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

Defendant appealed his conviction for attempted illegal reentry after deportation in violation of 8 U.S.C. Section 1326. He contends that the district court erred in denying his motion to dismiss his information for violations of the Speedy Trial Act.   The Ninth Circuit affirmed. The court concluded that the district court did not clearly err in excluding periods of delay resulting from ends-of-justice continuances granted due to events caused by the global COVID-19 pandemic. The panel concluded that the district court complied with the applicable statutory requirements. First, the district court’s finding that the ends of justice were best served by granting continuances during the period from August 14, 2020, until December 1, 2020, was timely because the district court put this finding on the record during the July 12, 2021, hearing on Defendant’s motion to dismiss under 18 U.S.C. Section 3162(a)(2). The continuances were also specifically limited in time to successive 30-day periods. Next, the district court made the requisite findings under Section 3161(h)(7)(A). The panel rejected Defendant’s argument that the district court erred by not dismissing his information on the ground that 8 U.S.C. Section 1326 violates the Equal Protection Clause. View "USA V. ARMANDO OROZCO-BARRON" on Justia Law

Plaintiff entered the United States in 1981 and became a lawful permanent resident in 1990. He has been married to his U.S. citizen wife, with whom he has two U.S. citizen children, since 1993. After being convicted of possession of a controlled substance for sale under California law, he was ordered removed in absentia and deported in 1999. He re-entered the United States without authorization shortly thereafter. In 2008, during a school festival, Plaintiff tackled an active shooter, knocked his gun away and helped restrain the shooter till law enforcement arrived. In 2010, the Department of Homeland Security apprehended Plaintiff and reinstated his 1996 removal order. To avoid removal, Plaintiff applied for a U-visa and a waiver of inadmissibility. USCIS denied Plaintiff’s request for a waiver of inadmissibility as a matter of discretion and subsequently denied his U-visa application on account of his inadmissibility.   The Ninth Circuit affirmed the district court’s dismissal. The panel held that Section 1252(a)(2)(B)(ii) precludes judicial review of USCIS’s denial of a waiver of inadmissibility under Section 1182(d)(3)(A)(ii) because the latter statute commits the decision to the agency’s sole discretion. The panel rejected Plaintiff’s contention that the district court had jurisdiction to hear his claim. The panel concluded that by all accounts, Plaintiff demonstrated remarkable courage by intervening to stop an active shooter,  and his efforts to care for his wife were equally worthy of praise. But however compelling his objections to USCIS’s denial of a waiver of inadmissibility may be, judicial review of that decision was barred by 8 U.S.C. Section 1252(a)(2)(B)(ii). View "JAIRO VEGA V. UNITED STATES CITIZENSHIP SERV, ET AL" on Justia Law

Petitioner petitioned for review of an order by the Board of Immigration Appeals (BIA) denying his second motion to reopen removal proceedings. Petitioner’s more pressing concern is to avoid a decision on the merits of this petition for review until he has successfully obtained relief from removal. To do so, he joins the government’s request to transfer this matter to mediation.   The Ninth Circuit denied Petitioner’s and denied the parties’ joint request to send this case to mediation in order to put the appeal into abeyance while Petitioner pursued other forms of relief from removal. The panel found that the parties had not disguised the fact that the objective of transferring the matter to mediation was to delay Petitioner’s removal from the country until the government had agreed to provide discretionary relief. The panel wrote that it was an abuse of the court’s mediation process to use it for a purpose unrelated to resolving disputes and as a substitute for the issuance of a stay. The panel additionally noted that the government had numerous means to avoid enforcement against Petitioner, including specific procedural tools to hold Petitioner's case in abeyance, such as remanding the matter to the BIA, moving to reopen proceedings with the BIA or to dismiss the proceedings, requesting a continuance from the BIA, or simply deciding not to execute Petitioner’s final order of removal—decisions which are the prerogative of the Executive Branch, not the judiciary. Thus, the panel denied the motion to refer to mediation. View "NSHAN AYANIAN V. MERRICK GARLAND" on Justia Law

Petitioner was convicted under Wash. Rev. Code Section 9A.56.190 and served a fifteen-month prison sentence. The BIA concluded that he was removable for having committed an aggravated felony under 8 U.S.C. Section 1101(a)(43)(G), which describes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.”   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. Section 1101(a)(43)(G). A plurality of the court concluded that it was necessary to consider Washington's accomplice liability in conducting the categorical analysis of Washington robbery. The plurality explained that, in Valdivia-Flores, the court relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the Supreme Court concluded that generic theft encompasses aiding and abetting. Because Petitioner’s conviction did not establish that he acted as a principal, the plurality concluded that it must consider the possibility he acted as an accomplice. Having held that second-degree robbery under Wash. Rev. Code Section  9A.56.190 is a categorical match with generic theft, the en banc court concluded that Petitioner had been convicted of an aggravated felony and denied his petition for review. View "MCKENZY ALFRED V. MERRICK GARLAND" on Justia Law

Petitioner was born in the former Soviet Union in what is now Armenia. He entered the United States with his family in 1992 at age seven, becoming a lawful permanent resident in 1994. Petitioner and several others were charged in a 20-count indictment in district court and the Department of Homeland Security sought Petitioner’s removal. An Immigration Judge (IJ) found that Petitioner’s conspiracy conviction rendered him removable and that he was not entitled to relief from removal. The IJ thus ordered that Petitioner be removed to Armenia. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit dismissed in part and denied in part Petitioner’s petition for review. The panel held that: (1) in evaluating whether the government has satisfied the “exceed[ing] $10,000” requirement, the relevant loss amount for a conspiracy conviction is the loss associated with the conspiracy; and (2) the agreed-upon sentencing enhancement in Petitioner’s plea agreement was sufficient to prove that his offense of conviction involved more than $10,000 in losses. The panel held that under Section 1101(a)(43)(M)(i), the loss tied to a conspiracy conviction is the loss associated with the scheme that forms the basis for the conviction. The panel explained that when an alien has been convicted of a conspiracy to commit a qualifying crime of “fraud or deceit,” the government need not ascribe to the alien coconspirator some individual portion of the overall conspiracy-related loss to demonstrate that the loss threshold has been satisfied. The panel also concluded that the government had met its burden of proving that the conspiracy to which Petitioner pleaded guilty involved more than $10,000 in losses. View "ARMAN KHALULYAN V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenged the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case.   The Ninth Circuit dismissed the defective NTA claim for lack of jurisdiction and denied the petition as to the CAT claim. The panel granted the petition and remanded as to the administrative closure issue, given the government’s recommendation that the panel does so based on an intervening decision by the Attorney General. The panel granted the petition and remanded as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm. The panel concluded that substantial evidence supported the agency’s determination that Petitioner failed to establish the requisite government involvement or government acquiescence to any torture View "JOSUE UMANA-ESCOBAR V. MERRICK GARLAND" on Justia Law

Petitioner entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Petitioner’s OSC did not list the time and place of his proceedings. Petitioner sought suspension of deportation, a form of relief available prior to IIRIRA. IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals like Petitioner, whose proceedings were pending when IIRIRA was enacted, this stop-time rule applies retroactively to proceedings initiated by an OSC.   Accordingly, Petitioner’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Petitioner contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable.   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision, the panel held that: 1) an OSC that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Petitioner’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the CAT. View "WINSTON GUTIERREZ-ALM V. MERRICK GARLAND" on Justia Law

In a case in which federal civil immigration detainees— who are held in the Northeast ICE Processing Center (“NWIPC”), a private detention center in Tacoma, Washington, operated by GEO Group—challenge GEO’s practice of paying them less than the State’s minimum wage to work at the detention center, the Ninth Circuit certified the following questions to the Washington Supreme Court:1) In the circumstances of this case, are the detained workers at NWIPC employees within the meaning of Washington’s Minimum Wage Act (“MWA”)? 2) If the answer to the first question is yes, does the MWA apply to work performed in comparable circumstances by civil detainees confined in a private detention facility operating under a contract with the State? 3) If the answer to the first question is yes and the answer to the second question is no, and assuming that the damage award to the detained workers is sustained, is that damage award an adequate legal remedy that would foreclose equitable relief to the State in the form of an unjust enrichment award? View "UGOCHUKWU NWAUZOR, ET AL V. THE GEO GROUP, INC." on Justia Law

A jury convicted Defendant of felonious assault on a peace officer under section 2903.13(A) of the Ohio Revised Code and misdemeanor resisting arrest. While Defendant was in prison, he was served with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice alleged that Defendant was a Mexican citizen in the country illegally who had been convicted of an aggravated felony and was thus removable. The notice alleged that his conviction qualified as an aggravated felony because it was a crime of violence under the INA. Defendant was once again arrested and charged with illegal reentry. Defendant moved to dismiss the indictment, arguing that his section 2903.13(A) assault conviction was not an aggravated felony. The district court denied Defendant’s motion.   The Ninth Circuit affirmed. The panel disagreed with Defendant’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Defendant also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. The panel explained that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel, therefore, concluded that section 2903.13(a) is a crime of violence under Section 16(a), it thus qualifies as an aggravated felony under Section 1101(a)(43)(F), and Defendant’s removal order was not fundamentally unfair. View "USA V. JACINTO ALVAREZ" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. Although the Board entertained the government’s challenge to a portion of the immigration judge’s decision in Petitioner’s case, it declined to consider Petitioner’s challenges to that decision because Petitioner had not filed a cross-appeal. Petitioner argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the immigration judge’s alternative order on the merits of his claims.The Ninth Circuit affirmed. The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross-appeals. Rather, the Board has authority to prescribe its own rules of procedure so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel concluded that it lacked jurisdiction to consider Petitioner’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board. View "JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND" on Justia Law