Justia Immigration Law Opinion Summaries

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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

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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

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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

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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

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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

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Resettlement agencies filed suit challenging President Trump's Executive Order 13,888, which drastically alters the system by which the federal government resettles refugees across the United States. The order creates an "opt-in" system requiring that both a state and a locality provide their affirmative consent before refugees will be resettled there. Plaintiffs challenge the Order and notice implementing the order, asserting that they violate the Refugee Act, principles of federalism, and the Administrative Procedure Act.The Fourth Circuit held that the district court did not abuse its discretion in granting a preliminary injunction prohibiting enforcement of the Order and Notice. The court concluded that plaintiffs have demonstrated that they are likely to succeed on their claim that the Order and Notice violate the carefully crafted scheme for resettling refugees that Congress established in the Refugee Act. The court explained that, at bottom, the consent requirement in the Order and Notice is "incompatible with the overall statutory scheme governing" the refugee resettlement program. Furthermore, the court's conclusion regarding the many infirmities of the consent requirement is not altered by the government's reliance on the so-called "savings clause" of the Order. The court also concluded that the record supports the district court’s award of preliminary injunctive relief under the remaining factors of Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). The court affirmed the district court's judgment, concluding that the district court did not abuse its discretion in issuing a nationwide injunction. View "HIAS, Inc. v. Trump" on Justia Law

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The First Circuit affirmed the judgment of the district court granting Petitioner's habeas corpus petition after the Dominican Republic requested Petitioner for extradition, holding that the United States failed to file the necessary documents to support an extradition request.Upon receipt and review of the Dominican Republic's request to extradite Petitioner, the United States filed an extradition compliant. A federal magistrate judge certified Petitioner as eligible for extradition. Petitioner filed a petition for writ of habeas corpus, arguing that the Dominican Republic failed to provide the required documentation in its extradition request and that his extradition would violate the United Nations Convention Against Torture (CAT) because the Board of Immigration Appeals (BIA) had previously found that he qualified for CAT relief. The district court granted relief, finding both that the extradition was barred by the BIA's CAT determination and that the extradition request did not satisfy the documentary requirements of the Dominican Republic-United States Extradition Treaty. The First Circuit affirmed, holding (1) the district court erroneously determined that the United States was bound by the BIA's prior determination awarding Petitioner CAT relief; but (2) the district court properly found that the documentation was insufficient to support an extradition request under the treaty. View "Aguasvivas v. Pompeo" on Justia Law

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Singh, a citizen of India, came to the U.S. in 1991, then 22 years old. He obtained a temporary transit visa for work on a ship, Singh drove cabs instead. He has taken periodic trips back to India. In 1997 and 2005 he entered into "sham" marriages. Charged as removable for remaining in the country illegally, 8 U.S.C. 1227(a)(1)(B), Singh sought cancellation of removal, 8 U.S.C. 1229b(b)(1), arguing that his removal would harm his children (U.S. citizens), born in 2011 and 2013, and mother, a legal permanent resident, who owns a convenience store and has a good relationship with his U.S.-citizen brothers,The IJ denied Singh’s application finding that Singh failed to prove that he had continuously been present in the U.S. for a 10-year period immediately prior to the date that he was served with his “notice to appear” and failed to prove “exceptional and extremely unusual hardship." The BIA affirmed. The Sixth Circuit denied relief. Reviewing the hardship claim as a mixed question of law and fact, the court noted that Singh did not dispute that his mother’s and children’s health conditions were insufficiently serious to create that hardship; BIA precedent holds that diminished educational options alone do not establish the required hardship. Singh did not show that his children would be deprived of all opportunity to obtain any education. Singh failed to exhaust his remedies with respect to a claim of unconstitutional bias by the IJ. View "Singh v. Rosen" on Justia Law

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On remand from the Supreme Court, the Fifth Circuit denied the petition for review challenging the BIA's denial of equitable tolling to petitioner's motion to reopen in light of Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016). A panel of this court dismissed the petition for lack of jurisdiction, but the Supreme Court reversed and remanded.The Board had concluded that petitioner did not demonstrate due diligence because he waited approximately eight months after the Fifth Circuit decided Lugo-Resendez to file his current motion. Now considering the merits, the Fifth Circuit explained that the Board's conclusion applies with even grater force in light of the conclusion in Londono-Gonzalez v. Barr, 978 F.3d 965, 968 (5th Cir. 2020), that Lugo-Resendez did not constitute an extraordinary circumstance that stood in the way of aliens seeking equitable tolling. Furthermore, petitioner presented no viable alternative from which he can show compliance with the 90-day filing deadline even with the benefit of equitable tolling. View "Ovalles v. Rosen" on Justia Law

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Plaintiff, a United States citizen, and his daughter, a citizen and resident of Sierra Leone, filed suit challenging the denial of their visa to the daughter. The Fourth Circuit affirmed the district court's dismissal of the complaint, holding that the doctrine of consular nonrevieawability plainly prohibits the court from questioning the consular officer's visa determination. The court explained that the Supreme Court has unambiguously instructed that absent some clear directive from Congress or an affirmative showing of bad faith, the government must simply provide a valid ineligibility provision as the basis for the visa denial. In this case, the government met this obligation by providing 8 U.S.C. 1201(g) and 1182(a)(6)(C)(i) (an anti-fraud and misrepresentation provision) as the statutory bases for denial of the visa application. Furthermore, not only did the consular officer provide the applicable statutory provisions as the bases for the visa denial, but the officer went further than necessary by explaining her decisionmaking—she found the daughter had proffered a falsified passport and lied about her age. View "Sesay v. United States" on Justia Law