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

Articles Posted in Immigration Law
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Petitioner asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured—either by Salvadoran officials or by members of a rival gang with the acquiescence of the Salvadoran government. The Board concluded that Petitioner failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen.   The Ninth Circuit filed: (1) an order amending its opinion filed on June 24, 2022, otherwise denying a motion to amend, and stating that petitions for rehearing and for rehearing en banc may be filed, and (2) an amended opinion granting Petitioner’s petition for review of the Board of Immigration Appeals’ decision affirming denial of protection under the Convention Against Torture, and remanding. In the amended opinion, the panel held that the Board erred by failing to adequately consider Petitioner’s aggregate risk of torture from multiple sources, and erred in rejecting Petitioner’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence.   The panel concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. The panel concluded that the Board also erred by disregarding credible testimony from Petitioner’s expert. The panel remanded for the agency to properly assess the aggregate risk that Petitioner will be tortured if he is removed to El Salvador and, as part of that assessment, to properly consider the expert testimony. View "MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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The Board of Immigration Appeals (BIA) denied Petitioner’s cancellation of removal concluding that his receipt of temporary protected status (TPS) was not admission and, therefore, he could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission. The BIA also denied Petitioner’s application for asylum concluding that his 2016 domestic-violence conviction was a “particularly serious crime” that barred him from relief. Petitioner challenges the BIA’s decision raising two primary arguments: (1) under Ninth Circuit precedent, his TPS does constitute an admission “in any status” under the cancellation statute, 8 U.S.C. Section 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.   The Ninth Circuit filed: (1) an order amending the opinion filed June 28, 2022, otherwise denying the petitions for rehearing and rehearing en banc and stating that no further petitions for rehearing would be accepted, and (2) an amended opinion denying Petitioner’s petition for review of the BIA decision. In the amended opinion, the panel held that: (1) Petitioner’s receipt TPS was not an admission, and he, therefore, could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal; and (2) the BIA properly concluded that Petitioner’s domestic-violence conviction was a particularly serious crime (“PSC”) that barred him from obtaining asylum. The panel rejected Petitioner’s argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions. View "JOSE HERNANDEZ V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner petitioned for habeas relief after being in immigration detention for over a year without a bond hearing. During her initial removal proceedings, she was subject to mandatory detention under 8 U.S.C. Section 1226(c) (“Subsection C”) due to a conviction. Thus, she was not statutorily entitled to a bond hearing. However, in Casas Castrillon v. Department of Homeland Security, the Ninth Circuit held that once a noncitizen’s immigration case reaches judicial review, the authority for holding a Subsection C detainee shifts to 8 U.S.C. Section 1226(a) (“Subsection A”), which does entitle a noncitizen to a bond hearing. Accordingly, Petitioner argued she was entitled to a bond hearing.   The Ninth Circuit vacated the district court’s grant of habeas relief and held that a noncitizen of the United States—who initially was subject to mandatory detention under 8 U.S.C. Section 1226(c)—is not entitled to a bond hearing under 8 U.S.C. Section 1226(a) while awaiting a decision from this court on a petition for review.   Here, the panel observed that the Supreme Court’s decision in Jennings does not directly address the question in Casas Castrillon—when, if ever, mandatory detention under Subsection C ends. However, the panel explained that Jennings’s reasoning makes clear that Subsection A and Subsection C apply to discrete categories of noncitizens, and not to different stages of a noncitizen’s legal proceedings. The district court declined to reach Petitioner’s alternative argument that she was entitled to habeas relief as a matter of due process. The panel remanded to the district court to consider this question. View "LEXIS HERNANDEZ AVILEZ V. MERRICK GARLAND, ET AL" on Justia Law

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At Petitioner’s removal proceeding, the government introduced into the record an INTERPOL Red Notice as the only evidence that Gonzalez-Castillo had committed a serious nonpolitical crime in El Salvador.   The Ninth Circuit granted in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. The panel held that: (1) substantial evidence did not support the agency’s determination that Petitioner was ineligible for withholding of removal; (2) the agency erred by failing to consider all of Petitioner’s evidence under the Convention Against Torture, and (3) Petitioner waived review of the agency’s application of the one-year bar to asylum.   The panel held that, in this case, the Red Notice did not, by itself, establish probable cause that there were serious reasons to believe that Petitioner committed a serious nonpolitical crime in El Salvador. Explaining that probable cause requires a “fair probability” that the noncitizen committed a serious nonpolitical crime, the panel concluded that the Red Notice, in this case, did not meet that standard due to errors that cast doubt on its reliability, and its failure to articulate any specific crime of which Petitioner was accused. The panel rejected the government’s argument that by presenting “some evidence” in the form of the Red Notice, even if scant, it had shifted the burden to disprove the existence of probable cause on to Petitioner. The panel held Petitioner never alerted the agency to the two possible grounds for excusing the filing deadline that he raised in his briefing to the court. View "OSCAR GONZALEZ-CASTILLO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner initially sought asylum claiming that he was persecuted in India on account of being a Sikh who supports the creation of Khalistan and the Akali Dal (Mann) Party. An immigration judge denied Petitioner’s claims after concluding that Petitioner’s testimony was not credible because of inconsistencies and a lack of detail. The IJ also highlighted a State Department report showing that the situation for Sikhs had greatly normalized and the IJ found further that Petitioner had failed to even establish his identity.   The Ninth Circuit granted Petitioner’s petition. The panel held that the BIA erred in holding that earlier adverse credibility finding barred Petitioner’s motion to reopen, and in concluding that Petitioner failed to show that the conditions for Sikhs in India had changed qualitatively since his last hearing.   The panel explained that although the BIA may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument, here, Petitioner’s motion included newly submitted evidence based on information independent of the prior adverse credibility finding.   The panel concluded that the BIA erred in rejecting Petitioner’s new evidence for two other reasons. First, the panel held that the record did not support the BIA’s determination that Petitioner was not similarly situated to the people harmed in 2017 political violence. Second, the panel held that Petitioner provided sufficient evidence demonstrating that the conditions for Sikhs in India had changed in the two decades since his asylum hearing. View "RUPINDER SINGH V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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The BIA concluded that Petitioner R.M was inadmissible and ineligible for adjustment of status based on his § 13-3415 conviction. Petitioner H.C, who was a lawful permanent resident, was found removable based on his Section 13-3408 conviction. For both petitioners, the agency applied the modified categorical approach to determine that their Arizona convictions were convictions for controlled substances under federal law. However, because Arizona’s list of prohibited drugs is overbroad with respect to federal law, the panel previously certified three questions to the Supreme Court of Arizona: 1) Is A.R.S. Section 13-3415 divisible as to drug type?; 2) Is A.R.S. Section 13-3408 divisible as to drug type?; and 3) Put another way, is jury unanimity required as to which drug or drugs was involved in an offense under either Section 13-3415 or Section 13-3408?   The Supreme Court of Arizona ruled that it had improvidently accepted the first two questions because divisibility pertains solely to federal law, and no Arizona court had addressed the issue. On the third question, the Supreme Court of Arizona concluded that jury unanimity as to the identity of the drug involved was required for a conviction under Section 13-3408.   Based on the Supreme Court of Arizona’s holding that jury unanimity as to the identity of a specific drug is required for a conviction for drug possession under Section 13-3408, the panel held that Section 13-3408 is divisible as to drug type. Accordingly, the panel concluded that the agency did not err in by applying the modified categorical approach to examine H.C record of conviction. View "JORGE ROMERO-MILLAN V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner pleaded guilty, without counsel, to six misdemeanor theft charges. The BIA later concluded that his petty theft convictions were crimes involving moral turpitude that rendered him ineligible for cancellation of removal. Petitioner moved the Superior Court, through counsel and pursuant to Cal. Penal Code Section 1018, to withdraw his guilty pleas and set aside his convictions.The Superior Court granted his motion, and Petitioner pleaded guilty to violating Cal. Penal Code Section 368(d), theft from an elder adult. Petitioner moved to reopen his immigration proceedings. The BIA granted the motion but ultimately decided that Petitioner failed to meet his burden of proof as to the nature of the vacatur of his convictions.Granting Petitioner’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the Ninth Circuit held that: 1.) an applicant for cancellation of removal bears the burden of proving that a conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reasons; and 2.) Petitioner carried this burden of proof.The court explained that vacated convictions remain valid for immigration purposes if they are vacated solely for reasons unrelated to the merits of the underlying criminal proceedings, that is, equitable, rehabilitative, or immigration reasons. However, a conviction vacated on the basis of a defect in the underlying criminal proceedings is no longer valid for immigration purposes. Next, the court concluded that Petitioner carried that burden, explaining that the record compelled the conclusion that his convictions were vacated due to legal defects in his pleas. View "LUIS BALLINAS-LUCERO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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The BIA concluded that Petitioner’s CPC Section 136.1(b)(1) convictions were offenses relating to obstruction of justice under Section 1101(a)(43)(S). In light of Valenzuela Gallardo I, and after Petitioner filed a petition for review, this court granted an unopposed motion to remand. The BIA then decided Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (BIA 2018), modifying its definition of “an offense relating to obstruction of justice” to include: “offenses covered by chapter 73 of the Federal criminal code or any other Federal or State offense” involving certain conduct motivated by a specific intent—as relevant here—“to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant.”The Ninth Circuit granted Petitioner’s petition for review and remanding, the court held that dissuading or attempting to dissuade a witness from reporting a crime, in violation of Section 136.1(b)(1), is not a categorical match to “an offense relating to obstruction of justice” aggravated felony under 8 U.S.C. Section 1101(a)(43)(S). The government argued that Valenzuela Gallardo II left untouched the first prong of the BIA’s definition from Matter of Valenzuela Gallardo—“offenses covered by chapter 73 of the Federal criminal code.”The court rejected the government’s new position as flatly inconsistent with Valenzuela Gallardo II’s requirement of a nexus to an ongoing or pending proceeding or investigation. The court concluded that CPC Section 136.1(b)(1) is not a categorical match with Section 1512 because the California statute lacks the requirement, in Section 1512(b)(3), that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.” View "FERNANDO CORDERO-GARCIA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Since illegally entering the United States in 2000, Petitioner has been convicted of four DUI offenses. In 2018, an Arizona court convicted Petitioner of aggravated DUI. Before sentencing, he spent 183 days in pretrial detention. The Department of Homeland Security (DHS) initiated removal proceedings. Petitioner applied for cancellation of removal but, through counsel, waived applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) because he believed he did not have “a viable claim under current law.”The question before the Ninth Circuit was whether pretrial detention that is not credited toward a defendant’s sentence is confinement “as a result of conviction.” See 8 U.S.C. Section 1101(f)(7). The court held that it is not. The court also held that the agency properly relied on counsel’s representations that the petitioner waived his applications for asylum, withholding, and protection under the Convention Against Torture.The court concluded that Petitioner failed to establish a due process violation, explaining that he was represented by counsel, the IJ relied on counsel’s statements to hold that the claims had been withdrawn, and the BIA properly affirmed. Moreover, the court explained that Petitioner did not contend that his counsel was ineffective or that the waiver was not knowing and voluntary. View "ESTEBAN TRONCOSO-OVIEDO 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 and time-barred.   Denying in part and dismissing in part Petitioner’s petition for review, the Ninth Circuit 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 court 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.   The court also concluded that the BIA did not abuse its discretion in deciding that equitable tolling of the time and number bar was not available to Petitioner, explaining that he waited 21 years to seek a modification of his conviction, provided no basis as to his reasonable efforts to pursue relief during that period, and provided no explanation for such an exceedingly long delay. Finally, the court concluded that it lacked jurisdiction to consider whether the BIA erred in denying Petitioner’s request to sua sponte reopen proceedings. View "LUIS PEREZ-CAMACHO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law