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

Reyes, a native of Colombia, entered the U.S. on a visitor’s visa in 1989. Reyes had numerous criminal arrests and convictions, including indecent exposure convictions in 2007 and 2008. In 2009, Reyes married a U.S. citizen and adjusted his status through an application that his wife filed on his behalf. In 2011, Reyes was again charged with indecent exposure and pleaded no contest to a felony. He was sentenced to eight months in jail and three years probation. In 2014, he pleaded no contest to an additional felony for violation of the same California indecent exposure statute and was sentenced to 16 months in prison and three years of parole. In 2015, the government initiated removal proceedings. Relying on the 2011 and 2014 convictions, the government charged Reyes with being subject to removal under 8 U.S.C. 1227(a)(2)(A)(ii) as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. He argued that his convictions were not categorically crimes involving moral turpitude and submitted applications for relief from removal.The BIA rejected his argument. The Ninth Circuit granted a petition for review. The BIA erred in retroactively applying its 2013 precedent to change the legal consequences of Reyes’s 2011 conviction. View "Reyes-Afanador v. Garland" on Justia Law

Addressing two petitions for review, the Ninth Circuit held that noncitizens at reasonable fear hearings before an immigration judge (IJ), including noncitizens whose removal orders have been reinstated, are statutorily entitled to counsel. The court noted that 8 U.S.C. 1362 provides that noncitizens shall have the privilege of being represented (at no expense to the government), by counsel of their choosing in "any removal proceedings" before an IJ and in any appeal proceedings before the Attorney General.Absent exceptional circumstances, denying a continuance despite the noncitizen’s inability to retain counsel within 10 days (the mandatory time for an IJ review hearing under 8 C.F.R. 208.31(g)) is not a denial of this entitlement if the asylum officer notified the noncitizen of the negative fear determination and the noncitizen requested IJ review and informed the noncitizen of the opportunity to have counsel, such as by providing a list of legal service providers. The statutory entitlement to counsel does not mean that a noncitizen must have counsel before an IJ can proceed, but only that a noncitizen must at least be informed and have an opportunity to seek counsel within section 208.31(g)(1)’s constraints. A noncitizen may waive the right to counsel, but such waiver must be knowing and voluntary. The court rejected additional due process arguments concerning the noncitizen’s hearing difficulties and the IJ’s failure to call a witness by telephone. View "Orozco-Lopez v. Garland" on Justia Law

Munyuh, a Protestant and anglophone, taught physical education in Cameroon before fleeing to the U.S. She was tortured by police, who suspected her of membership in the SCNC, an anglophone separatist group, and escaped with the help of her husband. Her 14-year-old son and husband still live in Cameroon. She was denied asylum and related relief on adverse credibility grounds.The Ninth Circuit vacated the order of removal and remanded. The immigration judge erred by failing to give specific, cogent reasons for rejecting Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration concerning the distance she traveled in a police truck before escaping on foot after officers raped her and being rescued by her husband. The IJ further erred by discounting Munyuh’s supporting documentation without giving her adequate notice and the opportunity to provide corroborative evidence. The “IJ seemed determined to pick every nit she could find” and discounted probative evidence on flimsy grounds, displaying “a dubious understanding of how rape survivors ought to act.” View "Munyuh v. Garland" on Justia Law

Plancarte, a licensed nurse from Mexico, obtained the position after the Mayor of Arteaga recommended her to the director of the hospital “because I had treated cartel members before in silence and the Mayor wanted” her to continue to work on cartel members. Plancarte recounted incidents during which armed men forcibly took her to “treat” people. She saw violence and rape; her family was threatened with violence. During one incident, a man “snatched” Plancarte’s infant son from her arms; another man pointed his gun at her mother and her son. Another time, they beat her until she bled, kidnapped her son, and forced her into a vehicle; after complying with their orders, she got her son back and fled to the U.S.The BIA affirmed the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit remanded for a determination of whether the likelihood of torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief. The Board’s rejection of Plancarte’s proposed particular social group of “female nurses” on the ground that “nursing” is not an immutable characteristic was unreasonable. Even if Plancarte ceased employment as a nurse, she would still be a nurse; the cartel targeted Plancarte precisely because of her special skills. The Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. View "Plancarte-Sauceda v. Garland" on Justia Law

The Ninth Circuit previously granted a petition for review of the BIA's denial of asylum and withholding where Dai, a citizen of China, alleged that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. The court held that neither the IJ nor the BIA made a finding that Dai's testimony was not credible.The Supreme Court held that the “deemed-true-or-credible rule” was irreconcilable with the Immigration and Nationality Act, which provides that a reviewing court must accept administrative findings as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. If the BIA’s reasons for rejecting an alien’s credibility are reasonably discernible, it must be understood as having rebutted the presumption of credibility.On remand, the Ninth Circuit reversed its prior order, finding that the BIA implicitly considered Dai’s statutory rebuttable presumption of credibility on appeal to have been conclusively rebutted. By statute, an alien must satisfy the trier of fact that his factual claim is credible and also persuasive. Even if the BIA treats an individual’s testimony as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof. The agency’s findings of fact and conclusions are demonstrably reasonable; no reasonable adjudicator would be compelled to conclude to the contrary View "Dai v. Garland" on Justia Law

The Ninth Circuit granted in part and denied in part a petition challenging the BIA's finding that petitioner's conviction for theft of a vehicle under California Vehicle Code 10851(a) is an aggravated felony, which renders him ineligible for certain forms of relief. The panel has held, and the parties do not dispute, that section 10851(a) is overbroad because it criminalizes a broader swath of conduct than the generic theft offense.Applying the framework described in Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016), the panel held that section 10851(a) is indivisible in its treatment of accessories after the fact. Because section 10851(a) does not categorically match the generic theft offense, a conviction under section 10851(a) is not an aggravated felony. The panel overruled Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), on the ground that it was irreconcilable with Mathis. Therefore, in petitioner's case, he has not been convicted of an aggravated felony and the panel remanded for consideration of his requests for asylum and cancellation of removal. In a concurrently filed memorandum, the panel denied petitioner's requests for withholding of removal and relief under the Convention Against Torture. View "Lopez-Marroquin v. Garland" on Justia Law

Sharma entered the U.S. in 1997, on a nonimmigrant visitor visa. In 2011, he was charged as removable. Sharma sought asylum, withholding of removal, and relief under the Convention Against Torture, alleging that he had been threatened by the Senior Superintendent of the Ludhiana, Punjab Police, Saini, based on Sharma’s investigation of the disappearance of Sharma's client. In 1997, days after a protest against Saini, police came to Sharma’s office, took Sharma’s files, tied Sharma’s hands, blindfolded him, put him in a van, and made threats, By phone, Saini told Sharma to “worry about [his] family,” and if he continued to investigate the disappearance. Sharma’s captivity lasted 18-19 hours. He does not identify any resulting physical injuries.After he left India, the police “initially harassed” Sharma’s wife. As of Sharma’s hearing, Saini worked as Chairman of the Punjab Police Housing Corporation. Sharma’s daughters live in Australia, Sharma’s wife splits her time between India, Australia, and the U.S.. Sharma’s son lives in India. None of Sharma’s family members has ever been physically harmed. The IJ found Sharma’s application timely, given changed circumstances, and his testimony “generally” credible but concluded that Sharma’s past harm did not rise to the level of persecution. The IJ denied voluntary departure based on Sharma’s 2011 DUI conviction. The BIA affirmed. The Ninth Circuit denied a petition for review. Sharma failed to establish a well-founded fear of future persecution, given the family’s “travel history.” View "Sharma v. Garland" on Justia Law

Sura served in the Salvadoran Army and helped local police arrest gang members, including members of MS-13. In February 2016, MS-13 members told him that they had an order for him to disappear. He did not report it to the police because he was concerned that some police officers were also MS-13 members. Sura continued his military service until it was completed, later testifying that he did not want to be AWOL. In May 2016, four men were murdered five kilometers from where Sura was stationed. According to an Interpol Red Notice, an arrest warrant was issued for Sura and others asserting that they murdered four MS-13 gang members.Sura entered the U.S. months later and was removed after stating that he had no fear of returning to El Salvador. Eight days later, he re-entered and was placed in withholding-only proceedings after expressing a fear of returning to El Salvador. Sura applied for withholding of removal and relief under the Convention Against Torture. Sura denied any prior knowledge of either arrest warrant and any role in the murders. Sura testified that he feared returning to El Salvador and being placed in custody based on false charges, where he would be vulnerable to MS-13 and his former colleagues who framed him.The IJ ordered Villalobos Sura removed, finding him statutorily ineligible for withholding of removal under the serious nonpolitical crime bar. The IJ found Sura’s testimony insufficiently credible and that the isolated threat did not amount to past persecution. The BIA affirmed. The Ninth Circuit denied a petition for review. The Interpol Red Notice, among other evidence, created a serious reason to believe Sura committed a serious nonpolitical crime before entering the U.S., rendering him ineligible for withholding of removal. View "Villalobos-Sura v. Garland" on Justia Law

Flores-Rodriguez, a Mexican citizen, entered the U.S. without inspection in 1989 when he was two years old. Arrested by DHS in 2010, he stated that he was a citizen and had a U.S. birth certificate. He later sought adjustment of status based on his marriage to a U.S. citizen and claimed he never knowingly made a false claim, having been raised to believe he was a citizen. At a 2012 hearing, the IJ stated that, if DHS pursued a false claim of citizenship charge, and that charge was sustained, Flores-Rodriguez would not be eligible for adjustment. At a 2014 hearing, the IJ recommended that Flores-Rodriguez testify on that issue. Flores-Rodriguez did so; Flores-Rodriguez’s wife and brother also testified. The IJ and BIA concluded that Flores-Rodriguez was ineligible for adjustment.The Ninth Circuit granted a petition for review. Flores-Rodriguez was not put on notice that his alleged false claim of citizenship would be at issue in his 2014 hearing. By then, his alleged false claim of citizenship had not been raised by the IJ for two years; the last time it had been discussed the IJ implied it would only be dispositive if DHS sustained a charge against him, but no charge was ever brought. Because Flores-Rodriguez was not given notice, his attorney was not prepared to discuss it; he was unable to submit testimony from his purported midwife, a copy of his U.S. birth certificate, or his parents’ testimony. View "Flores-Rodriguez v. Garland" on Justia Law

Guerrier, a citizen of Haiti, does not speak English. Guerrier entered the U.S. unlawfully. He was apprehended and issued an expedited removal order. He was referred to an asylum officer for a credible fear interview, during which he agreed to proceed without an attorney. After the interview, he asked for a list of lawyers. The asylum officer found that Guerrier failed to establish a credible fear of persecution. Guerrier requested review by an immigration judge (IJ). Guerrier appeared without counsel, stating that he had not received a list of lawyers. The IJ stated that he was not entitled to representation and that he had already received the list of attorneys as an attachment to the paperwork for the review. Guerrier responded, “Maybe I did not see it. I don’t know if it’s the fact that I don’t speak English that I don’t understand it ... I don’t understand what’s going on.” The IJ responded, “that’s not something that I can control,” and proceeded with the hearing, ultimately agreeing with the negative credible fear decision. He entered an order for expedited removal.Guerrier acknowledged that courts typically lack jurisdiction to review direct challenges to expedited removal orders but argued that he raised a colorable constitutional claim. The Ninth Circuit dismissed his petition for review. The Supreme Court’s 2020 “Thuraissigiam” holding abrogated any “colorable constitutional claim” exception to the jurisdictional limits on reviewing challenges to expedited removal orders, 8 U.S.C. 1225(b)(1)(B)(iii)(I). View "Guerrier v. Garland" on Justia Law