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

The Ninth Circuit affirmed the district court's grant of a preliminary injunction against DOJ's use of the notice and access conditions imposed on recipients of Edward Byrne Memorial Justice Assistance Grant Program formula grants.The panel held that DOJ lacked statutory authority to require recipients of the grant to comply with DHS requests for notice of a detained alien's release date and time and to allow DHS agents access to detained aliens upon request. The panel held that DOJ lacked statutory authority to the notice and access conditions -- which were not special conditions nor were they listed among the statutorily recognized purposes of a Byrne JAG award -- under section 10102(a)(6) of the Violence Against Women and Department of Justice Act of 2005. The panel rejected DOJ's argument that the notice and access conditions were further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. View "Los Angeles v. Barr" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's denial of two motions to reopen petitioner's removal proceedings. Petitioner sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing.The panel held that it had jurisdiction over petitioner's case because, absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA. On the merits, the panel held that the BIA abused its discretion in denying the appeal of a motion to reopen, where the IJ in the underlying removal proceeding ordered petitioner removable in absentia on the basis of an amended notice to appear. In this case, the in absentia removal order was not supported by substantial evidence because the record provided no evidence of proper service of the amended notice to appear, as required by due process, and the IJ ordered petitioner removed based on admissions to the charges for which she did not receive notice. View "Diaz Martinez v. Barr" on Justia Law

The Ninth Circuit denied petitions for review of the BIA's orders dismissing petitioner's appeal of the IJ's denial of his application for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA) and denial of petitioner's requests to reopen his removal proceedings so that he could seek a waiver of inadmissibility to obtain a U visa.The panel noted that petitioner acknowledged that his petition with respect to adjustment of status is controlled by Roman-Suaste v. Holder, which held that convictions under California Health and Safety Code section 11359 categorically constitute drug trafficking aggravated felonies under the INA. Therefore, petitioner was not statutorily eligible for adjustment of status.In removal proceedings commenced against a non-citizen after the non-citizen has already entered the country, the panel held, in light of Matter of Khan, that an IJ does not have the authority to grant the non-citizen a U visa waiver of inadmissibility under 8 U.S.C. 1182(d)(3)(A)(ii). The panel agreed with the district court that immigration judges lack the authority to consider a request by a petitioner for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of the Act. The panel explained that Matter of Khan was entitled to deference where, as here, the relevant statutory provisions were ambiguous and the holding was reasonable. View "Man v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen his 1996 in absentia deportation order. Petitioner argued that he did not receive proper notice of the hearing because he was 16 years old in 1996 and no adult was served with the Order to Show Cause and Notice of Hearing (OSC).The panel held that Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which required the INS to serve notice to both the juvenile and to the person the juvenile was authorized to be released to, did not extend to situations in which a minor over the age of 14 was never detained or released to an adult by the INS and in which he initiated proceedings by filing an affirmative request for relief. The panel applied the test in Mathews v. Eldridge, 424 U.S. 319 (1976), and held that notice given to petitioner in this case comported with due process. The panel applied the balancing factors and held that the burden on the government of providing notice to a responsible adult living with a juvenile over the age of 14 outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief. View "Cruz Pleitez v. Barr" on Justia Law

Derivative beneficiaries of an alien entrepreneur in the immigrant investor program (EB-5 program), who receive conditional legal permanent resident status (LPR), are entitled to the same review rights in removal proceedings as the alien entrepreneur. Therefore, the Ninth Circuit held that, in removal proceedings, an IJ's failure to review the denial of an I-829 petition (even though the alien is a beneficiary of the petition) is error.In this case, the BIA erred in failing to review the denial of the petition of petitioner's father. The panel also held that the BIA did not abuse its discretion in denying petitioner's request for a continuance and motion to reconsider. Accordingly, the panel granted in part and denied in part petitioner's petitions for review of the BIA's decision. View "Hui Ran Mu v. Barr" on Justia Law

8 U.S.C. 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national interest waiver. The Ninth Circuit affirmed the district court's dismissal of plaintiff's action challenging the denial of his petition for a national interest waiver related to his application for a work visa.Section 1252(a)(2)(B)(ii) provides that no court shall have jurisdiction to review a decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security. The panel held that section 1153(b)(2)(B)(i)'s plain language specifies that the authority to grant (or to deny) a national interest waiver is in the discretion of the Attorney General. The panel also held that plaintiff's various claims simply repackaged his core grievance regarding the national interest waiver, and his due process claim failed because he received notice by regular mail to the address given. View "Poursina v. USCIS" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum, withholding of removal, and Convention Against Torture (CAT) based on his imputed political opinion and whistleblowing activities exposing police corruption.The panel rejected petitioner's broad challenge to Matter of N–M–, arguing that it misconstrues the provisions of the Immigration and Nationality Act. Rather, the panel held that the three factor test in N–M– was consistent with the whistleblowing cases in this circuit and the BIA's interpretation was not unreasonable. In this case, the panel held that petitioner's asylum claim failed because the record did not support his claim that police officers persecuted him on account of his imputed political opinion. Although the BIA erroneously applied the "one central reason" nexus standard rather than the "a reason" standard, the panel need not remand because the BIA adopted the IJ's finding of no nexus between the harm and the alleged protected ground and thus neither the result nor the BIA's basic reasoning would change. View "Singh v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming an IJ's denial of continuance for petitioner to update his fingerprints with DHS. In this case, petitioner did not update his fingerprints because his lawyer advised him, incorrectly, that he was not required to do so.The panel held that petitioner's reliance on his lawyer's advice was reasonable and constituted "good cause" to grant the continuance under 8 C.F.R. 1003.29. The panel held that the BIA abused its discretion by failing to analyze all the factors in Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008). Furthermore, the BIA abused its discretion by analyzing the unreasonableness of petitioner's conduct in an arbitrary and irrational manner. View "Pleitez-Lopez v. Barr" on Justia Law

Non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before immigration judges. The Ninth Circuit granted a petition for review of an IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings. 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 was required. Accordingly, the panel remanded for further proceedings where petitioner will be given the opportunity to proceed with counsel. View "Zuniga v. Barr" on Justia Law

Plaintiffs filed suit seeking to enforce a 1997 settlement agreement, incorporated into a consent decree, requiring immigration agencies to hold such minors in their custody in facilities that are safe and sanitary. The district court found that the government violated the Agreement by detaining minors in unsanitary and unsafe conditions at Border Patrol stations; ordered enforcement of various paragraphs of the Agreement; and directed the government to appoint an internal Juvenile Coordinator. In this case, the parties agreed that this court has jurisdiction over the appeal of the post-judgment order only if the district court modified the Agreement.The panel held that the district court's order did not modify the Agreement and therefore this court does not have jurisdiction over the appeal. Rather, the district court's orders interpreted the Agreement's requirements that minors be held in safe and sanitary conditions consistent with the government's concern for the particular vulnerability of minors. Although the government argued that the district court's order modified the Agreement in other respects, the panel held that these arguments likewise lacked merit. Accordingly, the panel dismissed the appeal based on lack of jurisdiction. View "Flores v. Barr" on Justia Law