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

Alfred entered the U.S. from Palau under the Compact of Free Association between the U.S. and several Pacific Island territories. Seven years later, Alfred pled guilty in Washington state court to second-degree robbery and two counts of attempted robbery in the second degree. According to his plea agreement, Alfred alone first tried to obtain cash from a credit union teller before going to a coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle. During Alfred’s incarceration, he was charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(G)--a theft or burglary offense for which the term of imprisonment is at least one year. According to the IJ, the Ninth Circuit’s Alvarado-Pineda holding controlled; the state statute under which Alfred was convicted was a categorical match to the federal generic offense. Alfred, like Alvarado-Pineda, had been sentenced to a term of imprisonment of more than a year for each conviction. The BIA affirmed.The Ninth Circuit vacated, citing its post-Alvarado-Pinedo holding, Valdivia-Flores, that convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under 8 U.S.C. 1101(a)(43)(G), (U). View "Alfred v. Garland" on Justia Law

Li, a citizen of the People’s Republic of China, entered the U.S. in 2010 on a nonimmigrant business visa. After Li’s visa expired, DHS charged her with removability. Li sought asylum, withholding of removal, and Convention Against Torture relief, claiming that she was persecuted because of her membership in a house church that is not registered with the Chinese government. In March 2010, when Li and others met for a house church meeting, the police arrested them for an illegal gathering. Li stated that an officer interrogated her, accused her of wanting to overthrow the Chinese government, and slapped and kicked her.At a 2017 hearing, the government informed the IJ that it had discovered Li’s undisclosed 2013 arrest record for prostitution in Washington. The IJ questioned Li about her submission of false information in her asylum application, then denied Li’s application based on an adverse credibility determination, citing the discrepancies relating to Li’s treatment in jail, her husband’s termination, and false information she provided in her visa application and in her asylum application. The Board affirmed, noting that, even if Li were credible, she did not establish her eligibility for asylum because she did not show that the harm she suffered in China rose to the level of past persecution. The Ninth Circuit denied a petition for review, finding the denials of relief supported by substantial evidence. View "Li v. Garland" on Justia Law

Alcaraz was born in Mexico in 1979 and entered the U.S. illegally when he was eight years old. In 1999, Alcaraz, who lacked legal immigration status, was involved in a domestic incident with his girlfriend, which led to a nolo contendere California felony conviction. He was removed, re-entered illegally in 2003, was deported again, and was caught attempting to re-enter in 2013.In 2018, the Ninth Circuit granted Alcaraz’s petition for review from a BIA order denying his applications for withholding of removal and deferral of removal under the Convention Against Torture. The court concluded that the BIA erred in not requiring the DHS to make a good-faith effort to make available key government witnesses for Alcaraz’s cross-examination and in not deeming true Alcaraz’s testimony before the Immigration Judge, absent an express adverse credibility determination from the IJ. The Supreme Court reversed that judgment upon the second basis for granting the petition. On remand, the Ninth Circuit again granted Alcaraz’s petition for review in part, citing the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom. The court remanded for a hearing that comports with the requirements of 8 U.S.C. 1229a(b)(4)(B), expressing no opinion on whether Alcaraz is entitled to withholding of removal. View "Alcaraz-Enriquez v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal. The panel addressed the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), and held that California Penal Code 273a(a) does not qualify as a crime of child abuse, child neglect, or child abandonment.The panel concluded that the text of 8 U.S.C. 1227(a)(2)(E)(i) unambiguously forecloses the BIA's interpretation of "a crime of child abuse, child neglect, or child abandonment" as encompassing negligent child endangerment offenses. The panel noted that, while several of its sister circuits have deferred to the BIA's decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the panel found those decision both distinguishable and unpersuasive. The panel explained that, because section 273a(a) criminalizes conduct that falls outside the generic federal definition, it is not a categorical match for "a crime of child abuse, child neglect, or child abandonment." View "Diaz-Rodriguez v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's motion to reopen based on changed country conditions. Petitioner fears persecution if he is deported to Iran based on his Christian faith.The panel concluded that, because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. Furthermore, even if it does, the first exception to the law-of-the-case doctrine applies to petitioner's case. After reviewing the record, the panel concluded that the prior panel's decision, which was unsupported by substantial evidence, was clearly erroneous and enforcing it against petitioner would be unjust. In this case, the prior panel ignored the IJ's factual and legal errors; the prior panel accepted the IJ's incorrect application of the falsus maxim; and the prior panel accepted the IJ's violation of Kamalthas v. INS, 251 F.3d 902 (7th Cir. 2000). The panel also concluded that petitioner had not waived any challenge to the Board's interpretation of 8 U.S.C. 1003.2(c)(1), and determined on de novo review that petitioner was not required to include a new application for relief when he had previously submitted an application for relief based on his religious persecution claim. Finally, the panel concluded that the Board abused its discretion in determining that plaintiff failed to establish changed country conditions or prima facie eligibility for CAT relief. Accordingly, the panel remanded for further proceedings. View "Etemadi v. Garland" on Justia Law

Petitioner sought review of the BIA's decision dismissing his due process claims, the denial of his motion to terminate, and the denial of his application for withholding or deferral of removal under the Convention Against Torture (CAT). In this case, the IJ determined that petitioner was not competent to represent himself in removal proceedings; appointed a qualified representative; denied petitioner's motion to terminate; and found petitioner removeable for an aggravated felony.The Ninth Circuit dismissed petitioner's due process claims and denied his petition for review. The panel concluded that, given the record in this case, the IJ's safeguards sufficed to provide petitioner with due process such that termination of the proceedings was not required. The panel also concluded that amicus counsel's fact-based disagreements with the IJ's discretionary "particularly serious crime" determination are unexhausted and unreviewable. Finally, the panel concluded that the evidence does not compel reversal of the BIA's denial of deferral or removal under CAT. View "Benedicto v. Garland" on Justia Law

On rehearing en banc, the court held that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and overruled the court's prior precedent establishing and applying it. The single factor rule required the court to sustain an adverse credibility determination from the BIA, so long as one of the agency's identified grounds was supported by substantial evidence. The panel remanded to the three-judge panel to re-examine the petition for review in light of the court's clarification of the standard for reviewing the BIA’s adverse credibility determinations. View "Alam v. Garland" on Justia Law

The Ninth Circuit denied the petition for review challenging the BIA's order denying petitioner's application for withholding of removal and relief under the Convention Against Torture (CAT). The panel also affirmed the BIA's refusal to allow petitioner to seek asylum in light of the reinstatement of his prior order of removal. The panel concluded that petitioner does not have the right to seek asylum under the INA, and he did not have a constitutional right to have DHS consider whether, as a discretionary matter, to overlook his prior removal order and thereby allow him to seek asylum.The panel concluded that there is no basis for upsetting the BIA's denial of petitioner's application for withholding of removal. The panel explained that because the BIA's finding of changed circumstances was sound and sufficient to rebut the presumption of future persecution on account of petitioner's perceived sexual orientation, there is no need to address the BIA's finding that he could safely relocate within El Salvador; where the IJ concluded that it was not more likely than not that petitioner would be persecuted if he returned to El Salvador on the basis of his anti-gang beliefs, the record does not compel a different conclusion; and the panel rejected petitioner's claims that he would be persecuted on account of his membership in several other social groups. In regard to CAT relief, the panel concluded that there was no error in the IJ's finding that petitioner was not likely to face torture in El Salvador for the same reasons he was not likely to face persecution for withholding purposes. View "Iraheta-Martinez v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the district court's grant of summary judgment in favor of the Government on petitioner's United States citizenship claim. The panel concluded that petitioner failed to present sufficient evidence to permit a rational trier of fact to find, by a preponderance of the evidence, that his parents obtained a legal separation, as required for him to derive U.S. citizenship under former section 321(a) of the Immigration and Nationality Act (INA). Even assuming arguendo that they did divorce and that petitioner's parents thereafter had a legitimate de facto union that would be recognized under Peruvian law, petitioner nonetheless failed to present sufficient evidence to establish that his parents were legally separated under Peruvian law. Because petitioner's petition for review presents no other grounds for avoiding his removal to Peru, the panel denied the petition. View "Giha v. Garland" on Justia Law

Rodriguez-Ramirez, a citizen of El Salvador testified that he fled to the U.S. in 2016, days after gang members threatened him outside his daughter’s school; he reported this threat to the local prosecutor, who prepared a report based on the information Rodriguez-Ramirez provided. Rodriguez-Ramirez did not provide any other corroborating evidence. The IJ relied on two inconsistencies: despite Rodriguez-Ramirez’s testimony that this threat occurred in February 2016, the report he provided from the prosecutor twice stated, on different pages, that the threats occurred in January 2016 and Rodriguez-Ramirez testified that the gang members showed him a weapon but he did not provide this information to the prosecutor or in his written asylum application. The IJ found that Rodriguez-Ramirez did not have a convincing explanation for the discrepancy. An adverse credibility determination was also supported by the IJ’s demeanor findings. The BIA dismissed an appeal from the denial of his application for asylum and withholding of removal.The Ninth Circuit denied a petition for review. The BIA and IJ were permitted to afford substantial weight to inconsistencies that “bear[] directly on [Rodriguez-Ramirez]’s claim of persecution.” The IJ was not required to give Rodriguez-Ramirez notice and an opportunity to provide additional corroborating evidence because substantial evidence supports the adverse credibility determination. View "Rodriguez-Ramirez v. Garland" on Justia Law