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

While tending to the wounds of a separatist fighter at a local hospital, Cameroonian soldiers punched Petitioner, attacked him and threatened to kill him if they ever caught him treating separatists again. Petitioner sought review of the Board of Immigration Appeals (“BIA”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The BIA denied asylum and withholding of removal on the grounds that Petitioner had (a) failed to demonstrate past persecution and (b) failed to prove a nexus between the feared harm and a protected ground.The Ninth Circuit held that the harm Petitioner suffered, including the physical injury, the specific death threats connected to the physical harm, and evidence of the country’s political and societal turmoil, compelled the finding of past persecution. The court held that the IJ’s finding that Petitioner failed to establish a nexus based on the fact that he had not testified as to what happened to a hospital coworker who helped Petitioner, was vague because it was not directly responsive to Petitioner’s argument. Further, the court held that it also was not clear whether this reason rested on the flawed findings of fact concerning past persecution or whether this reason faulted Petitioner for not providing corroborative evidence. In light of the ambiguities, the court concluded that it could not conduct a meaningful review of the agency’s nexus determination, and it remanded for a clear explanation. Finally, the court held that substantial evidence supported the denial of CAT relief. View "STEPHEN FON V. MERRICK GARLAND" on Justia Law

The Transgender Law Center (collectively “TLC”), acting on behalf of the family and estate of an asylum-seeker, submitted two FOIA requests. The first FOIA request was directed to the U.S. Immigration & Customs Enforcement (“ICE”), and the second was directed to the Department of Homeland Security Office for Civil Rights and Civil Liberties. TLC filed suit in district court seeking declaratory and injunctive relief. The district court granted TLC’s request for declaratory judgment holding that the agencies had failed to timely respond to their FOIA requests, but ruled for the agencies in all other respects.   The Ninth Circuit reversed the district court’s partial summary judgment; vacated the district court’s mootness determination; and remanded. The court held that the government’s belated disclosure was not “adequate” under FOIA. The court reasoned that the Government failed to carry its burden because the agencies did not appropriately respond to positive indications of overlooked materials provided by TLC and did not hew to their duty to follow obvious leads.The court further held that the agencies’ Vaughn indices were filled with boilerplate or conclusory statements; and this high-level, summary approach resulted in an unacceptable lack of specificity and tailoring that undermined TLC’s ability to contest the agencies’ withholdings. The court also held that the Government failed to come forward with clear, precise, and easily reviewable explanations for why the information was not segregable. View "TRANSGENDER LAW CENTER V. ICE" on Justia Law

The Executive Office for Immigration Review (EOIR), maintains an Attorney Discipline Program. Under the Program, Plaintiff filed a complaint against his former attorney. Plaintiff sought to compel the EOIR to complete its investigation of his complaint against his former attorney and to report its investigation results. Plaintiff relief on the Mandamus Act, 28 U.S.C. Section 1361, and the Administrative Procedure Act (APA), 5 U.S.C. Section 706(1).   The Ninth Circuit affirmed the district court’s dismissal of an action seeking to compel the Executive Office for Immigration Review to complete its investigation of Plaintiff’s complaint. The court held that the district court erred in treating the requirements for obtaining relief under the APA as jurisdictional and dismissing the complaint on that basis. The court reasoned that because Mandamus relief and relief under the APA are in essence the same, Plaintiff had an adequate remedy under the APA. The court followed precedent and chose to analyze the APA claim only. Here, the EOIR had a clear, mandatory duty to investigate Plaintiff’s complaint within a reasonable time, but it had no duty to report its investigation results to Plaintiff. Thus, Plaintiff would only be entitled to relief if the EOIR unreasonably delayed in carrying out its duty to investigate. The court applied the six-factor balancing test announced in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), holding that the EOIR’s delay was not unreasonable under the APA. View "PRYMAS VAZ V. DAVID NEAL" on Justia Law

Petitioner asserted a fear of persecution or torture in Nigeria based on his status as a gay man and the harm he suffered after being discovered having sex with his boyfriend in a hotel. The immigration judge (“IJ”) found that Petitioner was not credible because he “misrepresented” the name of the hotel where he and his boyfriend were discovered. The IJ found that Petitioner failed to establish that he is gay or that he was ever harmed in Nigeria for being gay. The IJ also found that Petitioner’s asylum application was frivolous, concluding that the misrepresentation of the hotel was a material element of his application.   Petitioner appealed arguing that the agency (1) erred by failing to consider potentially dispositive evidence concerning his CAT claim; (2) violated due process in its CAT determination; and (3) erred in concluding that he had filed a frivolous asylum application.   The Ninth Circuit, granted in part, and denied in part, Petitioner’s petition for review. The court concluded that the Board erred by failing to consider potentially dispositive evidence concerning his CAT claim, thus the agency’s denial of CAT relief could not stand. The court did not reach, and therefore denied, Petitioner’s Fifth Amendment violation claims. Further, the court held that the Board erred in concluding that Petitioner had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where Petitioner was discovered was not material to his claim. View "PETER UDO V. MERRICK GARLAND" on Justia Law

Defendant was convicted for illegal reentry after removal in a case in which a Marine Corps surveillance unit spotted him immediately after he unlawfully entered the United States, and notified Customs and Border Patrol agents who soon detained him. Defendant argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law.   The Ninth Circuit affirmed Defendant’s conviction for illegal reentry after removal. The court reasoned that the military may still assist civilian law enforcement agencies if Congress expressly authorized it, and here, the 2016 National Defense Authorization Act directed the U.S. Secretary of Defense to offer military assistance to Border Patrol in hopes of securing the southern land border. The court concluded that the district court therefore properly denied Defendant's suppression motion based on the alleged violation of the Posse Comitatus Act. Further, the court also denied Defendant’s Batson challenge to the prosecution’s striking two Asian jurors from the venire, concluding that Defendant failed to rebut the prosecution’s race-neutral reasons for doing so. View "USA V. CLEMENTE HERNANDEZ-GARCIA" on Justia Law

Petitioner filed a motion to reopen his immigration proceedings over sixteen years after the statutory deadline for doing so had passed. He argued that the deadline should be equitably tolled because he allegedly received ineffective assistance of counsel when his prior lawyers did not file earlier motions to reopen on his behalf, even though those motions would also have been untimely.The Ninth Circuit denied the petition for review of the Board of Immigration Appeals’ denial. The court held that Petitioner has not shown that his prior counsel acted deficiently in not filing untimely motions to reopen, nor has he demonstrated prejudice. The court further held that the Board did not err in declining to allow Petitioner’s untimely motion to reopen based on allegedly changed country conditions in Mexico. Further, the court found that even if Petitioner could show deficient performance, he still cannot show prejudice. Finally, although Petitioner submitted articles reporting violence against law enforcement in Mexico, those reports do not suffice to establish changed country conditions because they do not show that “circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim” now does. View "JUAN HERNANDEZ-ORTIZ V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (“BIA”) decision denying his untimely motion to reopen his removal proceedings. Although the BIA denied relief on the merits, the BIA lacked jurisdiction to consider Petitioner’s motion to reopen because he was subject to a reinstated prior removal order.   The Ninth Circuit held that it can deny Petitioner’s petition for review based on the BIA’s lack of jurisdiction. The court held that under the Chenery doctrine, the court’s review is typically limited to the grounds upon which the agency relied and that the court should generally remand to the agency. However, the court concluded that the considerations underlying the Chenery doctrine did not apply because the BIA was required to deny Petitioner’s motion for lack of jurisdiction. Thus, the court concluded that it need not remand for the agency to reach the same conclusion on the BIA’s jurisdiction. Finally, the court noted that denying the petition was consistent with the court’s precedents. View "JOSE GUTIERREZ-ZAVALA V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of the agency’s rejection of his Convention Against Torture (“CAT”) claim and rejection of his motion to reopen and remand his removal proceedings.The Ninth Circuit denied Petitioner’s review of a decision of the Board of Immigration Appeals (“BIA”). The court held that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen and substantial evidence supported the BIA’s denial of relief under the Convention Against Torture (“CAT”).The court reasoned that Petitioner’s current proceeding was initiated with a different charging document which made Pereira inapplicable. Even if the court were to assume the Notice to Appear (“NTA”) and Notice of Referral to Immigration Judge (“NOR”) was analogous, his argument is foreclosed by precedent holding that when hearing details are later provided there is no jurisdictional defect.Further, the court explained that while petitioners seeking CAT relief are not required to demonstrate that safe relocation would be impossible, they do carry the burden to establish that it is more likely than not that they will be tortured. Here, the court concluded that the evidence established that Petitioner’s relocation to his home state was eminently possible. Moreover, the court found that the record would not compel the finding that Petitioner established a more than 50% chance of future torture. Finally, the court explained that Petitioner failed to show that he faces a particularized, ongoing risk of future torture higher than that faced by all other citizens in his country. View "JOSE TZOMPANTZI-SALAZAR V. MERRICK GARLAND" on Justia Law

The Ninth Circuit denied in part and granted in part a petition for review of the BIA's decision determining that petitioner's criminal convictions rendered him removable and ineligible for cancellation of removal. The panel concluded that the BIA correctly determined that petitioner's conviction for domestic violence, in violation of California Penal Code 273.5(a), rendered him removable, but remanded for the BIA to consider whether his rape conviction for felony rape of an unconscious person, in violation of California Penal Code 261(a)(4), is an aggravated felony barring cancellation of removal. On remand, the BIA must consider whether the generic federal definition of rape includes intercourse involving consent obtained through fraud. View "Valdez Amador v. Garland" on Justia Law

Ortiz entered the U.S. as a lawful permanent resident but was later found removable for having committed two crimes involving moral turpitude (CIMTs) not arising out of a single scheme of conduct, 8 U.S.C. 1227(a)(2)(A). Ortiz contended that his conviction for voluntary manslaughter under California Penal Code section 192(a) was not a CIMT.The Ninth Circuit denied a petition for review. California defines voluntary manslaughter as the “unlawful killing of a human being without malice . . . upon a sudden quarrel or heat of passion.” The California Supreme Court has construed the statute as requiring some form of culpable mental state—an intent to kill or a conscious disregard for life. Applying the categorical approach, the court compared the federal definition of a CIMT, involving either fraud or base, vile, and depraved conduct that shocks the public conscience. The court considered the requisite state of mind as well as the resulting harm in tandem; as the level of conscious behavior decreases (from intentional to reckless conduct), more serious resulting harm is required to find a CIMT. A crime committed only recklessly requires more serious harm to qualify as a CIMT. The court agreed with the BIA that section 192(a) is a CIMT; the statute only requires recklessness, but the harm—the unlawful killing of a human—stands at the apex. View "Narez v. Garland" on Justia Law