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

The Ninth Circuit denied petitioner's request for compensation at government expense of his court-appointed pro bono counsel in a petition for review of the BIA's denial of relief from removal.The panel held that petitioner and his amici curiae identify no authority, including under the federal habeas statutes, the All Writs Act, and the Criminal Justice Act, as informed by the Suspension Clause, allowing the panel to order the government to compensate counsel for mentally incompetent petitioners in petitions for review under 8 U.S.C. 1252(a). The panel stated that, although it has inherent authority to appoint pro bono counsel for petitioner, and did so in his petition for review, it lacked the requisite statutory authority to order government compensation for his appointed counsel. View "Perez v. Barr" on Justia Law

The Ninth Circuit reversed the district court's decision affirming a prior-marriage-fraud finding, and held that the BIA violated due process by relying on undisclosed evidence that petitioners, husband and wife, did not have an opportunity to rebut. In this case, there is no dispute over whether petitioners' current marriage is bona fide. Rather, the government insists that there is substantial and probative evidence that wife's first marriage to an American citizen was a sham. Therefore, the government used this determination of prior marriage fraud to deny husband's I-130 petition that he filed on wife's behalf.The panel held that, in making its initial determination of marriage fraud, the BIA violated due process by applying too low a standard of proof. On remand, the panel instructed the agency to establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding. View "Zerezghi v. United States Citizenship and Immigration Services" on Justia Law

The Ninth Circuit filed an order amending its prior opinion and an amended opinion denying petitioner's petition for review.The panel joined the Fifth and Seventh Circuit in concluding that 8 U.S.C. 1231(a)(5) bars reopening a removal order that has been reinstated following an alien’s unlawful reentry into the United States. In this case, petitioner's 2008 removal order had been reinstated and thus the BIA properly concluded that section 1231(a)(5) deprived it of jurisdiction to entertain petitioner's motion to reopen. Accordingly, the panel denied the petition for review. View "Padilla Cuenca v. Barr" on Justia Law

Plaintiffs, representatives of a certified class of aliens who are subject to final orders of removal and are detained pursuant to 8 U.S.C. 1231(a)(6) within the Ninth Circuit, filed suit challenging their prolonged detention without an individualized bond hearing.The Ninth Circuit affirmed the district court's grant of a preliminary injunction requiring the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention. The panel held that plaintiffs are likely to succeed on the merits of their section 1231(a)(6) statutory claim. Although the panel recognized some tension between Diouf v. Napolitano and Jennings v. Rodriguez, it cannot conclude that the decisions are so fundamentally inconsistent that it can no longer apply Diouf II without running afoul of Jennings. Therefore, the panel held that it remains bound by Diouff II. The panel also held that the district court did not err in relying on Diouf II's construction of section 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent.The panel held that, because Jennings did not invalidate its constitutional due process holding in Singh v. Holder, the district court also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien's continued detention. The panel rejected the Government's remaining challenges and held that the preliminary injunction complies with a proper reading of Clark v. Martinez. View "Aleman Gonzalez v. Barr" on Justia Law

Plaintiffs, representatives of a certified class of aliens with final removal orders who are placed in withholding-only removal proceedings and who are detained pursuant to 8 U.S.C. 1231(a)(6) in the Western District of Washington, filed suit challenging their detention.The Ninth Circuit affirmed the district court's judgment and permanent injunction insofar as they conform to its construction of section 1231(a)(6) in Diouf v. Napolitano. The panel also affirmed insofar as the judgment and permanent injunction require the Government to the satisfy the constitutional burden of proof it identified in Singh v. Holder.However, unlike Aleman Gonzalez v. Barr, decided on the same day, this appeal presented the panel with a different question regarding its construction of section 1231(a)(6). The panel held that the district court erroneously imposed the requirement that the Government provide class members with additional bond hearings as a statutory matter, because the panel did not construe section 1231(a)(6) as requiring this in Diouf II, nor does it find any support for this requirement. Therefore, the panel reversed in part, and vacated the judgment and permanent injunction, remanding for further proceedings. View "Omar Flores v. Godfrey" on Justia Law

An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer's part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer.The Ninth Circuit granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for adjustment of status on the ground that she is ineligible for relief under 8 U.S.C. 1255(c)(2). The panel held that, although substantial evidence supported the IJ's finding that petitioner's attorney never filed a corrected I-129, petitioner reasonably relied on her attorney's assurances that he had filed the corrected I-129 petition necessary to maintain her lawful immigration status, and she remains eligible for adjustment of status because her failure to maintain lawful status continuously since entering the United States occurred through no fault of her own. The panel remanded for consideration of the IJ's alternative ground for denial of relief. View "Peters v. Barr" on Justia Law

The Ninth Circuit held that the district court did not abuse its discretion in granting a preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained after entering the United States and were found by an asylum officer to have a credible fear of persecution. The panel held that the district court did not abuse its discretion in applying the Winter factors and concluding that plaintiffs were likely to prevail on the merits of their due process claim regarding the availability of bond hearings; in concluding that plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction; and in determining that the balance of the equities and public interest favors plaintiffs with respect to Part B of the preliminary injunction. Therefore, the panel affirmed the district court's order in part.The panel held that the record was insufficient to support Part A of the preliminary injunction order for the required bond hearings, and remanded for further findings and reconsideration with respect to the particular process due to plaintiffs. The panel also held that 8 U.S.C. 1252(f)(1) did not bar the district court from granting preliminary injunctive relief for this class of noncitizens, each of whom is an individual noncitizen against whom removal proceedings have been initiated. Finally, the panel held that the district court did not abuse its discretion in granting a preliminary injunction with respect to the nationwide class. View "Padilla v. Immigration and Customs Enforcement" on Justia Law

The Ninth Circuit filed an order granting the government's motion to amend, and an amended opinion granting a petition for review of the BIA's decision and remanding. The panel wrote that the withdrawal sanction in 8 U.S.C. 1003.4 is triggered by an alien's "departure," from this country and that the regulation does not distinguish between volitional and non-volitional departures. The panel noted that the BIA has recognized that an unlawful removal does not a constitute a section 1003.4 departure, but has not addressed whether a lawful removal would withdraw an appeal.In the amended opinion, the panel held that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, the panel held that section 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal. In this case, petitioner did not withdraw his appeal of the denial of his motions to reopen and reconsider when he was involuntarily removed from the United States. View "Lopez-Angel v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision reversing an IJ's grant of deferral of removal under the Convention Against Torture. The panel held that the Board erred by conducting a de novo review of the IJ's factual findings, instead of reviewing them for clear error, as required by 8 C.F.R. 1003.1(d)(3)(i).In this case, the BIA's failure to evaluate the factual findings of the IJ's conclusion -- that petitioner had established that Mexican officials would have the specific intent to torture him -- that were key to the IJ's holding, indicated that the BIA was not reviewing the IJ's determination for clear error. Because the BIA did not explain why the IJ's findings were illogical, implausible, or not supported by permissible inferences from the record, the panel had no trouble concluding that the BIA failed to apply clear error review to the IJ's finding of specific intent. Furthermore, the BIA failed to apply clear error review to the IJ's finding that petitioner would be tortured in criminal detention in Mexico. Accordingly, the panel remanded for reconsideration. View "Guerra v. Barr" on Justia Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction setting aside the Migrant Protection Protocols (MPP), under which non-Mexican asylum seekers who present themselves at the southern border of the United States are required to wait in Mexico while their asylum applications are adjudicated.After determining that the individual plaintiffs had standing and the organizational plaintiffs had standing, the panel followed East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020), argued on the same day as this case, in which the court held that a motions panel's legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels.On the merits, the panel held that plaintiffs had showed a likelihood of success on their claim that the MPP is inconsistent with 8 U.S.C. 1225(b). The panel explained that a plain-meaning reading of section 1225(b), as well as the Government's longstanding and consistent practice, made clear that a section (b)(1) applicant may not be "returned" to a contiguous territory under section 1225(b)(2)(C), which is a procedure specific to a section (b)(2) applicant. Furthermore, plaintiffs showed a likelihood of success on their claim that the MPP does not comply with the United States's treaty-based non-refoulement obligations codified in 8 U.S.C. 1231(b).Because the MPP is invalid in its entirety due to its inconsistency with section 1225(b), the panel held that it should be enjoined in its entirety. Plaintiffs have successfully challenged the MPP under section 706(2)(A) of the Administrative Procedure Act, and the MPP directly affects immigration into this country along the United States's southern border. The panel also held that the other preliminary injunction factors favored plaintiffs, and that the district court did not abuse its discretion in setting aside the MPP. Accordingly, the panel lifted the emergency stay imposed by the motions panel. View "Innovation Law Lab v. Wolf" on Justia Law