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

The Ninth Circuit vacated a preliminary injunction barring implementation of decisions to terminate Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador. The TPS program is a congressionally created humanitarian program administered by DHS that provides temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict, or other "extraordinary and temporary conditions in the foreign state."The panel held that judicial review of plaintiffs' claim under the Administrative Procedure Act (APA) is barred by 8 U.S.C. 1254a(b)(5)(A). Under the TPS statute, the Secretary possesses full and unreviewable discretion as to whether to consider intervening events in making a TPS determination. In this case, plaintiffs' attempt to rely on the APA to invoke justiciability over what would otherwise be an unreviewable challenge to specific TPS determinations, constitutes an impermissible circumvention of section 1254a(b)(5)(A).The panel also held that plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim. The district court found that the DHS Secretaries were influenced by President Trump and/or the White House in their TPS decisionmaking, and that President Trump had expressed animus against non-white, non-European immigrants. However, without any evidence linking them, the panel concluded that these two factual findings alone cannot support a finding of discriminatory purpose for the TPS terminations. View "Ramos v. Wolf" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming an IJ's denial of asylum and withholding of removal. The panel held that substantial evidence did not support the Board's conclusion that the El Salvadoran government was both able and willing to control the Mara-18 gang whose members attacked petitioner and killed his son. In this case, the record before the IJ and BIA compels the conclusion that, despite initial responsiveness to petitioner's complaints, the police were unable, and then unwilling, to protect petitioner and his family from the Mara-18 gang. The panel stated that the undisputed factual record that was before the IJ and BIA reflects actual deadly violence that the government was, during certain periods, unable to control, and threats of additional deadly violence that the government was entirely unwilling to control after petitioner testified. The panel stated that this is enough.The panel remanded for the Board to consider in the first instance questions related to whether petitioner was a member of a particular social group, or whether he suffered harm rising to the level of persecution. View "J.R. v. Barr" on Justia Law

Plaintiff represents three certified classes which are defined to include, in relevant part, all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The district court entered a judgment and two permanent injunctions in favor of plaintiff and the Probable Cause Subclass on Fourth Amendment claims. The State Authority Injunction enjoins the Government from issuing detainers from the Central District to law enforcement agencies (LEAs) in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The Database Injunction enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability.The Ninth Circuit first held that plaintiff had Article III standing to seek prospective injunctive relief when he commenced suit; second, the panel held that the district court did not abuse its discretion in certifying the Probable Cause Subclass pursuant to Rule 23(b)(2) with plaintiff as the class representative; third, the panel held that 8 U.S.C. 252(f)(1) does not bar injunctive relief for the claims in this case because the only provision of the Immigration and Nationality Act (INA) whose text even refers to immigration detainers is not among the provisions that section 1252(f)(1) encompasses; fourth, the panel reversed and vacated the State Authority Injunction because the presence or absence of probable cause determines whether the Government violates the Fourth Amendment when issuing a detainer, not state law restrictions; fifth, the panel reversed and vacated the Database Injunction because it is premised on legal error and lacks critical factual findings; and finally, the panel reversed summary judgment for the Government on plaintiffs' claim pursuant to Gerstein v. Pugh, 420 U.S. 103 (1975). View "Gonzalez v. United States Immigration and Customs Enforcement" on Justia Law

Jaimes-Cardenas, a citizen of Mexico, first entered the U.S. without inspection in 2008, He married a U.S. citizen, Flora, who was addicted to methamphetamines. Flora was violent and abusive. One incident led to Jaimes-Cardenas’s arrest, after which he voluntarily returned to Mexico. Months later, he returned to the U.S. Flora was pregnant with their first child. Flora became increasingly abusive and started selling drugs. She left Jaimes-Cardenas and their children, who were placed in foster care. The police found methamphetamine in Jaimes-Cardenas's apartment. Despite Flora’s statement that the methamphetamine was hers, police charged Jaimes-Cardenas with possession, manufacture, and delivery of methamphetamine, and with hindering prosecution for his failure to report Flora. Jaimes-Cardenas’s counsel informed him that he would likely face ICE detention and removal if he fought the case. He pleaded to possession of methamphetamine.DHS charged him as inadmissible for entering without inspection, 8 U.S.C. 1182(a)(6)(A)(i), and having been convicted of a law or regulation related to a controlled substance offense, section 1182(a)(2)(A)(i)(II). Jaimes-Cardenas applied for special cancellation of removal for victims of domestic violence 8 U.S.C. 1229b(b)(2). The BIA and the Ninth Circuit upheld the IJ's determination that the authority provided for the domestic violence waiver, even if granted, does not waive the section 1182](a)(2) controlled substance offense but only applies to crimes of domestic violence and stalking or violations of a domestic violence protective order. View "Jaimes-Cardenas v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) to petitioner. Petitioner claims that he is a member of a minority Somali clan who fled Somalia after members of a majority clan forced him to work as a slave for over two years, beat him, and killed his brother.The panel held that the BIA's adverse credibility determination is not supported by substantial evidence. In light of the totality of the circumstances and in the context of the administrative record presented to the panel, the panel held that the evidence in this case compels the conclusion that petitioner's testimony was credible. The panel stated that neither of the two grounds that the BIA relied on supported its adverse credibility determination: first, that petitioner's testimony was nonresponsive or lacking detail, which indicated a lack of candor; and second, petitioner omitted from his asylum application information regarding his sisters' rapes. Rather, the panel explained that the record showed that petitioner gave responsive and detailed answers, and that the omission about his sisters' rapes was not probative of petitioner's credibility and was not inconsistent with petitioner's statements. Accordingly, the panel remanded for further proceedings. View "Iman v. Barr" on Justia Law

The Ninth Circuit held that the BIA reasonably interpreted "perjury," as used in 8 U.S.C. 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Given this definition, the panel held that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to . . . perjury."Petitioners, in three separate petitions for review, were convicted of perjury under section 118(a) and then suffered adverse immigration consequences on the ground that each had committed an "aggravated felony," namely, an "an offense relating to . . . perjury" under section 1101(a)(43)(S). The panel applied the categorical approach and held that section 118(a) is a categorical match with the BIA's generic definition of perjury, meaning that they cover the same amount of conduct. The panel rejected petitioners' claims to the contrary and held that section 118(a) is an "offense" relating to . . . perjury" under section 1101(a)(43)(S). The panel disposed of the petitions and any remaining arguments in concurrently filed memorandum dispositions. View "Ho Sang Yim v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's second motion to reopen asylum proceedings based on changed country conditions. The panel held that the BIA abused its discretion by determining that a non-citizen who seeks to reopen an earlier application for relief and attaches that application to the motion has failed to attach the "appropriate application for relief" as required by 8 C.F.R. 1003.2(c)(1).In this case, petitioner sought only to reopen his prior asylum application because he believed that changed conditions in Azerbaijan revived his previously denied claim for asylum, and he sought asylum on precisely the same ground, political opinion, as he had in his 2004 application. Furthermore, petitioner attached to his motion to reopen his prior asylum application. The panel held that the prior asylum application that petitioner sought to reopen is the "suitable or proper" application to attach, and that it makes no sense to require someone in petitioner's shoes to submit a new asylum application that is identical to the earlier application. View "Aliyev v. Barr" on Justia Law

The Ninth Circuit granted in part and denied in part a petition for review of the BIA's determinations that petitioner does not qualify for derivative citizenship and that his burglary conviction renders him removable. The panel held that petitioner is not a derivative citizen of the United States and did not become a citizen of the United States under 8 U.S.C. 1431(a). In this case, petitioner concedes that he never resided in the United States pursuant to a lawful admission for permanent residence while he was under the age of eighteen. Therefore, petitioner was subject to removal proceedings.The IJ and the BIA found that petitioner was removable because his California burglary conviction was a crime-of-violence aggravated felony. While this appeal was pending, the Supreme Court held that the "crime of violence" statute, as incorporated into the Immigration and Nationality Act's definition of aggravated felony, is unconstitutionally vague. Therefore, the panel held that petitioner's burglary conviction can no longer support removal as a crime-of-violence aggravated felony. The panel remanded to the BIA for the agency to determine whether petitioner is removable on another ground, including based on his California conviction for receipt of stolen property. View "Cheneau v. Barr" on Justia Law

The Ninth Circuit granted 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). Petitioner fled her Cameroonian village after she was ordered to marry the village chieftain, called the Fon. In this case, petitioner's credible and unrebutted testimony establishes that, during the period after she left home, she was hiding in fear of her life and of being captured and taken to the palace for a forced marriage. Furthermore, the record does not demonstrate any safe relocation in a place where the Fon's writ did not run.The panel held that substantial evidence does not support the Board's conclusion that petitioner could relocate within Cameroon to avoid future persecution or torture; her proposed social group of "women resistant to forced marriage proposals" lacked social distinction; and she failed to establish a clear probability of torture with government acquiescence. View "Akosung v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's request for deferral of removal under the Convention Against Torture (CAT).The panel held that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought" under 18 U.S.C. 1111(a); because federal law defines the term "human being" to exclude an unborn fetus, California Penal Code section 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition; section 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus; and, under the modified categorical approach, petitioner's section 187(a) second degree murder conviction under section 187(a) for the unlawful killing of a human being is an aggravated felony under the INA. Accordingly, substantial evidence supported the denial of deferral and petitioner is removable as charged. View "Gomez Fernandez v. Barr" on Justia Law