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

In a published order, the Ninth Circuit denied a motion for attorneys' fees under the Equal Access to Justice Act (EAJA) in a case in which the panel had previously remanded petitioner's application for relief from removal to the BIA for reconsideration in light of the en banc court's intervening decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).The panel concluded that petitioner was not entitled to attorney's fees because the government's position was substantially justified. In this case, the government seeks a voluntary remand and the panel has already recognized that the en banc decision in Bringas-Rodriguez acted as intervening case law. The panel rejected petitioner's contentions to the contrary. Therefore, because the government's position was substantially justified, EAJA fees are not appropriate, and the panel need not decide whether petitioner was a prevailing party, or whether there are special circumstances rendering an award unjust. View "Meza-Vazquez v. Garland" on Justia Law

The Ninth Circuit filed: 1) an order withdrawing the opinion and concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020), denying the petition for rehearing en banc as moot, and providing that the parties may file petitions for rehearing and hearing en banc in response to the new opinion; 2) a new opinion denying the petitions for review of the BIA's decisions; and 3) a new concurring opinion.The panel held, based on its binding precedent, that the BIA did not err in concluding that petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude, and that the BIA did not abuse its discretion in denying petitioner's motion to reopen to seek asylum and related relief based on changed country conditions in the Philippines. The panel explained that it need not address the question whether Matter of Diaz-Lizarraga is retroactively applicable in this case and need not apply the Montgomery Ward test to answer that question. View "Silva v. Garland" on Justia Law

The Ninth Circuit granted in part and denied in part a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petition is based on petitioner's fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability.The panel concluded that the agency misunderstood petitioner's proposed social group, and thus granted the petition for review with respect to the claims for asylum and withholding of removal. The panel explained that the BIA and IJ treated the term "intellectual disability" as if it were applied to a layperson. However, that term as used in petitioner's application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the panel reasoned that the clinical term "intellectual disability" may satisfy the "particularity" and "social distinction" requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, the panel must remand to the agency for fact-finding on an open record to determine if the group is cognizable. Finally, the panel concluded that denial of CAT relief by the agency was supported by substantial evidence. View "Acevedo Granados v. Garland" on Justia Law

Petitioner sought review of the BIA's denial of his motion to terminate or remand proceedings, and his application for withholding of removal and protection under the Convention Against Torture (CAT). The Ninth Circuit granted the petition for review on the basis of an evidentiary issue with respect to the CAT claim and otherwise denied the petition.The panel concluded that it lacked jurisdiction to consider petitioner's claim, argued for the first time before the panel, that because he never received his 2001 notice of hearing, jurisdiction never vested in the immigration court and his removal proceedings should thus be terminated. The panel explained that precedent squarely forecloses the termination argument that petitioner actually presented to the BIA. The panel also concluded that it lacked jurisdiction to consider the denial of petitioner's motion to seek cancellation of removal based on the alleged "exceptional and extremely unusual hardship" his removal would cause to his mother, a legal permanent resident. The panel explained that there is nothing in the record to indicate that there was relevant evidence that the BIA failed to consider in making its hardship decision. The panel concluded that petitioner failed to establish membership in a cognizable social group and is therefore ineligible for withholding of removal under 8 U.S.C.1231(b)(3). In regard to the CAT claim, the panel concluded that substantial evidence supports the BIA's determination that petitioner failed to establish that past torture occurred with the consent or acquiescence of a public official as required by 8 C.F.R. 1208.18(a)(1). The panel remanded the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report. View "Aquilar-Osorio v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen removal proceedings on the ground that petitioner did not demonstrate a relevant change in country conditions. Petitioner sought to reopen his 2003 removal proceedings based on a "hybrid change in personal circumstances and country conditions" since 2003, so that the agency could consider a new petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel concluded that petitioner did not present any evidence demonstrating that relevant conditions in Mexico changed since his 2003 removal order, and a change in personal circumstances alone is not sufficient to support a motion to reopen his removal proceedings. The panel further concluded that, even assuming petitioner's changed personal conditions could affect his anticipated experience upon return to his country of removal, by regulation the BIA is not required to grant a motion to reopen based on changed conditions absent a change in that country's conditions. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen. View "Alonso Rodriguez v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision upholding an IJ's denial of petitioner's applications for asylum and withholding of removal. Petitioner claims that she suffered past persecution and has a well-founded fear of future persecution based on her membership in the proposed particular social groups of "Salvadoran women who refuse to be girlfriends of MS gang members" and "Salvadoran women who refuse to be victims of violent sexual predation of gang members."The panel concluded that substantial evidence supports the BIA's dismissal of her past persecution claim. The panel explained that substantial evidence supports the BIA's determination, including its specific reliance on the IJ's findings, that the threats here do not amount to past persecution. In this case, petitioner's neighbor issued vague threats, confronted her several times over a period of weeks, did not perform any acts of violence, and never followed through on any of his threats. Therefore, although condemnable, these threats were not so overwhelming so as to necessarily constitute persecution. The panel also concluded that substantial evidence supports the BIA's determination that petitioner's proposed particular social groups are not distinct in Salvadoran society. Finally, petitioner's argument that the BIA conducted an inadequate inquiry into the record regarding social distinction is unavailing. View "Villegas Sanchez v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's denial of his applications for asylum and withholding of removal from Somalia. The panel held that the restricted-residence exception applies when the country's authorities are unable or unwilling to protect the applicant from persecution by nongovernmental actors. The panel concluded that the Board erred by determining that petitioner did not qualify for a firm-resettlement exception because the persecution he suffered was perpetrated by nongovernment actors. On remand, the Board should consider whether petitioner was firmly resettled in South Africa.The panel also held that petitioner suffered past persecution in Somalia on account of a protected ground. In this case, the record evidence would compel any reasonable factfinder to conclude that petitioner suffered persecution on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than petitioner's. The panel explained that Al-Shabaab's accusation that petitioner and his brother were featuring Islamically forbidden, "Satanic" films provided direct evidence of their political and religious motive. Even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel also remanded to give the government an opportunity to rebut the presumption of future persecution triggered by petitioner's showing of past persecution on account of a protected ground. View "Abdi Asis Ali Aden v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of immigration relief to petitioner. The panel held that a conviction for importing, manufacturing, or dealing in firearms without a license, 18 U.S.C. 922(a)(1)(A), is categorically an "illicit trafficking in firearms" aggravated felony under 8 U.S.C. 1101(a)(43)(C). Therefore, petitioner is ineligible for asylum based on his conviction under section 922(a)(1)(A). In this case, the panel deferred to the BIA's interpretation of "illicit trafficking" in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), that illicit trafficking in a controlled substance – another aggravated felony – includes any felony conviction involving the "unlawful trading or dealing of any controlled substance." The panel explained that section 922(a)(1)(A) is a categorical match to "illicit trafficking in firearms" under section 1101(a)(43)(C). View "Chacon v. Wilkinson" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In this case, the Knights Templar, a local drug cartel, murdered petitioner's husband, twice threatened her life, and forcibly took her property in retaliation for helping her son escape recruitment by fleeing to the United States. The Board assumed without explicitly deciding that petitioner's social groups, comprised of her family or property owners, were cognizable.The Ninth Circuit held that substantial evidence does not support the BIA's conclusion that petitioner was not persecuted "on account of" her membership in a particular social group. Under the panel's case law, it is sufficient under our mixed-motive precedent for the petitioner to show that a protected ground "was a cause of the persecutors' acts." Furthermore, the panel found Parada v. Sessions, 902 F.3d at 910, instructive and concluded that Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from "purely personal retribution." The panel explained that the BIA erred in its nexus analysis for both petitioner's asylum claim and her withholding of removal claim. The panel remanded with instructions for the BIA to reconsider petitioner's asylum claim, and for the BIA to consider whether petitioner is eligible for withholding of removal under the proper "a reason" standard. The panel denied the petition as it relates to petitioner's claim for relief under CAT. View "Naranjo Garcia v. Wilkinson" on Justia Law