Justia Immigration Law Opinion Summaries

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Argueta-Orellana, a citizen of El Salvador, entered the U.S. illegally and was charged with unlawful presence. Assisted by counsel, he sought asylum, withholding of removal, and relief under the Convention Against Torture. An IJ ordered him removed. Still represented by counsel, Argueta-Orellana appealed. The Board of Immigration Appeal’s standard Notice of Appeal asks whether the appellant intends to file an optional written brief or statement, advising: WARNING: If you mark “Yes” . . . , you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule. Argueta-Orellana’s counsel marked “Yes.” The Board issued a briefing schedule that repeated the warning. The Board later sent Argueta-Orellana a signed copy of the judge’s decision, along with a reminder of the briefing schedule containing the identical caution. Argueta-Orellana filed nothing.Exercising its discretion, the Board dismissed his appeal. The Third Circuit denied a petition for review. The Board’s decision was neither arbitrary nor irrational and a court cannot consider new arguments raised for the first time on appeal. View "Argueta-Orellana v. Attorney General United States" on Justia Law

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8 U.S.C. Section 1226(a) permits the Attorney General to detain aliens pending their removal hearings. Under those procedures, an alien is given notice and three opportunities to seek release by showing they are neither a flight risk nor a danger to the community.   A district court determined that a class of aliens had a likelihood of establishing that those procedures violated the Due Process Clause of the Fifth Amendment. That court then issued a preliminary injunction ordering, on a class-wide basis, that to continue detaining an alien under Section 1226(a), the government must prove by clear and convincing evidence that an alien is either a flight risk or a danger to the community. The district court also required immigration judges to consider an alien’s ability to pay any bond imposed and consider alternatives to detention.   The Fourth Circuit vacated the district court’s preliminary injunction order and held that under Section 1252(f)(1), the district court lacked jurisdiction to issue class-wide injunctive relief that enjoined or restrained the process used to conduct Section 1226(a) bond hearings. Further, the detention procedures adopted for Section 1226(a) bond hearings provide sufficient process to satisfy constitutional requirements. The court concluded for that reason-the aliens are unable to establish a likelihood of success on their due process claims. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor or that an injunction is in the public interest. View "Marvin Miranda v. Merrick Garland" on Justia Law

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Petitioner petitioned for review of an order of the Board of Immigration Appeals (“BIA”) upholding the decision of the Immigration Judge (“IJ”) denying her application for cancellation of removal and ordering her removed to Mexico.     The Ninth Circuit denied in part and dismissed in part Petitioner’s petition and held that Petitioner’s conviction for corporal injury upon a child, in violation of California Penal Code Section 273d(a), is a crime of violence aggravated felony that made her ineligible for cancellation of removal. The court reasoned that The Immigration and Nationality Act (“INA”) defines “aggravated felony” to include a “crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. Section 1101(a)(43)(F). Thus, because Petitioner’s conviction records confirmed a jail term of 365 days, the court explained that whether Petitioner was convicted of an aggravated felony turned solely on whether a violation of Section 273d(a) constitutes a “crime of violence” under 18 U.S.C. Section 16.   The court explained that the relevant language of Section 273d(a) imposes criminal punishment on any “person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” The BIA noted that this phrasing is very similar to California Penal Code Section 273.5(a), which punishes any “person who willfully inflicts corporal injury resulting in a traumatic condition upon” specified persons. The court rejected the remaining challenges to Petitioner’s removal order View "AURORA OLEA-SEREFINA V. MERRICK GARLAND" on Justia Law

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Defendant pleaded guilty to violating 18 U.S.C. Section 922(g)(5)(A), which makes it unlawful for aliens illegally in the country to possess firearms. But he insisted the district court erred at sentencing by applying Section 2K2.1(a)(4)(B) of the Sentencing Guidelines, which imposes an elevated base offense level if the offense involved a “semiautomatic firearm that is capable of accepting a large-capacity magazine.” Defendant further contended that the United States failed to prove that (1) the firearm and magazine were compatible, and (2) the firearm could fire multiple rounds without reloading.The Fifth Circuit vacated the District Court’s ruling and remanded for resentencing. The court reasoned that the “compatibility” requirement comes straight from the text of the Guidelines: a firearm must be capable of accepting a large capacity magazine. Here, the United States introduced zero evidence (let alone a preponderance) proving that the large-capacity magazine was compatible with Defendant’s firearm. Next, the court rejected the district court’s invitation to rely on proximity as a cure-all. The court reasoned that though it is true the Guidelines’ commentary states that an elevated base offense level comes into play under Section 2K2.1 when a large-capacity magazine is either “attached” or “in close proximity” to a qualifying firearm, both derive from the Guidelines’ unambiguous requirement that the firearm be capable of accepting the magazine. View "USA v. Luna-Gonzalez" on Justia Law

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Defendant pleaded guilty to unlawfully re-entering the United States following removal. The district court sentenced him to 51 months in prison. On appeal, Defendant argued that the district court miscalculated his advisory Guidelines range by deferring to the U.S. Sentencing Guidelines’ commentary rather than applying the Guidelines themselves.   Defendant argued that (A) after Kisor, courts should not defer to the Guidelines’ commentary unless the Guidelines themselves are ambiguous. He then argued that (B) Application Note 3 to Section 2L1.2 conflicts with the unambiguous Guidelines by requiring courts to “double-count” certain prior convictions when calculating the guidelines range. The Fifth Circuit affirmed the Defendant’s conviction for illegal reentry. The court held that the district court properly calculated Defendant’s guidelines range, and his double-counting objection lacks merit.   The court reasoned that Application Note 3 to Section 2L1.2 is not in tension with the Guidelines. Rather, application Note 3 merely describes what the Guidelines’ text and structure would unambiguously require even in its absence. Further, Defendant cites no precedent supporting his argument that “double-counting” is per se incompatible with the Guidelines and the Guidelines’ text and structure do not support Defendant’s argument. View "USA v. Cordova-Lopez" on Justia Law

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Petitioner a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”) denied Petitioner’s application for relief from removal and ordered him removed to Cameroon after determining that Petitioner was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Petitioner was removed to Cameroon.   The Fifth Circuit granted Petitioner’s petition for review of the BIA’s dismissal of his appeal on the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and remanded the case to the BIA.   The court reasoned that under BIA precedent, an adverse credibility determination should not be based on inconsistencies that take one by surprise. Relatedly, the court has approved, but not required, that petitioners should be given the opportunity to explain any non-obvious discrepancies that may bear on their credibility. Here, at no point during the hearing before the IJ was Petitioner provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross-examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence.  Further, the court noted that there is no evidence—beyond the statement of the BIA majority—that Petitioner’s counsel failed to preserve this issue on appeal. View "Nkenglefac v. Garland" on Justia Law

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While tending to the wounds of a separatist fighter at a local hospital, Cameroonian soldiers punched Petitioner, attacked him and threatened to kill him if they ever caught him treating separatists again. Petitioner sought review of the Board of Immigration Appeals (“BIA”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The BIA denied asylum and withholding of removal on the grounds that Petitioner had (a) failed to demonstrate past persecution and (b) failed to prove a nexus between the feared harm and a protected ground.The Ninth Circuit held that the harm Petitioner suffered, including the physical injury, the specific death threats connected to the physical harm, and evidence of the country’s political and societal turmoil, compelled the finding of past persecution. The court held that the IJ’s finding that Petitioner failed to establish a nexus based on the fact that he had not testified as to what happened to a hospital coworker who helped Petitioner, was vague because it was not directly responsive to Petitioner’s argument. Further, the court held that it also was not clear whether this reason rested on the flawed findings of fact concerning past persecution or whether this reason faulted Petitioner for not providing corroborative evidence. In light of the ambiguities, the court concluded that it could not conduct a meaningful review of the agency’s nexus determination, and it remanded for a clear explanation. Finally, the court held that substantial evidence supported the denial of CAT relief. View "STEPHEN FON V. MERRICK GARLAND" on Justia Law

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Arreola illegally entered the U.S. in 1996. He and Maria have two children, both U.S. citizens. Maria’s older daughters and three grandchildren also live in the household. Arreola is the primary breadwinner. Maria suffers from severe migraines and hearing problems. After Arreola’s 2015 DUI conviction, he was charged as inadmissible under 8 U.S.C. 1182(a)(6)(A)(i). The notice said only that the date and time of the removal proceedings were “[t]o be set.” DHS notified Arreola several times of the date for his hearing. At his first appearance, Arreola sought cancellation of removal. Arreola fears being kidnapped if removed to Mexico, based on the false perception that people coming from the U.S. have money. Three days before his hearing, Arreola moved to terminate the removal proceedings because his initial Notice to Appear did not provide a date and time, citing the Supreme Court’s Pereira decision, issued a month earlier.The IJ held that the agency’s later provision of the missing information cured the violation and that Arreola failed to show that his removal “would result in exceptional and extremely unusual hardship to [his] … child. His only child under age 21 was “in good health, and has no special educational needs.” The BIA affirmed. The Seventh Circuit denied a petition for review. Even if Arreola’s untimeliness in objecting was excused, there was no prejudice stemming from the defective Notice. The cited personal hardships cited do not justify the cancellation of removal. View "Arreola-Ochoa v. Garland" on Justia Law

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Ford, a Haitian national, became involved in Haitian national politics by joining PPD in 2012; he believed the ruling political party, PHTK, was corrupt and involved in human rights abuses. Ford received anonymous threatening telephone calls; in 2014, armed men encircled Ford’s home, shot into it, and burned it down. Ford reported the attack to Haitian authorities and fled Haiti. The United States began removal proceedings.Ford hired an attorney, who submitted a Form I-589 application for asylum, withholding of removal, and relief under the Convention Against Torture. Ford and the attorney subsequently had little contact. Ford stated the attorney “never prepared me for my final hearing.” The attorney provided scant documentary evidence to support Ford’s application and did not submit any documents about the PPD. The IJ denied relief, finding that Ford was credible but had “submitted no objective evidence” to help meet his burden in proving that he was harassed or persecuted on account of his political opinion or that Ford’s fear of persecution upon his return to Haiti was reasonable. Ford retained new counsel. The BIA affirmed and denied a motion to reopen Ford’s case based on ineffective assistance.The Third Circuit vacated. Ford presents a meritorious ineffective-assistance claim; his lawyer failed to present important and easily available evidence going to the heart of Ford’s claims. View "Saint Ford v. Attorney General United States" on Justia Law

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A mother and daughter from El Salvador were ordered removed. The Board of Immigration Appeals affirmed. Mother and daughter retained counsel and filed a petition for review in the Fifth Circuit. As a result of personal issues and the challenges presented by the COVID-19 pandemic, counsel requested three extensions to file an opening brief. Upon the final due date, instead of filing an opening brief, counsel filed a motion asking the court to dismiss the petition for the mother, but remand it for the daughter. Evidently, the mother had died and the daughter was now proceeding as a minor orphan.The Fifth Circuit denied the petition. First, counsel provided no legal arguments for the relief he sought on behalf of his clients. Second, the court was not provided with the relevant standard to apply to the voluntary withdrawal of a petition for review. Finally, the court noted that counsel provided no explanation as to why giving up on daughter's petition for review was in her best interest and that, in the court's assessment, doing so would be manifestly unjust. View "Vasquez-De Martinez v. Garland" on Justia Law