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

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

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal and affirming the IJ's denial of his application for cancellation of removal.Because the panel is bound by its decision in Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam), the panel held that petitioner was not "admitted" under 8 U.S.C. 1229b(a)(2) when he was approved as a derivative beneficiary of his mother's self-petition under the Violence Against Women Act (VAWA). The panel held that neither the approval of the Form I-360 listing petitioner as a derivative beneficiary, nor his subsequent receipt of deferred action and work authorization, satisfies the statutory definition of "admission" under the INA. In this case, petitioner was not "admitted in any status" under controlling precedent until 2008; he committed a crime of moral turpitude in 2012, and he is therefore unable to satisfy the requirement of seven years of continuous residence after admission for eligibility for cancellation of removal under section 1229b(a). Accordingly, the BIA properly dismissed petitioner's appeal from the IJ's denial of relief. View "Enriquez v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable.The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case. View "Syed v. Barr" on Justia Law

Plaintiff filed suit against a police officer and a Justice of the Peace under 42 U.S.C. 1983 for violating his Fourth Amendment rights. In 2017, when plaintiff was a witness in a courtroom, another witness testified that plaintiff was "not a legal citizen." Based on that statement, the Justice of the Peace presiding over the hearing spoke with the officer and the officer placed plaintiff in handcuffs, searched plaintiff's person, and escorted him to a patrol car outside the courthouse. While plaintiff was waiting in the back of the patrol car, the officer ran a warrants check on plaintiff that came back clean. The officer then contacted ICE officials and plaintiff was taken to an ICE facility, where he remained in custody for three months.The Ninth Circuit affirmed the district court's denial of defendants' motions for summary judgment based on qualified immunity. Under Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011), the panel held that, unlike entry into the United States -- which is a crime under 8 U.S.C. 1325 -- illegal presence is not a crime. Under Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012), the panel held that because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is afoot. In this case, the officer stopped and arrested plaintiff without reasonable suspicion or probable cause, respectively, and the Justice of the Peace integrally participated in his actions. Furthermore, plaintiff's right to be free from unlawful stops in this circumstance has been established since at least 2012, by which time both Melendres and Martinez-Medina were law of the circuit. View "Reynaga Hernandez v. Skinner" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged that she suffered frequent and severe abuse at the hands of her domestic partner in Nicaragua and that Nicaraguan police officers accepted a bribe from her domestic partner and failed to protect her from him.The panel held that substantial evidence did not support the BIA's determination that petitioner had not shown that the Nicaraguan government was unable or unwilling to protect her from persecution. In this case, the BIA erred by faulting petitioner for failing to contact the police again and for failing to report the bribe, and by disregarding petitioner's credible testimony about why she did not report subsequent abuse. Furthermore, the BIA did not address whether petitioner belonged to a cognizable particular social group, was persecuted on account of her membership in that social group, or had a well-founded fear of future persecution. The panel also held that substantial evidence did not support the BIA's determination that petitioner had failed to show that the Nicaraguan government consented to or acquiesced in her torture for the purpose of CAT relief. Accordingly, the panel remanded for further proceedings. View "Davila v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner seeks withholding of removal based on her fear that she would be persecuted in Guatemala on account of her membership in the particular social group of "indigenous women in Guatemala who are unable to leave their relationship."The panel declined to hold that the Attorney General's decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), was arbitrary or capricious and held that the Attorney General did not announce a new categorical exception for victims of domestic violence or other private criminal activity. Rather, the BIA must conduct the proper particular social group analysis on a case-by-case basis. The panel explained that the BIA seems to have erroneously understood Matter of A-B- to forbid any mention of feared harm within a proposed social group. In this case, the BIA's determination was plainly contrary to the Attorney General's requirement that claims must be carefully analyzed under the framework established by the BIA's precedents. Therefore, because the BIA avoided the case-specific inquiry demanded by Matter of A-B- and the BIA's precedents, the panel granted the petition and remanded petitioner's withholding claim. The panel also remanded petitioner's CAT claim for further consideration. View "Diaz-Reynoso v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order. View "Valenzuela Gallardo v. Barr" on Justia Law