Ninth Circuit Reverses Denial of Continuance

The Ninth Circuit has reversed the agency’s denial of a continuance to allow the petitioner to update his fingerprints, in light of his attorney’s erroneous advice that his fingerprints were still up-to-date, even though the judge had advised the petitioner at the prior hearing that he needed to update his fingerprints.

“[I]f an alien fails to provide updated fingerprints to DHS ‘because of an attorney,’ the alien’s reliance on the lawyer’s advice may constitute the requisite ‘good cause’ for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer’s bad advice post-dated the IJ’s instructions, Petitioner’s reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS. If the lawyer’s bad advice had preceded the IJ’s instructions, we might reach a different result.”

The full text of Pleitez-Lopez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/16-73656.pdf

Ninth Circuit Issues Long-Awaited Decision in Almanza-Arenas!

Crimmigration gurus unite! OK -- that might just be me.  Today the Ninth Circuit issued a long-awaited decision in Almanza-Arenas v. Holder.  The court determined that section 10851(a) of the California Penal Code (vehicle theft) is not a crime involving moral turpitude because it does not require a permanent taking.  Rather, the language "with the intent to either permanently or temporarily deprive" defined alternative means of committing the same crime, but did not define alternative elements of that crime.  

While this, on its own, would have been a nice result for immigrants with California convictions, the Ninth Circuit went a step further, and overruled its previous decision in Young v. Holder, which stated that an inconclusive record of conviction was insufficient to meet a non-citizen's burden or proving his eligibility for immigration benefits.  In plain(er) English, when a conviction contains alternative elements, some of which match the definition of a crime involving moral turpitude and some of which do not, a non-citizen no longer must conclusively prove that he was not convicted of the elements that do not constitute a crime involving moral turpitude in order to qualify for cancellation of removal.  Instead, if the criminal record is unclear about which elements he was convicted of, he is eligible for immigration relief.  For those of you who aren't super crimmigration nerds like me, you'll have to take my word for this: Almanza-Arenas will have widespread, positive impact on immigration cases throughout the Ninth Circuit.  It's a good day for immigration attorneys and their clients with criminal histories who are fighting removal proceedings and trying desperately to remain in the United States with their loved ones!

The full text of the decision can be read here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/10/09-71415.pdf