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

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The panel held that petitioner's proposed social group comprised of "minor Christian males who oppose gang membership" is not cognizable. The panel also held that petitioner failed to establish the requisite nexus between any harm and his membership in the Santos-Ponce family, or that he would more likely than not be tortured by the Honduran government or with government acquiescence. Finally, the panel held that substantial evidence supports the BIA's conclusion that petitioner is not eligible for CAT protection where there is no claim or evidence that petitioner was harmed, much less tortured in the past by any government officials, or anyone acting under the acquiescence of the government. View "Santos-Ponce v. Wilkinson" on Justia Law

The Ninth Circuit denied in part and granted in part a petition for review of the BIA's denial of withholding of removal and protection under the Convention Against Torture (CAT). The panel held that the Board correctly concluded that petitioner's proposed social group of "Mexican wealthy business owners" was not cognizable because it lacked social distinction, particularity, or an immutable characteristic. Even if petitioner's proposed group were cognizable, the panel concluded that he would still not be entitled to relief. In this case, substantial evidence supports the IJ's decision that petitioner did not establish a nexus between the feared harm and his alleged membership in the proposed group.In regard to the CAT claim, the panel held that the Board erred in finding that petitioner had not proven he had been "subjected to any harm by Mexican officials." Even if the judicial officers were not in uniform and did not act in their official capacity, the panel concluded that petitioner has sufficiently demonstrated that he was the victim of an official perpetration of violence. The panel remanded with instructions for the Board to consider whether the attack by the judicial police officers qualifies as torture and whether petitioner has established that it was more likely than not he would be tortured if returned to Mexico. View "Macedo Templos v. Wilkinson" on Justia Law

The Ninth Circuit granted a petition for review of the DHS's order reinstating petitioner's prior order of removal. Petitioner, a Canadian citizen, was deported from the United States in the summer of 1990 under a final order of deportation. 26 years later, he was taken into custody by ICE after an arrest for driving under the influence of alcohol. DHS then reinstated his prior deportation order under section 241(a)(5) of the Immigration and Nationality Act.The panel held that a noncitizen has not "reentered the United States illegally" within the meaning of 8 U.S.C. 1231(a)(5) based solely on the fact of inadmissibility at the time of reentry. In this case, DHS failed to apply the correct legal standard under section 1231(a)(5) for entering a reinstatement order. The panel explained that petitioner's case is fundamentally different from circuit precedent, where the panel allowed reinstatement of prior deportation orders for noncitizens who had reentered the United States through fraud. The panel agreed with the government's tacit admission that it is not entitled to deference, and the panel did not give Chevron deference to agency decisions made without "a lawmaking pretense in mind," such as those made with little or no procedure and that "stop short of [binding] third parties." The panel noted that many inadmissible noncitizens who enter or reenter the United States do so without violating sections 1325 or 1326, for these sections do not punish entries or reentries solely on the ground of a noncitizen's inadmissibility. Furthermore, the panel's conclusion was reinforced by the INA's provisions governing relief from removal, the severe practical difficulties of basing reinstatement solely on inadmissibility at the time of reentry, and the DHS regulation governing reinstatement. View "Tomczyk v. Wilkinson" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d). View "United States v. Bastide-Hernandez" on Justia Law

The Ninth Circuit affirmed a petition for review of the BIA's decision denying petitioner's applications for asylum and related relief. The panel held that petitioner's credible testimony about an attempted gang rape was sufficient to establish past persecution, and that the Board erred in imposing evidentiary requirements of ongoing injury or treatment beyond the attempted sexual assault in order to show persecution.The panel stated that it has consistently treated rape as one of the most severe forms of persecution, and explained that some forms of physical violence are so extreme that even attempts to commit them constitute persecution. In this case, petitioner's credible testimony about the attempted gang rape is sufficient to show persecution. The panel explained that attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator's domination, control over the victim and imperviousness to the law. Furthermore, requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. The panel remanded for further proceedings. View "Kaur v. Wilkinson" on Justia Law

Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm. View "United States v. Gear" on Justia Law

The Ninth Circuit reversed the district court's denial of a petition for habeas relief under 28 U.S.C. 2241, and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), the default rule for First Amendment retaliation claims.The panel held that the Supreme Court's recent decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), holding that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. 1983, does not apply to a noncitizen's claim that ICE unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him. In this case, petitioner had been detained by ICE and released on bond in 2018. After petitioner spoke publicly at a rally in 2019 and read his poem, entitled "Dear America," in which he criticized ICE practices, ICE revoked his bond and re-arrested him. The panel explained that Nieves is not applicable because problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Furthermore, Nieves arose out of the criminal arrest context where "evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." The panel explained that this reasoning does not translate to the immigration bond revocation context. View "Bello-Reyes v. Gaynor" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner failed to meet his burden of proof for asylum, withholding of removal, or relief under the Convention Against Torture (CAT). The BIA noted that petitioner never testified or submitted evidence claiming any actual injury caused by the Taliban, or that the Taliban individually targeted or attacked him for any reason. The BIA also concluded that the IJ provided petitioner due process where there was no indication in the transcript or the appeal that he did not understand the proceedings or that there were facts he was "unable to present."The panel held that the IJ provided petitioner due process by providing details about the structure of the hearing, the availability of counsel, and asking numerous questions through which petitioner had ample opportunity to develop his testimony. Furthermore, petitioner failed to show substantial prejudice. The panel also held that substantial evidence supported the BIA's conclusion that petitioner did not suffer past persecution where petitioner never alleged he was personally targeted by the Taliban and his testimony was consistent with an environment of generalized violence. Furthermore, the Pakistani government is not unwilling or unable to prevent harm and it would not be unreasonable for petitioner to relocate within Pakistan. Finally, the panel held that substantial evidence supports the BIA's determination that petitioner cannot meet his burden to obtain CAT protection. View "Hussain v. Rosen" on Justia Law

Proclamation No. 9945, which restricts entry of immigrant visa applicants who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses, was within President Trump's statutory authority.The Ninth Circuit reversed the district court's order enjoining the Proclamation's implementation. The panel assumed that, to the extent plaintiffs have Article III standing, they may assert an ultra vires cause of action to challenge the Proclamation on constitutional and statutory grounds. Because the panel concluded that plaintiffs' claims are likely to fail on the merits, the panel has no obligation to reach the consular nonreviewability issue and declined to do so.The panel held that the Proclamation is a lawful exercise of the President's delegated authority under section 212(f) of the Immigration and Nationality Act (INA) where it comports with the textual limitations of section 212(f) as set forth in Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018). Furthermore, plaintiffs failed to show a likelihood of success on their claims that the Proclamation conflicts with other statutes such as the Affordable Care Act, the Children's Health Insurance Program Reauthorization Act, the public charge provision of the INA, and the Violence Against Women Act. Finally, the panel rejected the district court's contention that, to the extent section 212(f) allows the President to impose additional entry restrictions based on "domestic policymaking" concerns, section 212(f) itself violates the nondelegation doctrine. Contrary to what the district court concluded, the panel stated that it makes no difference whether the additional entry restrictions are imposed under section 212(f) based on assertedly domestic policy concerns. Therefore, the panel concluded that the district court abused its discretion in granting the preliminary injunction enjoining the Proclamation's implementation. View "Doe v. Trump" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency. View "Hernandez Flores v. Rosen" on Justia Law