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

Defendant conditionally plead guilty to being a previously removed alien illegally found in the United States in violation of 8 U.S.C. 1326(a). On appeal, defendant contended that the district court erred in concluding that he failed to demonstrate that his expedited removal in 2012 was fundamentally unfair; and in refusing to order the government to produce statistics about the numbers of individuals with a background similar to his who were granted a form of discretionary relief. The court concluded that defendant failed to demonstrate that his 2012 expedited removal was fundamentally unfair where, even assuming the existence of a due process violation, defendant has failed to carry his burden of demonstrating prejudice flowing from such violation. Defendant failed to demonstrate that absent such violation, relief in the form of withdrawal of application of admission was plausible. Further, the statistics defendant sought are not presently available and can not be accurately compiled even with the expenditure of significant resources. Accordingly, the court affirmed the judgment. View "United States v. Garcia-Gonzalez" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's decision finding him removeable based on his no contest plea to a methamphetamine-related crime. Petitioner was charged with sale of methamphetamine under California Health and Safety Code section 11379(a) but pleaded to - and was convicted of - a “lesser included/reasonably related offense” to the charge under section 11377. The court applied the modified categorical approach and held that there is clear and convincing evidence in the documents permissible for review that petitioner pleaded to - and was convicted of - possession of methamphetamine. Therefore, petitioner is removable as an aggravated felon. The court denied the petition. View "Ruiz-Vidal v. Lynch" on Justia Law

Petitioner, a citizen of the Philippines, sought review of the BIA's dismissal of his appeal of the IJ's order of removal. The BIA concluded that petitioner's conviction under Cal. Penal Code 417.26 for "unlawful laser activity" was a crime involving moral turpitude (CIMT). Petitioner used a laser device in the hallway of a county criminal courthouse. The court concluded that section 417.26 can be violated with conduct that bears a striking resemblance to non-turpitudinous simple assault, and little similarity to turpitudinous terrorizing acts. Therefore, a violation of section 417.26 is not categorically a CIMT. Applying the categorical approach, the court concluded that it was not satisfied. Accordingly, the court granted the petition. View "Coquico v. Lynch" on Justia Law

In Matter of Armendarez-Mendez, the BIA held that the regulatory departure bar survives the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. 1229a(c)(6)(A), 1229a(c)(7)(A). At issue was whether the regulatory departure bar conflicts with IIRIRA’s statutory guarantee that noncitizens may file one motion to reopen and one motion to reconsider irrespective of whether they previously departed the United States. Consistent with every other circuit that has addressed the issue, the court held that the regulatory departure bar is invalid irrespective of how the noncitizen departed the United States. In this case, the BIA erred by refusing to exercise jurisdiction over petitioner’s motion to reopen and to reconsider on the basis of the regulatory departure bars. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Toor v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's finding of removeability based on the ground that she was convicted of an aggravated felony. Petitioner's conviction for conspiracy to commit money laundering in violation of 18 U.S.C. 1956(h) qualifies as an aggravated felony “if the amount of the funds exceeded $10,000.” 8 U.S.C. 1101(a)(43)(D). In light of the Supreme Court's reasoning in Nijhawan v. Holder, the court concluded that the BIA correctly found that the $10,000 monetary threshold in section 1101(a)(43)(D) refers to the “specific circumstances” of a money laundering offense as opposed to an element of a generic crime. Therefore, the BIA was not limited to the categorical approach of examining the language of the statute of conviction, and instead properly relied on the presentence report (“PSR”) to determine whether the $10,000 threshold amount was met. In this case, the BIA did not err in concluding that the specific circumstances of petitioner’s conviction met the monetary threshold of $10,000 or more, and she is therefore an aggravated felon. Accordingly, the court denied the petition. View "Fuentes v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's denial of his application for cancellation of removal, holding that petitioner did not meet the statutory seven-year residency requirement because, under In re Reza-Murillo, his acceptance into the Family Unity Program (FUP) did not constitute an admission into the United States for purposes of 8 U.S.C. 1229b(a)(2). The court concluded, however, that the BIA's decision conflicts with its decision in Garcia-Quintero v. Gonzales. But, applying the rule announced in National Cable & Telecommunications Ass’n v. Brand X Internet Services, the court must afford Chevron deference to the BIA’s decision in In re Reza-Murillo. Accordingly, the court denied the petition. View "Medina-Nunez" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the the BIA's dismissal of his challenge to a decision by an IJ denying his application for special rule cancellation of removal for batter spouses under 8 U.S.C. 1229b(b)(2). At issue was whether petitioner was entitled to seek a waiver of inadmissibility under 8 U.S.C. 1182(h)(2) in conjunction with his application for special rule cancellation. The court concluded that petitioner's status as a special rule cancellation applicant did not render him eligible to pursue a section 212(h) waiver, nor did he qualify for such relief under any alternative approach. Accordingly, the court denied the petition for review. View "Garcia-Mendez v. Lynch" on Justia Law

Petitioner, a citizen of Palau and resident of the Commonwealth of the Northern Mariana Islands (CNMI), petitioned for review of an order of removal based on his conviction for assault with a dangerous weapon under CNMI law, 6 N. Mar. I. Code 1204(a). Petitioner contended that the order violated CNMI's right to self-government and was an impermissible retroactive application of law. The court rejected these challenges, concluding that the United States immigration laws may properly be applied and enforced within CNMI to petitioner even though he entered that territory, committed the crime, and suffered the conviction upon which the removal order is based prior to the extension of United States immigration laws to the Commonwealth. The court also concluded that the conviction was for a crime involving moral turpitude and rejected defendant's contention that he is eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h). Accordingly, the court denied the petition for review. View "Mtoched v. Lynch" on Justia Law

Petitioner, a native and citizen of the Philippines, was incorrectly advised by an IJ that his prior conviction was for an aggravated felony and that he was therefore ineligible for relief from removal. Based on that advice, petitioner waived his appeal. The court concluded that petitioner's conviction for grand theft under California Penal Code 487(a) is not categorically an aggravated felony because section 487(a) is doubly overbroad because it permits a conviction for theft of labor, while the generic definition of theft does not. Further, section 487(a) incorporates the general definition of theft, which is found at California Penal Code 484(a). An individual may be convicted of theft under section 484(a), and therefore grand theft under section 487(a), even if the victim consented to transfer his property. The court concluded that petitioner's waiver of his right to appeal to the BIA was not considered and intelligent, and the BIA should have granted his motion for reconsideration. Accordingly, the court granted the petition and remanded for further proceedings. View "Garcia v. Lynch" on Justia Law

Petitioner appealed the denial of his 28 U.S.C. 2241 habeas corpus petition, challenging the district court's conclusion that his detention by immigration authorities never constitutes "official detention" within the meaning of 18 U.S.C. 3585(b), the statute governing the calculation of a term of imprisonment. Petitioner was detained by ICE prior the commencement of his criminal sentence of illegal reentry. The court held that when immigration officials detain an alien pending potential prosecution, the alien is entitled under section 3585(b) to credit toward his criminal sentence; an alien is entitled to credit for all time spent in ICE detention subsequent to his indictment or the filing of formal criminal charges against him; and where a factual dispute exists, the district court must hold an evidentiary hearing as to whether an alien’s detention by ICE prior to the date of his indictment or the filing of criminal charges against him constituted detention pending prosecution. Accordingly, the court reversed and remanded for the district court to determine in the first instance whether and when during the pre-indictment period petitioner's detention status changed from detention pending deportation to detention pending potential prosecution. On remand, the government has the burden of proving that the pre-indictment detention was for the purpose of deportation rather than potential prosecution. View "Zavala v. Ives" on Justia Law