroactive to September 11, 2001, declaring the current Iraq War/occupation a "military operation involving armed conflict with hostile force" such that persons who enlist and honorably serve in the military can take advantage of the more generous naturalization provisions of INA 329. See http://www.immigrationpolicy.org/index.php?content=f0611. The executive order doesn't mention the Iraq War specifically, but anyone who serves anywhere in the world is covered by it. Thanks to Margaret Stock.

jurisdiction: 
Other

CITIZENSHIP - DENATURALIZATION - CONVICTIONS COMMITTED WHILE NONCITIZEN WAS LPR CAN TRIGGER DEPORTATION AFTER DENATURALIZATION OCCURS

Matter of Gonzalez-Muro, 24 I. & N. Dec. 472 (BIA 2008) (denaturalized noncitizen who committed crimes while a lawful permanent resident and concealed them during the naturalization application process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction), distinguishing Costello v. INS, 376 U.S. 120 (1964)

jurisdiction: 
BIA

RELIEF - WAIVERS - 212(C) RELIEF - NINTH CIRCUIT TO REHEAR ABEBE ON MATTER OF BLAKE ISSUE

The Ninth Circuit ordered that Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007) be reheard en banc. In Abebe, a panel of the Ninth Circuit upheld the BIAs decision in Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) (finding a person convicted of sexual abuse of a minor is ineligible for a 212(c) waiver). The BIA had reasoned that the aggravated felony ground of removal had no statutory counterpart in the INA 212(a) grounds of inadmissibility, so INA 212(c) could not waive deportation on account of the conviction.

jurisdiction: 
Ninth Circuit

RELIEF - NON-LPR CANCELLATION - CONTINUOUS PRESENCE

Matter of Cisneros-Gonzalez, 23 I. & N. Dec. 668 (BIA 2004) (noncitizen who departs the U.S. after being served a charging document in a prior proceeding can, upon deportation and subsequent illegal re-entry, accrue another period of continuous physical presence for eligibility for non-LPR cancellation of removal).

jurisdiction: 
BIA

CITIZENSHIP - NATURALIZATION - A NONCITIZEN CANNOT BE CONSIDERED A U.S. CITIZEN ON THE THEORY THAT THE GOVERNMENT IS ESTOPPED TO DENY IT

Mustanich v. Mukasey, 518 F.3d 1084 (9th Cir. Mar. 11, 2008) (rejecting argument that respondent is a United States citizen, although he did not file an application for naturalization prior to the applicable statutory deadline, because the United States is equitably estopped from denying his citizenship because the Government's own affirmative misconduct precluded a timely filing), following INS v. Pangilinan, 486 U.S. 875 (1988) (citizenship cannot be conferred by estoppel where the statutory requirements for naturalization have not been met).

jurisdiction: 
Ninth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENCY WITH A CHILD

United States v. Najera-Najera, 519 F.3d 509 (5th Cir. Mar. 7, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code 21.11(a)(1), constitutes a "crime of violence" for illegal re-entry sentencing purposes).

jurisdiction: 
Fifth Circuit

RELIEF - WAIVERS - 212(c) RELIEF - FIVE-YEAR BAR NOT IMPERMISSIBLY RETROACTIVE FOR NONCITIZEN WHO PLEADED GUILTY AFTER ENACTMENT OF THE IMMIGRATION ACT OF 1990 EVEN THOUGH HE CONFESSED PRIOR TO THE ACT

Singh v. Mukasey, 520 F.3d 119 (2d Cir. Mar. 13, 2008) (Immigration Act of 1990 511(a) five-year 212(c) bar for "an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years" held not impermissibly retroactive as applied to one who pled guilty to a disqualifying felony after the Act's enactment, even though he confessed guilt to police prior to the enactment).

jurisdiction: 
Second Circuit

RELIEF - WAIVERS - 212(c) RELIEF - AEDPA BAR TO RELIEF NOT IMPERMISSIBLY RETROACTIVE FOR NONCITIZEN WITH CONVICTION PRE-DATING AEDPA WHO WAS BARRED FROM RELIEF BEFORE APPLICATION MADE BECAUSE OF FIVE-YEAR BAR

Singh v. Mukasey, 520 F.3d 119 (2d Cir. Mar. 13, 2008) (AEDPA 440(d) bar for 212(c) relief of all noncitizens convicted of "aggravated felonies" not impermissibly retroactive as applied to a person whose conviction pre-dated AEDPA, but who was statutorily barred from discretionary relief by the time he sought such relief even under pre-AEDPA law because he had already served more than five years imprisonment).

jurisdiction: 
Second Circuit

RELIEF - WAIVERS - 212(H) WAIVER - LPR AGGRAVATED FELONY BAR - ADMITTED AS LPR REQUIREMENT

Martinez v. Mukasey, 519 F.3d 532 (5th Cir. Mar. 11, 2008) (noncitizens who adjust post-entry to LPR status are not disqualified from eligibility for a waiver of inadmissibility under INA 212(h)'s plain language ["No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ...

jurisdiction: 
Fifth Circuit

RELIEF - CANCELLATION - FAILURE TO IMPUTE PARENTS RESIDENCE TO MINOR FOR CANCELLATION PURPOSES

Augustin v. Attorney General, 520 F.3d 264 (3d Cir. Mar. 20, 2008) (BIA did not err in refusing to impute to a noncitizen who entered the United States as a minor the parent's years of continuous residence in order to meet the seven-year requirement for cancellation of removal), declining to follow Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (parent's preceding years of residence in the United States are imputed to a minor child in application for cancellation of removal) , and distinguishing Morel v. INS, 90 F.3d 833 (3d Cir.

jurisdiction: 
Third Circuit

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