Justia Immigration Law Opinion Summaries

Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm. View "United States v. Gear" on Justia Law

In 1990, Muthana was appointed as the First Secretary of the Permanent Mission of Yemen to the U.N. In 1994, Yemen terminated Muthana and required him to surrender his diplomatic credentials and Muthana's daughter, Hoda, was born in New Jersey. In 1995, the U.N. notified the State Department that Yemen had terminated Muthana from his diplomatic post. Muthana, his wife, and Hoda’s older siblings became naturalized citizens. Muthana applied for Hoda’s U.S. passport, which issued in 2005. In 2014, Hoda traveled to Syria and joined ISIS as a spokeswoman, advocating the killing of Americans. She married two ISIS fighters in succession and had a child, Doe. In 2016, the State Department revoked Hoda’s passport. In 2018, Hoda and Doe fled to a camp in Syria. Secretary of State Pompeo issued a statement that Hoda is not a U.S. citizen. The president tweeted his approval. Muthana alleged these statements effectively revoked his daughter’s and grandson’s U.S. citizenship.The D.C. Circuit affirmed the rejection of his claims. Hoda’s father possessed diplomatic immunity when she was born, rendering her ineligible for citizenship by birth under the Fourteenth Amendment and her son ineligible for 8 U.S.C. 1401(g) citizenship. A child born in the U.S. to a foreign diplomat is not born “subject to the jurisdiction” of the U.S. The court dismissed, for lack of jurisdiction, Muthana’s claim seeking to compel the U.S. to assist in bringing Hoda and Doe to the U.S. The court dismissed, for lack of standing, Muthana's request for a declaratory judgment that if he sent money and supplies to his daughter and grandson, he would not violate the prohibition on providing material support for terrorism, 18 U.S.C. 2339B; Muthana failed to allege a personal injury to his constitutional rights. View "Muthana v. Pompeo" on Justia Law

Meraz-Saucedo, a citizen of Mexico, is married to a Mexican citizen with whom he has young U.S.-citizen children. Meraz-Saucedo first attempted to enter the U.S. in 2003 and was returned to Mexico. He re-entered the U.S. without inspection in 2004. In 2013, he was served in removal proceedings, 8 U.S.C. 1229(a). The notice did not contain a specific date or time for the initial hearing. On December 4, 2013, Meraz-Saucedo received a Notice of Hearing, informing him of the date and time. Meraz-Saucedo appeared before the IJ with counsel, did not object to the defective notice, conceded removability under 8 U.S.C. 1182(a)(6)(A)(i), and informed the IJ that he sought asylum, withholding of removal, and protection under the Convention Against Torture, based on his purported fear of persecution and torture if removed to Mexico. He testified about physical abuse and threats his family received from the Sinaloa Cartel.The IJ denied relief. While his appeal was pending, he sought remand to apply for cancellation of removal under 8 U.S.C. 1229b(b). The Seventh Circuit denied a petition for review. Meraz-Saucedo forfeited his arguments concerning the defective notice and failed to present sufficient evidence that he would be tortured at the hands of, or with the acquiescence of, a government official. View "Meraz-Saucedo v. Rosen" on Justia Law

Diaz entered the U.S. without inspection in 1995. He was placed in deportation proceedings. The notice of his hearing did not reach him. Zelaya failed to appear. A final order of deportation was entered in his absence. Zelaya later left the U.S. but re-entered before December 30, 1998. In 2014, following a traffic-related arrest, Zelaya successfully moved to reopen his deportation case. At a 2018 hearing, Zelaya moved for administrative closure of his deportation proceeding to allow “repapering,” by which a deportation proceeding that began under pre-1996 law can be converted into a cancellation-of-removal proceeding under 1996 legislation, 8 U.S.C. 1229b(b), to enable Zelaya to seek cancellation of removal, for which he is apparently legally eligible.The BIA ordered voluntary deportation, citing the Attorney General’s 2018 opinion, which sharply restricted the ability of immigration judges and the Board to close cases administratively. The Seventh Circuit granted a petition for review, noting that it has previously held that the Attorney General’s directive was contrary to law; “immigration regulations plainly grant immigration judges broad authority and discretion to take ‘any action … that is appropriate and necessary for the disposition’” of their cases. The BIA did not exercise its discretion according to law, guided by factors enumerated in earlier precedent. View "Diaz v. Rosen" on Justia Law

The Eighth Circuit denied a petition for review of the IJ's and BIA's decisions denying petitioner's request to defer his removal to Somalia under the Convention Against Torture (CAT). Petitioner had entered the United States in 2001 under a false passport and was previously ordered removed. Petitioner then moved to reopen his case, which the BIA granted, remanding the case to the IJ where petitioner's request was denied.The court affirmed the IJ's and BIA's judgments, holding that substantial evidence supported the conclusions that petitioner was unlikely to be tortured for minority-clan membership. The court rejected petitioner's challenge to the IJ's and BIA's conclusions that any torture by Al-Shabaab does not qualify for CAT relief because the Somali government would not acquiesce in such torture. Rather, the court concluded that substantial evidence supported the IJ's and BIA's conclusions that the Somali government was unlikely to acquiesce in any torture by Al-Shabaab. Finally, the court concluded that the IJ and BIA properly considered the risk of torture in the aggregate. View "Hassan v. Rosen" on Justia Law

Plaintiffs, aliens unlawfully in the United States seeking U-Visas, filed suit alleging that DHS unlawfully withheld or unreasonably delayed adjudication of their U-Visa petitions and their applications for work authorization pending U-Visa approval.The Fourth Circuit held that it lacked the power to review plaintiffs' work-authorization claims here because the agency is not required to adjudicate plaintiffs' requests. The court explained that, under the Administrative Procedure Act and All Writs Act, it can only compel faster agency action if the agency is required to act. In this case, neither congressional statutes nor agency regulations compel the agency to adjudicate these requested pre-waiting-list work authorizations. However, the court may review plaintiffs' claim that DHS unreasonably delayed adjudicating their U-Visa petitions. Furthermore, plaintiffs have pleaded sufficient facts to avoid dismissal of their claim for unreasonable delay in placing them on the waiting list. Accordingly, the court dismissed plaintiffs' claims relating to their requests for pre-waiting-list work authorization and remanded plaintiffs' claim relating to U-Visa adjudications. View "Fernandez Gonzalez v. Cuccinelli" on Justia Law

The Ninth Circuit reversed the district court's denial of a petition for habeas relief under 28 U.S.C. 2241, and remanded for application of the standard from Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), the default rule for First Amendment retaliation claims.The panel held that the Supreme Court's recent decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), holding that the presence of probable cause generally defeats a retaliatory criminal arrest claim under 42 U.S.C. 1983, does not apply to a noncitizen's claim that ICE unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him. In this case, petitioner had been detained by ICE and released on bond in 2018. After petitioner spoke publicly at a rally in 2019 and read his poem, entitled "Dear America," in which he criticized ICE practices, ICE revoked his bond and re-arrested him. The panel explained that Nieves is not applicable because problems of causation that may counsel for a no probable cause standard are less acute in the habeas context. Furthermore, Nieves arose out of the criminal arrest context where "evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." The panel explained that this reasoning does not translate to the immigration bond revocation context. View "Bello-Reyes v. Gaynor" on Justia Law

E.A., a citizen of El Salvador unlawfully entered the U.S. in 2016, at age 12, as an unaccompanied minor and was released to her mother, who resided in New York. Shortly thereafter, the family relocated to Arkansas, where E.A. filed a successful Motion to Change Venue to Memphis and a Change of Address Form. Latino Memphis (LM) represented E.A. pro bono. In January 2018. LM appeared on behalf of E.A. in a telephonic hearing. E.A.'s master-calendar hearing was scheduled for June 2018 in Memphis. In April 2018, LM moved to withdraw, stating that E.A. had moved out of its covered geographic area to New York. E.A. failed to appear and was ordered removed in absentia. In November, E.A., moved to reopen, represented by Catholic Charities. E.A. asserted that she was unable to obtain legal counsel to assist her in changing her hearing location after returning to New York. E.A.’s mother had given birth 10 days before E.A.’s hearing. E.A. asserted that she was eligible for Special Immigrant Juvenile Status (SIJS). The IJ denied E.A.’s request to reopen and did not address SIJS. The BIA affirmed.The Sixth Circuit vacated the removal order and remanded. Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s age, E.A.’s mother’s failed attempts to obtain counsel to help change the hearing address, and E.A.’s inability to travel alone for the hearing, E.A. established exceptional circumstances. View "E. A. C. A. v. Rosen" on Justia Law

The First Circuit vacated and remanded the ruling of the Board of Immigration Appeals (BIA) denying Petitioner's claims for asylum and withholding of removal, holding that substantial evidence did not support the BIA's finding that Petitioner lacked a reasonable basis for his fear of being harmed on account of his membership in a particular social group.Petitioner, an Iraqi citizen, sought relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Petitioner asserted that he feared he would be subjected to harm in Iraq at the hands of members of Iraq's military or civilian insurgents in Iraq on account of his work as a paid contractor for the United States Army during the war in Iraq. The BIA denied all claims. The First Circuit vacated the BIA's decision in part, holding (1) the record evidence failed to support the BIA's affirmance of the immigration judge's finding that Petitioner did not sufficiently show that he had an objectively reasonable basis for fearing that he would face harm in Iraq; and (2) the BIA properly denied Petitioner's claim for relief under the CAT. View "Al Amiri v. Rosen" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner failed to meet his burden of proof for asylum, withholding of removal, or relief under the Convention Against Torture (CAT). The BIA noted that petitioner never testified or submitted evidence claiming any actual injury caused by the Taliban, or that the Taliban individually targeted or attacked him for any reason. The BIA also concluded that the IJ provided petitioner due process where there was no indication in the transcript or the appeal that he did not understand the proceedings or that there were facts he was "unable to present."The panel held that the IJ provided petitioner due process by providing details about the structure of the hearing, the availability of counsel, and asking numerous questions through which petitioner had ample opportunity to develop his testimony. Furthermore, petitioner failed to show substantial prejudice. The panel also held that substantial evidence supported the BIA's conclusion that petitioner did not suffer past persecution where petitioner never alleged he was personally targeted by the Taliban and his testimony was consistent with an environment of generalized violence. Furthermore, the Pakistani government is not unwilling or unable to prevent harm and it would not be unreasonable for petitioner to relocate within Pakistan. Finally, the panel held that substantial evidence supports the BIA's determination that petitioner cannot meet his burden to obtain CAT protection. View "Hussain v. Rosen" on Justia Law