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

This case relates to the consent decree incorporating the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention. The Agreement established nationwide standards for the detention, release, and treatment of minors by U.S. immigration authorities. The Agreement, by its own terms, terminates after the government's publication of final regulations implementing the Agreement. In 2019, the government issued final regulations represented as implementing, and thus terminating, the Agreement. The district court then concluded that the new regulations, on the whole, were inconsistent with the Agreement, enjoining the regulations from taking effect and denying the government's motion to terminate the Agreement.The Ninth Circuit held that the provisions of the new regulations relating to unaccompanied minors are consistent with the Agreement except to the extent that they require ORR to place an unaccompanied minor in a secure facility if the minor is otherwise a danger to self or others and to the extent they require unaccompanied minors held in secure or staff-secure placements to request a hearing, rather than providing a hearing to those minors automatically unless they refuse one.The panel also held that some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors are consistent with the Agreement and may take effect. However, the remaining new regulations relating to accompanied minors depart from the Agreement in several important ways. Therefore, the panel affirmed the district court's order enjoining those regulations. The panel further held that the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations. Finally, the panel held that the district court did not abuse its discretion in denying the government's motion to terminate the Agreement, as the government has not demonstrated that changed circumstances, such as an increase in family migration, justify terminating the Agreement's protections. View "Flores v. Rosen" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal. The panel held that petitioner waived review of the Board's discretionary denial of asylum relief by failing to contest this aspect of the Board's decision in his opening brief. The panel also held that the Board properly concluded that petitioner's proposed social group of "known drug users" was not legally cognizable based on lack of particularity under the standards set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Even if the panel were to ignore the ambiguity of the term "known," "drug" and "user" are broad terms that cause the proposed group to lack definable boundaries and to be amorphous, overbroad, diffuse, or subjective. View "Minh P. Nguyen v. Barr" on Justia Law

Innova, wanting to hire a citizen of India with a bachelor’s degree as a computer programmer, sought an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, U.S. Citizenship and Immigration Services (USCIS) denied the application, concluding that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”The Ninth Circuit reversed, concluding that USCIS’s denial was arbitrary and capricious. USCIS’s suggestion that there is “space” between "typically needed," per the OOH, and "normally required," per the regulation is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." The regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. USCIS misrepresented the OOH and failed to consider key evidence, namely, OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.” View "Innova Solutions, Inc. v. Baran" on Justia Law

The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary. View "Singh v. Barr" on Justia Law

Plaintiff was granted a U-visa effective a month after she married her husband. After USCIS denied plaintiff's petition for a derivative U-visa for her husband, she filed suit for declaratory and injunctive relief. The district court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute.The Ninth Circuit reversed, holding that 8 C.F.R. 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. The court held that the statute clearly answers the relevant interpretive question: to qualify for a derivative U-visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U-visa. Therefore, section 214.14(f)(4) is invalid insofar as it requires a derivative U-visa spouse to have been married to the principal petitioner when the application was filed. In this case, plaintiff and her husband were married by the time she was granted a U-visa and when she petitioned for derivative U-visa status, her husband was entitled to receive a U-visa if he otherwise met the requirements. View "Medina Tovar v. Zuchowski" on Justia Law

In 2019, DHS issued a rule that defines the term "public charge" to include those who are likely to participate, even for a limited period of time, in non-cash federal government assistance programs. At issue are preliminary injunctions issued by two district courts enjoining DHS's rule. The Ninth Circuit affirmed the preliminary injunction of the District Court for the Northern District of California covering the territory of the plaintiffs. The panel affirmed in part and vacated in part the preliminary injunction of the District Court for the Eastern District of Washington, vacating the portion of the injunction that made it applicable nationwide.After determining that plaintiffs have Article III standing and that the interest of plaintiffs in preserving immigrants' access to supplemental benefits is within the zone of interests protected by the "public charge" statute, the panel concluded that plaintiffs have demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law. The panel also concluded that the Rule's promulgation was arbitrary and capricious as well as contrary to law within the meaning of the Administrative Procedure Act (APA). The panel explained that DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare. Furthermore, the remaining injunction factors favor plaintiffs where plaintiffs have established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs, and there was no error in finding that the balance of equities and public interest support an injunction.The panel vacated the portion of the Eastern District's injunction making it applicable nationwide, explaining that a nationwide injunction was not appropriate in this case because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts. Finally, because the panel held that the Rule violates the APA as contrary to law and arbitrary and capricious, it similarly did not address the Rehabilitation Act. View "City and County of San Francisco v. USCIS" on Justia Law

The Ninth Circuit filed (1) an order stating that the opinion, concurrence, and dissent filed November 19, 2019 are amended by the opinion, concurrence, and dissent filed concurrently with the order, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended majority opinion, concurrence, and dissent.In the amended opinion, the panel granted the petition for review of an ICE order reinstating petitioner's prior order of removal and held that that: (1) 8 U.S.C. 1252(b)(1) establishes a thirty-day deadline for seeking review of reinstatement orders; (2) because petitioner timely challenged his reinstatement order, the court had jurisdiction to consider a collateral attack on his underlying removal order contending that the execution of that order resulted in a gross miscarriage of justice; (3) petitioner established a gross miscarriage of justice because his removal order lacked a valid legal basis when it was executed; and (4) there is no diligence requirement that limits the time during which such a collateral attack may be made. View "Vega-Anguiano v. Barr" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision denying petitioner's application for protective status pursuant to the Convention Against Torture (CAT). Petitioner is a former gang member who has belonged to various violent gangs, including La Mara Salvatrucha, commonly known as MS-13.Addressing two initial matters, the panel concluded that the Board's defiance of the panel's previous decision in this matter and disagreement with the panel's holding that the IJ did not find petitioner's expert, a specialist in gang activity in Central America and governmental responses to gangs, credible was ill-advised. The panel also disagreed with the Board's conclusion that the expert's testimony did not warrant full weight because he did not submit the underlying evidence to the IJ. Finally, the panel held that the Board's decision to give the expert's opinion reduced weight because it was not corroborated by other evidence in the record was erroneous. The panel remanded to the Board and directed it to give full weight to the expert's testimony regarding the risk of torture petitioner faces if removed to El Salvador. View "Castillo v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioners' motion to reopen. Petitioners contend that ineffective assistance of a non-attorney notario who advised them not to attend their hearing caused them to be ordered removed in absentia.The panel concluded that the BIA erred by treating petitioners' failure to show prejudice caused by the alleged ineffective assistance as a basis for denying their motion to reopen proceedings. The panel explained that a showing of prejudice is not required when ineffective assistance leads to an in absentia order of removal. Therefore, in light of this conclusion, the panel need not reach the BIA's decision denying petitioners' motion to reopen proceeding to allow petitioners to apply for cancellation of removal. View "Sanchez Rosales v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT. View "Medina-Rodriguez v. Barr" on Justia Law