Justia Immigration Law Opinion Summaries

Petitioner a citizen of Guatemala who suffers from dwarfism and who advocated in Guatemala for increased legal protections for dwarfs, petitions our court to review the Board of Immigration Appeals’ (BIA) decision denying him asylum, withholding of removal, and Convention Against Torture (CAT) relief.   The Ninth Circuit granted in part and denied in part Petitioner’s petition for review of the BIA’s decision upholding an immigration judge’s denial of asylum, withholding of removal, and protection under the CAT and remanded. The panel concluded that it is evident from the record that the BIA failed to conduct a cumulative-effect review. The panel explained that the IJ analyzed each category of past harm in isolation and found that none individually rose to the level of persecution. In addition, the BIA failed to acknowledge Petitioner’s request for cumulative-effect review, and the BIA’s analysis did not demonstrate that it took a cumulative look at the various instances of harm Petitioner asserted. Instead, the BIA followed in the IJ’s footsteps, ticking off each of Petitioner’s categories of harm on an individual basis and finding that each amounted only to discrimination. The panel remanded for the agency to apply the correct legal framework to Petitioner’s asylum claim.   The panel held that the BIA also erred by applying asylum’s heightened “at least one central reason” nexus requirement to Petitioner’s withholding of removal claim, rather than the correct “a reason” standard. Finally, the panel concluded that substantial evidence supported the BIA’s conclusion that the Guatemalan government would not acquiesce in any torture Petitioner might suffer View "NERY SALGUERO SOSA V. MERRICK GARLAND" on Justia Law

Plaintiff, a native of El Salvador, was detained by immigration authorities. An immigration judge (IJ) denied bond, and an IJ later denied him relief under the Convention Against Torture and ordered his removal. The Board of Immigration Appeals dismissed his appeal, and this court denied his petition for review. In April 2021, Plaintiff moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Plaintiff filed a habeas petition with the district court, which denied his motion to enjoin his removal until his motion to reopen and habeas petition were decided. On June 14, 2021, the district court denied Plaintiff subsequently-filed motion for a TRO, and the government voluntarily agreed to stay removal up to and including August 13, 2021.   The Ninth Circuit filed: 1) an order amending the opinion filed August 13, 2021; and 2) an amended opinion affirming the district court’s denial of Plaintiff’s request for a temporary restraining order (TRO) to prevent the government from removing him. The panel concluded that the district court correctly determined that jurisdiction was barred by 8 U.S.C. Section 1252(g), which provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The panel rejected Plaintiff’s claim that the Constitution’s Suspension Clause preserves judicial review here. View "WILLIAN RAUDA V. DAVID JENNINGS, ET AL" on Justia Law

Petitioner was convicted under section 273a(a) of the California Penal Code for willfully permitting a child under his care or custody to be “placed in a situation where his or her person or health is endangered” “under circumstances or conditions likely to produce great bodily harm or death.” The IJ and BIA concluded that this conviction rendered Petitioner removable.   The Ninth Circuit denied Petitioner’s petition for review. Looking at the federal generic crimes encompassed by the phrase “child abuse, child neglect, or child abandonment,” a plurality of the en banc court concluded that the normal tools of statutory construction do not lead to an unambiguous interpretation. The dictionaries also did not limit the definition of “child neglect” to conduct committed by a parent or legal guardian. The plurality further explained that the surrounding provisions of the Immigration and Nationality Act (INA), and definitions in other federal statutes, are likewise inconclusive. Thus, the plurality concluded that the phrase is ambiguous, agreeing with this court’s sister circuits that have considered the issue. Finally, the en banc court concluded that section 273a(a), is a categorical match to Section 1227(a)(2)(E)(i).   The en banc court thus agreed with the BIA’s reasoning and conclusion that all violations of section 273a(a) are encompassed by the BIA’s definition of a crime of “child abuse, child neglect, or child abandonment” in Section 1227(a)(2)(E)(i). View "RAFAEL DIAZ-RODRIGUEZ V. MERRICK GARLAND" on Justia Law

Petitioner sought review of an opinion by the Board of Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ) denying his motion to reopen his prior removal proceedings. Petitioner argued that the IJ had jurisdiction over his motion because an alien may collaterally challenge a removal order when it results in a gross miscarriage of justice. The Ninth Circuit filed: 1) an order amending the opinion filed July 18, 2022; and 2) an amended opinion denying Petitioner’s petition.   The court held that: 1) 8 U.S.C. Section 1231(a)(5), which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; and 2) the agency lacks authority to reopen such reinstated removal orders sua sponte. The panel concluded that this argument was not cognizable in the context of this current appeal, explaining that an alien may raise such a collateral attack, but only in a petition for review of a reinstatement proceeding or order. The panel further explained that, although the then-applicable regulation gave the agency the authority to reopen cases sua sponte, that regulation did not expressly provide that such authority overrode Section 1231(a)(5). Nor could it, the panel observed, given that a regulation does not trump an otherwise applicable statute unless the regulation’s enabling statute so provides. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

Petitioner, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Petitioner argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number-barred   The Ninth Circuit filed: 1) an order amending the opinion filed August 1, 2022, and 2) an amended opinion denying in part and dismissing in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel concluded that the BIA did not err in denying Petitioner’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid.   The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Petitioner could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order. View "LUIS PEREZ-CAMACHO V. MERRICK GARLAND" on Justia Law

Petitioner, a citizen of El Salvador, was detained pursuant to 8 U.S.C. Sec. 1226(a), which authorizes the federal government to detain aliens pending the completion of their removal proceedings. Petitioner requested and received a bond hearing before an Immigration Judge to determine if his detention was justified. The Immigration Judge concluded that Petitioner, who had an extensive criminal history, presented a danger to the community due to his gang affiliation. Based on this, the Immigration Judge denied release on bond. Petitioner claims that his continued detention was unconstitutional because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond hearing at which the government bears the burden of proof by clear and convincing evidence.The district court ruled that Petitioner was constitutionally entitled to another bond hearing before the Immigration Judge.The Ninth Circuit held that the Due Process Clause does not require more than Sec. 1226(a) provides. View "AROLDO RODRIGUEZ DIAZ V. MERRICK GARLAND, ET AL" on Justia Law

The Special Immigrant Juveniles (“SIJ”) program provides certain immigrant juveniles a pathway to lawful permanent residence status. Under 8 U.S.C. Section 1232(d)(2), applications for SIJ status “shall be adjudicated” not later than 180 days after they are filed. Plaintiffs—three SIJ petitioners representing a certified class of some current and future SIJ petitioners from Washington State—filed suit in the district court against USCIS and other federal government defendants (the “Government”). The district court held that USCIS’s delays were unlawful, and the Government did not challenge that holding on appeal. At issue on appeal was only whether the district court erred, after granting summary judgment to Plaintiffs, by issuing a permanent injunction and in crafting its terms and scope.   The Ninth Circuit affirmed the district court’s issuance of a permanent injunction, vacated a provision of the injunction that permits SIJ petitioners (but not USCIS) to “toll” the deadline for adjudicating SIJ petitions, and remanded. The panel explained that there is an inconsistency between the reach of the jurisdictional bar as it appears in the provision that enacted it, as opposed to how it appears as codified in the United States Code.   The panel concluded that the district court did not abuse its discretion in entering the permanent injunction. The panel rejected the Government’s claims that the district court failed to consider the operational hardship on the Government in balancing hardships, and that the district court relied upon stale evidence to determine that Plaintiffs were likely to suffer irreparable harm. View "LEOBARDO MORENO GALVEZ, ET AL V. UR JADDOU, ET AL" on Justia Law

Petitioner a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner asserts that he suffered past persecution and has a well-founded fear of future persecution due to his familial association with his brother, who is a member of the Shiromani Akali Dal Party (Mann Party), and his own affiliation with that Party. The Mann Party advocates for the creation of a sovereign state for Sikh people and is opposed by the Congress Party, one of India’s major political parties.   The Ninth Circuit granted in part and denied in part Petitioner’s petition for review. The panel held that substantial evidence did not support the BIA’s determination that the harm Petitioner suffered did not rise to the level of past persecution, but substantial evidence did support the BIA’s determination that the harm did not amount to past torture and that Petitioner failed to show that he would more likely than not face a clear probability of future torture. View "SHAMSHER SINGH V. MERRICK GARLAND" on Justia Law

Petitioner was removed to Mexico in 2008, partly because of a California conviction for drug possession. In 2018, a California court expunged that conviction under California’s rehabilitative statute, and Petitioner sought to reopen his immigration proceedings. An immigration judge and the BIA denied the motion to reopen, and Petitioner sought review in this court.   Denying in part and granting in part and remanding, the panel held that: (1) the vacatur of a conviction underlying a removal order does not excuse a late motion to reopen, and therefore, Petitioner’s motion to reopen was untimely; (2) the BIA acted within its discretion in concluding that Petitioner failed to act with sufficient diligence to warrant equitable tolling of the motion-to-reopen deadline; and (3) the BIA erred as a matter of law in denying sua sponte reopening.   Because a motion to reopen must generally be filed within 90 days of a final order of removal, Petitioner’s motion was approximately a decade late. The panel rejected Petitioner’s argument, observing that it was bound by Perez-Camacho v. Garland, 42 F.4th 1103 (9th Cir. 2022), in which this court recently held that the Cardoso-Tlaseca rule applies only to timely motions to reopen; it does not excuse late filing. The panel also concluded that, even if it were not bound, it would reach the same result. The panel explained that the statute and regulation governing motions to reopen contain explicit exceptions to the timeliness requirement, but there is no exception for persons removed pursuant to an unlawfully executed order, and the codified exceptions strongly suggest that Congress and the agency did not intend that exception. View "JOSE LARA-GARCIA V. MERRICK GARLAND" on Justia Law

The Board of Immigration Appeals (BIA) denied Petitioner’s application for cancellation of removal on the ground that he had not established that his United States citizen children would suffer “exceptional and extremely unusual hardship” if he were removed. 8 U.S.C. Section 1229b(b)(1). The Ninth Circuit, held that: 1) 8 U.S.C. Section 1252(a)(2)(D) grants the court jurisdiction to review a question of law or a mixed question of law and fact presented in a challenge to an agency denial of cancellation of removal for failure to establish the required hardship; and 2) assuming arguendo that Petitioner’s petition presented such questions, his hardship claim failed on the merits.   Despite finding facial merit in the Fourth and Sixth Circuit decisions, the panel concluded that it need not take a definitive side in the circuit split. The panel explained that it is settled that this court can assume statutory jurisdiction arguendo when the jurisdictional issue is complex, but the claim clearly lacks merit. The panel explained that it had no qualms with that approach here. The panel concluded that the BIA’s decision that exceptional and extremely unusual hardship was not established was clearly supported by the record. The panel explained that Petitioner largely focused on financial hardship, but the BIA has concluded that economic detriment alone is insufficient to support even a finding of extreme hardship. View "ANTONIO DE LA ROSA-RODRIGUEZ V. MERRICK GARLAND" on Justia Law