Justia Immigration Law Opinion Summaries

The Ninth Circuit filed an order denying respondent's motion to depublish and granting the motion to amend the prior opinion, as well as an amended opinion.In the amended opinion, the panel held that petitioner's conviction under Oregon Statutes section 164.395 for robbery in the third degree is not categorically a crime involving moral turpitude. The panel held that the minimal force required for conviction was insufficient and the government waived the issue of divisibility. Therefore, petitioner was not statutorily ineligible for cancellation of removal and the panel affirmed the petition for review in part. However, the panel denied the petition for review as to the withholding of removal claim, holding that petitioner's proposed particular social group – individuals returning to Mexico who are believed to be wealthy – was overbroad. The panel remanded for further proceedings. View "Aguirre Barbosa v. Barr" on Justia Law

Petitioner sought review of the BIA's decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel denied the petition as to petitioner's claims for asylum and withholding of removal, holding that substantial evidence supported the agency's determination that petitioner committed a serious nonpolitical offense and was therefore statutorily ineligible for asylum and withholding of removal. However, the panel granted the petition in regard to plaintiff's claim for relief under CAT, holding that the IJ failed to consider evidence from petitioner's church that he is a practicing Christian and evidence from the country reports that Christians are persecuted and tortured in China. View "Jiang Guan v. Barr" on Justia Law

The Ninth Circuit joined its sister circuits and held that the BIA does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained. The panel held that the rationales supporting the practice of waiver and forfeiture hold in the context of removal proceedings in the Executive Office of Immigration review. The panel explained that the BIA is an appellate body whose function is to review, not create, a record, and it would be inappropriate to force it to consider new issues on appeal by judicial fiat. In this case, the BIA did not err by declining to consider petitioner's proposed particular social groups that were raised for the first time on appeal. Accordingly, the panel denied his petition for review. View "Honcharov v. Barr" on Justia Law

A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal.The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal. View "Lorenzo Lopez v. Barr" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's pretermission of his application for cancellation of removal. The panel held that petitioner's continuous residency did not commence with his 1997 parole, but with his 2000 adjustment to LPR status.The panel held that petitioner has not shown that his 1997 parole constitutes an "admission in any status" as that term is used in 8 U.S.C. 1229b(a)(2); petitioner is not entitled to any relief because the administrative record does not include his 1997 parole document; and petitioner has not shown that the BIA erred in concluding that he had not challenged the IJ's denial of relief under the Convention Against Torture (CAT). At the parties' mutual request, the panel remanded petitioner's asylum application for the fact-finding necessary to determine the viability of petitioner's proposed social group. View "Alanniz v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64.The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" on Justia Law

Asylum applicants and asylum-related legal services challenged the Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. The district court concluded that the MPP lacked a statutory basis and violated the Administrative Procedure Act (APA). The district court then enjoined DHS on a nationwide basis from continuing to implement or expand the MPP. DHS argued that it relied on the contiguous-territory provision in 8 U.S.C.1225(b)(2)(C) as the statutory basis for the MPP.The Ninth Circuit granted DHS's motion for a stay pending appeal and held that DHS was likely to prevail on its contention that 8 U.S.C.1225(b)(1), which outlines the procedures for expedited removal and specifies the class of non-citizens who are eligible for expedited removal, "applies" only to applicants for admission who are processed under its provisions. Under this reading, section 1225(b)(1) does not apply to an applicant who is processed under section 1225(b)(2)(A), even if that individual is rendered inadmissible by section 1182(a)(6)(C) or (a)(7). Consequently, applicants for admission who are placed in regular removal proceedings under section 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under section 1225(b)(2)(C). Therefore, plaintiffs were properly subject to the contiguous-territory provision because they were processed in accordance with section 1225(b)(2)(A), rather than section 1225(b)(1).Furthermore, DHS was likely to prevail on plaintiffs' claim that the MPP should have gone through the APA's notice and comment process, because the MPP qualifies as a general statement of policy where immigration officers designate applicants for return on a discretionary case-by-case basis. Finally, the remaining factors governing issuance of a stay pending appeal weigh in the government's favor. View "Innovation Law Lab v. McAleenan" on Justia Law

An IJ is required to inform a petitioner subject to removal proceedings of "apparent eligibility to apply for any of the benefits enumerated in this chapter." 8 C.F.R. 1240.11(a)(2). The apparent eligibility standard of 8 C.F.R. 1240.11(a)(2) is triggered whenever the facts before the IJ raise a reasonable possibility that the petitioner may be eligible for relief. When the IJ fails to provide the required advice, the appropriate course is to grant the petition for review, reverse the BIA's dismissal of the petitioner's appeal of the IJ's failure to inform him of this relief, and remand for a new hearing.A successful Special Immigrant Juvenile (SIJ) application plainly can lead to relief from removal, and SIJ regulations are among those in the referenced subchapter, 8 C.F.R. 1245.1(a), (e)(2)(vi)(B)(3). The en banc court granted a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of his application for asylum and withholding of removal. The panel held that the IJ who ordered petitioner removed erred by failing to advise him about his apparent eligibility for SIJ status. View "C.J.L.G. v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's order finding petitioner removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). The panel held that petitioner's prior conviction under Oregon Revised Statutes section 164.395 was a categorical theft offense and was therefore an aggravated felony under section 101(a)(43)(G) of the INA. The panel held that the record supported the BIA's denial of relief under the Convention Against Torture where the BIA agreed with the IJ's conclusion that petitioner failed to establish that he would more likely than not face a particularized risk of torture with the acquiescence of a public official in Guatemala. View "Lopez-Aguilar v. Barr" on Justia Law

The United States challenged California's enactment of three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.The Ninth Circuit held that the district court did not abuse its discretion when it concluded that AB 450's employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California's prerogatives under the Tenth Amendment and the anticommandeering rule. Therefore, the panel affirmed the district court's denial of a preliminary injunction as to these laws.The panel also affirmed the district court's denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law. However, the panel held that one subsection of AB 103—codified at California Government Code section 12532(b)(1)(C)—discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Therefore, the panel reversed the preliminary injunction order as to this part and remanded for further proceedings. View "United States v. California" on Justia Law