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

Petitioner, a native and citizen of India, petitioned for review of the BIA's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner testified that had suffered persecution on account of his membership in the Nirankari sect of the Sikh faith. The IJ found petitioner's testimony was not credible and the BIA agreed with the IJ's finding. The court concluded that the IJ acted within the confines of the REAL ID Act, 8 U.S.C. 1158, by considering the totality of the circumstances and basing her credibility determination on the inherent implausibility of petitioner’s account and its inconsistency with record evidence, including the Amnesty International report. Accordingly, given the language of the REAL ID Act, the IJ’s finding and the BIA’s conclusion of implausibility based on record evidence is permissible. Further, the court's precedent forecloses petitioner's argument that the BIA's decision was based on speculation and the BIA correctly concluded that because petitioner failed to qualify for asylum, he necessarily fails to satisfy the more stringent standard of withholding of removal. Finally, petitioner's claim under the CAT is based on the same statements regarding his claims for asylum and withholding of removal, and therefore, his claim for CAT relief failed. The court denied the petition for review. View "Singh v. Lynch" on Justia Law

Defendant plead guilty for being a removed immigrant found in the United States and subsequently appealed his 27-month sentence. The parties jointly requested a fast-track departure but the district court did not grant the requests. The court held that the fast-track departure is purely discretionary, such that a joint request does not necessitate departure under the Guidelines. Accordingly, the court affirmed the sentencing and judgment because defendant's sentence was substantively reasonable. View "United States v. Rosales-Gonzales" on Justia Law

Petitioner, a transgendered woman, petitioned for review of the BIA's denial of withholding of removal and denial of deferral of removal under the Convention Against Torture (CAT). Petitioner has a prior 2006 felony conviction for driving while having a .08 percent or higher blood alcohol level and causing bodily injury to another person, a violation of California Vehicle Code 23153(b). The BIA concluded that this conviction constitutes a particularly serious crime, rendering petitioner ineligible for withholding of removal. The court concluded that the BIA's decision was within its discretion. However, the court concluded that the IJ and the BIA erred in denying petitioner's application for CAT relief where the IJ failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered petitioner to be “still male,” even though she dresses as a woman, takes female hormones, and has identified as woman for over a decade. The BIA wrongly adopted the IJ's analysis, and erred in assuming that recent anti-discrimination laws in Mexico have made life safer for transgender individuals while ignoring significant record evidence of violence targeting them. Accordingly, the court granted the petition in part and remanded for a grant of relief under the CAT. View "Avendano-Hernandez v. Lynch" on Justia Law

Petitioner, a citizen of El Salvador, seeks review of the BIA's denial of his applications for withholding of removal under the Immigration and Nationality Act INA), 8 U.S.C. 1231(b)(3)(B), and the Convention Against Torture (CAT). The court held that California Penal Code section 192(a) - the voluntary manslaughter statute that petitioner was convicted under - is not categorically a crime of violence because it encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18 U.S.C. 16. Because a person may be convicted of voluntary manslaughter under CPC 192(a) for reckless conduct - conduct that falls outside the definition of a crime of violence set forth in 18 U.S.C. 16 - the court concluded that section 192(a) is not categorically a crime of violence. Consequently, petitioner is not ineligible for withholding of removal based on having been convicted of an aggravated felony particularly serious crime. Therefore, the court granted the petition for review on this basis. The court granted the petition and remanded on the ground that the BIA was required to consider all evidence relevant to the possibility of future torture, so that the BIA can evaluate petitioner’s claim for deferral of removal under the CAT by considering the aggregate risk of torture arising from petitioner’s family affiliation together with the risk arising from his status as a criminal deportee. View "Quijada-Aguilar v. Lynch" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's affirmance of the IJ's denial of his application for deferral of removal under the Convention Against Torture. The BIA held that petitioner had not established a likelihood that he would be tortured upon his return to El Salvador, or that its government would perpetrate or turn a blind eye to the torture. The court concluded that substantial evidence supported the BIA’s denial of relief on the ground that defendant’s individual characteristics, being deported from a richer country and bearing non-gang tattoos, failed to establish a probability of torture upon his return to El Salvador. Accordingly, the court denied the petition. View "Andrade v. Lynch" on Justia Law

Petitioner seeks review of the BIA's dismissal of his appeal of the IJ's decision denying petitioner's claim to derivative citizenship and ordering him removed. Petitioner claims that he has derivative citizenship under 8 U.S.C. 1431(a) from his United States citizen stepfather. The court held that, under Mater of Guzman-Gomez, the definition of “child” in section 1101(c)(1) does not include stepchildren. Further, canons of construction, as well as the legislative history of the section, which the court used as an interpretive tool to understand Congress’s purpose in enacting it, lead the court to reject petitioner's claim that the reference in section 1101(b)(1) contained in section 1431(b) should be read also to apply to section 1431(a). Accordingly, the court denied the petition. View "Acevedo v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision that he was not entitled to tolling because he “failed to establish that his prior attorney engaged in ineffective assistance.” The court agreed with petitioner's argument that his lawyer’s bad advice caused him to forfeit his right to appeal the IJ’s denial of his application for cancellation of removal. The court concluded that petitioner has met the substantive requirement of demonstrating that his counsel performed deficiently and that he suffered prejudice as a result. Accordingly, petitioner is entitled to equitable tolling in the filing of his motion to reopen. The court granted the petition and remanded. View "Salazar-Gonzalez v. Lynch" on Justia Law

Petitioner, a Mexican national, petitioned for review of the BIA's order affirming the IJ's denial of his motion for a continuance. The court concluded that 8 U.S.C. 1252(a)(2)(C) precludes the court from exercising jurisdicition, and that section 1252(a)(2)(C) does not bar review of the denial of procedural motions that are independent of the merits of the removal order. The court held that, in this case, the IJ did not abuse its discretion in denying petitioner's motion for a continuance because petitioner claimed that he would have used the additional time to seek postconviction relief, but he had previously sought such relief to no avail. Further, the IJ had previously continued petitioner’s proceedings three times for various procedural reasons. View "Garcia v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, appealed the BIA's decision finding that his California state petty theft conviction constituted an aggravated felony theft offense pursuant to 8 U.S.C. 1101(a)(43)(G). The court adhered to the methodology established by Descamps v. United States and its follow-on opinion in Rendon v. Holder, and concluded that a conviction under California’s theft statute is not an aggravated felony because it is not a “theft offense” as defined by section 1101(a)(43)(G). The court further stated that a conviction for “theft” in California is categorically not a “generic theft offense” because it is both “overbroad” and “indivisible,” and thus not susceptible to the “modified categorical approach.” To the extent that United States v. Rivera, Carillo-Jaime v. Holder, and United States v. Corona-Sanchez suggested that a conviction for theft in California could qualify as a generic theft offense, the court concluded that those cases are “clearly irreconcilable” with Descamps. The court granted the petition for review and remanded for further proceedings. View "Lopez-Valencia v. Lynch" on Justia Law

Defendant appealed his conviction and sentence for illegal reentry after deportation or removal. The court concluded that the new definition in section 321(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. 1101(a)(43)(G), made theft offenses aggravated felonies so long as the defendant was sentenced to one year or more in prison, rather than five years or more; that new definition applies to convictions “before, on, or after the date of enactment;” in this case, the IJ correctly decided that defendant's robbery conviction was an aggravated felony because the term of imprisonment for his offense exceeded one year; the IJ correctly decided that defendant’s robbery conviction was an aggravated felony, and did not err when she failed to inform him that he might be entitled to relief under 8 U.S.C. 1182(h); but, the IJ erred when she failed to tell defendant of the possibility that 8 U.S.C. 1182(c) relief was available and that violated his due process rights. Accordingly, the court vacated the conviction and remanded for further proceedings. View "United States v. Guzman-Ibarez" on Justia Law