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

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 The court addressed petitioner's other arguments in an unpublished memorandum opinion.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

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