Justia Immigration Law Opinion Summaries

The Fifth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal challenging the IJ's denial of his motion to reopen removal proceedings and rescinding his in absentia removal order. The court concluded that the BIA based its decision on a legally erroneous interpretation of 8 U.S.C. 1229(a). In this case, the initial notice to appear did not contain the time and date of petitioner's hearing, and the BIA found that the notice combined with the subsequent notice of hearing containing the time and place of petitioner's hearing satisfied the written notice requirement of section 1229(a). However, the court concluded that this was directly contrary to the Supreme Court's interpretation of section 1229(a) in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), which made clear that subsequent notices may not cure defects in an initial notice to appear. View "Rodriguez v. Garland" on Justia Law

The issue this interlocutory appeal presented for the Vermont Supreme Court's review centered on whether evidence seized by federal Border Patrol agents during a roving patrol (pursuant to their authority to conduct warrantless searches under 8 U.S.C. 1357) was admissible in a state criminal proceeding when that search did not comply with Article 11 of the Vermont Constitution. Defendants Phillip Walker-Brazie and Brandi-Lena Butterfield argued that because the overwhelming purpose of Vermont’s exclusionary rule was to protect individual liberty, the Supreme Court should apply the exclusionary rule and suppress the evidence pursuant to Article 11. To this the Supreme Court agreed, holding that such evidence is inadmissible in Vermont criminal proceedings. View "Vermont v. Walker-Brazie" on Justia Law

Abushagif, a Libyan national admitted to the U.S. as a non-immigrant student, was placed in removal proceedings in 2010. Libya became engulfed in a civil war, with Muammar Qadhafi leading the country. Abushagif applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming that his brother had been jailed for declining to join Qadhafi’s forces in killing civilians. Abushagif stated that he did not want to participate in the civil war. Nothing suggested that Abushagif’s father had ever worked for the Qadhafi regime. After Qadhafi’s administration collapsed, Abushagif withdrew his application and agreed to pre-conclusion voluntary departure but did not leave. In 2019, he moved to reopen, arguing that the country conditions in Libya had materially changed and that he would be a target for persecution if he returned. Abushagif declared that his father had been kidnapped and tortured by militias because of his work for the Qadhafi administration and that they planned to kidnap him once he landed in Libya. Abushagif also stated that he had converted to Christianity, had come out as bisexual, and that he had served in the Qadhafi regime’s national guard.The I.J. denied the motion. The Fifth Circuit remanded for a limited purpose; the BIA abused its discretion by entirely failing to address the CAT claim. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention. View "Abushagif v. Garland" on Justia Law

Cui. a Chinese citizen, overstayed her work visa and applied for asylum. In 2014, Cui was arrested while out of state. Neither she nor her counsel attended her merits hearing before the IJ. She was ordered removed in absentia. Although Cui engaged a second lawyer, that lawyer incorrectly filed an appeal to the BIA. In July 2014, Cui’s counsel attempted to file a motion to reopen before the IJ, but the clerk rejected and did not file the motion because of the pending appeal and because another attorney was counsel of record in the immigration court. Cui’s counsel did not attempt to rectify his errors or refile the motion to reopen within the statutorily allotted 180 days, 8 U.S.C. 1229a(b)(5)(C)(i).Over two years later, after the BIA returned Cui’s case to the IJ for lack of jurisdiction to consider the erroneous appeal, Cui’s counsel again moved to reopen before the IJ. Both the IJ and the BIA dismissed the 2016 motion as untimely. The Ninth Circuit denied a petition for review. The 180-day deadline to file a motion to reopen was not tolled. The BIA neither abused its discretion in determining that Cui’s 2016 motion was untimely nor legally erred by declining to sua sponte reopen her case. View "Cui v. Garland" on Justia Law

Alfred entered the U.S. from Palau under the Compact of Free Association between the U.S. and several Pacific Island territories. Seven years later, Alfred pled guilty in Washington state court to second-degree robbery and two counts of attempted robbery in the second degree. According to his plea agreement, Alfred alone first tried to obtain cash from a credit union teller before going to a coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle. During Alfred’s incarceration, he was charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(G)--a theft or burglary offense for which the term of imprisonment is at least one year. According to the IJ, the Ninth Circuit’s Alvarado-Pineda holding controlled; the state statute under which Alfred was convicted was a categorical match to the federal generic offense. Alfred, like Alvarado-Pineda, had been sentenced to a term of imprisonment of more than a year for each conviction. The BIA affirmed.The Ninth Circuit vacated, citing its post-Alvarado-Pinedo holding, Valdivia-Flores, that convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under 8 U.S.C. 1101(a)(43)(G), (U). View "Alfred v. Garland" on Justia Law

Born in Yemen in 1986, Ghanem was admitted to the U.S. as a lawful permanent resident in 2003. In 2009, Ghanem returned to Yemen to get married and settled with his wife in Sana’a. Pro-democracy uprisings, the Arab Spring, soon swept the region. Ghanem joined the reformers, participating in peaceful protests. Ghanem was warned that he was a potential political target given his open opposition to the Shia militants. Houthi rebels arrived at his home “with guns drawn” and removed his family. Ghanem was kidnapped, and brutally tortured for two weeks, followed by two weeks in the intensive care unit of a hospital. Ghanem attempted in vain to bring his torturers to justice. When his captors learned that he brought charges, they began to look for him, threatening to kill him., Ghanem fled but his abusers pursued him. While Ghanem was seeking refuge in Asia, the Houthis gained control of the government and obtained a judgment against him in absentia, sentencing him to 10 years' imprisonment.Ghanem was detained after he attempted to enter the U.S. under the mistaken impression that he still possessed a valid immigrant visa, 8 U.S.C. 1227(a)(1). Appearing pro se at a removal hearing, Ghanem sought asylum and withholding of removal on the basis of past persecution for political opinion and protection from removal under the Convention Against Torture. The Third Circuit vacated the denial of relief. The evidence indicated a nexus between the persecution Ghanem suffered and a protected ground. The BIA erroneously treated Ghanem’s familial relation to his persecutors as disqualifying. Ghanem would be unable to escape “gross, flagrant [and] mass violations of human rights” with the government’s acquiescence if returned to Yemen. View "Ghanem v. Attorney General of the United States" on Justia Law

Li, a citizen of the People’s Republic of China, entered the U.S. in 2010 on a nonimmigrant business visa. After Li’s visa expired, DHS charged her with removability. Li sought asylum, withholding of removal, and Convention Against Torture relief, claiming that she was persecuted because of her membership in a house church that is not registered with the Chinese government. In March 2010, when Li and others met for a house church meeting, the police arrested them for an illegal gathering. Li stated that an officer interrogated her, accused her of wanting to overthrow the Chinese government, and slapped and kicked her.At a 2017 hearing, the government informed the IJ that it had discovered Li’s undisclosed 2013 arrest record for prostitution in Washington. The IJ questioned Li about her submission of false information in her asylum application, then denied Li’s application based on an adverse credibility determination, citing the discrepancies relating to Li’s treatment in jail, her husband’s termination, and false information she provided in her visa application and in her asylum application. The Board affirmed, noting that, even if Li were credible, she did not establish her eligibility for asylum because she did not show that the harm she suffered in China rose to the level of past persecution. The Ninth Circuit denied a petition for review, finding the denials of relief supported by substantial evidence. View "Li v. Garland" on Justia Law

Petitioner Tojiddin Berdiev faced immigration removal proceedings since 2007. After more than a decade of petitions, motions, and appeals, the Board of Immigration Appeals denied Berdiev’s untimely motion to reopen removal proceedings (Berdiev’s second motion), then denied Berdiev’s motion to reconsider. In each of its two orders, the Board held that: (1) Berdiev was not entitled to equitable tolling of his untimely motion to reopen; and (2) exercise of the Board’s sua sponte reopening authority was unwarranted. Berdiev argued to the Tenth Circuit that the Board abused its discretion in making the first determination and relied on an erroneous legal premise in making the second. On equitable tolling, the Court concluded the Board did not abuse its discretion. On the exercise of the Board’s sua sponte reopening authority, however, the Court concluded the Board at least partly relied on a legally erroneous rationale; the Court could not determine whether the Board would have reached the same outcome independently based solely on valid reasons. Accordingly, the Court granted Berdiev’s petitions for review, vacated the Board’s two orders solely as to the sua sponte reopening decision, and remanded to the Board to reconsider that decision. View "Berdiev v. Garland" on Justia Law

The Eighth Circuit denied a petition for review challenging the BIA's dismissal of petitioner's appeal from an IJ's decision denying her request to terminate proceedings based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), and denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).As a preliminary matter, the court concluded that precedent forecloses petitioner's argument, based on Pereira, that the immigration court never acquired jurisdiction over her proceedings because her Notice to Appear (NTA) was deficient. The court also concluded that the agency properly denied petitioner's asylum application because her proposed particular group of "family unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala" was not legally cognizable because it lacked particularity and social distinction. Even assuming that her proposed particular social group of her nuclear family was cognizable, the court further concluded that substantial evidence supports the agency's finding that she failed to demonstrate the requisite nexus between any persecution or fear of persecution and her membership in the group. Furthermore, petitioner failed to establish her eligibility for withholding of removal, and she failed to exhaust her CAT claim. View "Osorio Tino v. Garland" on Justia Law

Alcaraz was born in Mexico in 1979 and entered the U.S. illegally when he was eight years old. In 1999, Alcaraz, who lacked legal immigration status, was involved in a domestic incident with his girlfriend, which led to a nolo contendere California felony conviction. He was removed, re-entered illegally in 2003, was deported again, and was caught attempting to re-enter in 2013.In 2018, the Ninth Circuit granted Alcaraz’s petition for review from a BIA order denying his applications for withholding of removal and deferral of removal under the Convention Against Torture. The court concluded that the BIA erred in not requiring the DHS to make a good-faith effort to make available key government witnesses for Alcaraz’s cross-examination and in not deeming true Alcaraz’s testimony before the Immigration Judge, absent an express adverse credibility determination from the IJ. The Supreme Court reversed that judgment upon the second basis for granting the petition. On remand, the Ninth Circuit again granted Alcaraz’s petition for review in part, citing the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom. The court remanded for a hearing that comports with the requirements of 8 U.S.C. 1229a(b)(4)(B), expressing no opinion on whether Alcaraz is entitled to withholding of removal. View "Alcaraz-Enriquez v. Garland" on Justia Law