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

The Ninth Circuit denied petitions for review of the BIA's decision affirming the IJ's denial of petitioner and his family's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel clarified the law concerning implausibility findings and explained that inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence. An IJ must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture. Furthermore, the IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing. The cited evidence in the record, including a witness's own testimony, need not conclusively establish that the witness's testimony is false, and the IJ's implausibility finding will ultimately hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense.In this case, the panel concluded that substantial evidence supports the agency's implausibility findings with respect to petitioner's testimony and its finding that petitioner's wife was evasive and nonresponsive. The panel did not consider the Board's alternative holding that assumed petitioner was credible. The panel concluded that the record does not compel the conclusion that the adverse credibility determination was erroneous or that the agency erred in denying petitioner and his family withholding of removal and CAT protection. View "Lalayan v. Garland" on Justia Law

DHS took B.R. into custody while he was still a minor, issued him a Notice to Appear (NTA), and initiated removal proceedings against him. After B.R. was released and while those proceedings were ongoing, he sold methamphetamine to an undercover federal officer. B.R. was incarcerated and was ordered removed. On appeal, B.R. petitions for review of the BIA's dismissal of his appeal from the IJ's final order of removal and denial of his application for deferral of removal under the Convention Against Torture.The Ninth Circuit rejected B.R.'s claims that DHS effected improper service of the NTA, depriving the immigration court of jurisdiction, and that DHS should not have been permitted to cure that service violation. Rather, the panel concluded that the IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS's defective service prejudiced the alien's interests. In this case, DHS cured its defective service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Furthermore, the panel's holding in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien’s custodian at the very moment the alien is released from its custody.The exclusionary rule is generally not available in immigration proceedings, but the panel held that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government’s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. Therefore, the panel granted B.R.'s petition on this issue and remanded for further development of the record. Finally, in the interest of judicial economy, in the event DHS is able to prove B.R.'s alienage on remand, the panel rejected his assignments of error as to his CAT claim. Accordingly, the panel granted in part, denied in part, and remanded for further proceedings. View "B. R. v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

In 1980, Posos crossed the U.S. border without inspection. The 1986 Immigration Reform and Control Act, 8 U.S.C. 1255a, provided a path to permanent resident status for noncitizens who had resided unlawfully and been physically present in the U.S. since January 1982. In 1988, Posos obtained a temporary resident card that expired in November 1990. In September 1990, Border Patrol agents stopped Posos at a San Clemente border patrol checkpoint, examined his immigration papers, and let him proceed. In 1993, Posos was notified that his application for temporary resident status was denied. Posos was removed in 2010. Posos tried to reenter but was detained. His notice of removal proceedings failed to state the date and time of Posos’s hearings. Subsequent notices supplied that missing information. Posos sought adjustment of status under 8 U.S.C. 1255(a), cancellation of removal under 1229b, and voluntary departure under 1229c, arguing that immigration officials had “admitted” him to the U.S. in 1990The Ninth Circuit remanded. Posos is removable and ineligible to adjust his status. Unless an immigration official has inspected a noncitizen at a port of entry and then granted that noncitizen permission to enter the U.S., that noncitizen has not been “admitted.” The 1990 incident did not occur at a port of entry. Because of the missing date-and-time information, his removal did not stop the clock for purposes of computing the time during which he was physically present under section. 1229c(b)(1)(A). Posos accrued five years of physical presence and was eligible for voluntary departure if he satisfies the other statutory conditions. View "Posos-Sanchez v. Garland" on Justia Law

This action involves the 1997 settlement agreement (the Flores Agreement) between the United States and a class of minors subject to detention by U.S. immigration authorities. The district court issued two orders enforcing the consent decree incorporating the Flores Agreement. The orders enjoined DHS from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States due to the COVID-19 pandemic (Title 42 Order).As a preliminary matter, the panel concluded that this appeal was not moot. The panel also concluded that the district court's second order (the September 21, 2020 Order) was a final decision for purposes of 28 U.S.C. 1291, and thus the panel has jurisdiction to review it.On the merits, the panel rejected the government's contention that the district court erred in concluding that the Agreement applies to minors held in custody pending their expulsion under the Title 42 Order. The panel concluded that it is clear that DHS, rather than the CDC, both maintains physical control and exercises decision-making authority over the minors held in hotels under Title 42. Therefore, the district court did not modify the Agreement in concluding that minors held under Title 42 are in DHS's custody for purposes of the Agreement or thus by applying the Agreement to those minors. The panel also concluded that nothing in the record establishes that the COVID-19 pandemic impedes or prevents the government from placing minors in licensed programs within three days. The panel need not decide whether the district court correctly applied the Agreement's "safe and sanitary" requirement because the September 21 Order eliminates the practical import of the district court's finding on that issue. Finally, the panel rejected the government's contention that the risk of harm to the United States and the public necessitates reversing the district court's orders. The panel explained that it has already held that the government has not demonstrated that complying with the district court's orders will cause irreparable harm. Accordingly, the panel affirmed the September 21, 2020 Order. View "Flores v. Garland" on Justia Law

The Ninth Circuit concluded that the IJ failed to evaluate the factors weighing in favor of granting petitioner voluntary departure. In this case, the IJ did not consider any positive factors weighing in support of voluntary departure, such as petitioner's arrival in the United States at a young age and his long-term residency without departure, even though the IJ mentioned these factors elsewhere in its opinion. Nor did the IJ mention petitioner's claims regarding mitigating circumstances with respect to his criminal convictions. Accordingly, the panel granted the petition for review and remanded for further proceedings.The panel concluded that, given the fear of starting a new life in a new country was petitioner's only stated fear, petitioner did not raise a reasonable possibility that he may be eligible for asylum or withholding of removal that would trigger the IJ's duty to inform petitioner of his apparent eligibility to apply for such forms of relief; the IJ did not err under 8 C.F.R. 1240.11(a)(2) by failing to advise him of his apparent eligibility for adjustment of status through U nonimmigrant status because U nonimmigrant status is not a Chapter V benefit; the IJ's failure to address the U nonimmigrant form of relief did not violate section 1240.11(a)(2); and petitioner failed to exhaust his claim regarding the IJ's duty to advise him of Deferred Action for Childhood Arrivals (DACA) relief and the panel lacked jurisdiction to consider the procedural challenge. In regard to petitioner's statutory and constitutional claims, the panel held that the IJ did not violate his duty to sufficiently explore for all facts relevant to asylum, withholding of removal, and U nonimmigrant status, and to inform petitioner of what evidence he needed to establish these claims. The panel rejected petitioner's remaining arguments that the agency erred in failing to develop other bases for relief. View "Angeles Zamorano 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 of removal and denial of his application for cancellation of removal.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. Applying that approach to petitioner's case, the panel concluded that the circumstances specific here clearly establish that petitioner knowingly possessed more than thirty grams of marijuana. In this case, the police report is detailed, is internally consistent, and records observations of fact rather than the officers' conclusions. The report states that the "green leafy material" found in the three bags "tested positive for marijuana," and provides the precise weight of each. Given that petitioner did not specifically contest the measurements of quantity in the report, holding such a report to be insufficient would be essentially the same as holding that no police report is sufficient, standing alone, to demonstrate that a petitioner possessed more than thirty grams of marijuana. The panel declined to adopt such a categorical rule. Therefore, viewing the circumstances together, the evidence clearly establishes that petitioner possessed more than thirty grams of marijuana. View "Bogle v. Garland" on Justia Law

In 1993, Kaur’s parents arranged her marriage to Singh, an abusive alcoholic. They moved to the Philippines, where Singh’s abuse worsened. Their first three children were girls, which angered Singh, who tried to force her to abort her third pregnancy. In 2001, Kaur and one of her daughters entered the U.S. on visitor visas. , Kaur gave birth to a son. Singh and another daughter arrived in the U.S. later in 2001. Singh continued to abuse Kaur and the children. Neighbors called the police several times, but Singh forced Kaur to lie. Singh was deported in 2007, after a DUI arrest. Singh died in 2013 from alcohol-related illnesses. Kaur's in-laws told her that if she returned to India, they would have her killed.In 2001, Kaur and Singh had applied for asylum. Kaur’s asylum application falsely stated that militants in the Philippines had raped her. The application was denied. Kaur filed four motions to reopen. The final unsuccessful motion asserted material changed circumstances arising in Kaur’s country of nationality under 8 C.F.R. 1003.2(c)(3)(ii).The Ninth Circuit remanded. Kaur’s personal circumstances in India changed in a way entirely outside her control and, relatedly, violence against women has materially increased in India. These situations together constitute changed country circumstances. The BIA also erred in its analysis of whether Kaur established a prima facie case for asylum, withholding of removal, and protection under the Convention Against Torture. View "Kaur v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of deferral of removal under the Convention Against Torture (CAT). In this case, Michoacán state police arrested and brutally tortured petitioner until she confessed to the kidnapping and murder of a five-year old boy. After her charges were dismissed, she fled to the United States.The panel held that the BIA erred by reviewing the IJ's decision de novo, rather than for clear error, and concluded that the record compelled the determination that petitioner met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico. The panel explained that, reviewed under the proper standard, the IJ's factual findings were not erroneous where the IJ found that the Michoacán state police tortured petitioner, and the revived arrest warrant guaranteed she would be placed back in custody of the Michoacán state police, who previously tortured her, precluding relocation. Furthermore, the state police officers specifically threatened to torture petitioner again if she reported their misconduct—which she did. Finally, the IJ considered the country condition reports showing an increased threat of torture for indigenous women. The panel remanded for the BIA to grant deferral of removal pursuant to the CAT. View "Soto-Soto v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of sua sponte reopening petitioner's immigration proceedings based on the departure bar provision in 8 C.F.R. 1003.23(b)(1). Petitioner argued that an IJ should not be prevented from reopening a noncitizen's case on the IJ's own motion based solely on the noncitizen's departure during or after prior proceedings.The panel joined the Tenth Circuit and held that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ's discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, the BIA erred in determining that the departure bar prevented the IJ from reopening petitioner's immigration proceedings sua sponte. The panel remanded to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible. View "Balerio Rubalcaba v. Garland" on Justia Law