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

Petitioner, a native and citizen of Mexico, sought review of the BIA's dismissal of his appeal of a final order of removal. Petitioner pled guilty to felony endangerment and misdemeanor driving under the influence of intoxicating liquor under Arizona law. Applying Chevron deference, the court held that the BIA reasonably determined that felony endangerment in Arizona is a crime involving moral turpitude (CIMT). Although the crime requires only reckless conduct, the level of harm resulting from the conduct is grave. The court agreed with the BIA that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of the court's case law "base, vile, and depraved," to establish a CIMT, even though no actual harm need occur. The court held that excessive voluntary intoxication combined with the conduct at issue - creation of a substantial, actual risk of imminent death of another person - constitutes morally turpitudinous conduct. Accordingly, the court denied the petition for review. View "Leal v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of a final order of removal where the BIA held that she was ineligible for cancellation of removal. The court held that petitioner's conviction for taking the identity of another in violation of Arizona Revised Statutes 13-2008(A) is not a categorical crime involving moral turpitude. The statute is divisible, and not every possible variation of the crime requires proof of fraud. In this case, petitioner admitted to using a real person's identity, without that person's knowledge or consent, to obtain employment. Applying the modified categorical approach, the court concluded that the Board reasonably held that stealing a real person's identity for the purpose of obtaining employment is inherently fraudulent and that it involves moral turpitude. Accordingly, the court denied the petition for review. View "Ibarra-Hernandez v. Holder" on Justia Law

Petitioner, a native and citizen of Kenya, petitioned for review of the BIA's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that, in denying petitioner's motion to admit additional evidence, the IJ did not address each of the An Na Peng v. Holder factors; the BIA affirmed on the same grounds; and this denial constitutes an abuse of discretion because the agency's reasoning is based on legal error and is inconsistent with the An Na Peng factors. The court also concluded that, the BIA erred as a legal matter in concluding that the arrest warrant was not properly authenticated. The court remanded to the BIA for reconsideration in light of the factors outlined in An Na Peng. The court remanded to the agency for consideration of whether the disclosure of petitioner's allegations of arrest and detention by the Kenyan police gives rise to a new claim under the CAT; the court found that the BIA erred in concluding that the disclosure did not give rise to a reasonable inference that petitioner was seeking asylum in the United States; the court directed the agency on remand to determine whether this indication that petitioner was seeking asylum-related relief gives rise to a new claim under the CAT; petitioner's due process claims are either foreclosed or the court lacked jurisdiction to consider it; in denying CAT relief, the agency failed to justify its rejection of evidence indicating that petitioner had been arrested previously and is at risk of being arrested against; the court remanded to the agency to consider all evidence in support of petitioner's claim or to explain its reasons for discounting it; the BIA, in affirming the IJ's adverse credibility determination, erred in relying on petitioner's submission of purportedly fraudulent arrest documents and inconsistencies in his arrest dates and medical records; the court remanded for the agency to reexamine its credibility analysis; and, therefore, the court granted the petition for review. View "Owino v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's order of removal. Petitioner was convicted under Ariz. Rev. Stat. 13-2002(A) for using false information in order to obtain employment. The court held that Congress has not exempted state fraud convictions from characterization as crimes involving moral turpitude, when the underlying conduct involved fraud in an application for employment. Beltran-Tirado v. INS, which held that the amendment to the social security laws, that granted immunity from prosecution for longstanding resident aliens who used a false social security number to obtain employment, expressed congressional intent that such conduct did not establish moral turpitude for immigration purposes. The court concluded that Beltran-Tirado is inapplicable to petitioner's case where Beltran-Tirado's holding depended on the history of the specific statutory provision involved in that case, and not a garden-variety state fraud statute like the one involved in this instance. The circumstance-specific approach that Beltran-Tirado took is now in tension with intervening and controlling Supreme Court authority. Accordingly, the court denied the petition. View "Espino-Castillo v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's conclusion that his prior state-law drug offense qualified as an aggravated felony under 8 U.S.C. 1101(a)(43)(B), 1227(a)(2)(A)(iii), making him a deportable alien. Petitioner argued that his due process rights were violated by the immigration proceedings that followed his incarceration for possession for sale of a controlled substance under California Health and Safety Code 11378. Determining that the court has jurisdiction, the court held that the BIA did not err in its first decision by remanding the case to the IJ; the facsimile copy of the transcript of the state court felony change of plea proceeding was properly admitted; the BIA properly considered the Government's appeal of the IJ's July 7 order granting petitioner's motion to terminate proceedings; and because petitioner was not deprived of substantive or due process rights, the court need not and did not reach the issue of prejudice. View "Padilla-Martinez v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of a final order of removal. The BIA held that petitioner is statutorily ineligible for cancellation of removal because her conviction for criminal impersonation in violation of Arizona Revised Statutes 13-2006(A)(1) is categorically a crime involving moral turpitude. The court affirmed, concluding that the statute explicitly requires proof of fraudulent intent. Accordingly, the court denied the petition for review. View "Hernandez de Martinez v. Holder" on Justia Law

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision affirming the IJ's denial of his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201. The application was denied based on petitioner's false testimony which prevented him from establishing good moral character. The court held that an application for special rule cancellation of removal under NACARA is not a continuing application, and that the seven-year period during which good moral character is required under NACARA ends on the date of the filing of the application. If petitioner, in this case, gave false testimony, he did so after the requisite seven-year period. Accordingly, the court granted the petition for review and remanded for further proceedings.View "Aragon-Salazar v. Holder, Jr." on Justia Law

Petitioner sought review of the BIA's affirmance of the IJ's denial of petitioner's motion to reopen. Immigration officials had failed to properly record petitioner's correct address and, instead, recorded another outdated address. Petitioner's notice to appear for her deportation hearing was sent to the outdated address. Consequently, petitioner failed to appear and was ordered removed in absentia. Upon learning about the order, petitioner moved to reopen. The court concluded that the BIA abused its discretion when it decided that petitioner was not entitled to notice under the immigration statutes. The BIA concluded that petitioner "did not" provide her current address after acknowledging that she claims she did. The BIA acted arbitrarily because it gives not reason for discounting petitioner's claim where the claim was facially plausible and supported by her declaration. Further, the BIA abused its discretion in concluding that petitioner was required to "ensure that the correct address was written down" instead of that she was required to "ensure that the correct address was supplied." Accordingly, the court granted the petition for review.View "De Jesus Velasquez-Escovar v. Holder" on Justia Law

Petitioner sought review of the BIA's order of removal. The court concluded that, given the scope of the BIA's remand order, the IJ properly allowed the government to file new charges against petitioner. On the merits, the court concluded that petitioner's prior conviction under California Penal Code section 455 is divisible, and applying the modified categorical approach, his attempted arson conviction qualifies as an aggravated felony. The court also concluded that petitioner is not saved from removal by the fact that the state statute lacks jurisdictional elements included in the corresponding federal provisions. The court declined to follow the Third Circuit's contrary interpretation in Bautista v. Attorney General of the United States.View "Sandoval-Gomez v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision upholding a final order of removal against him. The BIA held that petitioner's sexual battery conviction was a violent or dangerous crime and, on that basis, applied the Matter of Jean standard to guide the exercise of its discretion. The court upheld the BIA's decision not to apply the categorical approach in the context of its discretionary decisions, such as here; where the correct legal standard is applied, the ultimate determination of whether a crime was violent or dangerous under Matter of Jean is discretionary and unreviewable under 8 U.S.C. 1252(a)(2)(B); and the court upheld the BIA's extension of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. 1255. Accordingly, the court dismissed in part and denied in part the petition for review.View "Torres-Valdivias v. Holder" on Justia Law