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

Petitioner sought review of the BIA's denial of his motion to terminate or remand proceedings, and his application for withholding of removal and protection under the Convention Against Torture (CAT). The Ninth Circuit granted the petition for review on the basis of an evidentiary issue with respect to the CAT claim and otherwise denied the petition.The panel concluded that it lacked jurisdiction to consider petitioner's claim, argued for the first time before the panel, that because he never received his 2001 notice of hearing, jurisdiction never vested in the immigration court and his removal proceedings should thus be terminated. The panel explained that precedent squarely forecloses the termination argument that petitioner actually presented to the BIA. The panel also concluded that it lacked jurisdiction to consider the denial of petitioner's motion to seek cancellation of removal based on the alleged "exceptional and extremely unusual hardship" his removal would cause to his mother, a legal permanent resident. The panel explained that there is nothing in the record to indicate that there was relevant evidence that the BIA failed to consider in making its hardship decision. The panel concluded that petitioner failed to establish membership in a cognizable social group and is therefore ineligible for withholding of removal under 8 U.S.C.1231(b)(3). In regard to the CAT claim, the panel concluded that substantial evidence supports the BIA's determination that petitioner failed to establish that past torture occurred with the consent or acquiescence of a public official as required by 8 C.F.R. 1208.18(a)(1). The panel remanded the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report. View "Aquilar-Osorio v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen removal proceedings on the ground that petitioner did not demonstrate a relevant change in country conditions. Petitioner sought to reopen his 2003 removal proceedings based on a "hybrid change in personal circumstances and country conditions" since 2003, so that the agency could consider a new petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel concluded that petitioner did not present any evidence demonstrating that relevant conditions in Mexico changed since his 2003 removal order, and a change in personal circumstances alone is not sufficient to support a motion to reopen his removal proceedings. The panel further concluded that, even assuming petitioner's changed personal conditions could affect his anticipated experience upon return to his country of removal, by regulation the BIA is not required to grant a motion to reopen based on changed conditions absent a change in that country's conditions. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen. View "Alonso Rodriguez v. Garland" on Justia Law

Plaintiff, a Professor of Psychology at the University of Oregon, filed suit against the University, alleging claims under the Equal Pay Act, Title VII, Title IX, and Oregon law. Plaintiff claims that there is a gender disparity in pay that is department wide and is caused by the University's practice of granting "retention raises" to faculty as an incentive to remain at the University when they are being courted by other academic institutions. Plaintiff also alleges that female professors at the University are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to successfully obtain a raise. The district court granted summary judgment for the University on all counts.The Ninth Circuit concluded that the district court erred in granting summary judgment on the Equal Pay Act claim because a reasonable jury could find that plaintiff and her comparators did substantially equal work. Furthermore, plaintiff has raised a genuine issue of material fact under Oregon Revised Statute 652.220 for the same reasons she has done so under the Equal Pay Act. The panel also concluded that the district court erred in granting summary judgment on the Title VII disparate impact claim where there is at least a genuine issue of material fact as to whether plaintiff established a prima facie case of disparate impact. However, plaintiff cannot establish a prima facie case of disparate treatment because equity raises and retention raises are not comparable and the panel could not say that plaintiff's comparators were treated "more favorably" than was plaintiff in this context. Consequently, summary judgment was also proper on plaintiff's claim under Oregon Revised Statute 659A.030. The panel also affirmed the district court's grant of summary judgment on plaintiff's Title IX claim and state constitutional claim. View "Freyd v. University of Oregon" on Justia Law

The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona state conviction for rape and murder and his death sentence. The panel concluded that the district court properly declined to grant habeas relief as to Claim I, which was based on the trial court's denial of severance. Given the Arizona Supreme Court's alternative ruling that evidence concerning each attack would have been admissible in separate trials on each attack, and petitioner's failure to assign any federal constitutional error to that dispositive ruling in his first PCR petition or his habeas petition, the panel affirmed the denial of habeas relief as to Claim 1.The panel also concluded that the district court properly declined to grant habeas relief as to claim 2, which was based on the trial court's admission of three eyewitness identifications. The panel explained that the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, nor did it rest on an unreasonable determination of the facts. The panel further concluded that the district court properly determined that McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), has no impact on Claim 31 of petitioner's habeas petition; as to Claim 4, the district court properly denied petitioner leave to amend his habeas petition to add five previously withdrawn ineffective assistance of counsel claims on the grounds that those claims are untimely and do not relate back to his timely-filed claims and that petitioner unduly delayed seeking leave to amend; and as to Claim 5, the district court properly concluded that the trial court's admission of 19 purportedly "gruesome" crime scene and autopsy photos does not entitle petitioner to habeas relief because the state court's decision did not involve an objectively unreasonable application of clearly established Supreme Court precedent or an objectively unreasonable determination of the facts. View "Walden v. Shinn" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision upholding an IJ's denial of petitioner's applications for asylum and withholding of removal. Petitioner claims that she suffered past persecution and has a well-founded fear of future persecution based on her membership in the proposed particular social groups of "Salvadoran women who refuse to be girlfriends of MS gang members" and "Salvadoran women who refuse to be victims of violent sexual predation of gang members."The panel concluded that substantial evidence supports the BIA's dismissal of her past persecution claim. The panel explained that substantial evidence supports the BIA's determination, including its specific reliance on the IJ's findings, that the threats here do not amount to past persecution. In this case, petitioner's neighbor issued vague threats, confronted her several times over a period of weeks, did not perform any acts of violence, and never followed through on any of his threats. Therefore, although condemnable, these threats were not so overwhelming so as to necessarily constitute persecution. The panel also concluded that substantial evidence supports the BIA's determination that petitioner's proposed particular social groups are not distinct in Salvadoran society. Finally, petitioner's argument that the BIA conducted an inadequate inquiry into the record regarding social distinction is unavailing. View "Villegas Sanchez v. Garland" on Justia Law

The Ninth Circuit reversed the district court's dismissal, based on failure to state claim, of an action brought by plaintiff, alleging that defendant violated the Fair Debt Collection Practices Act (FDCPA) by sending a collection letter threatening litigation over time-barred debt and filing a lawsuit seeking to collect time-barred debt.The panel held that the FDCPA prohibits filing or threatening to file a lawsuit to collect debts that were defaulted on so long ago that a suit would be outside the applicable statute of limitations. The panel explained that the FDCPA's prohibitions regarding such "time-barred debts" apply even if it was unclear at the time a debt collector sued or threatened suit whether a lawsuit was time barred under state law. In this case, plaintiff's debt was time barred under Oregon's four-year statute of limitations for sale-of-goods contracts, and thus plaintiff stated a claim for relief under the FDCPA.However, Cascade may nonetheless be able to avoid liability through the FDCPA's affirmative defense for bona fide errors. The panel held that a mistake about the time-barred status of a debt under state law could qualify as a bona fide error within the meaning of the FDCPA. The panel left it to the district court to consider in the first instance whether a bona fide error defense, if raised on remand, could succeed in this case. View "Kaiser v. Cascade Capital, LLC" on Justia Law

The Ninth Circuit reversed the district court's grant of summary judgment for police officers on the basis of qualified immunity in an action brought by plaintiff under 42 U.S.C. 1983, alleging violation of his constitutional rights, including his Fourth Amendment right to be free from unreasonable seizure. In this case, the officers tripped plaintiff so that he fell to the ground, pinned him down, and handcuffed him. Plaintiff fell on his face, sustained long-term physical injuries, and sustained emotional distress as a result of the encounter.The panel rejected the officers' contention that the Notice of Appeal failed to comply with Federal Rule of Appellate Procedure 3(c). The panel also concluded that, although there are material facts in dispute, when the facts are taken in the light most favorable to plaintiff, a reasonable jury could find that plaintiff engaged in passive resistance and that the officers' take-down of plaintiff involved unconstitutionally excessive force. Furthermore, because the right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established at the time, the officers are not entitled to qualified immunity. Accordingly, the panel remanded for further proceedings. View "Rice v. Morehouse" on Justia Law

The Ninth Circuit reversed defendant's conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. Defendant's conviction stemmed from his role in orchestrating a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay, including "wetlands" and a "tributary."The panel concluded that the Act requires the government to prove a defendant knew he was discharging material "into water." In this case, the jury instructions failed to make this knowledge element clear, and the error was not harmless. Accordingly, the panel remanded for a new trial with jury instructions that make clear the government's burden to prove that the defendant knowingly discharged fill material "into water." The panel also concluded that the regulation defining "waters of the United States" at the time of defendant's trial is not unconstitutionally vague, and that a newly promulgated 2020 regulation that substantially narrowed the definition of "waters of the United States" represents a change in the law that does not apply retroactively. View "United States v. Lucero" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with conspiracy to violate the Anti-Riot Act and three of those defendants with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment.The panel applied Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and concluded that most of the provisions of the Act are reasonably construed as constitutional, and defects are severable from the remainder of the Act. In this case, there was no violation of the First Amendment in the Act's overt act provisions; its definition of a riot; or in subparagraphs (1), (2), and (4) of 18 U.S.C. 2101(a), except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and 18 U.S.C. 2102(b) expands the prohibition to "urging" a riot and to mere advocacy. The panel explained that the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct. Once the offending language is severed from the Act, the panel concluded that the Act is not unconstitutional on its face and remanded for further proceedings. View "United States v. Rundo" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment based on qualified immunity to a police officer in a 42 U.S.C. 1983 action brought by plaintiff, alleging that the officer used excessive force when he deployed his police dog in effecting plaintiff's arrest for driving under the influence and resisting arrest.The panel concluded that no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender. In this case, following a brief police chase, plaintiff fled to his home where he activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers without effect while he continued resisting. The officer released his police dog to force compliance and, even after the dog bit him, plaintiff continued to resist. The panel explained that the initial deployment of the canine and the duration of the bite did not violate clearly established law. View "Hernandez v. Town of Gilbert" on Justia Law