Justia Immigration Law Opinion Summaries

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An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer's part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer. The Ninth Circuit granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for adjustment of status on the ground that she is ineligible for relief under 8 U.S.C. 1255(c)(2). The panel held that, although substantial evidence supported the IJ's finding that petitioner's attorney never filed a corrected I-129, petitioner reasonably relied on her attorney's assurances that he had filed the corrected I-129 petition necessary to maintain her lawful immigration status, and she remains eligible for adjustment of status because her failure to maintain lawful status continuously since entering the United States occurred through no fault of her own. The panel remanded for consideration of the IJ's alternative ground for denial of relief. View "Peters v. Barr" on Justia Law

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The Eighth Circuit denied the petition for review of the BIA's order dismissing petitioner's appeal from the IJ's decision denying her asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that the agency's adverse credibility findings were supported by specific, cogent, reasons for disbelief. In this case, petitioner failed to address the myriad of inconsistencies and contradictory statements on the record, such as the number of times she was abused, where she was abused, and whether she could successfully leave her partner. Such information was material in determining whether she is a member of a particular social group, suffered from past persecution, or has a reasonable fear of future persecution. View "Garcia v. Barr" on Justia Law

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Plaintiff’s father is a Pakistani citizen, previously a legal permanent resident, who was removed from the United States. Plaintiff sought a declaration that his father’s removal was unconstitutional as applied to Plaintiff and violated international treaties and a declaration that the interview of Plaintiff and his mother during his father’s removal proceeding was unconstitutional because ICE agents made racially discriminatory comments to Plaintiff and his mother. The district court dismissed Plaintiff’s complaint, finding that it did not have jurisdiction over claims brought under the international treaties, which are not self-executing. The court also stated that it “is well-settled that lawfully removing a parent from the United States does not deprive a United States citizen child of a constitutional right.” The Sixth Circuit affirmed, noting that it had no information about the removal of Plaintiff’s father. Under 8 U.S.C. 1252(b)(9), no federal court has the authority to review” Plaintiff’s father’s order of removal to determine whether Plaintiff’s constitutional rights might render the order of removal invalid; no court would be able to grant the relief that Plaintiff seeks. The court found that it lacked jurisdiction to review a selective enforcement claim brought by Plaintiff on behalf of his father under 8 U.S.C. 1252(g). View "Butt v. Barr" on Justia Law

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Sumaila was born in Accra, Ghana. At age 26, when his sexual orientation became known, Sumaila was attacked by his father and his neighbors. He went into hiding and eventually entered the United States without authorization. Sumaila sought asylum and withholding of removal and protection from removal under the Convention Against Torture (CAT) because he fears being persecuted or tortured on account of his sexual orientation if returned to Ghana. Ghana criminalizes same-sex relationships and has no track record of combatting widespread anti-gay violence, harassment, and discrimination. While finding Sumaila credible, the Immigration Judge ordered his removal. The BIA affirmed. The Third Circuit vacated the denial of relief. Sumaila has demonstrated that he was targeted on account of his membership in a statutorily protected group; the attack and death threats Sumaila suffered were serious enough to rise to the level of persecution. He is entitled to a rebuttable presumption of a “well-founded fear of future persecution.” Sumaila also demonstrated that his experience was not a random or isolated act of private violence, but part of a pattern or practice of persecution against the LGBTI community in Ghana more generally. View "Sumaila v. Attorney General United States" on Justia Law

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The Second Circuit granted a petition for review of the BIA's decision denying petitioner's application for deferral or removal under the Convention Against Torture. Petitioner contended that, if he was removed to Jamaica, he would be killed in retaliation for his earlier cooperation with law enforcement. The court held that the jurisdictional provision in 8 U.S.C. 1252(a)(2)(C), which limits this court's jurisdiction, applies only to cases where the IJ has found a petitioner removable based on covered criminal activity, and that it does not apply where a petitioner's order of removal is based solely on unlawful presence. The court also held that the IJ and BIA discounted petitioner's credible testimony without proper explanation, failed to consider substantial and material evidence that petitioner is likely to be killed if removed to Jamaica, and erroneously placed a burden on petitioner to prove he could not internally relocate in order to avoid torture. Accordingly, the court remanded petitioner's application for deferral of removal for further proceedings. View "Manning v. Barr" on Justia Law

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The Court of Appeals affirmed Defendant's conviction and affirmed the denial of Defendant's pro se motion pursuant to N.Y. Crim. Proc. Law (CPL) 440.10 to vacate his conviction of attempted burglary in the second degree, holding that Defendant did not preserve his due process claim that the trial court failed to inform him of potential immigration consequences as a result of his conviction and that Supreme Court did not abuse its discretion in summarily rejecting Defendant's CPL 440.10 motion. Defendant was served, in open court and months before the plea proceedings leading up to his plea of guilty to attempted burglary in the second degree, with a "Notice of Immigration Consequences" form. In affirming both Defendant's conviction on his direct appeal and Supreme Court's denial of Defendant's CPL 440.10 motion the Appellate Division concluded that provision of the notice to Defendant meant that his direct appeal did not fit within "the narrow exception to the preservation requirement." The Court of Appeals affirmed, holding (1) Defendant's claim on appeal was unpreserved as a matter of law, and no exception to the preservation rule applied; and (2) Supreme Court acted within its discretion in denying Defendant's CPL 440.10 motion without a hearing. View "People v. Delorbe" on Justia Law

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Petitioner petitioned the Eleventh Circuit a second time to review the BIA's final order of removal. The court had granted in part petitioner's first petition challenging the classification of his prior conviction for aggravated battery with a firearm as an aggravated felony under the residual clause definition of a crime of violence. The court held that the residual clause was void for vagueness under Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018), and granted the petition. On remand, the BIA classified petitioner's prior conviction as an aggravated felony under the elements clause of the definition of a crime of violence pursuant to 18 U.S.C. 16(a). The court denied in part and dismissed in part the second petition, holding that petitioner's arguments -- that the Florida statute defining aggravated battery is indivisible and that the offense does not constitute a crime of violence -- are foreclosed by precedent. The court also held that it lacked jurisdiction over petitioner's argument that the BIA should review his application for deferral of removal, because petitioner failed to challenge the denial of his application in his appeal to the BIA. View "Lukaj v. U.S. Attorney General" on Justia Law

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The Ninth Circuit held that the district court did not abuse its discretion in granting a preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained after entering the United States and were found by an asylum officer to have a credible fear of persecution. The panel held that the district court did not abuse its discretion in applying the Winter factors and concluding that plaintiffs were likely to prevail on the merits of their due process claim regarding the availability of bond hearings; in concluding that plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction; and in determining that the balance of the equities and public interest favors plaintiffs with respect to Part B of the preliminary injunction. Therefore, the panel affirmed the district court's order in part. The panel held that the record was insufficient to support Part A of the preliminary injunction order for the required bond hearings, and remanded for further findings and reconsideration with respect to the particular process due to plaintiffs. The panel also held that 8 U.S.C. 1252(f)(1) did not bar the district court from granting preliminary injunctive relief for this class of noncitizens, each of whom is an individual noncitizen against whom removal proceedings have been initiated. Finally, the panel held that the district court did not abuse its discretion in granting a preliminary injunction with respect to the nationwide class. View "Padilla v. Immigration and Customs Enforcement" on Justia Law

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The Eighth Circuit denied petitions for review challenging the BIA's interpretation of the Supreme Court's decision in Esquivel–Quintana v. Sessions, 137 S. Ct. 1562 (2017). Petitioner asked the BIA to reopen his proceedings under 8 C.F.R. 1003.2 and 8 U.S.C. 1229a(c)(7), contending that Esquivel–Quintana narrowed what crimes qualify as "sexual abuse of a minor." The court held that the time for filing a motion to reopen was not equitably tolled and thus petitioner's motion was untimely. In this case, petitioner did not raise a colorable constitutional claim, so under currently existing law, the court could not review the BIA's decision not to reopen his case on its own motion. The court declined to recognize a second exception permitting appellate review when the Board relies "on an incorrect legal premise." View "Chong Toua Vue v. Barr" on Justia Law

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The Eleventh Circuit granted a petition for review of the BIA's ruling that petitioner's conviction for sexual misconduct, N.Y. Penal Law 130.20, qualifies, under the modified categorical approach, as the aggravated felony of rape, 8 U.S.C. 1101(a)(43)(A), and a crime involving moral turpitude. Because the record of conviction does not make clear whether petitioner pleaded guilty to forcible or statutory rape, the court need not decide whether the New York statute is divisible as between those two different kinds of rape or whether the criminal complaint is a valid Shepard document. The court explained that, even if it were to resolve both issues in the department's favor, the criminal complaint would still fail to establish that petitioner pleaded guilty to forcible rape. Furthermore, the board failed to address whether statutory rape is a crime involving moral turpitude, so the court does not address that issue. Nor does the court need to address petitioner's alternative argument that he is eligible for a discretionary waiver of deportation even if he is removable. The court vacated and remanded for further proceedings. View "George v. U.S. Attorney General" on Justia Law