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

The Ninth Circuit denied a petition for review of the BIA's final order of removal. At issue is whether the government must carry its burden of proving that a returning LPR meets one of the six exceptions under 8 U.S.C. 1101(a)(13)(C) before it paroles that LPR into the United States under section 1182(d)(5).The panel deferred to a precedential opinion issued by the BIA, Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012), and held that the government may exercise its discretion to parole a returning LPR into the United States for prosecution without carrying its burden of proving that the LPR falls within one of the six exceptions. The government must, however, carry its burden of proof in subsequent removal proceedings if any ensue. In this case, when petitioner arrived at LAX, the CBP exercised its discretion to parole him into the United States for prosecution; the panel explained that it does not second-guess the CBP's decision to do so; petitioner then pleaded guilty to a crime involving moral turpitude; and, at subsequent removal proceedings, the government properly relied on petitioner's conviction to carry its burden of proving by clear and convincing evidence that he could be regarded as an alien seeking an admission into the United States under section 1101(a)(13)(C)(v). Therefore, petitioner was properly subjected to a charge of inadmissibility. View "Vazquez Romero v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the denial of deferral of removal under the Convention Against Torture (CAT). Petitioner's CAT claim was based on the physical abuse she experienced by her former domestic partner in Jamaica.The panel held that the record does not compel a finding that it is more likely than not that petitioner will suffer future torture if returned to Jamaica. In this case, a Jamaican court issued a protective order and the former partner has left her household. The panel also held that the IJ appropriately considered all of petitioner's evidence, including her country reports and whether she could safely relocate if returned to Jamaica. The panel explained that the circumstances of Jamaican women in general do not vitiate the agency's specific findings as to petitioner's situation with her former partner. While country conditions include generalized domestic violence against women, the panel stated that this does not compel a conclusion that petitioner will more likely than not be subjected to violence from her former partner or his associates. View "Dawson v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the Board's final order denying petitioner's request to reconsider the Board's November 14, 2016, denial of his derivative citizenship claim. The panel concluded that petitioner does not meet the third condition of 8 U.S.C. 1432(a) and does not automatically derive U.S. citizenship from his father. The panel explained that Congress did not intend for this type of nunc pro tunc order, one untethered from the facts as they were during petitioner's childhood, to give rise to automatic derivative citizenship under section 1432(a). The panel rejected the expansive view of nunc pro tunc power; agreed with the First and the Fifth Circuits that a strictly federal ground provides a basis for rejecting petitioner's argument; and also agreed with the First and the Fifth Circuits that "recognizing the nunc pro tunc order in the present case would in substance allow the state court to create loopholes in the immigration laws on grounds of perceived equity or fairness."Therefore, the panel held that where it has not been proven that a custody order was entered in error, was contrary to law, or otherwise did not reflect the true legal relationship between a petitioner's parents, a nunc pro tunc order cannot retroactively establish a naturalized parent's sole legal custody for the purposes of section 1432(a). The panel concluded that the 2013 state court order that purportedly nunc pro tunc modified petitioner's parents' 1990 custody arrangement did not retroactively transfer sole legal custody to petitioner's father for the purposes of section 1432(a). View "Padilla Carino v. Garland" on Justia Law

The en banc court held that the second clause of the derivative citizenship statute set out at former 8 U.S.C. 1432(a)(5) does not require that the child have been granted lawful permanent residency prior to the age of eighteen in order to derive citizenship from a parent who naturalized, but the child must have demonstrated an objective official manifestation of permanent residence.The en banc court concluded that the Cheneau panel properly concluded that it was bound under circuit precedent by Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008). Furthermore, the panel properly highlighted the problems in applying the Romero-Ruiz analysis of section 1432(a)(5) in the present context. In reconsidering Romero-Ruiz, the en banc court agreed with Judge Bennett's concurring opinion that Romero-Ruiz must be overruled to the extent that it interpreted "reside permanently" to require lawful permanent resident status. The en banc court remanded to the three-judge panel so that the panel may, in its discretion, apply the revised rule to this case. View "Cheneau v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner and her minor child's motion to reopen. The panel held that exceptional circumstances warranted reopening of their in absentia removal orders.The panel first considered the circumstances that caused petitioner's failure to appear. In this case, petitioner suffers from chronic memory problems that stem from a childhood head injury, so she did not remember what the IJ had told her orally about her next hearing date. Therefore, she relied on the information in the notice of hearing. However, because petitioner cannot read, she asked her family members to read the notice for her, but the new notice, unlike the first one, provided a numerical date for the hearing, "07/12/2016." Petitioner's family interpreted this notation as December 7, 2016, based on how numerical dates in Latin America (and most of the rest of the world) are typically written, with the day appearing before the month. The panel explained that the BIA abused its discretion by concluding that petitioner should have confirmed her hearing date through the immigration court's automated system. Furthermore, the BIA erred in not addressing whether petitioner had any motive for failing to appear and whether the in absentia removal orders would cause unconscionable results. Secondly, the panel concluded that imposing the removal orders would present an unconscionable result. Finally, the panel noted that the IJ entered an in absentia order against petitioner's minor child and thus petitioner's failure to appear prejudiced the child's opportunity for relief as well. Accordingly, the panel remanded for further proceedings. View "Hernandez-Galand v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner was removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. 1227(a)(2)(A)(i).The panel applied the two-step Chevron inquiry, concluding that: (1) the phrase "the date of admission" in section 1227(a)(2)(A)(i)(I) is ambiguous; and (2) the interpretation in Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), of that ambiguous phrase is "a permissible construction of the statute." The panel concluded that Alyazji, and its application in the unpublished BIA decision in this case, meet the requirements for Chevron deference set forth in United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). The panel acknowledged that the Alyazji interpretation of section 1227(a)(2)(A)(i)(I) results in serious consequences when applied to petitioner, who is a Micronesian citizen, because he had less incentive to apply to become a legal permanent resident or naturalize as a United States citizen. View "Route 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 determining that her application for asylum, withholding of removal, and Convention Against Torture (CAT) was abandoned, under 8 C.F.R. 1003.47(c). The IJ's decision was based on petitioner's failure to submit required biometrics or establish good cause for her failure to do so.The panel concluded that the IJ did not abuse its discretion in deeming petitioner's application as abandoned where the IJ twice warned petitioner if she did not provide her biometrics before the next hearing her application would be deemed abandoned, and petitioner did not follow the instructions. Furthermore, petitioner failed to request a continuance before her merits hearing to complete her biometrics and her counsel failed to show good cause for requesting such a continuance. The panel also concluded that the IJ did not abuse its discretion denying petitioner's final request for more time to obtain an attorney. Because petitioner's application for relief was properly found abandoned, the BIA correctly deemed moot any challenge to the denial of petitioner's previous request for a continuance to obtain evidentiary support for her application. Finally, petitioner was not deprived of a neutral arbiter. View "Gonzalez-Veliz v. Garland" on Justia Law

Petitioner, a native and citizen of Honduras, petitioned for review of the IJ's decision affirming the asylum officer's determination that petitioner did not have a reasonable fear of persecution or torture in his home country.The Ninth Circuit dismissed based on lack of jurisdiction petitioner's arguments challenging the validity of his 2013 expedited removal order because they do not fall within any of the categories of reviewable issues, and this is not a habeas corpus proceeding in any event. The panel rejected petitioner's challenges to the legality of the reasonable fear screening process, concluding that the choice to establish a reasonable fear screening process is based on a permissible reading of 8 U.S.C. 1231(a)(5) and 2242 of the Foreign Affairs Reform and Restructuring Act, as it represents a reasonable effort to reconcile the two statutes' competing demands. Furthermore, the reasonable fear screening procedures do not violate the Fifth Amendment's Due Process Clause and substantial evidence supports the IJ's determination that petitioner failed to establish a reasonable fear of persecution on account of a protected ground. However, substantial evidence did not support the IJ's determination that petitioner failed to establish a reasonable fear of torture with the consent or acquiescence of a public official. Therefore, the panel granted in part, denied in part, dismissed in part, and remanded with instructions. View "Alvarado-Herrera v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision, holding that the BIA permissibly concluded that Oregon Revised Statute 164.225 is a crime involving moral turpitude and that precedent forecloses the constitutional vagueness argument. The panel applied the categorical approach and concluded that the Oregon statute is overbroad as to intent and as to the type of structure involved. Furthermore, the Oregon statute is divisible where, by its plain text, the statute appears divisible between burglary of a dwelling on the one hand, and burglary of a non-dwelling on the other. In this case, petitioner's conviction for first-degree burglary, when involving a dwelling, is a CIMT and thus he is statutorily ineligible for cancellation of removal. Finally, the court concluded that precedent foreclosed petitioner's argument that the phrase "crime involving moral turpitude" is unconstitutionally vague. View "Diaz-Flores v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of asylum and withholding of removal to petitioner. The panel held that it was compelled to conclude that petitioner established a nexus between her mistreatment and her feminist political opinion and the BIA necessarily concluded that she carried her burden to prove the other elements of her claims for asylum and withholding of removal.The panel denied the government's motion to remand so that the BIA can consider Matter of A-B- II's effect on nexus, concluding that Matter of A-B- II did not change the standard for establishing nexus, at least in this circuit. The panel has repeatedly held that political opinions encompass more than electoral politics or formal political ideology or action. Like the Third Circuit, the panel had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. In this case, substantial evidence does not support the BIA's conclusion that the record lacks evidence of a nexus between petitioner's persecution and her feminist political opinion. Rather, the panel concluded that petitioner had an actual or imputed political opinion and she was persecuted because of that political opinion. Finally, the petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel remanded for the Attorney General to exercise his discretion in determining whether to grant petitioner asylum. If he does not grant asylum, petitioner shall receive withholding of removal. View "Rodriguez Tornes v. Garland" on Justia Law