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

Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. Section 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad.   Denying in part and granting in part Petitioner’s petition for review of a decision of the BIA, the court held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Applying the categorical approach, the court first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), and expressly recognized that Cisneros had been overruled.   As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The court explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. Because the BIA committed an error of law in failing to apply the correct legal standards, the court remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards. View "DIEGO MENDOZA-GARCIA V. MERRICK GARLAND" on Justia Law

Petitioner was convicted of forgery under Section 472 for possession of a counterfeit government seal. The Board of Immigration Appeals concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Petitioner argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude.   The Ninth Circuit denied in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that a forgery under California Penal Code Section 472 is a crime involving moral turpitude.   The court considered the elements of Section 472 and concluded that California law does not support Petitioner’s reading of the statute. The court explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or actions. The court also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion.   Finally, Petitioner contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The court concluded that the record belied that assertion, noting that the BIA did not read Petitioner’s brief as raising that assertion. View "PEDRO VASQUEZ-BORJAS V. MERRICK GARLAND" on Justia Law

This appeal arose from a class action filed under the Victims of Trafficking and Violence Protection Act of 2000 by individuals who were incarcerated in private immigration detention facilities owned and operated by a for-profit corporation, CoreCivic, Inc. These individuals were detained solely due to their immigration status alleged that the overseers of their private detention facilities forced them to perform labor against their will and without compensation. The inquiry on appeal concerns only whether the district court properly certified three classes of detainees.   The Ninth Circuit affirmed the district court’s order certifying three classes in an action. The court held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The court held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a class-wide policy of forced labor to establish commonality. Plaintiff established predominance because the claims of the class members all depended on common questions of law and fact. The court agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage.   The court held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a class-wide policy of forced labor. As to the California Labor Law Class, the court held that Plaintiffs established that damages were capable of measurement on a class-wide basis. View "SYLVESTER OWINO V. CORECIVIC, INC." on Justia Law

Petitioner petitioned for review of an order of the Board of Immigration Appeals (“BIA”) upholding the decision of the Immigration Judge (“IJ”) denying her application for cancellation of removal and ordering her removed to Mexico.     The Ninth Circuit denied in part and dismissed in part Petitioner’s petition and held that Petitioner’s conviction for corporal injury upon a child, in violation of California Penal Code Section 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The court reasoned that The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. Section 1101(a)(43)(F). Thus, because Petitioner’s conviction records confirmed a jail term of 365 days, the court explained that whether Petitioner was convicted of an aggravated felony turned solely on whether a violation of Section 273d(a) constitutes a “crime of violence” under 18 U.S.C. Section 16.   The court explained that the relevant language of Section 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code Section 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. The court rejected the remaining challenges to Petitioner’s removal order View "AURORA OLEA-SEREFINA V. MERRICK GARLAND" on Justia Law

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