Articles Posted in U.S. 9th Circuit Court of Appeals

by
Petitioner, a native and citizen of Iran, challenged the BIA's determination that he provided material support in the 1970s to a "Tier III" terrorist organization (MEK), making him statutorily ineligible for immigration relief other than deferral of removal under the Convention Against Torture (CAT). The court held that, under a normal reading of the Immigration and Naturalization Act (INA), 8 U.S.C. 1182(a)(3)(B), as amended by the PATRIOT Act, the statutory terrorism bar applied retroactively to an alien's material support of a "Tier III" terrorist organization and that the statutory terrorism bar applied in petitioner's case. The court concluded that substantial evidence supported the BIA's determination that petitioner gave support to MEK in the 1970s and that petitioner failed to show by clear and convincing evidence that he did not know, or should not reasonably have known, that MEK was a terrorist organization during the time in which he gave it material support. Accordingly, the court denied the petition for review. View "Bojnoordi v. Holder" on Justia Law

by
Plaintiffs, five individual "Deferred Action for Childhood Arrivals" (DACA) recipients living in Arizona, sought a preliminary injunction prohibiting defendants from enforcing their policy that prevents DACA recipients from obtaining Arizona driver's licenses. The district court denied the preliminary injunction. The court concluded that plaintiffs' requested preliminary injunction was prohibitory, not mandatory; the court need not rely on plaintiffs' preemption claim to determine whether plaintiffs have established a likelihood of success on the merits of their challenge to defendants' policy; plaintiffs demonstrated a likelihood of success on their equal protection claim and the subsequent revision of defendants' policy did not undermine this conclusion where the current policy continues to permit the use of Employment Authorization Documents as proof of authorized presence for two sizeable groups of noncitizens similarly situated to DACA recipients and where there was no rational relationship between the policy and a legitimate state interest; plaintiffs have shown that, in the absence of a preliminary injunction, they are likely to suffer irreparable harm where, among other things, plaintiffs' inability to obtain driver's licenses limits their professional opportunities; and plaintiffs have established that both the public interest and the balance of the equities favor a preliminary injunction. Accordingly, the court reversed the judgment of the district court and remanded with instructions to enter a preliminary injunction. View "Arizona Dream Act Coalition v. Brewer" on Justia Law

by
Defendant appealed his conviction for criminal reentry, collaterally attacking his underlying removal order. The court concluded that defendant's attorney in the immigration proceedings provided ineffective assistance of counsel by erroneously conceding to his removability based on defendant's prior conviction under Missouri Revised Statutes 195.211 and by failing to appeal the removal order to the BIA and failing to petition the Seventh Circuit for review. The court held that defendant received ineffective assistance of counsel throughout his immigration proceedings, he was deprived of his right to due process, the proceedings were fundamentally unfair, and the indictment for criminal reentry must be dismissed. View "United States v. Lopez-Chavez" on Justia Law

by
Petitioner, a native and citizen of China, sought review of the BIA's decision, which substantially adopted the IJ's order denying asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner failed to testify that she was physically abused during her detention until she was prompted to do so by her attorney. The court concluded that, because this inconsistency was sufficient to support the IJ's adverse credibility finding, the court need not comment on the remaining grounds cited by the BIA. Petitioner's withholding of removal and CAT claims also failed. Petitioner also claimed that the IJ deprived her of her due process right to a full and fair hearing where the IJ abandoned her role as a neutral fact-finder and imposed "moral judgment" on petitioner's relationship with her roommate. The court concluded that, even if petitioner had shown that the IJ's questioning prevented her from reasonably presenting her case, she failed to articulate how this alleged violation of due process affected the outcome of the proceedings. Accordingly, the court denied the petition for review. View "Jiang v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of India, petitioned for review of the BIA's order concluding that he is ineligible for withholding of removal. The court concluded that substantial evidence supported the BIA's determination that the government showed that there has been a fundamental change in circumstances on the treatment of Sikhs in India to overcome the presumption that he would be persecuted if he were removed. The evidence introduced by the government was sufficiently individualized to address petitioner's claim that he would be persecuted because of his past involvement with the Akali Dal (Mann) party. The general principle requiring the factfinder and a court of appeals to accept a petitioner's factual contentions as true in the absence of an adverse credibility finding does not prevent the court from considering the relative probative value of hearsay and nonhearsay testimony. The agency properly performed its core functions of weighing conflicting evidence, bringing its expertise to bear, and articulating the rationale underlying its decision. Accordingly, the court denied the petition for review. View "Singh v. Holder, Jr." on Justia Law

by
Petitioner, a Chinese citizen, sought review of the denial of his application for asylum and withholding of removal. The court held that substantial evidence does not support the agency's finding that the discrepancy in dates undermined petitioner's credibility; the IJ committed several errors in her treatment of petitioner's marriage to a United States citizen; and, applying Ren v. Holder, the court held that the IJ erred because she did not provide notice to petitioner that he was required to present corroborating evidence she referred to in her decision nor did she give him an opportunity to explain why such evidence might be unavailable. Accordingly, the court granted the petition and remanded. View "Zhi v. Holder" on Justia Law

by
Petitioner, an Indonesian citizen of Chinese descent, sought review of the BIA's denial of his motion to reopen removal proceedings. The court joined its sister circuits and held that a petitioner's untimely motion to reopen may qualify under the changed conditions exception in 8 C.F.R. 1003(c)(3)(ii), even if the changed country conditions are made relevant by a change in the petitioner's personal circumstances. In this case, petitioner converted to Christianity after his order of removal became final. Petitioner then filed an untimely motion to reopen on the basis that religions persecution against Christians in Indonesia had worsened since his previous hearing. The court granted the petition and remanded for further proceedings because the BIA failed to consider petitioner's evidence of changed conditions in Indonesia in light of his conversion to Christianity. View "Chandra v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of the Marshall Islands, sought review of the BIA's order reversing the IJ's finding that he was eligible for relief under the Convention Against Torture (CAT). Petitioner fled the Marshall Islands as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. Petitioner was later convicted in California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The court concluded that the record contained substantial evidence supporting the BIA's conclusion that petitioner would not likely be subjected to torture based on his sexual orientation if removed to the Marshall Islands; the BIA's interpretation of the State Department Report, which found that the Marshall Islands have no enforced proscriptions on homosexuality, was entitled to deference; and the BIA was not required to presume that petitioner would be tortured again because of his own credible testimony that he had been subjected to torture as a homeless child. The court also concluded that the BIA did not abuse its discretion in determining that petitioner's assault-and-battery convictions were particularly serious crimes. Just because a sentencing enhancement cannot be considered for the purpose of determining whether the crime is an aggravated felony does not imply that it cannot be considered for purposes of determining whether the crime is particularly serious. The BIA adopted the IJ's reasoning. The court concluded, in light of Delgado v. Holder, that the IJ properly considered the two-year enhancement under the Frentescu factors. Accordingly, the court denied the petition for review. View "Konou v. Holder" on Justia Law

by
Defendant appealed the denial of his motion to dismiss an indictment charging attempted entry after deportation. The court applied the modified categorical approach and held that defendant's state conviction for aggravated assault constituted a crime of violence. Consequently, defendant was not eligible for voluntary departure at his February 2005 immigration hearing. Accordingly, defendant's attempt to attack collaterally the deportation order underlying his illegal reentry conviction because he was not adequately advised of the voluntary departure remedy failed. The court affirmed the district court's judgment. View "United States v. Cabrera-Perez" on Justia Law

by
Petitioner sought review of the BIA's order vacating the IJ's grant of asylum based on his well-founded fear of persecution as a member of a particular social group. The BIA concluded that petitioner's purported social group, individuals taking concrete steps to oppose gang membership and gang authority, lacked the requisite particularity and social visibility. The court then issued an en banc decision, Henriquez-Rivas v. Holder, holding that witnesses who testify against gang members may be cognizable as a particular social group for the purposes of asylum. The BIA then issued two published decisions clarifying its interpretation of the phrase "particular social group": Matter of W-G-R-, and Matter of M-E-V-G-. The court concluded that, in this instance, the BIA did not perform the required evidence-based inquiry as to whether the relevant society recognizes petitioner's proposed social group. The BIA failed to consider how Guatemalan society views the proposed group, and did not consider the society-specific evidence submitted by petitioner. Because it was not clear to the court from the record whether the evidence presented by petitioner was sufficient to meet the revised standard in W-G-R- and M-E-V-G-, the court remanded the petition to the BIA to consider petitioner's asylum claim in light of those decisions. Because petitioner's claims for withholding of deportation was denied solely on the basis of his failure to satisfy the burden required for asylum, that claim was also remanded. The court advised the BIA to consider the petition in light of Henriquez-Rivas, which addressed a group comparable to petitioner's proposed group and found it to be potentially cognizable. The court remanded petitioner's Convention Against Torture (CAT) claim to the BIA for reconsideration. Accordingly, the court granted the petition for review and remanded for further consideration. View "Pirir-Boc v. Holder" on Justia Law