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

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner argued on appeal that he acted as a whistleblower against government corruption and that the BIA erred in denying his claims for asylum, withholding of removal, and relief under the CAT. The court held that the BIA erroneously denied asylum and withholding of removal based on its conclusion that petitioner failed to establish a nexus to political activity. Therefore, the court granted the petition for review and remanded to the BIA for consideration of whether the government had met its burden to rebut the presumption that petition had a well-founded fear of future persecution on the basis of his whistleblowing activities. The court also held that the BIA improperly placed the burden on petitioner to show that he could not relocate within Mexico and failed to apply the presumption of a nationwide threat. Therefore, the court vacated the BIA's decision regarding the CAT relief and remanded for the agency to determine whether the government met its burden.

Defendant appealed from his conviction and sentence for reentry after deportation. Defendant contended that his deportation was invalid because the IJ failed to advise him of his eligibility for voluntary departure. The government claimed that the court need not reach that question because defendant waived his right to appeal. The court held that appellate waiver, negotiated by the district court at sentencing in exchange for a reduced sentence, was invalid and unenforceable. In a memorandum disposition filed contemporaneously with the opinion, the court held that the IJ failed to adequately advise defendant of his ability to apply for voluntary departure, and the court remanded for the district court to determine whether defendant was prejudiced by that failure.

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision to affirm the IJ's order of removal pursuant to 8 U.S.C. 1227(a)(2)(A)(ii) where petitioner was an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for passing a bad check with intent to defraud and his 2004 conviction for possession of 15 or more access devices with intent to defraud. The court held that it lacked jurisdiction over the petition for review where petitioner was convicted of two crimes involving moral turpitude, for which each sentence of a year or more could be imposed, and which did not arise out of a common criminal scheme; and where the IJ's denial of the cancellation request was a discretionary decision as to which petitioner had not raised a colorable legal or constitutional claim. Accordingly, the court denied the petition for review.

Petitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the BIA's denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.

Petitioner, who came to the United States from Armenia, petitioned for review of the BIA's decision that she failed to satisfy her burden of proving eligibility for asylum and withholding of removal and the BIA's decision that petitioner also failed to satisfy her burden of proving eligibility for protection under the Convention Against Torture (CAT). At issue was whether the whistleblowing doctrine extended to petitioner who faced retaliation from a notorious criminal who was protected by corrupt government officials. The court held that the record compelled the conclusion that petitioner expressed a political opinion in her unsuccessful attempts to have the notorious criminal prosecuted and that the record compelled a finding that in his threats and attacks on petitioner and her family, the notorious criminal was motivated, in part, by the knowledge that she was exposing his corrupt ties to law enforcement agencies. Therefore, the court applied the whistleblowing doctrine and granted the petition as to the BIA's denial of her claims for asylum and withholding of removal. The court denied, however, the petition to the extent petitioner sought to remand for adequate consideration of her CAT claim where the BIA concluded that the record did not show a likelihood that petitioner would face torture upon returning to Armenia.

Petitioner, a native of the Philippines, petitioned for review of an order of the BIA directing his removal, as well as the BIA's order denying reconsideration. At issue was whether the IJ erred in finding him removable, whether the IJ erred in finding him ineligible for withholding of removal, and whether the IJ violated his due process rights. As a preliminary matter, the court held that petitioner's notice of appeal gave the BIA an adequate opportunity to pass on the arguments he presented. The court also held that the government satisfied its burden of proving removability where petitioner was convicted of a controlled substance offense. The court held, however, that petitioner failed to carry his burden of proving that he was entitled to relief from removal where he failed to demonstrate persecution on a protected ground or that the IJ violated his due process rights where petitioner failed to demonstrate prejudice. Accordingly, the petition for review was denied.

Petitioner, a native and citizen of Mexico, challenged a decision of the BIA denying him cancellation of removal and voluntary departure. At issue was whether the BIA erred in determining that petitioner was ineligible for cancellation of removal because his convictions for carrying a concealed weapon under California Penal Code 12025(a) did not constitute a removable firearms offense under 8 U.S.C. 1227(a)(2)(C). Also at issue was whether the BIA erred in denying petitioner voluntary departure because the denial was based on his criminal conviction under section 12025(a) and that conviction did not render him ineligible for voluntary departure. The court held that a conviction under section 12025(a) was categorically a "firearms offense" under section 1227(a)(2)(C) and therefore, the BIA properly held that petitioner was statutorily ineligible for cancellation of removal. The court dismissed petitioner's second ground for appeal because it found that the BIA's denial of voluntary departure was a matter of discretion and the court lacked jurisdiction to review such a discretionary decision. Accordingly, the court denied in part and dismissed in part.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA determining that petitioner was ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1255(i), because she was inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i), and was not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. 1182(a)(9)(C)(ii). The court held that the BIA correctly concluded that petitioner returned to the United States after having been "unlawfully present in the United States for an aggregate period of more than 1 year," which rendered her inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(I). The court rejected petitioner's argument that the section 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1101. The court further held that the BIA correctly concluded that petitioner did not satisfy the requirements of 8 U.S.C. 1182(a)(9)(C)(ii)'s exception to inadmissibility and held that in order to be eligible under this section, an alien must remain outside the United States for more than ten years before returning to the United States. Accordingly, the court denied the petition for review.

Petitioner, an Indian citizen and former resident of the nation's Punjab state, petitioned for review of the BIA's decision that his asylum application was time-barred because he failed to provide corroboration of his date of entry under 8 U.S.C. 1158(a)(2)(B). At issue was whether the BIA erred in imposing the corroboration provision pursuant to section 1158(b)(1)(B)(ii) on petitioner's showing of timely filing under section 1158(a)(2)(B). The court held that, under basic principles of statutory construction, the BIA improperly imported the corroboration requirement of 8 U.S.C. 1158(a)(2)(B)(ii), which governed demonstration of refugee status, into section 1158(a)(2)(B), which required applications to be timely filed. The court also held that section 1158(b)(1)(B)(ii) applied to the merits of an asylum claim, not the one-year filing deadline for asylum applications and that the one-year provision was governed by section 1158(a)(2)(B), which was silent on the issue of corroboration. The court further held that the one-year bar determination was not reviewable absent a legal or constitutional question. Accordingly, the court granted the petition for review and remanded the matter to the BIA.

Husband and wife appealed the BIA's denial of wife's motion to reopen her case to consider her application for adjustment of status after the IJ made an express adverse creditability finding against husband and wife and denied their claims for relief on that basis. At issue was whether lying to the immigration authorities was a sufficient basis for an adverse creditability finding and whether a lie uttered by one spouse could fairly be attributed to the other. The court affirmed the BIA's denial of wife's motion and held that discovering husband and wife knowingly received the government for years was a perfectly good reason not to believe their testimony. The court also held that it did not matter which spouse told the lie, and which one tacitly assented, where the IJ reasonably concluded that husband and wife were executing a common plan to deceive the asylum officer and reasonably believed both of them.