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

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

Petitioner missed the filing deadline for his asylum application by over three years and argued that he qualified for the extraordinary circumstances exception to the time limitation based on his “incapacity or legal disability” due to ignorance of the relevant immigration laws, his young age of 22 years old at the time of his arrival, his lack of English-language skills, and the stress he experienced from fleeing his home country.   The Ninth Circuit denied Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that the BIA did not err in concluding that Petitioner failed to establish extraordinary circumstances to excuse his delay in filing his asylum application. The court concluded that none of the factors identified by Petitioner, either separately or in the aggregate, were of a similar nature or seriousness to the examples of extraordinary circumstances set forth in the regulation. 8 C.F.R. Section 1208.4(a)(5). The court held that the BIA, therefore, did not err in concluding that Petitioner failed to establish the presence of an extraordinary circumstance to excuse the delay in filing his asylum application. View "MARVIN MARTINEZ ALQUIJAY V. MERRICK GARLAND" on Justia Law

The United States Citizenship and Immigration Services denied the U-visa petition based on its regulation limiting derivative U-visa status to spouses married at the time the principal petition is filed. Plaintiffs challenged that denial in the district court, which granted summary judgment to the government.   The Ninth Circuit affirmed the district court’s denial of Plaintiffs’ application for attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”). The court concluded that the district court did not abuse its discretion, explaining that the factors identified by the district court provided strong support for its determination that the government’s position was substantially justified. Specifically, the court observed that the government’s position was found persuasive by no fewer than six federal judges in the course of the case, and as many judges were persuaded by the government’s position as were persuaded by the Plaintiffs’ position. The court explained that these circumstances supported the district court’s conclusion that the government’s position was not unreasonable. In addition, the court concluded that the district court properly considered the fact that this case involved an issue of first impression. View "MARIA MEDINA TOVAR V. LAURA ZUCHOWSKI" on Justia Law

Petitioner was ordered excluded in 1996 and then unlawfully re-entered the United States. In 2007, DHS served Petitioner with a Notice to Appear (NTA) in immigration court but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Petitioner’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Petitioner’s cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Petitioner’s 1996 order, and he filed a petition for review but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings.   The Ninth Circuit dismissed Petitioner’s petitioner for lack of jurisdiction. The court held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Because Petitioner’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the court concluded that it lacked jurisdiction to consider the merits of his petition.   The court relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. Section 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases. View "MIGUEL LOPEZ LUVIAN V. MERRICK GARLAND" on Justia Law

Petitioner, a citizen of Mexico, became a lawful permanent resident in 1997. Subsequently, he was convicted of four separate crimes in Washington state, including the delivery of a controlled substance. At the time, this offense was an "aggravated felony." and therefore, Petitioner became removable. Petitioner was removed; however, he subsequently re-entered the United States. In 2016, the government detained Petitioner and reinstated his previous removal order.In January 2017, Petitioner filed a petition for review of the reinstatement order, which was ultimately denied. While it was still pending, Petitioner filed a motion to reopen with the immigration judge. The immigration judge denied the motion, Petitioner unsuccessfully filed an administrative appeal to the Board of Immigration Appeals, and then appealed to the Ninth Circuit.The Ninth Circuit denied Petitioner's petition for review, finding that 8 U.S.C. Sec. 1231(a)(5), generally bars reopening reinstated orders of removal and that Petitioner did not establish a "gross miscarriage of justice." The Ninth Circuit also held that the agency lacked authority to sua sponte reopen such reinstated removal orders. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”   The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.   The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. View "USA V. JUAN BASTIDE-HERNANDEZ" on Justia Law

Petitioner was deported in 1991 but illegally reentered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (“USCIS”) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed.Denying Petitioner’s petition for review, the Ninth Circuit held that: 1) the permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) applied retroactively to Petitioner such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated, and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (“CAT”).   Specifically, the court held that the permanent inadmissibility bar applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. First, the court explained that Petitioner did not have a vested right in adjustment relief. Second, IIRIRA imposed a new legal consequence on Petitioner not for his pre-IIRIRA illegal reentry but because of his illegal presence after IIRIRA. Lastly, given IIRIRA’s aims of toeing a harder line on immigration and limiting the availability of discretionary relief, it would be anomalous for Petitioner to obtain a perpetual right to seek relief at his own convenience. View "JORGE RIVERA VEGA V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief from removal under the Convention Against Torture (“CAT”) The BIA affirmed based upon the IJ’s adverse credibility determination.   The Ninth Circuit granted the petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record. The court remanded on an open record for the BIA to determine in the first instance whether the remaining inconsistency is sufficient to support the adverse credibility determination.   The court held that substantial evidence did not support the IJ’s reliance upon insufficient corroborating evidence as a basis for finding Petitioner not credible because the IJ categorically ignored documents that were consistent with Petitioner’s testimony. The court explained that by ignoring such evidence, the IJ did not consider “the totality of the circumstances” when making the adverse credibility determination.   The court held that the BIA further erred by misinterpreting the IJ’s holding regarding corroborating evidence as relying on 8 U.S.C. Section 1158(b)(1)(B)(ii), and by erroneously characterizing the IJ’s holding as concluding that Petitioner did not provide sufficient corroborating evidence to sustain his burden of proof independent of his own non-credible testimony when the IJ actually relied upon the lack of documentation as one factor supporting its adverse credibility determination under 8 U.S.C. Section 1158(b)(1)(B)(iii). The court did not reach the BIA’s holding concerning Petitioner’s eligibility for protection under CAT. View "HAYK BARSEGHYAN V. MERRICK GARLAND" on Justia Law

Bangladesh citizen Atm Magfoor Rahman Sarkar, his wife, and their two children petitioned for review of the Board of Immigration Appeals’s (BIA) order denying their third motion to reopen removal proceedings. Although this case was pending for nearly five years, shortly before oral argument both Sarkar and the Government moved to administratively close this case because the Government deemed Sarkar a low enforcement priority. On the merits, it was undisputed that Sarkar’s third motion to reopen was untimely and numerically barred. Nevertheless, he argued he was entitled to relief because he presented new and material country-condition evidence that established his prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit affirmed the BIA, finding Sarkar's attempts to connect generalized evidence of increased Islamic extremism with his contentions that he has become known “as a fierce opponent of religious extremism” and he has “no doubt” that he was known as an enemy “within the Bangladesh Jihadi/Extremist network” failed to establish a nexus between a reasonable fear of future persecution and his proposed protected grounds. "[I]t points to generalized crime and societal shifts that do not target him or those in his proposed social groups." View "Sarkar v. 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 an 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 challenged the BIA’s decision raising two primary arguments: (1) under the court’s 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 denied his petition for review. The court explained that considering the Supreme Court’s recent decision in Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021), and the plain language of the TPS statute, 8 U.S.C. Section 1254a(c)(5), the court concluded that the granting of TPS does not constitute being “admitted in any status” under the cancellation statute. The court held that Sanchez effectively overruled circuit precedent requiring consideration of the benefits conferred by an alien’s immigration status in determining whether the alien had been admitted. The court wrote that Sanchez is clear that TPS does not constitute an admission to the United States no matter how great its benefits. The court further 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