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

Matias, a native of El Salvador, unlawfully entered the U.S. in 2014. El Salvadoran authorities considered him a member of MS-13, a violent gang. In Maryland, Matias pleaded guilty to assault in the first degree after being involved in a shooting that authorities determined was retaliation for MS-13 gang activity, and identified Matias as an MS-13 “affiliate.” ICE detained Matias in 2018. Matias requested to be housed with a gang aligned with MS-13. An IJ denied him bond and later denied Matias relief under the Convention Against Torture (CAT) and ordered him removed. The Board of Immigration Appeals dismissed his appeal. The Ninth Circuit denied his petition for review in 2021.Matias moved the BIA to reopen his case so that it could consider “new developments” regarding his request for CAT relief: claimed political changes in El Salvador and an alleged text from an MS-13 gang member labeling him a “snitch” and saying he will be killed if he returns to El Salvador. The BIA denied his request for an emergency stay. Matias filed a habeas petition, asking the court to enjoin the government from removing him until the BIA ruled on his motion to reopen. The district court denied his motion. The Ninth Circuit agreed with the district court, which denied Matias’s motion for a temporary restraining order, determining that 8 U.S.C. 1252(g)’s jurisdictional limits barred his claims. View "Rauda v. Jennings" on Justia Law

Sanchez-Ruano, a citizen of Mexico, was admitted into the U.S. in 1995 as a visitor. He overstayed and has amassed criminal convictions including for possessing marijuana, receiving stolen property, DUI, and being the driver in two hit-and-runs. In 2013, he was charged with removability under 8 U.S.C. 1227(a)(1)(B) for remaining in the country longer than permitted. He requested a continuance pending the status of his U Nonimmigrant Status application. After numerous continuances, his U-visa application was denied. The IJ found Sanchez-Ruano statutorily ineligible for cancellation of removal due to his conviction for marijuana possession, 8 U.S.C. 1182(a)(2). Sanchez-Ruano argued that, given his previous admittance, section 1182(a)(2) did not apply to him for the purposes of cancellation of removal and that the personal use exception for violations involving 30 grams or less of marijuana under section 1227(a)(2)(B)(i) rendered him eligible for cancellation of removal. The BIA dismissed his appeal without analyzing his argument.The Ninth Circuit denied a petition for review. Aliens who have been admitted and commit certain crimes are deportable under section 1227(a); section 1229b(b)(1)(C) bars cancellation of removal if an alien has been convicted of “an offense under” sections 1182(a)(2), 1227(a)(2), or 1227(a)(3). Given Sanchez-Ruano’s conviction of an offense described under 1182(a)(2), the BIA correctly determined that he was statutorily ineligible for cancellation. View "Sanchez-Ruano v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT).The panel agreed with the agency's determination that petitioner did not establish eligibility for withholding of removal on account of his political opinion. Although petitioner did not present his social group claim to the agency, the panel concluded that it may consider it now because presenting it to the agency would have been futile. The panel also concluded that the agency failed to consider certain evidence in the record showing that it is more likely than not that petitioner would be tortured if removed to El Salvador. In this case, the exhaustion requirement contains an exception for cases in which exhaustion would be futile, the futility exception is satisfied here, and the agency's treatment of claims of persecution based on imputed gang membership is legally flawed. The panel remanded for the BIA to consider in the first instance petitioner's social group claim based on his perceived gang membership, and to reconsider petitioner's CAT claim. View "Vasquez-Rodriguez v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision concluding that petitioner was inadmissible under 8 U.S.C. 1182(a)(6)(C)(ii) for making a false representation of U.S. citizenship for a purpose or benefit under Nevada law. The panel held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the clearly and beyond doubt burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. The panel remanded for the BIA to apply the preponderance of the evidence standard. View "Romero v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision concluding that petitioner is removeable under 8 U.S.C. 1227(a)(2)(A)(ii) because his two prior convictions for violating Hawaii’s fourth degree theft statute, Haw. Rev. Stat. 708-833(1), constitute crimes involving moral turpitude (CIMTs).The panel applied the categorical approach and held that section 708-833(1), a petty misdemeanor involving property valued at less than $250, is overbroad with respect to the BIA's definition of a CIMT. The panel explained that Hawaii's definition of "theft" does not always require the government to prove the defendant acted with an intent to permanently deprive or substantially erode the owner’s property rights. Furthermore, section 708-833(1) is indivisible because it proscribes one crime that can be committed eight different ways, not eight distinct crimes. Accordingly, the BIA erred in concluding that petitioner's section 708-833(1) convictions were CIMTs rendering him removable. View "Maie v. Garland" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of plaintiff's complaint challenging USCIS's denial of her application for naturalization because the complaint did not plausibly plead that plaintiff had not been convicted of an offense that involves fraud or deceit in which "the loss to the victim or victims exceeds $10,000," 8 U.S.C. 1101(a)(43)(M)(i), and therefore had the requisite good moral character.The panel concluded that under the "circumstance-specific" approach to the monetary threshold in section 1101(a)(43)(M)(i), the district court is not limited to reviewing the record in the applicant's criminal case in determining the "loss to the victim." Nevertheless, the panel concluded that the complaint here cannot survive a motion to dismiss, because it does not plausibly allege that the loss to the victim of the applicant's criminal offense did not exceed $10,000. In this case, plaintiff failed to state a plausible claim that the total loss to the victim of her violation of section 550(b)(3) of California Penal Code did not exceed $10,000 and thus she failed to plausibly allege that she was not convicted of an aggravated felony under section 1101(a)(43)(M)(i) and USCIS did not err in ruling that she failed to meet the good moral character requirement for naturalization. View "Estella Orellana v. Mayorkas" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying cancellation of removal to petitioner.The panel incorporated by reference the factual and procedural background of Marinelarena I that conspiracy under California Penal Code 182(a)(1) is overbroad but divisible as to the target crime, and that sale and transport of a controlled substance under California Health and Safety Code 11352, is overbroad and divisible as to controlled substance. The panel concluded that Pereida v. Wilkinson, 141 S. Ct. 754 (2021), is consistent with Marinelarena I, and that Petitioner failed to establish that her conviction did not involve a federally controlled substance. In regard to divisibility, the panel noted that no developments in the California Supreme Court since Marinelarena I undermined the panel's earlier divisibility analysis, and that the jury instructions relating to the conspiracy offense, as well as petitioner's underlying statute of conviction, support divisibility. In regard to the burden of proof, the panel explained that Marinelarena I is consistent with the Supreme Court's decision in Pereida and that petitioner failed to establish that her conviction did not involve a federally controlled substance. The panel declined petitioner's invitation to remand to present additional evidence. Finally, the panel reaffirmed its conclusion that a conviction expunged under CPC 1203.4 remains a "conviction" for federal immigration purposes. View "Marinelarena v. Garland" on Justia Law

The Ninth Circuit withdrew its prior opinion and filed a new opinion concurrently with this order. The panel denied defendant's petition for rehearing en banc as moot.The panel reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing.The panel concluded that defendant's argument is foreclosed by United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021). Therefore, the panel held that defendant has failed to show that he can satisfy the section 1326(d) requirements based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section 1326(d). Accordingly, the panel remanded for further proceedings. View "United States v. Gonzalez-Valencia" on Justia Law

The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border. View "Whitewater Draw Natural Resource Conservation District v. Mayorkas" on Justia Law

An adult citizen lacks a constitutionally protected liberty interest, protected by the Fifth Amendment's Due Process Clause, in the Government's decision whether to admit the citizen's unadmitted nonresident alien parent into the United States.The Ninth Circuit affirmed the district court's dismissal, based on failure to state a claim, of a civil action brought by plaintiff, a Russian citizen, and his adult son, a U.S. citizen, challenging the government's decision to deny plaintiff an immigration visa.The panel held that, because plaintiff is an unadmitted and nonresident alien, he has no cause of action to challenge the visa denial, and his claims were properly dismissed. Where the son claims that his Fifth Amendment right to due process was violated by the denial of his father's visa because a consular officer allegedly denied that visa in bad faith, the panel agreed that the son's complaint pleads sufficient facts with particularity to raise a plausible inference that plaintiff's visa was denied in bad faith. Nevertheless, the panel concluded that the district court properly dismissed the son's claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father. View "Khachatryan v. Blinken" on Justia Law