Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order of removal and denial of his application for cancellation of removal.The panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. Applying that approach to petitioner's case, the panel concluded that the circumstances specific here clearly establish that petitioner knowingly possessed more than thirty grams of marijuana. In this case, the police report is detailed, is internally consistent, and records observations of fact rather than the officers' conclusions. The report states that the "green leafy material" found in the three bags "tested positive for marijuana," and provides the precise weight of each. Given that petitioner did not specifically contest the measurements of quantity in the report, holding such a report to be insufficient would be essentially the same as holding that no police report is sufficient, standing alone, to demonstrate that a petitioner possessed more than thirty grams of marijuana. The panel declined to adopt such a categorical rule. Therefore, viewing the circumstances together, the evidence clearly establishes that petitioner possessed more than thirty grams of marijuana. View "Bogle v. Garland" on Justia Law

In 1993, Kaur’s parents arranged her marriage to Singh, an abusive alcoholic. They moved to the Philippines, where Singh’s abuse worsened. Their first three children were girls, which angered Singh, who tried to force her to abort her third pregnancy. In 2001, Kaur and one of her daughters entered the U.S. on visitor visas. , Kaur gave birth to a son. Singh and another daughter arrived in the U.S. later in 2001. Singh continued to abuse Kaur and the children. Neighbors called the police several times, but Singh forced Kaur to lie. Singh was deported in 2007, after a DUI arrest. Singh died in 2013 from alcohol-related illnesses. Kaur's in-laws told her that if she returned to India, they would have her killed.In 2001, Kaur and Singh had applied for asylum. Kaur’s asylum application falsely stated that militants in the Philippines had raped her. The application was denied. Kaur filed four motions to reopen. The final unsuccessful motion asserted material changed circumstances arising in Kaur’s country of nationality under 8 C.F.R. 1003.2(c)(3)(ii).The Ninth Circuit remanded. Kaur’s personal circumstances in India changed in a way entirely outside her control and, relatedly, violence against women has materially increased in India. These situations together constitute changed country circumstances. The BIA also erred in its analysis of whether Kaur established a prima facie case for asylum, withholding of removal, and protection under the Convention Against Torture. View "Kaur v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of deferral of removal under the Convention Against Torture (CAT). In this case, Michoacán state police arrested and brutally tortured petitioner until she confessed to the kidnapping and murder of a five-year old boy. After her charges were dismissed, she fled to the United States.The panel held that the BIA erred by reviewing the IJ's decision de novo, rather than for clear error, and concluded that the record compelled the determination that petitioner met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico. The panel explained that, reviewed under the proper standard, the IJ's factual findings were not erroneous where the IJ found that the Michoacán state police tortured petitioner, and the revived arrest warrant guaranteed she would be placed back in custody of the Michoacán state police, who previously tortured her, precluding relocation. Furthermore, the state police officers specifically threatened to torture petitioner again if she reported their misconduct—which she did. Finally, the IJ considered the country condition reports showing an increased threat of torture for indigenous women. The panel remanded for the BIA to grant deferral of removal pursuant to the CAT. View "Soto-Soto v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of sua sponte reopening petitioner's immigration proceedings based on the departure bar provision in 8 C.F.R. 1003.23(b)(1). Petitioner argued that an IJ should not be prevented from reopening a noncitizen's case on the IJ's own motion based solely on the noncitizen's departure during or after prior proceedings.The panel joined the Tenth Circuit and held that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ's discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, the BIA erred in determining that the departure bar prevented the IJ from reopening petitioner's immigration proceedings sua sponte. The panel remanded to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible. View "Balerio Rubalcaba v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's final order of removal. At issue is whether the government must carry its burden of proving that a returning LPR meets one of the six exceptions under 8 U.S.C. 1101(a)(13)(C) before it paroles that LPR into the United States under section 1182(d)(5).The panel deferred to a precedential opinion issued by the BIA, Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012), and held that the government may exercise its discretion to parole a returning LPR into the United States for prosecution without carrying its burden of proving that the LPR falls within one of the six exceptions. The government must, however, carry its burden of proof in subsequent removal proceedings if any ensue. In this case, when petitioner arrived at LAX, the CBP exercised its discretion to parole him into the United States for prosecution; the panel explained that it does not second-guess the CBP's decision to do so; petitioner then pleaded guilty to a crime involving moral turpitude; and, at subsequent removal proceedings, the government properly relied on petitioner's conviction to carry its burden of proving by clear and convincing evidence that he could be regarded as an alien seeking an admission into the United States under section 1101(a)(13)(C)(v). Therefore, petitioner was properly subjected to a charge of inadmissibility. View "Vazquez Romero v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the denial of deferral of removal under the Convention Against Torture (CAT). Petitioner's CAT claim was based on the physical abuse she experienced by her former domestic partner in Jamaica.The panel held that the record does not compel a finding that it is more likely than not that petitioner will suffer future torture if returned to Jamaica. In this case, a Jamaican court issued a protective order and the former partner has left her household. The panel also held that the IJ appropriately considered all of petitioner's evidence, including her country reports and whether she could safely relocate if returned to Jamaica. The panel explained that the circumstances of Jamaican women in general do not vitiate the agency's specific findings as to petitioner's situation with her former partner. While country conditions include generalized domestic violence against women, the panel stated that this does not compel a conclusion that petitioner will more likely than not be subjected to violence from her former partner or his associates. View "Dawson v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the Board's final order denying petitioner's request to reconsider the Board's November 14, 2016, denial of his derivative citizenship claim. The panel concluded that petitioner does not meet the third condition of 8 U.S.C. 1432(a) and does not automatically derive U.S. citizenship from his father. The panel explained that Congress did not intend for this type of nunc pro tunc order, one untethered from the facts as they were during petitioner's childhood, to give rise to automatic derivative citizenship under section 1432(a). The panel rejected the expansive view of nunc pro tunc power; agreed with the First and the Fifth Circuits that a strictly federal ground provides a basis for rejecting petitioner's argument; and also agreed with the First and the Fifth Circuits that "recognizing the nunc pro tunc order in the present case would in substance allow the state court to create loopholes in the immigration laws on grounds of perceived equity or fairness."Therefore, the panel held that where it has not been proven that a custody order was entered in error, was contrary to law, or otherwise did not reflect the true legal relationship between a petitioner's parents, a nunc pro tunc order cannot retroactively establish a naturalized parent's sole legal custody for the purposes of section 1432(a). The panel concluded that the 2013 state court order that purportedly nunc pro tunc modified petitioner's parents' 1990 custody arrangement did not retroactively transfer sole legal custody to petitioner's father for the purposes of section 1432(a). View "Padilla Carino v. Garland" on Justia Law

The en banc court held that the second clause of the derivative citizenship statute set out at former 8 U.S.C. 1432(a)(5) does not require that the child have been granted lawful permanent residency prior to the age of eighteen in order to derive citizenship from a parent who naturalized, but the child must have demonstrated an objective official manifestation of permanent residence.The en banc court concluded that the Cheneau panel properly concluded that it was bound under circuit precedent by Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008). Furthermore, the panel properly highlighted the problems in applying the Romero-Ruiz analysis of section 1432(a)(5) in the present context. In reconsidering Romero-Ruiz, the en banc court agreed with Judge Bennett's concurring opinion that Romero-Ruiz must be overruled to the extent that it interpreted "reside permanently" to require lawful permanent resident status. The en banc court remanded to the three-judge panel so that the panel may, in its discretion, apply the revised rule to this case. View "Cheneau v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner and her minor child's motion to reopen. The panel held that exceptional circumstances warranted reopening of their in absentia removal orders.The panel first considered the circumstances that caused petitioner's failure to appear. In this case, petitioner suffers from chronic memory problems that stem from a childhood head injury, so she did not remember what the IJ had told her orally about her next hearing date. Therefore, she relied on the information in the notice of hearing. However, because petitioner cannot read, she asked her family members to read the notice for her, but the new notice, unlike the first one, provided a numerical date for the hearing, "07/12/2016." Petitioner's family interpreted this notation as December 7, 2016, based on how numerical dates in Latin America (and most of the rest of the world) are typically written, with the day appearing before the month. The panel explained that the BIA abused its discretion by concluding that petitioner should have confirmed her hearing date through the immigration court's automated system. Furthermore, the BIA erred in not addressing whether petitioner had any motive for failing to appear and whether the in absentia removal orders would cause unconscionable results. Secondly, the panel concluded that imposing the removal orders would present an unconscionable result. Finally, the panel noted that the IJ entered an in absentia order against petitioner's minor child and thus petitioner's failure to appear prejudiced the child's opportunity for relief as well. Accordingly, the panel remanded for further proceedings. View "Hernandez-Galand v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner was removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. 1227(a)(2)(A)(i).The panel applied the two-step Chevron inquiry, concluding that: (1) the phrase "the date of admission" in section 1227(a)(2)(A)(i)(I) is ambiguous; and (2) the interpretation in Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), of that ambiguous phrase is "a permissible construction of the statute." The panel concluded that Alyazji, and its application in the unpublished BIA decision in this case, meet the requirements for Chevron deference set forth in United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). The panel acknowledged that the Alyazji interpretation of section 1227(a)(2)(A)(i)(I) results in serious consequences when applied to petitioner, who is a Micronesian citizen, because he had less incentive to apply to become a legal permanent resident or naturalize as a United States citizen. View "Route v. Garland" on Justia Law