by
The Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. 1003.1(c) is committed to agency discretion. Petitioner, a Pakistani national, sought review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his claim for ineffective assistance of counsel. The panel dismissed the appeal of the failure to certify petitioner's claim and held that it did not have jurisdiction to review the IJ and BIA's decision not to certify. The panel denied petitioner's due process claim challenging the same lack of certification, holding that abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims. View "Idrees v. Whitaker" on Justia Law

by
The Fifth Circuit affirmed the dismissal of an action brought by the State of Texas, seeking a declaratory judgment under 28 U.S.C. 2201 that SB 4 -- which curbs sanctuary city policies by requiring law enforcement agencies to comply with, honor, and fulfill federal immigration detainer requests -- does not violate the Fourth or Fourteenth Amendments and is not preempted by federal law. Although the district court held that Texas lacked Article III standing to seek declaratory judgment, the court held that the district court lacked federal question jurisdiction under 28 U.S.C. 1331 in light of Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983). In Franchise Tax Board, the Supreme Court held that section 1331's grant of federal question jurisdiction does not encompass suits by the States to declare the validity of their regulation despite possibly conflicting federal law. The court explained that Franchise Tax Board reinforces comity among federal and state courts and mandates that the court dismiss Texas's declaratory relief action. View "Texas v. Travis County" on Justia Law

by
The First Circuit denied Petitioner’s appeal of an order of the Board of Immigration Appeals (BIA) denying her request for deferral of removal under the United Nations Convention Against Torture (CAT), holding holding that the BIA’s factual determinations were supported by reasonable, substantial and probative evidence on the record. Petitioner, a native and citizen of the Dominican Republic, sought deferral of removal under the CAT, basing her claim on domestic abuse that she suffered at the hands of her partner of fifteen years. An immigration judge (IJ) found Petitioner to be credible in describing her abuse and granted deferral of removal. The BIA reversed the IJ’s determination, noting that the IJ applied an incorrect legal standard. The BIA then concluded that Petitioner did not meet her burden of establishing that the government had acquiesced in her harm or would be more likely than not to do so if she were to return. The First Circuit affirmed, holding that the BIA did not err in finding that Petitioner had not established that the government would acquiesce in her harm upon removal. View "Ruiz-Guerrero v. Whitaker" on Justia Law

by
The Eighth Circuit denied a petition for review of the BIA's order denying their claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that even if the IJ committed procedural error by stopping petitioner's counsel from proposing a particular social group, petitioner failed to demonstrate any resulting prejudice. Furthermore, there was no violation of due process where the IJ's conduct in this case did not show a deep-seated favoritism or antagonism that precluded fair judgment. Finally, petitioner's claims regarding humanitarian asylum and ineffective assistance of counsel were raised for the first time in the petition and thus the court lacked jurisdiction over the claims. View "Gutierrez Molina v. Whitaker" on Justia Law

by
The First Circuit denied Petitioner’s petition seeking judicial review of an order of the Board of Immigration Appeals (BIA) dismissing his application for asylum, holding that substantial evidence supported the BIA’s determination that Petitioner was not entitled to asylum. Petitioner premised his asylum application on a claim that he had been persecuted in the past, and feared future persecution, by gang members on account of of his political opinion and/or membership in a particular social group. The immigration judge (IJ) rejected Petitioner’s request for asylum. The BIA upheld the IJ’s findings, determining that Petitioner had failed to establish a nexus between the harm that he described and any statutorily protected ground for asylum status. The First Circuit denied Petitioner’s petition for judicial review, holding that Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009), controlled the outcome of this case, requiring that this Court uphold the BIA’s determination. View "Mendez v. Sessions" on Justia Law

by
Liao, a citizen of China, became a lawful U.S. permanent resident in 2005. In 2015, Liao had a physical altercation with his girlfriend, Yu. A neighbor called the police. Yu told responding officers that she was holding her infant son, J.Y., while Liao struck her, but that J.Y. was not “hit or hurt.” She said, however, that during the fight, J.Y. was placed on the bed and fell to the floor. Officers arrested Liao, charging him with three offenses, including endangering the welfare of a child, Pa. Cons. Stat. 4304(a)(1). Liao was convicted and served 106 days of his prison sentence. An IJ ordered Liao’s removal for committing “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment,” which rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). The Third Circuit granted a petition for review and remanded to the BIA, reasoning that the elements of his conviction do not match the elements of the crime of “child abuse” under federal law, which requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm. The Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not require such a risk. View "Liao v. Attorney General United States" on Justia Law

by
The Fourth Circuit granted a petition for review of the BIA's determination that petitioner was removable under the Immigration and Nationality Act (INA) based on his commission of a crime involving moral turpitude within five years of his admission to the United States. The court explained that it was DHS's burden to affirmatively prove (by clear and convincing evidence) that petitioner last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determined whether his 2012 felony abduction offense fell within the five-year window for removability. The court held that DHS failed to prove that petitioner was admitted in 2008. In this case, the record contained essentially unrebutted evidence showing that petitioner was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise). View "Mauricio-Vasquez v. Whitaker" on Justia Law

by
Veloz-Alonso, a citizen of Mexico, entered the U.S. illegally in the 1990s. He was removed in 1997, 1999, and 2008. In 2018, Veloz-Alonso was discovered again and was indicted for illegal reentry. He pleaded guilty and sought release on bail pending sentencing. Under the Bail Reform Act (BRA), a defendant pleading guilty must be detained unless the court finds by clear and convincing evidence that he is not a flight risk or a danger to the community, 18 U.S.C. 3143(a)(1). The government argued that Veloz-Alonso was subject to an order of removal and an ICE detainer, so that, if released, he would be taken into custody, removed, and unable to attend a sentencing hearing. The court granted the motion subject to electronic monitoring and a property lien on his house. The court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.” The Sixth Circuit reversed. While deportable aliens are not per se ineligible for bail, the district court incorrectly inferred that an alien released on bail is ineligible for ICE detention. Reading the BRA’s permissive use of release to supersede the Immigration and Naturalization Act’s mandatory detention would be incongruent with canons of statutory interpretation. To the extent that ICE may fulfill its statutory mandates without impairing the purpose of the BRA, there is no statutory conflict. View "United States v. Veloz-Alonso" on Justia Law

by
The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reconsider the BIA's previous order denying him a discretionary adjustment of status. The court noted that it had jurisdiction to review the petition for abuse of discretion. The court held that the district court did not abuse its discretion in denying the motion for reconsideration. In this case, the BIA satisfied its obligation to provide a "rational explanation" for its original decision to deny petitioner relief when it denied his motion to reconsider. In this case, the BIA's explanation that it did not violate the clear error standard of review in its weighing of the attempted suicide of one of petitioner's victims qualified as a "rational explanation." View "Camacho v. Whitaker" on Justia Law

by
8 U.S.C. 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep. Subsection (iv) permits a felony prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law. The Ninth Circuit reversed defendant's conviction with respect to the "encourage or induce" counts. The panel affirmed with respect to the mail fraud counts in a memorandum disposition. View "United States v. Sineneng-Smith" on Justia Law