Justia Immigration Law Opinion Summaries

California Penal Code 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither categorically a crime involving moral turpitude nor categorically a "crime of child abuse." The Ninth Circuit explained that because the offense required only sexual intent, and because a good-faith reasonable mistake of age was not a defense, a defendant was not required to have evil or malicious intent. The panel also held that section 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach did not apply.The panel granted separate petitions for review of the BIA's decision. The panel held that the BIA erred in concluding that Menendez's conviction triggered the stop-time rule and rendered her ineligible for cancellation. In regard to Rodriguez-Castellon's petition, the panel held that section 288(c)(1) was not categorically a crime of child abuse under 8 U.S.C. 1227(a)(2)(E)(1), because it was broader than the generic definition of a crime of child abuse. View "De Jesus Menendez v. Whitaker" on Justia Law

A grant of regulatory employment authorization under 8 C.F.R. 274a.12(b)(20) does not confer lawful immigration status for purposes of establishing eligibility for status adjustment under 8 U.S.C. 1255(k)(2). The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner, the beneficiary of an H-1B visa, ineligible for status adjustment. In this case, petitioner's employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Although petitioner was legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. 274a.12(b)(20), the BIA correctly concluded that petitioner was ineligible for status of adjustment. View "Xiao Ma v. Sessions" on Justia Law

After noncitizen minors entered the United States unaccompanied by a parent or guardian, they were placed in the custody of the United States Office of Refugee Resettlement (ORR). ORR subsequently released plaintiffs to a parent or sponsor when they concluded that each minor was not dangerous to himself or the community, and was not a flight risk. In 2017, the minors were arrested because of alleged gang membership and transferred to secure juvenile detention facilities.The Ninth Circuit affirmed the district court's grant of a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the basis for their rearrest. The panel held that the district court did not abuse its discretion in concluding that the minors were entitled to some sort of due process hearing and ordering the government, pendente lite, to provide members of the minor class with the procedural protections set forth in its order. In this case, the district court did not abuse its discretion in granting the preliminary injunction, and the preliminary injunction was entirely consistent with the mandate in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 that ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child. View "Saravia v. Sessions" on Justia Law

Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, the Travel Act is divisible in that respect. Petitioner challenged the BIA's finding that he was removable for a controlled substance offense and ineligible for cancellation of removal.The panel denied the petition for review in part and held that petitioner's conviction qualified as a controlled substance offense under the modified categorical approach. The panel held, however, that the BIA's conclusion that petitioner was ineligible for relief under 8 U.S.C. 1229b was not supported by substantial evidence. The panel held that section 1229b states that the relevant time period ends "when the alien is served a notice to appear." In this case, the BIA used the date on which the notice to appear was issued, not the date when it was served on petitioner. Therefore, the panel granted the petition in part and remanded for the BIA to consider petitioner's claim for cancellation of removal. View "Myers v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's motion to suppress evidence. In this case, petitioner was on a fishing trip with friends when his boat lost power. When Coast Guard officers arrived to tow the boat, they detained petitioner and subsequently placed him in removal proceedings.The panel held that petitioner made a prima facie showing that the Coast Guard officers who detained him violated 8 C.F.R. 287.8(b)(2), which requires that an immigration officer have reasonable suspicion, based on specific articulable facts that a person is, or is attempting to be, engaged in an offense against the United States, or is an alien illegally in the United States, in order for the immigration officer to briefly detain the person for questioning. In this case petitioner was detained solely on the basis of his race and his detention was contrary to the requirements of section 287.8(b)(2). Furthermore, the violation alleged by petitioner was egregious both for its grotesque nature and its patent unlawfulness. View "Sanchez v. Sessions" on Justia Law

The Ninth Circuit denied a petition for review of an IJ's decision affirming an asylum officer's negative reasonable fear determination in reinstatement removal proceedings. Petitioner asserted that he was deprived his due process rights and a fair hearing before the asylum officer, because he was provided a Spanish-language interpreter rather than an interpreter in his native language Chuj. The panel rejected this claim and held that petitioner had indicated he understood "a lot" of Spanish and consented to proceeding in Spanish. Furthermore, petitioner had an opportunity to correct any errors or submit additional evidence on review. The panel also rejected petitioner's due process claims related to his reasonable fear review hearing. However, the panel granted the petition for review of the IJ's decision rejecting for lack of jurisdiction petitioner's motion to reopen reasonable fear proceedings. In this case, the IJ abused its discretion when he failed to recognize that he had at least sua sponte jurisdiction to reopen proceedings. Accordingly, the panel remanded for further proceedings. View "Bartolome v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal. The panel held that petitioner was not removable under 8 U.S.C. 1182(a)(6)(C)(ii)(I), as an alien who made a false claim of citizenship to obtain private employment, because there was no basis in the record to conclude that he represented himself as a citizen on a Form I–9. In this case, there was nothing in the record showing that petitioner ever filled out a Form I-9 and thus nothing in the record to show that he made a false representation of citizenship. The panel remanded for further proceedings. View "Diaz-Jimenez v. Sessions" on Justia Law

Where a state statute contains two layers of disjunctive lists, the analysis outlined in Taylor v. United States, 495 U.S. 575 (1990), for applying the categorical approach, applies to both layers of the statute and must be performed twice. A methamphetamine conviction under California Health & Safety Code 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. 1227(a)(2)(B)(i).The Ninth Circuit granted a petition for review of the BIA's order finding petitioner removable for a controlled substance offense. The panel held that the California definition of methamphetamine was broader than the federal definition. The panel also held that the methamphetamine element applicable to a conviction under sections 11378 or 11379(a) was not divisible, because the different varieties of methamphetamine covered by California law were alternative means of committing a single crime rather than alternative elements of separate crimes. Therefore, the panel did not apply the modified categorical approach. View "Atenia Lorenzo v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's order denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.The panel held that petitioner was eligible for asylum and entitled to withholding of removal. In this case, the record compelled a finding of past persecution, and substantial evidence did not support the agency's determination that the government successfully rebutted the presumption of future persecution. The panel applied the pre-REAL ID Act standards and held that the harm petitioner suffered had a nexus to a protected ground because the guerillas were motivated by his family's government and military service. The panel also held that the BIA erred as a matter of law in denying petitioner's application for CAT relief. The panel remanded for reconsideration of the CAT claim. View "Quiroz Parada v. Sessions" on Justia Law

California's receipt of stolen property offense is a categorical match for the generic federal crime of receipt of stolen property. The Ninth Circuit affirmed defendant's conviction for attempting to reenter the United States after being deported, holding that defendant's prior California conviction for receipt of stolen property was a felony theft offense that was an aggravated felony under the Immigration and Naturalization Act. The panel also held that the district court properly denied defendant's motion to dismiss the indictment and rejected defendant's remaining claims. View "United States v. Flores" on Justia Law