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

Tomczyk, a citizen of Canada, was deported in 1990. He reentered in 1991 after he was waved in by an immigration official. More than 25 years later, DHS reinstated his removal order under 8 U.S.C. 1231(a)(5), which requires proof that the petitioner is an alien, who was subject to a prior removal order, and who “reentered the United States illegally.”A Ninth Circuit panel previously granted Tomczyk’s petition for review. The en banc court subsequently dismissed that petition. DHS did not err in reinstating Tomczyk’s removal order. The statute does not define “reentered the United States illegally” but under the ordinary meaning of “illegal,” a noncitizen reenters “illegally” when the noncitizen is forbidden by law from gaining admission into the country. Tomczyk had been deported under a drug-related ground of inadmissibility and had not obtained a waiver of inadmissibility. Nor did Tomczyk's manner of reentry result in waiver; his reentry while inadmissible was illegal as a matter of law. Rejecting an estoppel argument, the court noted there was no indication of government misconduct. The court rejected Tomczyk's argument that section 1231(a)(5) could not be applied retroactively against him. Tomczyk had no pending application when the law came into effect; merely being eligible to apply for relief in the future was insufficient. Tomczyk failed to allege a gross miscarriage of justice that might permit review of his underlying order and failed to previously exhaust such arguments. View "Tomczyk v. Garland" on Justia Law

Tzompantzi-Salazar unsuccessfully sought to reopen his removal proceedings arguing that his Notice to Appear (NTA) did not include the time and date of his hearing. The Ninth Circuit denied a petition for review.Tzompantzi-Salazar’s current proceeding was initiated with a different charging document, a Notice of Referral to Immigration Judge, so the Supreme Court’s “Pereira” holding is inapplicable. When hearing details are later provided, as they were here, there is no jurisdictional defect.Substantial evidence supported the Board’s denial of Convention Against Torture (CAT) relief. Tzompantzi-Salazar could avoid any risk of future torture by relocating to his home state in central Mexico, Tlaxcala—thousands of miles from the border where his two kidnappings allegedly occurred. For CAT applications, the agency must consider the possibility of relocation without regard for the reasonableness of relocation that is considered in other types of applications. The remaining CAT factors did not change the result. Although past torture can be relevant in assessing an applicant’s risk of future torture, CAT relief is “forward-looking.” Tzompantzi-Salazar’s previous kidnappings, even assuming they occurred as described, do not establish that he continues to face a risk of torture more than 10 years later. Nor did the record compel the conclusion that the kidnappings rose to the level of torture. Country conditions evidence and context also undercut Tzompantzi-Salazar’s belief that he faces the extremely high threshold of future torture. View "Tzompantzi-Salazar v. Garland" on Justia Law

Ruiz-Colmenares, a Mexican citizen, has illegally entered the U.S. multiple times, wherein he was convicted for multiple felonies. He has been deported three times. During his fourth deportation, Ruiz-Colmenares expressed for the first time a fear of returning to Mexico and that he had been robbed and assaulted by police officers in Mexico. After finding Ruiz-Colmenares not credible, an IJ rejected his claim for deferral of removal under the Convention Against Torture (CAT). The BIA affirmed.The Ninth Circuit denied a petition for review, rejecting an argument that the agency lacked jurisdiction because his charging document omitted the time and date of his hearing, That argument was not presented before the IJ or BIA. The adverse credibility determination was supported by substantial evidence, based on inconsistencies and omissions in Ruiz-Colmenares’s written, verbal, and documentary evidence regarding what happened in Mexico. Even minor inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis for an adverse credibility determination; “this type of evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms.” The agency properly considered Ruiz-Colmenares’ failure to mention fear of returning to Mexico, or the robberies, during previous deportation proceedings. Even if the record compelled reversal of the adverse credibility determination, substantial evidence supports the finding that Ruiz-Colmenares did not suffer past torture and does not face a particularized risk of future torture if returned to Mexico. View "Ruiz-Colmenares v. Garland" on Justia Law

Singh, a citizen of India, entered the U.S. without inspection. DHS served him with a Notice to Appear that did not provide a date or time for Singh’s removal hearing, instead stating that the date and time were “TBD.” DHS released Singh after he posted a bond. Singh then traveled to Indiana to live with a friend but provided the immigration court with the address of the friend’s other residence because it was the more reliable mailing address. The immigration court sent multiple hearing notices to the address, but his friend did not promptly forward them to Singh. An IJ ordered him removed in absentia.The Ninth Circuit granted Singh’s petition for review. Noncitizens must receive a Notice to Appear 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. 8 U.S.C. 1229a(b)(5)(C)(ii). The omission of the time or date of a removal hearing cannot be cured by a subsequent hearing notice; such an interpretation would contravene the unambiguous statutory text and the Supreme Court’s 2021 "Niz-Chavez" decision. The government must provide all statutorily required information in a single Notice to Appear, not only to trigger the stop-time rule but for all removal proceedings that require notice pursuant to section 1229(a). View "Singh v. Garland" on Justia Law

Castellanos-Avalos arrived in the United States as a child in 1989. He was placed in removal proceedings in 2005 after being convicted for possession of stolen property and reckless endangerment. He retained then-attorney Mahr. While Castellanos-Avalos’s appeal of his removal order was under consideration, his family hired attorney Rios to pursue a state-bar complaint against Mahr based on Mahr’s failure to request the only relief he was arguably entitled to, voluntary departure. The Ninth Circuit denied Castellanos-Avalos’s appeal of the removal order. Castellanos-Avalos was removed to Mexico in 2008 but returned to the United States.In 2019, he was indicted for being found in the United States after having been ordered removed, 8 U.S.C. 1326. He moved to dismiss the indictment by collaterally attacking his removal order. The Ninth Circuit reversed an order granting that motion. In a criminal proceeding under section 1326, an alien may not challenge the validity of a removal order unless the alien demonstrates exhaustion of available administrative remedies; that the removal proceedings improperly deprived the alien of the opportunity for judicial review; and that entry of the order was fundamentally unfair. Each of the statutory requirements is mandatory. Castellanos-Avalos did, in fact, seek and receive judicial review. View "United States v. Castellanos-Avalos" on Justia Law

When Jimenez-Sandoval was apprehended upon entry into the United States, an immigration officer interviewed her and prepared a Record of Deportable Alien, indicating that Jimenez-Sandoval was 20 years old. Immigration officers released her on her own recognizance and served her with an Order to Show Cause (OSC) and a Notice of Hearing. Jimenez-Sandoval failed to appear at her hearing; she was ordered deported in absentia. Almost 20 years later, Jimenez-Sandoval filed a motion to reopen, seeking to set aside the order on the basis that the agency did not comply with the notice requirements for minors. Jimenez-Sandoval provided a copy of her birth certificate, which indicated that she was 17 years old when apprehended. The IJ denied her motion. The BIA dismissed her appeal.The Ninth Circuit denied Jimenez-Sandoval’s petition for review. Jimenez-Sandoval was released on her own recognizance presumably based on the immigration officers’ belief that she was not a minor. There was no adult present to assume responsibility for ensuring her appearance at future proceedings, so the requirement of notice to an adult was not triggered. View "Jimenez-Sandoval v. Garland" on Justia Law

Togonon, a citizen of the Philippines, was admitted to the U.S. as a lawful permanent resident. He was later convicted of arson (California Penal Code 451(b)). DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on his conviction for "an aggravated felony," “an offense described in” 18 U.S.C. 844(i). The BIA upheld a removal order.The Ninth Circuit vacated. The California statute is not a categorical match to its federal counterpart, under which a defendant acts “maliciously” if he either intentionally damages or destroys property covered by section 844(i) or acts with “willful disregard” of the likelihood that damage or injury would result from his acts; acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property. California courts have interpreted the term “maliciously” in section 451(b) more broadly. A defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm. View "Togonon v. Garland" on Justia Law

The Ninth Circuit filed (1) an order withdrawing the opinion and dissent filed on June 23, 2021, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion denying the petition for review of a decision of the BIA.In the amended opinion, the panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. In this case, the circumstance specific to petitioner clearly established that the amount of marijuana in his possession exceeded thirty grams. View "Bogle v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision agreeing with the IJ that petitioner's convictions were crimes involving moral turpitude (CIMTs) and that she was not entitled to cancellation of removal. The panel concluded that petitioner's convictions are not CIMTs and therefore she was not removable under 8 U.S.C. 1227(a)(2)(A)(ii).In 2010, petitioner was convicted of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, petitioner was convicted of offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds). The panel concluded that Arizona Revised Statutes 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; petitioner's section 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not CIMTs; and petitioner was therefore not removable. View "Walcott v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order pretermitting his application for cancellation. The BIA held that petitioner failed to establish that he had not been convicted of offenses with an aggregate sentence of at least 5 years.The panel concluded that the phrase "an offense" in 8 U.S.C. 1229b(b)(1)(C) includes the multiple criminal convictions described in 8 U.S.C. 1182(a)(2)(B) that render an alien inadmissible. The panel rejected petitioner's contention that because the statutory disqualification is phrased in the singular, his multiple offenses do not trigger ineligibility. The panel also rejected petitioner's contention that the BIA erred in finding that his multiple convictions resulted in aggregated sentences of at least five years because the agency relied on the 2013 judgment, a record not clearly related to petitioner. Rather, substantial evidence supports the agency's determination that petitioner did not satisfy his burden to show that he had not been convicted of the qualifying offenses. View "Ramirez-Medina v. Garland" on Justia Law