Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review challenging petitioner's removal for committing two crimes involving moral turpitude (CIMT). The panel held that the BIA did not err in concluding that a California Penal Code 646.9(a) criminal stalking conviction qualifies as a CIMT because a section 646.9(a) offense is categorically a CIMT. The panel stated that the BIA's reliance on In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), to determine that a section 646.9(a) criminal stalking conviction constitutes a CIMT is entitled to Skidmore deference, rather than Chevron deference. Pursuant to the panel's review of the statutory text and in light of its CIMT precedents, the panel concluded that section 646.9 does not plainly and specifically criminalize conduct outside the contours of the federal definition of a CIMT.The panel also held that the BIA reasonably concluded that petitioner's two section 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct. In this case, Count 1 of the state felony complaint involved petitioner willfully and maliciously following and harassing one person between June 1, 2015 and April 26, 2017. Count 2 involved the same conduct by petitioner against a different person between March 1, 2017 and April 26, 2017. Accordingly, petitioner is removable as charged under 8 U.S.C. 1227(a)(2)(A)(ii). View "Orellana v. Barr" on Justia Law

Moran-Garcia, caught off the California coast in a disguised boat, was indicted for attempting to enter the United States after having been deported, 8 U.S.C. 1326(a) and (b), and for attempting to enter other than at a place designated, 8 U.S.C. 1325. The indictment alleged that these offenses occurred “within the Southern District of California.” The evidence established that Moran was apprehended six miles off the coast, within sight of the lights of San Diego. San Diego is within the Southern District of California. Defense counsel moved for a judgment of acquittal based on insufficient evidence of venue, arguing that the Southern District extended only three miles out to sea. The court denied the motion and ruled that no jury instruction was appropriate because venue was a legal question that it had already decided.The Ninth Circuit vacated, finding that venue was not established. The Southern District of California as defined by Congress comprises the counties of (landlocked) Imperial and San Diego. The territorial sea of the United States extends to 12 nautical miles, but that is not true of the Southern District of California. California law defines the western border of San Diego County as extending “to a point three English miles [into the] Pacific Ocean.” Venue is a question of fact that the government must prove by a preponderance of the evidence.” It is a jury question. View "United States v. Moran-Garcia" on Justia Law

ORS 475.992(1)(a), which criminalizes manufacture or delivery of a controlled substance, is divisible as between its "manufacture" and "delivery" terms. The Ninth Circuit held that the BIA properly applied the modified categorical approach and correctly found that petitioner was convicted of manufacture of a controlled substance, which constitutes an aggravated felony. Therefore, petitioner is removable as charged.The panel also held that the BIA did not abuse its discretion in finding petitioner's offense to be a particularly serious crime and that the notice provided to petitioner was sufficient to vest the IJ with jurisdiction. Consequently, petitioner is ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture. The panel dismissed in part and denied in part the petition for review. View "Banuelos Dominguez v. Barr" on Justia Law

The Ninth Circuit affirmed in part, and vacated in part, the district court's grant of summary judgment entering declaratory relief for plaintiffs and permanently enjoining the DOJ on a nationwide basis from imposing certain conditions for providing funding for state and local criminal justice programs through Edward Byrne Memorial Justice Assistance Grants. Plaintiffs, so-called sanctuary jurisdictions, which have enacted laws that limit their employees' authority to assist in the enforcement of federal immigration laws, filed suit to prevent DOJ from denying funding of Byrne grants for failure to comply with new Access, Notice, and Certification Conditions.Consistent with its discussion in City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019), the panel affirmed the injunction barring DOJ from using the Access and Notice Conditions as Byrne funding requirements for any California state entity or political subdivision. In City of Los Angeles, the panel held that DOJ lacked statutory authority to impose the Access and Notice Conditions on Byrne funds in reviewing a preliminary injunction obtained by the City of Los Angeles. The panel also upheld the injunction barring DOJ from denying or withholding Byrne funds on account of the Certification Condition based on plaintiffs' alleged non-compliance with 8 U.S.C. 1373. With regard to the geographical reach of the relief granted by the district court, the panel held that the district court abused its discretion in issuing an injunction that extended nationwide. View "City and County of San Francisco v. Barr" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's December 2015 order of removal, holding that the BIA did not err in relying on binding precedent to conclude that petitioner was removable on the ground that he was convicted of two or more crimes involving moral turpitude. The panel discussed that, if it were writing on a clean slate, what categorical analysis it would use. However, because the panel was not writing on a clean slate, the panel held, according to binding precedent, that petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude.The panel also denied the petition for review of the BIA's denial of petitioner's motion to reopen, holding that the BIA did not abuse its discretion in concluding that petitioner failed to establish a prima facie case for asylum or withholding of removal. Finally, the panel held that the BIA did not abuse its discretion in concluding that petitioner failed to establish a prima facie case for protection under the Convention Against Torture. View "Silva v. Barr" on Justia Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction against enforcement of a Department of Homeland Security joint interim final rule which—with limited exceptions—categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled.After determining that plaintiffs have Article III standing, the panel held that plaintiffs have shown a likelihood of success on their claim that the rule is unlawful under the Administrative Procedures Act (APA), where it is not in accordance with law and in excess of statutory limitations because it is not consistent with 8 U.S.C. 1158. The panel also held that plaintiffs have shown a likelihood of success on their claim that the rule is arbitrary and capricious because it runs counter to the evidence before the agency and entirely failed to consider important aspects of the problem. Furthermore, the panel held that plaintiffs have shown that they will suffer irreparable harm, that the balance of equities lies in their favor, and that an injunction is in the public interest. Finally, the panel held that the district court did not abuse its discretion in entering an injunction covering the four states along the border with Mexico. View "East Bay Sanctuary Convenant v. Barr" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's decision denying asylum and withholding of removal to petitioner. The panel held that substantial evidence supports the BIA's conclusion that petitioner has not met his burden to produce evidence demonstrating that his purported groups are socially distinct: Mexican professionals who refuse to cooperate with drug cartels and agronomists who refuse to help cultivate drugs.In this case, nothing in the record addresses whether Mexican society views either of petitioner's proposed social groups as distinct; no laws or proposed legislation so indicate; nor do any country conditions reports or news articles mention such a group. Rather, the evidence paints a picture of all segments of the Mexican population being adversely affected by the brutality of drug cartels. Furthermore, the expert testimony does not bridge the gap nor does petitioner's testimony make the required showing. View "Diaz-Torres v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's denial of petitioner's claim under the Convention Against Torture (CAT). The panel held that substantial evidence does not support the BIA's determination that petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The panel explained that the BIA reached its determination by misapplying the circuit's precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record.The panel held that the existing record compels the conclusion that petitioner has met her burden under CAT. In this case, the lack of affirmative evidence that there is a general or specific area within Mexico where petitioner can safely relocate, the evidence that Los Zetas operate throughout much of Mexico, and the evidence that LGBTQ individuals are at heightened risk throughout Mexico, together compel a conclusion contrary to the BIA's. The panel remanded for the BIA to grant deferral of removal. View "Xochihua-Jaimes v. Barr" on Justia Law

The Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense (DoD) to make budgetary transfers from funds appropriated by Congress to it for other purposes in order to fund the construction of a wall on the southern border of the United States in California and New Mexico.The Ninth Circuit first held that California and New Mexico have Article III standing to pursue their claims because they have alleged that the actions of the Federal Defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as to their sovereign interests in enforcing their environmental laws; California has alleged environmental and sovereign injuries "fairly traceable" to the Federal Defendants' conduct; and a ruling in California and New Mexico's favor would redress their harms. Furthermore, California and New Mexico easily fall within the zone of interests of Section 8005 of the Act and are suitable challengers to enforce its obligations under the Administrative Procedure Act.The panel held that the district court correctly determined that Section 8005 did not authorize DoD's budgetary transfer to fund construction of the El Paso and El Centro Sectors. The panel explained that the district court correctly determined that the border wall was not an unforeseen military requirement, that funding for the wall had been denied by Congress, and therefore, that the transfer authority granted by Section 8005 was not permissibly invoked. Therefore, the panel affirmed the district court's judgment, declining to reverse the district court’s decision against imposing a permanent injunction, without prejudice to renewal. View "California v. Trump" on Justia Law

Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense's budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona.The Ninth Circuit first held that Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants' actions. In this case, Sierra Club's thousands of members live near and frequently visit these areas along the U.S.-Mexico border to do a variety of activities; the construction of a border wall and related infrastructure will acutely injure their interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests; and the interests of Sierra Club's members in this lawsuit are germane to the organization's purpose. Furthermore, SBCC has alleged facts that support that it has standing to sue on behalf of itself and its member organizations. Sierra Club and SBCC have also shown that their injuries are fairly traceable to the challenged action of the Federal Defendants, and their injuries are likely to be redressed by a favorable judicial decision.The panel held that neither Section 8005 nor any constitutional provision authorized DoD to transfer the funds at issue. The panel reaffirmed its holding in State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), holding that Section 8005 did not authorize the transfer of funds at issue here because "the border wall was not an unforeseen military requirement," and "funding for the wall had been denied by Congress." The panel also held that Sierra Club was a proper party to challenge the Section 8005 transfers and that Sierra Club has both a constitutional and an ultra vires cause of action here. The panel explained that the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties. The panel considered the Federal Defendants' additional arguments, holding that the Administrative Procedure Act (APA) is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action, and Sierra Club falls within the Appropriations Clause's zone of interests. Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. View "Sierra Club v. Trump" on Justia Law