Justia Immigration Law Opinion Summaries

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Manish and Priyanka married in June 2014. The marriage was dissolved in September 2018. The court of appeal upheld the trial court’s order granting Priyanka’s request for a domestic violence restraining order (DVRO), Family Code section 6344,2, as supported by substantial evidence based on Priyanka’s allegations of stalking and unwanted contact. The court of appeal reversed an order rescinding a prior award of attorney fees. The trial court rescinded the order based on new evidence, rather than the evidence presented at the original proceeding. By so doing, the court in effect improperly granted a new trial, a result which lies outside its inherent powers. The court of appeal affirmed the judgment of dissolution; the trial court utilized the appropriate standard of proof in denying Manish’s petition for nullity after finding that, though Priyanka’s immigration status may have played some indeterminate role in the marriage, it was not enough to establish fraud “go[ing] to the very essence of the marriage relation.” View "Marriage of Ankola" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable.The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case. View "Syed v. Barr" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's final order affirming the IJ's order of removal. Petitioner and her son, natives and citizens of El Salvador, filed an application for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT), claiming that she was persecuted because of her family membership.The court held that petitioner's financial resources, rather than her family membership, was the central reason for the persecution; the Board did not err in concluding that petitioner's first group -- membership in the Fuentes family -- is not cognizable; petitioner failed to prove past persecution on account of her membership in two other particular social groups -- Salvadoran female heads of households and vulnerable Salvadorean females; and, having failed to establish past persecution, petitioner is not entitled to a presumption of a well-founded fear of future persecution. Consequently, petitioner cannot meet the higher standard of proof for withholding of removal. View "Rodriguez Fuentes v. Barr" on Justia Law

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In 2008, Lopez-Garcia’s husband left Guatemala for the U.S. In 2014, Lopez-Garcia and her three minor children entered the U.S. without valid entry documents. Immigration officers apprehended them. An asylum officer found that she demonstrated a credible fear of persecution or torture in Guatemala. Lopez-Garcia and her children were placed in removal proceedings under 8 U.S.C. 1229a. Lopez-Garcia, with counsel, sought asylum listing her children as derivative beneficiaries. She described her experiences as a single mother in Guatemala, which included threats against her children.An IJ found that the threats did not qualify as past persecution and did not find her membership in the proposed particular social group of “Guatemalan females living with her children alone in their country, as their husbands had migrated to the United States and are not able to support or protect themselves and their children” to be the persecutory motive of the men who made the threats. Lopez-Garcia did not show that the Guatemalan government was unwilling or unable to protect her nor did she show a well-founded fear of future harm. The IJ denied the application for protection under the Convention Against Torture. The BIA affirmed. The Seventh Circuit denied a petition for review, finding no abuse of discretion. View "Lopez-Garcia v. Barr" on Justia Law

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Plaintiff filed suit against a police officer and a Justice of the Peace under 42 U.S.C. 1983 for violating his Fourth Amendment rights. In 2017, when plaintiff was a witness in a courtroom, another witness testified that plaintiff was "not a legal citizen." Based on that statement, the Justice of the Peace presiding over the hearing spoke with the officer and the officer placed plaintiff in handcuffs, searched plaintiff's person, and escorted him to a patrol car outside the courthouse. While plaintiff was waiting in the back of the patrol car, the officer ran a warrants check on plaintiff that came back clean. The officer then contacted ICE officials and plaintiff was taken to an ICE facility, where he remained in custody for three months.The Ninth Circuit affirmed the district court's denial of defendants' motions for summary judgment based on qualified immunity. Under Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011), the panel held that, unlike entry into the United States -- which is a crime under 8 U.S.C. 1325 -- illegal presence is not a crime. Under Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012), the panel held that because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is afoot. In this case, the officer stopped and arrested plaintiff without reasonable suspicion or probable cause, respectively, and the Justice of the Peace integrally participated in his actions. Furthermore, plaintiff's right to be free from unlawful stops in this circumstance has been established since at least 2012, by which time both Melendres and Martinez-Medina were law of the circuit. View "Reynaga Hernandez v. Skinner" on Justia Law

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Cuevas-Nuno, a native of Mexico, entered the U.S illegally and was charged as removable, 8 U.S.C. 1182(a)(6)(A)(i). Cuevas-Nuno conceded removability but applied for cancellation of removal and successfully moved to transfer his case from Virginia to Memphis. Notice of his next master hearing was sent to Cuevas-Nuno’s counsel. Cuevas-Nuno did not attend his second hearing. The IJ conducted an in absentia hearing, found Cuevas-Nuno’s cancellation of removal application abandoned, dismissed it, and ordered Cuevas-Nuno removed. Sixteen days later, Cuevas-Nuno moved to reopen, stating that he was confused about the date of the hearing. The IJ found no exceptional circumstance and denied the motion. The BIA upheld the determination.The Sixth Circuit dismissed a petition for review; Cuevas-Nuno failed to administratively exhaust his claims. Cuevas-Nuno’s argument that the incorrect notice his counsel’s employee gave him constitutes an “exceptional situation” sufficient for the IJ to sua sponte reopen her removal order is different from the issue of whether that conduct constitutes an “exceptional circumstance” sufficient to reopen the order under section 1229a(b)(5)(C)(i). His BIA brief did not mention lack of notice under 8 U.S.C. 1229a(b)(5)(C)(ii), his due process right to be heard, or his failure to submit evidence supporting his eligibility for cancellation of removal. The brief only discussed exceptional situations within the context of its argument that the IJ erred in failing to exercise her sua sponte discretion to reopen her removal order—not an 8 U.S.C. 1229a(b)(5)(C)(i) motion to reopen. View "Cuevas-Nuno v. Barr" on Justia Law

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The Ninth Circuit granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged that she suffered frequent and severe abuse at the hands of her domestic partner in Nicaragua and that Nicaraguan police officers accepted a bribe from her domestic partner and failed to protect her from him.The panel held that substantial evidence did not support the BIA's determination that petitioner had not shown that the Nicaraguan government was unable or unwilling to protect her from persecution. In this case, the BIA erred by faulting petitioner for failing to contact the police again and for failing to report the bribe, and by disregarding petitioner's credible testimony about why she did not report subsequent abuse. Furthermore, the BIA did not address whether petitioner belonged to a cognizable particular social group, was persecuted on account of her membership in that social group, or had a well-founded fear of future persecution. The panel also held that substantial evidence did not support the BIA's determination that petitioner had failed to show that the Nicaraguan government consented to or acquiesced in her torture for the purpose of CAT relief. Accordingly, the panel remanded for further proceedings. View "Davila v. Barr" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner seeks withholding of removal based on her fear that she would be persecuted in Guatemala on account of her membership in the particular social group of "indigenous women in Guatemala who are unable to leave their relationship."The panel declined to hold that the Attorney General's decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), was arbitrary or capricious and held that the Attorney General did not announce a new categorical exception for victims of domestic violence or other private criminal activity. Rather, the BIA must conduct the proper particular social group analysis on a case-by-case basis. The panel explained that the BIA seems to have erroneously understood Matter of A-B- to forbid any mention of feared harm within a proposed social group. In this case, the BIA's determination was plainly contrary to the Attorney General's requirement that claims must be carefully analyzed under the framework established by the BIA's precedents. Therefore, because the BIA avoided the case-specific inquiry demanded by Matter of A-B- and the BIA's precedents, the panel granted the petition and remanded petitioner's withholding claim. The panel also remanded petitioner's CAT claim for further consideration. View "Diaz-Reynoso v. Barr" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order. View "Valenzuela Gallardo v. Barr" on Justia Law

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The Supreme Court affirmed in part and reversed in part the judgment of the district court refusing to find that a minor child's reunification with Father was not viable for purposes of Special Immigrant Juvenile (SIJ) findings, holding that the court correctly awarded Mother custody but did not properly construe the controlling statute in determining whether reunification was not viable.After the child relocated to the United States to live with Mother, Mother filed the underlying custody action seeking primary physical and legal custody of the child and requesting that the district court make the necessary findings for the child to seek SIJ status. The district court awarded Mother custody but refused to find that reunification was not viable due to abandonment. The Supreme Court reversed in part, holding (1) in addressing whether reunification is not viable for the purpose of SIJ findings, a court should consider the conditions in the child's foreign country, the history of the parent-child relationship, and whether returning the child to the parent in the foreign country would be workable or practicable due to abandonment, abuse, or neglect; and (2) the district court did not apply the proper legal framework in concluding that it could not find that reunification was not viable. View "Lopez v. Serbellon Portillo" on Justia Law