Justia Immigration Law Opinion Summaries

Petitioner petitioned for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenged the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case.   The Ninth Circuit dismissed the defective NTA claim for lack of jurisdiction and denied the petition as to the CAT claim. The panel granted the petition and remanded as to the administrative closure issue, given the government’s recommendation that the panel does so based on an intervening decision by the Attorney General. The panel granted the petition and remanded as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm. The panel concluded that substantial evidence supported the agency’s determination that Petitioner failed to establish the requisite government involvement or government acquiescence to any torture View "JOSUE UMANA-ESCOBAR V. MERRICK GARLAND" on Justia Law

Petitioner entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Petitioner’s OSC did not list the time and place of his proceedings. Petitioner sought suspension of deportation, a form of relief available prior to IIRIRA. IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals like Petitioner, whose proceedings were pending when IIRIRA was enacted, this stop-time rule applies retroactively to proceedings initiated by an OSC.   Accordingly, Petitioner’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Petitioner contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable.   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision, the panel held that: 1) an OSC that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Petitioner’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the CAT. View "WINSTON GUTIERREZ-ALM V. MERRICK GARLAND" on Justia Law

In a case in which federal civil immigration detainees— who are held in the Northeast ICE Processing Center (“NWIPC”), a private detention center in Tacoma, Washington, operated by GEO Group—challenge GEO’s practice of paying them less than the State’s minimum wage to work at the detention center, the Ninth Circuit certified the following questions to the Washington Supreme Court:1) In the circumstances of this case, are the detained workers at NWIPC employees within the meaning of Washington’s Minimum Wage Act (“MWA”)? 2) If the answer to the first question is yes, does the MWA apply to work performed in comparable circumstances by civil detainees confined in a private detention facility operating under a contract with the State? 3) If the answer to the first question is yes and the answer to the second question is no, and assuming that the damage award to the detained workers is sustained, is that damage award an adequate legal remedy that would foreclose equitable relief to the State in the form of an unjust enrichment award? View "UGOCHUKWU NWAUZOR, ET AL V. THE GEO GROUP, INC." on Justia Law

A jury convicted Defendant of felonious assault on a peace officer under section 2903.13(A) of the Ohio Revised Code and misdemeanor resisting arrest. While Defendant was in prison, he was served with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice alleged that Defendant was a Mexican citizen in the country illegally who had been convicted of an aggravated felony and was thus removable. The notice alleged that his conviction qualified as an aggravated felony because it was a crime of violence under the INA. Defendant was once again arrested and charged with illegal reentry. Defendant moved to dismiss the indictment, arguing that his section 2903.13(A) assault conviction was not an aggravated felony. The district court denied Defendant’s motion.   The Ninth Circuit affirmed. The panel disagreed with Defendant’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Defendant also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. The panel explained that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel, therefore, concluded that section 2903.13(a) is a crime of violence under Section 16(a), it thus qualifies as an aggravated felony under Section 1101(a)(43)(F), and Defendant’s removal order was not fundamentally unfair. View "USA V. JACINTO ALVAREZ" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. Although the Board entertained the government’s challenge to a portion of the immigration judge’s decision in Petitioner’s case, it declined to consider Petitioner’s challenges to that decision because Petitioner had not filed a cross-appeal. Petitioner argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the immigration judge’s alternative order on the merits of his claims.The Ninth Circuit affirmed. The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross-appeals. Rather, the Board has authority to prescribe its own rules of procedure so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel concluded that it lacked jurisdiction to consider Petitioner’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board. View "JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Guatemala, petitioned for review of the Board of Immigration Appeals (“BIA”) streamlined affirmance of the immigration judge’s (“IJ”) denial of her claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). Petitioner was verbally and physically harassed and received death threats because her community in Guatemala perceived her to be a lesbian, including because she wore men’s clothing to work. Petitioner challenged the IJ’s findings that: (1) this treatment did not amount to persecution, (2) the relevant social group for asylum purposes is based on “manner of dress,” and (3) no persecution was committed by the Guatemalan government or by forces that the government was unwilling or unable to control.   The Ninth Circuit granted Petitioner’s petition for review. The panel held that (1) substantial evidence did not support the agency’s determination that the treatment Petitioner suffered did not amount to persecution, (2) the agency erred in characterizing Petitioner’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution.   The panel explained that in concluding that this treatment amounted simply to threats, the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism. Further, the panel wrote that the record suggested that the agency failed to consider all of the evidence. View "REBECA CRISTOBAL ANTONIO V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner asserts that he suffered past persecution and has a well-founded fear of future persecution due to his familial association with his brother, who is a member of the Shiromani Akali Dal Party (Mann Party), and his own affiliation with that Party. The Mann Party advocates for the creation of a sovereign state for Sikh people and is opposed by the Congress Party. The immigration judge (IJ) and the BIA concluded that Petitioner did not qualify for asylum or withholding of removal because the injuries and threats that Petitioner had suffered at the hands of Congress Party members were not sufficiently serious.   The Ninth Circuit filed an order (1) amending the opinion filed on September 14, 2022; (2) denying the Respondent’s petition for panel rehearing; and (3) indicating that no further petitions for rehearing or for rehearing en banc would be entertained. In the amended opinion, the panel granted in part and denied in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, and remanded, holding that substantial evidence did not support the BIA’s determination that the harm Petitioner suffered did not rise to the level of past persecution, but substantial evidence did support the BIA’s determination that the harm did not amount to past torture and that Petitioner failed to show that he would more likely than not face a clear probability of future torture. View "SHAMSHER SINGH V. MERRICK GARLAND" on Justia Law

Defendant, an Iraqi citizen, was convicted of attempting to procure naturalization unlawfully and of presenting a naturalization application with false statements. Both convictions were predicated on Defendant’s answers to two questions on his naturalization application, in which he asserted that he had never given false information to a U.S. Government official and that he had never lied to such an official to gain an immigration benefit.   On appeal, Defendant argued that the Government presented insufficient evidence to establish that any false statements he made during the asylum process were material to his subsequent naturalization application and that his motion for judgment of acquittal on both counts should have been granted.   The Ninth Circuit affirmed Defendant’s conviction for attempting to procure naturalization unlawfully and presenting a naturalization application with false statements. The panel concluded that ample evidence supports the Government’s reliance on the “investigation-based theory” of materiality. The panel concluded that a rational jury could find, beyond a reasonable doubt, that a reasonable immigration judge apprised of the facts about Defendant’s presence in Germany would have found Defendant not to be credible, and would have denied asylum, on the ground that the claimed persecution in 2008 was fabricated and that Defendant thus had not established that he had suffered past persecution. Further, the panel concluded that the Government presented sufficient evidence to permit a rational jury to conclude on this basis that Defendant would have been ineligible for asylum and that his false statements on his later naturalization application were, therefore material to the naturalization decision under an “investigation-based theory.” View "USA V. SEVAN AMINTOBIA" on Justia Law

Petitioner and her daughter were removed in absentia by the Immigration Judge ("IJ"). Petitioner sought relief, citing non-receipt of the hearing notice. The Board of Immigration Appeals affirmed the IJ's decision.The Ninth Circuit reversed the Board of Immigration Appeals' decision to remove Petitioner and her daughter in absentia, finding that the IJ should have determined the credibility of Petitioner's claims of non-receipt of her hearing notice in light of all the circumstantial and corroborating evidence in the record. Under 8 U.S.C. Sec. 1229a(b)(5)(C)(ii), an in absentia order may be rescinded upon a motion to reopen if the alien demonstrates non-receipt of the notice statutorily required for removal hearings. The Ninth Circuit found that there was circumstantial evidence supporting Petitioner's claim that she did not receive the hearing notice. View "IDANIA PEREZ-PORTILLO, ET AL V. MERRICK GARLAND" on Justia Law

U.S. Immigration and Customs Enforcement contracts with CoreCivic to incarcerate detained immigrants in 24 facilities across 11 states. Plaintiffs, detained solely due to their immigration status and neither charged with, nor convicted of, any crime, alleged that the overseers of their private detention facilities forced them to perform labor against their will and without adequate compensation in violation of the Victims of Trafficking and Violence Protection Act of 2000, the California Trafficking Victims Protection Act (“California TVPA”), various provisions of the California Labor Code, and other state laws.   The Ninth Circuit filed (1) an order denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc; and (2) an opinion (a) amending and superceding the panel’s original opinion and (b) affirming the district court’s order certifying three classes. The panel held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The panel held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a classwide policy of forced labor to establish commonality. The panel agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage. Further, the panel held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a classwide policy of forced labor and that common questions predominated over individual ones. View "SYLVESTER OWINO, ET AL V. CORECIVIC, INC." on Justia Law