Articles Posted in US Court of Appeals for the Ninth Circuit

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ICE agents were not permitted to carry out preplanned mass detentions, interrogations, and arrests at a factory, without individualized reasonable suspicion. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal against petitioner and dismissal of his appeal. The panel rejected the government's argument that the evidence was sufficient to prove that petitioner's removability was not suppressible. On the merits, the panel held that petitioner's seizure was not a justified detention under Michigan v. Summers, 452 U.S. 692 (1981), which held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The panel held that Summers' categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion. Therefore, the agents violated 8 C.F.R. 287.8(b)(2) by detaining and questioning petitioner, and petitioner was entitled to suppression of the evidence gathered as a result of that violation. Finally, the panel held that the proceedings against petitioner should be terminated without prejudice. View "Perez Cruz v. Barr" 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 was removable as an immigrant who at the time of application for admission lacked a valid entry document under 8 U.S.C. 1182(a)(7)(A)(i)(I), and that she was ineligible for cancellation of removal. The panel followed its binding precedent in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), cert. denied, 138 S. Ct. 1261 (2018), and Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012), holding that substantial evidence supported the BIA's decision. In Minto, the panel held that although Congress's two-year reprieve protected immigrants like petitioner from removability under 8 U.S.C. 1182(a)(6)(A)(i) on the basis that they had not been admitted or paroled into the United States, it did not exempt them from removal based on other grounds of removability. Therefore, the panel held that reprieve did not offer petitioner protection from the charge that she was an immigrant who at the time of application for admission lacked a valid entry document. The panel also held that substantial evidence supported the BIA's determination that petition failed to establish the ten years of continuous presence in the United States required for cancellation of removal. Finally, the panel lacked jurisdiction to consider petitioner's request to remand. View "Torres v. Barr" on Justia Law

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The Ninth Circuit filed an order denying respondent's motion to depublish and granting the motion to amend the prior opinion, as well as an amended opinion. In the amended opinion, the panel held that petitioner's conviction under Oregon Statutes section 164.395 for robbery in the third degree is not categorically a crime involving moral turpitude. The panel held that the minimal force required for conviction was insufficient and the government waived the issue of divisibility. Therefore, petitioner was not statutorily ineligible for cancellation of removal and the panel affirmed the petition for review in part. However, the panel denied the petition for review as to the withholding of removal claim, holding that petitioner's proposed particular social group – individuals returning to Mexico who are believed to be wealthy – was overbroad. The panel remanded for further proceedings. View "Aguirre Barbosa v. Barr" on Justia Law

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Petitioner sought review of the BIA's decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel denied the petition as to petitioner's claims for asylum and withholding of removal, holding that substantial evidence supported the agency's determination that petitioner committed a serious nonpolitical offense and was therefore statutorily ineligible for asylum and withholding of removal. However, the panel granted the petition in regard to plaintiff's claim for relief under CAT, holding that the IJ failed to consider evidence from petitioner's church that he is a practicing Christian and evidence from the country reports that Christians are persecuted and tortured in China. View "Jiang Guan v. Barr" on Justia Law

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The Ninth Circuit joined its sister circuits and held that the BIA does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained. The panel held that the rationales supporting the practice of waiver and forfeiture hold in the context of removal proceedings in the Executive Office of Immigration review. The panel explained that the BIA is an appellate body whose function is to review, not create, a record, and it would be inappropriate to force it to consider new issues on appeal by judicial fiat. In this case, the BIA did not err by declining to consider petitioner's proposed particular social groups that were raised for the first time on appeal. Accordingly, the panel denied his petition for review. View "Honcharov v. Barr" on Justia Law

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A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal. The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal. View "Lorenzo Lopez v. Barr" on Justia Law

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Petitioner sought review of the BIA's decision affirming the IJ's pretermission of his application for cancellation of removal. The panel held that petitioner's continuous residency did not commence with his 1997 parole, but with his 2000 adjustment to LPR status. The panel held that petitioner has not shown that his 1997 parole constitutes an "admission in any status" as that term is used in 8 U.S.C. 1229b(a)(2); petitioner is not entitled to any relief because the administrative record does not include his 1997 parole document; and petitioner has not shown that the BIA erred in concluding that he had not challenged the IJ's denial of relief under the Convention Against Torture (CAT). At the parties' mutual request, the panel remanded petitioner's asylum application for the fact-finding necessary to determine the viability of petitioner's proposed social group. View "Alanniz v. Barr" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64. The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" on Justia Law

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Asylum applicants and asylum-related legal services challenged the Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. The district court concluded that the MPP lacked a statutory basis and violated the Administrative Procedure Act (APA). The district court then enjoined DHS on a nationwide basis from continuing to implement or expand the MPP. DHS argued that it relied on the contiguous-territory provision in 8 U.S.C.1225(b)(2)(C) as the statutory basis for the MPP. The Ninth Circuit granted DHS's motion for a stay pending appeal and held that DHS was likely to prevail on its contention that 8 U.S.C.1225(b)(1), which outlines the procedures for expedited removal and specifies the class of non-citizens who are eligible for expedited removal, "applies" only to applicants for admission who are processed under its provisions. Under this reading, section 1225(b)(1) does not apply to an applicant who is processed under section 1225(b)(2)(A), even if that individual is rendered inadmissible by section 1182(a)(6)(C) or (a)(7). Consequently, applicants for admission who are placed in regular removal proceedings under section 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under section 1225(b)(2)(C). Therefore, plaintiffs were properly subject to the contiguous-territory provision because they were processed in accordance with section 1225(b)(2)(A), rather than section 1225(b)(1). Furthermore, DHS was likely to prevail on plaintiffs' claim that the MPP should have gone through the APA's notice and comment process, because the MPP qualifies as a general statement of policy where immigration officers designate applicants for return on a discretionary case-by-case basis. Finally, the remaining factors governing issuance of a stay pending appeal weigh in the government's favor. View "Innovation Law Lab v. McAleenan" on Justia Law

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An IJ is required to inform a petitioner subject to removal proceedings of "apparent eligibility to apply for any of the benefits enumerated in this chapter." 8 C.F.R. 1240.11(a)(2). The apparent eligibility standard of 8 C.F.R. 1240.11(a)(2) is triggered whenever the facts before the IJ raise a reasonable possibility that the petitioner may be eligible for relief. When the IJ fails to provide the required advice, the appropriate course is to grant the petition for review, reverse the BIA's dismissal of the petitioner's appeal of the IJ's failure to inform him of this relief, and remand for a new hearing. A successful Special Immigrant Juvenile (SIJ) application plainly can lead to relief from removal, and SIJ regulations are among those in the referenced subchapter, 8 C.F.R. 1245.1(a), (e)(2)(vi)(B)(3). The en banc court granted a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of his application for asylum and withholding of removal. The panel held that the IJ who ordered petitioner removed erred by failing to advise him about his apparent eligibility for SIJ status. View "C.J.L.G. v. Barr" on Justia Law