JUDICIAL REVIEW - MOTION TO REOPEN - BIA NOT BARRED FROM GRANTING MOTION TO REOPEN REMOVAL PROCEEDINGS IF POST-CONVICTION RELIEF HAS BEEN GRANTED ON A GROUND OF LEGAL INVALIDITY, EVEN IF THE IMMIGRANT HAS ALREADY BEEN DEPORTED - REGULATION DOES NOT BAR CO
Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. Aug. 21, 2006) (8 C.F.R. 1003.2, providing that motion to reopen removal proceedings could not be made subsequent to removal, did not preclude BIA from ruling on motion to reopen after conviction that formed the a key part of the basis of the removal order had been vacated; it was not necessary that the conviction be the sole reason for removal).
JUDICIAL REVIEW - PETITION FOR REVIEW - STANDARD OF REVIEW - CRIME OF MORAL TURPITUDE - WHETHER CONVICTION CONSTITUTES CRIME OF MORAL TURPITUDE REVIEWED DE NOVO
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) ("Whether a state statutory crime necessarily involves moral turpitude is a question of law that we review de novo."), citing Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005).
JUDICIAL REVIEW - PETITION FOR REVIEW - STANDARD OF REVIEW - AGGRAVATED FELONY - WHETHER CONVICTION CONSTITUTES AGGRAVATED FELONY REVIEWED DE NOVO
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) ("Whether a particular offense constitutes an aggravated felony for which an alien is removable is also subject to de novo review."), citing Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1074 (9th Cir. 2006).
JUDICIAL REVIEW - PETITION FOR REVIEW - STANDARD OF REVIEW - AGGRAVATED FELONY - WHETHER CONVICTION CONSTITUTES AGGRAVATED FELONY REVIEWED DE NOVO
Yeghiazaryan v. Gonzales, 431 F.3d 678, 682 (9th Cir.2005) (questions of whether offense is an aggravated felony is reviewed de novo, with deference generally afforded to the BIA's interpretation of the immigration laws "unless that interpretation is contrary to the plain and sensible meaning of the statute."), quoting Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004).
NATURE OF CONVICTION - TEST FOR DETERMINING
In Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006), the Ninth Circuit outlined the test for determining whether a conviction constitutes a crime of moral turpitude for deportation purposes:
DIVISIBLE STATUTE ANALYSIS
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona conviction in 2003 of class 2 misdemeanor domestic violence/assault, in violation of A.R.S.
DIVISIBLE STATUTE ANALYSIS - IF ANY SUBDIVISION OR PART OF DIVISIBLE STATUTE OF CONVICTION DOES NOT TRIGGER DEPORTATION, AND THE RECORD DOES NOT ESTABLISH RESPONDENT WAS NOT CONVICTED OF THAT SUBDIVISION, THE CONVICTION DOES NOT TRIGGER DEPORTATION
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) ("The administrative record before us does not specify whether Fernandez-Ruiz pled guilty to subsection (A)(1) or (A)(2). (Footnore omitted.) Accordingly, if either subsection (A)(1) or (A)(2) covers conduct that is not a crime of moral turpitude, then the 2003 conviction cannot, categorically, be such an offense."), citing Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir.
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Morales-Perez, ___ F.3d ___ (9th Cir. Nov. 13, 2006) (California conviction of purchasing cocaine base with intent to sell, in violation of Health & Safety Code 11351.5(a), categorically constituted a drug trafficking offense under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry sentencing purposes, since the full range of conduct proscribed by the California statute fell within the definition of the federal offense of attempted possession with intent to distribute under 21 U.S.C.
AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, a crime of violence for illegal reentry sentencing purposes where the charging document and judgment of conviction, show the conviction was for burglary of a dwelling). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf
DIVISIBLE STATUTE ANALYSIS - EFFECT OF STATE LAW - COURT BOUND BY STATE COURT INTERPRETATIONS OF STATE CRIMINAL STATUTE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (reviewing court is bound by state court interpretation of statute defining state criminal offense in performing categorical analysis of whether state conviction falls within federal "crime of violence" definition under USSG 2L1.2(b)(1)(A)(ii)), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513, 53 S.Ct. 244, 77 L.Ed. 463 (1933); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir.