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

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

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