Articles Posted in Immigration Law

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The Ninth Circuit denied petitions for review of the BIA's final order affirming the IJ's denial of petitioner's application for removal. The en banc court held that substantial evidence supported the finding that petitioner was a habitual drunkard; the statutory "habitual drunkard" provision is not unconstitutionally vague under the criminal law standard or any lesser vagueness standard that might apply in a non-criminal context; the statutory "habitual drunkard" provision does not violate equal protection principles because the denial of cancellation of removal to habitual drunkards is rationally related to the legitimate governmental interest in public safety. View "Ledezma-Cosino v. Sessions" on Justia Law

Posted in: Immigration Law

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After the BIA determined that petitioner was an aggravated felon because of his conviction for attempted sexual abuse under Oregon law, Oregon Revised Statutes 163.427, the agency determined that he was deportable, terminated his asylee status, denied his request for adjustment of status to lawful permanent resident, and denied waiver of admissibility. The Ninth Circuit held that it lacked jurisdiction to consider any discretionary aspect of the BIA's decision to deny petitioner's application for adjustment of status and waiver of inadmissibility under 8 U.S.C. 1159(b) and (c), as the Attorney General's discretion is specified in the statute. Applying the three-step process articulated from Descamps v. United States, the panel held that the Oregon statute does not categorically match the generic federal offense; the statute is divisible; and, under the categorical approach, a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony for purposes of 8 U.S.C. 1101(a)(43). Therefore, the BIA did not err in concluding that petitioner had been convicted of a particularly serious crime. The panel dismissed the petition in part and denied it in part. View "Diego de Diego v. Sessions" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit granted a petition for review and remanded for further proceedings, holding that it had jurisdiction over petitions for review of reasonable fear determinations made in connection with the reinstatement of expedited removal orders; the BIA's dismissal of petitioner's appeal for lack of jurisdiction was the final order of removal; and therefore, the petition for review was timely because it was filed less than 30 days after that order. The Ninth Circuit also held that the IJ abused his discretion in denying petitioner's motion to reopen and reconsider; contrary to the IJ's holding, the court's precedents make clear that economic extortion on the basis of a protected characteristic can constitute persecution; and the IJ failed to consider the question of petitioner's family ties. View "Ayala v. Sessions" on Justia Law

Posted in: Immigration Law

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Petitioner, who was in the Commonwealth of the Northern Mariana Islands (CNMI), sought review of the BIA's dismissal of his appeal of the IJ's order of removal based on 8 U.S.C. 1182(a)(7)(A)(i)(I), which makes an immigrant inadmissible if he lacks a valid entry document "at the time of application for admission." Petitioner, a native of Bangladesh, was in the CNMI without admission or parole on November 28, 2009, when the immigration laws of the United States took effect in the CNMI. The court concluded that petitioner was an immigrant who lacked a valid entry document and was deemed by law to have made a continuing application for admission by being present in the CNMI, an application that was considered and denied during his removal proceedings. Accordingly, the court denied the petition for review. View "Minto v. Sessions" on Justia Law

Posted in: Immigration Law

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Plaintiff, a 53-year-old garbage truck driver, filed suit against USA Waste, his employer of 32 years, alleging wrongful termination based on age discrimination and retaliation. The district court granted summary judgment for USA Waste. The court held that the district court erred by granting summary judgment in favor of USA Waste because plaintiff established a prima facie case under both his age discrimination and retaliation theories, and USA Waste failed to introduce any evidence that it had a legitimate reason for firing him. In this case, the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, 100 Stat. 3359, did not require proof of employment eligibility from plaintiff, and USA Waste could not make plaintiff's reinstatement contingent on verification of his immigration status because doing so would violate California public policy. Furthermore, plaintiff's use of an attorney was activity protected by California public policy, USA Waste fired plaintiff because he was represented by his attorney at the Settlement Agreement negotiations, and the district court erred by holding that USA Waste provided a legitimate reason for firing plaintiff. Therefore, the court concluded that USA Waste failed to meet its burden as to plaintiff's claim based on retaliation discrimination. The court also held that the district court did not abuse its discretion when it denied plaintiff's oral request for leave to amend the complaint eight months after the filing deadline. Accordingly, the court reversed and remanded for further proceedings. View "Santillan v. USA Waste of California" on Justia Law

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Plaintiff Jesus Ramirez came to the United States from El Salvador in 1999 and was granted Temporary Protected Status (TPS) in 2001. In 2012, plaintiff married a United States citizen and the couple sought lawful permanent resident status for Ramirez. The court held that a TPS designee provides a pathway for Ramirez to obtain lawful permanent resident status under the adjustment statute; under 8 U.S.C. 1254a(f)(4), an alien afforded TPS is deemed to be in lawful status as a nonimmigrant—and has thereby satisfied the requirements for becoming a nonimmigrant, including inspection and admission—for purposes of adjustment of status under section 1255; and thus the court affirmed the district court's grant of summary judgment in favor of Ramirez. View "Ramirez v. Brown" on Justia Law

Posted in: Immigration Law

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Petitioner, a native and citizen of Nigeria, sought review of the BIA's decision finding him ineligible for a waiver of inadmissibility under the aggravated felony bar. Petitioner entered the country as a conditional permanent resident based on his marriage to his first wife, a United States citizen. Petitioner's status as a conditional permanent resident was automatically terminated in 1997 due to his failure to file the required petition. The court concluded that, because petitioner was admitted as a conditional resident in 1995, he thus constituted, under 8 U.S.C. 1182(h), "an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence." Consequently, petitioner was subject to the aggravated felony bar to waiver. The court denied the petition for review. View "Eleri v. Sessions" on Justia Law

Posted in: Immigration Law

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The court published an order previously denying the government's motion for a stay of a restraining order pending appeal. The order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. No party has moved to vacate the published order. The court voted to determine whether it should grant en banc reconsideration in order to vacate the published order denying the stay, and the matter failed to receive a majority of the votes in favor of en banc reconsideration. Therefore, vacatur of the stay was denied. Judge Reinhardt concurred. Judge Bybee, with whom Judges Kozinski, Callahan, Bea, and Ikuta joined, dissented. View "Washington v. Trump" on Justia Law

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Petitioner, a citizen of Mexico and a gay man, challenged the BIA's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). A divided panel of this court, relied primarily on the court's decision in Castro-Martinez v. Holder, which interpreted the "unable or unwilling to control" standard as requiring proof that the police are unable or unwilling to control the sexual abuse of children generally. The panel majority adopted the IJ's conclusion that it was unlikely that the Mexican government would take no action to control the "abuse of children." The court granted rehearing en banc and held that the evidence petitioner adduced before the agency satisfied the court's longstanding evidentiary standards for establishing past persecution. In this case, petitioner provided credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation. Therefore, the court concluded that petitioner suffered past persecution that the Mexican government was unable or unwilling to control. The court overruled Castro-Martinez to the extent it might suggest otherwise and remanded the petition to the BIA for further proceedings. View "Bringas-Rodriguez v. Sessions" on Justia Law

Posted in: Immigration Law

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Defendant appealed his conviction for attempted illegal reentry and noted that the district court's instruction at trial failed to properly inform the jury of the essential elements of the offense. Petitioner frequently earned money washing car windows at the Mariposa port of entry into the United States. Petitioner was arrested by border patrol agents one day when he was washing windows. The court concluded that the lack of instruction to the jury that petitioner had to have a conscious desire to reenter the United States free from official restraint to be found guilty of the crime of attempted illegal reentry was plain error. In this case, if properly instructed on the official restraint doctrine, no rational jury could have concluded beyond a reasonable doubt that petitioner was free from official restraint in the pre-inspection area, or that he intended to be simply by entering that area. Likewise, there was insufficient evidence in the record to support petitioner's guilt on the theory that he intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States. Accordingly, the court vacated the conviction and remanded for a judgment of acquittal View "United States v. Vazquez-Hernandez" on Justia Law