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

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

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