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9th Circuit Knocks Board of Immigration Appeals for Relying On Dismissed Indictment

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Obeid v. Lynch 

United States Court of Appeals for the Ninth Circuit
July 5, 2016; July 21, 2016, Filed
No. 13-70693

Case History: In 2004, after being charged with removability, Obeid applied for a green card on the basis of his marriage to a U.S. citizen. Obeid had been indicted for conspiracy to commit money laundering, but the indictment was dismissed as part of a plea agreement. Despite the dismissal, an immigration judge (“IJ”) ruled, on the basis of the indictment, that Obeid was inadmissible — and thus ineligible to apply for a green card — under 8 U.S.C. § 1182(a)(2)(I). The Board of Immigration Appeals (“BIA”) affirmed, concluding that Obeid was an “aider or assister” of money laundering under 8 U.S.C. § 1182(a)(2)(I)(ii). Obeid appealed to the Ninth Circuit and was granted review. After this, he BIA again affirmed, holding that there was “reason to believe” that Obeid had engaged in money laundering under 8 U.S.C. § 1182(a)(2)(I)(i). Obeid continued to challenge that determination.

 

Decision of the Ninth Circuit: Granted. The Ninth Circuit reasoned that the BIA had erred in relying on the purported testimony of Detective O’Brien, concluding that Detective O’Brien did not testify at all about the government’s reasons for dismissing the indictment. The Ninth Circuit further determined that the BIA had erred in determining that the indictment, standing alone, constituted “reason to believe” that Obeid had engaged in money laundering. The indictment charged Obeid only with conspiracy to commit money laundering. Lastly, the Ninth Circuit determined that it was not the Ninth Circuit’s role to decide whether Obeid’s divorce during the course of these proceedings automatically invalidates his application for adjustment of status (green card) under 8 C.F.R. § 205.1(a)(3)(i)(D).

 

Implications: Although the Ninth Circuit can rule on questions as a matter of law, it cannot do more than this. As was pointed out in this Ninth Circuit decision, “a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 154 L. Ed. 2d 272 (2002); see also Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006). The BIA is therefore, in the best position to determine the applicability of its own regulation.

 

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