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Ninth Circuit Decisions

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  • Ninth Circuit Decisions

    Are immigration decisions made by the Ninth Circuit Court of Appeal regarded as law?
    If so do overseas consular offices have to accept a Ninth Circuit decision as law if a alien cites a case study from the court as a defence for being denied a visa?

  • #2
    Are immigration decisions made by the Ninth Circuit Court of Appeal regarded as law?
    If so do overseas consular offices have to accept a Ninth Circuit decision as law if a alien cites a case study from the court as a defence for being denied a visa?


    • #3
      I might be wrong, but is not it Congress which makes laws and not judicial branch?
      ...Mistake Recognized is half corrected ...


      • #4
        Decisions, become *CASE LAW* of course sometimes they could be challenged by another case and be reversed by another decision.


        • #5
          Aguila is right.

          Precedent, or case, law is an interpretation or clarification of written laws. In other words - it is what the judges understand the law to mean/say.

          It is used as basis of future cases (think Roe vs. Wade) and is the standard that future decisions are held against. However, they can, and are, then reversed or reclairified, by future decisions...

          So the laws are written and applied - people appeal - judges consider if the law was applied correctly and understood properly and then reiterated...

          Read some precedent appeals cases and you will see what we mean...



          • #6
            All entities (consular offices, etc) must consider these decisions. If they ignore them they can be appealed citing the case law...



            • #7
              Answer to supercat:

              As long as there are no conflicting interpretations of the same law made by other circuits, and as long as Supreme Court does not overturn 9th Circuits Opinion, it will hold as highest level of ineterpretation of the existing law.

              Your second question is a bit flawed:
              How did the precedent case get to be heard by 9th Circuit if plaintiff was unable to get visa and legally appear before the lower courts in the first place?
              Can you give a reference to that particular case? (John vs. Doe, 1999,

              I will answer your second question after I read the 9th Cir. decision.


              • #8
                I am a U.S. citizen married to a U.K. citizen, we have a child together born in the U.S.
                My husband had his Immigration interview at the London embassy and was denied under section
                INA § 212(a)(2)(A)(i)(II) for a simple drug possesion of a Class A and B drug 8 years ago.
                He received a conditional discharge which after 12 months was obviosly discharged as there were no further offences committed. Under UK law he has no convictions due to the Rehabilitation Act.
                In the US this is similiar to the First Offenders Act which Immigration law recognizes.
                A similar case Dillingham v INS was found in favour of the alien.

                Headnotes "¢ Opinion "¢ Cases Citing This Case
                United States Court of Appeals,
                Ninth Circuit.
                Christopher John DILLINGHAM, Petitioner,
                No. 97-71038.
                Argued and Submitted Feb. 16, 2001
                Filed Sept. 14, 2001
                Alien petitioned for review of Board of Immigration Appeals' (BIA's) decision, 1997 WL 489026, affirming immigration judge's denial of his application for adjustment of status to legal permanent resident on grounds that he had prior conviction in Great Britain for simple possession of marijuana and cocaine, despite fact that conviction had been expunged pursuant to British rehabilitation statute for first-time offenders. The Court of Appeals, Betty B. [*997] Fletcher, Circuit Judge, held that: (1) persons similarly-situated to alien were people convicted of drug offenses based upon conduct under Federal First Offender Act (FFOA); (2) BIA's decision not to recognize foreign expungements for simple drug possession offenses resulted in differential treatment; (3) government's interest in administrative convenience was not rational basis to support differential treatment; and (4) equal protection bars government from discriminating against aliens who committed substantially identical offenses and had convictions expunged under substantially identical statutes, solely because of where offense occurred.
                Reversed and remanded.

                So the question is does the embassy in London have to recognize this decision and reverse my husband's visa denial.
                I am based in Florida, my husband is in London, England.


                • #9
                  As far as I remember State Department and particularly its' Embassies were outside of US Courts Jurisdiction, and therefore if someone was denied visa there was nothing one could do about it, except making an inquiry through Congressional Office, that usually didn't help much.
                  Recently I have heard that there will be a due process to complain about unfair treatment/unfair denial of visa.
                  I didn't follow up with those news, so I don't know where it stands now.

                  As to DEFINITE answer to your question, I would say NO, you can't use this 9th Cir.Court decision as precedent, because it is a DIFFERENT case.
                  Adjustment of Status falls under US Court Jurisdiction (person present in US, wants AOS to LPR), and your husband is NOT present in US, and only applying for VISA (not withing US Court Jurisdiction).

                  Wish you good luck, but unless you know someone very important in British Foreign Ministry or US State Department there is very little you can do about it.



                  • #10
                    Supercat: the "First Offenders Act" is applicable to removable aliens in the U.S. It has no bearing on inadmissiable aliens abbroad. The inadmissiability clause tightened recently and makes it more difficult in re of admissability, even for rather minor offenses.

                    Your (unlikely successfull) options are to prove extreme hardship to obtain a waiver of inadmissiability. Show extreme rehabilitation with whatever means possible, or start a grassroots organization to draft a law that will make decisions on case by case or join a group of affected U.S. citizens. Good luck.

                    LongTimeHere: American Politics 081; We have three branches of power; judiciary (all courts including the Supreme court as the last instance), executive (law enforcement and armed forces with the president as its commander in chief), and legislative (Congress, made up of House of Represantives and the Senate).

                    Congress drafts and passes laws, and the judicial branch interpretes them. Our system is that of "check and balance", any branch can overrule the other one way or the other, any decision or exec order is final untill repealed/redrafted/or overruled by one of the other branches. No law may be passed contrary to the U.S. Constitituion.


                    • #11
                      I am glad I was not wrong
                      ...Mistake Recognized is half corrected ...


                      • #12
                        how bout me that my case falls under ffoa under state statue and i have been deported from usa and i was a perm resident with what i read here it means that i have the right to ask for a visa and the bar for 10 yrs doesnt apply
                        to me ??


                        • #13
                          Concluding that the IIRIRA did not repeal the FFOA, either expressly or by implication, the court found that nothing in the new "conviction" definition would prohibit giving effect to the FFOA's mandate—i.e., that an expungement of a first-time drug offense under that statute eliminates the effects of the conviction for all purposes.

                          The court also rejected the INS's argument that even if federal expungements under the FFOA must still be recognized, state expungements such as those received by the petitioners in this case are no longer to be recognized. The court found that the equal protection analysis that it applied in Garberding continues to require that the BIA recognize expungements granted under state laws, where the defendants could have been prosecuted under federal law and qualified for an expungement under the FFOA.

                          LUJAN-ARMENDARIZ V. INS (9TH CIRCUIT)


                          • #14
                            How bout in 3rd circuit where i was living for 9 years , ffoa applies?


                            • #15


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