Articles Posted in Immigration Law

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The Ninth Circuit denied a petition for review of the BIA's order finding petitioner removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). The panel held that petitioner's prior conviction under Oregon Revised Statutes section 164.395 was a categorical theft offense and was therefore an aggravated felony under section 101(a)(43)(G) of the INA. The panel held that the record supported the BIA's denial of relief under the Convention Against Torture where the BIA agreed with the IJ's conclusion that petitioner failed to establish that he would more likely than not face a particularized risk of torture with the acquiescence of a public official in Guatemala. View "Lopez-Aguilar v. Barr" on Justia Law

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The United States challenged California's enactment of three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. The Ninth Circuit held that the district court did not abuse its discretion when it concluded that AB 450's employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California's prerogatives under the Tenth Amendment and the anticommandeering rule. Therefore, the panel affirmed the district court's denial of a preliminary injunction as to these laws. The panel also affirmed the district court's denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law. However, the panel held that one subsection of AB 103—codified at California Government Code section 12532(b)(1)(C)—discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Therefore, the panel reversed the preliminary injunction order as to this part and remanded for further proceedings. View "United States v. California" on Justia Law

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Petitioner sought review of the BIA's decision dismissing his appeal of the IJ's denial of relief from removal. The BIA held that petitioner's conviction of robbery in the third degree in violation of Oregon Revised Statutes section 164.395 was a crime involving moral turpitude (CIMT) and petitioner failed to prove membership in a particular social group for the purpose of establishing refugee status. The Ninth Circuit held that section 164.395 is not categorically a CIMT, because the minimal force required for conviction was insufficient and the government waived the issue of divisibility. However, the panel held that petitioner failed to demonstrate membership in a particular social group, because "individuals returning to Mexico from the United States who are believed to be wealthy" was not a discrete class of persons recognized as a particular social group. Accordingly, the court granted the petition in part, denied it in part, and remanded for further proceedings. View "Barbosa v. Barr" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The panel held that, although it was possible for the IJ to conclude that the death threats petitioner received were sufficiently serious and credible to rise to the level of persecution, the panel could not say that the evidence compelled the conclusion that petitioner suffered past persecution. Moreover, even assuming that petitioner had a subjective fear of future persecution, he failed to demonstrate that the record compelled reversal of the agency's internal relocation finding. Therefore, petitioner failed to establish eligibility for asylum and consequently, for withholding of removal. The panel also held that the IJ and BIA correctly concluded that petitioner had not been tortured in the past nor has he shown that it was more likely than not that he would be subjected to torture by or with the acquiescence of a public official. Accordingly, petitioner's CAT claim failed. View "Duran-Rodriguez v. Barr" on Justia Law

Posted in: Immigration Law

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Petitioner filed a habeas petition under 8 U.S.C. 1252(e)(2), challenging the procedures leading to his expedited removal order. The district court dismissed the petition based on lack of subject matter jurisdiction. The Ninth Circuit reversed and held that, although section 1252(e)(2) does not authorize jurisdiction over the claims in the petition, the Suspension Clause, U.S. Const. art. I, 9, cl. 2, requires that petitioner have a meaningful opportunity to demonstrate that he was being held pursuant to the erroneous application or interpretation of relevant law. The panel held that section 1252(e)(2) did not provide that meaningful opportunity and thus the provision violated the Suspension Clause as applied to petitioner. In this case, there were meager procedural protections afforded by the administrative scheme governing credible fear determinations, and these meager procedural protections were compounded by the fact that section 1252(e)(2) prevented any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards. The panel further declined to interpret section 1252(e)(2) to avoid the serious Suspension Clause problems engendered by the statute. View "Thuraissigiam v. USDHS" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit denied a petition for review of the BIA's decision upholding the IJ's denial of withholding of removal and protection under the Convention Against Torture (CAT). The panel held that it was appropriate for the BIA to consider sentencing enhancements when it determined that a petitioner was convicted of a particularly serious crime on a case-by-case basis. The panel clarified that it was also appropriate for the BIA to consider sentencing enhancements when it determined that a petitioner was convicted of a per se particularly serious crime. In this case, petitioner was convicted of willful infliction of corporal injury upon the mother of his child with a prior conviction, and was sentenced with a one-year enhancement that made his aggregate term of imprisonment five years. The panel held that the BIA applied the correct legal standard when it determined that petitioner was convicted of a per se particularly serious crime and was therefore ineligible for withholding of removal. The panel also held that substantial evidence supported the denial of CAT relief. View "Mairena v. Barr" on Justia Law

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Petitioner sought review of the BIA's decision dismissing her appeal of the IJ's denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit granted the petition in part and remanded for reconsideration of petitioner's claims. The panel held that the IJ did not deny petitioner her due process rights to counsel and an unbiased factfinder. In this case, petitioner had reasonable time to locate an attorney and was provided several continuances so she could do so. Although the IJ was rude and harsh with petitioner, petitioner failed to show that the harshness or rudeness prejudiced her. In regard to petitioner's asylum and withholding of removal claims, the Board erred as a matter of law in its analysis and application of the "firm resettlement" rule. In regard to petitioner's claim for relief under the CAT, substantial evidence did not support the Board's determination that petitioner could safely relocate in another area of Cameroon. View "Arrey v. Barr" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit denied a petition for review of the BIA's decision upholding a final order of removal. At issue was whether the BIA permissibly interpreted the phrase "single scheme of criminal misconduct" under 8 U.S.C. 1227(a)(2)(A)(ii). In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed its longstanding interpretation of "single scheme of criminal misconduct" under section 1227(a)(2)(A)(ii): "when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct." The panel upheld the BIA's interpretation under the principles of Chevron deference and held that the BIA properly applied this interpretation here, and that this application was not impermissibly retroactive. The panel explained that, because the phrase in question operates as an exception to a ground for deportation, the BIA's narrower definition of the exception serves to broaden the application of the removal provision, making petitioner subject to removal when he might not have been under the panel's previous definition. The panel also upheld the BIA's denial of discretionary relief, acknowledging the limitations on judicial review of discretionary decisions. View "Szonyi v. Whitaker" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for DHS in an action challenging DHS's authority to expedite construction of border barriers near San Diego and Calexico, California. On January 25, 2017, President Trump issued Executive Order 13,767, directing federal agencies to deploy all lawful means to secure the Nation's southern border. A focal point of the directive was to immediately construct a physical wall. As a threshold matter, the panel held that it had jurisdiction to consider the "predicate legal question" of whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the contested projects. On the merits, the panel held that IIRIRA section 102(a)'s broad grant of authority, which was not limited by section 102(b), authorized the construction projects. The panel affirmed the district court's grant of summary judgment to DHS, holding that the projects were statutorily authorized and therefore not ultra vires. The panel also held that DHS has waived the environmental laws California and environmental groups sought to enforce. Furthermore, the panel lacked jurisdiction to consider any argument challenging the Secretary of DHS's August and September 2017 waivers of applicable environmental laws. View "Center for Biological Diversity v. Department of Homeland Security" on Justia Law

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The Ninth Circuit denied a petition for review of a final order of removal following the dismissal of petitioner's appeal by the BIA. Petitioner was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington 9.68A.090, and an IJ found that petitioner's conviction constituted a crime involving moral turpitude committed within five years of admission to the United States. Therefore, petitioner was removeable under 8 U.S.C. 1227(a)(2)(A)(i). The panel held that, in assessing the constitutional status of the phrase "crime involving moral turpitude," it was bound by the Supreme Court's decision in Jordan v. De George, 341 U.S. 223 (1951), which held that the phrase was not unconstitutionally vague. The panel also held that the Supreme Court's more recent decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), did not reopen inquiry into the constitutionality of the phrase. Furthermore, petitioner's alternate claim that communicating with a minor for immoral purposes was not a crime of moral turpitude was foreclosed by the panel's decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). View "Islas-Veloz v. Whitaker" on Justia Law