Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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Petitioner asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured. Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board of Immigration Appeals (“Board”) concluded that Petitioner failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen.   The Ninth Circuit, in granting Petitioner’s petition for review the court held that the Board erred by failing to adequately consider Petitioner’s aggregate risk of torture from multiple sources, and erred in rejecting Petitioner’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence.   The court concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. Discussing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), the court explained that when an applicant posits multiple theories for why he might be tortured, the relevant inquiry is whether the total probability that the applicant will be tortured exceeds 50 percent.   Here, the Board considered Petitioner’s two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. The court concluded that in doing so, the Board misapplied Cole and Matter of J-F-F-.  By requiring Petitioner to show that every step in two hypothetical chains was more likely than not to occur, the Board increased his CAT burden. View "MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND" on Justia Law

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Petitioner asserted that changed circumstances in his native Jamaica— a spike in violence against members of the People’s National Party—justified his untimely second motion to reopen. Because an Immigration Judge in an earlier proceeding found Petitioner not credible and questioned his actual identity, the Board of Immigration Appeals (“Board”) ruled that the new evidence of political violence did not matter because Petitioner may not even be a member of the People’s National Party.   The Ninth Circuit denied in part and dismissed in part holding that the Board may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument. The court concluded that the Board did not abuse its discretion in denying Petitioner’s motion to reopen. The court explained that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied on adverse credibility grounds, the respondent must either overcome the prior credibility determination or show that the new claim is independent of the evidence that was found to be not credible.   Here, Petitioner did not challenge the adverse credibility finding but instead argued that his new evidence was independent of the evidence that was found to be not credible. The court rejected that argument. The court explained that the IJ had previously found Petitioner’s testimony about his identity not credible, thus undermining his entire claim. Moreover, Petitioner’s claims remained the same throughout his proceedings. The court concluded that the basis of Petitioner's motion to reopen therefore remained intertwined with his credibility problem. View "GARFIELD GREENWOOD V. MERRICK GARLAND" on Justia Law

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Petitioner was detained under 8 U.S.C. Section 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions. After Petitioner filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed. The district court asserted jurisdiction over Petitioner’s claims but denied habeas relief.   Affirming in part and vacating in part the Ninth Circuit held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Petitioner’s claims that the BIA erred or violated due process in denying bond.   The court held that the district court lacked jurisdiction to review the determination that Petitioner posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review bar of 8 U.S.C. Section 1226(e). In concluding that the dangerousness determination is discretionary, the court observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multifactorial analysis with no clear, uniform standard for what crosses the line into dangerousness. As to Petitioner’s remaining claims, the court concluded that the district court had jurisdiction to review them as constitutional claims or questions of law not covered by Section1226(e), but agreed with the district court that they must be denied. View "JAVIER MARTINEZ V. LOWELL CLARK" on Justia Law

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Petitioner petitioned for review of a decision of the Board of Immigration Appeals (“BIA”) denying his request to administratively close his removal proceedings. An immigration judge ordered Petitioner removed from the United States after he admitted that he had committed acts that disqualified him from obtaining cancellation of removal: He twice “encouraged” his eldest son to enter the United States illegally. Petitioner now argues that the “encouraged” component of the alien-smuggling statute, 8 U.S.C. Section 1182(a)(6)(E)(i), is unconstitutionally overbroad under the First Amendment, that it is unconstitutionally vague, and that it violates the equal-protection component of the Due Process Clause. He also contends that the agency abused its discretion in denying his motion for administrative closure.   The Ninth Circuit denied his petition. The court rejected Petitioner’s contention that its interpretation creates overlap with the other verbs in the section, explaining that, because no interpretation could avoid excess language here, the canon against superfluity had limited force. Further, the court explained that, even if it had doubt about its interpretation, the canon of constitutional avoidance would militate in its favor. Next, the court rejected Petitioner’s argument that section 1182(a)(6)(E)(i) is unconstitutionally vague. The court concluded that his concession that he “encouraged” his son’s unlawful entry foreclosed his facial challenge because an individual who has engaged in conduct that is clearly covered by a statute cannot complain of vagueness as applied to others. Finally, the court held that the agency did not abuse its discretion in denying administrative closure, explaining that the agency considered the applicable factors and explained its conclusions. View "J. MARQUEZ-REYES V. MERRICK GARLAND" on Justia Law

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Petitioner was publicly marked as a terrorist and threatened with torture over social media by Nicaraguan government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime and received a second death threat— this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. The Ninth Circuit explained that the threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents.   The Ninth Circuit (1) granted Petitioner’s petition for review of the Board of Immigration Appeals’ (“Board”) decision affirming an immigration judge’s denial of asylum and related relief, and remanded, holding that the record compelled a finding that Petitioner’s past experiences constituted persecution and that the Board erred in its analysis of other issues; and (2) dismissed as moot Petitioner’s petition for review of the Board’s denial of his motion to reopen   The court held that the record compelled the conclusion that Petitioner’s experiences in Nicaragua constituted persecution. The court explained that the court has consistently recognized that being forced to flee from one’s home in the face of an immediate threat of severe physical violence or death is squarely encompassed within the rubric of persecution. Here, Petitioner was forced to flee three separate times after being personally targeted with violence and threatened with death for his political views. Further,the court wrote that an applicant may suffer persecution based on the cumulative effect of several incidents, even if no single incident rises to the level of persecution. View "MARIO FLORES MOLINA V. MERRICK GARLAND" on Justia Law

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Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. Section 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad.   Denying in part and granting in part Petitioner’s petition for review of a decision of the BIA, the court held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Applying the categorical approach, the court first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), and expressly recognized that Cisneros had been overruled.   As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The court explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. Because the BIA committed an error of law in failing to apply the correct legal standards, the court remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards. View "DIEGO MENDOZA-GARCIA V. MERRICK GARLAND" on Justia Law

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Petitioner was convicted of forgery under Section 472 for possession of a counterfeit government seal. The Board of Immigration Appeals concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Petitioner argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude.   The Ninth Circuit denied in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that a forgery under California Penal Code Section 472 is a crime involving moral turpitude.   The court considered the elements of Section 472 and concluded that California law does not support Petitioner’s reading of the statute. The court explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or actions. The court also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion.   Finally, Petitioner contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The court concluded that the record belied that assertion, noting that the BIA did not read Petitioner’s brief as raising that assertion. View "PEDRO VASQUEZ-BORJAS V. MERRICK GARLAND" on Justia Law

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This appeal arose from a class action filed under the Victims of Trafficking and Violence Protection Act of 2000 by individuals who were incarcerated in private immigration detention facilities owned and operated by a for-profit corporation, CoreCivic, Inc. These individuals were detained solely due to their immigration status alleged that the overseers of their private detention facilities forced them to perform labor against their will and without compensation. The inquiry on appeal concerns only whether the district court properly certified three classes of detainees.   The Ninth Circuit affirmed the district court’s order certifying three classes in an action. The court held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The court held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a class-wide policy of forced labor to establish commonality. Plaintiff established predominance because the claims of the class members all depended on common questions of law and fact. The court agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage.   The court held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a class-wide policy of forced labor. As to the California Labor Law Class, the court held that Plaintiffs established that damages were capable of measurement on a class-wide basis. View "SYLVESTER OWINO V. CORECIVIC, INC." on Justia Law

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Petitioner petitioned for review of an order of the Board of Immigration Appeals (“BIA”) upholding the decision of the Immigration Judge (“IJ”) denying her application for cancellation of removal and ordering her removed to Mexico.     The Ninth Circuit denied in part and dismissed in part Petitioner’s petition and held that Petitioner’s conviction for corporal injury upon a child, in violation of California Penal Code Section 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The court reasoned that The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. Section 1101(a)(43)(F). Thus, because Petitioner’s conviction records confirmed a jail term of 365 days, the court explained that whether Petitioner was convicted of an aggravated felony turned solely on whether a violation of Section 273d(a) constitutes a “crime of violence” under 18 U.S.C. Section 16.   The court explained that the relevant language of Section 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code Section 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. The court rejected the remaining challenges to Petitioner’s removal order View "AURORA OLEA-SEREFINA V. MERRICK GARLAND" on Justia Law

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While tending to the wounds of a separatist fighter at a local hospital, Cameroonian soldiers punched Petitioner, attacked him and threatened to kill him if they ever caught him treating separatists again. Petitioner sought review of the Board of Immigration Appeals (“BIA”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The BIA denied asylum and withholding of removal on the grounds that Petitioner had (a) failed to demonstrate past persecution and (b) failed to prove a nexus between the feared harm and a protected ground.The Ninth Circuit held that the harm Petitioner suffered, including the physical injury, the specific death threats connected to the physical harm, and evidence of the country’s political and societal turmoil, compelled the finding of past persecution. The court held that the IJ’s finding that Petitioner failed to establish a nexus based on the fact that he had not testified as to what happened to a hospital coworker who helped Petitioner, was vague because it was not directly responsive to Petitioner’s argument. Further, the court held that it also was not clear whether this reason rested on the flawed findings of fact concerning past persecution or whether this reason faulted Petitioner for not providing corroborative evidence. In light of the ambiguities, the court concluded that it could not conduct a meaningful review of the agency’s nexus determination, and it remanded for a clear explanation. Finally, the court held that substantial evidence supported the denial of CAT relief. View "STEPHEN FON V. MERRICK GARLAND" on Justia Law