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

Petitioner, a native and citizen of Mexico, sought review of the BIA's decision affirming the IJ's final order of removal against him. The court concluded that possession of marijuana for sale under the California Health & Safety Code (CHSC) section 11359 contemplates a sale - that is, distribution of marijuana in exchange for remuneration. Further, aiding and abetting liability under California law is no different from aiding and abetting liability under federal law. Therefore, the court held that petitioner's conviction for possession of marijuana for sale under section 11359 is categorically an aggravated felony, namely "illicit trafficking in a controlled substance." Accordingly, the court denied the petition for review.View "Roman-Suaste v. Holder" on Justia Law

Singh, a 51-year-old citizen of India, entered the U.S. in 2006 after egregious physical abuse by the police in Jullandar, Punjab, concerning his employment of a domestic servant alleged to be a Kashmiri terrorist. The BIA affirmed the immigration judge’s decision to grant Singh relief under the Convention Against Torture, but held that an imputed political opinion was not a central reason for the police brutality and denied applications for asylum and withholding of removal. The BIA concluded that the police had legitimate reasons for the arrest and detention. The Ninth Circuit granted a petition for review and held that the evidence compelled a conclusion that Singh’s imputed political opinion was at least one central reason police targeted him. Although the REAL ID Act eliminated the presumption that persecution is politically motivated absent any evidence of a legitimate prosecutorial purpose, an applicant may meet his burden of establishing nexus by introducing evidence that he was wrongly accused of being a terrorist. Mixed-motives analysis applies to cases under the REAL ID Act, and, even if police are engaged in a legitimate investigation, an applicant may establish nexus by showing that he was persecuted both because of legitimate investigatory reasons and because of a protected ground, if a protected ground was at least one central reason for the harm.View "Singh v. Holder" on Justia Law

Yongguo Lai, a native and citizen of China, appealed a Board of Immigration Appeals (BIA) decision dismissing Lai's appeal of an immigration judge's (IJ) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT). The BIA relied on the IJ's finding that Lai's claim of persecution and torture on account of his Christian religion was not credible. The IJ based her ruling, in relevant part, on Lai's testimony during cross-examination that contained information the IJ found to be missing from and inconsistent with Lai's initial written application and direct testimony, and uncorroborated in one respect. Upon review, the Ninth Circuit concluded the BIA's adverse credibility determination was not supported by substantial evidence. Accordingly, the Court reversed and remanded the case to the BIA for further proceedings. View "Lai v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision that his conviction under California Penal Code section 459 was an aggravated felony that rendered him ineligible for cancellation of removal. The BIA applied the modified categorical approach to determine that petitioner's conviction under section 459 was an attempted theft offense, which is an aggravated felony under 8 U.S.C. 1101(a)(43)(U) and 8 U.S.C. 1101(a)(43)(G). The court's precedent held that section 459 punishes a broader range of conduct than the generic crime for an attempted theft offense because section 459 may be violated by an attempt to commit a crime other than theft. In light of Descamps v. United States, the court could not apply the categorical approach because the statute was indivisible. The court determined whether a disjunctively worded statute is divisible or not by looking to whether the state treats the parts of the statute on opposite sides of the "or" as alternative elements or alternative means. Here, California law is clear: the jury need not be unanimous regarding the particular offense the defendant intended to commit in order to convict under section 459. Therefore, the court held that petitioner's conviction under section 459 cannot qualify as an attempted theft offense under section 1101(a)(43)(U) and does not render petitioner ineligible for cancellation of removal on that basis. The court granted the petition for review, reversed the decision of the BIA, and remanded for further proceedings.View "Rendon v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of India, petitioned for review of the BIA's dismissal of his appeal from an order of removal. The court concluded that, although petitioner now claims that he only accepted the order of removal in order to expedite this court's hearing of his citizenship claim, that would not render his waiver unknowing or involuntary. The court also concluded that, if petitioner can show that the INS arbitrarily and intentionally obstructed his application, his right to due process has been violated. The government has also violated petitioner's right to due process if it has been deliberately indifferent to whether his application was processed. The court transferred this claim to the district court so that it may make the necessary findings of fact to establish whether petitioner's constitutional rights were violated. Further, the court held that pledging an oath of allegiance in or after an interview with an INS officer as part of the naturalization process does not satisfy the "public ceremony" requirement of 8 U.S.C. 1448(a). Accordingly, the court denied petitioner's challenge to his removal order on the grounds that the court lacked jurisdiction. The court transferred the matter to the district court for further proceedings. The court dismissed petitioner's claim that he is already a citizen by having already taken an oath of citizenship.View "Brown v. Holder" on Justia Law

Petitioner, a native and citizen of Vietnam, petitioned for review of a BIA decision dismissing his appeal from an order of removal entered by an IJ. The court concluded that the BIA did not err in determining that petitioner was convicted of a crime involving moral turpitude where petitioner was convicted of misuse of a passport to facilitate an act of international terrorism and misuse of a passport to facilitate an act of international terrorism is categorically a crime involving moral turpitude. The court also concluded that petitioner was more likely than not to be tortured if he is removed to Vietnam. Therefore, the court granted the petition with respect to petitioner's Convention Against Torture (CAT) claim and remanded with instructions to grant him deferral of removal under the CAT. View "Nguyen v. Holder" on Justia Law

Defendant, a native and citizen of Mexico, appealed his conviction for attempting to enter the United States without consent after having been previously removed. In regards to defendant's collateral attack of the underlying removal order, the court held that defendant was not denied due process because the IJ's determination that he had been convicted of an aggravated felony was not contrary to the court's precedent at the time the removal order was issued and was the product of a reasonable reading of the statute; because defendant had been convicted of an aggravated felony, he was statutorily ineligible for voluntary departure, and the IJ was under no obligation to inform him of the existence of such relief for the proceedings to comport with due process; even if the IJ should have informed defendant of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings "fundamentally unfair" under 8 U.S.C. 1326(d)(3) because he was no prejudiced by the alleged error; and, therefore, the underlying removal order was a valid predicate to a conviction for attempted illegal reentry. The court also held that ample record evidence corroborated defendant's confession to the gravamen of the offense and establishes the trustworthiness of his statement to the DHS officer. Accordingly, the conviction based on defendant's videotaped confession does not run afoul of the corpus delicti doctrine. The court affirmed the judgment of the district court. View "United States v. Valdez-Novoa" on Justia Law

Petitioner pled guilty to attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), and was found removable as an alien convicted of a violation of state law relating to a controlled substance. The court concluded that it was jurisdictionally barred from reaching the merits of petitioner's claim that the Arizona definition of attempt is categorically broader than the federal generic definition because he failed to exhaust this argument before the BIA. The court rejected petitioner's argument that the controlled substance at issue in his Arizona conviction cannot be established by applying the modified categorical approach. The court was confident based on circumstantial evidence that, although it could not consider the indictment because the original count as originally charged was dismissed and he had pled to a lesser charge in a modified count, a page describing the substance of methamphetamine was specifically incorporated into the plea agreement as the factual basis for petitioner's guilty plea. Accordingly, the court denied in part and dismissed in part. View "Alvarado v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Iran, challenged the BIA's determination that he provided material support in the 1970s to a "Tier III" terrorist organization (MEK), making him statutorily ineligible for immigration relief other than deferral of removal under the Convention Against Torture (CAT). The court held that, under a normal reading of the Immigration and Naturalization Act (INA), 8 U.S.C. 1182(a)(3)(B), as amended by the PATRIOT Act, the statutory terrorism bar applied retroactively to an alien's material support of a "Tier III" terrorist organization and that the statutory terrorism bar applied in petitioner's case. The court concluded that substantial evidence supported the BIA's determination that petitioner gave support to MEK in the 1970s and that petitioner failed to show by clear and convincing evidence that he did not know, or should not reasonably have known, that MEK was a terrorist organization during the time in which he gave it material support. Accordingly, the court denied the petition for review. View "Bojnoordi v. Holder" on Justia Law

Plaintiffs, five individual "Deferred Action for Childhood Arrivals" (DACA) recipients living in Arizona, sought a preliminary injunction prohibiting defendants from enforcing their policy that prevents DACA recipients from obtaining Arizona driver's licenses. The district court denied the preliminary injunction. The court concluded that plaintiffs' requested preliminary injunction was prohibitory, not mandatory; the court need not rely on plaintiffs' preemption claim to determine whether plaintiffs have established a likelihood of success on the merits of their challenge to defendants' policy; plaintiffs demonstrated a likelihood of success on their equal protection claim and the subsequent revision of defendants' policy did not undermine this conclusion where the current policy continues to permit the use of Employment Authorization Documents as proof of authorized presence for two sizeable groups of noncitizens similarly situated to DACA recipients and where there was no rational relationship between the policy and a legitimate state interest; plaintiffs have shown that, in the absence of a preliminary injunction, they are likely to suffer irreparable harm where, among other things, plaintiffs' inability to obtain driver's licenses limits their professional opportunities; and plaintiffs have established that both the public interest and the balance of the equities favor a preliminary injunction. Accordingly, the court reversed the judgment of the district court and remanded with instructions to enter a preliminary injunction. View "Arizona Dream Act Coalition v. Brewer" on Justia Law