Justia Immigration Law Opinion Summaries

Petitioner, who was in the Commonwealth of the Northern Mariana Islands (CNMI), sought review of the BIA's dismissal of his appeal of the IJ's order of removal based on 8 U.S.C. 1182(a)(7)(A)(i)(I), which makes an immigrant inadmissible if he lacks a valid entry document "at the time of application for admission." Petitioner, a native of Bangladesh, was in the CNMI without admission or parole on November 28, 2009, when the immigration laws of the United States took effect in the CNMI. The court concluded that petitioner was an immigrant who lacked a valid entry document and was deemed by law to have made a continuing application for admission by being present in the CNMI, an application that was considered and denied during his removal proceedings. Accordingly, the court denied the petition for review. View "Minto v. Sessions" on Justia Law

Plaintiff, a 53-year-old garbage truck driver, filed suit against USA Waste, his employer of 32 years, alleging wrongful termination based on age discrimination and retaliation. The district court granted summary judgment for USA Waste. The court held that the district court erred by granting summary judgment in favor of USA Waste because plaintiff established a prima facie case under both his age discrimination and retaliation theories, and USA Waste failed to introduce any evidence that it had a legitimate reason for firing him. In this case, the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, 100 Stat. 3359, did not require proof of employment eligibility from plaintiff, and USA Waste could not make plaintiff's reinstatement contingent on verification of his immigration status because doing so would violate California public policy. Furthermore, plaintiff's use of an attorney was activity protected by California public policy, USA Waste fired plaintiff because he was represented by his attorney at the Settlement Agreement negotiations, and the district court erred by holding that USA Waste provided a legitimate reason for firing plaintiff. Therefore, the court concluded that USA Waste failed to meet its burden as to plaintiff's claim based on retaliation discrimination. The court also held that the district court did not abuse its discretion when it denied plaintiff's oral request for leave to amend the complaint eight months after the filing deadline. Accordingly, the court reversed and remanded for further proceedings. View "Santillan v. USA Waste of California" on Justia Law

Plaintiff Jesus Ramirez came to the United States from El Salvador in 1999 and was granted Temporary Protected Status (TPS) in 2001. In 2012, plaintiff married a United States citizen and the couple sought lawful permanent resident status for Ramirez. The court held that a TPS designee provides a pathway for Ramirez to obtain lawful permanent resident status under the adjustment statute; under 8 U.S.C. 1254a(f)(4), an alien afforded TPS is deemed to be in lawful status as a nonimmigrant—and has thereby satisfied the requirements for becoming a nonimmigrant, including inspection and admission—for purposes of adjustment of status under section 1255; and thus the court affirmed the district court's grant of summary judgment in favor of Ramirez. View "Ramirez v. Brown" on Justia Law

Petitioner, a native and citizen of Nigeria, sought review of the BIA's decision finding him ineligible for a waiver of inadmissibility under the aggravated felony bar. Petitioner entered the country as a conditional permanent resident based on his marriage to his first wife, a United States citizen. Petitioner's status as a conditional permanent resident was automatically terminated in 1997 due to his failure to file the required petition. The court concluded that, because petitioner was admitted as a conditional resident in 1995, he thus constituted, under 8 U.S.C. 1182(h), "an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence." Consequently, petitioner was subject to the aggravated felony bar to waiver. The court denied the petition for review. View "Eleri v. Sessions" on Justia Law

The court published an order previously denying the government's motion for a stay of a restraining order pending appeal. The order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. No party has moved to vacate the published order. The court voted to determine whether it should grant en banc reconsideration in order to vacate the published order denying the stay, and the matter failed to receive a majority of the votes in favor of en banc reconsideration. Therefore, vacatur of the stay was denied. Judge Reinhardt concurred. Judge Bybee, with whom Judges Kozinski, Callahan, Bea, and Ikuta joined, dissented. View "Washington v. Trump" on Justia Law

Petitioner, a citizen of Mexico and a gay man, challenged the BIA's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). A divided panel of this court, relied primarily on the court's decision in Castro-Martinez v. Holder, which interpreted the "unable or unwilling to control" standard as requiring proof that the police are unable or unwilling to control the sexual abuse of children generally. The panel majority adopted the IJ's conclusion that it was unlikely that the Mexican government would take no action to control the "abuse of children." The court granted rehearing en banc and held that the evidence petitioner adduced before the agency satisfied the court's longstanding evidentiary standards for establishing past persecution. In this case, petitioner provided credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation. Therefore, the court concluded that petitioner suffered past persecution that the Mexican government was unable or unwilling to control. The court overruled Castro-Martinez to the extent it might suggest otherwise and remanded the petition to the BIA for further proceedings. View "Bringas-Rodriguez v. Sessions" on Justia Law

Defendant appealed his conviction for attempted illegal reentry and noted that the district court's instruction at trial failed to properly inform the jury of the essential elements of the offense. Petitioner frequently earned money washing car windows at the Mariposa port of entry into the United States. Petitioner was arrested by border patrol agents one day when he was washing windows. The court concluded that the lack of instruction to the jury that petitioner had to have a conscious desire to reenter the United States free from official restraint to be found guilty of the crime of attempted illegal reentry was plain error. In this case, if properly instructed on the official restraint doctrine, no rational jury could have concluded beyond a reasonable doubt that petitioner was free from official restraint in the pre-inspection area, or that he intended to be simply by entering that area. Likewise, there was insufficient evidence in the record to support petitioner's guilt on the theory that he intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States. Accordingly, the court vacated the conviction and remanded for a judgment of acquittal View "United States v. Vazquez-Hernandez" on Justia Law

The court stayed en banc proceedings after the United States represented that the President intends to issue a new Executive Order and urged the court to "hold its consideration of the case until the President issues the new Order." View "Washington v. Trump" on Justia Law

Washington and Minnesota filed suit challenging President Trump's Executive Order 13769 which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries, suspends for 120 days the United States Refugee Admissions Program, and suspends indefinitely the entry of all Syrian refugees. In this emergency proceeding, the Government moves for an emergency stay of the district court's temporary restraining order while its appeal of that order proceeds. The court noted the extraordinary circumstances of this case and determined that the district court's order possesses the qualities of an appealable preliminary injunction. The court held that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings, where they argued that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. The court concluded that there is no precedent to support the Government's position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The court explained that the Government's claim runs contrary to the fundamental structure of our constitutional democracy. Therefore, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. The court concluded that the Government has not shown that it is likely to succeed on the merits regarding its argument about, at least, the States' Due Process Clause claim, and the court noted the serious nature of the allegations the States have raised with respect to their religious discrimination claims. The court held that the procedural protections provided by the Fifth Amendment's Due Process Clause are not limited to citizens; rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent. Finally, the balance of hardships and the public interest do not favor a stay. Accordingly, the court denied the emergency motion for a stay pending appeal. View "State of Washington v. Trump" on Justia Law

Defendant was convicted of illegal entry in violation of 8 U.S.C. 1325 and illegal reentry in violation of 8 U.S.C. 1326, predicated on his expedited removal in 2012. The court concluded that defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government’s failure to inform him of the possibility of withdrawal relief. Because defendant's 2012 removal was not fundamentally unfair, the court affirmed the section 1326 conviction and sentence for illegal reentry. Because the revocation of defendant's revocation of his supervised release was premised on the section 1326 conviction, the court also affirmed the district court's revocation. View "United States v. Peralta-Sanchez" on Justia Law