Justia Immigration Law Opinion Summaries

On rehearing en banc, the court held that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and overruled the court's prior precedent establishing and applying it. The single factor rule required the court to sustain an adverse credibility determination from the BIA, so long as one of the agency's identified grounds was supported by substantial evidence. The panel remanded to the three-judge panel to re-examine the petition for review in light of the court's clarification of the standard for reviewing the BIA’s adverse credibility determinations. View "Alam v. Garland" on Justia Law

The Ninth Circuit denied the petition for review challenging the BIA's order denying petitioner's application for withholding of removal and relief under the Convention Against Torture (CAT). The panel also affirmed the BIA's refusal to allow petitioner to seek asylum in light of the reinstatement of his prior order of removal. The panel concluded that petitioner does not have the right to seek asylum under the INA, and he did not have a constitutional right to have DHS consider whether, as a discretionary matter, to overlook his prior removal order and thereby allow him to seek asylum.The panel concluded that there is no basis for upsetting the BIA's denial of petitioner's application for withholding of removal. The panel explained that because the BIA's finding of changed circumstances was sound and sufficient to rebut the presumption of future persecution on account of petitioner's perceived sexual orientation, there is no need to address the BIA's finding that he could safely relocate within El Salvador; where the IJ concluded that it was not more likely than not that petitioner would be persecuted if he returned to El Salvador on the basis of his anti-gang beliefs, the record does not compel a different conclusion; and the panel rejected petitioner's claims that he would be persecuted on account of his membership in several other social groups. In regard to CAT relief, the panel concluded that there was no error in the IJ's finding that petitioner was not likely to face torture in El Salvador for the same reasons he was not likely to face persecution for withholding purposes. View "Iraheta-Martinez v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the district court's grant of summary judgment in favor of the Government on petitioner's United States citizenship claim. The panel concluded that petitioner failed to present sufficient evidence to permit a rational trier of fact to find, by a preponderance of the evidence, that his parents obtained a legal separation, as required for him to derive U.S. citizenship under former section 321(a) of the Immigration and Nationality Act (INA). Even assuming arguendo that they did divorce and that petitioner's parents thereafter had a legitimate de facto union that would be recognized under Peruvian law, petitioner nonetheless failed to present sufficient evidence to establish that his parents were legally separated under Peruvian law. Because petitioner's petition for review presents no other grounds for avoiding his removal to Peru, the panel denied the petition. View "Giha v. Garland" on Justia Law

Rodriguez-Ramirez, a citizen of El Salvador testified that he fled to the U.S. in 2016, days after gang members threatened him outside his daughter’s school; he reported this threat to the local prosecutor, who prepared a report based on the information Rodriguez-Ramirez provided. Rodriguez-Ramirez did not provide any other corroborating evidence. The IJ relied on two inconsistencies: despite Rodriguez-Ramirez’s testimony that this threat occurred in February 2016, the report he provided from the prosecutor twice stated, on different pages, that the threats occurred in January 2016 and Rodriguez-Ramirez testified that the gang members showed him a weapon but he did not provide this information to the prosecutor or in his written asylum application. The IJ found that Rodriguez-Ramirez did not have a convincing explanation for the discrepancy. An adverse credibility determination was also supported by the IJ’s demeanor findings. The BIA dismissed an appeal from the denial of his application for asylum and withholding of removal.The Ninth Circuit denied a petition for review. The BIA and IJ were permitted to afford substantial weight to inconsistencies that “bear[] directly on [Rodriguez-Ramirez]’s claim of persecution.” The IJ was not required to give Rodriguez-Ramirez notice and an opportunity to provide additional corroborating evidence because substantial evidence supports the adverse credibility determination. View "Rodriguez-Ramirez v. Garland" on Justia Law

Reyes, a native of Colombia, entered the U.S. on a visitor’s visa in 1989. Reyes had numerous criminal arrests and convictions, including indecent exposure convictions in 2007 and 2008. In 2009, Reyes married a U.S. citizen and adjusted his status through an application that his wife filed on his behalf. In 2011, Reyes was again charged with indecent exposure and pleaded no contest to a felony. He was sentenced to eight months in jail and three years probation. In 2014, he pleaded no contest to an additional felony for violation of the same California indecent exposure statute and was sentenced to 16 months in prison and three years of parole. In 2015, the government initiated removal proceedings. Relying on the 2011 and 2014 convictions, the government charged Reyes with being subject to removal under 8 U.S.C. 1227(a)(2)(A)(ii) as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. He argued that his convictions were not categorically crimes involving moral turpitude and submitted applications for relief from removal.The BIA rejected his argument. The Ninth Circuit granted a petition for review. The BIA erred in retroactively applying its 2013 precedent to change the legal consequences of Reyes’s 2011 conviction. View "Reyes-Afanador v. Garland" on Justia Law

Addressing two petitions for review, the Ninth Circuit held that noncitizens at reasonable fear hearings before an immigration judge (IJ), including noncitizens whose removal orders have been reinstated, are statutorily entitled to counsel. The court noted that 8 U.S.C. 1362 provides that noncitizens shall have the privilege of being represented (at no expense to the government), by counsel of their choosing in "any removal proceedings" before an IJ and in any appeal proceedings before the Attorney General.Absent exceptional circumstances, denying a continuance despite the noncitizen’s inability to retain counsel within 10 days (the mandatory time for an IJ review hearing under 8 C.F.R. 208.31(g)) is not a denial of this entitlement if the asylum officer notified the noncitizen of the negative fear determination and the noncitizen requested IJ review and informed the noncitizen of the opportunity to have counsel, such as by providing a list of legal service providers. The statutory entitlement to counsel does not mean that a noncitizen must have counsel before an IJ can proceed, but only that a noncitizen must at least be informed and have an opportunity to seek counsel within section 208.31(g)(1)’s constraints. A noncitizen may waive the right to counsel, but such waiver must be knowing and voluntary. The court rejected additional due process arguments concerning the noncitizen’s hearing difficulties and the IJ’s failure to call a witness by telephone. View "Orozco-Lopez v. Garland" on Justia Law

Munyuh, a Protestant and anglophone, taught physical education in Cameroon before fleeing to the U.S. She was tortured by police, who suspected her of membership in the SCNC, an anglophone separatist group, and escaped with the help of her husband. Her 14-year-old son and husband still live in Cameroon. She was denied asylum and related relief on adverse credibility grounds.The Ninth Circuit vacated the order of removal and remanded. The immigration judge erred by failing to give specific, cogent reasons for rejecting Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration concerning the distance she traveled in a police truck before escaping on foot after officers raped her and being rescued by her husband. The IJ further erred by discounting Munyuh’s supporting documentation without giving her adequate notice and the opportunity to provide corroborative evidence. The “IJ seemed determined to pick every nit she could find” and discounted probative evidence on flimsy grounds, displaying “a dubious understanding of how rape survivors ought to act.” View "Munyuh v. Garland" on Justia Law

Plancarte, a licensed nurse from Mexico, obtained the position after the Mayor of Arteaga recommended her to the director of the hospital “because I had treated cartel members before in silence and the Mayor wanted” her to continue to work on cartel members. Plancarte recounted incidents during which armed men forcibly took her to “treat” people. She saw violence and rape; her family was threatened with violence. During one incident, a man “snatched” Plancarte’s infant son from her arms; another man pointed his gun at her mother and her son. Another time, they beat her until she bled, kidnapped her son, and forced her into a vehicle; after complying with their orders, she got her son back and fled to the U.S.The BIA affirmed the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit remanded for a determination of whether the likelihood of torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief. The Board’s rejection of Plancarte’s proposed particular social group of “female nurses” on the ground that “nursing” is not an immutable characteristic was unreasonable. Even if Plancarte ceased employment as a nurse, she would still be a nurse; the cartel targeted Plancarte precisely because of her special skills. The Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. View "Plancarte-Sauceda v. Garland" on Justia Law

The Ninth Circuit previously granted a petition for review of the BIA's denial of asylum and withholding where Dai, 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 court held that neither the IJ nor the BIA made a finding that Dai's testimony was not credible.The Supreme Court held that the “deemed-true-or-credible rule” was irreconcilable with the Immigration and Nationality Act, which provides that a reviewing court must accept administrative findings as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. If the BIA’s reasons for rejecting an alien’s credibility are reasonably discernible, it must be understood as having rebutted the presumption of credibility.On remand, the Ninth Circuit reversed its prior order, finding that the BIA implicitly considered Dai’s statutory rebuttable presumption of credibility on appeal to have been conclusively rebutted. By statute, an alien must satisfy the trier of fact that his factual claim is credible and also persuasive. Even if the BIA treats an individual’s testimony as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof. The agency’s findings of fact and conclusions are demonstrably reasonable; no reasonable adjudicator would be compelled to conclude to the contrary View "Dai v. Garland" on Justia Law

The Ninth Circuit granted in part and denied in part a petition challenging the BIA's finding that petitioner's conviction for theft of a vehicle under California Vehicle Code 10851(a) is an aggravated felony, which renders him ineligible for certain forms of relief. The panel has held, and the parties do not dispute, that section 10851(a) is overbroad because it criminalizes a broader swath of conduct than the generic theft offense.Applying the framework described in Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016), the panel held that section 10851(a) is indivisible in its treatment of accessories after the fact. Because section 10851(a) does not categorically match the generic theft offense, a conviction under section 10851(a) is not an aggravated felony. The panel overruled Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), on the ground that it was irreconcilable with Mathis. Therefore, in petitioner's case, he has not been convicted of an aggravated felony and the panel remanded for consideration of his requests for asylum and cancellation of removal. In a concurrently filed memorandum, the panel denied petitioner's requests for withholding of removal and relief under the Convention Against Torture. View "Lopez-Marroquin v. Garland" on Justia Law