Justia Immigration Law Opinion Summaries

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In 2015, Petitioner, a native and citizen of Venezuela was indicted for aiding and abetting and making false, fictitious, or fraudulent claims to the IRS alongside her co-defendant husband in violation of 18 U.S.C. Sec. 287. She was ordered to pay restitution jointly and severally with her husband in the amount of $45,365 and was sentenced to 48 months in prison.Following these convictions, Petitioner was placed in removal proceedings for the commission of a “crime involving moral turpitude” and seeking to procure a visa by fraud or misrepresentation. The Immigration Judge (“IJ”) sustained both charges of removability. In turn, Petitioner sought withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture.The IJ denied the application, concluding that Hammerschmidt’s testimony regarding alleged persecution and torture was not credible. Even assuming her testimony was credible, the IJ held that her withholding claim would nevertheless fail because her conviction under Sec. 287 constituted an aggravated felony and a particularly serious crime, rendering her ineligible for both asylum and withholding of removal. The IJ also denied CAT relief. The BIA adopted and affirmed.The Fifth Circuit denied in part and dismissed in part Petitioner's petition for withholding of removal under the INA and protection under the CAT. The court noted a conviction need not meet the five-year sentence threshold to constitute a “particularly serious crime” for withholding purposes. The court also noted that the restitution order, which Petitioner conceded held her “joint and severally liable,” indicated that her conduct contributed to a total loss of more than $45,000. View "Hammerschmidt v. Garland" on Justia Law

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Petitioner, a native and citizen of Guatemala, applied for cancellation of removal pursuant to 8 U.S.C. Section 1229b(b)(1). He has three children, who were 19, 10, and 5 years old at the time of the merits hearing in April 2017. The immigration judge denied Petitioner’s application. The Board of Immigration Appeals (“BIA”) dismissed his appeal, and Petitioner timely petitioned for review of the BIA’s decision.   The Eighth Circuit affirmed. The court explained that Petitioner failed to provide authority allowing the court to direct the BIA to implement a new analytical standard for exceptional and extremely unusual hardship. To the extent Petitioner claims the BIA misapplied the applicable hardship standard—a question of law which the court may review—his claim is without merit. Further, the court wrote that the BIA’s discretionary conclusion that the hardship to the children is not substantially beyond that typically caused by an alien’s removal “is precisely the discretionary determination that Congress shielded from our review.” View "Hector Gonzalez-Rivas v. Merrick B. Garland" on Justia Law

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Gonzalez-Aquino, a citizen of the Dominican Republic and a lawful U.S. permanent resident, has been convicted of burglary, escape, theft, trespass, and more. His most recent convictions, theft and conspiracy to commit theft, were aggravated felonies. Gonzalez-Aquino sought to defer his removal under the Convention Against Torture, claiming that if he returned to the Dominican Republic, he would face threats. As a teenager, he got into a gambling dispute with a man who belonged to a well-known criminal gang. The man threatened to kill him, so he moved to the U.S.. In the U.S., Gonzalez-Aquino was arrested for murdering another Dominican. The charges were dropped, but the victim’s family threatened to kill him if he returned to the Dominican Republic.The IJ rejected his arguments, finding that he had not shown that he would likely be tortured or that the Dominican government would acquiesce to any torture. The proceedings were not ideal: the judge used legal jargon without explanations, said little about what evidence was needed, and asked few questions. The videoconference was malfunctioning; the judge could see Gonzalez-Aquino but he could not see her. The BIA dismissed an appeal. The Third Circuit denied a petition for review. Because he is removable for committing an aggravated felony, the court lacked jurisdiction to review the Board’s factual or discretionary decisions, 8 U.S.C. 1252(a)(2)(C). Gonzalez-Aquino did not allege violation of any fundamental rights and was not prejudiced by procedural errors. View "Gonzalez Aquino v. Attorney General United States" on Justia Law

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Petitioner, a citizen of El Salvador, was detained pursuant to 8 U.S.C. Sec. 1226(a), which authorizes the federal government to detain aliens pending the completion of their removal proceedings. Petitioner requested and received a bond hearing before an Immigration Judge to determine if his detention was justified. The Immigration Judge concluded that Petitioner, who had an extensive criminal history, presented a danger to the community due to his gang affiliation. Based on this, the Immigration Judge denied release on bond. Petitioner claims that his continued detention was unconstitutional because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond hearing at which the government bears the burden of proof by clear and convincing evidence.The district court ruled that Petitioner was constitutionally entitled to another bond hearing before the Immigration Judge.The Ninth Circuit held that the Due Process Clause does not require more than Sec. 1226(a) provides. View "AROLDO RODRIGUEZ DIAZ V. MERRICK GARLAND, ET AL" on Justia Law

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The Department of Homeland Security commenced removal proceedings after Petitioner, a citizen of Cameroon, entered the United States on November 30, 2019, in Laredo, Texas. Petitioner conceded removability, but sought asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). Following a hearing, the Immigration Judge (IJ) denied her application, finding that she failed to establish past persecution or a well-founded fear of future persecution.The Eighth Circuit denied Petitioner's petition for review, electing not to reverse the BIA’s ruling that Petitioner's credible but weak testimony supporting her asylum claim was not adequately corroborated. Petitioner failed to present corroborating medical records and her testimony, while credible, appeared memorized. Any questions outside the scope of her seemingly-prepared testimony caused Petitioner to stumble, giving the impression that there was more to the story. View "Carine Adongafac v. Merrick B. Garland" on Justia Law

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Petitioner, a native and citizen of Honduras, sought review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Specifically, Petitioner claimed that her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police.Petioner's CAT petitioner alleged that she had been kidnapped while local police were present. These allegations required the BIA to inquire, whether it was more likely than not (1) that the gang will intentionally inflict severe pain or suffering to intimidate or coerce her, including meeting all the harm requirements for torture under section 1208.18(a); and (2) that local police acting under color of law will either (i) themselves participate in those likely gang actions or (ii) acquiesce in those likely gang actions.However, neither of these inquiries was made below. Thus, the Second Circuit reversed in part, remanding to the BIA for further proceedings. View "Garcia-Aranda v. Garland" on Justia Law

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Defendant was indicted for illegally reentering the United States, a violation of 8 U.S.C. Section 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months imprisonment and three years supervised release. On appeal, Defendant argues that Section 1326 violates the Fifth Amendment’s equal protection principles. As for his sentence, he asserts that the district court (1) failed to consider sentencing disparities, (2) improperly considered the timing of an appeal in sentencing him to three years of supervised release, and (3) failed to consider the Sentencing Guidelines’ policy on supervised release for deportable defendants.   The Fifth Circuit agreed that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release. Accordingly, the court vacated that part of Defendant’s sentence and remanded for reconsideration of the supervised-release term. The court otherwise affirmed Defendant’s conviction and sentence. The court found that the district court imposed three years of supervised release solely out of fear that a lower sentence would moot an appeal. The timing of an appeal is not a factor that courts are tasked with considering in imposing supervised release. Such a consideration is also irrelevant because Defendant could appeal his conviction even after his sentence ends. The district court abused its discretion by basing the term of supervised release on the irrelevant timing for an appeal. View "USA v. Barcenas-Rumualdo" on Justia Law

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Yousif, a citizen of Iraq, came to the U.S. in 2000 as a refugee. He became a lawful permanent resident. In 2010, he was convicted of conspiracy to distribute 100 kilograms or more of marijuana. In removal proceedings, Yousif applied for withholding of removal under the Convention Against Torture and under the Immigration and Nationality Act, or deferral of removal. He argued that if he returned to Iraq, he would be persecuted because of his religion. Yousif did not appeal a 2011 removal order. In 2017, he moved to reopen his application based on changed conditions in Iraq, alleging he would face torture because of “his Christian religion, long residence in the U.S. [and] . . . his ethnicity.” At Yousif’s hearing, Yousif testified, stating that he feared “all Muslims.” The IJ found the government’s evidence “more persuasive,” and rejected Yousif’s claims.The BIA affirmed, finding that the IJ correctly applied the aggregate approach in assessing the probability of torture and that the evidence did not establish that Yousif would “be singled out for torture.” The Sixth Circuit denied a petition for review. Substantial evidence supports the BIA’s denial of his application, and the BIA acted within its discretion in denying Yousif’s motion to remand. View "Yousif v. Garland" on Justia Law

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The Department of Homeland Security (DHS) deported Petitioner, a permanent resident of the United States since he was six years old, because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with the police an aggravated felony. In 2018, the Supreme Court ruled that the type of offense Petitioner committed no longer qualified as an aggravated felony. Learning of that decision in 2019, Petitioner moved the BIA to reconsider its original removal order and to equitably toll the usual thirty-day deadline for filing such motions in view of the legal change. The BIA declined. It did not dispute that Petitioner is entitled to be readmitted into the country, but it rejected Petitioner’s request to toll the limitations period, believing him insufficiently diligent in discovering his rights.   The Fourth Circuit vacated the Board’s diligence determination, remanding to the BIA to consider the second prong of the equitable-tolling inquiry—whether the change in the law constituted an extraordinary circumstance—as well as the merits of Petitioner’s claim. The court explained that because the BIA determined Petitioner not diligent, it did not consider whether Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable tolling. In previous cases, the BIA has held that Supreme Court decisions that significantly change the legal landscape meet this bar. Thus, the court remanded to the BIA to decide whether the legal changes in Johnson and Dimaya constitute extraordinary circumstances and whether, on the whole, Petitioner’s request to reconsider merits a favorable exercise of discretion. View "Damien Williams v. Merrick Garland" on Justia Law

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Petitioner moved for the BIA to reopen his cancellation of removal proceedings so he could present new evidence of alleged “exceptional and extremely unusual hardship” to his United States citizen children. The BIA denied his motion, finding he failed to demonstrate prima facie eligibility for relief as to the good moral character and hardship requirements.   The Eighth Circuit denied Petitioner’s petition for review. The court explained that the material question on the issue of hardship in a motion to reopen is whether the new evidence, if proven, would show an “exceptional and extremely unusual hardship” to Petitioner’s United States citizen children. Further, the court explained that a petitioner must demonstrate prima facie eligibility for relief as to all required elements to have their file reopened. Here, the court found no abuse of the BIA’s substantial discretion in the alternative ruling that Petitioner failed to rebut the Castillo-Perez presumption. The final DUI occurred approximately one month after an initial and informal exercise of discretion in Petitioner’s favor: the administrative closure his file in 2016. To overcome this presumption, a petitioner must show “substantial relevant and credible contrary evidence” to demonstrate “that the multiple convictions were an aberration.” Driving under the influence one month after the suspension of his initial removal proceedings does not suggest the unusual showing described in Castillo-Perez. View "Jose Llanas-Trejo v. Merrick B. Garland" on Justia Law