Ninth Circuit Panel Berates Court's Stay Procedures

A three-panel judge of the Ninth Circuit has written a scathing criticism of the court’s internal policy of often delaying the assignment of an opposed motion for a stay of removal until the briefing on the merits of the case is complete.

“Here, the extended stay that Petitioners have already obtained flagrantly violates these principles. Once the stay motion in this case was fully briefed in February 2025, “the court [was] equipped to rule,” and “its obligation to apply the Nken factors [was] triggered.” Id. But rather than present Petitioners’ stay motion to the next available motions panel for decision, the Clerk’s Office (consistent with our general internal practices) held the motion until it could be presented to a merits panel together with the fully completed merits briefing. As a result, by the time that the stay motion was presented to us for decision, the ostensible “administrative stay ha[d] effectively become a stay pending appeal,” but without any consideration of the Nken factors. Id. at 800. Indeed, the 10-month stay that Petitioners obtained with their barebones motion was accomplished without any involvement of an Article III judge.

It is manifestly unlawful to allow a temporary administrative stay to be continued for such an undue length of time after an opposed stay motion has been fully briefed, much less to do so without any case-specific judicial involvement. See Nken, 556 U.S. at 433–34 (holding that granting an opposed stay motion requires application of the traditional stay factors in “an exercise of judicial discretion” (emphasis added)); Doe #1, 944 F.3d at 1223 (holding that a temporary administrative stay “is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits” (emphasis added)); cf. United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (noting that the settled principle that substantive judicial functions “cannot be delegated to nonjudicial officers for resolution” does not “prohibit courts from using nonjudicial officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility”). Moreover, the practice of generally holding stay motions until they can be presented to the merits panel together with the completed merits briefing squarely violates Nken’s instruction that courts may not “reflexively hold[] a final order in abeyance pending review.” 556 U.S. at 427. Under these principles, once the opposed stay motion in this case was fully briefed, it should have been presented by the Clerk’s Office to the next available motions panel. And, going forward, that is the practice that must be followed in disposing of fully briefed opposed stay motions.”

The panel decision in Rojas-Espinoza v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/24/24-7536.pdf

The panel agreed to stay its decision pending a vote on whether to rehear this case en banc and consideration of supplemental briefing from the parties:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/10/24-7536.pdf

Ninth Circuit Permits Adverse Credibility Determination based on Marriage Fraud

The Ninth Circuit has allowed an Immigration Judge to rely on an asylum applicant’s past marriage fraud to find his testimony regarding his asylum claim to be not credible.

The full text of Ani v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/16/24-2339.pdf

Ninth Circuit Remands CAT Claim for Mexican National, Declines to Apply Fugitive Disentitlement Doctrine

The Ninth Circuit has remanded an application for protection under the Convention Against Torture, citing the “extreme violence against individuals on the basis of perceived gang affiliation, deportee status, indigenous heritage, mental illness, and substance abuse. Petitioner has all of these characteristics, each of which would independently place him at risk of torture if he were removed to Mexico.” In addition, the Court declined to dismiss the petition for review under the fugitive disentitlement doctrine, citing the government’s delay of over two years from the petitioner’s missed appointment with ICE to the filing of the motion to dismiss and the government’s own evidence that the petitioner was likely in criminal custody, and thus, his whereabouts were likely known to the parties and the Court.

The full text of Uc Encarcion v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/30/22-1601.pdf

Ninth Circuit Imposes Additional Notice Requirements on the Government in Removal Proceedings

The Ninth Circuit has determined that when the government becomes aware that notice of an upcoming removal hearing has been ineffective (i.e., notice has been returned), it must take additional steps, when practicable, to provide notice to the non-citizen. In this case, the Court found that personal service of the Order to Show Cause - which did not contain the date and time of the first immigration court hearing - was not sufficient on its own. Furthermore, even if a non-citizen has failed to update his or her address with the immigration court, they have not forfeited their constitutional right to notice.

The Court also suggested certain practicable steps that the government could take when a notice of hearing is returned as undeliverable. “One alternative is to consider whether the address in the A-file matched the address to which the Government sent the notice of hearing by certified mail. The record indicates that, when the approval of Rivera-Valdes’s employment authorization application was sent to the Cleveland address that included ’Ave.,’ he showed up to retrieve his authorization papers. It was only after subsequent mailings were sent without the word ‘Ave.’ in the Cleveland address that the OSC and notice of hearing were returned as ‘not deliverable as addressed’ and ‘unclaimed.’ The district court should consider if any discrepancy in the addresses was a basis for the unsuccessful mailings, and if so, whether the Government could have taken additional steps to correct it.

The dissent concludes that remand is unnecessary because Rivera-Valdes ‘confirmed’ or ‘corroborated’ that the address listed on the OSC—which omitted the word ‘Ave.’—was his current address. But the dissent misreads what the OSC actually states. The OSC did not prompt Rivera-Valdes to confirm the accuracy of the OSC. Rather, the OSC’s signature line prompted Rivera-Valdes’s ‘acknowledgment/receipt of this form.’ This stands in contrast, for example, to the signature line in Rivera-Valdes’s application for employment authorization, which required that the signer ‘certify under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct.”’ In that document, Rivera-Valdes listed his N. Cleveland address with the word ‘Ave.’”

“Another alternative for the district court to consider may be whether sending the notice of hearing by first-class mail was a feasible option. In Yi Tu, we observed that first-class mail may be a reasonably calculated alternative because it can ‘be examined at the end of the day, [whereas certified mail] can only be retrieved from the post office for a specified period of time.’”

The full text of U.S. v. Rivera-Valdes can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/18/21-30177.pdf

Ninth Circuit Suggests that Non-Citizen Challenge Denial of U Adjustment of Status in Future Removal Proceedings

The Ninth Circuit has determined that a District Court lacks jurisdiction over a challenge to USCIS’s authority to require U visa holders to submit medical exams with their adjustment of status applications under INA 245(m). The Court recognized that generally, USCIS has exclusive jurisdiction over 245(m) adjustment applications. Nonetheless, the Court suggested that “Cabello will be able to argue in any future removal proceedings before an IJ or later petition for review in a court of appeals that some adjudicator—the IJ, BIA, the court of appeals, or any or all of them—must be able to review her denial of § 1255(m) relief as a matter of due process.”

The full text of Cabello Garcia v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/22/23-35267.pdf

Ninth Circuit Finds that Conviction for Shooting at Inhabited Dwelling is CIMT

The Ninth Circuit has determined that a California conviction for shooting an inhabited dwelling is a crime involving moral turpitude. “California Penal Code section 246 requires an intentional shooting of a firearm, that is, the use of a deadly weapon, in circumstances that necessarily pose a significant risk of bodily harm to another. We hold that the BIA correctly concluded that section 246 categorically qualifies as a crime involving moral turpitude.”

In addition, the Court determined that whether evidence is “new” for the purposes of a motion to reopen is a legal question over which the federals court have jurisdiction to review. The Court similarly concluded that it had jurisdiction to review whether an applicant has established a prima facie case for relief.

The decision also contained a detailed analysis regarding the petitioner’s competency and eligibility for protection under the Convention Against Torture.

The full text of Lemus-Escobar v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/16/18-73423.pdf

An amended decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/10/18-73423.pdf

Ninth Circuit Addresses Scope of IAC Claims

The Ninth Circuit has determined that the Board of Immigration Appeals’ power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal had been entered includes the power to review deficient performance that occurs before a different tribunal, including the Ninth Circuit. “Given this longstanding precedent, the Board acted arbitrarily when it denied Li’s motion to reopen on the sole basis that Li’s claimed ineffective assistance occurred before a ‘different tribunal.’”

“If the Board believed it had no discretion to review ineffective assistance claims based on conduct before a different tribunal, then the agency abused its discretion. If the Board instead believed that Li should have sought relief in the Ninth Circuit after the petition had been dismissed, it does not explain how that would comport with its own procedural requirements under Matter of Lozada, which insists upon such issues being raised before the Board in the first instance. Finally, if the Board harbored concerns grounded in the separation-of-powers doctrine—a topic it did not raise in its decision—it does not explain how those concerns manifest in Li’s case and not any of the cases that came before it. The dissent accuses us of requiring the Board to invoke the magic words ‘separation-of-powers’ in its decision. But it is not merely the Board’s failure to mention the doctrine; it is its failure to provide a reasoned explanation why an attorney’s failure to file an opening brief before the Ninth Circuit should implicate separation-of-powers concerns when the exact same thing happened in Lata and we explained that the petitioner should have first pursued relief with the Board.”

The full text of Li v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/10/18-70278.pdf

Ninth Circuit Acknowledges that Inability to Practice Religion is a Harm Relevant to Persecution Analysis

The Ninth Circuit has determined that when threats and harm to an asylum applicant and her family restrict the applicant’s ability to practice her religion, that restriction is a form of harm that must be considered when determining if she has experienced past persecution.

“De Souza Silva experienced a death threat explicitly linked to animus against Candomblé practitioners. The masked man specifically invoked the murder of Simone’s father, who had been murdered because of his religious practice. De Souza Silva additionally experienced other harm, including escalating vandalism paired with menacing and pejorative messages.”

“Ultimately, in evaluating whether the cumulative effect of the harms and abuses De Souza Silva experienced rose to the level of persecution, the agency was required to consider the effect of her experiences on her ability to practice her religion freely. The agency failed to do so, never mentioning her religious practice as a consideration nor citing any of the related evidence in the record about the issue.”

The full text of De Souza Silva v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/11/24-834.pdf

Ninth Circuit Applies Substantial Evidence Standard to Non-LPR Cancellation Hardship Analysis

The Ninth Circuit has determined that it will apply substantial evidence review to the agency’s determination that an applicant has not demonstrated exceptional and extremely unusual hardship to a qualifying relative for the purpose of an application for cancellation of removal for non-lawful permanent residents.

The full text of Gonzalez-Juarez v. Bondi can be found here:
Https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/20/21-927.pdf

Ninth Circuit Upholds Adverse Credibility Determination Based on Near Verbatim Repetition as Well as Factual Similarities to Other Asylum Claims

The Ninth Circuit has determined that the agency may permissibly render an adverse credibility determination when an asylum claim presents not only similar factual circumstances to multiple other cases, but nearly identifical word choice and narrative structure. “The upshot is that the linguistic, narrative, and factual similarities between Singh’s declaration and the declarations presented by DHS go beyond mere coincidence and cannot be explained away by the fact that these petitioners lived in similar situations in India. At a minimum, the IJ could so reasonably conclude. The narratives are nearly identical and, in some instances, are delivered with word-for-word repetition.”

The full text of Singh v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/03/17/23-1247.pdf

Ninth Circuit Holds that Washington Conviction for First-Degree Child Molestation is Abusive Sexual Conduct Involving a Minor

The Ninth Circuit has determined that a Washington conviction for first-degree child molestation is a categorical match to the definition of abusive sexual conduct involving a minor for federal sentencing purposes because it involves sexual touching with minors under twelve years old. Given the alignment between the definition of abusive sexual conduct for sentencing purposes and a sexual abuse of a minor aggravated felony, this case will have impact on immigration proceedings as well.

The full text of U.S. v. Thompson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/10/23-2288.pdf

Ninth Circuit Permits Listing of A Numbers to Identify Petitioners in PFR

The Ninth Circuit has determined that a petitioner’s A number is sufficient identification in a petition for review to comply with the federal rules of appellate procedure. “These ‘A’ numbers are not generic terms referencing unknown and potentially unidentifiable individuals, such as the procedural titles listed in the text of Rule 15, but rather correspond to specific persons who have raised claims before the agency for adjudication and whose names are readily available in the government’s own records, including BIA orders which must be submitted to this court with the petition for review under Ninth Circuit Rule 15-4. “

The full text of Perez-Perez v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/10/23-4240.pdf

Ninth Circuit Finds that Roma are a Disfavored Group in Romania

The Ninth Circuit has determined that the Roma are a disfavored ethnic group in Romania for asylum and withholding of removal purposes. The Court also reaffirmed that shootings, attempted kidnappings, and attempted rapes are all forms of physical harm that almost always rise to the level of persecution.

The full text of Lapadat v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/12/23-1745.pdf

The court issued an amended opinion that can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/31/23-1745.pdf

Ninth Circuit Finds Oregon Conviction for First Degree Criminal Mistreatment is CIMT and Oregon Conviction for Unlawful Possession of Weapon is Firearms Offense

The Ninth Circuit has determined that an Oregon conviction for first degree criminal mistreatment is a crime involving moral turpitude because it requires knowingly depriving a dependent of basic care.

The Court also found that an Oregon conviction for unlawful possession of a weapon is overbroad as compared to a deportable firearms offense because the statute criminalizes possession of antique firearms. However, the statute is divisible between various subsections, some of which do not involve antique firearms. These subsections match the definition of a deportabel firearms offense.

The Court also overruled its prior precedent that a grant of SIJS constitutes an admission for cancellation of removal purposes.

The full text of Murillo-Chavez v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/13/21-1422.pdf

Ninth Circuit Finds that NV Conviction for Felony Battery Resulting in Substantial Bodily Harm is Crime of Violence

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

Ninth Circuit Finds that CA Witness Intimidation is an Aggravated Felony

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

Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

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

Ninth Circuit Addresses BIA's Reliance on Prior Adverse Credibility Determination to Deny Motion to Reopen

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

Ninth Circuit Finds Jurisdiction to Review Extraordinary Circumstances for VAWA Motion to Reopen

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

An amended decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/19/23-1887.pdf

Ninth Circuit Finds that Montana Conviction for Partner or Family Member Assault is not Misdemeanor Crime of Domestic Violence under Federal Criminal Law

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