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

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal from the IJ's determination that he was ineligible for cancellation of removal under the Immigration and Nationality Act because he was convicted of a violation of a protection order.The panel held that the BIA's articulation in Matter of Medina-Jimenez and Matter of Obshatko, that the categorical approach does not apply to determining whether an alien's violation of a protection order under 8 U.S.C. 1227(a)(2)(E)(ii) renders him convicted of an offense under section 1229b(b)(1)(C), is entitled to Chevron deference. The panel deferred under Chevron to the BIA's conclusion that section 1101(a)(48)(A) does not require that the underlying offense be labeled a crime as long as the proceedings are "criminal in nature" and contain "constitutional safeguards normally attendant upon a criminal adjudication." The panel also agreed with the BIA's decision that petitioner is ineligible for cancellation of removal. Accordingly, the panel upheld the BIA's decision and did not need to remand. View "Diaz-Quirazco v. Barr" on Justia Law

Petitioner sought review of the BIA's order denying his untimely motion to reopen his removal proceedings. Petitioner alleged that he received ineffective assistance of counsel during his removal proceedings. The BIA agreed that petitioner's prior counsel performed deficiently, but denied the motion to reopen after concluding that he failed to show prejudice.The Ninth Circuit granted the petition for review with respect to petitioner's claims for deferral of removal under the Convention Against Torture (CAT) and relief under former 8 U.S.C. 212(c). The panel held that the BIA analyzed petitioner's new prejudice evidence under standards more stringent than were proper. Although the more-likely-than-not standard governs the merits of a CAT claim, in the context of a motion to reopen for ineffective assistance, the petitioner need not show that he would win or lose on any claims. Rather, the question with respect to prejudice is whether counsel's deficient performance may have affected the outcome of the proceedings, which means that the petitioner need only show plausible grounds for relief. The panel denied the petition for review with respect to all other claims and held that the BIA did not abuse its discretion in rejecting petitioner's claims. Accordingly, the panel remanded for further proceedings. View "Flores v. Barr" on Justia Law

The en banc court granted a petition for review of the BIA's decision affirming the IJ's denial of cancellation of removal. The BIA held that petitioner failed to demonstrate that her prior conviction was not for a disqualifying federal offense and therefore had not met her burden of showing that she was eligible for cancellation of removal.The en banc court held that, in the context of eligibility for cancellation of removal under 8 U.S.C. 1229b(b), a petitioner's state-law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. The en banc court held that the statute under which petitioner was convicted was overbroad at the time of her conviction. The en banc court overruled its decision in Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), that, under Moncrieffe v. Holder, 569 U.S. 184 (2013), an ambiguous record of conviction does not demonstrate that a petitioner was convicted of a disqualifying federal offense. Accordingly, the panel reversed and remanded. View "Marinelarena v. Barr" on Justia Law

The Ninth Circuit reversed the district court's grant of summary judgment for the City in an action challenging the DOJ's use of certain factors in determining scores for applicants to a competitive grant program. The Community Oriented Policing Services (COPS) grant program allocates a limited pool of funds to state and local applicants under the Public Safety Partnership and Community Policing Act, enacted as part of the Violent Crime Control and Law Enforcement Act.In this case, the DOJ gives additional points to an applicant that chooses to focus on the illegal immigration area (instead of other focus areas) and gives additional points to an applicant who agrees to the Certification of Illegal Immigration Cooperation. After determining that the case was not moot and that the City had Article III standing, the panel held that the DOJ's use of these two factors in evaluating for the competitive grant program did not violate the Spending Clause of the U.S. Constitution, did not exceed the DOJ's statutory authority, and did not violate the Administrative Procedure Act. View "City of Los Angeles v. Barr" on Justia Law

The Ninth Circuit held that it generally lacked jurisdiction to review a decision by the BIA not to exercise its sua sponte authority to reopen removal proceedings. In Bonilla v. Lynch, the panel held that it has jurisdiction to review denial of a motion to reopen sua sponte only for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.The panel denied a petition for review of the BIA's decision denying sua sponte reopening based on the vacatur of the criminal conviction underlying his removal order. The panel held that petitioner failed to establish legal or constitutional error in the BIA's reasoning such that the panel had jurisdiction to review that decision. View "Menendez-Gonzalez v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's dismissal of petitioner's application for cancellation of removal. The panel deferred to the BIA's decision in Matter of Cortes Medina that a conviction for indecent exposure under California Penal Code 314(1) is categorically a crime involving moral turpitude (CIMT). The panel held that it must defer to Cortes Medina pursuant to the framework outlined in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 982 (2005). Finally, the panel held that Cortes Medina applied retroactively to petitioner's case such that his section 314(1) conviction was a CIMT that made him ineligible for cancellation of removal. View "Cruz Betansos v. Barr" on Justia Law

ICE agents were not permitted to carry out preplanned mass detentions, interrogations, and arrests at a factory, without individualized reasonable suspicion. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal against petitioner and dismissal of his appeal. The panel rejected the government's argument that the evidence was sufficient to prove that petitioner's removability was not suppressible.On the merits, the panel held that petitioner's seizure was not a justified detention under Michigan v. Summers, 452 U.S. 692 (1981), which held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The panel held that Summers' categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion. Therefore, the agents violated 8 C.F.R. 287.8(b)(2) by detaining and questioning petitioner, and petitioner was entitled to suppression of the evidence gathered as a result of that violation. Finally, the panel held that the proceedings against petitioner should be terminated without prejudice. View "Perez Cruz v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable as an immigrant who at the time of application for admission lacked a valid entry document under 8 U.S.C. 1182(a)(7)(A)(i)(I), and that she was ineligible for cancellation of removal.The panel followed its binding precedent in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), cert. denied, 138 S. Ct. 1261 (2018), and Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012), holding that substantial evidence supported the BIA's decision. In Minto, the panel held that although Congress's two-year reprieve protected immigrants like petitioner from removability under 8 U.S.C. 1182(a)(6)(A)(i) on the basis that they had not been admitted or paroled into the United States, it did not exempt them from removal based on other grounds of removability. Therefore, the panel held that reprieve did not offer petitioner protection from the charge that she was an immigrant who at the time of application for admission lacked a valid entry document. The panel also held that substantial evidence supported the BIA's determination that petition failed to establish the ten years of continuous presence in the United States required for cancellation of removal. Finally, the panel lacked jurisdiction to consider petitioner's request to remand. View "Torres v. Barr" on Justia Law

The Ninth Circuit filed an order denying respondent's motion to depublish and granting the motion to amend the prior opinion, as well as an amended opinion.In the amended opinion, the panel held that petitioner's conviction under Oregon Statutes section 164.395 for robbery in the third degree is not categorically a crime involving moral turpitude. The panel held that the minimal force required for conviction was insufficient and the government waived the issue of divisibility. Therefore, petitioner was not statutorily ineligible for cancellation of removal and the panel affirmed the petition for review in part. However, the panel denied the petition for review as to the withholding of removal claim, holding that petitioner's proposed particular social group – individuals returning to Mexico who are believed to be wealthy – was overbroad. The panel remanded for further proceedings. View "Aguirre Barbosa v. Barr" on Justia Law

Petitioner sought review of the BIA's decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel denied the petition as to petitioner's claims for asylum and withholding of removal, holding that substantial evidence supported the agency's determination that petitioner committed a serious nonpolitical offense and was therefore statutorily ineligible for asylum and withholding of removal. However, the panel granted the petition in regard to plaintiff's claim for relief under CAT, holding that the IJ failed to consider evidence from petitioner's church that he is a practicing Christian and evidence from the country reports that Christians are persecuted and tortured in China. View "Jiang Guan v. Barr" on Justia Law