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

Petitioner, a citizen of Guatemala, sought review of the BIA's denial of withholding of removal based on the agency's conclusion that the record does not establish that Guatemalan society recognizes "people who report the criminal activity of gangs to police" as a distinct social group.The Ninth Circuit held that it lacked jurisdiction to review petitioner's renewed argument concerning relief under the Convention Against Torture, because the panel expressly disposed of the issue in a prior petition for review and the issue was not currently under consideration.The panel also held that substantial evidence supported the BIA's conclusion that the record was devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who report the criminal activity of gangs to the police are perceived or recognized as a group by society in Guatemala. The panel explained that, although the record contained two State Department Human Rights Reports and a Congressional Research Service report, none of those documents discussed reporting gang violence to police, or any risks or barriers associated with doing so. Furthermore, the documents did not assert that Guatemalan society recognizes those who, without more, report gang violence as a distinct group. Furthermore, the testimony failed to support a finding of social recognition. Accordingly, the panel dismissed in part and denied in part. View "Conde Quevedo v. Barr" on Justia Law

USCIS permissibly construed the statutory phrase "accompanying, or following to join" in 8 U.S.C. 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R. 214.14(f)(4), requiring that a spouse's qualifying relationship exist at the time of the initial U-visa petition and that the qualifying relationship continues throughout the adjudication of the derivative petition.The Ninth Circuit affirmed the district court's grant of summary judgment to government defendants, according Chevron deference to USCIS's interpretation of the statute in enacting the regulation. Given the deference to the agency to impose regulations interpreting (and gap filling) the immigration statutes, the panel held that the requirement was a reasonable interpretation. The panel also held that the equal protection clause has not been violated, because children and spouses were not similarly situated and distinction between nonimmigrant derivative spouses was rationally based. View "Medina Tovar v. Zuchowski" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner committed a crime involving moral turpitude. The panel held that an aggravated assault conviction under Arizona Revised Statutes 13-1203(A)(2) and 13-1204(A)(2) qualifies as a crime involving moral turpitude that made petitioner removable.In this case, the parties have treated both the basic and aggravated assault provisions as divisible, and the panel agreed that such an approach comported with circuit and state precedent. In consideration of the charging document, plea agreement, and plea colloquy together, the panel held that it was clear petitioner was convicted under sections 13-1203(A)(2) and 13-1204(A)(2). The panel was satisfied that under its cases, an aggravated assault conviction under sections 13-1203(A)(2) and 13-1204(A)(2) involving the use of a deadly weapon or dangerous instrument qualifies as a crime involving moral turpitude. View "Altayar v. Barr" on Justia Law

A conviction under California Penal Code 114 is not an aggravated felony or a crime involving moral turpitude under the Immigration and Nationality Act. The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was ineligible for cancellation of removal due to her conviction under section 114.The panel used the categorical approach to determine whether the California statute categorically quaifies as an aggravated felony. The necessary elements for conviction under section 114 are: (1) the use; (2) of a false document; (3) to conceal citizenship or alien status; (4) with specific intent. The panel compared these elements with the federal definition of an aggravated felony and held that the California statute cannot be a match to the federal offense because it includes documents, such as fake drivers' licenses, that are not enumerated in the description of the federal crime. Furthermore, the state statute was not divisible. The panel also held that section 114 did not constitute a crime involving moral turpitude because, under the categorical approach, section 114 does not require fraudulent intent. Therefore, the panel held that the BIA erred in holding that petitioner's state conviction precluded her from consideration of cancellation of removal. Accordingly, the panel remanded for further proceedings. View "Jauregui-Cardenas v. Barr" on Justia Law

The Ninth Circuit reversed the district court's denial of a petition challenging USCIS's denial of petitioner's application for naturalization. USCIS and the district court found that petitioner and her first husband were both California domiciliaries at the time they obtained their Korean divorce, meaning that their divorce was of "no force or effect" in California. At issue was whether petitioner was "domiciled" in California at the time of her divorce.The panel held that petitioner, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Therefore, the panel held that petitioner's divorce and subsequent marriage were valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization. View "Park v. Barr" on Justia Law

The Ninth Circuit affirmed defendant's conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. 1326, and the revocation of supervised release. Defendant argued that he should have automatically become a United States citizen as a result of the naturalization of one of his parents prior to the reentry at issue. However, because his parents were married, and the derivative citizenship statute at 8 U.S.C. 1432(a) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Defendant claimed that, by making his parents' marital status a factor in the derivative citizenship determination, section 1432(a) violates the Constitution's equal protection guarantee.The panel held that rational basis review applies to section 1432(a) for reasons separate and apart from those relied on in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Furthermore, Barthelemy's holding that section 1432(a) is rational is not irreconcilable with Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017). Therefore, the panel was still bound by that portion of Barthelemy's reasoning and by its ultimate holding that section 1432(a) is constitutional. Even if the panel were not bound by the holding in Barthelemy, the panel concluded that section 1432(a) is rational because protecting the parental rights of the non-citizen parent is plainly a legitimate legislative purpose. View "United States v. Mayea-Pulido" on Justia Law

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.The Ninth Circuit held that petitioner's removal from the country while his appeal was pending before the BIA did not withdraw his appeal under 8 C.F.R. 1003.4. The panel explained that the withdrawal sanction in section 1003.4 is triggered by an alien's departure from this country; section 1003.1 does not distinguish between volitional and non-volitional departures; but the BIA has already recognized that the regulation does not apply every time a petitioner leaves this country. For example, an unlawful removal does not constitute a section 1003.4 departure. The panel agreed with the Sixth Circuit's holding in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009), that section 1003.4 applies only when the right to appeal is relinquished by the alien's own volitional conduct, not solely that of the government. The panel held that the Sixth Circuit's holding in Madrigal was consistent with its interpretation of a similar regulation. Finally, the panel held that petitioner did not otherwise waive his right to appeal. Accordingly, the panel granted the petition for review and remanded. View "Lopez-Angel v. Barr" on Justia Law

The Ninth Circuit filed an amended order granting a petition for review of the IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings.The panel held that non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before an immigration judge. In this case, the panel held that petitioner had a statutory right to counsel, the colloquy at the beginning of the hearing before the IJ was inadequate to waive that right, and no showing of prejudice is required. Therefore, the panel held that the IJ violated petitioner's right to counsel in his reasonable fear review proceeding by failing to obtain a valid waiver, and petitioner was entitled to a new hearing before an IJ in which his right to counsel is honored. Accordingly, the panel reversed for further proceedings. View "Zuniga 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 and related relief. The panel held that an asylum officer's credibility conclusion could not support an adverse credibility finding. In this case, the agency legally erred by relying on the asylum officer's assessment of petitioner's credibility.The panel also held that, where, as here, petitioner's testimony was consistent with, but more detailed than, her asylum application, petitioner's testimony is not per se lacking in credibility. Therefore, the finding that petitioner was less credible merely because her statement did not note the specific date the abortion occurred or the names of the family planning director and hospital staff was unreasonable. The panel also held that petitioner's testimony about the asylum interview did not support the adverse credibility finding; the IJ's speculation that petitioner was in fact still living in Indiana was not a sufficient basis for an adverse credibility finding; the BIA impermissibly engaged in factfinding; and petitioner was entitled to notice and an opportunity to produce corroborating evidence or explain why it was unavailable. View "Lizhi Qiu v. Barr" on Justia Law

Various states, municipalities, and organizations filed suit seeking a preliminary injunction against the implementation of DHS's Final Rule, which redefined the term "public charge" to require consideration of not only cash benefits, but also certain non-cash benefits. Under the Final Rule, an alien is a public charge if they receive one or more public benefits, including cash and non-cash benefits such as Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance, Section 8 project-based rental assistance, Medicaid (with certain exceptions), and Section 9 public housing.The Ninth Circuit granted a stay of two preliminary injunctions granted by two different district courts, holding that DHS has shown a strong likelihood of success on the merits because the Final Rule was neither contrary to law nor arbitrary and capricious; DHS will suffer irreparable harm because the preliminary injunctions will force it to grant status to those not legally entitled to it; and the balance of the equities and public interest favor a stay. View "City and County of San Francisco v. USCIS" on Justia Law