Articles Posted in Immigration Law

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The Ninth Circuit denied a petition for review insofar as it raised due process claims related to the district court's rejection of petitioner's United States citizenship claim. First determining that petitioner had standing to bring the due process and equal protection claims, the panel held that, because a legitimate governmental interest was rationally related to 8 U.S.C. 1433's requirement that citizen parents petition to naturalize their adopted, foreign-born children, section 1433 did not violate the Fifth Amendment's Equal Protection Clause. The panel also held that the district court did not err in ruling that the INS was not deliberately indifferent to whether petitioner's mother's application for his citizenship was processed; and, even if the INS did act with deliberate indifference, petitioner's due process claim failed because he could not demonstrate prejudice. The panel held that the district court correctly concluded that the INS was not deliberately indifferent to petitioner's adult application for citizenship and he could not establish prejudice. Finally, the panel held that the BIA erred in concluding that third-degree escape under Arizona Revised Statutes section 13-2502 was a crime of violence and thus an aggravated felony that would make petitioner removable. Accordingly, the panel denied in part, granted in part, and remanded in part the petition for review. View "Dent v. Sessions" on Justia Law

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Battery committed with the use of a deadly weapon under Nevada Revised Statute 200.481(2)(e)(1) is a crime of violence as defined in 18 U.S.C. 16(a). The Ninth Circuit affirmed defendant's conviction for illegal reentry into the United States. The panel held that defendant's prior battery conviction under Nevada law qualified as a crime of violence and thus his initial deportation was not unlawful. View "United States v. Guizar-Rodriguez" on Justia Law

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The Ninth Circuit reversed the district court's order declining to extend a Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an immigrant pursuing lawful permanent resident status. In this case, an ICE Assistant Chief Counsel representing the government intentionally forged and submitted an ostensible government document in an immigration proceeding, which had the effect of barring plaintiff from obtaining lawful permanent resident status, a form of relief to which he was otherwise lawfully entitled. The panel held that a Bivens remedy was available on these narrow and egregious facts because none of the special factors outlined in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), and other Supreme Court precedent applied. The panel also held that the ICE Assistant Chief Counsel was not entitled to qualified immunity because qualified immunity could not shield an officer from suit when he intentionally submits a forged document in an immigration proceeding in clear violation of 8 U.S.C. 1357(b). View "Lanuza v. Love" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner ineligible for cancellation of removal. The panel held that the BIA's determination that witness tampering under Oregon Revised Statutes 162.285 was a crime involving moral turpitude did not warrant deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the agency's analysis directly conflicted with circuit precedent, and was inconsistent both internally and with prior BIA decisions. The panel held that Oregon Revised Statutes 162.285 was not categorically a crime involving moral turpitude because the statute captures conduct that was neither fraudulent nor base, vile, or depraved. Although the statute was divisible, the subsection that formed the basis for petitioner's conviction was likewise not a categorical match for a crime involving moral turpitude. Accordingly, the panel remanded for further proceedings. View "Vasquez-Valle v. Sessions" on Justia Law

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The Ninth Circuit reversed the district court's dismissal based on lack of jurisdiction of plaintiff's complaint under the Federal Tort Claims Act (FTCA). Plaintiff sought damages suffered as a result of his removal from the United States in violation of this court's temporary stay of removal. The panel held that 8 U.S.C. 1252(g) did not deprive it of jurisdiction to hear the FTCA claims of a noncitizen who was wrongfully removed in violation of a court order. Therefore, the district court erred in holding otherwise. The panel held that a decision or action to violate a court order staying removal fell outside of the statute's jurisdiction-stripping reach. Even if the panel agreed that plaintiff's claims tangentially arose from the execution of his removal order, the panel would still retain jurisdiction because the Attorney General lacked the authority, and thus the discretion, to remove him. Finally, the panel rejected the government's alternative argument that plaintiff's claims were barred by the FTCA's foreign country exception. View "Arce v. United States" on Justia Law

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The Ninth Circuit held that the BIA erred in finding that petitioner's conviction for child abuse and neglect under Nevada law was categorically a "crime of child abuse" under 8 U.S.C. 1227(a)(2)(E)(i). The panel held that it was bound by this circuit's opinion in Martinez-Cedillo v. Sessions, No. 14-71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which deferred to the BIA's interpretation, in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), that the generic crime of child abuse includes acts and omissions that create at least a "reasonable probability" that a child will be harmed. In this case, the Nevada statute was broader than the federal generic crime and there was a realistic probability that Nevada could prosecute conduct under its statute that fell outside the scope of the federal generic crime. Therefore, the panel granted the petition for review of the BIA's determination that petitioner was removable. View "Alvarez-Cerriteno v. Sessions" on Justia Law

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The Ninth Circuit dismissed, based on lack of jurisdiction, a petition for review of the BIA's denial of petitioner's motion to terminate asylum-only proceedings and denial of his application for asylum. Petitioner entered the United States in 2000 pursuant to the Visa Waiver Program (VWP), but the INS issued a notice in 2002 concluding that he was removable and had waived his right to contest his removeability as a VWP entrant after he was arrested for credit card fraud. As part of his plea agreement in the credit card prosecution, petitioner agreed to testify against his co-conspirators, in exchange for help resolving his immigration status. Petitioner was issued an I-94 Departure Record, paroling him into the United States for "significant public interest," so he could testify against his co-conspirators. After petitioner's parole had expired, DHS took him into custody pursuant to his 2002 removal order and petitioner then requested asylum. The panel held that the 2002 removal order was executed when petitioner briefly departed the United States in 2004. Because the 2002 order had already been executed when petitioner entered the United States in 2004, he was no longer an applicant under the VWP, but an applicant for admission. Therefore, there was no final removal order over which the court had jurisdiction. View "Nicusor-Remus v. Sessions" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit reversed defendant's conviction for unlawful reentry into the United States in violation of 8 U.S.C. 1326. The panel held that defendant's prior 2008 and 2011 removals were fundamentally unfair and thus could not serve as a predicate removal for purposes of section 1326. The panel held that because the 2008 removal proceeding was in absentia, defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal. Furthermore, it was error to remove defendant for a crime of domestic violence under Immigration and Nationality Act 237(a)(2)(E)(i) based on his California battery conviction because circuit precedent established that California battery was not a categorical crime of violence. The panel also held that the due process defects in the 2008 removal proceeding infected the 2011 expedited removal for presenting invalid entry documents. In this case, the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents. View "United States v. Ochoa-Oregel" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal. The panel held that the Chinese police prevented petitioner from practicing his faith and did so through coercive means. In this case, petitioner suffered physical mistreatment that caused him to seek medical attention and the police effectively prevented him from practicing his religion and living a Christian life. Therefore, petitioner suffered ongoing harm which, under circuit precedent, compelled a finding of past persecution. The panel remanded for the BIA to apply the rebuttable presumption that petitioner will experience further persecution if returned to China. However, the panel held that petitioner failed to establish a clear probability of torture. View "Zhihui Guo v. Sessions" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit granted Frimmel's petition for review of the ALJ's final decision and order declining to suppress employment records ICE obtained through an investigation of Frimmel's compliance with employment verification requirements. ICE had initiated an investigation of Frimmel after the Maricopa Sheriff's Office (MCSO) conducted illegal raids of two restaurants and the home of Bret Frimmel, owner of Frimmel. The panel held that MCSO committed knowing or reckless material omissions and distortions in search warrant affidavits that resulted in a search violating the Fourth Amendment, and the violation was egregious because a reasonable officer should have known the conduct was unconstitutional. The panel also held that ICE's investigation was not attenuated from MCSO's illegal raid and ICE's evidence was the fruit of MCSO's illegal raid. Finally, the panel held that MCSO's conduct easily met the flagrancy standards and it had immigration enforcement in its "zone of primary interest." Therefore, the exclusionary rule would serve to deter MCSO from Fourth Amendment violations by the probability that illegally obtained evidence would not be useful to ICE, even in a civil proceeding. The panel reversed the ALJ's ruling that denied suppression of ICE's evidence pursuant to the exclusionary rule, remanding for further proceedings. View "Frimmel Management, LLC v. United States" on Justia Law