Justia Immigration Law Opinion Summaries

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The Fourth Circuit granted the petition for review of the BIA's final order of removal, holding that petitioner and his family sufficiently established persecution based on threats of death and harm by the Revolutionary Armed Forces of Colombia, commonly known as FARC. Petitioner was a Colombian police officer who investigated FARC rebels.The court held that the BIA's determination that petitioner had not suffered past persecution was manifestly contrary to the law and constituted an abuse of discretion. In this case, petitioner had received multiple threats of death and harm to himself and his family from FARC. Furthermore, when an asylum applicant, such as petitioner, establishes that he has suffered past persecution, he is presumed to have a well-founded fear of future persecution. Because the BIA failed to apply this presumption, the BIA must reconsider the asylum application and apply the proper presumption. The court remanded for further proceedings. View "Rodriguez Bedoya v. Barr" on Justia Law

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Deivy Romero-Lopez was convicted of illegally reentering the United States after being removed. The crime of illegal reentry begins when a noncitizen returns after removal and continues until he or she is “found” in the United States. The issue this case presented was not that Romero-Lopez was found in the U.S. after removal, but when he was found. The timing matters for his sentence because the Sentencing Commission dramatically increased the guideline ranges for individuals convicted of illegal reentry. The "starting point" for a sentence was the applicable starting guideline range. To determine that range, the district court needed to decide which annual version of the guidelines to use because the Sentencing commission changed the applicable provision in November 2016; the guideline ranges for illegal reentry sharply increased in November 2016. The new version of the guidelines would have applied only if Romero-Lopez's offense ended on or after the date of the change. Focusing on this increase, the parties disagreed over whether Romero-Lopez had been “found” before the change went into effect. The district court concluded that he had been found after the change, triggering the increased guideline range. Finding no reversible error in that conclusion, the Tenth Circuit affirmed. View "United States v. Romero-Lopez" on Justia Law

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In 2009, Barrados-Zarate, a citizen of Mexico, was charged as removable. He had been in the U.S. for more than a decade and applied for cancellation of removal, 8 U.S.C. 1229b(b)(1). He has two children who were born in the U.S., and contends that his “removal would result in exceptional and extremely unusual hardship.” Barrados-Zarate asserted that, if he is removed, his partner (a Mexican citizen) and their children will accompany him but the rural area where he would settle has poor health care, deficient educational opportunities, fewer available jobs, and a high crime rate.The IJ denied relief. The BIA dismissed an appeal, explaining that the children will receive a free public education, do not appear to be in special need of medical care, and will have the support of Barrados-Zarate’s extended family. Barrados-Zarate sought remand to address the crime rate in Mexico.The Seventh Circuit denied relief, citing failure to exhaust administrative remedies with respect to the prevalence of crime or violence in Mexico or any of its localities. A court of appeals may not set aside an administrative decision that passes in silence a topic that the parties themselves have passed in silence. The court further noted that the statute requires “exceptional and extremely unusual hardship” to U.S. citizens; a risk encountered by everyone who lives in Mexico cannot be “exceptional and extremely unusual.” View "Barrados-Zarate v. Barr" on Justia Law

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In 2015, Hernandez-Serrano, age 16, entered the U.S. without inspection and was placed in removal proceedings. A year later, a Tennessee juvenile court made findings that rendered Hernandez-Serrano potentially eligible for “Special Immigrant Juvenile” status, 8 U.S.C. 1101(a)(27)(J), for which he applied. Hernandez-Serrano unsuccessfully sought administrative closure of his removal case pending a decision. In 2018, the IJ ordered Hernandez-Serrano removed to El Salvador. Hernandez-Serrano appealed to the BIA. Weeks later, his application for Special Immigrant Juvenile status was granted. Hernandez-Serrano challenged only the IJ’s denial of his motion for administrative closure, The BIA denied his motion, holding that the IJ lacked authority to close Hernandez-Serrano’s case administratively under 8 C.F.R. 1003.10, 1003.1(d) as interpreted in a 2018 Attorney General decision that “immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.”The Sixth Circuit denied relief. The authority of IJs to take certain actions “[i]n deciding the individual cases before them” does not delegate general authority not to decide those cases at all. The court noted that in more than 400,000 cases in which an alien was charged with being subject to removal, IJs or the BIA have closed cases administratively, removing them from the docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. “Adjudicatory default on that scale strikes directly at the rule of law.” View "Hernandez-Serrano v. Barr" on Justia Law

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The issue this case presented for the Tenth Circuit's review centered on whether a father's adopted child could qualify as his "legitimate" child for the purposes of section 1010(b)(1)(C) of the Immigration and Nationality Act when the child was not his biological child. Mr. Schreiber and his wife were U.S. citizens living in Kansas. In 2012, Mrs. Schreiber's niece moved from her native South Korea to Kansas to live with the Schriebers and attend high school. In 2014, the Schreibers adopted the niece under Kansas law with the consent of the child's parents. Kansas issued the child a new birth certificate listing the Schreibers as her parents. In 2015, Mr. Schreiber filed a petition to have his adopted child classified as his "child" for the purposes of the Act. The Board of Immigration Appeals determined legitimization only applied to a parent's biological children. The Tenth Circuit concluded the BIA correctly interpreted the Act's plain meaning, and thus, did not err in ruling that a parent's non-biological child could not be his "legitimized" child within the meaning of the Act. Furthermore, the Court concluded the district court properly declined to review Mr. Schreiber's "late-blooming" gender-discrimination challenge to the BIA's final agency action. View "Schreiber v. Cuccinelli" on Justia Law

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The Ninth Circuit filed (1) an order stating that the opinion, concurrence, and dissent filed November 19, 2019 are amended by the opinion, concurrence, and dissent filed concurrently with the order, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended majority opinion, concurrence, and dissent.In the amended opinion, the panel granted the petition for review of an ICE order reinstating petitioner's prior order of removal and held that that: (1) 8 U.S.C. 1252(b)(1) establishes a thirty-day deadline for seeking review of reinstatement orders; (2) because petitioner timely challenged his reinstatement order, the court had jurisdiction to consider a collateral attack on his underlying removal order contending that the execution of that order resulted in a gross miscarriage of justice; (3) petitioner established a gross miscarriage of justice because his removal order lacked a valid legal basis when it was executed; and (4) there is no diligence requirement that limits the time during which such a collateral attack may be made. View "Vega-Anguiano v. Barr" on Justia Law

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The Eighth Circuit denied a petition for review of the IJ's and BIA's decisions denying relief under the Convention Against Torture (CAT). Petitioner claimed that the Somali government will acquiesce in his torture by Al-Shabaab, a terrorist organization.The court held that substantial evidence supported the IJ's and BIA's findings that the Somali government would not acquiesce in any torture of petitioner by Al-Shabaab. In this case, the record does not show that the Somali government has willfully turned a blind eye to Al-Shabaab's activities. Rather, the Somali government and its allies have battled Al-Shabaab, retaken territory from it, and worked to maintain order. Furthermore, the Somali government is using its amnesty program as part of its fight against Al-Shabaab as a tool to encourage defections. Finally, petitioner's argument that the Somali government and Al-Shabaab act in concert to torture people is wholly without record support. The court stated that the fact that the Somali government has not successfully ended the threat posed by Al-Shabaab violence is insufficient to establish that the torture would be with the consent or acquiescence of a government official. View "Moallin v. Barr" on Justia Law

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Shuhaiber, who is confined to a wheelchair, sued the Illinois Department of Corrections under the Americans with Disabilities Act and Rehabilitation Act. He alleged that the Stateville Center failed to accommodate his disability by confining him to a cell unsuited to the use of a wheelchair and that he was transported to physical therapy in vans that were not ADA-compliant, leaving him to depend on an officer to lift him. The district court dismissed the complaint, determining that Shuhaiber failed to allege that he was deprived of access to facilities or services or that the vans caused him to miss medical appointments.Shuhaiber appealed and sought permission to proceed without prepaying the requisite filing fee. Meanwhile, Shuhaiber, a native of the United Arab Emirates, had been transferred to DHS custody for removal from the United States. Shuhaiber, as a frequent filer of federal lawsuits, had accumulated more than three strikes under the Prison Litigation Reform Act for filing frivolous lawsuits and would have had to prepay the filing fee to appeal the dismissal of his claims. Doubting that Shuhaiber was still a “prisoner,” the district court granted his motion to proceed in forma pauperis.The Seventh Circuit affirmed that the appellate filing-fee bar does not apply where the appellant is being held by immigration authorities and no longer is a “prisoner” within the meaning of the PLRA. The district court was, nonetheless, right to dismiss his claims. View "Shuhaiber v. Illinois Department of Corrections" on Justia Law

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The Ninth Circuit granted the petition for review of the BIA's decision denying petitioner's application for protective status pursuant to the Convention Against Torture (CAT). Petitioner is a former gang member who has belonged to various violent gangs, including La Mara Salvatrucha, commonly known as MS-13.Addressing two initial matters, the panel concluded that the Board's defiance of the panel's previous decision in this matter and disagreement with the panel's holding that the IJ did not find petitioner's expert, a specialist in gang activity in Central America and governmental responses to gangs, credible was ill-advised. The panel also disagreed with the Board's conclusion that the expert's testimony did not warrant full weight because he did not submit the underlying evidence to the IJ. Finally, the panel held that the Board's decision to give the expert's opinion reduced weight because it was not corroborated by other evidence in the record was erroneous. The panel remanded to the Board and directed it to give full weight to the expert's testimony regarding the risk of torture petitioner faces if removed to El Salvador. View "Castillo v. Barr" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision denying petitioners' motion to reopen. Petitioners contend that ineffective assistance of a non-attorney notario who advised them not to attend their hearing caused them to be ordered removed in absentia.The panel concluded that the BIA erred by treating petitioners' failure to show prejudice caused by the alleged ineffective assistance as a basis for denying their motion to reopen proceedings. The panel explained that a showing of prejudice is not required when ineffective assistance leads to an in absentia order of removal. Therefore, in light of this conclusion, the panel need not reach the BIA's decision denying petitioners' motion to reopen proceeding to allow petitioners to apply for cancellation of removal. View "Sanchez Rosales v. Barr" on Justia Law