Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit reversed the district court's conviction of attempted reentry of a removed alien. Defendant argued that his 2009 removal was invalid because his 1997 drug trafficking conviction under Wash. Rev. Code 69.50.401 was incorrectly determined to be an aggravated felony. The panel held that defendant's waiver of the right to seek judicial review was not considered and intelligent, and thus he was deprived of due process. Furthermore, defendant's prior drug trafficiking conviction did not qualify as an aggravated felony under the categorical approach and could not be the basis for defendant's 2009 removal. Therefore, defendant satisfied all three elements of 8 U.S.C. 1326(d), and his collateral attack on the underlying deportation order should have been successful. The panel remanded for further proceedings. View "United States v. Valdivia-Flores" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision affirming an IJ's adverse credibility determination and denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner argued that he was persecuted in India because of his support of one of the country's opposition political parties. The panel held that the IJ's decision was supported by substantial evidence; the IJ's demeanor findings were sufficiently specific, and the Board and IJ provided specific and cogent reasons for why inaccuracies in petitioner's documentary evidence, and inconsistencies between his statements and other evidence of record, undermined his credibility; petitioner could not satisfy his burden of proving he was eligible for asylum and withholding of removal; and the Board's determination that petition was not entitled to protection under the CAT was supported by substantial evidence. View "Manes v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision that petitioner's felony hit and run conviction under California Vehicle Code 20001(a) was a crime involving moral turpitude (CIMT), rendering him ineligible for cancellation of removal. In this case, petitioner admitted in his plea agreement that he was involved in a car accident that led to injury. The panel applied the modified categorical approach and held that a felony conviction for traditional hit and run causing injury qualifies as a CIMT under current controlling precedent. View "Conejo-Bravo v. Sessions" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision holding that petitioner was statutorily ineligible for cancellation of removal for failure to establish seven years continuous residence in the United States after being "admitted in any status." In this case, petitioner was "admitted" in 1993 when he was waved across the border after inspection by an immigration officer. The panel held that petitioner's procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2), because the phrase "in any status" plainly encompasses every status recognized by immigration statutes, lawful or unlawful. View "Villalba Saldivar v. Sessions" on Justia Law

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The Ninth Circuit affirmed the district court's order granting a preliminary injunction for a class of non-citizens in removal proceedings who are detained under 8 U.S.C. 1226(a). In this case, the government has already determined that the class members were neither dangerous nor enough of a flight risk to require detention without bond. Nonetheless, the class members remain detained because they are unable to afford bond in the amount set by the immigration officials. The panel held that the district court did not abuse its discretion by granting plaintiffs' motion for a preliminary injunction because plaintiffs were likely to succeed on the merits of their due process claim. The panel reasoned that the government's current policies failed to provide adequate procedural protections to ensure that detention of the class members was reasonably related to a legitimate governmental interest. The panel concluded that due process likely requires immigration officials when considering bond determinations to consider financial circumstances and alternative conditions of release. Furthermore, plaintiffs were likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favored plaintiffs; and the public interest benefited from the injunction. View "Hernandez v. Sessions" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal on the ground that he waived his right to appeal by departing under an order of removal. The panel held that petitioner's departure alone did not constitute a "considered" and "intelligent" waiver of his right to appeal and therefore did not meet the constitutional requirements of a valid waiver. Furthermore, the IJ's failure to inform petitioner that his departure would constitute a waiver of his previously reserved right to appeal to the BIA rendered petitioner's purported waiver invalid. The panel remanded for further proceedings. View "Chavez-Garcia v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's conviction for misdemeanor domestic violence assault under Arizona Revised Statutes 13-1203 and 13-3601 was a crime of domestic violence under 8 U.S.C. 1227(a)(2)(E), and thus rendered him removeable. The panel held that the statute was divisible and, under the modified categorical approach, there was a sufficient factual basis to support that petitioner intentionally or knowingly caused any physical injury to his spouse. Therefore, petitioner's misdemeanor domestic violence conviction was a crime of domestic violence under section 1227(a)(2)(E), and he was removeable. View "Cornejo-Villagrana v. Sessions" on Justia Law

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Petitioner sought to adjust his immigration status to that of a lawful permanent resident, but in order to do so, he needed to prove that at least one of the two visa petitions he filed prior to 2001 was approvable when filed, even though both were ultimately denied. USCIS rejected plaintiff's application to adjust his status because the petitions were denied on their merits and because there was no allegation that the petitions were denied on the basis of circumstances that changed between the time when they were filed and the time when they were adjudicated. The panel affirmed the district court's grant of summary judgment to USCIS, holding that the district court correctly concluded that USCIS was permitted to treat prior merits-based denials of plaintiff's visa petitions as dispositive proof that the petitions were not approvable when filed. View "Hsiao v. Hazuda" on Justia Law

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Petitioner sought review of the IJ's decision denying his motion to suppress evidence of his alienage and ordering his removal. The Ninth Circuit granted the petition for review, holding that the Coast Guard officers committed an egregious Fourth Amendment violation and violated an immigration regulation because they seized him based on his Latino ethnicity alone; the IJ erred in failing to suppress the Form I-213, but the panel did not reach the question of the Family Unity Benefits and Employment Authorization applications; and because petitioner has shown that the Government violated its own regulation that was designed to benefit petitioner, and that petitioner was prejudiced by the violation, his removal proceedings must be terminated. View "Sanchez v. Sessions" on Justia Law

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Pursuant to In re M-A-M-, 25 I. & N. Dec. 474, 480 (B.I.A. 2011), if an applicant shows indicia of incompetency, the IJ has an independent duty to determine whether the applicant is competent. In this case, petitioner sought review of the BIA's dismissal of his appeal from the IJ's denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture. The Ninth Circuit granted the petition, holding that the IJ erred by failing to determine whether procedural safeguards were required after petitioner showed signs of mental incompetency. Furthermore, the BIA abused its discretion by failing to explain why it allowed the IJ to disregard In re M-A-M-'s rigorous procedural requirements. The panel remanded to the BIA with instructions to remand to the IJ for a new hearing consistent with In re M-A-M-. View "Mejia v. Sessions" on Justia Law