Monssef Cheneau v. William Barr, 971 F.3d 965

Born in Morocco in Dec. 1984; entered the U.S. on a student visa at age 13; mother obtained full custody and was naturalized in July 1999.
In Jan. 2000 (age 15) mother filed I-130 and Cheneau applied to adjust status to lawful permanent resident (LPR); he missed an INS interview due to mis-mailed notice and the application was denied.
Mother moved to reopen in Jan. 2003; INS granted reopening and adjusted Cheneau to LPR in Aug. 2003 (after he turned 18).
Criminal convictions: 2006 convictions including burglary (Cal. Pen. Code §459) and receipt of stolen property (§496(a)); another burglary conviction in 2009. DHS initiated removal as aggravated felon.
IJ and BIA denied derivative-citizenship claim and found burglary a crime-of-violence aggravated felony; on appeal the Ninth Circuit held Cheneau is not a derivative citizen, concluded Dimaya undermined the §459 aggravated-felony ground, and remanded for the BIA to assess other convictions.

Issue	Cheneau's Argument	Barr's Argument	Held
Whether former 8 U.S.C. §1432(a)(5) applies	§1432(a) applies because Cheneau "began to reside permanently" when he filed for adjustment in Jan. 2000	§1432(a) does not apply because the controlling "critical event" (LPR status) occurred after repeal; §1431 applies	Romero-Ruiz controls; §1432(a) does not apply; §1431 governs and Cheneau did not meet its LPR-in-childhood requirement
Meaning of "begins to reside permanently" in §1432(a)(5)	Does not require formal LPR status; an application to adjust status and objective indicia suffice	Requires lawful admission for permanent residence (LPR status)	Ninth Circuit bound by Romero-Ruiz: clause requires lawful admission for permanent residence
Whether Cal. §459 burglary is an aggravated-felony crime-of-violence	Burglary qualifies as a crime of violence aggravated felony under INA	Same; government relied on BIA/IJ findings	After Sessions v. Dimaya the crime-of-violence basis is invalidated; §459 cannot support removal on that ground now
Whether §496(a) receipt of stolen property is an aggravated felony	Not necessarily	Government argued it may be a categorical aggravated felony	BIA did not decide; Ninth Circuit remanded for the BIA to assess whether any conviction (including §496(a)) renders him removable

Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008) (holds that clause "begins to reside permanently" requires lawful permanent resident status under §1432(a)(5))
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (declares the INA "crime of violence" clause unconstitutionally vague)
United States v. Flores, 901 F.3d 1150 (9th Cir. 2018) (addresses whether certain theft offenses are categorical aggravated felonies)
Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) (timing rule: apply the statute in effect when the critical events giving eligibility occurred)
Descamps v. United States, 570 U.S. 254 (2013) (limits use of modified categorical approach in categorizing predicate offenses)
Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) (contrasting view: "begins to reside permanently" may not require LPR status)
Gonzalez v. Holder, 771 F.3d 238 (5th Cir. 2014) (reads Romero-Ruiz as requiring LPR status)
United States v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010) (agrees with Romero-Ruiz interpretation)
Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016) (analyzes both readings of §1432(a)(5) but does not definitively resolve conflict)
Gooch v. Clark, 433 F.2d 74 (9th Cir. 1970) (explains "lawfully admitted for permanent residence" as a status-term of art)
Elkins v. Moreno, 435 U.S. 647 (1978) (discusses permanence of residence separate from immigration status)