Justia Immigration Law Opinion Summaries

Petitioner asserted a fear of persecution or torture in Nigeria based on his status as a gay man and the harm he suffered after being discovered having sex with his boyfriend in a hotel. The immigration judge (“IJ”) found that Petitioner was not credible because he “misrepresented” the name of the hotel where he and his boyfriend were discovered. The IJ found that Petitioner failed to establish that he is gay or that he was ever harmed in Nigeria for being gay. The IJ also found that Petitioner’s asylum application was frivolous, concluding that the misrepresentation of the hotel was a material element of his application.   Petitioner appealed arguing that the agency (1) erred by failing to consider potentially dispositive evidence concerning his CAT claim; (2) violated due process in its CAT determination; and (3) erred in concluding that he had filed a frivolous asylum application.   The Ninth Circuit, granted in part, and denied in part, Petitioner’s petition for review. The court concluded that the Board erred by failing to consider potentially dispositive evidence concerning his CAT claim, thus the agency’s denial of CAT relief could not stand. The court did not reach, and therefore denied, Petitioner’s Fifth Amendment violation claims. Further, the court held that the Board erred in concluding that Petitioner had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where Petitioner was discovered was not material to his claim. View "PETER UDO V. MERRICK GARLAND" on Justia Law

Defendant was convicted for illegal reentry after removal in a case in which a Marine Corps surveillance unit spotted him immediately after he unlawfully entered the United States, and notified Customs and Border Patrol agents who soon detained him. Defendant argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law.   The Ninth Circuit affirmed Defendant’s conviction for illegal reentry after removal. The court reasoned that the military may still assist civilian law enforcement agencies if Congress expressly authorized it, and here, the 2016 National Defense Authorization Act directed the U.S. Secretary of Defense to offer military assistance to Border Patrol in hopes of securing the southern land border. The court concluded that the district court therefore properly denied Defendant's suppression motion based on the alleged violation of the Posse Comitatus Act. Further, the court also denied Defendant’s Batson challenge to the prosecution’s striking two Asian jurors from the venire, concluding that Defendant failed to rebut the prosecution’s race-neutral reasons for doing so. View "USA V. CLEMENTE HERNANDEZ-GARCIA" on Justia Law

Petitioner filed a motion to reopen his immigration proceedings over sixteen years after the statutory deadline for doing so had passed. He argued that the deadline should be equitably tolled because he allegedly received ineffective assistance of counsel when his prior lawyers did not file earlier motions to reopen on his behalf, even though those motions would also have been untimely.The Ninth Circuit denied the petition for review of the Board of Immigration Appeals’ denial. The court held that Petitioner has not shown that his prior counsel acted deficiently in not filing untimely motions to reopen, nor has he demonstrated prejudice. The court further held that the Board did not err in declining to allow Petitioner’s untimely motion to reopen based on allegedly changed country conditions in Mexico. Further, the court found that even if Petitioner could show deficient performance, he still cannot show prejudice. Finally, although Petitioner submitted articles reporting violence against law enforcement in Mexico, those reports do not suffice to establish changed country conditions because they do not show that “circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim” now does. View "JUAN HERNANDEZ-ORTIZ V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (“BIA”) decision denying his untimely motion to reopen his removal proceedings. Although the BIA denied relief on the merits, the BIA lacked jurisdiction to consider Petitioner’s motion to reopen because he was subject to a reinstated prior removal order.   The Ninth Circuit held that it can deny Petitioner’s petition for review based on the BIA’s lack of jurisdiction. The court held that under the Chenery doctrine, the court’s review is typically limited to the grounds upon which the agency relied and that the court should generally remand to the agency. However, the court concluded that the considerations underlying the Chenery doctrine did not apply because the BIA was required to deny Petitioner’s motion for lack of jurisdiction. Thus, the court concluded that it need not remand for the agency to reach the same conclusion on the BIA’s jurisdiction. Finally, the court noted that denying the petition was consistent with the court’s precedents. View "JOSE GUTIERREZ-ZAVALA V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of the agency’s rejection of his Convention Against Torture (“CAT”) claim and rejection of his motion to reopen and remand his removal proceedings.The Ninth Circuit denied Petitioner’s review of a decision of the Board of Immigration Appeals (“BIA”). The court held that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen and substantial evidence supported the BIA’s denial of relief under the Convention Against Torture (“CAT”).The court reasoned that Petitioner’s current proceeding was initiated with a different charging document which made Pereira inapplicable. Even if the court were to assume the Notice to Appear (“NTA”) and Notice of Referral to Immigration Judge (“NOR”) was analogous, his argument is foreclosed by precedent holding that when hearing details are later provided there is no jurisdictional defect.Further, the court explained that while petitioners seeking CAT relief are not required to demonstrate that safe relocation would be impossible, they do carry the burden to establish that it is more likely than not that they will be tortured. Here, the court concluded that the evidence established that Petitioner’s relocation to his home state was eminently possible. Moreover, the court found that the record would not compel the finding that Petitioner established a more than 50% chance of future torture. Finally, the court explained that Petitioner failed to show that he faces a particularized, ongoing risk of future torture higher than that faced by all other citizens in his country. View "JOSE TZOMPANTZI-SALAZAR V. MERRICK GARLAND" on Justia Law

The Ninth Circuit denied in part and granted in part a petition for review of the BIA's decision determining that petitioner's criminal convictions rendered him removable and ineligible for cancellation of removal. The panel concluded that the BIA correctly determined that petitioner's conviction for domestic violence, in violation of California Penal Code 273.5(a), rendered him removable, but remanded for the BIA to consider whether his rape conviction for felony rape of an unconscious person, in violation of California Penal Code 261(a)(4), is an aggravated felony barring cancellation of removal. On remand, the BIA must consider whether the generic federal definition of rape includes intercourse involving consent obtained through fraud. View "Valdez Amador v. Garland" on Justia Law

Ortiz entered the U.S. as a lawful permanent resident but was later found removable for having committed two crimes involving moral turpitude (CIMTs) not arising out of a single scheme of conduct, 8 U.S.C. 1227(a)(2)(A). Ortiz contended that his conviction for voluntary manslaughter under California Penal Code section 192(a) was not a CIMT.The Ninth Circuit denied a petition for review. California defines voluntary manslaughter as the “unlawful killing of a human being without malice . . . upon a sudden quarrel or heat of passion.” The California Supreme Court has construed the statute as requiring some form of culpable mental state—an intent to kill or a conscious disregard for life. Applying the categorical approach, the court compared the federal definition of a CIMT, involving either fraud or base, vile, and depraved conduct that shocks the public conscience. The court considered the requisite state of mind as well as the resulting harm in tandem; as the level of conscious behavior decreases (from intentional to reckless conduct), more serious resulting harm is required to find a CIMT. A crime committed only recklessly requires more serious harm to qualify as a CIMT. The court agreed with the BIA that section 192(a) is a CIMT; the statute only requires recklessness, but the harm—the unlawful killing of a human—stands at the apex. View "Narez v. Garland" on Justia Law

Tomczyk, a citizen of Canada, was deported in 1990. He reentered in 1991 after he was waved in by an immigration official. More than 25 years later, DHS reinstated his removal order under 8 U.S.C. 1231(a)(5), which requires proof that the petitioner is an alien, who was subject to a prior removal order, and who “reentered the United States illegally.”A Ninth Circuit panel previously granted Tomczyk’s petition for review. The en banc court subsequently dismissed that petition. DHS did not err in reinstating Tomczyk’s removal order. The statute does not define “reentered the United States illegally” but under the ordinary meaning of “illegal,” a noncitizen reenters “illegally” when the noncitizen is forbidden by law from gaining admission into the country. Tomczyk had been deported under a drug-related ground of inadmissibility and had not obtained a waiver of inadmissibility. Nor did Tomczyk's manner of reentry result in waiver; his reentry while inadmissible was illegal as a matter of law. Rejecting an estoppel argument, the court noted there was no indication of government misconduct. The court rejected Tomczyk's argument that section 1231(a)(5) could not be applied retroactively against him. Tomczyk had no pending application when the law came into effect; merely being eligible to apply for relief in the future was insufficient. Tomczyk failed to allege a gross miscarriage of justice that might permit review of his underlying order and failed to previously exhaust such arguments. View "Tomczyk v. Garland" on Justia Law

Tzompantzi-Salazar unsuccessfully sought to reopen his removal proceedings arguing that his Notice to Appear (NTA) did not include the time and date of his hearing. The Ninth Circuit denied a petition for review.Tzompantzi-Salazar’s current proceeding was initiated with a different charging document, a Notice of Referral to Immigration Judge, so the Supreme Court’s “Pereira” holding is inapplicable. When hearing details are later provided, as they were here, there is no jurisdictional defect.Substantial evidence supported the Board’s denial of Convention Against Torture (CAT) relief. Tzompantzi-Salazar could avoid any risk of future torture by relocating to his home state in central Mexico, Tlaxcala—thousands of miles from the border where his two kidnappings allegedly occurred. For CAT applications, the agency must consider the possibility of relocation without regard for the reasonableness of relocation that is considered in other types of applications. The remaining CAT factors did not change the result. Although past torture can be relevant in assessing an applicant’s risk of future torture, CAT relief is “forward-looking.” Tzompantzi-Salazar’s previous kidnappings, even assuming they occurred as described, do not establish that he continues to face a risk of torture more than 10 years later. Nor did the record compel the conclusion that the kidnappings rose to the level of torture. Country conditions evidence and context also undercut Tzompantzi-Salazar’s belief that he faces the extremely high threshold of future torture. View "Tzompantzi-Salazar v. Garland" on Justia Law

Ruiz-Colmenares, a Mexican citizen, has illegally entered the U.S. multiple times, wherein he was convicted for multiple felonies. He has been deported three times. During his fourth deportation, Ruiz-Colmenares expressed for the first time a fear of returning to Mexico and that he had been robbed and assaulted by police officers in Mexico. After finding Ruiz-Colmenares not credible, an IJ rejected his claim for deferral of removal under the Convention Against Torture (CAT). The BIA affirmed.The Ninth Circuit denied a petition for review, rejecting an argument that the agency lacked jurisdiction because his charging document omitted the time and date of his hearing, That argument was not presented before the IJ or BIA. The adverse credibility determination was supported by substantial evidence, based on inconsistencies and omissions in Ruiz-Colmenares’s written, verbal, and documentary evidence regarding what happened in Mexico. Even minor inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis for an adverse credibility determination; “this type of evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms.” The agency properly considered Ruiz-Colmenares’ failure to mention fear of returning to Mexico, or the robberies, during previous deportation proceedings. Even if the record compelled reversal of the adverse credibility determination, substantial evidence supports the finding that Ruiz-Colmenares did not suffer past torture and does not face a particularized risk of future torture if returned to Mexico. View "Ruiz-Colmenares v. Garland" on Justia Law