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

Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense's budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona.The Ninth Circuit first held that Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants' actions. In this case, Sierra Club's thousands of members live near and frequently visit these areas along the U.S.-Mexico border to do a variety of activities; the construction of a border wall and related infrastructure will acutely injure their interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests; and the interests of Sierra Club's members in this lawsuit are germane to the organization's purpose. Furthermore, SBCC has alleged facts that support that it has standing to sue on behalf of itself and its member organizations. Sierra Club and SBCC have also shown that their injuries are fairly traceable to the challenged action of the Federal Defendants, and their injuries are likely to be redressed by a favorable judicial decision.The panel held that neither Section 8005 nor any constitutional provision authorized DoD to transfer the funds at issue. The panel reaffirmed its holding in State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), holding that Section 8005 did not authorize the transfer of funds at issue here because "the border wall was not an unforeseen military requirement," and "funding for the wall had been denied by Congress." The panel also held that Sierra Club was a proper party to challenge the Section 8005 transfers and that Sierra Club has both a constitutional and an ultra vires cause of action here. The panel explained that the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties. The panel considered the Federal Defendants' additional arguments, holding that the Administrative Procedure Act (APA) is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action, and Sierra Club falls within the Appropriations Clause's zone of interests. Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. View "Sierra Club v. Trump" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal. The panel held that "wealthy landowners" in Colombia do not constitute a cognizable particular social group for purposes of asylum and withholding of removal because the group lacks particularity and social distinction. Applying the particular social group analysis, the panel held that the agency correctly concluded that petitioner's arguments, and the majority of the evidence he submitted, pertain to the Revolutionary Armed Forces of Colombia's perception of wealthy landowners rather than to Colombian society's perception of the purported group. View "Cordoba v. Barr" on Justia Law

A conviction for being under the influence of a controlled substance, in violation of California Health and Safety Code 11550(a), is divisible with respect to controlled substance such that the modified categorical approach applies to determining whether a conviction under the statute is a controlled-substance offense as defined by federal law.The Ninth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal from the IJ's decision finding him removable under 8 U.S.C. 1227(a)(2)(B)(i) for having been convicted of a controlled-substance offense as defined by federal law. The panel explained that, where, as here, the controlled-substance requirement of a state statute is divisible and where, as here, the relevant substance is shown by application of the modified categorical approach to be federally controlled, then there is "a direct link between an alien's crime of conviction and a particular federally controlled drug" such that section 1227(a)(2)(B)(i) is satisfied. Furthermore, the divisibility of the actus reus element of Section 11550(a) is irrelevant, because under the modified categorical approach a conviction for using or being under the influence of amphetamine relates to a federally controlled substance. View "Tejeda v. Barr" on Justia Law

The Ninth Circuit dismissed a petition for review of the BIA's decision upholding petitioner's removal based on criminal convictions. Petitioner argued that 8 U.S.C. 1432(a)(3)'s second clause discriminates by gender and legitimacy and thus violates the Constitution's guarantee of equal protection.The panel held that petitioner failed to establish an equal protection violation with respect to section 1432(a)(3), the applicable derivative-citizenship statute. In this case, because petitioner's paternity and maternity were both established when she was a child, she is not similarly situated to persons who derived citizenship under section 1432(a)(3)'s second clause. Therefore, petitioner's constitutional challenge to section 1432(a)(3) failed and she could not be granted derivative citizenship. The panel also held that petitioner's contention under the first clause of section 1432(a)(3) is foreclosed by United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020). Because petitioner is not a citizen of the United States, the panel lacked jurisdiction to review her final order of removal. View "Roy v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner's conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of California Vehicle Code section 2800.4, is categorically a crime involving moral turpitude that made him removable.The panel applied the two-step process in determining whether California Vehicle Code section 2800.4 is categorically a crime involving moral turpitude by first reviewing the elements of the statute de novo and then by deferring, to some extent, to the BIA's conclusion that a crime involves moral turpitude. The panel concluded that it need not decide the appropriate level of deference because, even affording only minimal deference, the BIA's interpretation was correct. View "Lepe Moran 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 relief under the Convention Against Torture (CAT). The panel held that, although the IJ had jurisdiction to terminate petitioner and his family's asylum status, the government violated their due process rights by failing to provide them a full and fair opportunity to rebut the government's fraud allegations at the termination hearing. In this case, the admission of, and reliance on, the record of investigation (ROI) was improper and the ROI is the only purported evidence of fraud in the application.The panel held that, in any new hearing, the government must first prove asylum termination is warranted by a preponderance of the evidence; if petitioner and his family's asylum status is properly terminated, the agency must then conduct a hearing to allow them an opportunity to seek asylum and other relief from deportation; and, on remand, the government must afford them a full and fair opportunity to challenge the ROI. View "Grigoryan v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the denial of petitioner's motion for reconsideration. The panel's review for legal or constitutional error under Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016), does not encompass alleged inconsistencies between the BIA's grants or denials of discretionary relief. Rather, the panel looked to whether the particular decision at issue involved legal error.In this case, the panel held that the BIA's denial of equitable tolling was not unreasonable; notwithstanding the BIA's precedent regarding fundamental changes in the law, the BIA's denial of sua sponte reconsideration here was not premised on legal or constitutional error; and petitioner's "settled course" argument is barred by the panel's general rule that it lacks jurisdiction to review claims "that the BIA should have exercised its sua sponte power" in a given case. View "Lona v. Barr" on Justia Law

The Ninth Circuit denied petitions for review of the BIA's decision affirming the denial of asylum and related relief, as well as denial of petitioner's motion to reopen seeking termination of proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).The panel held that substantial evidence supported the denial of asylum relief where the IJ, and the BIA agreed, that petitioner was not credible based on identified inconsistencies and implausibilities in petitioner's account, some of which reach the heart of her claim for relief. Furthermore, substantial evidence support the denial of relief under the Convention Against Torture, based on the conclusion that petitioner could internally relocate within Mexico. The panel also held that a Notice to Appear lacking the time, date, and location of a petitioner's initial removal hearing does not deprive the agency of jurisdiction over removal proceedings. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen proceedings. View "Aguilar Fermin v. Barr" on Justia Law

The Ninth Circuit denied the government's motion for a stay pending appeal of the district court's preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System. The Proclamation barred, with some exceptions, individuals seeking to enter the United States on an immigrant visa from entering unless they could demonstrate that they will be covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs.The panel held that the government has not established the requisite irreparable harm necessary to justify a stay pending appeal. In this case, the government's rights may be vindicated upon completion of this litigation; the alleged monetary harms to third parties upon which the government relies do not constitute irreparable harm; and the government did not meet its high burden to satisfy the other Nken factors. Therefore, the government has not demonstrated a likelihood of success. The panel also held that staying the injunction would injure both the plaintiff class and third parties, and the public interest weighs against entering a stay; the preliminary injunction preserves the status quo during the pendency of this appeal; and the district court did not abuse its discretion in determining the scope of the preliminary injunction. View "John Doe #1 v. Trump" on Justia Law

The Ninth Circuit granted in part a petition for review of the BIA's finding that petitioner was removable based on his conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age, in violation of Nevada Revised Statutes (N.R.S.) 200.730.Applying the categorical approach, the panel compared the elements of N.R.S. 200.730 with the applicable definition of "sexual abuse of a minor," which requires proof of three elements. The panel held that N.R.S. 200.730 punishes a broader range of conduct because the Nevada statute does not require proof that the offender participated in sexual conduct with a minor. Therefore, petitioner's conviction did not qualify as sexual abuse of a minor. The panel explained that, with a possession-only offense such as N.R.S. 200.730, the minor depicted in the image is not the direct object of the offender's conduct, which is a necessary predicate for the offense to qualify as sexual abuse of a minor. View "Mero v. Barr" on Justia Law