Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Kharana v. Gonzales, the Ninth Circuit held that an alien cannot “buy down” the value element of an “aggravated felony” as defined by the Immigration and Nationality Act (“INA”).   Kharana, a lawful resident alien, pleaded nolo contendre  to charges of defrauding victims of amounts greater than $10,000.  Immigration authorities commenced removal proceedings, due to her conviction of felonies involving loss to the victims of more than $10,000.   She subsequently made those victims whole through restitution, and argued her victims had therefore no sustained losses greater than $10,000. The Court held that the INA definition applies to the conviction, and subsequent restitution cannot alter the fact of conviction, particularly as Kharana repaid her victims only after her schemes were discovered and she faced criminal penalties.

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In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

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In Montes-Lopez v. Gonzales, the Ninth Circuit held the Board of Immigration Appeals (BIA) erred in failed to determine whether the Petitioner’s right to counsel during proceedings before the immigration judge (IJ) had been violated. The BIA had affirmed the IJ’s decision without discussion of Petitioner’s claim.  The Court remanded the matter to the BIA for determination of the claim.

In another immigration matter, Chaidez v. Gonzales, the Ninth Circuit issued an amended opinion, clarifying that the matter was remanded. Otherwise, the outcome is unchanged from the original opinion.

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In Pedroza-Padilla v. Gonzales, the Ninth Circuit found that a waiver of inadmissibility does not also waive a legalization requirement that an alien reside continuously in the U.S. since January 1, 1982.  Pedroza-Padilla had been deported in 1985, and therefore, cannot satisfy the residency requirement.

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In Gallarde v. I.N. S, the Ninth Circuit held that an alien who enlisted in the U.S. military, but then sought and obtained honorable discharge on the basis of alienage, is not barred from citizenship. 8 U.S.C. § 315 bars any alien who obtains an exemption from military service on the basis of alienage from obtaining citizenship. 

The Court held that a strict construction of the language when read in its statutory and historical context, could only refer to compulsory, rather than voluntary, military service. The Court noted other statutes create a penalty, in the form of a loss of accelerated citizen ship eligibility for aliens who serve less than one year, and obtain a discharge on the basis of alienage. Barring citizenship entirely would eliminate that statutory scheme for a lesser penalty. Additionally, when originally enacted, § 315 existed within the selective service statutes, indicating its penalty referred to compulsory service. 

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In LoLong v. Gonzales, the Ninth Circuit overturned its previous decision of Molina-Camacho v. Ashcroft, and finds it does have jurisdiction to review decisions of the Board of Immigration Appeals. Until passage of the REAL ID Act in 2005, persons aggrieved by a BIA decision could seek habeas review, but that option has been removed, prompting the Court to revisit its decision in Molina-Camacho.

Having determined it has jurisdiction, the Court affirmed the denial of asylum here. There was no evidence that the Indonesian government was unable, or unwilling, to protect Chinese Christians there from religious militant groups. Accordingly, LoLong’s fears of persecution were not objectively reasonable.

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