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

The Ninth Circuit denied petitions for review of the BIA's decision affirming the IJ's denial of petitioner and his family's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel clarified the law concerning implausibility findings and explained that inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence. An IJ must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture. Furthermore, the IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing. The cited evidence in the record, including a witness's own testimony, need not conclusively establish that the witness's testimony is false, and the IJ's implausibility finding will ultimately hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense.In this case, the panel concluded that substantial evidence supports the agency's implausibility findings with respect to petitioner's testimony and its finding that petitioner's wife was evasive and nonresponsive. The panel did not consider the Board's alternative holding that assumed petitioner was credible. The panel concluded that the record does not compel the conclusion that the adverse credibility determination was erroneous or that the agency erred in denying petitioner and his family withholding of removal and CAT protection. View "Lalayan v. Garland" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of Apple in a trademark infringement action brought by Social Tech over the use of the MEMOJI mark. The panel held that mere adoption of a mark without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark under the Lanham Act. The panel explained that Social Tech failed to put forward evidence that the release of its Memoji application to the public was for genuine commercial purposes warranting trademark protection and thus it failed to establish a triable issue regarding whether it engaged in a bona fide use of the mark in commerce within the meaning of the Lanham Act.The panel considered the totality of the circumstances and concluded that, while at the time of its original intent-to-use filing, Social Tech may have had some commercial intent to develop the Memoji application, at the time it filed its Statement of Use, its use of the MEMOJI mark was made merely to reserve a right in the mark. Because Social Tech did not engage in bona fide use of the MEMOJI mark in commerce, its registration is invalid, and Apple is entitled to cancellation of Trademark Registration No. 5,566,242. View "Social Technologies LLC v. Apple Inc." on Justia Law

The Ninth Circuit granted the Board's petition for enforcement of its decision holding that management of a television station committed unfair labor practices under subsections 8(a)(1) and (5) of the National Labor Relations Act (NLRA) by making two unilateral changes to the existing terms of the conditions of employment after a collective bargaining agreement (CBA) expired.The panel rejected management's argument that it was entitled to make changes to the terms and conditions of employment under the "contract coverage" doctrine. Rather, the panel found that the Board's decision was rational and consistent with the NLRA. In this case, the Board applied its longstanding rule that after a CBA has expired, unilateral changes by management are permissible during bargaining only if the CBA "contained language explicitly providing that the relevant provision" permitting such a change "would survive contract expiration." Nexstar Broad. Inc., 369 NLRB No. 61, 2020 WL 1986474, at *3 (Apr. 21, 2020). Furthermore, there was no explicit language in the CBA to allow management to make unilateral changes to terms and conditions of employment in the post-expiration period. Finally, the panel rejected management's arbitration claims. View "National Labor Relations Board v. Nexstar Broadcasting, Inc." on Justia Law

DHS took B.R. into custody while he was still a minor, issued him a Notice to Appear (NTA), and initiated removal proceedings against him. After B.R. was released and while those proceedings were ongoing, he sold methamphetamine to an undercover federal officer. B.R. was incarcerated and was ordered removed. On appeal, B.R. petitions for review of the BIA's dismissal of his appeal from the IJ's final order of removal and denial of his application for deferral of removal under the Convention Against Torture.The Ninth Circuit rejected B.R.'s claims that DHS effected improper service of the NTA, depriving the immigration court of jurisdiction, and that DHS should not have been permitted to cure that service violation. Rather, the panel concluded that the IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS's defective service prejudiced the alien's interests. In this case, DHS cured its defective service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Furthermore, the panel's holding in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien’s custodian at the very moment the alien is released from its custody.The exclusionary rule is generally not available in immigration proceedings, but the panel held that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government’s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. Therefore, the panel granted B.R.'s petition on this issue and remanded for further development of the record. Finally, in the interest of judicial economy, in the event DHS is able to prove B.R.'s alienage on remand, the panel rejected his assignments of error as to his CAT claim. Accordingly, the panel granted in part, denied in part, and remanded for further proceedings. View "B. R. v. Garland" on Justia Law

The Ninth Circuit filed (1) an order withdrawing its prior opinion and dissent and denying as moot a petition for rehearing en banc; and (2) a new opinion and concurrence reversing the district court's dismissal of an indictment charging illegal reentry after removal, in violation of 8 U.S.C. 1326, and remanding.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of a notice to appear (NTA), despite the language of the regulations. To clarify, the panel held that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing.The panel also concluded that, while a defective NTA does not affect jurisdiction, it can create due-process violations. In order to mount a collateral attack on the validity of an underlying removal order under 8 U.S.C. 1326(d), the defendant must demonstrate that (1) he exhausted any available administrative remedies; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. Under United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), each of these three statutory requirements is mandatory, and the first two requirements are not excused for a noncitizen who was removed for an offense that did not render him removable. On remand, defendant may be able to collaterally attack the underlying removal order. View "United States v. Bastide-Hernandez" on Justia Law

Defendant pleaded guilty to conspiracy to commit health care fraud, in violation of 18 U.S.C. 1349, and entered into a plea agreement with the United States government. Pursuant to the plea agreement, defendant waived the right to appeal his conviction except on the ground that his plea was involuntary, and waived the right to appeal most aspects of his sentence if the district court determined that the offense level was no greater than 25.The Ninth Circuit affirmed defendant's conviction and sentence for conspiracy to commit health care fraud, holding that defendant's appeal waiver is enforceable. In so holding, the panel rejected defendant's contentions that the waiver was not knowing and voluntary, either by reason of the district court's sentencing procedure or its misstatement of the intent element during the plea colloquy. Rather, the panel concluded that defendant had a full and fair opportunity to be heard and that the district court gave defendant a fair opportunity to contest the government's loss calculation even if it was not the full evidentiary hearing defendant wanted. Furthermore, the improperly stated elements in the plea agreement did not render defendant's plea involuntary. The panel also rejected defendant's contention that the government implicitly breached the plea agreement. In this case, defendant's appeal waiver is enforceable and the language of the waiver encompasses his right to appeal on the grounds raised. View "United States v. Minasyan" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

The Ninth Circuit affirmed the district court's denial of injunctive relief and dismissal of state and federal claims in an action brought by Slidewaters LLC, challenging the State of Washington's imposition of COVID-19 restrictions prohibiting the waterpark from operating during 2020 and imposing capacity limits in 2021.The panel concluded that defendants have the authority under Washington law to impose the restrictions and that doing so does not violate Slidewaters' asserted rights under the U.S. Constitution. In this case, the governor had the lawful authority under Revised Code of Washington 43.06.010(12) to issue Proclamation 20-05, because the pandemic was both a public disorder and a disaster affecting life and health in Washington. Furthermore, the State Department of Labor and Industries, in promulgating an emergency rule as part of the state's efforts to curb the pandemic, Washington Administrative Code 296-800-14035, acted within its scope of authority. The panel explained that government regulation does not constitute a violation of constitutional substantive due process rights simply because the businesses or persons to whom the regulation is applied do not agree with the regulation or its application; defendants provided a rational basis for the proclamations and related rules; and the substantive due process rights of Slidewaters, its owners, and its employees are not violated by defendants' actions. Therefore, Slidewaters' application for injunctive relief was properly denied and its claims were properly dismissed. The panel also concluded that the district court did not err in consolidating Slidewaters' motion for preliminary injunction with a hearing on the merits or in reaching Slidewaters' state law claims. View "Slidewaters LLC v. Washington State Department of Labor and Industries" on Justia Law

The Ninth Circuit affirmed the district court's dismissal based on failure to state a claim of a 42 U.S.C. 1983 action brought by plaintiff, alleging that the City violated his Fourth Amendment rights when authorities, without a warrant, searched his massage business.The panel concluded that the Fourth Amendment permitted the warrantless searches of plaintiff's massage business where the California massage industry is a closely regulated industry and the Fourth Amendment's warrantless search exception for administrative searches of businesses applied. The panel applied the factors in New York v. Burger, 482 U.S. 691 (1987), and held that the warrantless inspections were reasonable under the Fourth Amendment because there is no question that curtailing prostitution and human trafficking is a substantial government interest; the warrant exception is necessary to further the regulatory scheme considering the potential ease of concealing violations; and the City ordinance governing massage establishments and the conditional use permit sufficiently restrained the City in both the time and purpose of each inspection. Therefore, the district court properly dismissed plaintiff's Fourth Amendment claims. View "Killgore v. City of South El Monte" on Justia Law

In 1980, Posos crossed the U.S. border without inspection. The 1986 Immigration Reform and Control Act, 8 U.S.C. 1255a, provided a path to permanent resident status for noncitizens who had resided unlawfully and been physically present in the U.S. since January 1982. In 1988, Posos obtained a temporary resident card that expired in November 1990. In September 1990, Border Patrol agents stopped Posos at a San Clemente border patrol checkpoint, examined his immigration papers, and let him proceed. In 1993, Posos was notified that his application for temporary resident status was denied. Posos was removed in 2010. Posos tried to reenter but was detained. His notice of removal proceedings failed to state the date and time of Posos’s hearings. Subsequent notices supplied that missing information. Posos sought adjustment of status under 8 U.S.C. 1255(a), cancellation of removal under 1229b, and voluntary departure under 1229c, arguing that immigration officials had “admitted” him to the U.S. in 1990The Ninth Circuit remanded. Posos is removable and ineligible to adjust his status. Unless an immigration official has inspected a noncitizen at a port of entry and then granted that noncitizen permission to enter the U.S., that noncitizen has not been “admitted.” The 1990 incident did not occur at a port of entry. Because of the missing date-and-time information, his removal did not stop the clock for purposes of computing the time during which he was physically present under section. 1229c(b)(1)(A). Posos accrued five years of physical presence and was eligible for voluntary departure if he satisfies the other statutory conditions. View "Posos-Sanchez v. Garland" on Justia Law