Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit granted a petition for review of the BIA's holding that 8 U.S.C. 1231(a)(5) deprived the immigration court of jurisdiction to resolve petitioner's motion to reopen. 8 U.S.C. 1229a(b)(5) authorizes immigration judges to order non-citizens removed from the country in absentia. 8 U.S.C. 1231(a)(5) applies to non-citizens who (1) are ordered removed, (2) leave the United States while under the order of removal, and (3) reenter the country illegally. Determining that it had jurisdiction over the petition, the panel held that section 1231(a)(5) does not bar immigration judges from entertaining a motion to reopen an in absentia removal order under section 1229a(b)(5)(C)(ii). The panel also held that an individual placed in reinstatement proceedings under section 1231(a)(5) cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself, she retains the right, conferred by section 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered in absentia, based on lack of notice, by filing a motion to reopen "at any time." Therefore, the panel remanded so that the agency could decide petitioner's motion to reopen on the merits. View "Miller v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of cancellation of removal. The panel held that petitioner's complaints of poor memory, without evidence of an inability to understand the nature and object of the proceedings, were insufficient to show mental incompetency; the standard for mental incompetency as set by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), and endorsed by this court in Calderon-Rodriguez v. Sessions, 878 F.3d 1179 (9th Cir. 2018), and Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017), was a stringent one; and, in this case, any memory loss petitioner may have experienced did not prejudice his immigration proceedings because his application, not his poor memory, was the basis for the IJ's denial of cancellation of removal. View "Salgado v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's determination that petitioner was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). When petitioner applied for NACARA special rule cancellation, the BIA interpreted the physical presence requirement as running from petitioner's most recent disqualifying conviction, rather than his earliest, and so held him ineligible for NACARA cancellation of removal. The panel held that the BIA's determination of NACARA was reasonable and was therefore entitled to deference. View "Campos-Hernandez v. Sessions" on Justia Law

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Jose Maria Garcia-Martinez was a lawful permanent resident at the time of his convictions, and the BIA found him removable, under 8 U.S.C. 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude (CIMT), not arising out of a single scheme of criminal misconduct. He was granted review of a Board of Immigration Appeals (BIA) decision, arguing the BIA erred in concluding that Garcia’s Oregon theft convictions were CIMTs. The Ninth Circuit noted that the Oregon theft offenses for which Garcia was convicted did not require a permanent taking of property. Therefore, the panel concluded that, at the time Garcia committed the offenses, they were not crimes involving moral turpitude because for many decades the BIA had required a permanent intent to deprive in order for a theft offense to be a crime involving moral turpitude. "In short, Garcia’s thefts were not CIMTs, and his removal order must be set aside. ... the BIA has changed or updated or revised its rule for the future. Nevertheless, that rule should not be applied to Garcia, who pled and was convicted while the old rule was extant." View "Garcia-Martinez v. Sessions" on Justia Law

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The Ninth Circuit affirmed the petition for review of the BIA's decision affirming the IJ's finding that petitioner was statutorily ineligible for withholding of removal because he was convicted of a "particularly serious crime," and holding that an applicant's "mental health as a factor in a criminal act falls within the province of the criminal courts and is not a factor to be considered in a particularly serious crime analysis." See Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014). The panel held that Matter of G-G-S- was not entitled to Chevron deference where its blanket rule against considering mental health was contrary to Congress's clearly expressed intent that the particularly serious crime determination, in cases where a conviction falls outside the only statutorily enumerated per se category of particularly serious crimes, required a case-by-case analysis. Furthermore, the BIA's interpretation was not reasonable in that the BIA's two rationales for its broad rule – 1) that the Agency could not reassess a criminal court's findings, and 2) that mental health was never relevant to the particularly serious crime determination – were unpersuasive and were inconsistent with the law of this Circuit and the BIA's own decisions. View "Gomez-Sanchez v. Sessions" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's denial of asylum and withholding where petitioner, a citizen of China, alleged that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. The panel held that neither the IJ nor the BIA made a finding that petitioner's testimony was not credible. Under the panel's well-established precedent, the panel was required to treat a petitioner's testimony as credible in the absence of such a finding. The panel adopted this rule before the REAL ID Act and reaffirmed it after its passage. The panel explained that the plain text and context of the statute dictate the conclusion that the REAL ID Act's rebuttable presumption of credibility applies only on appeal to the BIA. In this case, petitioner's evidence was sufficiently persuasive and compelled the conclusion that the harm he suffered from the government due to his resistance to his wife's forced abortion rose to the level of past persecution. Furthermore, petitioner and his wife were not similarly situated, and thus the BIA erred in concluding that the wife's voluntary return to China undermined petitioner's own fear of future persecution. The panel remanded for the district court to exercise its discretion in granting petitioner asylum relief, and to grant him withholding relief. View "Ming Dai v. Sessions" on Justia Law

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The Ninth Circuit amended an opinion affirming the district court's judgment denying a habeas corpus petition where petitioner sought a custody redetermination as he awaited the outcome of administrative proceedings to determine whether he has a reasonable fear of returning to his native country of El Salvador. The panel held that reinstated removal orders were administratively final for detention purposes, and that the detention of aliens subject to reinstated removal orders was governed by 8 U.S.C. 1231(a), rather than section 1226(a). Therefore, petitioner was not entitled to a bond hearing. View "Padilla-Ramirez v. Bible" on Justia Law

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The Ninth Circuit amended an opinion granting a petition for review of the BIA's denial of asylum and withholding of removal to petitioner, a citizen of China, who sought relief based on his political opinion. The panel explained that there was no dispute that petitioner experienced past persecution at the hands of the local government. The appeal turned instead on whether the persecution he suffered was on account of an imputed or actual political opinion. The panel held that the evidence compelled a finding that petitioner was persecuted by Chinese authorities on account of an imputed or actual political opinion. View "Xinbing Song v. Sessions" on Justia Law

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Anyone who under the relevant statutes is considered a minor child of a legal permanent resident (LPR) on the date of the parent's naturalization (and who is the beneficiary of a valid petition for an immigrant visa based on that status) can obtain a visa as the minor child of a citizen following his parent's naturalization. In this case, the Ninth Circuit granted a petition for review of the BIA's decision rejecting petitioner's application for adjustment of status. The panel held that petitioner, a child of an LPR who was deemed by statute to be a minor child until the very day his father naturalized, still qualified as a minor on that day. The panel remanded to the BIA to find that petitioner had an immediately available visa as the immediate relative of a U.S. citizen and to conduct further proceedings regarding the other requirements for adjustment of status. View "Rodriguez Tovar v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's denial of petitioners' claim for relief under the Convention Against Torture (CAT). The panel held that it had jurisdiction to review petitioners' administrative closure claim, because the Avetisyan factors, rooted in the regulatory grant of authority to IJs and the BIA, provided a sufficiently meaningful standard against which to review IJ and BIA decisions regarding administrative closure. The panel noted that, although remand would usually be appropriate where the IJ and BIA did not conduct an independent review of a request for administrative closure, petitioners here have not argued or shown how they were eligible for administrative closure under the Avetisyan factors. Furthermore, petitioners had no pending petitions or other requests for immigration relief that might make remand necessary. Finally, the panel held that substantial evidence supported the IJ and BIA's decision denying CAT relief. View "Gonzalez-Caraveo v. Sessions" on Justia Law