Ninth Circuit Issues Favorable Decision in Petition for Review for Najarro-Portal

The Ninth Circuit Court of Appeals issued their memorandum on December 7, 2015, finding that the Immigration Judge and the Board of Immigration Appeals had erred in failing to grant Mr. Najarro-Portal deferral of removal under the Convention Against Torture and Other Cruel and Unusual Treatment in Case number 13-73958.

The opinion can be found here: Ninth Circuit Memorandum

Oral Arguments at the Ninth Circuit Yesterday

I had oral arguments at the Ninth Circuit Court of Appeals yesterday in an immigration appeal. Narrajo-Portal v. Lynch, Case No. 13-73985. The argument was streamed live over the Internet.

The issue was whether the Immigration Judge properly denied Mr. Portal the protection under the Convention Against Torture based primarily on his adverse credibility determination. The Board of Immigration Appeals initially remanded the case back to the IJ for further consideration after finding that he had committed "clear error" in his initial determination.

The video is here:

Recent Ninth Circuit Decision on Heightened Discretionary Standards

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.