Justia Immigration Law Opinion Summaries

The Ninth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's denial of his applications for asylum and withholding of removal from Somalia. The panel held that the restricted-residence exception applies when the country's authorities are unable or unwilling to protect the applicant from persecution by nongovernmental actors. The panel concluded that the Board erred by determining that petitioner did not qualify for a firm-resettlement exception because the persecution he suffered was perpetrated by nongovernment actors. On remand, the Board should consider whether petitioner was firmly resettled in South Africa.The panel also held that petitioner suffered past persecution in Somalia on account of a protected ground. In this case, the record evidence would compel any reasonable factfinder to conclude that petitioner suffered persecution on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than petitioner's. The panel explained that Al-Shabaab's accusation that petitioner and his brother were featuring Islamically forbidden, "Satanic" films provided direct evidence of their political and religious motive. Even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel also remanded to give the government an opportunity to rebut the presumption of future persecution triggered by petitioner's showing of past persecution on account of a protected ground. View "Abdi Asis Ali Aden v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of immigration relief to petitioner. The panel held that a conviction for importing, manufacturing, or dealing in firearms without a license, 18 U.S.C. 922(a)(1)(A), is categorically an "illicit trafficking in firearms" aggravated felony under 8 U.S.C. 1101(a)(43)(C). Therefore, petitioner is ineligible for asylum based on his conviction under section 922(a)(1)(A). In this case, the panel deferred to the BIA's interpretation of "illicit trafficking" in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), that illicit trafficking in a controlled substance – another aggravated felony – includes any felony conviction involving the "unlawful trading or dealing of any controlled substance." The panel explained that section 922(a)(1)(A) is a categorical match to "illicit trafficking in firearms" under section 1101(a)(43)(C). View "Chacon v. Wilkinson" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In this case, the Knights Templar, a local drug cartel, murdered petitioner's husband, twice threatened her life, and forcibly took her property in retaliation for helping her son escape recruitment by fleeing to the United States. The Board assumed without explicitly deciding that petitioner's social groups, comprised of her family or property owners, were cognizable.The Ninth Circuit held that substantial evidence does not support the BIA's conclusion that petitioner was not persecuted "on account of" her membership in a particular social group. Under the panel's case law, it is sufficient under our mixed-motive precedent for the petitioner to show that a protected ground "was a cause of the persecutors' acts." Furthermore, the panel found Parada v. Sessions, 902 F.3d at 910, instructive and concluded that Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from "purely personal retribution." The panel explained that the BIA erred in its nexus analysis for both petitioner's asylum claim and her withholding of removal claim. The panel remanded with instructions for the BIA to reconsider petitioner's asylum claim, and for the BIA to consider whether petitioner is eligible for withholding of removal under the proper "a reason" standard. The panel denied the petition as it relates to petitioner's claim for relief under CAT. View "Naranjo Garcia v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The panel held that petitioner's proposed social group comprised of "minor Christian males who oppose gang membership" is not cognizable. The panel also held that petitioner failed to establish the requisite nexus between any harm and his membership in the Santos-Ponce family, or that he would more likely than not be tortured by the Honduran government or with government acquiescence. Finally, the panel held that substantial evidence supports the BIA's conclusion that petitioner is not eligible for CAT protection where there is no claim or evidence that petitioner was harmed, much less tortured in the past by any government officials, or anyone acting under the acquiescence of the government. View "Santos-Ponce v. Wilkinson" on Justia Law

The Ninth Circuit denied in part and granted in part a petition for review of the BIA's denial of withholding of removal and protection under the Convention Against Torture (CAT). The panel held that the Board correctly concluded that petitioner's proposed social group of "Mexican wealthy business owners" was not cognizable because it lacked social distinction, particularity, or an immutable characteristic. Even if petitioner's proposed group were cognizable, the panel concluded that he would still not be entitled to relief. In this case, substantial evidence supports the IJ's decision that petitioner did not establish a nexus between the feared harm and his alleged membership in the proposed group.In regard to the CAT claim, the panel held that the Board erred in finding that petitioner had not proven he had been "subjected to any harm by Mexican officials." Even if the judicial officers were not in uniform and did not act in their official capacity, the panel concluded that petitioner has sufficiently demonstrated that he was the victim of an official perpetration of violence. The panel remanded with instructions for the Board to consider whether the attack by the judicial police officers qualifies as torture and whether petitioner has established that it was more likely than not he would be tortured if returned to Mexico. View "Macedo Templos v. Wilkinson" on Justia Law

The Ninth Circuit granted a petition for review of the DHS's order reinstating petitioner's prior order of removal. Petitioner, a Canadian citizen, was deported from the United States in the summer of 1990 under a final order of deportation. 26 years later, he was taken into custody by ICE after an arrest for driving under the influence of alcohol. DHS then reinstated his prior deportation order under section 241(a)(5) of the Immigration and Nationality Act.The panel held that a noncitizen has not "reentered the United States illegally" within the meaning of 8 U.S.C. 1231(a)(5) based solely on the fact of inadmissibility at the time of reentry. In this case, DHS failed to apply the correct legal standard under section 1231(a)(5) for entering a reinstatement order. The panel explained that petitioner's case is fundamentally different from circuit precedent, where the panel allowed reinstatement of prior deportation orders for noncitizens who had reentered the United States through fraud. The panel agreed with the government's tacit admission that it is not entitled to deference, and the panel did not give Chevron deference to agency decisions made without "a lawmaking pretense in mind," such as those made with little or no procedure and that "stop short of [binding] third parties." The panel noted that many inadmissible noncitizens who enter or reenter the United States do so without violating sections 1325 or 1326, for these sections do not punish entries or reentries solely on the ground of a noncitizen's inadmissibility. Furthermore, the panel's conclusion was reinforced by the INA's provisions governing relief from removal, the severe practical difficulties of basing reinstatement solely on inadmissibility at the time of reentry, and the DHS regulation governing reinstatement. View "Tomczyk v. Wilkinson" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d). View "United States v. Bastide-Hernandez" on Justia Law

The Ninth Circuit affirmed a petition for review of the BIA's decision denying petitioner's applications for asylum and related relief. The panel held that petitioner's credible testimony about an attempted gang rape was sufficient to establish past persecution, and that the Board erred in imposing evidentiary requirements of ongoing injury or treatment beyond the attempted sexual assault in order to show persecution.The panel stated that it has consistently treated rape as one of the most severe forms of persecution, and explained that some forms of physical violence are so extreme that even attempts to commit them constitute persecution. In this case, petitioner's credible testimony about the attempted gang rape is sufficient to show persecution. The panel explained that attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator's domination, control over the victim and imperviousness to the law. Furthermore, requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. The panel remanded for further proceedings. View "Kaur v. Wilkinson" on Justia Law

Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm. View "United States v. Gear" on Justia Law