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

Petitioner entered the United States without inspection and was immediately detained by Officers from the Department of Homeland Security (“DHS”). Two days later, pursuant to 8 U.S.C. Section 1225, DHS issued an expedited removal order against him. Petitioner asserted a fear of persecution, an asylum officer conducted a credible fear interview and concluded that Petitioner had not shown a reasonable fear of future persecution on account of a protected ground.   The Ninth Circuit dismissed Petitioner’s s petition for review from a decision of an immigration judge affirming an asylum officer’s negative credible fear determination in expedited removal proceedings. The court held that because Congress has clearly and unambiguously precluded the court from asserting jurisdiction over the merits of individual expedited removal orders, even with regard to constitutional challenges to such orders, and because that prohibition on jurisdiction raises no constitutional difficulty, the court lacked jurisdiction over Petitioner’s petition for review. View "HEVER MENDOZA LINARES V. MERRICK GARLAND" on Justia Law

Petitioner entered the United States without authorization, and after being convicted in California state court of assault with a deadly weapon, he was removed to Mexico. He later reentered the United States and was again removed. After Petitioner entered the United States for the third time, he was yet again placed in removal proceedings, and he applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge denied relief on all claims.   The Ninth Circuit denied the petition for review. The court concluded that the agency did not commit legal error in determining that Petitioner’s state-court conviction was for a particularly serious crime, making him ineligible for asylum or withholding of removal. And substantial evidence supports the agency’s determination that he is not entitled to CAT relief. The panel wrote that the record did not support Petitioner’s arguments that the Board relied on factual inaccuracies in finding that he could obtain medication in Mexico, that he is unlikely to be institutionalized in Mexico, and that healthcare workers and the police would not intentionally subject him to torture. The panel also did not agree with Petitioner that the agency failed to consider evidence that Mexican healthcare workers and police specifically target mentally ill individuals for torture. View "GIOVANNY HERNANDEZ V. MERRICK GARLAND" on Justia Law

The Ninth Circuit denied on behalf of the court a petition for rehearing en banc in a case in which the panel held that noncitizens must receive a Notice to Appear (“NTA”) in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. Section 1229a(b)(5)(C)(ii). View "VARINDER SINGH V. MERRICK GARLAND" on Justia Law

The Ninth Circuit denied on behalf of the court a petition for rehearing en banc in a case in which the panel held that noncitizens must receive a Notice to Appear (“NTA”) in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. Section 1229a(b)(5)(C)(ii). View "RAUL MENDEZ-COLIN V. MERRICK GARLAND" on Justia Law

ICE has decided to rely almost exclusively on privately owned and operated facilities in California. Two such facilities are run by appellant The Geo Group, Inc. AB 32 would override the federal government’s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities.The Ninth Circuit en banc court vacated the district court’s denial of the United States and The Geo Group, Inc.’s motion for preliminary injunctive relief, and held that California enacted Assembly Bill (AB) 32, which states that a “person shall not operate a private detention facility within the state,” would give California a virtual power of review over Immigration and Customs Enforcement (ICE)’s detention decisions, in violation of the Supremacy Clause.The en banc court held that whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government’s detention operations. The en banc court remanded for further proceedings. The en banc court held that AB 32 would breach the core promise of the Supremacy Clause. To comply with California law, ICE would have to cease its ongoing immigration detention operations in California and adopt an entirely new approach in the state. This foundational limit on state power cannot be squared with the dramatic changes that AB 32 would require ICE to make. The en banc court held that appellants are likely to prevail on their claim that AB 32 violates the Supremacy Clause as to ICE-contracted facilities. View "THE GEO GROUP, INC., ET AL V. GAVIN NEWSOM, ET AL" on Justia Law

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

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

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

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

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