Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
There was substantial evidence for agency's determination that petitioner could safely relocate to a politically less dangerous area within home country, and no abuse of discretion in holding that this determination precluded a finding of well-founded fear of future persecution. Determination of the possibility of safe relocation precludes a finding of an objectively reasonable fear of future harm.
Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
Where the proposed generic federal definition of the crime includes a mens rea element of desire or gratification, a state statute requiring the intent to hire someone for those purposes has sufficiently similar scienter. State decision that an incidental harassing solicitation of passerby demonstrated sufficient intent for a parallel statute did not make the state statute's reach broader than that of the federal crime.
Denial of the temporary restraining order was appealable, given notice to parties, the fact that it was tantamount to the denial of a preliminary injunction, and the fact that it essentially decided the merits of the action.
Where the statute governing adjudication of status refers to availability of visas at the time of filing, but is silent as to availability at the time of adjudication, administrative rule requiring availability at adjudication is a reasonable construction of the statute.
Under modified categorical review, the state drug statute is a valid immigration predicate. The list of drug classes doesn't establish several means of committing a single crime in itself, but is rather a list of elements establishing distinct violations--this is due to the varying lengths of sentence, caselaw referencing the need to prove specific substances within a single class, and the fact that the specific illicit substance is named within the jury instructions.
The overbreadth of the state statute relative to the federal crime doesn't import a similar overbreadth into the mens rea; a belief that the substance was proscribed under state law would suffice for a state conviction that could pass Immigration muster, as the state mens rea and federal mens rea requirements are identical.
State caselaw incorporating solicitation into aiding and abetting, and under which, by statute, the conduct is culpable as the conduct of a principal under the specific state statute doesn't make the specific state statute broader than the federal version, since solicitation alone would be an inchoate offense distinct from an accessory's conviction as a principal under the specific statute, which would require a completed offense--not mere solicitation.
Given the terms of the current statute, harboring an alien doesn't require specific intent; rather, it proscribes conduct that substantially facilitates remaining and avoiding detection, either knowingly or in reckless disregard of the risk. Circuit precedent on the term doesn't bind, as the changes to the underlying statute have been significant. Error would be harmless anyway, as the aliens being in plain view wouldn't exculpate. Instructions didn't invade 6A territory of the jury.
Agency's ruling was arbitrary and capricious in that it didn't explain how petitioner's conduct would have been illegal in the United States, given that there is a genuine and reasonable dispute as to the context of the events, and also as to the affirmative defense of duress.
(Although petitioner had challenged for lack of substantial evidence, vacated and remanded to agency as arbitrary and capricious.)
Given the plain language of the proscription, and the fact that the wider prohibition encompasses actual (as opposed to hypothetical) substances, the state crime isn't a valid immigration predicate, as the divergence is significant enough to constitute, as a matter of law, a reasonable probability of prosecution under the state law for acts that would exceed the reach of the federal law.
Silence of the immigration statute as to whether the citizen whose child is seeking to immigrate needs to be alive at the time of application isn't sufficient to justify deference to the agency's interpretation imposing the requirement.
Given the identical punishments, the structure of the statute tends to suggest that the two proscribed acts are two means of committing the same offense, rather than two distinct offenses, and no caselaw or charging documents in the present case indicate a certainty to the contrary. Intervening higher authority allows the present panel to overrule a circuit decision to the contrary that was based entirely on the statute's phasing in the disjunctive. As the offense is more broad than the generic crime, the law is not a valid immigration predicate aggravated felony.
DISSENT:
Under the state's law, principals and accessories after the fact are mutually exclusive roles that inherently require different elements of proof. Charging document establishes that petitioner was convicted as a principal.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf
Evn absent evidence of their credibility, an Interpol Red Notice and a foreign arrest warrant for a serious nonpolitical crime can, in the light of concessions made by the petitioner, constitute serious reason to believe that the petitioner committed the crimes referenced, and therefore a basis for shifting the presumption when applying for cancellation of immigration removal.
Even absent a formal adverse ccredibility decision, the suspicious timing of the petitioner's departure from El Salvador, and the IJ's determination of lack of specificity is sufficient evidence to establish that the petitioner did not prove by a preponderance that there wasn't serious reason to believe that he had committed the crimes.
Withholding of removal under the torture convention also sufficiently supported, given the unlikeliness of the foreign government's consent or acquiescence in any future torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf
As there was only one session of physical beatings, the single detention was only 18-19 hours, the threats were relatively few, and the instruction by the local police to his customers that they shouldn't repay their loans was offset by the fact that the petitioner wasn't killed and was free to seek other employment, there was substantial evidence for the Bureau's determination that past persecution was not proved.
Similarly, the Bureau's determination of insufficient evidence to show a reasonable fear of future persecution is supported by the decades since petitioner left the country, his family's continued residence there, and petitioner's past international travel after which he was able safely to return to his home country.
The determination that past harms didn't rise to the level of persecution necessarily entails the premise that the past harms didn't amount to torture.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-70238.pdf
Petitioner's omission of the manner in which he discovered that he was on a blacklist was not a minor or extraneous detail, and the nationalization of the persecution implied by the blacklist was central to the claim; the late disclosure cannot be excused by saying that the petitioner and witnesses considered it a minor detail.
Agency was under no obligation to continue the proceedings to discover corroborating evidence. Adverse credibility determination based on the belief that the detail was a fabrication is well supported by the record.
Insufficient evidence of country-wide persecution of people of petitioner's faith.
Since the plaintiff is seeking to relitigate a question decided adversely in a removal hearing, the question arises from the removal action or proceeding; Article III review is therefore limited by statute to narrow areas, including timely challenge to final order of removal.
Statutory judicial review mechanism for denied naturalization applications implicitly forecloses parallel district court jurisdiction due to the fairly discernible intent of the comprehensive and interrelated statutory scheme, the fact that the exclusive remedy would not foreclose meaningful review, and the fact that the requested relief -- a change in agency policy that would be dispositive for the plaintiff's case -- is not wholly collteral to the statute's provisions.
Since the due process rights of aliens who have not effected an entry into the US are coextensive with the statutory scheme and mechanisms for redress within that scheme devised by Congress, when Congress excludes that form of redress, Article III courts have no jurisdiction to hear even a colorable constitutional claim of deprivation of the due process accorded by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf
Alien facing deportation was not sufficiently put on notice that his past claim of having been born in the US was to be the main issue in the final heaing on the merits, on a motion to sua sponte reconsider the earlier determination of time, place and manner into the country. When a person is charged with a crime or charged with allegations waranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf
Sufficient evidence for agency's determination that expert affidavit describing changed country conditions did not adequately set out a basis for the threat to a child of an ethically and religiously diverse family -- the affidavit seperately described the threat faced by each group, but not the threat to the child of such a family.
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560738.pdf
Statute proibits Article III challenges to the removal of a foreign citizen even where that removal happens in advance of statutorily guaranteed motion to reopen the case, since that remedy can be pursued abroad; this is true even where there is a showing of risk to the petitioner from removal.
Habeas jurisdiciton is similarly foreclosed, as petitioner is not seeking relief from executive detention, and as an alien in the process of being removed, has no proceedural rights other than those guaranteed by statute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/21-16062.pdf
Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.
Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.
For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.
DISSENT
Considering the risk factors in the aggregate is consistent with governing law. Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.
Amended opinion, Concurrences and Dissents from Denial of En Banc.
CONCURRING WITH DENIAL OF EN BANC:
Sufficient injury to the organization for standing.
Substance and revision of opinion congruent with usual en banc process.
DISSENT FROM DENIAL OF EN BANC:
Court is not a Platonic Guardian of the Constitution and laws.
The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants. Redirection of resources and diminished client pool are insufficient.
Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it. Panel conflates the right to apply with the right to receive.
DISSENT FROM DENIAL OF EN BANC:
Published motions panel opinions are precedential, and make law of the case.