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

Articles Posted in Immigration Law
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When Jimenez-Sandoval was apprehended upon entry into the United States, an immigration officer interviewed her and prepared a Record of Deportable Alien, indicating that Jimenez-Sandoval was 20 years old. Immigration officers released her on her own recognizance and served her with an Order to Show Cause (OSC) and a Notice of Hearing. Jimenez-Sandoval failed to appear at her hearing; she was ordered deported in absentia. Almost 20 years later, Jimenez-Sandoval filed a motion to reopen, seeking to set aside the order on the basis that the agency did not comply with the notice requirements for minors. Jimenez-Sandoval provided a copy of her birth certificate, which indicated that she was 17 years old when apprehended. The IJ denied her motion. The BIA dismissed her appeal.The Ninth Circuit denied Jimenez-Sandoval’s petition for review. Jimenez-Sandoval was released on her own recognizance presumably based on the immigration officers’ belief that she was not a minor. There was no adult present to assume responsibility for ensuring her appearance at future proceedings, so the requirement of notice to an adult was not triggered. View "Jimenez-Sandoval v. Garland" on Justia Law

Posted in: Immigration Law
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Togonon, a citizen of the Philippines, was admitted to the U.S. as a lawful permanent resident. He was later convicted of arson (California Penal Code 451(b)). DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on his conviction for "an aggravated felony," “an offense described in” 18 U.S.C. 844(i). The BIA upheld a removal order.The Ninth Circuit vacated. The California statute is not a categorical match to its federal counterpart, under which a defendant acts “maliciously” if he either intentionally damages or destroys property covered by section 844(i) or acts with “willful disregard” of the likelihood that damage or injury would result from his acts; acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property. California courts have interpreted the term “maliciously” in section 451(b) more broadly. A defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm. View "Togonon v. Garland" on Justia Law

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The Ninth Circuit filed (1) an order withdrawing the opinion and dissent filed on June 23, 2021, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion denying the petition for review of a decision of the BIA.In the amended opinion, the panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. In this case, the circumstance specific to petitioner clearly established that the amount of marijuana in his possession exceeded thirty grams. View "Bogle v. Garland" on Justia Law

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The Ninth Circuit granted the petition for review of the BIA's decision agreeing with the IJ that petitioner's convictions were crimes involving moral turpitude (CIMTs) and that she was not entitled to cancellation of removal. The panel concluded that petitioner's convictions are not CIMTs and therefore she was not removable under 8 U.S.C. 1227(a)(2)(A)(ii).In 2010, petitioner was convicted of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, petitioner was convicted of offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds). The panel concluded that Arizona Revised Statutes 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; petitioner's section 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not CIMTs; and petitioner was therefore not removable. View "Walcott v. Garland" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order pretermitting his application for cancellation. The BIA held that petitioner failed to establish that he had not been convicted of offenses with an aggregate sentence of at least 5 years.The panel concluded that the phrase "an offense" in 8 U.S.C. 1229b(b)(1)(C) includes the multiple criminal convictions described in 8 U.S.C. 1182(a)(2)(B) that render an alien inadmissible. The panel rejected petitioner's contention that because the statutory disqualification is phrased in the singular, his multiple offenses do not trigger ineligibility. The panel also rejected petitioner's contention that the BIA erred in finding that his multiple convictions resulted in aggregated sentences of at least five years because the agency relied on the 2013 judgment, a record not clearly related to petitioner. Rather, substantial evidence supports the agency's determination that petitioner did not satisfy his burden to show that he had not been convicted of the qualifying offenses. View "Ramirez-Medina v. Garland" on Justia Law

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The Ninth Circuit denied a petition for review, concluding that the BIA sufficiently considered the evidence relevant to petitioner's claim of future torture and announced its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted to petitioner's claims. The panel explained that this is all that is required; the agency need not provide a detailed explanation of every argument or piece of evidence in its decision. The panel also concluded that petitioner's due process claim fails for lack of prejudice because substantial evidence supports the BIA's rejection of his Convention Against Torture claim, irrespective of any testimonial inconsistencies. View "Rodriguez-Jimenez v. Garland" on Justia Law

Posted in: Immigration Law
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The panel's order withdrew the opinion filed on September 16, 2021, on remand from the Supreme Court; replaced it with a superseding opinion; and unanimously voted to deny the petition for panel rehearing, and ordered that no further petitions for rehearing or rehearing en banc would be entertained.The panel granted in part and denied in part the petition for review of a decision of the BIA, and remanded, concluding that, in the absence of an opportunity to cross-examine its declarants, the Board erred in relying on a probation report to conclude that petitioner had been convicted of a particularly serious crime. The panel also concluded that the Board did not err in denying petitioner's application for deferral of removal under the Convention Against Torture. The panel remanded for further proceedings. View "Alcaraz-Enriquez v. Garland" on Justia Law

Posted in: Immigration Law
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The en banc court held that an individual's inadmissible status renders that individual's reentry illegal for purposes of reinstatement of a prior removal order under 8 U.S.C. 1231(a)(5), regardless of the individual's manner of reentry. The en banc court reaffirmed the holdings of two of its prior published opinions, which are in turn consistent with the interpretation of 8 U.S.C. 1231(a)(5) adopted by the two other circuits to have squarely addressed this issue. In this case, petitioner was a noncitizen subject to a previous removal order who illegally reentered the United States, and thus DHS did not err in reinstating his removal order.The en banc court found petitioner's contention, that the reinstatement of the removal order violates due process because it interferes with his right to remain in the United States with his wife, lacking in merit. The en banc court further concluded that it lacked jurisdiction to consider petitioner's contention that insufficient evidence supported his original removal order. Accordingly, the en banc court denied in part and dismissed in part the petition for review. View "Tomczyk v. Garland" on Justia Law

Posted in: Immigration Law
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Kumar, born in India, belonged to a caste considered to be of lower social standing. He joined the Bahujan Samaj Party (BSP) because of its opposition to the caste system. He asserts that as a result of his work for the BSP, he was beaten four times by the police and members of opposing parties. An IJ denied his application for asylum and related relief on adverse credibility grounds. The BIA dismissed Kumar’s appeal.The Ninth Circuit remanded. Under the REAL ID Act, IJs must base credibility determinations on “the totality of the circumstances, and all relevant factors.” 8 U.S.C. 1158(b)(1)(B)(iii), abrogating the single factor rule to which the Ninth Circuit previously adhered. Two of Kumar's three alleged testimonial inconsistencies were actually not inconsistent. Concerning finding that a third-party letter conflicted with Kumar’s testimony, the court concluded that the inconsistency was wholly illusory. A finding that it was implausible that Kumar would not have suffered more injuries after a certain attack relied entirely, improperly, on conjecture. The IJ’s conclusion that Kumar’s affect suggested that he was reciting a rehearsed story, rather than relating incidents he had personally experienced, “passed the low bar for reviewing such findings.” No specific number of inconsistencies requires sustaining or rejecting an adverse credibility determination but falsehoods and fabrications weigh particularly heavily in the inquiry; clear falsehoods and fabrications were entirely absent here. View "Kumar v. Garland" on Justia Law

Posted in: Immigration Law
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Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding. View "United States v. De la Mora-Cobian" on Justia Law