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

In its opinion filed August 22, 2014, a panel of the Ninth Circuit granted Petitioner’s petition for review from the Board of Immigration Appeals’ (BIA) decision finding him statutorily ineligible for cancellation of removal based on his conviction for attempted second-degree burglary under California state law. The panel held (1) the BIA impermissibly applied the modified categorical approach to determine that Rendon’s Cal. Penal Code 459 conviction qualified as an attempted theft aggravated felony; (2) under Descamps v. United States, section 459 is indivisible and its use of disjunctive language did not render it divisible; and (3) when determining whether a disjunctively worded statute is divisible requires looking to whether the state treats the parts of the statute on opposite sides of the “or” as alternative elements or alternative means. Here the panel denied a petition for panel rehearing and rejected a sua sponte en banc call. Dissenting from the denial for panel rehearing, Judge Graber wrote that when applying the modified categorical approach to a disjunctive statute, Descamps requires that the court must consult Shepard documents to determine whether the jury found or what the defendant pleaded to matches the federal definition of the relevant crime. Also dissenting, Judge Kozinski suggested an alternative reading of Descamps which would, when confronted with a disjunctively-phrased statute, look to Shepard documents for the limited purpose of determining the statute’s elements. View "Rendon v. Holder" on Justia Law

Petitioner, a citizen of Mexico, was turned over to the Department of Homeland Security (DHS), which charged him with removability as an alien who had been convicted of a crime of domestic violence. An immigration judge found Petitioner removable as charged due to his 2002 conviction under Cal. Penal Code 273.5 and sustained the charge of removability. Petitioner appealed, arguing that because the Ninth Circuit’s had decided that section 273.5 was not categorically a crime involving moral turpitude, by analogy the Court should find that section 273.5 is not a crime of domestic violence. The Board of Immigration Appeals affirmed, holding that section 273.5 is categorically a crime of domestic violence and that the negative factors outweighed the positive equities in Petitioner’s application. The Ninth Circuit affirmed, holding that 273.5 is categorically a crime of domestic violence within the meaning of 8 U.S.C. 1227(a)(12). View "Carrillo v. Holder" on Justia Law

Petitioner filed an application for deferral of removal under the Convention Against Torture (CAT), alleging that he was tortured by corrupt Mexican police officers after he was deported in 2000. The immigration judge denied the application. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal, ruling that Petitioner was not eligible for deferral of removal under CAT because he failed to establish that internal relocation within Mexico was impossible. The Ninth Circuit reversed, holding (1) although Petitioner was removed to Mexico while this petition for review was pending, this petition was not moot because there was solid evidence that Petitioner was currently present in the United States; (2) Hasan v. Ashcroft, Lemus-Galvan v. Mukasey, Singh v. Gonzales, and Perez-Ramirez v. Holder are overruled to the extent they conflict with the plain language of the regulations governing internal relocation and deferral of removal under CAT; and (3) in light of the BIA’s reliance on the Court’s previous interpretation of section 8 C.F.R. 1208.16(c)(3), the cause must be remanded to the BIA for further proceedings consistent with this opinion. View "Maldonado v. Holder" on Justia Law

Petitioners sought asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). The lead petitioner asserted that he was detained, beat, and threatened by Armenian military police after he was seen talking to a reporter following a personal confrontation with the city’s military police chief. The Board of Immigration Appeals (BIA) denied all relief. A panel of the Ninth Circuit granted Petitioners’ petition for review in part as to the asylum and withholding claims, holding (1) the BIA erred by failing to consider whether the lead petitioner was harmed on account of an imputed political opinion or his imputed whistleblowing; and (2) substantial evidence supported the denial of Petitioners’ claims based on actual political opinion, as well as the denial of Petitioners’ claims under the CAT. Remanded. View "Khudaverdyan v. Holder" on Justia Law

Petitioner seeks review of the BIA's order denying a motion to reopen on the basis of ineffective assistance of counsel. Petitioner argued that counsel was ineffective for failing to seek cancellation of removal and for pursuing only adjustment of status. The court concluded that, even assuming inadequate performance by counsel, petitioner failed to make the necessary threshold showing that his claim for cancellation of removal was plausible. In this case, petitioner presented no argument or evidence tending to show exceptional or extremely unusual hardship to a qualifying relative, a requirement for relief under 8 U.S.C. 1229b(b)(1)(D). Accordingly, the court denied the petition. View "Martinez-Hernandez v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, appealed the BIA's decision finding that his conviction for weapons possession, enhanced for sentencing purposes for gang activity, constituted a crime of moral turpitude. The court held that petitioner's sentence enhancement under California Penal Code 186.22(b)(1) does not categorically elevate a crime to a crime involving moral turpitude because the offense of weapons possession with a gang enhancement has none of the characteristics of moral turpitude the court has identified, and because California cases demonstrate that there is a realistic probability, not just a theoretical possibility, that California does in fact apply the gang enhancement that does not involve moral turpitude. Therefore, a conviction under California's gang enhancement statute does not change the crime of moral turpitude status of the predicate offense. The court held that application of the gang enhancement under section 186.22(b)(1) does not render petitioner's conviction for weapons possession under California Penal Code 12020 a crime of moral turpitude. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Hernandez-Gonzalez v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of a final order of removal where BIA found petitioner inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), and ineligible for an exception under section 1182(a)(2)(A)(ii), because he was convicted of two crimes involving moral turpitude (CIMTs). Petitioner was convicted of spousal abuse under California Penal Code 273.5(a) and threatening to commit a crime resulting in death or great bodily injury under California Penal Code 422. The court held that although the BIA correctly concluded that petitioner's conviction under section 422 is a CIMT, the BIA erred in concluding that petitioner was convicted of spousal abuse under section 273.5(a) by looking to evidence outside the record of conviction; the BIA's decision in In re Rotimi is entitled to deference; and the BIA correctly found petitioner ineligible for an extreme hardship waiver. Accordingly, the court granted the petition and remanded for further proceedings. View "Cervantes v. Holder" on Justia Law

Petitioner appealed the BIA's denial of his motion to reopen. The court held that the BIA has authority to reopen proceedings of an alien who is under a final order of removal in order to afford the alien an opportunity to pursue an adjustment of status application before USCIS; this authority is granted, at minimum, by the unambiguous language of 8 C.F.R. 1003.2(a); because the Board's contrary holding in Matter of Yauri contravenes this regulation's plain language and the court's decision in Kalilu v. Holder, the court accorded it no deference and declined to follow it; and, therefore, the court granted the petition for review in No. 10-72626 and remanded to the BIA for an exercise of the agency's discretion. The court denied the petition for review in No. 09-73798 for the reasons stated in a concurrently filed memorandum disposition. View "Singh v. Holder" on Justia Law

Defendant conditionally plead guilty to illegal reentry after having been removed and subsequently appealed his conviction, contending that his expedited removal proceedings did not comport with due process where, among other things, the immigration officer who entered the removal order failed to provide defendant with notice of the charge against him and an opportunity to respond. The court concluded that defendant exhausted all available administrative remedies and was deprived of the opportunity for judicial review; the Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause; in this case, there is no dispute that defendant had entered the United States before he was apprehended and he was entitled to expedited removal proceedings that conformed to the dictates of due process; any failure to inform defendant of the charge against him and to provide him the opportunity to review the sworn statements constituted a violation of his due process rights; defendant's due process rights to notice and an opportunity to respond were violated during his expedited removal proceedings; the court rejected the Government's argument that it should have been obvious to defendant that he was scrutinized for his presence in the United States without valid documentation; and, because defendant could plausibly been granted relief in the form of withdrawal of his application for admission, his removal order is invalid and cannot serve as the predicate for his conviction. Accordingly, the court reversed defendant's motion to dismiss the information and his conviction. View "United States v. Raya-Vaca" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision affirming a final order of removal, holding that petitioner was ineligible for cancellation of removal because he was convicted of a crime involving moral turpitude (CIMT). Petitioner was convicted under California Vehicle Code 10851(a), which criminalizes the act of driving or taking a vehicle not one's own. The California statute proscribes both conduct that does not amount to a CIMT (temporary taking) and conduct that would constitute a CIMT (permanent taking). Therefore, petitioner's conviction is not categorically a CIMT. The court also concluded that the modified categorical approach is not applicable because the California statute is not divisible, and the BIA erred in its application of the modified categorical approach. In light of Moncrieffe v. Holder, the court concluded that the record is inconclusive as to whether petitioner was convicted for intending to permanently or temporarily take a vehicle, the court must presume that he was convicted of joyriding, which is not a crime of moral turpitude. The circuit's precedent in Young v. Holder is clearly irreconcilable with Moncrieffe. Accordingly, the court granted the petition and remanded to the BIA for further proceedings. View "Almanza-Arenas v. Holder" on Justia Law