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

Petitioners David and Miguel Correo-Ruiz, citizens of Mexico and brothers, challenged the BIA's holding that individuals like petitioners, who entered the United States unlawfully and then applied for adjustment of status under a provision of the immigration laws permitting non-citizens to become lawful permanent residents, are categorically ineligible for relief under 8 U.S.C. 1255(i). In Garfias-Rodriguez v. Holder, the court upheld the BIA’s interpretation of the law and adopted a five-factor test for determining whether In re Briones may be applied retroactively in a given case. Petitioners assert that they incurred legal expenses pursuing section 1255(i) relief during the 21-month period between Acosta v. Gonzales and Briones. In Garfias-Rodriguez, the court suggested that incurring such expenses could potentially tilt the second and third factors in the petitioner’s favor. Because the record does not reflect the amount of the expenses petitioners incurred during the relevant 21-month window, the court remanded to the BIA with instructions to grant the brothers an opportunity to supplement the record. The BIA can then assess in the first instance, under the five-factor test, whether Briones may be applied retroactively in this case. The court granted the petition for review and remanded. View "Correo-Ruiz v. Lynch" on Justia Law

Petitioner, a citizen of North Korea, petitioned for review of the BIA's denial of asylum under the firm resettlement doctrine. The court held that section 302 of the North Korean Human Rights Act of 2004, 22 U.S.C. 7842, does not preclude a finding that a North Korean has “firmly resettled” in South Korea, 8 U.S.C. 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15, even though he otherwise meets the requirements of firm resettlement. Consequently, section 7842 does not affect the BIA's conclusion that petitioner has resettled in South Korea and therefore, the court denied the petition for review. View "Sung Kil Jang v. Lynch" on Justia Law

Petitioner, an adopted son of a natural-born U.S. citizen father and naturalized U.S. citizen mother, petitioned for review of his citizenship claim. The IJ agreed with petitioner that he was not removable because he obtained automatic derivative citizenship from his parents upon his adoption. The BIA concluded, however, that petitioner has not met his burden to establish citizenship. The BIA vacated the IJ's termination order and remanded. The court concluded that it lacked jurisdiction to consider petitioner's citizenship claim where petitioner has not been ordered removed, and rejected petitioner's claim that the statutory provision for review of nationality claims under 8 U.S.C. 1252(b)(5) creates an exception to the court's limitation to review of final orders. Accordingly, the court dismissed the petition for lack of jurisdiction. View "Viloria v. Lynch" on Justia Law

Petitioner seeks review of the BIA's decision affirming the denial of his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT). The BIA recently clarified the criteria for assessing social group claims in Matter of M-E-V-G-. Under the Board’s refined test, to establish eligibility for withholding on the basis of “membership in a particular social group,” a petitioner must show that the group is (1) comprised of individuals who “share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The new “social distinction” prong of the social group analysis “refers to social recognition” and requires that a group “be perceived as a group by society.” The BIA further clarified that recognition of a particular social group “is determined by the perception of the society in question, rather than by the perception of the persecutor.” Under the refined framework, the court concluded that the family remains the quintessential particular social group. In this case, petitioner argued that he faced persecution in his native Guatemala both because of a gang vendetta targeting his family - a cognizable “particular social group” - and because of his Evangelical Christian faith. The court concluded that, in the face of petitioner's social group claim and the evidence that gang members killed petitioner’s father, murdered his cousin and threatened his sister, the BIA erred in not addressing the family aspect of petitioner’s social group claim. View "Flores-Rios v. Lynch" on Justia Law

Petitioner, a citizen of Mexico and a gay man, challenged the BIA's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), and denying his motion to remand to the IJ in light of his recent HIV diagnosis. The court concluded that, in light of Castro-Martinez v. Holder, substantial evidence supports the BIA’s determinations that petitioner failed to establish past persecution or a well-founded fear of future persecution, and he is thus ineligible for asylum. The court's holding in Castro-Martinez forecloses petitioner's “pattern or practice of persecution” argument, and he failed to exhaust his argument that he will be “singled out” as a member of a “disfavored group.” Because petitioner failed to meet his burden to establish eligibility for asylum, he also fails the higher burden required to obtain withholding of removal. And because substantial evidence supported the BIA’s denial of CAT relief, the court denied the petition with respect to petitioner's claim under the CAT. Petitioner failed to establish a likelihood of torture: Conditions in Mexico are insufficiently dangerous for gay people to constitute a likelihood of government-initiated or -sanctioned torture. Finally, the BIA did not abuse its discretion in finding that petitioner’s HIV diagnosis, standing alone, does not require a remand to the IJ. View "Bringas-Rodriguez v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's finding of removeability and determination that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude (CIMT) for which a sentence of one year or longer may be imposed pursuant to 8 U.S.C. 1229b(b). The court affirmed the BIA’s finding that petitioner's violation of Nev. Rev. Stat. 205.690(2) and 199.480, possession of a credit card or debit card without the consent of the cardholder, is a categorical CIMT. Further, petitioner is not entitled to a petty offense exception in section 1182(a)(2)(A)(ii) because the exception is only available to aliens whose CIMT conviction did not have a maximum possible penalty of imprisonment for a year or more. The court concluded that a conspiracy conviction under Nev. Rev. Stat. 199.480 is a gross misdemeanor potentially punishable by one year imprisonment, and is covered by section 1227(a)(2)(A)(i)(I). Although petitioner was not sentenced to a year imprisonment, the court deferred to the BIA’s reasonable approach of considering the sentence that could have been imposed, not the actual sentence. Finally, the court concluded that petitioner's reliance on the Fourth Circuit decision in Soliman v. Gonzales is unavailing. Accordingly, the court dismissed the petition for review. View "Mancilla-Delafuente v. Lynch" on Justia Law

Petitioner, a native and citizen of the Philippines, seeks review of the BIA's determination that a conviction for burglary under California Penal Code Section 459 is categorically a “crime of violence” as defined by 8 U.S.C. 1101(a)(43)(F). While the petition was pending, the Supreme Court decided Johnson v. United States, which held that the Armed Career Criminal Act's (ACCA), 18 U.S.C. 924, residual clause definition of a violent felony is unconstitutionally vague. The court reaffirmed that petitioner may bring a void for vagueness challenge to the definition of a crime of violence in the INA. The court held that, as with the ACCA, 18 U.S.C. 16(b) requires courts to 1) measure the risk by an indeterminate standard of a “judicially imagined ‘ordinary case,’” not by real world-facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial. Pursuant to Johnson, these uncertainties render the INA provision unconstitutionally vague. Accordingly, the court granted the petition and remanded for further proceedings. View "Dimaya v. Lynch" on Justia Law

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision finding him statutorily ineligible for cancellation of removal for failure to accrue the requisite period of continuous physical presence by the time he was served with the Notice to Appear (NTA) in his removal proceeding. The court applied Chevron deference and affirmed the BIA's conclusion that service of the NTA triggers the stop-time rule even if the NTA does not include the date and location of the hearing. In this case, petitioner had accumulated only eight years’ physical presence in the United States, rather than the 10 years required. Accordingly, the BIA correctly determined that petitioner was statutorily ineligible for cancellation of removal. The court denied the petition and dismissed in part. The court addressed petitioner's other arguments in an unpublished memorandum opinion. View "Moscoso-Castellanos v. Lynch" on Justia Law

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision ruling that petitioner is inadmissible under 8 U.S.C. 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity, and dismissing his appeal from the IJ's order of removal. The court held that the BIA did not err when it determined that an attempted coup against the Philippine government was unlawful under Philippine law, and that petitioner “engaged” in the coup by planning it. But assuming that the question whether the coup participants lacked an “intent to endanger, directly or indirectly, the safety of one or more individuals,” is a question of fact, the BIA erred in failing to apply clear error review to the IJ’s finding that the coup participants lacked such intent. Accordingly, the court granted the petition for review and remanded for the BIA to reconsider the IJ’s decision applying the clear error standard of review. View "Zumel v. Lynch" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the IJ's affirmance of an asylum officer's negative credible fear determination. The court dismissed the petition for review based on lack of jurisdiction to review petitioner's challenge to his expedited removal proceedings pursuant to the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(A). The court concluded that because the jurisdiction-stripping provisions of the statute retain some avenues of judicial review, limited though they may be, petitioner has not been unconstitutionally denied a judicial forum. View "Pena v. Lynch" on Justia Law