Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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Amaya shot his drug dealer five times and was convicted in Washington of first-degree assault. He was charged as removable for having been convicted of an “aggravated felony,” 8 U.S.C. 1227(a)(2)(A)(iii). Amaya argued that his conviction was not categorically an “aggravated felony.” In the alternative, he sought asylum, withholding of removal, or relief under the Convention Against Torture (CAT). The Board of Immigration Appeals held that Amaya was removable.The Ninth Circuit denied a petition for review. First-degree assault under Washington law is categorically a crime of violence under 18 U.S.C. 16. The statute requires “intent to inflict great bodily harm,” which Washington courts have said is specific intent. The court concluded that it lacked jurisdiction to reach Amaya’s due process claim of immigration judge bias because Amaya failed to exhaust it before the BIA; neither his notice of appeal nor his attachment made a clear, non-conclusory argument in support of his claim. The agency did not err in denying Amaya’s application for deferral of removal under CAT; the IJ laid out the correct legal standard, considered Amaya’s concern that he would be harmed by the Salvadoran government, and found that Amaya was never harmed in the past by the Salvadoran government. The IJ considered the totality of the record evidence, including the country conditions reports. View "Amaya v. Garland" on Justia Law

Posted in: Immigration Law
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California AB 32 phases out private detention facilities within the state. Because of fluctuations in immigration, ICE relies exclusively on private detention centers in California. AB 32 carves out exceptions for the state’s private detention centers. The United States and GEO, which operates private immigration detention centers, sued. The district court ruled largely in favor of California.The Ninth Circuit reversed. California is not simply exercising its traditional police powers, but rather impeding federal immigration policy. . Under the Supremacy Clause, state law must fall if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The presumption against preemption does not apply to areas of exclusive federal regulation, such as the detention of immigrants. California did more than just exercise its traditional state police powers – it impeded the federal government’s immigration policy. Congress granted the Secretary of the Department of Homeland Security broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities. AB 32 also discriminated against the federal government in violation of the intergovernmental immunity doctrine by requiring the federal government to close all its detention facilities, while not requiring California to close any of its private detention facilities until 2028. View "GEO Group, Inc., v. Newsom" on Justia Law

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During 2005 removal proceedings, Amaya returned to Honduras after her mother fell ill. An IJ issued an in absentia removal order. After Amaya reentered the U.S. in 2019, the government reinstated its removal order, 8 U.S.C. 1231(a)(5), rendering Amaya ineligible for asylum. An IJ denied Amaya’s applications for withholding of removal and protection under the Convention Against Torture (CAT). He assumed that Amaya testified credibly and concluded that Amaya had demonstrated past persecution on account of a protected ground.The Ninth Circuit remanded. Given her pro se status, Amaya’s Notice of Appeal was sufficiently specific to inform the Board of the issues; the Board violated her due process rights by summarily dismissing her appeal. The Board “may not ignore a pro se petitioner’s inartful legal arguments.” Given the limited relief to which she was entitled, Amaya’s Notice was sufficient. Her statement that "the police from my government of Honduras didn’t do nothing to help me" put the Board on notice that she challenged the finding that she did not establish that the police would be unable or unwilling to protect her. Her statement that "[t]he gangs MS-13 [are] there in all the places in Honduras" notified the Board that she disputed the IJ’s conclusion that she could relocate safely within Honduras. Amaya’s failure to discuss past torture or the likelihood of future torture did not mean that her entire appeal was automatically subject to summary dismissal. View "Nolasco-Amaya v. Garland" on Justia Law

Posted in: Immigration Law
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Cui. a Chinese citizen, overstayed her work visa and applied for asylum. In 2014, Cui was arrested while out of state. Neither she nor her counsel attended her merits hearing before the IJ. She was ordered removed in absentia. Although Cui engaged a second lawyer, that lawyer incorrectly filed an appeal to the BIA. In July 2014, Cui’s counsel attempted to file a motion to reopen before the IJ, but the clerk rejected and did not file the motion because of the pending appeal and because another attorney was counsel of record in the immigration court. Cui’s counsel did not attempt to rectify his errors or refile the motion to reopen within the statutorily allotted 180 days, 8 U.S.C. 1229a(b)(5)(C)(i).Over two years later, after the BIA returned Cui’s case to the IJ for lack of jurisdiction to consider the erroneous appeal, Cui’s counsel again moved to reopen before the IJ. Both the IJ and the BIA dismissed the 2016 motion as untimely. The Ninth Circuit denied a petition for review. The 180-day deadline to file a motion to reopen was not tolled. The BIA neither abused its discretion in determining that Cui’s 2016 motion was untimely nor legally erred by declining to sua sponte reopen her case. View "Cui v. Garland" on Justia Law

Posted in: Immigration Law
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Alfred entered the U.S. from Palau under the Compact of Free Association between the U.S. and several Pacific Island territories. Seven years later, Alfred pled guilty in Washington state court to second-degree robbery and two counts of attempted robbery in the second degree. According to his plea agreement, Alfred alone first tried to obtain cash from a credit union teller before going to a coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle. During Alfred’s incarceration, he was charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(G)--a theft or burglary offense for which the term of imprisonment is at least one year. According to the IJ, the Ninth Circuit’s Alvarado-Pineda holding controlled; the state statute under which Alfred was convicted was a categorical match to the federal generic offense. Alfred, like Alvarado-Pineda, had been sentenced to a term of imprisonment of more than a year for each conviction. The BIA affirmed.The Ninth Circuit vacated, citing its post-Alvarado-Pinedo holding, Valdivia-Flores, that convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under 8 U.S.C. 1101(a)(43)(G), (U). View "Alfred v. Garland" on Justia Law

Posted in: Immigration Law
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Li, a citizen of the People’s Republic of China, entered the U.S. in 2010 on a nonimmigrant business visa. After Li’s visa expired, DHS charged her with removability. Li sought asylum, withholding of removal, and Convention Against Torture relief, claiming that she was persecuted because of her membership in a house church that is not registered with the Chinese government. In March 2010, when Li and others met for a house church meeting, the police arrested them for an illegal gathering. Li stated that an officer interrogated her, accused her of wanting to overthrow the Chinese government, and slapped and kicked her.At a 2017 hearing, the government informed the IJ that it had discovered Li’s undisclosed 2013 arrest record for prostitution in Washington. The IJ questioned Li about her submission of false information in her asylum application, then denied Li’s application based on an adverse credibility determination, citing the discrepancies relating to Li’s treatment in jail, her husband’s termination, and false information she provided in her visa application and in her asylum application. The Board affirmed, noting that, even if Li were credible, she did not establish her eligibility for asylum because she did not show that the harm she suffered in China rose to the level of past persecution. The Ninth Circuit denied a petition for review, finding the denials of relief supported by substantial evidence. View "Li v. Garland" on Justia Law

Posted in: Immigration Law
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Alcaraz was born in Mexico in 1979 and entered the U.S. illegally when he was eight years old. In 1999, Alcaraz, who lacked legal immigration status, was involved in a domestic incident with his girlfriend, which led to a nolo contendere California felony conviction. He was removed, re-entered illegally in 2003, was deported again, and was caught attempting to re-enter in 2013.In 2018, the Ninth Circuit granted Alcaraz’s petition for review from a BIA order denying his applications for withholding of removal and deferral of removal under the Convention Against Torture. The court concluded that the BIA erred in not requiring the DHS to make a good-faith effort to make available key government witnesses for Alcaraz’s cross-examination and in not deeming true Alcaraz’s testimony before the Immigration Judge, absent an express adverse credibility determination from the IJ. The Supreme Court reversed that judgment upon the second basis for granting the petition. On remand, the Ninth Circuit again granted Alcaraz’s petition for review in part, citing the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom. The court remanded for a hearing that comports with the requirements of 8 U.S.C. 1229a(b)(4)(B), expressing no opinion on whether Alcaraz is entitled to withholding of removal. View "Alcaraz-Enriquez v. Garland" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal. The panel addressed the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), and held that California Penal Code 273a(a) does not qualify as a crime of child abuse, child neglect, or child abandonment.The panel concluded that the text of 8 U.S.C. 1227(a)(2)(E)(i) unambiguously forecloses the BIA's interpretation of "a crime of child abuse, child neglect, or child abandonment" as encompassing negligent child endangerment offenses. The panel noted that, while several of its sister circuits have deferred to the BIA's decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the panel found those decision both distinguishable and unpersuasive. The panel explained that, because section 273a(a) criminalizes conduct that falls outside the generic federal definition, it is not a categorical match for "a crime of child abuse, child neglect, or child abandonment." View "Diaz-Rodriguez v. Garland" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's motion to reopen based on changed country conditions. Petitioner fears persecution if he is deported to Iran based on his Christian faith.The panel concluded that, because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. Furthermore, even if it does, the first exception to the law-of-the-case doctrine applies to petitioner's case. After reviewing the record, the panel concluded that the prior panel's decision, which was unsupported by substantial evidence, was clearly erroneous and enforcing it against petitioner would be unjust. In this case, the prior panel ignored the IJ's factual and legal errors; the prior panel accepted the IJ's incorrect application of the falsus maxim; and the prior panel accepted the IJ's violation of Kamalthas v. INS, 251 F.3d 902 (7th Cir. 2000). The panel also concluded that petitioner had not waived any challenge to the Board's interpretation of 8 U.S.C. 1003.2(c)(1), and determined on de novo review that petitioner was not required to include a new application for relief when he had previously submitted an application for relief based on his religious persecution claim. Finally, the panel concluded that the Board abused its discretion in determining that plaintiff failed to establish changed country conditions or prima facie eligibility for CAT relief. Accordingly, the panel remanded for further proceedings. View "Etemadi v. Garland" on Justia Law

Posted in: Immigration Law
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Petitioner sought review of the BIA's decision dismissing his due process claims, the denial of his motion to terminate, and the denial of his application for withholding or deferral of removal under the Convention Against Torture (CAT). In this case, the IJ determined that petitioner was not competent to represent himself in removal proceedings; appointed a qualified representative; denied petitioner's motion to terminate; and found petitioner removeable for an aggravated felony.The Ninth Circuit dismissed petitioner's due process claims and denied his petition for review. The panel concluded that, given the record in this case, the IJ's safeguards sufficed to provide petitioner with due process such that termination of the proceedings was not required. The panel also concluded that amicus counsel's fact-based disagreements with the IJ's discretionary "particularly serious crime" determination are unexhausted and unreviewable. Finally, the panel concluded that the evidence does not compel reversal of the BIA's denial of deferral or removal under CAT. View "Benedicto v. Garland" on Justia Law

Posted in: Immigration Law