Monday, May 25, 2009

Immigration: Overstaying Visa for Twenty Years: Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009) Delgado entered the United States in 1989 under a non immigrant visa. He was subsequently convicted three times for driving under the influence of alcohol. In 2001 the government finally decided to deport him and the immigration judge (IJ) denied Delgado's petition for cancellation of removal and asylum. Delgado appealed. On the petition for cancellation of removal, the Ninth Circuit panel held Congress had stripped the court of jurisdiction to hear appeals from BIA decisions, and could not afford Delgado relief. According to the relevant statute, the Ninth Circuit could not overrule the Bureau of Immigration Appeals (BIA) ruling that Delgado had committed a "particularly serious crime" and subject to deportation. But the statute applicable to asylum read differently, and the Court did have jurisdiction over whether Delgado had committed a "particularly serious crime." The court admitted driving under the influence was "dangerous", but not "serious." In other words, Delgado did not injure, maim or kill anyone so the IJ should consider the merits of his asylum petition. Apparently three convictions for drunk driving is "serious" but not "dangerous." Aside from this linguistic hairsplitting, Delgado can drive drunk for as as many times as he wants without deportation. Just serve the sentence and return to society-unless his frivolous petition for asylum is denied. The Ninth Circuit continues to read review of administrative hearings conducted by IJs as though the procedure was a criminal trial. In fact, in another case, the Ninth Circuit reversed the IJ because the petitioner alleged "ineffective counsel." This is the popular defense of the Ninth Circuit in reversing trial courts in death penalty cases. The current Attorney General is reviewing a decision of the previous AG eliminating this ridiculous interpretation by the Ninth Circuit. This case is not final. The court in Delgado v. Holder had granted a rehearing from its previous decision (546 F.3d 1017 (9th Cir. 2008)) and is allowing further petitions of its current opinion for rehearing en banc. And this appeal was written in 2009, twenty years from entry into the United States and eight years from denial of the petitions.

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