The U Visa, created under the Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1464, grants temporary legal status to victims of specified crimes who have cooperated or are likely to cooperate in the investigation and prosecution of those crimes. After three years of holding a U Visa, an alien may apply for permanent resident status (8 U.S.C. 1255(m)(1)). Carmen entered the U.S. in 2005, became a lawful permanent resident under the “U Visa” statute because she was a rape victim, then sought permanent resident status for her son, Dario, under 8 U.S.C. 1255(m)(3), which empowers the U.S. Department of Homeland Security (DHS) to grant that status to certain family members, including a “child,” of an immigrant in Carmen’s situation. While that application was pending, Dario reached the age of 21, which made him ineligible under a DHS regulation that implements section 1255(m)(3). The Third Circuit upheld the denial of the application. Section 1255(m)(3) unambiguously requires DHS to assess the familial relationship required under that statute as it exists when DHS decides the application, even though this means a child can “age out” of eligibility while an application is pending. The DHS regulation adheres to this unambiguous meaning of the statute. View "Aybar v. Secretary United States Department of Homeland Security" on Justia Law

Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program every year since the program’s 2006 inception in 2006. The Justice Department notified the city that it was withholding its FY2017 award because the city was not in compliance with three newly implemented conditions that required greater coordination with federal officials on matters of immigration enforcement. The city filed suit and was awarded summary judgment. The Third Circuit affirmed the order to the extent that it enjoins enforcement of the challenged conditions against the city and vacated the order to the extent it imposed a requirement that the federal government obtain a judicial warrant before seeking custody of aliens in city custody.. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it “literally has no power to act … unless and until Congress confers power upon it.” Congress did not grant the Attorney General this authority and the Challenged Conditions were unlawfully imposed. The Byrne statute itself provides no such authority and the conditions are not authorized by 34 U.S.C. 10102, the provision establishing the “Duties and Functions of Assistant Attorney General.” View "City of Philadelphia v. Attorney General United States" on Justia Law

Petitioner sought review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Eighth Circuit denied the petition, holding that there was no legal error in the IJ's determination that petitioner's application for asylum was untimely. The court also held that the criminal acts against petitioner by his cousin did not constitute persecution for purposes of withholding removal, and the specific acts petitioner put forward as evidence of persecution generally do not rise to the level of persecution. Finally, petitioner abandoned his claims regarding the denial of CAT relief. View "Lesum v. Barr" on Justia Law

Dessouki was born in France in 1982. His parents never married; they separately immigrated to the U.S. Though they entered on temporary visas, his mother became a lawful permanent resident and his father a U.S. citizen. Dessouki remained on parole status. In 2003, Dessouki was convicted of drug-related felonies. The government sought to remove him but failed to prove that Dessouki was an alien. An IJ terminated his removal proceedings. A few years later, the government reopened the proceedings. A different IJ rejected Dessouki’s claim that he was a citizen. Dessouki, removed to France, returned to the U.S. and pleaded guilty to re-entry after deportation. Dessouki continued to claim citizenship. He unsuccessfully asked an IJ to reopen his removal proceedings. The Board of Immigration Appeals affirmed and denied a motion to reconsider. Dessouki then sought a declaration that he is entitled to “derived” citizenship through his father under 8 U.S.C. 1503(a). The district court dismissed for lack of subject-matter jurisdiction. The Third Circuit concluded that it must decide the issue and dismissed an appeal. Dessouki does not satisfy any of the statutory alternatives for derivative citizenship that existed at the time: his mother was never naturalized; both parents are alive; and there was no legal separation of his parents. View "Dessouki v. Attorney General United States" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision upholding a final order of removal. At issue was whether the BIA permissibly interpreted the phrase "single scheme of criminal misconduct" under 8 U.S.C. 1227(a)(2)(A)(ii). In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed its longstanding interpretation of "single scheme of criminal misconduct" under section 1227(a)(2)(A)(ii): "when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct." The panel upheld the BIA's interpretation under the principles of Chevron deference and held that the BIA properly applied this interpretation here, and that this application was not impermissibly retroactive. The panel explained that, because the phrase in question operates as an exception to a ground for deportation, the BIA's narrower definition of the exception serves to broaden the application of the removal provision, making petitioner subject to removal when he might not have been under the panel's previous definition. The panel also upheld the BIA's denial of discretionary relief, acknowledging the limitations on judicial review of discretionary decisions. View "Szonyi v. Whitaker" on Justia Law

The risks of torture from all sources should be combined when determining whether a Convention Against Torture (CAT) applicant is more likely than not to be tortured in a particular country. The Fourth Circuit granted a petition for review of the BIA's final order affirming the denial of petitioner's claim for protection under CAT. The court agreed with petitioner that the BIA made a legal error when it denied him CAT relief because it failed to aggregate his risk of torture from all three of the entities that he fears: gangs, vigilante groups, and the police. The court also agreed with petitioner that the BIA and IJ erred by (1) failing to meaningfully engage with the live testimony and over 300 pages of documentary evidence that he originally produced in support of his claim, and (2) failing to meaningfully consider the additional evidence that he submitted on remand about the risk of torture that he faced in El Salvador. Therefore, the court held that the BIA and IJ failed to provide a cogent, articulable basis for its determination that petitioner's evidence was insufficient. Accordingly, the court vacated the BIA's judgment and remanded for further proceedings. View "Rodriguez-Arias v. Whitaker" on Justia Law

The Fifth Circuit denied a petition for review of the the BIA's decision affirming the IJ's determination that petitioner was removable because she was convicted of a drug offense. Petitioner argued that she was not removable because she was convicted for possessing a small amount of marijuana for personal use. The court held that the BIA's interpretation of 8 U.S.C. 1227(a)(2)(B)(i)'s personal-use exception was reasonable. Applying the BIA's circumstances-specific approach, the court held that petitioner's conviction did not fall within the personal-use exception. In this case, substantial evidence supported the BIA's findings that petitioner possessed 54.6 pounds of marijuana—substantially more than the personal-use exception’s 30-gram threshold. View "Cardoso de Flores v. Whitaker" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for DHS in an action challenging DHS's authority to expedite construction of border barriers near San Diego and Calexico, California. On January 25, 2017, President Trump issued Executive Order 13,767, directing federal agencies to deploy all lawful means to secure the Nation's southern border. A focal point of the directive was to immediately construct a physical wall. As a threshold matter, the panel held that it had jurisdiction to consider the "predicate legal question" of whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the contested projects. On the merits, the panel held that IIRIRA section 102(a)'s broad grant of authority, which was not limited by section 102(b), authorized the construction projects. The panel affirmed the district court's grant of summary judgment to DHS, holding that the projects were statutorily authorized and therefore not ultra vires. The panel also held that DHS has waived the environmental laws California and environmental groups sought to enforce. Furthermore, the panel lacked jurisdiction to consider any argument challenging the Secretary of DHS's August and September 2017 waivers of applicable environmental laws. View "Center for Biological Diversity v. Department of Homeland Security" on Justia Law

Delhorno, age 42, came to the U.S. with his parents when he was three years old. Living as a lawful permanent resident, he was pulled over for speeding. A drug-detection canine alerted to the presence of drugs. Officers discovered four kilograms of cocaine in a trap compartment. Delhorno pleaded guilty to possessing cocaine with intent to distribute. His hearing was more than a year after the Supreme Court held (Padilla v. Kentucky), that a defense lawyer provided ineffective assistance of counsel by failing to advise his client that his guilty plea would subject him to automatic deportation. Although the judge was informed of his status, there was no discussion about the immigration consequences of Delhorno’s guilty plea. Delhorno was sentenced to 60 months. Delhorno never filed an appeal or a habeas corpus petition. In 2017, Delhorno completed his prison sentence and was deported to Mexico. The Seventh Circuit affirmed the denial of Delhorno's petition for a writ of coram nobis without a hearing. The common-law remedy of coram nobis is available to correct errors in criminal cases, only when the error is of the most fundamental character as to render the conviction invalid, there are sound reasons for the defendant’s failure to seek earlier relief, and the defendant continues to suffer from his conviction although he is out of custody. Delhorno cannot offer “sound reasons” for failing to seek earlier relief through a direct appeal or habeas corpus petition. View "United States v. Delhorno" on Justia Law

The Ninth Circuit denied a petition for review of a final order of removal following the dismissal of petitioner's appeal by the BIA. Petitioner was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington 9.68A.090, and an IJ found that petitioner's conviction constituted a crime involving moral turpitude committed within five years of admission to the United States. Therefore, petitioner was removeable under 8 U.S.C. 1227(a)(2)(A)(i). The panel held that, in assessing the constitutional status of the phrase "crime involving moral turpitude," it was bound by the Supreme Court's decision in Jordan v. De George, 341 U.S. 223 (1951), which held that the phrase was not unconstitutionally vague. The panel also held that the Supreme Court's more recent decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), did not reopen inquiry into the constitutionality of the phrase. Furthermore, petitioner's alternate claim that communicating with a minor for immoral purposes was not a crime of moral turpitude was foreclosed by the panel's decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). View "Islas-Veloz v. Whitaker" on Justia Law