Justia Immigration Law Opinion Summaries

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Pugin, a citizen of Mauritius, was admitted to the U.S. in 1985 as a lawful permanent resident. In 2014, Pugin pleaded guilty in Virginia to being an accessory after the fact to a felony. He was sentenced to 12 months imprisonment with nine months suspended. Pugin was charged with removability because he was convicted of an aggravated felony: “an offense relating to obstruction of justice, perjury, or subornation of perjury,” 8 U.S.C. 1101(a)(43)(S), 1227(a)(2)(A)(iii).The IJ employed the categorical approach to determine whether the Virginia conviction qualified as obstruction of justice, noting that the BIA had previously decided that a federal conviction for accessory after the fact is a crime relating to obstruction of justice. The IJ then held that Virginia accessory after the fact is an offense relating to obstruction of justice because, like its federal counterpart, the offense requires the defendant “act with the ‘specific purpose of hindering the process of justice.’” The Fourth Circuit affirmed that Pugin may be deported. The BIA definition of “obstruction of justice” under the Act is entitled to "Chevron" deference and the Virginia offense of accessory after the fact categorically matches that definition. View "Pugin v. Garland" on Justia Law

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Kumar, born in India, belonged to a caste considered to be of lower social standing. He joined the Bahujan Samaj Party (BSP) because of its opposition to the caste system. He asserts that as a result of his work for the BSP, he was beaten four times by the police and members of opposing parties. An IJ denied his application for asylum and related relief on adverse credibility grounds. The BIA dismissed Kumar’s appeal.The Ninth Circuit remanded. Under the REAL ID Act, IJs must base credibility determinations on “the totality of the circumstances, and all relevant factors.” 8 U.S.C. 1158(b)(1)(B)(iii), abrogating the single factor rule to which the Ninth Circuit previously adhered. Two of Kumar's three alleged testimonial inconsistencies were actually not inconsistent. Concerning finding that a third-party letter conflicted with Kumar’s testimony, the court concluded that the inconsistency was wholly illusory. A finding that it was implausible that Kumar would not have suffered more injuries after a certain attack relied entirely, improperly, on conjecture. The IJ’s conclusion that Kumar’s affect suggested that he was reciting a rehearsed story, rather than relating incidents he had personally experienced, “passed the low bar for reviewing such findings.” No specific number of inconsistencies requires sustaining or rejecting an adverse credibility determination but falsehoods and fabrications weigh particularly heavily in the inquiry; clear falsehoods and fabrications were entirely absent here. View "Kumar v. Garland" on Justia Law

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Zometa-Orellana's domestic partner in El Salvador, Oscar, beat and raped her and locked her inside their home to prevent her from seeking help. She escaped, thinking she could not relocate within El Salvador due to its small geographic size, and that she could not rely on the El Salvadorian police. She entered the U.S. without inspection, was apprehended, and sought asylum and withholding of removal (8 U.S.C.A. 1158(a)-(b), 1231(b)(3)) based on her anti-machismo political opinion and her membership in a particular social group--El Salvadorian women of childbearing age in domestic partnerships.The IJ ultimately assumed that her allegations were credible but found no evidence Zometa-Orellana ever expressed any anti-machismo political opinion to anyone except Oscar and concluded that Zometa-Orellana’s proposed particular social group failed because “age” is a “mutable” characteristic and that she was targeted because she was her abuser's domestic partner. The IJ noted that Zometa-Orellana had not demonstrated that the government would be unable to protect her or that she was unable to relocate within El Salvador. The BIA agreed, noting that she did not report the incidents to the police.The Sixth Circuit vacated, noting that a crucial case on which the BIA and the IJ relied to assess Zometa-Orellana’s particular social group was vacated by the Attorney General. The IJ and BIA failed to consider the entire record in determining the El Salvadorian government’s willingness to respond and Zometa-Orellana’s ability to relocate within El Salvador. View "Zometa-Orellana v. Garland" on Justia Law

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Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding. View "United States v. De la Mora-Cobian" on Justia Law

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The Second Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen proceedings. The court explained that recent Supreme Court jurisprudence has established that Notices to Appear issued under 8 U.S.C. 1229(a)(1) that fail to provide time-and-place information for removal proceedings in a single document do not satisfy the statutory requirements in 8 U.S.C. 1229(a)(1), and thus do not cut off the alien's time of continuous presence in the United States needed for discretionary relief from removal.In this case, the court concluded that an Order to Show Cause, an older version of a charging document issued pursuant to 8 U.S.C. 1252b(a)(1) (1994) prior to the enactment of 8 U.S.C. 1229(a)(1), need not provide that information in a single document in order to cut off the alien's continuous presence in the United States. The court considered petitioner's remaining arguments and found them to be without merit. Accordingly, the court denied all pending motions and applications and vacated all stays. View "Naizhu Jiang v. Garland" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision denying petitioners' second motion to reopen their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel concluded that the Board erred by failing to assess petitioners’ individualized risk of persecution in Indonesia due to their identity as evangelical Christians. Although the Board correctly recognized that Christians in Indonesia are a disfavored group, the panel explained that the Board failed to account for petitioners' status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general. Accordingly, the panel remanded for the Board to assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. The panel also remanded with instructions. View "Nababan v. Garland" on Justia Law

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Mbonga joined an athletic club that had connections with the Congo’s then-ruling political party, the People’s Party for Reconstruction and Development. The club’s leaders recruited Mbonga to join the party’s youth group in 2013. The leaders allegedly planned to use the youth group to disrupt peaceful protests by the opposition party, the Union for Democracy and Social Progress. Mbonga refused to participate and, instead, joined the opposition party because of its political platform favoring equality and nonviolence. He began to attend the opposition party’s demonstrations and meetings. He claims that he was subsequently beaten by police several times.In 2018, Mbonga arrived in the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture. An IJ denied relief, finding that Mbonga was not credible and lacked a likelihood of future persecution because of changed conditions in the Congo. The country had since elected a new president from Mbonga’s own political party. The BIA affirmed. The Sixth Circuit denied a petition for review. The BIA can find a disqualifying change in conditions using general evidence showing that the political party that persecuted a refugee has lost power, which shifts the burden to the refugee to identify specific evidence proving that persecution still remains likely. Mbonga did not present such evidence. View "Mbonga v. Garland" on Justia Law

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Goulart, a citizen of Brazil. was removed in 2013, after the BIA determined that his conviction was a crime of violence under 18 U.S.C. 16(b). In 2015, the Ninth Circuit held that section 16(b) was unconstitutionally vague. In 2018, the Supreme Court affirmed in “Dimaya.” Goulart learned of the latter ruling on June 9, 2018, when he was so informed by his former defense attorney. He filed his motion for reconsideration based on a change in the law on July 16, 2018.The Ninth Circuit held that the BIA did not abuse its discretion in denying Goulart’s claim for equitable tolling of the 30-day motions deadline. Goulart failed to present any evidence suggesting that he diligently pursued his rights during the time between his removal in 2013 and when he learned of Dimaya in 2018. Even assuming that he was unaware of the Ninth Circuit’s 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to make reasonable efforts to pursue relief. View "Goulart v. Garland" on Justia Law

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The Fifth Circuit affirmed the BIA's decision denying petitioner's second motion to reopen his immigration proceedings. Petitioner, a native and citizen of India, was ordered to be deported in absentia in 1996 by an IJ, but was not actually deported. The court concluded that petitioner failed to demonstrate that he lacked notice, and the BIA did not err in concluding that his second motion to reopen for lack of notice was time and number barred. In this case, petitioner does not contest the IJ's legal determination or factual findings that it was his burden to inform the immigration court of his correct address and he failed to do so. The court also concluded that Pereira v. Sessions, 138 S. Ct. 2105 (2018), is inapplicable to petitioner's case because it deals with a materially different statute. Therefore, the BIA did not abuse its discretion in concluding that Pereira did not warrant reopening of petitioner's deportation proceedings. View "Maradia v. Garland" on Justia Law

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On March 4, 2020, Governor Newsom declared a state of emergency due to the spread of COVID-19. On March 16, the Legislature enacted an emergency amendment to the Budget Act, appropriating $500 million, and authorizing additional disbursements for any purpose related to the state of emergency upon order of the Director of Finance, with notice to the Legislature, but without requiring statutory approval of each individual project. On April 15, Governor Newsom announced a $75 million Disaster Relief Fund to “support undocumented Californians impacted by COVID-19 who are ineligible for unemployment insurance and disaster relief, including the CARES Act, due to their immigration status.” Approximately 150,000 undocumented adult Californians would receive a one-time cash benefit of $500 per adult with a cap of $1,000 per household to deal with specific needs arising from the pandemic.On April 29, the plaintiffs filed suit challenging the Project as an unlawful expenditure of public funds (Code Civ. Proc. 526a.), reasoning that federal law provides that undocumented immigrants are not eligible for state public benefits, with exceptions, 8 U.S.C. 1621(a), including the enactment of a state law after the date of the enactment of the federal act. Plaintiffs alleged that the Project was not enacted by a state law and sought a temporary restraining order. The court of appeal dismissed, as moot, an appeal from the denial of a TRO. The spending has already occurred; there is no indication it will be reauthorized. View "Cerletti v. Newsom" on Justia Law