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Viewing entries tagged
Ninth Circuit
The Ninth Circuit has determined that. Nevada conviction for felony battery resulting in substantial bodily harm is a crime of violence.
The full text of Villagomez v. McHenry can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/24/23-3558.pdf
The Ninth Circuit has determined that a California conviction for dissuading a witness by force or fear qualifies an obstruction of justice aggravated felony if accompanied by a sentence of at least one year of incarceration. In so doing, the Court analyzed the conduct criminalized by all three subsections of California Penal Code section 136.1, and found they all match the generic definition of obstruction of justice.
The full text of Godoy-Aguilar v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/13/19-70960.pdf
The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.
“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”
The full text of Chmukh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf
The Ninth Circuit has clarified when the Board of Immigration Appeals may consider a prior adverse credibility determination in its assessment of a motion to reopen.
“In the Ninth Circuit, we recognize that immigration judges (‘IJs’) —but not the Board of Immigration Appeals (‘BIA’)—have the prerogative to answer that question by using the maxim falsus in uno, falsus in omnibus (‘false in one thing, false in everything’). Here, however, the BIA used that prerogative to discredit petitioner Ranjit Singh’s affidavit in support of his motion to reopen because Singh had been found not credible by an IJ in his prior removal proceedings, but as to facts quite unlike those he asserted in his motion to reopen. We hold that such blanket reliance on a prior adverse credibility determination that was based on dissimilar facts contravenes the law of the Ninth Circuit.”
“To synthesize our precedents, an item of evidence already found not credible at an alien’s removal proceedings remains presumptively not credible at the motion-to-reopen stage, unless that item of evidence is effectively rehabilitated by adequate proffer of proof. Likewise, an item of fact unproven at the alien’s removal proceedings remains unproven—and the BIA is free to disregard it—unless the alien effectively corroborates it with new evidence submitted in support of his motion to reopen. When faced with a motion to reopen filed by an alien who was tarnished by an adverse credibility finding from previous removal proceedings, the BIA should first ascertain the scope of that adverse credibility finding. Then, the BIA should discern what facts were tainted by the alien’s discredited testimony and were not established by other evidence. If those facts are again solely evidenced by the alien’s affidavit at the motion-to-reopen stage, then the BIA is free to discredit them, not through the application of the falsus maxim, but because it would defy common sense to require the BIA to accept previously rejected facts when proffered anew based solely on the discredited words of the same witness.”
“If a factual allegation was not presented at all in the alien’s removal proceedings, the BIA must accept it as true unless it is inherently unbelievable. The BIA cannot disregard the alien’s new factual allegations simply because the alien was previously found not credible as to other different factual allegations.“
The full text of Singh v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/24/23-2065.pdf
The Ninth Circuit has determined that it has jurisdiction to review the agency’s determination that a non-citizen had not established extraordinary circumstances that would justify tolling the one-year filing deadline for a motion to reopen based on eligibility for VAWA-related relief.
The full text of Magana Magana v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/26/23-1887.pdf
The Ninth Circuit has determined that a Montana conviction for partner or family member assault is not a misdemeanor crime of domestic violence under federal criminal law. In so doing, the court recognized that the statute criminalizes infliction of emotional abuse, and thus, does not require the use or attempted use of physical force. “Taken together, these authorities show that a person can violate section 45-5-206(1)(a) through any form of communication that inflicts bodily injury in the form of emotional anguish. The infliction of emotional anguish does not require the use of physical force as that term is defined by federal law.”
Although this analysis arose in the criminal context, the immigration law definition of a crime of violence and a crime of domestic violence both require the use or attempted use of physical force. Indeed, the federal courts have acknowledged that the level of force required to meet the definition of a misdemeanor crime of domestic violence is lower than the degree of force required for a crime of violence or a crime of domestic violence. Thus, this analysis should be sufficient to demonstrate that a Montana conviction for partner or family member assault does not trigger the applicable immigration consequences for those offenses.
The full text of USA v. DeFrance can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-2409.pdf
The Ninth Circuit has addressed the asylum claim of a Salvadoran pastor who refused to try to influence his congregation to vote for the FMLN party. “The record also compels us to conclude that Aleman satisfies the second element: the FMLN attacked Aleman because of his political-opinion-based refusal to use his role in the church to influence El Salvadoran politics.”
“The IJ’s determination that the attack on Aleman was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity because the FMLN had lost in local elections five days before the attack is not supported by substantial evidence. The IJ recognized that the torture Aleman suffered was at the hands of FMLN agents. Aleman was attacked five days after the FMLN lost the local election and was asked at gunpoint why he had not accepted the FMLN’s proposal. He asserts that the FMLN still controlled local government in Lourdes Colon immediately after the elections that displaced them, and supports this assertion with unrebutted testimony. In short, the IJ’s finding that no public official was involved in the torture because the FMLN had lost in the local election five days prior lacks support and is contradicted by the record.
The full text of Aleman-Belloso v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/13/23-114.pdf
The Ninth Circuit has declared unlawful the government’s metering policy, which turned asylum seekers back from ports of entry and told them to return at a later time.
“[A] noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under § 1158(a)(1).” “[A] noncitizen stopped by officials at the border is an “applicant for admission” under § 1225(a)(1) because she “arrives in the United States.”
“We hold that when an agency refuses to accept, in any form, a request that it take a required action, it has ‘withheld’ that duty within the meaning of § 706(1).” “We accordingly conclude that the metering policy constituted withholding of agency action, not delay. Under the metering policy, border officials turned away noncitizens without taking any steps to keep track of who was being turned away or otherwise allowing them to open asylum applications. Such a wholesale refusal to carry out a mandatory duty—leaving the responsibility to try again in each noncitizen’s hands—cannot be called delay within the meaning of § 706(1). Nor did the Government’s informal and sporadic coordination with Mexican government officials or nonprofits keeping waitlists transform the metering policy into delay rather than withholding. Organizing by interested third parties did not satisfy the Government’s obligation to inspect asylum seekers. If anything, it indicates that the Government was not fulfilling its obligations.”
“Even minimal steps by the Government, such as implementing and following a waitlist system or initiating the asylum process, would shift the § 706(1) analysis of any challenge from the withholding category into the delay category. But because the Government in this case did not take any such steps, we need not (and cannot) reach the question whether any delay would have been reasonable. Sections 1158 and 1225 require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.“
The Ninth Circuit modified the District Court’s injunction, as it applies to reopening the already denied asylum applications of class members. “The injunction may not require the Government, on its own initiative, to reopen or reconsider (or to move to reopen or reconsider) an asylum officer, IJ, or BIA decision in a removal proceeding. That said, the negative injunctive relief properly prohibits the Government from applying the Asylum Transit Rule to a P.I. class member, even if it permissibly applied the Rule to that person in the past. For instance, if an IJ has denied a P.I. class member’s asylum application on the basis of the Asylum Transit Rule, and the P.I. class member moves for reconsideration by the IJ, the negative injunctive relief prohibits the IJ from relying on the Asylum Transit Rule to deny the motion (although the IJ may deny the motion if there is a different valid ground). Likewise, if that P.I. class member appeals to the BIA, the BIA may not use the Asylum Transit Rule to affirm the IJ’s decision (although the BIA may affirm if there is a different valid ground). And if the BIA reverses the IJ’s decision and remands, the IJ may not apply the Asylum Transit Rule on remand. The same principle applies if a P.I. class member moves to reopen her removal proceeding: The IJ or the BIA may not use the Asylum Transit Rule to deny the motion (although they may deny the motion on a different valid ground).”
The full text of Al Otro Lado v. Mayorkas can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/23/22-55988.pdf
The Ninth Circuit has determined that a minor and his mother experienced past harm rising to the level of persecution. “Javi’s persecution began soon after the men who had murdered his father were released from prison. Members of M-18, a violent street gang, located and identified Javi and began to follow him from school to his home. These men ‘knew everything about’ Javi and called him the ‘faggot son’ of Carlos. They surrounded Javi and threatened to kill him and Candelaria. The threat was not idle; one of the men who threatened Javi’s life was the same person who had been convicted of murdering his father. Candelaria testified credibly that M18 held a ‘grudge’ against Carlos’s family, including Javi, because of the family’s perceived cooperation with the police after Carlos’s murder. And days after M-18’s death threat, armed men broke into Javi and Candelaria’s home ‘looking for someone.’ Our caselaw does not require that a petitioner wait for the threat of violence to materialize before seeking the protections of asylum law.”
“Here, the death threat against Javi was specific, menacing, and credible. The fact that M-18 repeatedly stalked Javi and, days after threatening his life, broke into his home looking for someone while armed, shows that the threat of harm— and possibly death—was imminent.”
“Here, two expert witnesses evaluated Javi and concluded that ‘Javi’s experience of having his life threatened after losing his father has left a profound psychological impact,’ which ‘meets criteria for diagnosis of Post-Traumatic Stress Disorder (PTSD).’ They wrote that, since leaving El Salvador, ‘Javi has experienced regular nightmares and flashbacks involving the men who threatened him’ and otherwise ‘experiences post-trauma symptoms on a regular basis.’ The expert witnesses also documented other “‘intrusive symptoms’ that, taken together, ‘make it hard for [Javi] to focus in school, interrupt his sleep, and make it hard to heal as he is regularly re-experiencing the trauma.; In failing to address uncontradicted evidence that Javi currently experiences PTSD as a result of having his life threatened by the men who murdered his father, the agency ignored the actual harm Javi continues to suffer from his experience in El Salvador.”
The full text of Corpeno-Romero v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/22/23-576.pdf
The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.
“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”
“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”
“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”
The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf
The Ninth Circuit has addressed the facts the agency must consider when determining if a non-citizen missed a hearing in Immigration Court due to exceptional circumstances. Namely, the agency must consider the totality of the circumstances, including whether the non-citizen had a motive to miss the hearing and whether the refusal to reopen would result in unconscionable circumstances. In this case, the minor children would be able to derive citizenship through their naturalized father if they were able to obtain permanent residency, and as such, the Court found that a refusal to reopen would cause unconscionable hardship. In addition, the non-citizens showed diligence following the issuance of their in absentia removal order by driving to court and speaking to the clerk, despite encountering two major car accidents, and promptly filing their motion to reopen. The court also emphasized that non-citizens are not required to make a prima facie showing of eligibility for relief to reopen an in absentia removal order.
The full text of Montejo-Gonzalez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/17/21-304.pdf
The Ninth Circuit has clarified when an immigration judge may use similarities between declarations in unrelated asylum applications to support an adverse credibility determination. The Court found that similar narratives about non-unique events are not sufficient to warrant an adverse credibility finding. “Here, the IJ did not rely on any similarities in language, grammar, or narrative structure between Singh’s affidavit and any of the twenty redacted declarations submitted by the government below. As the government concedes, Singh’s affidavit substantially differs in its use of language, wording, and structure to describe the events in question. Instead, the IJ’s ‘principal concern’ was the alleged factual similarities between Singh’s testimony and that of the RKK Declarations.” “ Relying exclusively on broad factual similarities to trigger credibility suspicion runs counter to the special caution required under Matter of R-K-K- and its express focus on finding striking similarities in the language, grammar and structure of related affidavits.” To rely on factual similarities to render an adverse credibility determination would ignore that “persecution sometimes occurs through widespread or systematic actions by the government or by its acquiescence to third-party harm.”
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/04/23-95.pdf
The Ninth Circuit has determined that Skidmore deference is the appropriate level of deference to apply to the agency’s determination that a conviction constitutes a crime involving moral turpitude. Under Skidmore, the agency’s decision is entitled to “due respect,” but not binding deference. Applying this standard, the Court determined that the agency’s abolition of the distinction between permanent takings and certain less-than-permanent takings in Matter of Diaz-Lizarraga is entitled to deference. With that definition, the Court agreed that a conviction for theft under the Reno Municipal Code is a crime involving moral turpitude. The Court also deferred to the decision in Matter of Nolan, finding that the non existence of a pardon for a municipal offense does not preclude its classification as a conviction. Finally, with respect to prior interpretations of what crimes involving moral turpitude “arise from a single scheme,” the Court noted that it had deferred under Chevron to Matter of Adetiba in Szonyi v. Whitaker. Although Chevron deference has been abolished, the Court found it was still bound by precedent in Szonyi.
The full text of Lopez v Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/11/23-870.pdf
Two years ago, the Ninth Circuit determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf
On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.
An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf
The Ninth Circuit has determined that it does not have jurisdiction to review a negative credibility determination made by the agency with respect to the denial of an I-751 waiver. However, the Court found that the good faith marriage determination is a mixed question of fact and law over which it maintained jurisdiction to review. However, because it is a “primarily factual question,” the court’s review is deferential.
The full text of Zia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/21-1325.pdf
The Ninth Circuit has determined the acquired citizenship statute requires a child born out of wedlock to show that his parent was continuously present (without any departure) in the United States for the required period of time before the child’s birth.
The full text of Meza-Carmona v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/20-73293.pdf
The Ninth Circuit has affirmed than an Immigration Judge has the authority to consider new evidence when he reviews an asylum officer’s negative reasonable fear determination. However, this authority is discretionary, not mandatory.
The full text of Dominguez Ojeda v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/29/23-835.pdf
The Ninth Circuit has determined that a California conviction for assault with a deadly weapon is not a crime of violence because it includes reckless use of force. In so doing, the Court recognized that the Supreme Court’s decision in Borden states that a crime is not a crime of violence if it encompasses a mens rea in which the defendant acts deliberately, but consciously disregards an unjustifiable—though not practically certain— risk.”
The rationale of the decision should be equally applicable to assault with force likely to produce great bodily injury, assault with a firearm, and assault on a police officer or firefighter.
The full text of US v. Gomez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/04/23-435.pdf
The Ninth Circuit has determined that convictions vacated under California Penal Code section 1473.7 are cognizable for immigration purposes. “We need not dust off our dictionary or delve into the legislative history of § 1473.7(a)(1) to see that the statute provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid.’ The plain text does not permit a state court to vacate a conviction to alleviate any immigration consequences arising from the conviction or sentence.”
The court also clarified the due diligence aspect of a motion to reopen based a vacatur. “[T}he proper starting point for measuring diligence in this case is when a reasonable person in Bent’s position would be put on notice of the error underlying his motion to reopen.” The Court then concluded that diligence should be measured from the date of issuance of a Notice to Appear citing the conviction as a basis for removal. “On the one hand, Bent did not pursue vacatur of his conviction for five years after he received the NTA. That may well undermine his ability to demonstrate that he diligently pursued his rights. But on the other hand, there is also good reason to believe that Bent did diligently pursue his rights during this period. After all, due diligence requires a showing of reasonable diligence, not ‘maximum feasible diligence.’ That is, we do not require petitioners to demonstrate ‘an overzealous or extreme pursuit of any and every avenue of relief.’ In assessing a petitioner’s diligence, we ‘consider the petitioner’s overall level of care and caution in light of his or her particular circumstances,’ and we are ‘guided by decisions made in other similar cases . . . with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.’
“Here, after Bent’s NTA put him on notice that he was removable, he fervently defended against removal, first before the IJ and then several times before the BIA and this court. He undertook these efforts after spending nearly a decade in prison and while in immigration detention.6 Indeed, the basis for Bent’s vacatur—§ 1473.7(a)(1)—did not come into effect until 2017, long after his unconstitutional conviction.7 But that was not all. In 2022, while his petition for review of his final order of removal was still pending, Bent pursued and obtained his state court vacatur. Approximately one month later, before his merits petition was even fully briefed before us, he also filed his motion to reopen. He was so diligent that his petitions for review on the merits and on the motion to reopen are both presently before us.” The Court also noted that it would “leave it to the BIA10 to determine on remand whether the vacatur of Bent’s conviction on constitutional grounds under § 1473.7(a)(1) demonstrates that he faced extraordinary circumstances for purposes of equitable tolling.”
The full text of Bent v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/15/22-1910.pdf
An amended decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/22-1910.pdf
The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”
The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf
