Justia Immigration Law Opinion Summaries

The Ninth Circuit filed (1) an order stating that the opinion, concurrence, and dissent filed November 19, 2019 are amended by the opinion, concurrence, and dissent filed concurrently with the order, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended majority opinion, concurrence, and dissent.In the amended opinion, the panel granted the petition for review of an ICE order reinstating petitioner's prior order of removal and held that that: (1) 8 U.S.C. 1252(b)(1) establishes a thirty-day deadline for seeking review of reinstatement orders; (2) because petitioner timely challenged his reinstatement order, the court had jurisdiction to consider a collateral attack on his underlying removal order contending that the execution of that order resulted in a gross miscarriage of justice; (3) petitioner established a gross miscarriage of justice because his removal order lacked a valid legal basis when it was executed; and (4) there is no diligence requirement that limits the time during which such a collateral attack may be made. View "Vega-Anguiano v. Barr" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision denying petitioner's application for protective status pursuant to the Convention Against Torture (CAT). Petitioner is a former gang member who has belonged to various violent gangs, including La Mara Salvatrucha, commonly known as MS-13.Addressing two initial matters, the panel concluded that the Board's defiance of the panel's previous decision in this matter and disagreement with the panel's holding that the IJ did not find petitioner's expert, a specialist in gang activity in Central America and governmental responses to gangs, credible was ill-advised. The panel also disagreed with the Board's conclusion that the expert's testimony did not warrant full weight because he did not submit the underlying evidence to the IJ. Finally, the panel held that the Board's decision to give the expert's opinion reduced weight because it was not corroborated by other evidence in the record was erroneous. The panel remanded to the Board and directed it to give full weight to the expert's testimony regarding the risk of torture petitioner faces if removed to El Salvador. View "Castillo v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioners' motion to reopen. Petitioners contend that ineffective assistance of a non-attorney notario who advised them not to attend their hearing caused them to be ordered removed in absentia.The panel concluded that the BIA erred by treating petitioners' failure to show prejudice caused by the alleged ineffective assistance as a basis for denying their motion to reopen proceedings. The panel explained that a showing of prejudice is not required when ineffective assistance leads to an in absentia order of removal. Therefore, in light of this conclusion, the panel need not reach the BIA's decision denying petitioners' motion to reopen proceeding to allow petitioners to apply for cancellation of removal. View "Sanchez Rosales v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT. View "Medina-Rodriguez v. Barr" on Justia Law

The Ninth Circuit denied separate petitions for review filed by Velasquez-Rios and Desai, holding that an amendment to section 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. 1227(a)(2)(A)(i).The panel rejected petitioners' contention that the BIA erred by relying on McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina's state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California's reclassification of Diaz's two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. 841. Relying upon McNeill, the panel held that the statute called for a backward-looking inquiry to the initial date of conviction, rather than the current state of California law, and that the triggering event under section 841 was when the two felony drug offenses had "become final." The panel rejected petitioners' arguments and further explained that its approach aligns with the Supreme Court's admonishments that federal laws should be construed to achieve national uniformity, and explained that its decision avoids the "absurd" results described in McNeill that would follow from petitioners' approach, under which an alien's removability would depend on the timing of the immigration proceeding. Finally, the panel held that federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation. View "Velasquez-Rios v. Barr" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's decision determining that petitioner was ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1). The panel held that the BIA reasonably concluded that petitioner had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed based on his conviction for the offense of knowingly sponsoring or exhibiting an animal in a fighting venture under 7 U.S.C. 2156(a)(1). The panel deferred to the BIA's conclusion that, pursuant to the cross-reference in section 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless of whether the alien meets the immigration prerequisites for inadmissibility or deportability. View "Ortega-Lopez v. Barr" on Justia Law

The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings. View "Cortes-Maldonado v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's order of removal, holding that substantial evidence supported the denial of asylum, withholding of removal, and the denial of protection under the Convention Against Torture. The panel held that petitioner failed to show a well founded fear of persecution based on a protected ground.In this case, petitioner was not credible because of his inconsistent statements about why he left Brazil and the BIA reasonably found it implausible that petitioner randomly encountered General Kangama’s nephew at a Brazilian bus stop after only a few days in the country. Substantial evidence also supports the BIA's decision that petitioner did not rehabilitate his testimony with sufficient corroborating evidence, and the BIA did not err in concluding that the evidence petitioner provided was entitled to limited weight. Furthermore, the evidence does not meet the high threshold of establishing that it is more likely than not that petitioner will be tortured by or with the consent or acquiescence of a public official. Finally, petitioner's due process rights were not violated based on transcription issues and a credible fear review hearing. View "Mukulumbutu v. Barr" on Justia Law

The Government challenges the district court's preliminary injunction entered in response to plaintiffs' claims that conditions at the Adelanto Immigration and Customs Enforcement Processing Center, where they were detained, placed them at unconstitutional risk of contracting COVID-19. After oral argument, 38 detainees had tested positive for COVID-19, over 300 were awaiting test results, and 9 had been hospitalized.The Ninth Circuit affirmed in part the preliminary injunction order, holding that the district court was permitted to order the reduction of Adelanto's population, which may have required the release of some detainees, if such a remedy was necessary to cure the alleged constitutional violations. The panel also held that the district court did not abuse its discretion by issuing some form of preliminary injunctive relief in response to plaintiffs' due process claims. The panel explained that, in light of the district court's factual findings which the Government has not shown to be clearly erroneous, the conditions at Adelanto in April 2020 violated detainees' due process right to reasonable safety where Adelanto was so crowded that social distancing to combat the spread of the novel coronavirus was impossible, detainees had inadequate access to masks, guards were not required to wear masks, there was not enough soap or hand sanitizer to go around, detainees were responsible for cleaning the facility with only dirty towels and dirty water, detainees were compelled to sleep with less than six feet of distance between them, and not all new arrivals were being properly quarantined or tested. The panel stated that the Government was aware of the risks and its inadequate response reflected a reckless disregard for detainee safety. Therefore, the district court rightly concluded that plaintiffs were likely to prevail on the merits. Furthermore, the district court correctly concluded that plaintiffs were likely to suffer irreparable harm absent relief given COVID-19's high mortality rate, and the equities and public interest tipped in plaintiffs' favor. The panel further held that the district court did not err by provisionally certifying a class of all Adelanto detainees. In light of the changed circumstances at Adelanto since the preliminary injunction was entered, the panel vacated in part and remanded in part for the district court to address the current circumstances. View "Hernandez Roman v. Wolf" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying asylum and related relief to petitioner, holding that substantial evidence supports the agency's determination that, had petitioner reported her abuse, the Guatemalan government could have protected her from her ex-boyfriend. The panel stated that, although the State Department reports make clear that Guatemala still has a long way to go in addressing domestic violence, the country's efforts, coupled with the pleas of petitioner's acquaintances, suggest that she could have obtained help.The panel also held that petitioner waived any argument as to her claim under the Convention Against Torture (CAT) by failing to specifically and distinctly discuss the matter in her opening brief. In any event, such an argument would have failed because she has not shown a likelihood of torture by or with the acquiescence of public officials. View "Velasquez-Gaspar v. Barr" on Justia Law