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

Articles Posted in Immigration Law
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Petitioner, a native and citizen of Guatemala, petitioned for review of the Board of Immigration Appeals (“BIA”) streamlined affirmance of the immigration judge’s (“IJ”) denial of her claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). Petitioner was verbally and physically harassed and received death threats because her community in Guatemala perceived her to be a lesbian, including because she wore men’s clothing to work. Petitioner challenged the IJ’s findings that: (1) this treatment did not amount to persecution, (2) the relevant social group for asylum purposes is based on “manner of dress,” and (3) no persecution was committed by the Guatemalan government or by forces that the government was unwilling or unable to control.   The Ninth Circuit granted Petitioner’s petition for review. The panel held that (1) substantial evidence did not support the agency’s determination that the treatment Petitioner suffered did not amount to persecution, (2) the agency erred in characterizing Petitioner’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution.   The panel explained that in concluding that this treatment amounted simply to threats, the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism. Further, the panel wrote that the record suggested that the agency failed to consider all of the evidence. View "REBECA CRISTOBAL ANTONIO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner asserts that he suffered past persecution and has a well-founded fear of future persecution due to his familial association with his brother, who is a member of the Shiromani Akali Dal Party (Mann Party), and his own affiliation with that Party. The Mann Party advocates for the creation of a sovereign state for Sikh people and is opposed by the Congress Party. The immigration judge (IJ) and the BIA concluded that Petitioner did not qualify for asylum or withholding of removal because the injuries and threats that Petitioner had suffered at the hands of Congress Party members were not sufficiently serious.   The Ninth Circuit filed an order (1) amending the opinion filed on September 14, 2022; (2) denying the Respondent’s petition for panel rehearing; and (3) indicating that no further petitions for rehearing or for rehearing en banc would be entertained. In the amended opinion, the panel granted in part and denied in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, and remanded, holding that substantial evidence did not support the BIA’s determination that the harm Petitioner suffered did not rise to the level of past persecution, but substantial evidence did support the BIA’s determination that the harm did not amount to past torture and that Petitioner failed to show that he would more likely than not face a clear probability of future torture. View "SHAMSHER SINGH V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Defendant, an Iraqi citizen, was convicted of attempting to procure naturalization unlawfully and of presenting a naturalization application with false statements. Both convictions were predicated on Defendant’s answers to two questions on his naturalization application, in which he asserted that he had never given false information to a U.S. Government official and that he had never lied to such an official to gain an immigration benefit.   On appeal, Defendant argued that the Government presented insufficient evidence to establish that any false statements he made during the asylum process were material to his subsequent naturalization application and that his motion for judgment of acquittal on both counts should have been granted.   The Ninth Circuit affirmed Defendant’s conviction for attempting to procure naturalization unlawfully and presenting a naturalization application with false statements. The panel concluded that ample evidence supports the Government’s reliance on the “investigation-based theory” of materiality. The panel concluded that a rational jury could find, beyond a reasonable doubt, that a reasonable immigration judge apprised of the facts about Defendant’s presence in Germany would have found Defendant not to be credible, and would have denied asylum, on the ground that the claimed persecution in 2008 was fabricated and that Defendant thus had not established that he had suffered past persecution. Further, the panel concluded that the Government presented sufficient evidence to permit a rational jury to conclude on this basis that Defendant would have been ineligible for asylum and that his false statements on his later naturalization application were, therefore material to the naturalization decision under an “investigation-based theory.” View "USA V. SEVAN AMINTOBIA" on Justia Law

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Petitioner and her daughter were removed in absentia by the Immigration Judge ("IJ"). Petitioner sought relief, citing non-receipt of the hearing notice. The Board of Immigration Appeals affirmed the IJ's decision.The Ninth Circuit reversed the Board of Immigration Appeals' decision to remove Petitioner and her daughter in absentia, finding that the IJ should have determined the credibility of Petitioner's claims of non-receipt of her hearing notice in light of all the circumstantial and corroborating evidence in the record. Under 8 U.S.C. Sec. 1229a(b)(5)(C)(ii), an in absentia order may be rescinded upon a motion to reopen if the alien demonstrates non-receipt of the notice statutorily required for removal hearings. The Ninth Circuit found that there was circumstantial evidence supporting Petitioner's claim that she did not receive the hearing notice. View "IDANIA PEREZ-PORTILLO, ET AL V. MERRICK GARLAND" on Justia Law

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U.S. Immigration and Customs Enforcement contracts with CoreCivic to incarcerate detained immigrants in 24 facilities across 11 states. Plaintiffs, detained solely due to their immigration status and neither charged with, nor convicted of, any crime, alleged that the overseers of their private detention facilities forced them to perform labor against their will and without adequate compensation in violation of the Victims of Trafficking and Violence Protection Act of 2000, the California Trafficking Victims Protection Act (“California TVPA”), various provisions of the California Labor Code, and other state laws.   The Ninth Circuit filed (1) an order denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc; and (2) an opinion (a) amending and superceding the panel’s original opinion and (b) affirming the district court’s order certifying three classes. The panel held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The panel held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a classwide policy of forced labor to establish commonality. The panel agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage. Further, the panel held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a classwide policy of forced labor and that common questions predominated over individual ones. View "SYLVESTER OWINO, ET AL V. CORECIVIC, INC." on Justia Law

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Petitioner a citizen of Guatemala who suffers from dwarfism and who advocated in Guatemala for increased legal protections for dwarfs, petitions our court to review the Board of Immigration Appeals’ (BIA) decision denying him asylum, withholding of removal, and Convention Against Torture (CAT) relief.   The Ninth Circuit granted in part and denied in part Petitioner’s petition for review of the BIA’s decision upholding an immigration judge’s denial of asylum, withholding of removal, and protection under the CAT and remanded. The panel concluded that it is evident from the record that the BIA failed to conduct a cumulative-effect review. The panel explained that the IJ analyzed each category of past harm in isolation and found that none individually rose to the level of persecution. In addition, the BIA failed to acknowledge Petitioner’s request for cumulative-effect review, and the BIA’s analysis did not demonstrate that it took a cumulative look at the various instances of harm Petitioner asserted. Instead, the BIA followed in the IJ’s footsteps, ticking off each of Petitioner’s categories of harm on an individual basis and finding that each amounted only to discrimination. The panel remanded for the agency to apply the correct legal framework to Petitioner’s asylum claim.   The panel held that the BIA also erred by applying asylum’s heightened “at least one central reason” nexus requirement to Petitioner’s withholding of removal claim, rather than the correct “a reason” standard. Finally, the panel concluded that substantial evidence supported the BIA’s conclusion that the Guatemalan government would not acquiesce in any torture Petitioner might suffer View "NERY SALGUERO SOSA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Plaintiff, a native of El Salvador, was detained by immigration authorities. An immigration judge (IJ) denied bond, and an IJ later denied him relief under the Convention Against Torture and ordered his removal. The Board of Immigration Appeals dismissed his appeal, and this court denied his petition for review. In April 2021, Plaintiff moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Plaintiff filed a habeas petition with the district court, which denied his motion to enjoin his removal until his motion to reopen and habeas petition were decided. On June 14, 2021, the district court denied Plaintiff subsequently-filed motion for a TRO, and the government voluntarily agreed to stay removal up to and including August 13, 2021.   The Ninth Circuit filed: 1) an order amending the opinion filed August 13, 2021; and 2) an amended opinion affirming the district court’s denial of Plaintiff’s request for a temporary restraining order (TRO) to prevent the government from removing him. The panel concluded that the district court correctly determined that jurisdiction was barred by 8 U.S.C. Section 1252(g), which provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The panel rejected Plaintiff’s claim that the Constitution’s Suspension Clause preserves judicial review here. View "WILLIAN RAUDA V. DAVID JENNINGS, ET AL" on Justia Law

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Petitioner was convicted under section 273a(a) of the California Penal Code for willfully permitting a child under his care or custody to be “placed in a situation where his or her person or health is endangered” “under circumstances or conditions likely to produce great bodily harm or death.” The IJ and BIA concluded that this conviction rendered Petitioner removable.   The Ninth Circuit denied Petitioner’s petition for review. Looking at the federal generic crimes encompassed by the phrase “child abuse, child neglect, or child abandonment,” a plurality of the en banc court concluded that the normal tools of statutory construction do not lead to an unambiguous interpretation. The dictionaries also did not limit the definition of “child neglect” to conduct committed by a parent or legal guardian. The plurality further explained that the surrounding provisions of the Immigration and Nationality Act (INA), and definitions in other federal statutes, are likewise inconclusive. Thus, the plurality concluded that the phrase is ambiguous, agreeing with this court’s sister circuits that have considered the issue. Finally, the en banc court concluded that section 273a(a), is a categorical match to Section 1227(a)(2)(E)(i).   The en banc court thus agreed with the BIA’s reasoning and conclusion that all violations of section 273a(a) are encompassed by the BIA’s definition of a crime of “child abuse, child neglect, or child abandonment” in Section 1227(a)(2)(E)(i). View "RAFAEL DIAZ-RODRIGUEZ V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner sought review of an opinion by the Board of Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ) denying his motion to reopen his prior removal proceedings. Petitioner argued that the IJ had jurisdiction over his motion because an alien may collaterally challenge a removal order when it results in a gross miscarriage of justice. The Ninth Circuit filed: 1) an order amending the opinion filed July 18, 2022; and 2) an amended opinion denying Petitioner’s petition.   The court held that: 1) 8 U.S.C. Section 1231(a)(5), which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; and 2) the agency lacks authority to reopen such reinstated removal orders sua sponte. The panel concluded that this argument was not cognizable in the context of this current appeal, explaining that an alien may raise such a collateral attack, but only in a petition for review of a reinstatement proceeding or order. The panel further explained that, although the then-applicable regulation gave the agency the authority to reopen cases sua sponte, that regulation did not expressly provide that such authority overrode Section 1231(a)(5). Nor could it, the panel observed, given that a regulation does not trump an otherwise applicable statute unless the regulation’s enabling statute so provides. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Petitioner argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number-barred   The Ninth Circuit filed: 1) an order amending the opinion filed August 1, 2022, and 2) an amended opinion denying in part and dismissing in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel concluded that the BIA did not err in denying Petitioner’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid.   The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Petitioner could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order. View "LUIS PEREZ-CAMACHO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law