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The Eighth Circuit joined the BIA and a unanimous chorus of other circuits that have considered and rejected the argument that a notice to appear that, like petitioner's, does not contain the time and place of removal proceeding is not valid. The court rejected petitioner's claim that a court utilizing such a notice fails to obtain subject matter jurisdiction at its inception and so the entire proceedings and any subsequent removal order are invalid. Determining that it had jurisdiction over the petition for review, the court held that the BIA did not abuse its discretion by denying petitioner's motion to reopen. The court explained that the BIA need not list every possible argument for and against its decision, and it need not write an exegesis on every contention. Furthermore, the BIA's opinion in this case makes clear that it heard and considered petitioner's arguments. Finally, the court rejected petitioner's due process and equal protection challenges. View "Ali v. Barr" on Justia Law

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Plaintiffs alleged that the government's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy (and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth Amendment, as well as the Administrative Procedure Act (APA) and common law principles of estoppel. The Fourth Circuit agreed with the district court that plaintiffs' challenges were subject to judicial review and that the government's decision to rescind DACA did not require notice and comment under the APA. However, the court held that the decision violated the APA because—on the administrative record before the court—it was not adequately explained and thus was arbitrary and capricious. The court also held that the district court erred in ordering the government to comply with its policies promulgated in 2012 on the use of information provided by DACA applicants and enjoining it from altering those policies. The court declined, under the doctrine of constitutional avoidance, to decide whether plaintiffs' Fifth Amendment rights were violated. The court also declined to address plaintiffs' remaining arguments. Accordingly, the court affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded. View "Casa De Maryland v. DHS" on Justia Law

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The Fifth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was not impermissibly retroactive as applied to petitioner, because no adjustment-application was pending at the time of the reinstatement order, and his previous adjustment application was denied due to his failure to prosecute. The court held that petitioner's contention that his entry was lawful because he was allegedly waved through at an entry checkpoint was foreclosed by precedent. Accordingly, the court denied the petition for review. View "Terrazas-Hernandez v. Barr" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal of the denial of her motion to reopen. The court rejected petitioner's contention that she was entitled to reopen the in absentia removal order because she never received notice despite having satisfied her statutory obligation to provide an address to receive notice. The court held that 8 U.S.C. 1229(a)(1)(F)(i)—like its predecessor, 8 U.S.C. 1252b(a)(1)(F)(i)—requires an alien who is physically in the United States and subject to removal from the United States to provide a United States address to receive notice by mail. Applying this interpretation of section 1229(a)(1)(F)(i), the court held that the BIA did not abuse its discretion in dismissing the appeal and in rejecting the argument that a Guatemalan address was sufficient. Even assuming arguendo that an alien may satisfy her obligation to provide an address under section 1229(a)(1)(F)(i) by providing a foreign address, petitioner could not prevail because there was no realistic possibility that, absent the errors, the BIA would have reached another outcome than to dismiss the appeal. View "Luna-Garcia v. Barr" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64. The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" on Justia Law

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Villa, a citizen of Mexico, originally entered the U.S. in 1988 without inspection. He adjusted his status to that of a lawful permanent resident in 1995. Approximately nine years later, he was convicted of possession of cocaine and sentenced to a year in prison. In 2005, the Department of Homeland Security (DHS) initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. The Notice listed an address for the hearing “on a date to be set,” and “at a time to be set.” The Immigration Court later served on him a Notice of the date and time. He appeared; the immigration judge entered an order of removal. Villa waived his right to appeal and was removed to Mexico. He reentered the U.S. sometime in 2007, on foot at an unspecified location. In 2018, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal, 8 U.S.C. 1231(a)(5), which stated that Villa could contest the determination that he was removable under the prior order by oral or written statement but that he was not entitled to a hearing. The Seventh Circuit dismissed his petition for review for lack of jurisdiction, rejecting an argument that the 2005 Order was void because it was entered ultra vires and that the 2005 proceedings were never properly initiated because the original “Notice” was legally deficient. View "Serrano v. Barr" on Justia Law

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Lopez-Aguilar went to the Indianapolis Marion County Courthouse for a hearing on a misdemeanor complaint charging him with driving without a license. Officers of the Sheriff’s Department informed him that an ICE officer had come to the courthouse earlier that day looking for him. He alleges that Sergeant Davis took him into custody. Later that day, Lopez-Aguilar appeared in traffic court and resolved his misdemeanor charge with no sentence of incarceration. Sergeant Davis nevertheless took Lopez-Aguilar into custody. He was transferred to ICE the next day. Neither federal nor state authorities charged Lopez-Aguilar with a crime; he did not appear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified “immigration case” against Lopez-Aguilar was pending when he sued county officials under 42 U.S.C. 1983. Following discovery, the parties settled the case. The district court approved the Stipulated Judgment over the objection of the federal government and denied Indiana’s motion to intervene to appeal. The Seventh Circuit reversed. The state’s motion to intervene was timely and fulfilled the necessary conditions for intervention of right. The district court was without jurisdiction to enter prospective injunctive relief. The Stipulated Judgment interferes directly and substantially with the use of state police power to cooperate with the federal government in the enforcement of immigration laws. View "Lopez-Aguilar v. Indiana" on Justia Law

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The Second Circuit denied a petition for review of the BIA's order of removal based on petitioner's conviction for an aggravated felony. The court held that petitioner's conviction for conspiracy in the second degree to commit a felony -- murder in the second degree in this case -- under New York law was an aggravated felony. The court applied the categorical approach and held that second degree murder is clearly an aggravated felony within the federal definition. View "Santana-Felix v. Barr" on Justia Law

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After appellants, each accompanied by a minor child, stated to Customs and Border Patrol (CBP) that they feared persecution in their home countries, they were arrested and charged with misdemeanor improper entry and detained in El Paso. Their children were transferred to the custody of the Office of Refugee Resettlement (ORR). In these consolidated appeals, appellants argued that they should not have been criminally prosecuted because they sought asylum, and being separated from their children rendered their convictions constitutionally infirm. The Fifth Circuit affirmed the district court's judgment in favor of the government, holding that nothing in 8 U.S.C. 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process, nor have appellants shown that qualifying for asylum would be relevant to whether they improperly entered; appellants' argument that deporting them without their children amounted to cruel and unusual punishment under the Eighth Amendment failed because the four deported appellants were found inadmissible during post-conviction civil immigration proceedings, rather than criminal proceedings; the court declined to apply the outrageous government conduct doctrine in this case; appellants' claims of right of access to evidence were rejected; appellants' fair trial claim repackaged appellants' unsuccessful Brady claim and failed for the same reasons; and the government did not impermissibly burden appellants' right against self-incrimination. View "United States v. Vasquez-Hernandez" on Justia Law

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Asylum applicants and asylum-related legal services challenged the Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. The district court concluded that the MPP lacked a statutory basis and violated the Administrative Procedure Act (APA). The district court then enjoined DHS on a nationwide basis from continuing to implement or expand the MPP. DHS argued that it relied on the contiguous-territory provision in 8 U.S.C.1225(b)(2)(C) as the statutory basis for the MPP. The Ninth Circuit granted DHS's motion for a stay pending appeal and held that DHS was likely to prevail on its contention that 8 U.S.C.1225(b)(1), which outlines the procedures for expedited removal and specifies the class of non-citizens who are eligible for expedited removal, "applies" only to applicants for admission who are processed under its provisions. Under this reading, section 1225(b)(1) does not apply to an applicant who is processed under section 1225(b)(2)(A), even if that individual is rendered inadmissible by section 1182(a)(6)(C) or (a)(7). Consequently, applicants for admission who are placed in regular removal proceedings under section 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under section 1225(b)(2)(C). Therefore, plaintiffs were properly subject to the contiguous-territory provision because they were processed in accordance with section 1225(b)(2)(A), rather than section 1225(b)(1). Furthermore, DHS was likely to prevail on plaintiffs' claim that the MPP should have gone through the APA's notice and comment process, because the MPP qualifies as a general statement of policy where immigration officers designate applicants for return on a discretionary case-by-case basis. Finally, the remaining factors governing issuance of a stay pending appeal weigh in the government's favor. View "Innovation Law Lab v. McAleenan" on Justia Law