Justia Immigration Law Opinion Summaries

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

Petitioner seeks review of the IJ and BIA's conclusion that he was ineligible for cancellation of removal, and order of removal. Petitioner's removal was based on his 1998 conviction for delivery of a controlled substance (heroin) under Oregon Revised Statutes 475.992(1)(a). The court concluded that section 475.992(1)(a) is overbroad in its definition of “delivery,” and the modified categorical approach may not be applied because section 475.992(1)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation. Therefore, the court held that a conviction for delivering heroin under section 475.992(1)(a) is not an aggravated felony. The court granted the petition for review and remanded. View "Sandoval v. Yates" on Justia Law

Petitioner, a native and citizen of El Salvador, seeks review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal. The IJ determined that petitioner was removeable based on her prior conviction under California Penal Code section 136.1(a), for witness tampering, because it is a categorical crime involving moral turpitude. The court granted the petition for review with respect to the application for cancellation of removal, concluding that the IJ and BIA failed to consider the broad definition of “malice” in section 136, which indicates that the offense is not a categorical match to the generic definition of a crime involving moral turpitude. The court declined to reach the question of divisibility sua sponte. The court remanded to the BIA to consider whether section 136.1(a) is divisible and, if so, to conduct the modified categorical analysis. View "Duran Escobar v. Lynch" on Justia Law

Petitioner seeks review of the BIA's affirmance of the IJ's denial of withholding of removal and denial of relief under the Convention Against Torture (CAT). The court rejected the BIA's decision to follow its own precedent in Matter of C-T-L, which held that the "one central reason" test for asylum applies to withholding, even though the withholding statute says merely "a reason." The court held that "a reason" is a less demanding standard than "one central reason." Because the BIA accepted the government’s view under the wrong standard, the court remanded to the BIA to decide the case under the correct standard: " a reason" rather than "one central reason." The court also concluded that the statute and regulations do not establish a “rogue official” exception to CAT relief. The court explained that the regulations say that torture has to be at the instigation of or with the consent or acquiescence of a public official or some other person acting in an official capacity. In this case, the record leaves no room for doubt the four policemen that attacked petitioner were public officials who themselves inflicted the torture. Because the BIA did not evaluate relocation under the no-burden-shifting standard, and applied the incorrect standard in assessing petitioner's withholding claim, the court remanded pursuant to INS v. Ventura. Accordingly, the court granted the petition. View "Barajas-Romero v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's affirmance of the IJ's decision finding him ineligible for cancellation of removal based on his conviction for four counts of shoplifting, as well as his controlled substance conviction. The court held that INA 212(h), 8 U.S.C. 1182(h), permits the Attorney General to waive only a ground of inadmissibility; it cannot waive a conviction that bars cancellation of removal. Petitioner was found to be inadmissible not on the grounds of his shoplifting or marijuana possession convictions, but because he entered without inspection. Consequently, the 212(h) waiver provision does not apply to his inadmissibility finding. In this case, petitioner's shoplifting convictions preclude him from seeking cancellation of removal and the court declined to reach his argument that treating a conviction for the possession of marijuana as a bar to cancellation of removal is arbitrary and capricious. Accordingly, the court denied the petition for review. View "Guerrero-Roque v. Lynch" on Justia Law