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

The Ninth Circuit filed 1) an order granting a petition for panel rehearing, amending the opinion filed on September 14, 2017, which was previously withdrawn, and denying a petition for rehearing en banc; and 2) an amended opinion denying a petition for review of the BIA's decision.In the amended opinion, the panel held that petitioner's conviction for class one misdemeanor domestic violence assault under Arizona Revised Statutes 13-1203 and 13-3601 was a crime of domestic violence under 8 U.S.C. 1227(a)(2)(E) that rendered him removable. The panel held that the statute was divisible and, under the modified categorical approach, there was a sufficient factual basis to support that petitioner intentionally or knowingly caused any physical injury to another person. Furthermore, the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes 3-3601(A), were coextensive with the domestic relationships described in section 1227(a)(2)(E)(i). Therefore, petitioner's misdemeanor domestic violence conviction was a crime of domestic violence under section 1227(a)(2)(E), and he was removeable. View "Cornejo-Villagrana v. Whitaker" on Justia Law

Retroactivity analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner removable because he committed two crimes involving moral turpitude (CIMT) when he was convicted of felony endangerment under Arizona Revised Statutes 13-1201 and facilitation to commit unlawful possession of marijuana for sale.Applying Montgomery Ward to this case, the panel held that there was no change in law raising retroactivity concerns. Therefore, the BIA did not err by applying Leal I, In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), to conclude that Arizona endangerment is a CIMT. Finally, the panel rejected petitioner's claim regarding Leal II, claims under In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008), preclusion claims, and an 8 U.S.C. 1227(a)(2)(A)(ii) claim. View "Olivas-Motta v. Whitaker" on Justia Law

The Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. 1003.1(c) is committed to agency discretion. Petitioner, a Pakistani national, sought review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his claim for ineffective assistance of counsel. The panel dismissed the appeal of the failure to certify petitioner's claim and held that it did not have jurisdiction to review the IJ and BIA's decision not to certify. The panel denied petitioner's due process claim challenging the same lack of certification, holding that abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims. View "Idrees v. Whitaker" on Justia Law

8 U.S.C. 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep. Subsection (iv) permits a felony prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law. The Ninth Circuit reversed defendant's conviction with respect to the "encourage or induce" counts. The panel affirmed with respect to the mail fraud counts in a memorandum disposition. View "United States v. Sineneng-Smith" on Justia Law

In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law

The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing.The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). View "Martinez-de Ryan v. Whitaker" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of a final order of removal, challenging the BIA's determination that he was convicted of a "particularly serious crime" within the meaning of 8 U.S.C. 1231(b)(3)(B)(ii), which rendered him ineligible for statutory withholding of removal and withholding of removal under the Convention Against Torture (CAT).The Ninth Circuit held that the statutory phrase "particularly serious crime" was not unconstitutionally vague on its face. The panel reasoned that the "particularly serious crime" inquiry requires an imprecise line-drawing exercise, but it was no less certain than the "perfectly constitutional statutes" that the Supreme Court discussed. The panel held that the fatal combination in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which applied an uncertain standard to an idealized crime on the context of the categorical approach, was not present in this circumstance, because the particularly serious crime inquiry requires consideration of what a petitioner actually did. View "Melgoza Guerrero v. Whitaker" on Justia Law

The government's decision to rescind the Deferred Action for Childhood Arrivals (DACA) program is subject to judicial review. Upon review, the Ninth Circuit held that plaintiffs are likely to succeed on their claim that the rescission of DACA is arbitrary, capricious, or otherwise not in accordance with law.After concluding that neither the Administrative Procedure Act (APA) nor the Immigration and Nationality Act (INA) precluded judicial review, the panel held that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit's conclusion that the related Deferred Action for Parent Arrivals (DAPA) program exceeded DHS's statutory authority. In this case, DACA was being implemented in a manner that reflected discretionary, case-by-base review, and at least one of the Fifth Circuit's key rationales in striking down DAPA was inapplicable with respect to DACA. Therefore, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, the panel held that plaintiffs were likely to succeed in demonstrating that the rescission must be set aside.The panel also held that the district court did not abuse its discretion in issuing a nationwide injunction; the district court properly dismissed plaintiffs' APA notice and comment claim and substantive due process rights claim; and the district court properly denied the government's motion to dismiss plaintiffs' APA arbitrary and capricious claim, due process rights claim, and equal protection claim. Accordingly, the panel affirmed the district court's grant of preliminary injunctive relief, and affirmed in part the district court's partial grant and partial denial of the government's motion to dismiss. View "Regents of the University of California v. USDHS" on Justia Law

California Penal Code 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither categorically a crime involving moral turpitude nor categorically a "crime of child abuse." The Ninth Circuit explained that because the offense required only sexual intent, and because a good-faith reasonable mistake of age was not a defense, a defendant was not required to have evil or malicious intent. The panel also held that section 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach did not apply.The panel granted separate petitions for review of the BIA's decision. The panel held that the BIA erred in concluding that Menendez's conviction triggered the stop-time rule and rendered her ineligible for cancellation. In regard to Rodriguez-Castellon's petition, the panel held that section 288(c)(1) was not categorically a crime of child abuse under 8 U.S.C. 1227(a)(2)(E)(1), because it was broader than the generic definition of a crime of child abuse. View "De Jesus Menendez v. Whitaker" on Justia Law

A grant of regulatory employment authorization under 8 C.F.R. 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. 1255(k)(2). The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner, the beneficiary of an H-1B visa, ineligible for status adjustment. In this case, petitioner's employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Although petitioner was legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. 274a.12(b)(20), the BIA correctly concluded that petitioner was ineligible for status of adjustment. View "Xiao Ma v. Sessions" on Justia Law