Articles Posted in US Court of Appeals for the Ninth Circuit

by
Petitioner, a citizen of India and member of the Mann Party, petitioned for review of the BIA's decision denying his claims for asylum, humanitarian asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel granted the petition for review of the asylum and withholding of removal claims because the BIA did not conduct a sufficiently individualized analysis of petitioner's ability to relocate within India outside of the state of Punjab. The panel held that the BIA erred in failing to conduct a reasoned analysis with respect to petitioner's situation to determine whether, in light of the specific persons or entities that caused his past persecution, and the nature and extent of that persecution, there are one or more general or specific areas within his country of origin where he has no well-founded fear of persecution, and where it is reasonable for him to relocate pursuant to the factors set forth in 8 C.F.R. 1208.13(b)(3). However, the panel denied the petition for review of petitioner's claim for humanitarian and CAT protection, holding that substantial evidence supported the BIA's decision. View "Singh v. Whitaker" on Justia Law

by
Petitioner, a citizen of Nepal, sought review of the BIA's denial of his application for asylum and withholding of removal under the material support terrorist bar. Petitioner fled Nepal because a terrorist organization was torturing and threatening him repeatedly. Shortly before leaving Nepal, he gave the equivalent of $50 US dollars to a member of the terrorist organization, because the terrorist demanded the money and petitioner was fearful of what might happen to him if he did not comply. The Ninth Circuit held that it lacked jurisdiction to consider petitioner's duress argument and dismissed the petition in part. The panel denied the petition in part and held that the INA's material support bar contained no implied exception for de minimis aid in the form of funds. Therefore, substantial evidence supported the IJ's finding that petitioner gave material support to a terrorist organization and he was therefore ineligible for asylum and withholding of removal. View "Rayamajhi v. Whitaker" on Justia Law

by
The Ninth Circuit affirmed defendant's conviction for possessing a firearm while being an alien unlawfully in the United States. The panel assumed without deciding that unlawful aliens in the United States held some degree of rights under the Second Amendment and held that 18 U.S.C. 922(g)(5) is constitutional under intermediate scrutiny. The panel held that the government's interests in controlling crime and ensuring public safety are promoted by keeping firearms out of the hands of unlawful aliens—who are subject to removal, are difficult to monitor due to an inherent incentive to falsify information and evade law enforcement, and have already shown they are unable or unwilling to conform their conduct to the laws of this country. View "United States v. Manuel Torres" on Justia Law

by
The Ninth Circuit filed 1) an order granting a petition for panel rehearing, amending the opinion filed on September 14, 2017, which was previously withdrawn, and denying a petition for rehearing en banc; and 2) an amended opinion denying a petition for review of the BIA's decision. In the amended opinion, the panel held that petitioner's conviction for class one 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) that rendered him removable. 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 another person. Furthermore, the domestic relationships enumerated under Arizona's domestic violence provision, Arizona Revised Statutes 3-3601(A), were coextensive with the domestic relationships described in section 1227(a)(2)(E)(i). 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. Whitaker" on Justia Law

by
Retroactivity analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner removable because he committed two crimes involving moral turpitude (CIMT) when he was convicted of felony endangerment under Arizona Revised Statutes 13-1201 and facilitation to commit unlawful possession of marijuana for sale. Applying Montgomery Ward to this case, the panel held that there was no change in law raising retroactivity concerns. Therefore, the BIA did not err by applying Leal I, In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), to conclude that Arizona endangerment is a CIMT. Finally, the panel rejected petitioner's claim regarding Leal II, claims under In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008), preclusion claims, and an 8 U.S.C. 1227(a)(2)(A)(ii) claim. View "Olivas-Motta v. Whitaker" on Justia Law

by
The Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. 1003.1(c) is committed to agency discretion. Petitioner, a Pakistani national, sought review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his claim for ineffective assistance of counsel. The panel dismissed the appeal of the failure to certify petitioner's claim and held that it did not have jurisdiction to review the IJ and BIA's decision not to certify. The panel denied petitioner's due process claim challenging the same lack of certification, holding that abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims. View "Idrees v. Whitaker" on Justia Law

by
8 U.S.C. 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep. Subsection (iv) permits a felony prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law. The Ninth Circuit reversed defendant's conviction with respect to the "encourage or induce" counts. The panel affirmed with respect to the mail fraud counts in a memorandum disposition. View "United States v. Sineneng-Smith" on Justia Law

by
In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law

by
The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing. The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). View "Martinez-de Ryan v. Whitaker" on Justia Law

by
Petitioner, a native and citizen of Mexico, sought review of a final order of removal, challenging the BIA's determination that he was convicted of a "particularly serious crime" within the meaning of 8 U.S.C. 1231(b)(3)(B)(ii), which rendered him ineligible for statutory withholding of removal and withholding of removal under the Convention Against Torture (CAT). The Ninth Circuit held that the statutory phrase "particularly serious crime" was not unconstitutionally vague on its face. The panel reasoned that the "particularly serious crime" inquiry requires an imprecise line-drawing exercise, but it was no less certain than the "perfectly constitutional statutes" that the Supreme Court discussed. The panel held that the fatal combination in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which applied an uncertain standard to an idealized crime on the context of the categorical approach, was not present in this circumstance, because the particularly serious crime inquiry requires consideration of what a petitioner actually did. View "Melgoza Guerrero v. Whitaker" on Justia Law