Articles Posted in US Court of Appeals for the Ninth Circuit

by
The Ninth Circuit denied a petition for review of the Board's decision denying petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude (bribery). The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that a crime involving moral turpitude is not unconstitutionally vague. The panel held that Boutilier v. INS, 387 U.S. 118 (1967), does not foreclose consideration of whether a crime committed by a non-citizen constitutes a crime of moral turpitude so as to render her inadmissible. The panel also held that the Supreme Court's recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), extending to the immigration context its earlier opinion in Johnson, did not eviscerate the panel's holding in Tseung Chu such that the panel should overrule it. Therefore, the panel remained bound by Jordan and Tseung Chu. View "Martinez-de Ryan v. Sessions" on Justia Law

by
Bermudez-Ariza, a citizen of Colombia, alleges that he fled Colombia to escape persecution by the Fuerzas Armadas Revolucionarias de Colombia on account of his political opinions. He entered the United States illegally in 2002, and, in removal proceedings, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ initially denied all relief but, on subsequent remand from the BIA, reconsidered and granted asylum. The BIA vacated the IJ’s decision, holding that the IJ lacked jurisdiction to reconsider asylum on remand. The Ninth Circuit granted a petition for review and remanded to the BIA for consideration, on the merits, of the grant of asylum. For the BIA to retain jurisdiction when remanding to an IJ, it must expressly retain jurisdiction, and qualify or limit the scope of the remand. If the BIA fails to do either of those things, the scope of the remand is general and the IJ may reconsider any prior decisions, 8 C.F.R. 1003.23(b)(1). Because the BIA did not expressly retain jurisdiction when it remanded to the IJ in this case, the IJ had jurisdiction to reconsider his initial denial of Bermudez-Ariza’s application for asylum. View "Bermudez-Ariza v. Sessions" on Justia Law

by
The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application for cancellation of removal. The panel held that petitioner was ineligible for relief because he was convicted of "Assault of a Child in the Third Degree – Criminal Negligence and Substantial Pain – With Sexual Motivation." The court held that petitioner's conviction was a categorical match for sexual abuse of a minor, which was an aggravated felony under 8 U.S.C. 1101(a)(43)(A). The panel reasoned that it was unnecessary to decide whether to look at state law or the line of Supreme Court precedent beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), to determine what elements were part of the offense that petitioner had been convicted of, because the sexual motivation allegation constituted an element under either approach. View "Quintero-Cisneros v. Sessions" on Justia Law

by
The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application of asylum and withholding of removal. The panel held that substantial evidence supported the determination that petitioner's testimony, even if credible, was not persuasive and did not sufficiently demonstrate eligibility for refugee status; the IJ and BIA determinations that petitioner needed corroborating evidence were supported by the record; petitioner did not provide any meaningful corroborating evidence and that failure supported the denial of his applications; and petitioner had sufficient notice that corroborating evidence was required. View "Jie Shi Liu v. Sessions" on Justia Law

by
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

by
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

by
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

by
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

by
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

by
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