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

Petitioner, a citizen of Nigeria, sought review of a decision by the BIA to deny him protection under the CAT and to deny his motion to reopen the case to consider new evidence. The court held that collateral estoppel bound the BIA to its prior determination of the facts and legal consequences regarding past incidents of government-sponsored violence against petitioner's family due to his father's activities supporting Christianity over Islam. The court also concluded that the BIA abused its discretion by denying petitioner's motion to reopen to consider the significant new evidence of a Nigerian arrest warrant that charged petitioner personally with inciting opposition to Sharia law. Accordingly, the court granted the petition and remanded for further proceedings.

Petitioner petitioned for review of a decision of the BIA denying his application for voluntary departure. Petitioner was convicted for disorderly conduct involving prostitution under California Penal Code 647(b) and attempting to dissuade a witness or victim under California Penal Code 136.1(c). The court held that the BIA did not err in concluding that petitioner's conviction under section 647(b) constituted a conviction of a crime involving moral turpitude. Because petitioner was convicted of two crimes involving moral turpitude, he was deportable under 8 U.S.C. 1227(a)(2)(A)(ii) and the court denied his petition for review.

Plaintiff represented a class of legal immigrants in the state of Washington adversely affected by its recent termination of a state-funded food assistance program for legal immigrants, which exclusively benefitted Washington resident aliens who became ineligible for federal food stamps following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1601 et seq. Plaintiff contended that the state, by eliminating food assistance to class members while continuing to administer federal food assistance to U.S. citizens and certain qualified aliens, violated the Fourteenth Amendment's Equal Protection Clause and, by failing to provide class members adequate pre-deprivation notice and opportunity to be heard, also violated the Fourteenth Amendment's Due Process Clause. Because plaintiff failed even to allege that the State treated her less favorably than a similarly situated citizen of the State, her claim of alienage discrimination failed on the merits. The court agreed with the State that plaintiff lacked the concrete and particularized interest required for standing to claim a procedural due process violation. Consequently, plaintiff either lacked standing or would not succeed on the merits of her claims. Therefore, the court reversed the district court's order granting the motion for a preliminary injunction, vacated the injunction, and remanded for further proceedings.

Petitioner, a native and citizen of India, petitioned for review of the BIA's order dismissing his appeal. Petitioner claimed that the BIA wrongly determined that a violation of California Penal Code 422 constituted a crime involving moral turpitude (CIMT), thus rendering him removable. Although the court previously determined that a violation of section 422 was an aggravated felony, the court had not yet decided whether section 422 was categorically a crime involving moral turpitude. The court did so now and answered the question in the affirmative. The court also addressed and rejected petitioner's other claimed errors. Accordingly, the petition was dismissed in part and denied in part.

Petitioner, a citizen of Mexico, first entered the U.S. in 1989. In 1993, he went to Mexico for two or three weeks. When he attempted to reenter he was arrested and charged with falsely claiming U.S. citizenship and possessing a false identification document. He pleaded guilty to possession of a false identification document, 18 U.S.C. 1028(a)(4), (b)(3). After being released in Mexico he immediately crossed the border on foot. In 2000, the INS charged petitioner with removability, 8 U.S.C. 1227(a)(1)(C)(i). The IJ held that his 1993 departure interrupted continuous physical presence and made him ineligible for cancellation of removal and granted voluntary departure. On remand, petitioner testified that he was not told about the possibility of taking his case to immigration court or given a voluntary departure option in 1993. The IJ found that the 1993 departure was "clearly different from" a mere turn-around at the border and again granted voluntary departure. The BIA dismissed an appeal. The Ninth Circuit denied appeal. Although the 1993 conviction did not declare that he was inadmissible, petitioner was subjected to a "formal, documented process" sufficient to break his continuous physical presence in the U.S.

Plaintiff, a citizen of Malaysia, alleged that she was mistakenly placed on the "No-Fly List" and other terrorist watchlists. Plaintiff was legally in the United States from 2001 to 2005 as a Ph.D. student at Stanford University. In 2005, plaintiff attempted to travel to Malaysia on a Stanford-sponsored conference where she was to present her doctoral research, she was prevented from flying and detained for questioning, eventually permitted to fly to Malaysia the following day, but has not been permitted to return to the United States since returning to Malaysia. Plaintiff brought suit in federal court seeking, among other things, injunctive relief under the First and Fifth Amendments, with the ultimate aim of having her name removed from the government's watchlists. The court agreed with the district court that plaintiff had standing under Article III to challenge the presence of her name on government watchlists. The court also held that plaintiff had established "significant voluntary connection" with the United States such that she had the right to assert claims under the First and Fifth Amendments. However, the court expressed no opinion on the validity of the underlying constitutional claims. The court vacated in part and affirmed in part the district court's discovery rulings.

Petitioner, a member of the Mam Mayan group, an indigenous group whose members live predominantly in Guatemala, petitioned for review of the BIA's decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), on the ground, inter alia, that petitioner had not been the victim of past persecution because he was never "personally challenged or confronted by any potential persecutor." The court concluded that the BIA's ruling that the petitioner did not suffer past persecution because his exposure to persecution was "second hand" reflected an incorrect view of the applicable law, which permitted the BIA to take account of the indirect effects of persecution as well as the direct effects, at least where, as here, the connection between the two was so immediate and strong. Therefore, the court remanded the petition to the BIA for further proceedings.

Defendant appealed his conviction for being a deported alien found in the United States without permission. Defendant contended that the district court should have granted his motion to dismiss the indictment because it was based on a 2001 removal order that was entered in violation of his due process right to counsel, prejudicing his ability to obtain immigration relief. The court concluded that defendant did not waive his right to counsel and was denied his due process right to counsel because he was not properly advised of his rights in a language that he could understand. The court held, however, that this violation of his right to counsel was not inherently prejudicial. Because defendant could not demonstrate that he had a plausible claim to relief in 2001, he was not actually prejudiced as a result of the due process violations in his removal proceedings. Accordingly, entry of the 2001 removal order was not fundamentally unfair.

Defendant appealed his convictions related to an alien smuggling organization, challenging the sufficiency of the evidence on two grounds. First, he argued that there was insufficient evidence of alienage with respect to the ten material witnesses named in the indictment who did not testify at trial. Second, as to his conviction for aiding and abetting the bringing of illegal aliens to the United States for financial gain, he contended that there was insufficient evidence linking him to the cross-border transportation of the named material witnesses before they were dropped in the United States, as required by United States v. Lopez. The court held that the jury could reasonably find that defendant rented properties knowing they would be used as load houses long before the named material witnesses were brought across the border. The court also held that defendant knowingly and intentionally aided in bringing about the smuggling of the named material witnesses into the United States. Therefore, a reasonable jury could find sufficient "specific evidence" linking defendant to "intentionally aiding...the cross-border transportation" of the named material witnesses prior to when they were dropped off in the United States. Accordingly, the judgment was affirmed.

Petitioner, a Guatemalan citizen, appealed his conviction and sentence for illegal reentry into the United States after removal. Petitioner challenged the validation of his underlying removal, contending that he automatically derived U.S. citizenship upon his father's naturalization when he was 14 years old. At the time, the controlling statute, 8 U.S.C. 1432(a), granted automatic derivative citizenship to foreign-born children of married parents only when both parents naturalized before the foreign-born child's 18th birthday. Petitioner's mother did not naturalize until he was 21 years old. Therefore, the district court correctly ruled that petitioner was not a citizen. The court also held that, under Barthelemy v. Ashcroft, the distinction between married and legally separated parents had a rational basis in protecting the parental rights of a non-citizen, custodial parent. The court also held that the sentence in this case was neither substantively nor procedurally unreasonable.