Justia Immigration Law Opinion Summaries

8 C.F.R. 1003.14 sets forth a claim processing rule as opposed to a jurisdictional rule. The Eleventh Circuit held that, even assuming petitioner's notice to appear (NTA) was deficient under the regulations, the agency properly exercised jurisdiction over his removal proceedings because section 1003.14 could not have imposed jurisdictional limitations. Therefore, the IJ and BIA properly exercised jurisdiction over petitioner's removal order based on the authority conferred upon them by 8 U.S.C. 1229(a)(1). Therefore, the court denied the petition for review as to petitioner's Pereira claim. To the extent petitioner argued that he was nonetheless entitled to a remand because his NTA violated the agency's claim-processing rules, the court dismissed this part of his petition for lack of jurisdiction because he failed to exhaust the claim before the agency. The court rejected petitioner's due process claim, holding that the agency's decision not to address petitioner's appeal absent DHS briefing did not render his appeal fundamentally unfair. However, the court held that the BIA's determination that any motive to harm petitioner based on his family status was at most incidental was not supported by substantial evidence, because it was abundantly clear that petitioner's family relationship was one central reason, if not the central reason, for the harm he experienced. Therefore, the court granted his petition for review, and remanded his asylum and withholding of removal claims. View "Perez-Sanchez v. U.S. Attorney General" on Justia Law

Non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before immigration judges. The Ninth Circuit granted a petition for review of an IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings. The panel held that petitioner had a statutory right to counsel; the colloquy at the beginning of the hearing before the IJ was inadequate to waive that right; and no showing of prejudice was required. Accordingly, the panel remanded for further proceedings where petitioner will be given the opportunity to proceed with counsel. View "Zuniga v. Barr" on Justia Law

The Eighth Circuit denied the petition for review of the BIA's denial of petitioner's untimely motion to reopen. The court agreed with the Second Circuit's rejection of the argument that denial of an unopposed non-frivolous motion to reopen is presumptively an abuse of discretion because the burden is on the movant to establish his entitlement to reopening and there is no statutory or regulatory requirement that the Government file an opposition. The court held that the BIA did not abuse its discretion in ruling on the merits of petitioner's motion. The court also held that the BIA did not abuse its discretion in concluding that petitioner failed to show that former counsel's incompetence prejudiced his asylum and withholding of removal claims. Furthermore, there was no abuse of discretion in denying petitioner equitable tolling for his 17 month delay for filing the motion to reopen. Finally, there was no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding. View "Mwangi v. Barr" on Justia Law

The Fifth Circuit granted a petition for review of the BIA's decision holding petitioner statutorily ineligible for cancellation of removal based on a prior 2004 firearm transportation conviction. The court held that petitioner failed to exhaust his challenge to the immigration court's jurisdiction based on alleged defects in his Notice to Appear. However, on the merits, the court held that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. 1227(a)(2)(C). Therefore, petitioner's conviction did not disqualify him from seeking cancellation of removal. The court remanded for further proceedings. View "Flores-Abarca v. Barr" on Justia Law

In 2005, defendant-appellant Jorge Rodriguez pled guilty to unlawful intercourse by a person over 21 under Penal Code1 section 261.5(d). Defendant, as a person over 21, admitted to having sex with a person under the age of 16. The trial court sentenced defendant to formal probation for 36 months. Days later, defendant was taken into custody by the Immigration and Naturalization Service pending resolution by an immigration judge whether defendant would be removed from the United States. That same year, defendant was ordered removed. In 2007, defendant admitted to violating his probation. The trial court added 60 days to defendant’s sentence, to be served on a work release program to commence December 14, 2007, and reinstated defendant’s probation. On September 10, 2008, defendant admitted a violation of a term of his probation requiring defendant to report to probation. The court then reinstated probation. In 2016, filed a petition for dismissal under Penal Code section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under section 17(b). As mitigation, defendant provided in his petition that he married the victim and had two children with her. Moreover, defendant noted that both violations of probation occurred because he was in the custody of Immigration and Customs Enforcement (ICE) and was deported so he was unable to meet his probation officer or check in for his weekend custody obligation. Both motions were denied, and defendant appealed. On January 1, 2017, Penal Code section 1473.7 went into effect. Among other things, section 1473.7 permitted a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant’s ability to understand the immigration consequences of the plea. On July 10, 2017, following the filing of the Court of APpeal's opinion in defendant’s first appeal, defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. The trial court denied defendant’s motion without defendant or defense counsel present. The Court of Appeal determined the trial court abused its discretion in denying defendant's section 1473.3 motion and reversed. View "California v. Rodriguez" on Justia Law

Plaintiffs filed suit seeking to enforce a 1997 settlement agreement, incorporated into a consent decree, requiring immigration agencies to hold such minors in their custody in facilities that are safe and sanitary. The district court found that the government violated the Agreement by detaining minors in unsanitary and unsafe conditions at Border Patrol stations; ordered enforcement of various paragraphs of the Agreement; and directed the government to appoint an internal Juvenile Coordinator. In this case, the parties agreed that this court has jurisdiction over the appeal of the post-judgment order only if the district court modified the Agreement. The panel held that the district court's order did not modify the Agreement and therefore this court does not have jurisdiction over the appeal. Rather, the district court's orders interpreted the Agreement's requirements that minors be held in safe and sanitary conditions consistent with the government's concern for the particular vulnerability of minors. Although the government argued that the district court's order modified the Agreement in other respects, the panel held that these arguments likewise lacked merit. Accordingly, the panel dismissed the appeal based on lack of jurisdiction. View "Flores v. Barr" on Justia Law

According to its website, the University of Northern New Jersey, founded in 2012, was “nationally accredited by the Accrediting Commission of Career Schools and Colleges and the Commission on English Language Accreditation” and “certified by the U.S. Department of Homeland Security, Student and Exchange Visitor Program to educate international students.” The site included a statement from UNNJ's President, Dr. Brunetti, and its social media accounts informed students of closings for inclement weather and of alumni marriages. The University never existed. The Department of Homeland Security created the “sham university” to catch brokers of fraudulent student visas. It ensnared many such brokers; hundreds of foreign students “enrolled.” The government initially conceded that those students were innocent victims, but later suggested that they were akin to participants in the fraudulent scheme. Each enrolled student (including the plaintiffs) received a letter informing them that their student status had been terminated due to fraudulent enrollment. The government charged 21 individuals with fraudulently procuring visas. The plaintiffs filed a class action. The district court dismissed the claims, finding that there was no final government action. The Third Circuit vacated. Reinstatement proceedings are not required and would not afford an opportunity for review of DHS’s decision to terminate their F1 visa status. The students need not wait until removal proceedings are instituted to challenge the termination of their student status; neither immigration judges nor the BIA have authority to overturn the denial of reinstatement. View "Fang v. Director United States Immigration & Customs Enforcement" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's denial of petitioner's request for asylum and/or withholding removal. The court held that substantial evidence supported the BIA's finding that petitioner failed to establish that she suffered past persecution. In this case, although petitioner experienced the tragic loss of her father and brother, her family's disappearance without explanation did not rise to the level of persecution. Rather, the evidence established that her father and brother's kidnappings were the result of criminal activity in the area by persons seeking wealth. The court also held that substantial evidence supported the BIA's finding that petitioner's stated fears of future persecution were not objectively reasonable where her family continues to reside in Honduras unharmed. Finally, substantial evidence supported the BIA's denial of withholding removal. View "Mejia-Ramos v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination, in a precedential decision, that even though petitioner was a lawful permanent resident, she was inadmissible under 8 U.S.C. 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because she had been convicted of a crime involving moral turpitude. In this case, the crime was Arizona solicitation to possess marijuana for sale. The BIA rejected petitioner's contention that, by referencing "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excludes crimes of solicitation even if they otherwise constitute crimes involving moral turpitude. Applying Chevron deference, the panel affirmed the BIA's determination that even though petitioner was a legal permanent resident, she was removable because she was inadmissible to the United States when she presented herself at the border. Furthermore, a conviction in Arizona for solicitation to possess at least four pounds of marijuana for sale constitutes a crime involving moral turpitude for purposes of section 1182(a)(2)(A)(i)(I), and thus petitioner was inadmissible. The panel rejected petitioner's contention that, by referencing only "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excluded crimes of solicitation, and the panel saw no reason to deviate from Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007). View "Gonzalez Romo v. Barr" on Justia Law

In 1988, petitioner filed an application for Temporary Resident Status as a Special Agricultural Worker. Over thirty years later, he petitioned to hold that the Administrative Appeals Office (AAO) erred in denying his appeal for failure to comply with the agency deadline. The Eighth Circuit denied the petition for review and held that equitable tolling was not appropriate on the facts of petitioner's case. The court held that, regardless of whether petitioner was living at the record address at the time INS sent the notice, his failure to receive it was not an extraordinary circumstance because either updating the agency with a correct address or more closely monitoring the mail were within his control. Furthermore, even if petitioner could establish he did not receive the notice due to a genuinely extraordinary, unavoidable circumstance, the extended lapses in time were evidence that he failed to diligently pursue his rights. View "Capiz-Fabian v. Barr" on Justia Law