Justia Immigration Law Opinion Summaries

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Plaintiff was granted a U-visa effective a month after she married her husband. After USCIS denied plaintiff's petition for a derivative U-visa for her husband, she filed suit for declaratory and injunctive relief. The district court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute.The Ninth Circuit reversed, holding that 8 C.F.R. 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. The court held that the statute clearly answers the relevant interpretive question: to qualify for a derivative U-visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U-visa. Therefore, section 214.14(f)(4) is invalid insofar as it requires a derivative U-visa spouse to have been married to the principal petitioner when the application was filed. In this case, plaintiff and her husband were married by the time she was granted a U-visa and when she petitioned for derivative U-visa status, her husband was entitled to receive a U-visa if he otherwise met the requirements. View "Medina Tovar v. Zuchowski" on Justia Law

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Ayon-Brito was prosecuted and convicted in the Eastern District of Virginia of reentering the U.S. without permission after having been removed, 8 U.S.C. 1326(a). The district court had denied his pretrial motion to dismiss for improper venue. Ayon-Brito argued that although the indictment alleged that he was first “encountered” after his reentry by officers in Virginia, it also alleged, as an element of the offense, that he was “found” in the Middle District of Pennsylvania where he was first accurately identified. He argued that the crime charged was committed in the Middle District of Pennsylvania, so that venue was appropriate only there; 8 U.S.C. 1329 establishes venue for a section 1326 violation in the district where the violation “occurred.”The Fourth Circuit affirmed the denial of the motion to dismiss. The violation of 1326(a) was a continuing offense that began when he reentered the U.S. and continued wherever he was present until he was found and arrested. Because “found” does not itself refer to an act or conduct of the defendant, it does not describe a conduct element; the crime at issue is “being in” the U.S. If Ayon-Brito believed that he faced prejudice or inconvenience, he could have sought a transfer; he did not. He elected a bench trial in Virginia and was dealt with fairly. View "United States v. Ayon-Brito" on Justia Law

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In 2019, DHS issued a rule that defines the term "public charge" to include those who are likely to participate, even for a limited period of time, in non-cash federal government assistance programs. At issue are preliminary injunctions issued by two district courts enjoining DHS's rule. The Ninth Circuit affirmed the preliminary injunction of the District Court for the Northern District of California covering the territory of the plaintiffs. The panel affirmed in part and vacated in part the preliminary injunction of the District Court for the Eastern District of Washington, vacating the portion of the injunction that made it applicable nationwide.After determining that plaintiffs have Article III standing and that the interest of plaintiffs in preserving immigrants' access to supplemental benefits is within the zone of interests protected by the "public charge" statute, the panel concluded that plaintiffs have demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law. The panel also concluded that the Rule's promulgation was arbitrary and capricious as well as contrary to law within the meaning of the Administrative Procedure Act (APA). The panel explained that DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare. Furthermore, the remaining injunction factors favor plaintiffs where plaintiffs have established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs, and there was no error in finding that the balance of equities and public interest support an injunction.The panel vacated the portion of the Eastern District's injunction making it applicable nationwide, explaining that a nationwide injunction was not appropriate in this case because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts. Finally, because the panel held that the Rule violates the APA as contrary to law and arbitrary and capricious, it similarly did not address the Rehabilitation Act. View "City and County of San Francisco v. USCIS" on Justia Law

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The First Circuit denied Petitioner's petition seeking review of a decision of the Board of Immigration Appeals (BIA) dismissing Petitioner's appeal of an Immigration Judge's (IJ) decision finding that Petitioner had abandoned his status as a lawful permanent resident (LPR) in the United States ordering removal, holding that the IJ's and the BIA's decisions were supported by the record evidence.Petitioner, a Lebanese citizen, was admitted to the United States as an LPR in 1991. Petitioner later moved to Canada. In 2014, the IJ found that Petitioner was not admissible into the United States because he had abandoned his LPR status. The BIA affirmed. The First Circuit denied Petitioner's petition for review, holding that the lower agencies' decisions were supported by the evidence. View "Mahmoud v. Barr" on Justia Law

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The Eleventh Circuit denied a petition for review of the BIA's final order affirming the IJ's denial of petitioner's motion to reopen his removal proceedings. Petitioner argued that the BIA's decision conflicts with his statutory right under 8 U.S.C. 1229a(c)(7) to "file one motion to reopen proceedings." However, 8 U.S.C. 1231(a)(5) provides that if an alien illegally reenters the United States after having been removed, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed" and the alien "is not eligible and may not apply for any relief under this chapter."The court joined the Fifth, Seventh, and Ninth Circuits in concluding that the plain language of section 1231(a)(5) bars the reopening of a reinstated removal order following an alien's unlawful reentry into the United States. The court concluded that the facts of this case place petitioner squarely within the terms of section 1231(a)(5), and petitioner forfeited his statutory right to file a motion to reopen his removal proceedings when he illegally reentered the United States. View "Alfaro-Garcia v. U.S. Attorney General" on Justia Law

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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