Justia Immigration Law Opinion Summaries

The Fifth Circuit granted in part and denied in part the United States' motion for a stay pending appeal of the district court's nationwide preliminary injunction preventing the United States from relying on immigration enforcement priorities outlined in memos from DHS and ICE. On Inauguration Day, January 20, 2021, the Acting Secretary of DHS issued a memo announcing that the Department would undergo a comprehensive review of enforcement policies, announcing DHS's interim enforcement priorities, and directing an immediate 100-day pause on removals. ICE issued a memo on February 18, 2021 that incorporates the same three interim priorities.The court did not see a strong justification for concluding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. Therefore, the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos' enforcement priorities for nondetention decisions. The court also concluded that the remaining factors also support a partial stay.The court stated that the injunction will go into effect to the extent it prevents DHS and ICE officials from relying on the memos to refuse to detain aliens described in 8 U.S.C. 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed. The court stayed the injunction pending appeal in all other respects including the reporting requirements. View "Texas v. United States" on Justia Law

The noncitizens, victims of grave crimes, cooperated with law enforcement. They applied for U-visas, 8 U.S.C. 1103(a)(1), 1101(a)(15)(U), and authorization to work; two sought derivative U-visas and work authorization for some of their family members. They have waited years for USCIS to adjudicate their applications and remain unable to obtain lawful employment, to visit family members who live abroad, or to attain deferred-action status that would protect them from removal. They filed suit. While an appeal was pending, USCIS announced a new program for persons with pending U-visa applications: the “Bona Fide Determination Process.”The Sixth Circuit held that the issuance of the Bona Fide Determination Process does not moot any part of the case. Federal courts are not precluded from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist. USCIS is required by 8 U.S.C. 1184(p)(6) and the Bona Fide Determination Process to decide whether a U-visa application is “bona fide” before the agency can exercise its discretion and decide whether principal petitioners and their qualifying family members may receive Bona Fide Determination Employment Authorization Documents, so 5 U.S.C. 706(1) permits the federal courts to hasten an unduly delayed “bona fide” determination. View "Garcia v. United States Department of Homeland Security" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal. The panel addressed the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), and held that California Penal Code 273a(a) does not qualify as a crime of child abuse, child neglect, or child abandonment.The panel concluded that the text of 8 U.S.C. 1227(a)(2)(E)(i) unambiguously forecloses the BIA's interpretation of "a crime of child abuse, child neglect, or child abandonment" as encompassing negligent child endangerment offenses. The panel noted that, while several of its sister circuits have deferred to the BIA's decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the panel found those decision both distinguishable and unpersuasive. The panel explained that, because section 273a(a) criminalizes conduct that falls outside the generic federal definition, it is not a categorical match for "a crime of child abuse, child neglect, or child abandonment." View "Diaz-Rodriguez v. Garland" on Justia Law

The Third Circuit denied a petition for review challenging the BIA's ruling that petitioner's conviction for aggravated identity theft in violation of 18 U.S.C. 1028A(a)(1) is a crime involving moral turpitude (CIMT), thus making him removable pursuant to 8 U.S.C. 1227(a)(2)(A)(ii). The court applied the modified categorical approach and concluded that petitioner pleaded guilty to violating section 1028A with the predicate felony of bank fraud, an undeniable CIMT. The court explained that that, by itself, is sufficient to support the BIA's ruling that petitioner's 1028A(a)(1) conviction constituted a CIMT because it requires fraudulent intent. Because this conviction is petitioner's second CIMT, the court concluded that the BIA did not err in concluding that he is removable under section 1227 (a)(2)(A)(ii). View "Sasay v. Attorney General of the United States" on Justia Law

After settling with the liability carrier, plaintiff filed an Underinsured Motorist (UIM) claim with her insurer, Farmers. Farmers made a settlement offer that was rejected by plaintiff when she presented a significantly higher counteroffer. In response to the counteroffer, Farmers continued its investigation by requesting updated medical documents and informing plaintiff that she needed to submit to an examination under oath (EUO). Plaintiff refused and filed this action.The Eighth Circuit affirmed the district court's grant of summary judgment in favor of Farmers, concluding that, by commencing suit, plaintiff materially breached the cooperation clause with Farmers. The court explained that nothing in the language of the policy draws a distinction between an initial investigation or a reopened investigation, and plaintiff has cited nothing in either her policy or Missouri law supporting her claim that her duty to cooperate was extinguished under these circumstances. Furthermore, plaintiff waived her argument that she was excused from waiving her duty to cooperate and the evidence does not support her claim that Farmers waived its right to request an EUO. The court concluded that when plaintiff failed to submit to the requested EUO, she prevented Farmers from continuing its investigation of her claim. Consequently, her refusal prejudiced Farmers. Finally, the record demonstrates that Farmers was reasonably diligent in its decision to require plaintiff's participation at an EUO. View "McClune v. Farmers Insurance Co., Inc." on Justia Law

The Eleventh Circuit denied a petition for review challenging the BIA's dismissal of petitioner's appeal from the IJ's removal order. The court concluded that each of petitioner's two Georgia convictions for simple battery was a crime of violence for which the term of imprisonment was at least one year, within the meaning of 8 U.S.C. 1101(a)(43)(F). Therefore, petitioner was convicted of two "aggravated felonies," as that term is defined in the Immigration and Naturalization Act, and is ineligible for cancellation of removal. View "Talamantes-Enriquez v. U.S. Attorney General" on Justia Law

Petitioner sought review of the BIA's decision dismissing his due process claims, the denial of his motion to terminate, and the denial of his application for withholding or deferral of removal under the Convention Against Torture (CAT). In this case, the IJ determined that petitioner was not competent to represent himself in removal proceedings; appointed a qualified representative; denied petitioner's motion to terminate; and found petitioner removeable for an aggravated felony.The Ninth Circuit dismissed petitioner's due process claims and denied his petition for review. The panel concluded that, given the record in this case, the IJ's safeguards sufficed to provide petitioner with due process such that termination of the proceedings was not required. The panel also concluded that amicus counsel's fact-based disagreements with the IJ's discretionary "particularly serious crime" determination are unexhausted and unreviewable. Finally, the panel concluded that the evidence does not compel reversal of the BIA's denial of deferral or removal under CAT. View "Benedicto v. Garland" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's motion to reopen based on changed country conditions. Petitioner fears persecution if he is deported to Iran based on his Christian faith.The panel concluded that, because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. Furthermore, even if it does, the first exception to the law-of-the-case doctrine applies to petitioner's case. After reviewing the record, the panel concluded that the prior panel's decision, which was unsupported by substantial evidence, was clearly erroneous and enforcing it against petitioner would be unjust. In this case, the prior panel ignored the IJ's factual and legal errors; the prior panel accepted the IJ's incorrect application of the falsus maxim; and the prior panel accepted the IJ's violation of Kamalthas v. INS, 251 F.3d 902 (7th Cir. 2000). The panel also concluded that petitioner had not waived any challenge to the Board's interpretation of 8 U.S.C. 1003.2(c)(1), and determined on de novo review that petitioner was not required to include a new application for relief when he had previously submitted an application for relief based on his religious persecution claim. Finally, the panel concluded that the Board abused its discretion in determining that plaintiff failed to establish changed country conditions or prima facie eligibility for CAT relief. Accordingly, the panel remanded for further proceedings. View "Etemadi v. Garland" on Justia Law

Petitioner, a criminal alien facing deportation to Somalia, petitions for review of the order of the BIA confirming his removability and denying his applications for withholding of removal, protection under the Convention Against Torture (CAT), and a refugee inadmissibility waiver. Petitioner also challenges the denial of his petition for a writ of habeas corpus.The Eleventh Circuit concluded that petitioner failed to preserve whether his defective notice to appear violated the agency's claim-processing rules; petitioner is removable for his controlled substance conviction; and, in the alternative, petitioner is removable for his second-degree assault conviction. The court also concluded that the Board denied the refugee inadmissibility waiver under the correct legal standard; the Board did not err in denying petitioner's applications for withholding of removal and for protection under the CAT; and petitioner's habeas petition is moot as to detention under 8 U.S.C. 1226(c), and is not ripe as to detention under section 1231(a). Accordingly, the court dismissed in part, denied in part, dissolving the stay of removal and remanded with instructions to dismiss the habeas petition. The court denied the government's motion to dismiss the appeal. View "Farah v. U.S. Attorney General" on Justia Law

On rehearing en banc, the court held that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and overruled the court's prior precedent establishing and applying it. The single factor rule required the court to sustain an adverse credibility determination from the BIA, so long as one of the agency's identified grounds was supported by substantial evidence. The panel remanded to the three-judge panel to re-examine the petition for review in light of the court's clarification of the standard for reviewing the BIA’s adverse credibility determinations. View "Alam v. Garland" on Justia Law