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

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

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