A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal. The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal. View "Lorenzo Lopez v. Barr" on Justia Law

The Ninth Circuit filed an order withdrawing the opinion and concurring opinion filed on February 9, 2018, and issued a new opinion and dissenting opinion. The panel affirmed the district court's grant of summary judgment for defendants in an action brought by a former probationary police officer alleging claims under 42 U.S.C. 1983. The panel held that the individual defendants were entitled to qualified immunity on plaintiff's claim of violation of her rights to privacy and intimate association, because it was not clearly established that a probationary officer's constitutional rights to privacy and intimate association are violated if a police department terminates her due to her participation in an ongoing extramarital relationship with a married officer with whom she worked, where an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while she was on duty, resulting in a written reprimand for violating department policy. Circuit precedent also did not clearly establish that there was a legally sufficient temporal nexus between the individual defendants' allegedly stigmatizing statements and plaintiff's termination. Therefore, the individual defendants were entitled to qualified immunity on plaintiff's claim that the lack of a name-clearing hearing violated her due process rights. Finally, plaintiff conceded that her sex discrimination claims were not actually based on her gender. View "Perez v. City of Roseville" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's pretermission of his application for cancellation of removal. The panel held that petitioner's continuous residency did not commence with his 1997 parole, but with his 2000 adjustment to LPR status. The panel held that petitioner has not shown that his 1997 parole constitutes an "admission in any status" as that term is used in 8 U.S.C. 1229b(a)(2); petitioner is not entitled to any relief because the administrative record does not include his 1997 parole document; and petitioner has not shown that the BIA erred in concluding that he had not challenged the IJ's denial of relief under the Convention Against Torture (CAT). At the parties' mutual request, the panel remanded petitioner's asylum application for the fact-finding necessary to determine the viability of petitioner's proposed social group. View "Alanniz v. Barr" on Justia Law

The en banc court stayed proceedings and certified the following question to the Montana Supreme Court: Whether, under Montana law, dinosaur fossils constitute "minerals" for the purpose of a mineral reservation. View "Murray v. BEJ Minerals, LLC" on Justia Law

The Ninth Circuit affirmed the district court's order compelling arbitration in an action brought by plaintiff, alleging violations of 42 U.S.C. 1981. The panel followed the reasoning in its en banc decision EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc), and held that Title VII does not bar compulsory arbitration agreements and section 1981 claims are arbitrable. Therefore, the district court correctly determined that plaintiff's section 1981 claims can be subjected to compulsory arbitration. View "Lambert v. Tesla, Inc." on Justia Law

Defendant Azano and Singh were convicted of various crimes stemming from illegal campaign contributions to local politicians to influence the 2012 San Diego election cycle. The Ninth Circuit reversed defendants' convictions on count 37 for falsification of campaign records and held that there was insufficient evidence to support the conviction. The panel held that Congress acted within its constitutional authority in enacting 52 U.S.C. 30121(a). The panel was bound by Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012), and rejected defendants' contention that section 30121(a) violated foreign nationals' First Amendment rights. The panel also held that the jury instructions sufficiently covered the required mental state as required by section 30109 and Singh's defense theory, and an omission satisfied the actus reus element for 18 U.S.C. 1519, falsifying campaign records. The panel rejected defendants' remaining claims and affirmed the remaining convictions, vacated the sentences, and remanded for resentencing. View "United States v. Singh" on Justia Law

The Ninth Circuit denied petitioner's application for authorization to file a second or successive 28 U.S.C. 2255 petition collaterally attacking his 2008 sentence for conspiracy to distribute and possess with intent to distribute methamphetamine and possession of a firearm during a drug trafficking offense. The panel held that the Supreme Court's decision in Dean v. United States, 137 S. Ct. 1170 (2017), did not announce a new rule of constitutional law that the Court has made retroactively applicable to cases on collateral review. Dean held that when a defendant is facing two consecutive sentences—one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under 18 U.S.C. 924(c), which does carry a mandatory minimum—the sentencing judge has the discretion to consider the defendant’s mandatory sentence when deciding the proper time to be served for the predicate offense. Therefore, petitioner failed to satisfy the requirements in section 2255(h)(2) because Dean's rule was statutory, not constitutional, and, even if it were constitutional, it was not retroactive to cases on collateral review. View "Ponce Garcia v. United States" on Justia Law

After plaintiff was denied housing due to disclosures appearing in a tenant screening report, he filed suit against TSP, alleging violations of the Fair Credit Reporting Act (FCRA), California's Investigative Consumer Reporting Agencies Act (ICRAA), and California's Unfair Competition Law (UCL). The district court dismissed all but one cause of action and granted summary judgment on the remaining FCRA claim. The panel held that the district court erred by concluding that the ICRAA is unconstitutionally vague as applied to tenant screening applications; the panel was bound by the holding in Connor v. First Student, Inc., 423 P.3d 953 (Cal. 2018), that the ICRAA overlaps with the Consumer Credit Reporting Agencies Act, which forecloses TSP's argument that the statutory scheme in unconstitutionally vague; and thus the panel reversed and remanded for further proceedings. The panel remanded for the district court to decide whether plaintiff stated a UCL claim predicated on TSP's ICRAA violations. Finally, the panel held that the FCRA permits consumer reporting of a criminal charge for only seven years following the date of entry of the charge. In this case, the report's inclusion of a 2000 charge fell outside of the permissible seven year window. Therefore, plaintiff stated sufficient claims under the FCRA. View "Moran v. The Screening Pros, LLC" on Justia Law

Defendant was convicted of 90 counts of wire fraud and one count of conspiracy to commit wire fraud. Defendant obtained millions of dollars from victims by telling them that he needed to pay CIA and FBI agents to protect him and his family from the Mafia, and that he would pay the victims back. The Ninth Circuit vacated in part, agreeing with the parties that insufficient evidence supported defendant's convictions for Counts 81-90. The panel rejected defendant's claim that his waiver of counsel was invalid; that he was not competent to represent himself; that he was denied his Sixth Amendment right to confront the witnesses against him; that the government committed misconduct during trial; that the district court erred by not granting him a continuance; that his trial suffered cumulative error; and that the district court erred in denying his post-trial motions. Accordingly, the panel affirmed defendant's convictions as to Counts 1-80 and Count 91. The panel remanded for resentencing. View "United States v. Audette" on Justia Law

The Ninth Circuit affirmed the district court's judgment after the panel certified two questions to the Washington State Supreme Court. The state court held that a priority use provision, an affirmative obligation to maintain and repair, and the ability to lease the property to others together create sufficient control of the property such that a landowner who leases the property is held liable as a premises owner. View "Adamson v. Port of Bellingham" on Justia Law