Justia Immigration Law Opinion Summaries

The Department of Homeland Security (DHS) reinstated a 1999 removal order entered against Petitioner. Because Petitioner expressed a fear of returning to Mexico, an asylum officer conducted a reasonable fear screening interview to determine whether Petitioner should be given the opportunity to establish his claims at a merits hearing before an Immigration Judge (IJ) on his application for withholding of removal and relief under the Convention Against Torture (CAT). The asylum officer determined, and an IJ affirmed, that Petitioner did not show a reasonable possibility of persecution or torture were he to be removed. Consequently, Petitioner never had the opportunity to present additional evidence of his claims at a merits hearing. Petitioner now petitions for a review of the IJ’s negative reasonable fear determination at the screening stage.   The Ninth Circuit granted Petitioner’s petition. The panel held that Petitioner’s own credible testimony sufficiently established a reasonable fear of persecution or torture to warrant a hearing before an IJ on the merits of his claims for relief. Petitioner credibly testified that three cartels seek to control the region around his hometown in Mexico, and Autodefensa, a local community defense group, fights to prevent cartel influence. As part of the conflict, the cartels carry out weekly attacks to kill Autodefensa members and target families of community defense members to erode resistance to cartel control. One of Petitioner’s uncles is the leader of Autodefensa. Petitioner fears that, if removed to Mexico, the cartels will discover his identity as a relative of Autodefensa members and harm or kill him. View "ERIC HERMOSILLO V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Mexico, reentered the United States without inspection in 2003. The Department of Homeland Security (“DHS”) ordered him removed to Mexico after reinstating an earlier removal order that had been entered against him in 1994. Petitioner expressed a fear of returning to Mexico. The asylum officer determined that Petitioner did not have a reasonable fear of such harm, and an immigration judge (“IJ”) affirmed that determination. Thirty days after the IJ’s decision—but more than thirty days after the date his removal order was reinstated—Petitioner petitioned for review on several grounds, including that the reasonable fear screening procedures established by federal regulation are inconsistent with the statutory provisions governing withholding of removal. Petitioner agreed that the thirty-day filing deadline is no longer jurisdictional, but still disagrees that his petition was untimely. Petitioner continues to maintain that Ortiz-Alfaro’s holding that petitions for review become ripe upon the conclusion of reasonable fear proceedings remains good law.   The Ninth Circuit denied Petitioner’s petition. The panel held that: (1) the thirty-day deadline for filing a petition for review set forth in 8 U.S.C. Section 1252(b)(1) is a nonjurisdictional rule; (2) Petitioner’s petition for review, which was filed within thirty days of the conclusion of his reasonable fear proceedings, but not within thirty days of the reinstatement of his removal order, was timely; and (3) the reasonable fear screening procedures established by regulation are consistent with the statutory provisions governing withholding of removal. The panel concluded that Petitioner’s petition was timely, however denied the petition on the merits. View "JOSE ALONSO-JUAREZ V. MERRICK GARLAND" on Justia Law

Defendant appealed his sentence of twenty-seven months’ imprisonment followed by three years’ supervised release for attempted reentry following removal. Defendant had been deported from the United States six times, most recently about a month before his arrest. The same district court judge who sentenced Defendant in this case had presided over his prior sentencing hearing for illegal reentry. On appeal, Defendant raised two challenges to the court’s sentence.   The Ninth Circuit affirmed Defendant’s sentence. The panel held that so long as Defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect. The panel wrote that the record establishes that Defendant was aware of the consequences of entering into a Type B plea agreement, and concluded that the district court therefore did not abuse its discretion under the circumstances.   Defendant argued that the district court committed procedural error when it used Defendant’s alleged promise at his prior sentencing hearing not to return to the United States as a sentencing factor. Reviewing for plain error, the panel held that the district court’s factual finding that Defendant had assured the court at the prior sentencing hearing that he would not return to the United States is supported by the record. View "USA V. URBANO TORRES-GILES" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal. He argues that the BIA erred in finding that his prior menacing conviction under Oregon Revised Statute Section 163.190 constitutes a crime involving moral turpitude (“CIMT”), rendering him ineligible for cancellation of removal.   The Ninth Circuit granted the petition. The panel held that a conviction under Oregon Revised Statute Section 163.190 does not constitute a crime involving moral turpitude (CIMT). The panel explained that in the BIA’s precedential decision in Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019), which held that Section 163.190 categorically qualifies as a CIMT, the BIA erred in its analysis of this court’s prior caselaw. The panel remanded for further consideration of Petitioner’s application for cancellation of removal. View "JOSE FLORES-VASQUEZ V. MERRICK GARLAND" on Justia Law

Defendant appealed from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien. Defendant contended that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure.   The Ninth Circuit affirmed. The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Defendant’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair,” that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. Section 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. Section 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Defendant remains subject to Section 1326(d)’s general rule that he may not challenge the validity of his predicate removal order. View "USA V. PRAXEDIS PORTILLO-GONZALEZ" on Justia Law

Petitioner challenged the constitutionality of the appointment and removal process for Immigration Judges and members of the Board of Immigration Appeals (BIA). These officials exercise significant authority within our immigration system, making them officers under the Appointments Clause.   The Ninth Circuit denied the petition. The panel rejected Petitioner’s suggestion that Immigration Judges and BIA members are principal officers who, under the Appointments Clause of Article II, must be nominated by the President and confirmed by the Senate. Rather, the panel concluded that they are inferior officers (whose appointment may be vested in the head of a department) because the Attorney General ultimately directs and supervises their work. Thus, the panel held that the Appointments Clause allows Congress to vest their appointment in the Attorney General. The panel next held that the removal process for Immigration Judges and BIA members satisfies Article II, which requires that officers remain accountable to the President by limiting restrictions on the removal of the President’s subordinates. The panel explained that Attorney General has the power to remove Immigration Judges and BIA members, and that nothing restricts the Attorney General’s ability to remove them. Thus, these officers remain dependent on the Attorney General for their positions—and by extension, on the President. View "FORTUNATO AMADOR DUENAS V. MERRICK GARLAND" on Justia Law

The Ninth Circuit denied a petition for panel rehearing and a sua sponte request for rehearing en banc in a case in which the panel: (1) held that the Board of Immigration Appeals legally erred by failing to conduct cumulative-effect review in assessing petitioner’s evidence of past persecution, and (2) remanded for the BIA to reassess the evidence under the correct legal framework. View "NERY SALGUERO SOSA V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying Petitioner’s motion to reopen. The Board denied reopening based, in part, on Petitioner’s failure to include a new application for relief, as required by 8 C.F.R. Section 1003.2(c)(1).   The Ninth Circuit granted the petition for review and remanded to the BIA for further proceedings. The panel explained that the changed circumstances Petitioner presented were entirely outside of his control and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Petitioner’s claims for relief because they rebutted the agency’s previous determination that Petitioner had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group.   The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Petitioner family against his uncle’s family for at least fourteen years after Petitioner’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Petitioner’s evidence was not qualitatively different than the evidence at his original hearing. The panel also declined to uphold the Board’s determination that Petitioner failed to establish prima facie eligibility for relief. View "FRANCISCO REYES-CORADO V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (“BIA”) denial of his motion to reopen. Petitioner sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof.   The Ninth Circuit granted the petition for review. The panel clarified any possible confusion in this circuit’s case law regarding a petitioner’s burden of proof in a motion to reopen. Prima facie eligibility for relief requires only a threshold showing of eligibility—a “reasonable likelihood” that the petitioner would prevail on the merits if the motion to reopen was granted. To be eligible for a discretionary grant of relief, a petitioner must present new evidence that “would likely change” the result in the case. Because the BIA erred by applying the wrong legal standard, the panel remanded to the BIA to adjudicate the motion to reopen under the proper standard. View "MARIO FONSECA-FONSECA V. MERRICK GARLAND" on Justia Law

Petitioner challenged the constitutionality of the appointment and removal process for Immigration Judges and members of the Board of Immigration Appeals (BIA).   The Ninth Circuit denied Petitioner’s petition for review of a decision of the BIA, the panel held that the appointment and removal process for Immigration Judges and members of the BIA comports with Article II of the Constitution. The panel rejected Petitioner’s suggestion that Immigration Judges and BIA members are principal officers who, under the Appointments Clause of Article II, must be nominated by the President and confirmed by the Senate. Rather, the panel concluded that they are inferior officers (whose appointment may be vested in the head of a department) because the Attorney General ultimately directs and supervises their work. Thus, the panel held that the Appointments Clause allows Congress to vest their appointment in the Attorney General. The panel next held that the removal process for Immigration Judges and BIA members satisfies Article II, which requires that officers remain accountable to the President by limiting restrictions on the removal of the President’s subordinates. The panel explained that the Attorney General has the power to remove Immigration Judges and BIA members and that nothing restricts the Attorney General’s ability to remove them at will. Thus, these officers remain dependent on the Attorney General for their positions—and by extension, on the President. View "FORTUNATO AMADOR DUENAS V. MERRICK GARLAND" on Justia Law