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

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

Petitioner, a native and citizen of El Salvador, sought a petition for review with the Ninth Circuit after the Board of Immigration Appeals ("BIA")dismissed his appeal under 8 U.S.C. Sec. 1229b(a). Previoulsy, Petitioner had been granted special rule cancellation of removal and adjustment of status to lawful permanent resident under section 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). However, in 2015, removal proceedings were initiated against Petitioner after he was convicted of a state-law drug offense. The Immigration Judge found Petitioner was removable because he was ineligible for a second grant of cancellation of a removal under 8 U.S.C. Sec. 1229b(a).The Ninth Circuit affirmed the BIA, finding that a plain reading of the relevant statutory law supports the Immigration Judge's and the BIA's position. View "MANUEL HERNANDEZ V. MERRICK GARLAND" 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. Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board of Immigration Appeals (“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, in granting Petitioner’s petition for review the court 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 court concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. Discussing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), the court explained that when an applicant posits multiple theories for why he might be tortured, the relevant inquiry is whether the total probability that the applicant will be tortured exceeds 50 percent.   Here, the Board considered Petitioner’s two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. The court concluded that in doing so, the Board misapplied Cole and Matter of J-F-F-.  By requiring Petitioner to show that every step in two hypothetical chains was more likely than not to occur, the Board increased his CAT burden. View "MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND" on Justia Law

Petitioner asserted that changed circumstances in his native Jamaica— a spike in violence against members of the People’s National Party—justified his untimely second motion to reopen. Because an Immigration Judge in an earlier proceeding found Petitioner not credible and questioned his actual identity, the Board of Immigration Appeals (“Board”) ruled that the new evidence of political violence did not matter because Petitioner may not even be a member of the People’s National Party.   The Ninth Circuit denied in part and dismissed in part holding that the Board 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. The court concluded that the Board did not abuse its discretion in denying Petitioner’s motion to reopen. The court explained that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied on adverse credibility grounds, the respondent must either overcome the prior credibility determination or show that the new claim is independent of the evidence that was found to be not credible.   Here, Petitioner did not challenge the adverse credibility finding but instead argued that his new evidence was independent of the evidence that was found to be not credible. The court rejected that argument. The court explained that the IJ had previously found Petitioner’s testimony about his identity not credible, thus undermining his entire claim. Moreover, Petitioner’s claims remained the same throughout his proceedings. The court concluded that the basis of Petitioner's motion to reopen therefore remained intertwined with his credibility problem. View "GARFIELD GREENWOOD V. MERRICK GARLAND" on Justia Law

Petitioner was detained under 8 U.S.C. Section 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions. After Petitioner filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed. The district court asserted jurisdiction over Petitioner’s claims but denied habeas relief.   Affirming in part and vacating in part the Ninth Circuit held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Petitioner’s claims that the BIA erred or violated due process in denying bond.   The court held that the district court lacked jurisdiction to review the determination that Petitioner posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review bar of 8 U.S.C. Section 1226(e). In concluding that the dangerousness determination is discretionary, the court observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multifactorial analysis with no clear, uniform standard for what crosses the line into dangerousness. As to Petitioner’s remaining claims, the court concluded that the district court had jurisdiction to review them as constitutional claims or questions of law not covered by Section1226(e), but agreed with the district court that they must be denied. View "JAVIER MARTINEZ V. LOWELL CLARK" on Justia Law

Petitioner petitioned for review of a decision of the Board of Immigration Appeals (“BIA”) denying his request to administratively close his removal proceedings. An immigration judge ordered Petitioner removed from the United States after he admitted that he had committed acts that disqualified him from obtaining cancellation of removal: He twice “encouraged” his eldest son to enter the United States illegally. Petitioner now argues that the “encouraged” component of the alien-smuggling statute, 8 U.S.C. Section 1182(a)(6)(E)(i), is unconstitutionally overbroad under the First Amendment, that it is unconstitutionally vague, and that it violates the equal-protection component of the Due Process Clause. He also contends that the agency abused its discretion in denying his motion for administrative closure.   The Ninth Circuit denied his petition. The court rejected Petitioner’s contention that its interpretation creates overlap with the other verbs in the section, explaining that, because no interpretation could avoid excess language here, the canon against superfluity had limited force. Further, the court explained that, even if it had doubt about its interpretation, the canon of constitutional avoidance would militate in its favor. Next, the court rejected Petitioner’s argument that section 1182(a)(6)(E)(i) is unconstitutionally vague. The court concluded that his concession that he “encouraged” his son’s unlawful entry foreclosed his facial challenge because an individual who has engaged in conduct that is clearly covered by a statute cannot complain of vagueness as applied to others. Finally, the court held that the agency did not abuse its discretion in denying administrative closure, explaining that the agency considered the applicable factors and explained its conclusions. View "J. MARQUEZ-REYES V. MERRICK GARLAND" on Justia Law

Petitioner was publicly marked as a terrorist and threatened with torture over social media by Nicaraguan government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime and received a second death threat— this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. The Ninth Circuit explained that the threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents.   The Ninth Circuit (1) granted Petitioner’s petition for review of the Board of Immigration Appeals’ (“Board”) decision affirming an immigration judge’s denial of asylum and related relief, and remanded, holding that the record compelled a finding that Petitioner’s past experiences constituted persecution and that the Board erred in its analysis of other issues; and (2) dismissed as moot Petitioner’s petition for review of the Board’s denial of his motion to reopen   The court held that the record compelled the conclusion that Petitioner’s experiences in Nicaragua constituted persecution. The court explained that the court has consistently recognized that being forced to flee from one’s home in the face of an immediate threat of severe physical violence or death is squarely encompassed within the rubric of persecution. Here, Petitioner was forced to flee three separate times after being personally targeted with violence and threatened with death for his political views. Further,the court wrote that an applicant may suffer persecution based on the cumulative effect of several incidents, even if no single incident rises to the level of persecution. View "MARIO FLORES MOLINA V. MERRICK GARLAND" on Justia Law