Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm. View "United States v. Gear" on Justia Law

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The Ninth Circuit reversed the district court's denial of a petition for habeas relief under 28 U.S.C. 2241, and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), the default rule for First Amendment retaliation claims.The panel held that the Supreme Court's recent decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), holding that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. 1983, does not apply to a noncitizen's claim that ICE unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him. In this case, petitioner had been detained by ICE and released on bond in 2018. After petitioner spoke publicly at a rally in 2019 and read his poem, entitled "Dear America," in which he criticized ICE practices, ICE revoked his bond and re-arrested him. The panel explained that Nieves is not applicable because problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Furthermore, Nieves arose out of the criminal arrest context where "evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." The panel explained that this reasoning does not translate to the immigration bond revocation context. View "Bello-Reyes v. Gaynor" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner failed to meet his burden of proof for asylum, withholding of removal, or relief under the Convention Against Torture (CAT). The BIA noted that petitioner never testified or submitted evidence claiming any actual injury caused by the Taliban, or that the Taliban individually targeted or attacked him for any reason. The BIA also concluded that the IJ provided petitioner due process where there was no indication in the transcript or the appeal that he did not understand the proceedings or that there were facts he was "unable to present."The panel held that the IJ provided petitioner due process by providing details about the structure of the hearing, the availability of counsel, and asking numerous questions through which petitioner had ample opportunity to develop his testimony. Furthermore, petitioner failed to show substantial prejudice. The panel also held that substantial evidence supported the BIA's conclusion that petitioner did not suffer past persecution where petitioner never alleged he was personally targeted by the Taliban and his testimony was consistent with an environment of generalized violence. Furthermore, the Pakistani government is not unwilling or unable to prevent harm and it would not be unreasonable for petitioner to relocate within Pakistan. Finally, the panel held that substantial evidence supports the BIA's determination that petitioner cannot meet his burden to obtain CAT protection. View "Hussain v. Rosen" on Justia Law

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Proclamation No. 9945, which restricts entry of immigrant visa applicants who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses, was within President Trump's statutory authority.The Ninth Circuit reversed the district court's order enjoining the Proclamation's implementation. The panel assumed that, to the extent plaintiffs have Article III standing, they may assert an ultra vires cause of action to challenge the Proclamation on constitutional and statutory grounds. Because the panel concluded that plaintiffs' claims are likely to fail on the merits, the panel has no obligation to reach the consular nonreviewability issue and declined to do so.The panel held that the Proclamation is a lawful exercise of the President's delegated authority under section 212(f) of the Immigration and Nationality Act (INA) where it comports with the textual limitations of section 212(f) as set forth in Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018). Furthermore, plaintiffs failed to show a likelihood of success on their claims that the Proclamation conflicts with other statutes such as the Affordable Care Act, the Children's Health Insurance Program Reauthorization Act, the public charge provision of the INA, and the Violence Against Women Act. Finally, the panel rejected the district court's contention that, to the extent section 212(f) allows the President to impose additional entry restrictions based on "domestic policymaking" concerns, section 212(f) itself violates the nondelegation doctrine. Contrary to what the district court concluded, the panel stated that it makes no difference whether the additional entry restrictions are imposed under section 212(f) based on assertedly domestic policy concerns. Therefore, the panel concluded that the district court abused its discretion in granting the preliminary injunction enjoining the Proclamation's implementation. View "Doe v. Trump" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency. View "Hernandez Flores v. Rosen" on Justia Law

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This case relates to the consent decree incorporating the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention. The Agreement established nationwide standards for the detention, release, and treatment of minors by U.S. immigration authorities. The Agreement, by its own terms, terminates after the government's publication of final regulations implementing the Agreement. In 2019, the government issued final regulations represented as implementing, and thus terminating, the Agreement. The district court then concluded that the new regulations, on the whole, were inconsistent with the Agreement, enjoining the regulations from taking effect and denying the government's motion to terminate the Agreement.The Ninth Circuit held that the provisions of the new regulations relating to unaccompanied minors are consistent with the Agreement except to the extent that they require ORR to place an unaccompanied minor in a secure facility if the minor is otherwise a danger to self or others and to the extent they require unaccompanied minors held in secure or staff-secure placements to request a hearing, rather than providing a hearing to those minors automatically unless they refuse one.The panel also held that some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors are consistent with the Agreement and may take effect. However, the remaining new regulations relating to accompanied minors depart from the Agreement in several important ways. Therefore, the panel affirmed the district court's order enjoining those regulations. The panel further held that the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations. Finally, the panel held that the district court did not abuse its discretion in denying the government's motion to terminate the Agreement, as the government has not demonstrated that changed circumstances, such as an increase in family migration, justify terminating the Agreement's protections. View "Flores v. Rosen" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal. The panel held that petitioner waived review of the Board's discretionary denial of asylum relief by failing to contest this aspect of the Board's decision in his opening brief. The panel also held that the Board properly concluded that petitioner's proposed social group of "known drug users" was not legally cognizable based on lack of particularity under the standards set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Even if the panel were to ignore the ambiguity of the term "known," "drug" and "user" are broad terms that cause the proposed group to lack definable boundaries and to be amorphous, overbroad, diffuse, or subjective. View "Minh P. Nguyen v. Barr" on Justia Law

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Innova, wanting to hire a citizen of India with a bachelor’s degree as a computer programmer, sought an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, U.S. Citizenship and Immigration Services (USCIS) denied the application, concluding that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”The Ninth Circuit reversed, concluding that USCIS’s denial was arbitrary and capricious. USCIS’s suggestion that there is “space” between "typically needed," per the OOH, and "normally required," per the regulation is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." The regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. USCIS misrepresented the OOH and failed to consider key evidence, namely, OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.” View "Innova Solutions, Inc. v. Baran" on Justia Law

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The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary. View "Singh v. Barr" on Justia Law

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Plaintiff was granted a U-visa effective a month after she married her husband. After USCIS denied plaintiff's petition for a derivative U-visa for her husband, she filed suit for declaratory and injunctive relief. The district court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute.The Ninth Circuit reversed, holding that 8 C.F.R. 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. The court held that the statute clearly answers the relevant interpretive question: to qualify for a derivative U-visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U-visa. Therefore, section 214.14(f)(4) is invalid insofar as it requires a derivative U-visa spouse to have been married to the principal petitioner when the application was filed. In this case, plaintiff and her husband were married by the time she was granted a U-visa and when she petitioned for derivative U-visa status, her husband was entitled to receive a U-visa if he otherwise met the requirements. View "Medina Tovar v. Zuchowski" on Justia Law