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

Articles Posted in Immigration Law
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The Ninth Circuit denied a petition for panel rehearing and a sua sponte request for rehearing en banc in a case in which the panel: (1) held that the Board of Immigration Appeals legally erred by failing to conduct cumulative-effect review in assessing petitioner’s evidence of past persecution, and (2) remanded for the BIA to reassess the evidence under the correct legal framework. View "NERY SALGUERO SOSA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner, a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying Petitioner’s motion to reopen. The Board denied reopening based, in part, on Petitioner’s failure to include a new application for relief, as required by 8 C.F.R. Section 1003.2(c)(1).   The Ninth Circuit granted the petition for review and remanded to the BIA for further proceedings. The panel explained that the changed circumstances Petitioner presented were entirely outside of his control and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Petitioner’s claims for relief because they rebutted the agency’s previous determination that Petitioner had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group.   The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Petitioner family against his uncle’s family for at least fourteen years after Petitioner’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Petitioner’s evidence was not qualitatively different than the evidence at his original hearing. The panel also declined to uphold the Board’s determination that Petitioner failed to establish prima facie eligibility for relief. View "FRANCISCO REYES-CORADO V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (“BIA”) denial of his motion to reopen. Petitioner sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof.   The Ninth Circuit granted the petition for review. The panel clarified any possible confusion in this circuit’s case law regarding a petitioner’s burden of proof in a motion to reopen. Prima facie eligibility for relief requires only a threshold showing of eligibility—a “reasonable likelihood” that the petitioner would prevail on the merits if the motion to reopen was granted. To be eligible for a discretionary grant of relief, a petitioner must present new evidence that “would likely change” the result in the case. Because the BIA erred by applying the wrong legal standard, the panel remanded to the BIA to adjudicate the motion to reopen under the proper standard. View "MARIO FONSECA-FONSECA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner challenged the constitutionality of the appointment and removal process for Immigration Judges and members of the Board of Immigration Appeals (BIA).   The Ninth Circuit denied Petitioner’s petition for review of a decision of the BIA, the panel held that the appointment and removal process for Immigration Judges and members of the BIA comports with Article II of the Constitution. The panel rejected Petitioner’s suggestion that Immigration Judges and BIA members are principal officers who, under the Appointments Clause of Article II, must be nominated by the President and confirmed by the Senate. Rather, the panel concluded that they are inferior officers (whose appointment may be vested in the head of a department) because the Attorney General ultimately directs and supervises their work. Thus, the panel held that the Appointments Clause allows Congress to vest their appointment in the Attorney General. The panel next held that the removal process for Immigration Judges and BIA members satisfies Article II, which requires that officers remain accountable to the President by limiting restrictions on the removal of the President’s subordinates. The panel explained that the Attorney General has the power to remove Immigration Judges and BIA members and that nothing restricts the Attorney General’s ability to remove them at will. Thus, these officers remain dependent on the Attorney General for their positions—and by extension, on the President. View "FORTUNATO AMADOR DUENAS V. MERRICK GARLAND" on Justia Law

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Discover Bank seeks to compel Plaintiff to arbitrate her claims that Discover Bank unlawfully discriminated against her based on citizenship and immigration status when it denied her application for a consolidation loan for her student loan. Discover Bank argues that two arbitration agreements—one Plaintiff made in connection with the student loan and one she made in connection with the application for the consolidation loan—require arbitration here. The district court declined to compel arbitration, finding that neither agreement required arbitration.   The Ninth Circuit affirmed the district court’s order declining to compel Plaintiff to arbitrate. The panel held that Discover Bank was judicially estopped from arguing that Perez did not opt out of the Discover Bank agreement. The panel determined that Discover Bank’s past position clearly contradicted its current position that the opt-out would only apply to Plaintiff’s future discrimination claims, Discover Bank persuaded the court to accept its previous position, and Discover Bank would derive an unfair advantage absent estoppel. Citing Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020), the panel further held that Perez and Discover Bank never formed an agreement to arbitrate her discrimination claims involving her application for a consolidation loan via the Citibank agreement. View "ILIANA PEREZ, ET AL V. DISCOVER BANK" on Justia Law

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The Ninth Circuit denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in a case in which the panel held that: (1) where the adjudication of a non-citizen’s visa application implicates a citizen’s constitutional rights, due process requires that the government provide timely and adequate notice to the citizen of a decision that will deprive the citizen of that interest; and (2) because the government failed to provide timely notice here, it was not entitled to summary judgment based on the doctrine of consular nonreviewability. View "SANDRA MUNOZ, ET AL V. DOS, ET AL" on Justia Law

Posted in: Immigration Law
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The Ninth Circuit denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration in a case in which the panel held that: (1) subject only to a very limited form of habeas corpus review that is inapplicable in this case, Section 242 of the Immigration and Nationality Act (“INA”), “clearly and unambiguously” precludes judicial review of expedited removal orders, even with regard to constitutional challenges to such orders; and (2) as applied in this case—which involved an arriving alien with no previous ties to the United States—that denial of all judicial review was constitutional. View "HEVER MENDOZA LINARES V. MERRICK GARLAND" on Justia Law

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Petitioner pleaded guilty to 13 drug-related charges, including possession of cocaine for sale under California Health and Safety Code Section 11351. In removal proceedings, the agency found Petitioner removable for having committed a drug-trafficking aggravated felony and for having committed a controlled-substance offense. Applying the presumption established in Matter of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002)—that drug-trafficking offenses are, particularly serious crimes—the agency concluded that Petitioner’s Section 11351 conviction was a particularly serious crime that barred withholding. The agency also denied CAT relief.   The Ninth Circuit denied Petitioner’s petition for review. The panel explained that in Matter of Y-L-, the Attorney General instructed that aggravated felonies involving illicit drug trafficking are presumptively, particularly serious crimes and that this presumption may be overcome only in the most extenuating circumstances that are both extraordinary and compelling. The panel noted that the BIA’s particularly-serious-crime analysis here was cursory but concluded that the BIA applied Matter of Y-L- ’s presumption and that the BIA’s decision was supported by adequate reasoning. Observing that neither the IJ nor the BIA recited the Matter of Y-L- criteria, the panel explained that they are not required to do so.   The panel further concluded that, even if it had found that the BIA erred by considering facts not expressly incorporated into Matter of Y-L-’s minimum standard, it would still deny Petitioner’s petition because it was a legal certainty that Petitioner could not satisfy Matter of Y-L-’s minimum criteria. Thus, the panel concluded that this was one of those narrow circumstances where remand was unwarranted. View "KWANG PARK V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner, a native and citizen of Mexico, petitioned for review of the denial of his application to adjust his immigration status to lawful permanent resident while in removal proceedings. During two prior arrests for driving under the influence of alcohol, Petitioner falsely presented himself as a U.S. citizen. Based on these incidents, the Board of Immigration Appeals (“BIA”) found that Petitioner was barred from adjusting status under 8 U.S.C. Section 1182(a)(6)(C)(ii)(I), which renders inadmissible “any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under . . . Federal or State law.”   The Ninth Circuit granted Petitioner’s petition for review. The panel concluded that Petitioner’s misrepresentations about his citizenship to police officers for the purpose of avoiding removal proceedings did not render him inadmissible. The panel explained that the key question was what it means for a purpose or benefit to be “under” federal or state law. The BIA concluded that this means that a false claim must be made to achieve a purpose or obtain a benefit that is “governed by” federal or state law. The panel concluded that the BIA’s interpretation was untenable, agreeing with the Third Circuit that its construction was unmoored from the purposes and concerns of the statute. The panel concluded that Petitioner’s misrepresentations about his citizenship to police officers did not trigger Section 1182(a)(6)(C)(ii)(I). View "EFRAIN RAMIREZ MUNOZ V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law
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Petitioner is a native and citizen of Mexico. The Department of Homeland Security initiated removal proceedings against him, alleging that he had entered the United States without inspection at a time and place unknown to the government. Petitioner conceded that he was removable but applied for cancellation of removal under 8 U.S.C. Section 1229b(b) and adjustment of status under 8 U.S.C. Section 1255. Petitioner petitioned for review of a final order of removal of the Board of Immigration Appeals. After Petitioner applied for cancellation of removal and adjustment of status, the Board upheld an immigration judge’s denial of those applications and a request for a continuance, and it denied a motion to remand. Petitioner challenged the denial of the continuance and the motion to remand.   The Ninth Circuit dismissed Petitioner’s petition. The panel concluded it lacked jurisdiction to review the claim because—with an exception not at issue here— Congress forbade judicial review of “any judgment regarding the granting of relief under” the provisions governing cancellation and adjustment. The panel noted that, under Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), a court may review the denial of a motion to reopen proceedings for cancellation in certain circumstances, including if the new evidence submitted addresses a hardship ground so distinct from that considered previously as to make the motion a request for new relief. The panel concluded that it need not decide whether that holding survives Patel, explaining that, even on its own terms, Fernandez does not help Petitioner because he did not present a request for new relief within the meaning of Fernandez. View "JESUS FIGUEROA OCHOA V. MERRICK GARLAND" on Justia Law

Posted in: Immigration Law