Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review of the BIA's decision denying cancellation of removal to petitioner.The panel incorporated by reference the factual and procedural background of Marinelarena I that conspiracy under California Penal Code 182(a)(1) is overbroad but divisible as to the target crime, and that sale and transport of a controlled substance under California Health and Safety Code 11352, is overbroad and divisible as to controlled substance. The panel concluded that Pereida v. Wilkinson, 141 S. Ct. 754 (2021), is consistent with Marinelarena I, and that Petitioner failed to establish that her conviction did not involve a federally controlled substance. In regard to divisibility, the panel noted that no developments in the California Supreme Court since Marinelarena I undermined the panel's earlier divisibility analysis, and that the jury instructions relating to the conspiracy offense, as well as petitioner's underlying statute of conviction, support divisibility. In regard to the burden of proof, the panel explained that Marinelarena I is consistent with the Supreme Court's decision in Pereida and that petitioner failed to establish that her conviction did not involve a federally controlled substance. The panel declined petitioner's invitation to remand to present additional evidence. Finally, the panel reaffirmed its conclusion that a conviction expunged under CPC 1203.4 remains a "conviction" for federal immigration purposes. View "Marinelarena v. Garland" on Justia Law

The Ninth Circuit withdrew its prior opinion and filed a new opinion concurrently with this order. The panel denied defendant's petition for rehearing en banc as moot.The panel reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing.The panel concluded that defendant's argument is foreclosed by United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021). Therefore, the panel held that defendant has failed to show that he can satisfy the section 1326(d) requirements based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section 1326(d). Accordingly, the panel remanded for further proceedings. View "United States v. Gonzalez-Valencia" on Justia Law

The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border. View "Whitewater Draw Natural Resource Conservation District v. Mayorkas" on Justia Law

An adult citizen lacks a constitutionally protected liberty interest, protected by the Fifth Amendment's Due Process Clause, in the Government's decision whether to admit the citizen's unadmitted nonresident alien parent into the United States.The Ninth Circuit affirmed the district court's dismissal, based on failure to state a claim, of a civil action brought by plaintiff, a Russian citizen, and his adult son, a U.S. citizen, challenging the government's decision to deny plaintiff an immigration visa.The panel held that, because plaintiff is an unadmitted and nonresident alien, he has no cause of action to challenge the visa denial, and his claims were properly dismissed. Where the son claims that his Fifth Amendment right to due process was violated by the denial of his father's visa because a consular officer allegedly denied that visa in bad faith, the panel agreed that the son's complaint pleads sufficient facts with particularity to raise a plausible inference that plaintiff's visa was denied in bad faith. Nevertheless, the panel concluded that the district court properly dismissed the son's claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father. View "Khachatryan v. Blinken" on Justia Law

The Ninth Circuit denied petitions for review of the BIA's decision affirming the IJ's denial of petitioner and his family's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel clarified the law concerning implausibility findings and explained that inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence. An IJ must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture. Furthermore, the IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing. The cited evidence in the record, including a witness's own testimony, need not conclusively establish that the witness's testimony is false, and the IJ's implausibility finding will ultimately hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense.In this case, the panel concluded that substantial evidence supports the agency's implausibility findings with respect to petitioner's testimony and its finding that petitioner's wife was evasive and nonresponsive. The panel did not consider the Board's alternative holding that assumed petitioner was credible. The panel concluded that the record does not compel the conclusion that the adverse credibility determination was erroneous or that the agency erred in denying petitioner and his family withholding of removal and CAT protection. View "Lalayan v. Garland" on Justia Law

DHS took B.R. into custody while he was still a minor, issued him a Notice to Appear (NTA), and initiated removal proceedings against him. After B.R. was released and while those proceedings were ongoing, he sold methamphetamine to an undercover federal officer. B.R. was incarcerated and was ordered removed. On appeal, B.R. petitions for review of the BIA's dismissal of his appeal from the IJ's final order of removal and denial of his application for deferral of removal under the Convention Against Torture.The Ninth Circuit rejected B.R.'s claims that DHS effected improper service of the NTA, depriving the immigration court of jurisdiction, and that DHS should not have been permitted to cure that service violation. Rather, the panel concluded that the IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS's defective service prejudiced the alien's interests. In this case, DHS cured its defective service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Furthermore, the panel's holding in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien’s custodian at the very moment the alien is released from its custody.The exclusionary rule is generally not available in immigration proceedings, but the panel held that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government’s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. Therefore, the panel granted B.R.'s petition on this issue and remanded for further development of the record. Finally, in the interest of judicial economy, in the event DHS is able to prove B.R.'s alienage on remand, the panel rejected his assignments of error as to his CAT claim. Accordingly, the panel granted in part, denied in part, and remanded for further proceedings. View "B. R. v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

In 1980, Posos crossed the U.S. border without inspection. The 1986 Immigration Reform and Control Act, 8 U.S.C. 1255a, provided a path to permanent resident status for noncitizens who had resided unlawfully and been physically present in the U.S. since January 1982. In 1988, Posos obtained a temporary resident card that expired in November 1990. In September 1990, Border Patrol agents stopped Posos at a San Clemente border patrol checkpoint, examined his immigration papers, and let him proceed. In 1993, Posos was notified that his application for temporary resident status was denied. Posos was removed in 2010. Posos tried to reenter but was detained. His notice of removal proceedings failed to state the date and time of Posos’s hearings. Subsequent notices supplied that missing information. Posos sought adjustment of status under 8 U.S.C. 1255(a), cancellation of removal under 1229b, and voluntary departure under 1229c, arguing that immigration officials had “admitted” him to the U.S. in 1990The Ninth Circuit remanded. Posos is removable and ineligible to adjust his status. Unless an immigration official has inspected a noncitizen at a port of entry and then granted that noncitizen permission to enter the U.S., that noncitizen has not been “admitted.” The 1990 incident did not occur at a port of entry. Because of the missing date-and-time information, his removal did not stop the clock for purposes of computing the time during which he was physically present under section. 1229c(b)(1)(A). Posos accrued five years of physical presence and was eligible for voluntary departure if he satisfies the other statutory conditions. View "Posos-Sanchez v. Garland" on Justia Law

This action involves the 1997 settlement agreement (the Flores Agreement) between the United States and a class of minors subject to detention by U.S. immigration authorities. The district court issued two orders enforcing the consent decree incorporating the Flores Agreement. The orders enjoined DHS from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States due to the COVID-19 pandemic (Title 42 Order).As a preliminary matter, the panel concluded that this appeal was not moot. The panel also concluded that the district court's second order (the September 21, 2020 Order) was a final decision for purposes of 28 U.S.C. 1291, and thus the panel has jurisdiction to review it.On the merits, the panel rejected the government's contention that the district court erred in concluding that the Agreement applies to minors held in custody pending their expulsion under the Title 42 Order. The panel concluded that it is clear that DHS, rather than the CDC, both maintains physical control and exercises decision-making authority over the minors held in hotels under Title 42. Therefore, the district court did not modify the Agreement in concluding that minors held under Title 42 are in DHS's custody for purposes of the Agreement or thus by applying the Agreement to those minors. The panel also concluded that nothing in the record establishes that the COVID-19 pandemic impedes or prevents the government from placing minors in licensed programs within three days. The panel need not decide whether the district court correctly applied the Agreement's "safe and sanitary" requirement because the September 21 Order eliminates the practical import of the district court's finding on that issue. Finally, the panel rejected the government's contention that the risk of harm to the United States and the public necessitates reversing the district court's orders. The panel explained that it has already held that the government has not demonstrated that complying with the district court's orders will cause irreparable harm. Accordingly, the panel affirmed the September 21, 2020 Order. View "Flores v. Garland" on Justia Law

The Ninth Circuit concluded that the IJ failed to evaluate the factors weighing in favor of granting petitioner voluntary departure. In this case, the IJ did not consider any positive factors weighing in support of voluntary departure, such as petitioner's arrival in the United States at a young age and his long-term residency without departure, even though the IJ mentioned these factors elsewhere in its opinion. Nor did the IJ mention petitioner's claims regarding mitigating circumstances with respect to his criminal convictions. Accordingly, the panel granted the petition for review and remanded for further proceedings.The panel concluded that, given the fear of starting a new life in a new country was petitioner's only stated fear, petitioner did not raise a reasonable possibility that he may be eligible for asylum or withholding of removal that would trigger the IJ's duty to inform petitioner of his apparent eligibility to apply for such forms of relief; the IJ did not err under 8 C.F.R. 1240.11(a)(2) by failing to advise him of his apparent eligibility for adjustment of status through U nonimmigrant status because U nonimmigrant status is not a Chapter V benefit; the IJ's failure to address the U nonimmigrant form of relief did not violate section 1240.11(a)(2); and petitioner failed to exhaust his claim regarding the IJ's duty to advise him of Deferred Action for Childhood Arrivals (DACA) relief and the panel lacked jurisdiction to consider the procedural challenge. In regard to petitioner's statutory and constitutional claims, the panel held that the IJ did not violate his duty to sufficiently explore for all facts relevant to asylum, withholding of removal, and U nonimmigrant status, and to inform petitioner of what evidence he needed to establish these claims. The panel rejected petitioner's remaining arguments that the agency erred in failing to develop other bases for relief. View "Angeles Zamorano v. Garland" on Justia Law