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

Articles Posted in Immigration Law
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The Ninth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal. The panel held that "wealthy landowners" in Colombia do not constitute a cognizable particular social group for purposes of asylum and withholding of removal because the group lacks particularity and social distinction. Applying the particular social group analysis, the panel held that the agency correctly concluded that petitioner's arguments, and the majority of the evidence he submitted, pertain to the Revolutionary Armed Forces of Colombia's perception of wealthy landowners rather than to Colombian society's perception of the purported group. View "Cordoba v. Barr" on Justia Law

Posted in: Immigration Law
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A conviction for being under the influence of a controlled substance, in violation of California Health and Safety Code 11550(a), is divisible with respect to controlled substance such that the modified categorical approach applies to determining whether a conviction under the statute is a controlled-substance offense as defined by federal law. The Ninth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal from the IJ's decision finding him removable under 8 U.S.C. 1227(a)(2)(B)(i) for having been convicted of a controlled-substance offense as defined by federal law. The panel explained that, where, as here, the controlled-substance requirement of a state statute is divisible and where, as here, the relevant substance is shown by application of the modified categorical approach to be federally controlled, then there is "a direct link between an alien's crime of conviction and a particular federally controlled drug" such that section 1227(a)(2)(B)(i) is satisfied. Furthermore, the divisibility of the actus reus element of Section 11550(a) is irrelevant, because under the modified categorical approach a conviction for using or being under the influence of amphetamine relates to a federally controlled substance. View "Tejeda v. Barr" on Justia Law

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The Ninth Circuit dismissed a petition for review of the BIA's decision upholding petitioner's removal based on criminal convictions. Petitioner argued that 8 U.S.C. 1432(a)(3)'s second clause discriminates by gender and legitimacy and thus violates the Constitution's guarantee of equal protection. The panel held that petitioner failed to establish an equal protection violation with respect to section 1432(a)(3), the applicable derivative-citizenship statute. In this case, because petitioner's paternity and maternity were both established when she was a child, she is not similarly situated to persons who derived citizenship under section 1432(a)(3)'s second clause. Therefore, petitioner's constitutional challenge to section 1432(a)(3) failed and she could not be granted derivative citizenship. The panel also held that petitioner's contention under the first clause of section 1432(a)(3) is foreclosed by United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020). Because petitioner is not a citizen of the United States, the panel lacked jurisdiction to review her final order of removal. View "Roy v. Barr" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit denied a petition for review of the BIA's determination that petitioner's conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of California Vehicle Code section 2800.4, is categorically a crime involving moral turpitude that made him removable. The panel applied the two-step process in determining whether California Vehicle Code section 2800.4 is categorically a crime involving moral turpitude by first reviewing the elements of the statute de novo and then by deferring, to some extent, to the BIA's conclusion that a crime involves moral turpitude. The panel concluded that it need not decide the appropriate level of deference because, even affording only minimal deference, the BIA's interpretation was correct. View "Lepe Moran v. Barr" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel held that, although the IJ had jurisdiction to terminate petitioner and his family's asylum status, the government violated their due process rights by failing to provide them a full and fair opportunity to rebut the government's fraud allegations at the termination hearing. In this case, the admission of, and reliance on, the record of investigation (ROI) was improper and the ROI is the only purported evidence of fraud in the application. The panel held that, in any new hearing, the government must first prove asylum termination is warranted by a preponderance of the evidence; if petitioner and his family's asylum status is properly terminated, the agency must then conduct a hearing to allow them an opportunity to seek asylum and other relief from deportation; and, on remand, the government must afford them a full and fair opportunity to challenge the ROI. View "Grigoryan v. Barr" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit denied a petition for review of the BIA's decision affirming the denial of petitioner's motion for reconsideration. The panel's review for legal or constitutional error under Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016), does not encompass alleged inconsistencies between the BIA's grants or denials of discretionary relief. Rather, the panel looked to whether the particular decision at issue involved legal error. In this case, the panel held that the BIA's denial of equitable tolling was not unreasonable; notwithstanding the BIA's precedent regarding fundamental changes in the law, the BIA's denial of sua sponte reconsideration here was not premised on legal or constitutional error; and petitioner's "settled course" argument is barred by the panel's general rule that it lacks jurisdiction to review claims "that the BIA should have exercised its sua sponte power" in a given case. View "Lona v. Barr" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit denied petitions for review of the BIA's decision affirming the denial of asylum and related relief, as well as denial of petitioner's motion to reopen seeking termination of proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The panel held that substantial evidence supported the denial of asylum relief where the IJ, and the BIA agreed, that petitioner was not credible based on identified inconsistencies and implausibilities in petitioner's account, some of which reach the heart of her claim for relief. Furthermore, substantial evidence support the denial of relief under the Convention Against Torture, based on the conclusion that petitioner could internally relocate within Mexico. The panel also held that a Notice to Appear lacking the time, date, and location of a petitioner's initial removal hearing does not deprive the agency of jurisdiction over removal proceedings. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen proceedings. View "Aguilar Fermin v. Barr" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit denied the government's motion for a stay pending appeal of the district court's preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System. The Proclamation barred, with some exceptions, individuals seeking to enter the United States on an immigrant visa from entering unless they could demonstrate that they will be covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs. The panel held that the government has not established the requisite irreparable harm necessary to justify a stay pending appeal. In this case, the government's rights may be vindicated upon completion of this litigation; the alleged monetary harms to third parties upon which the government relies do not constitute irreparable harm; and the government did not meet its high burden to satisfy the other Nken factors. Therefore, the government has not demonstrated a likelihood of success. The panel also held that staying the injunction would injure both the plaintiff class and third parties, and the public interest weighs against entering a stay; the preliminary injunction preserves the status quo during the pendency of this appeal; and the district court did not abuse its discretion in determining the scope of the preliminary injunction. View "John Doe #1 v. Trump" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit granted in part a petition for review of the BIA's finding that petitioner was removable based on his conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age, in violation of Nevada Revised Statutes (N.R.S.) 200.730. Applying the categorical approach, the panel compared the elements of N.R.S. 200.730 with the applicable definition of "sexual abuse of a minor," which requires proof of three elements. The panel held that N.R.S. 200.730 punishes a broader range of conduct because the Nevada statute does not require proof that the offender participated in sexual conduct with a minor. Therefore, petitioner's conviction did not qualify as sexual abuse of a minor. The panel explained that, with a possession-only offense such as N.R.S. 200.730, the minor depicted in the image is not the direct object of the offender's conduct, which is a necessary predicate for the offense to qualify as sexual abuse of a minor. View "Mero v. Barr" on Justia Law

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The Ninth Circuit denied petitioner's request for compensation at government expense of his court-appointed pro bono counsel in a petition for review of the BIA's denial of relief from removal. The panel held that petitioner and his amici curiae identify no authority, including under the federal habeas statutes, the All Writs Act, and the Criminal Justice Act, as informed by the Suspension Clause, allowing the panel to order the government to compensate counsel for mentally incompetent petitioners in petitions for review under 8 U.S.C. 1252(a). The panel stated that, although it has inherent authority to appoint pro bono counsel for petitioner, and did so in his petition for review, it lacked the requisite statutory authority to order government compensation for his appointed counsel. View "Perez v. Barr" on Justia Law

Posted in: Immigration Law