Ninth Circuit Backs Orrick Appellate Team in Providing Greater Protections for Noncitizens Seeking Humanitarian Relief


Providing stronger protections for noncitizens seeking humanitarian relief from deportation, an en banc panel of the Ninth Circuit U.S. Court of Appeals today sided with an Orrick appellate team in allowing our client Aracely Marinelarena to seek relief from removal in the immigration system.

In an 8-3 ruling, the Ninth Circuit reversed a BIA decision determining that Marinelarena was ineligible to seek humanitarian relief from deportation as a result of a prior state court conviction. Marinelarena, a citizen of Mexico who has been living in the U.S. since 1992, was convicted in 2006 of a state conspiracy charge that did not specify whether it involved a controlled substance that would disqualify her from avoiding removal under federal law.

The Ninth Circuit held that a prior state conviction does not render a noncitizen ineligible to seek humanitarian relief from deportation unless the record of conviction unambiguously establishes that the noncitizen has been convicted of an offense that is disqualifying under federal law.  Significantly, the Ninth Circuit agreed with our arguments that the court’s own 2012 precedent in Young v. Holder was incompatible with a subsequent U.S. Supreme Court decision that blocked removal based on vague prior state conviction records. That allowed the Ninth Circuit to rule in Marinelarena’s favor, holding that “it was error” for the Board of Immigration Appeals “to deem Marinelarena ineligible to apply for cancellation because her record of conviction is ambiguous.”

Partner Brian Goldman, who led the Orrick team, argued that Young put noncitizens in the impossible position of proving the unprovable, requiring them to use limited state-court records, which might be vague or no longer even exist, to prove details about their past criminal convictions before they even have the chance to plead their case for humanitarian relief from removal.

“Today’s decision is a victory for noncitizens seeking asylum and whose U.S.-citizen family members would be harmed by their deportation, because it gives them a fair chance to make their case,” Brian said of the en banc decision. “It’s also victory for reading our Nation’s immigration laws according to their plain text and the way federal courts have interpreted them for decades: by recognizing that past criminal convictions carry immigration consequences in only narrow, clearly defined circumstances.”

Wiping the Ninth Circuit’s Young decision off the books will make it easier for noncitizens throughout the Ninth Circuit to apply for humanitarian relief such as asylum and cancellation of removal.  Marinelarena will now have the opportunity to persuade the agency that it should grant her humanitarian relief because of the hardship her deportation would cause for her U.S.-citizen children.

In addition to Brian, who argued the case, the Orrick team included partner Robert Loeb, senior counsel Tom Bondy, associate Ben Chagnon, and former associates Aaron Scherzer and Cynthia Stein.  The Orrick team also received important assistance from co-counsel Andrew Knapp, and amicus support from the Stanford Immigrants’ Rights Clinic and the Immigrant Defense Project.