Covarrubias v. Gonzales, __ F.3d __ (9th Cir. May 29, 2007) (alien smuggling, as defined in 8 U.S.C. 1182(a)(6)(E)(i), does not end once the noncitizen crosses the border, but continues until the initial transporter who brings the noncitizen into the U.S. ceases to transport the person).

Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. May 29, 2007) (noncitizen who pleads guilty to fraud in misappropriating more than $10,000 but later repays the entire loss, so the victims have been made whole, has not "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualifies as an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

"DHS regulations specifically provide that the respondent has such a burden only "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply." 8 C.F.R. 1240.8(d) (emphasis added). Thus, in a case where deportability is not at issue but eligibility for relief is, the regulations clarify that there must first be evidence that indicates that the offense may be an aggravated felony before the burden shifts to the respondent seeking cancellation of removal to establish that his or her offense is not an aggravated felony.

Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. Feb. 16, 2007) ("When an immigrant has engaged counsel and the IJ is aware of the representation, if counsel fails to appear, the IJ must take reasonable steps to ensure that the immigrants statutory right to counsel is honored. Here, denying the request for a continuance and conducting the merits hearing without taking reasonable steps to permit counsel to participate, denied Hernandez-Gil his statutory right to counsel.")

Randhawa v. Gonzales, 474 F.3d 918 (6th Cir. Jan. 30, 2007) (petition for review of BIA decision does not toll the time limit for filing a motion for reconsideration with the BIA).
http://caselaw.lp.findlaw.com/data2/circs/6th/053694p.pdf

United States v. Castillo-Basa, __ F.3d __, 2007 WL 570326 (9th Cir. Feb. 26, 2007) (doctrine of collateral estoppel, applied in the criminal double jeopardy context, prevents government from charging illegal entrant with perjury where during the initial illegal re-entry prosecution, the government could not find the taped record of the deportation hearing, but later finds the tape after acquittal; "The Double Jeopardy Clause does not only bar a second prosecution on the same charge of which a defendant has been previously acquitted (or convicted).

United States v. Almazan-Becerra, ___ F.3d ___, ___, 2007 WL 926486 (9th Cir. March 29, 2007) (applying categorical analysis to illegal re-entry sentencing context to determine whether conviction triggers sentence enhancement).

Nabulwala v. Gonzales, ___ F.3d ___, 2007 U.S. App. LEXIS 6449 (8th Cir. March 21, 2007) ("[T]he BIA may not find facts, as it attempted to do in this case. ... The BIA's attempt to fill the gaps by finding facts is impermissible.").
http://bibdaily.com/pdfs/nabulwala.pdf

Matter of Garcia-Flores, 17 I. & N. Dec. 325, 329 (BIA 1980) (adopting administrative exclusionary rule allowing respondent to exclude evidence where government violates a regulation intended to benefit the respondent who can show prejudice as the result of the violation).



Note: This remedy is rooted in the Fifth Amendment, but is a third remedy in addition to Fifth amendment and possibly egregious Fourth amendment violations. Thanks to Dan Kesselbrenner.

In the Ninth Circuit, the controlling cases on egregious Fourth amendment violations are Orhorhage v. INS, 38 F.3d 488, 503 (9th Cir.1994) and Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994). The Immigration Judge has authority to consider the constitutional claim that evidence is inadmissible as a result of egregious Fourth Amendment violations, i.e., when a reasonable officer knew or should have known that the Fourth amendment rights would be violated by this conduct and proceeded anyway.