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

Articles Posted in Immigration Law
by
The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings. View "Cortes-Maldonado v. Barr" on Justia Law

by
The Ninth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's order of removal, holding that substantial evidence supported the denial of asylum, withholding of removal, and the denial of protection under the Convention Against Torture. The panel held that petitioner failed to show a well founded fear of persecution based on a protected ground.In this case, petitioner was not credible because of his inconsistent statements about why he left Brazil and the BIA reasonably found it implausible that petitioner randomly encountered General Kangama’s nephew at a Brazilian bus stop after only a few days in the country. Substantial evidence also supports the BIA's decision that petitioner did not rehabilitate his testimony with sufficient corroborating evidence, and the BIA did not err in concluding that the evidence petitioner provided was entitled to limited weight. Furthermore, the evidence does not meet the high threshold of establishing that it is more likely than not that petitioner will be tortured by or with the consent or acquiescence of a public official. Finally, petitioner's due process rights were not violated based on transcription issues and a credible fear review hearing. View "Mukulumbutu v. Barr" on Justia Law

Posted in: Immigration Law
by
The Government challenges the district court's preliminary injunction entered in response to plaintiffs' claims that conditions at the Adelanto Immigration and Customs Enforcement Processing Center, where they were detained, placed them at unconstitutional risk of contracting COVID-19. After oral argument, 38 detainees had tested positive for COVID-19, over 300 were awaiting test results, and 9 had been hospitalized.The Ninth Circuit affirmed in part the preliminary injunction order, holding that the district court was permitted to order the reduction of Adelanto's population, which may have required the release of some detainees, if such a remedy was necessary to cure the alleged constitutional violations. The panel also held that the district court did not abuse its discretion by issuing some form of preliminary injunctive relief in response to plaintiffs' due process claims. The panel explained that, in light of the district court's factual findings which the Government has not shown to be clearly erroneous, the conditions at Adelanto in April 2020 violated detainees' due process right to reasonable safety where Adelanto was so crowded that social distancing to combat the spread of the novel coronavirus was impossible, detainees had inadequate access to masks, guards were not required to wear masks, there was not enough soap or hand sanitizer to go around, detainees were responsible for cleaning the facility with only dirty towels and dirty water, detainees were compelled to sleep with less than six feet of distance between them, and not all new arrivals were being properly quarantined or tested. The panel stated that the Government was aware of the risks and its inadequate response reflected a reckless disregard for detainee safety. Therefore, the district court rightly concluded that plaintiffs were likely to prevail on the merits. Furthermore, the district court correctly concluded that plaintiffs were likely to suffer irreparable harm absent relief given COVID-19's high mortality rate, and the equities and public interest tipped in plaintiffs' favor. The panel further held that the district court did not err by provisionally certifying a class of all Adelanto detainees. In light of the changed circumstances at Adelanto since the preliminary injunction was entered, the panel vacated in part and remanded in part for the district court to address the current circumstances. View "Hernandez Roman v. Wolf" on Justia Law

by
The Ninth Circuit denied a petition for review of the BIA's decision denying asylum and related relief to petitioner, holding that substantial evidence supports the agency's determination that, had petitioner reported her abuse, the Guatemalan government could have protected her from her ex-boyfriend. The panel stated that, although the State Department reports make clear that Guatemala still has a long way to go in addressing domestic violence, the country's efforts, coupled with the pleas of petitioner's acquaintances, suggest that she could have obtained help.The panel also held that petitioner waived any argument as to her claim under the Convention Against Torture (CAT) by failing to specifically and distinctly discuss the matter in her opening brief. In any event, such an argument would have failed because she has not shown a likelihood of torture by or with the acquiescence of public officials. View "Velasquez-Gaspar v. Barr" on Justia Law

Posted in: Immigration Law
by
The en banc court overruled Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), and held that petitioner, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the Immigration and Nationality Act (INA) became applicable there, was not removable under 8 U.S.C. 1182(a)(7)(a)(i). Section 1182(a)(7)(a)(i) applies to noncitizens who do not possess a valid entry document "at the time of application for admission." The en banc court held that the phrase "at the time of application for admission" refers to the particular point in time when a noncitizen submits an application to physically enter into the United States. Therefore, the en banc court granted the petition for review to the extent that the BIA determined that petitioner was removable "as an intending immigrant without a . . . valid entry document" under section 1182(a)(7).The en banc court held that the BIA properly concluded that petitioner is ineligible for relief in the form of cancellation of removal where substantial evidence supports the BIA's determination that petitioner failed to carry her burden of establishing ten years of continuous presence in the United States. Therefore, the en banc court granted in part and denied in part the petition for review, and remanded to the agency for a determination in the first instance as to whether petitioner was removable under the second ground originally charged in the Notice to Appear— removability as "[a]n alien present in the United States without being admitted or paroled" under section 1182(a)(6). View "Torres v. Barr" on Justia Law

Posted in: Immigration Law
by
The Ninth Circuit denied a petition for review of the BIA's denial of immigration relief to petitioner. The panel held that Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), which held that California Penal Code section 245(a)(1), which proscribes certain aggravated forms of assault, is categorically a "crime involving moral turpitude" for purposes of the immigration laws, is consistent with Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc) and entitled to deference. Therefore, the panel held that the BIA correctly determined that petitioner's conviction under section 245(a)(1) was for a crime involving moral turpitude and that he was therefore inadmissible under the Immigration and Nationality Act (INA). The panel lacked jurisdiction to consider petitioner's challenges to the denial of his waiver under section 212(h) of the INA, because he failed to raise a cognizable legal or constitutional question concerning that determination. View "Safaryan v. Barr" on Justia Law

Posted in: Immigration Law
by
The Ninth Circuit denied a petition for review of the BIA's decision, holding that petitioner has adequately exhausted his particularly serious crime argument but that the BIA and IJ did not err in concluding that petitioner's conviction for being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. 922(g)(1) and 924(A)(2), constitutes a particularly serious crime barring withholding of removal.The panel also held that the termination of petitioner's grant of asylum by reopening his asylum-only proceeding was not error, and the IJ did not have jurisdiction to consider his request for an adjustment of status because of the limited scope of such proceedings. The panel stated that petitioner's request for an adjustment of status should have been made to the USCIS, not the IJ. View "Bare v. Barr" on Justia Law

Posted in: Immigration Law
by
The Ninth Circuit vacated a preliminary injunction barring implementation of decisions to terminate Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador. The TPS program is a congressionally created humanitarian program administered by DHS that provides temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict, or other "extraordinary and temporary conditions in the foreign state."The panel held that judicial review of plaintiffs' claim under the Administrative Procedure Act (APA) is barred by 8 U.S.C. 1254a(b)(5)(A). Under the TPS statute, the Secretary possesses full and unreviewable discretion as to whether to consider intervening events in making a TPS determination. In this case, plaintiffs' attempt to rely on the APA to invoke justiciability over what would otherwise be an unreviewable challenge to specific TPS determinations, constitutes an impermissible circumvention of section 1254a(b)(5)(A).The panel also held that plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim. The district court found that the DHS Secretaries were influenced by President Trump and/or the White House in their TPS decisionmaking, and that President Trump had expressed animus against non-white, non-European immigrants. However, without any evidence linking them, the panel concluded that these two factual findings alone cannot support a finding of discriminatory purpose for the TPS terminations. View "Ramos v. Wolf" on Justia Law

by
The Ninth Circuit granted a petition for review of the BIA's decision affirming an IJ's denial of asylum and withholding of removal. The panel held that substantial evidence did not support the Board's conclusion that the El Salvadoran government was both able and willing to control the Mara-18 gang whose members attacked petitioner and killed his son. In this case, the record before the IJ and BIA compels the conclusion that, despite initial responsiveness to petitioner's complaints, the police were unable, and then unwilling, to protect petitioner and his family from the Mara-18 gang. The panel stated that the undisputed factual record that was before the IJ and BIA reflects actual deadly violence that the government was, during certain periods, unable to control, and threats of additional deadly violence that the government was entirely unwilling to control after petitioner testified. The panel stated that this is enough.The panel remanded for the Board to consider in the first instance questions related to whether petitioner was a member of a particular social group, or whether he suffered harm rising to the level of persecution. View "J.R. v. Barr" on Justia Law

Posted in: Immigration Law
by
Plaintiff represents three certified classes which are defined to include, in relevant part, all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The district court entered a judgment and two permanent injunctions in favor of plaintiff and the Probable Cause Subclass on Fourth Amendment claims. The State Authority Injunction enjoins the Government from issuing detainers from the Central District to law enforcement agencies (LEAs) in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The Database Injunction enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability.The Ninth Circuit first held that plaintiff had Article III standing to seek prospective injunctive relief when he commenced suit; second, the panel held that the district court did not abuse its discretion in certifying the Probable Cause Subclass pursuant to Rule 23(b)(2) with plaintiff as the class representative; third, the panel held that 8 U.S.C. 252(f)(1) does not bar injunctive relief for the claims in this case because the only provision of the Immigration and Nationality Act (INA) whose text even refers to immigration detainers is not among the provisions that section 1252(f)(1) encompasses; fourth, the panel reversed and vacated the State Authority Injunction because the presence or absence of probable cause determines whether the Government violates the Fourth Amendment when issuing a detainer, not state law restrictions; fifth, the panel reversed and vacated the Database Injunction because it is premised on legal error and lacks critical factual findings; and finally, the panel reversed summary judgment for the Government on plaintiffs' claim pursuant to Gerstein v. Pugh, 420 U.S. 103 (1975). View "Gonzalez v. United States Immigration and Customs Enforcement" on Justia Law