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

Petitioner, a native of India, petitioned for review of a decision by the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") determination that he was removable for having been convicted of two or more crimes involving moral turpitude ("CIMT"). At issue was whether the BIA properly determined that petitioner's conviction for failing to register constituted a CIMT and, coupled with a conceded theft CIMT, rendered him removable. The BIA then found it unnecessary to conduct a modified categorical analysis regarding petitioner's indecent exposure convictions. The court held that, in light of significant intervening developments, the case must be remanded for the BIA to consider whether petitioner's crime constituted a CIMT under the proper definition of moral turpitude as outlined in Matter of Silva-Trevino. The court also held that should the BIA determine that petitioner's failure to register conviction did not qualify as a CIMT, it should consider the issue left open in its prior ruling regarding petitioner's indecent exposure convictions.

Petitioner, a native and citizen of China, petitioned for review of two final orders of the Board of Immigration Appeals ("BIA") where the BIA denied him relief under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(c), and denied him protection under the Convention Against Torture ("CAT"); and where the BIA denied petitioner's motion to reopen his CAT claim based on alleged changed country conditions and refused to sua sponte reopen his application for section 212(c) relief to consider his newly acquired equities. At issue was whether the BIA should have considered petitioner's value and service to the community in assessing all of the relevant concerns bearing on his eligibility under section 212(c) relief. Also at issue was whether the BIA abused its discretion in denying petitioner's motion to reopen his application for CAT relief based on changed country conditions. The court granted the petition for review with respect to petitioner's application of section 212(c) relief and remanded for consideration of all relevant factors where the BIA did not indicate that it had considered petitioner's value and service to the community. The court also held that the BIA did not abuse its discretion in denying petitioner's motion to reopen where the BIA diligently listed all the materials petitioner submitted in support of his application and discussed why the evidence was not persuasive, was speculative, or was of limited relevance.

Petitioner, a native and citizen of the Philippines, petitioned for review of the Board of Immigration Appeals' ("BIA") May 2005 order denying his claims for asylum and withholding of removal and its March 2006 order denying his claim for protection under the Convention Against Torture ("CAT"). At issue was whether the BIA properly denied petitioner asylum and withholding of removal, whether the BIA properly denied petitioner's claim for protection under the CAT, and whether petitioner's due process rights were violated. The court held that the BIA properly concluded that petitioner's drug-trafficking offense rendered him ineligible for asylum and withholding relief where the record did not compel the conclusion that probable cause was lacking. The court also held that the BIA properly denied petitioner protection under the CAT where substantial evidence supported the BIA's conclusion that he was not likely to be tortured upon return to the Philippines. The court further held that there was nothing in the record compelling the conclusion that certain witness testimony somehow precluded petitioner from presenting his claims for relief.

Petitioner, a native and citizen of the Philippines, petitioned for review of an order of the Board of Immigration Appeals ("BIA") retermitting his application for a waiver of inadmissibility pursuant to the now-repealed section 212(c) of the Immigration and Nationality Act ("INA"). At issue was whether petitioner was eligible for 212(c) relief and whether petitioner was eligible for discretionary relief under INS v. St. Cyr. The court held that res judicata bound the BIA to the final decision of the district court which held that petitioner was eligible for discretionary relief under section 212(c) based on St. Cyr.

Petitioner, a native and citizen of India, appealed from the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of his claims for asylum where petitioner had allegedly lied about previously applying for asylum in Canada. At issue was whether the IJ's adverse creditability finding was not supported by substantial evidence in the record and that petitioner was denied due process of law by the denial of continuance so that he could put his father on the stand. The court held that substantial evidence on the record supported the adverse creditability decision, the need for corroboration, and the conclusion that petitioner had not borne his burden of proof to establish eligibility for asylum. The court also held that the IJ did not abuse her discretion in denying another continuance where the IJ was not required to grant a motion for continuance based upon speculations.

Petitioner, a native of China, appealed the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of her asylum and withholding of removal claims based upon an adverse credibility determination, as well as the IJ's decision that petitioner filed a frivolous asylum application. At issue was the distinction between an applicant for asylum whose testimony lacked creditability and one who had deliberately fabricated material aspects of her application. The court held that substantial evidence supported the BIA's denial of petitioner's asylum and withholding of removal claims based on petitioner's lack of creditability. The court also held that the issue of whether petitioner submitted a frivolous asylum application was a distinct question requiring a separate analysis and that, although the grounds cited for the adverse creditability determination overlapped to some extent with the grounds cited for the frivolous findings, the heightened requirements of the latter finding were not met.

Defendants, in consolidated appeals, appealed their convictions for violations of 8 U.S.C. 1325(a)(1) for attempting to travel by boat from Saipan in the Commonwealth of the Northern Mariana Islands ("CNMI") to the Territory of Guam by boat. At issue was whether defendants violated section 1325(a)(1) for being aliens who knowingly and willingly attempted to enter the United States at a time and place other than as designated by immigration officers on or about January 5, 2010, a date within Title VII of the Consolidated Natural Resources Act of 2008's ("CNRA"), 48 U.S.C. 1806-1808, transition period. The court held that defendants did not violate section 1325(a)(1) by attempting to travel by boat from the CNMI to Guam where the CNMI and Guam were parts of the United States and an alien did not enter or attempt to enter the United States for purposes of section 1325(a)(1) when traveling from one part of the United States to another, even if when doing so they passed through international waters.

Petitioner, a native of the Soviet Union and citizen of Azerbaijan, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an immigration judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. At issue was whether there was substantial evidence to support the IJ's determination that petitioner was not credible due to inconsistencies between his testimony before an asylum officer and his subsequent written statements and testimony, which described additional incidents of persecution. The court denied the petition and held that substantial evidence supported the IJ's conclusion that the additional incidents materially altered petitioner's account of persecution in a way that casted doubt on his credibility.

Defendant filed a motion for acquittal where he was convicted for being an alien who reentered the United States after previously being deported. At issue was whether the district court properly instructed the jury that there was a presumption of defendant's alienage and that the burden of proof was shifted to defendant to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The court held that defendant faced no burden to claim derivative citizenship in an effort to negate the government's charge that he was an alien. The court also held that the government did not have the burden of disproving each element of derivative citizenship but needed only to prove that "alienage" was among the elements of the crime. The court further held that it was possible that a rational trier of fact could consider the evidence of defendant's father's citizenship, determine that defendant might meet the requirements for derivative citizenship, but then concluded beyond a reasonable doubt that, based on his actions and admissions, he was not actually an American citizen. Therefore, the court affirmed the denial of defendant's motion to acquit and allowed for the possibility of retrial on remand.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") dismissing an appeal from an order of removal to Mexico. At issue was whether the government failed to meet its burden of proving that petitioner was removable where the BIA and the Immigration Judge ("IJ") were not permitted to rely on his counsel's admissions that he had been previously convicted of possession of cocaine for sale in 1997; whether a criminal docket from his 1997 conviction that was introduced into evidence by the government was sufficient to establish that he was removable where the document did not indicate what substance he possessed for sale; whether the government was estopped from removing him on the basis of his 1997 conviction where it knew about the conviction when it granted him Legal Permanent Resident ("LPR") status in 2003; and whether he was eligible for waiver of inadmissibility where his 1997 conviction predated his admission as an LPR in 2003. The court held that petitioner was removable when he admitted at the pleading stage that he was convicted of cocaine for sale; petitioner relieved the government of its burden of offering evidence to prove that he was removable; the government was not estopped by its error in granting him LPR status from correcting its mistake and ordering his removal, and petitioner's admission to the cocaine offense made him ineligible for a waiver of removability.