Justia Immigration Law Opinion Summaries

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 decision reversing an IJ's grant of deferral of removal under the Convention Against Torture. The panel held that the Board erred by conducting a de novo review of the IJ's factual findings, instead of reviewing them for clear error, as required by 8 C.F.R. 1003.1(d)(3)(i). In this case, the BIA's failure to evaluate the factual findings of the IJ's conclusion -- that petitioner had established that Mexican officials would have the specific intent to torture him -- that were key to the IJ's holding, indicated that the BIA was not reviewing the IJ's determination for clear error. Because the BIA did not explain why the IJ's findings were illogical, implausible, or not supported by permissible inferences from the record, the panel had no trouble concluding that the BIA failed to apply clear error review to the IJ's finding of specific intent. Furthermore, the BIA failed to apply clear error review to the IJ's finding that petitioner would be tortured in criminal detention in Mexico. Accordingly, the panel remanded for reconsideration. View "Guerra v. Barr" on Justia Law

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The Ninth Circuit affirmed the district court's grant of a preliminary injunction setting aside the Migrant Protection Protocols (MPP), under which non-Mexican asylum seekers who present themselves at the southern border of the United States are required to wait in Mexico while their asylum applications are adjudicated. After determining that the individual plaintiffs had standing and the organizational plaintiffs had standing, the panel followed East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020), argued on the same day as this case, in which the court held that a motions panel's legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels. On the merits, the panel held that plaintiffs had showed a likelihood of success on their claim that the MPP is inconsistent with 8 U.S.C. 1225(b). The panel explained that a plain-meaning reading of section 1225(b), as well as the Government's longstanding and consistent practice, made clear that a section (b)(1) applicant may not be "returned" to a contiguous territory under section 1225(b)(2)(C), which is a procedure specific to a section (b)(2) applicant. Furthermore, plaintiffs showed a likelihood of success on their claim that the MPP does not comply with the United States's treaty-based non-refoulement obligations codified in 8 U.S.C. 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with section 1225(b), the panel held that it should be enjoined in its entirety. Plaintiffs have successfully challenged the MPP under section 706(2)(A) of the Administrative Procedure Act, and the MPP directly affects immigration into this country along the United States's southern border. The panel also held that the other preliminary injunction factors favored plaintiffs, and that the district court did not abuse its discretion in setting aside the MPP. Accordingly, the panel lifted the emergency stay imposed by the motions panel. View "Innovation Law Lab v. Wolf" on Justia Law

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An interim final rule, coupled with the presidential proclamation that was issued on the same day, that strips asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry, conflicts with the text and congressional purpose of the Immigration and Nationality Act (INA). The Ninth Circuit affirmed the district court's grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of the interim final rule. Given the preliminary stage of the appellate process at which the motions panel issued the order denying the government's stay motion and the motion panel's stated reservations, the Ninth Circuit panel treated the motions panel's decision as persuasive, but not binding. The panel also held that the Organizations' claims were justiciable and they have otherwise satisfied Article III standing requirements, and the Organizations' claims continue to fall within the zone of interests of the INA and of the regulatory amendments implemented by the rule. On the merits of the preliminary injunction, the panel held that the district court correctly concluded that the rule is substantively invalid because it conflicts with the plain congressional intent instilled in 8 U.S.C. 1158(a), and is therefore not in accordance with law under the Administrative Procedure Act (APA). The panel explained that section 1158(a) provides that migrants arriving anywhere along the United States's borders may apply for asylum, but the rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. Therefore, the rule was effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in section 1158(a). The panel held that, even if the text of section 1158(a) were ambiguous, the rule fails at the second step of Chevron because it is an arbitrary and capricious interpretation of that statutory provision. Furthermore, the panel held that the rule is unreasonable in regard to the United States's treaty obligations under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees. The panel briefly addressed the procedural arguments raised by the parties; held that the Organizations demonstrated a sufficient likelihood of irreparable injury to warrant injunctive relief; held that the public interest weighs sharply in the Organizations' favor; and held that the district court did not abuse its discretion in enjoining enforcement of the rule. View "East Bay Sanctuary Covenant v. Trump" on Justia Law

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The Ninth Circuit filed an amended opinion affirming the district court's grant of summary judgment in favor of government defendants in a case involving when a spousal relationship must exist for a spouse to be eligible for derivative U-visa status. The panel deferred to a regulation that the USCIS adopted, which construed the statutory phrase, "accompanying, or following to join" to require that a spouse's qualifying relationship exist at the time of the filing of the initial U-visa petition. In this case, petitioner entered the United States and was a victim of a serious crime. After she was helpful to law enforcement and granted a petition for a U-visa, she sought derivative U-visa status for her husband. The panel applied Chevron deference to the USCIS's interpretation of the statute in enacting the regulation, holding that the statute is ambiguous as to "accompany, or following to join," the USCIS reasonably interpreted the ambiguous phrase, and equal protection under the Fifth Amendment has not been violated. View "Medina Tovar v. Zuchowski" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner removable based on his robbery conviction under Oregon Revised Statutes section 164.395. The panel held that section 164.395 is not a categorical theft offense and therefore not an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act. The panel agreed with petitioner that section 164.395 exceeds the generic definition of a theft offense because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. Because the panel held that the statute was overbroad, the panel moved to the next step of the analysis: determining whether the statute is divisible, such that application of the modified categorical approach is appropriate. The panel held that Oregon's third-degree robbery statute is indivisible. View "Lopez-Aquilar v. Barr" on Justia Law

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Petitioner, a citizen of Guatemala, sought review of the BIA's denial of withholding of removal based on the agency's conclusion that the record does not establish that Guatemalan society recognizes "people who report the criminal activity of gangs to police" as a distinct social group. The Ninth Circuit held that it lacked jurisdiction to review petitioner's renewed argument concerning relief under the Convention Against Torture, because the panel expressly disposed of the issue in a prior petition for review and the issue was not currently under consideration. The panel also held that substantial evidence supported the BIA's conclusion that the record was devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who report the criminal activity of gangs to the police are perceived or recognized as a group by society in Guatemala. The panel explained that, although the record contained two State Department Human Rights Reports and a Congressional Research Service report, none of those documents discussed reporting gang violence to police, or any risks or barriers associated with doing so. Furthermore, the documents did not assert that Guatemalan society recognizes those who, without more, report gang violence as a distinct group. Furthermore, the testimony failed to support a finding of social recognition. Accordingly, the panel dismissed in part and denied in part. View "Conde Quevedo v. Barr" on Justia Law

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USCIS permissibly construed the statutory phrase "accompanying, or following to join" in 8 U.S.C. 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R. 214.14(f)(4), requiring that a spouse's qualifying relationship exist at the time of the initial U-visa petition and that the qualifying relationship continues throughout the adjudication of the derivative petition. The Ninth Circuit affirmed the district court's grant of summary judgment to government defendants, according Chevron deference to USCIS's interpretation of the statute in enacting the regulation. Given the deference to the agency to impose regulations interpreting (and gap filling) the immigration statutes, the panel held that the requirement was a reasonable interpretation. The panel also held that the equal protection clause has not been violated, because children and spouses were not similarly situated and distinction between nonimmigrant derivative spouses was rationally based. View "Medina Tovar v. Zuchowski" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's determination that petitioner committed a crime involving moral turpitude. The panel held that an aggravated assault conviction under Arizona Revised Statutes 13-1203(A)(2) and 13-1204(A)(2) qualifies as a crime involving moral turpitude that made petitioner removable. In this case, the parties have treated both the basic and aggravated assault provisions as divisible, and the panel agreed that such an approach comported with circuit and state precedent. In consideration of the charging document, plea agreement, and plea colloquy together, the panel held that it was clear petitioner was convicted under sections 13-1203(A)(2) and 13-1204(A)(2). The panel was satisfied that under its cases, an aggravated assault conviction under sections 13-1203(A)(2) and 13-1204(A)(2) involving the use of a deadly weapon or dangerous instrument qualifies as a crime involving moral turpitude. View "Altayar v. Barr" on Justia Law

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A conviction under California Penal Code 114 is not an aggravated felony or a crime involving moral turpitude under the Immigration and Nationality Act. The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was ineligible for cancellation of removal due to her conviction under section 114. The panel used the categorical approach to determine whether the California statute categorically quaifies as an aggravated felony. The necessary elements for conviction under section 114 are: (1) the use; (2) of a false document; (3) to conceal citizenship or alien status; (4) with specific intent. The panel compared these elements with the federal definition of an aggravated felony and held that the California statute cannot be a match to the federal offense because it includes documents, such as fake drivers' licenses, that are not enumerated in the description of the federal crime. Furthermore, the state statute was not divisible. The panel also held that section 114 did not constitute a crime involving moral turpitude because, under the categorical approach, section 114 does not require fraudulent intent. Therefore, the panel held that the BIA erred in holding that petitioner's state conviction precluded her from consideration of cancellation of removal. Accordingly, the panel remanded for further proceedings. View "Jauregui-Cardenas v. Barr" on Justia Law

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The Ninth Circuit reversed the district court's denial of a petition challenging USCIS's denial of petitioner's application for naturalization. USCIS and the district court found that petitioner and her first husband were both California domiciliaries at the time they obtained their Korean divorce, meaning that their divorce was of "no force or effect" in California. At issue was whether petitioner was "domiciled" in California at the time of her divorce. The panel held that petitioner, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Therefore, the panel held that petitioner's divorce and subsequent marriage were valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization. View "Park v. Barr" on Justia Law