The Ninth Circuit Advantage is Waning

Sunday, July 25th, 2010
By: Jonathan MontagJ.D.

At immigration lawyer conferences, it is not unusual to hear attorneys speaking on the arcana of immigration law to comment on the Ninth Circuit. Those from it gloat about how the law is “better” there for foreigners and those not from it bemoan that they are not there. Quite often attorneys will call me from parts of the country outside of the Ninth Circuit asking if it would be advantageous for a client to move here. It sometimes is, or was.

Before 1997, the courts of appeal had authority to decide whether an immigration judge abused his or her discretion when considering relief for people when the relief was discretionary. The Ninth Circuit issued some decisions that were very helpful to aliens seeking relief. One gem was Kahn v. INS.

Since 1997, review of discretionary decisions has gone away and new forms of relief have substituted for the old ones, so the benefits of these older cases have waned.

The Ninth Circuit had good law, from the perspective of a deported person, on reinstating prior deportations, but the Supreme Court took care of that in Fernandez-Vargas v. Gonzales. Similarly, the Ninth Circuit had good law about people with prior deportations who came back illegally being able to adjust status to permanent residence under INA § 245(i), but that has all fallen by the wayside as well in Gonzales v. DHS.

The Ninth Circuit had great law on stays of removal when petitioning for review or filing for motions to reopen, but the Ninth Circuit advantage was spread, with important modifications, to all the circuits in Dada v. Mukasey.

In drug crimes, the Ninth Circuit was out front in determining that a state felony was not necessarily an aggravated felony, but here again the Supreme Court concluded in Lopez v. Gonzalez that the Ninth Circuit view, though not exclusively the Ninth Circuit view, was the right view.

One area where the Ninth Circuit is unique is in the area of expungements of certain drug crimes, like simple possession, under the influence, and paraphernalia. The Ninth Circuit has held in Lujan-Armendariz v. INS that the expungement of one such crime eliminates its immigration consequences. This decision is under challenge as the U.S. Justice Department is seeking re-hearing en banc in Nunez-Reyes v. Holder, a recent case that held that the expungement of a conviction for being under the influence of a controlled substance is effective to ward of being deported for the offense. The Justice Department filed its motion on July 7, 2010, and the court has ordered that Mr. Nunez-Reyes respond. The rehearing request is not an attack on the expansion of Lujan Armendariz to under the influence crimes, but a full-fledged attack on the Lujan-Armendariz concept that a drug crime’s expungement is meaningful in the immigration context. If this goes by the wayside, yet another reason why it is uniquely good to practice in the Ninth Circuit will go away. I guess those of us in Alaska, California, Oregon, and Washington, will still have the beach.  Posted July 25, 2010.



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