Justia Immigration Law Opinion Summaries

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The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's rulings determining that petitioner's testimony was not credible. The court held that the Baltimore IJ failed to give petitioner an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record. The court declined to address whether the adverse credibility determination and denials of petitioner's applications for withholding of removal and relief under the Convention Against Torture were erroneous. Accordingly, the court vacated the BIA's summary affirmance of the IJ's rulings and remanded for reconsideration of petitioner's asylum claim, which included affording her an opportunity to testify and appropriate consideration of that testimony as well as any factual determinations. View "Atemnkeng v. Barr" on Justia Law

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Petitioner, a citizen of Guatemala, sought review of the BIA's denial of withholding of removal based on the agency's conclusion that the record does not establish that Guatemalan society recognizes "people who report the criminal activity of gangs to police" as a distinct social group. The Ninth Circuit held that it lacked jurisdiction to review petitioner's renewed argument concerning relief under the Convention Against Torture, because the panel expressly disposed of the issue in a prior petition for review and the issue was not currently under consideration. The panel also held that substantial evidence supported the BIA's conclusion that the record was devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who report the criminal activity of gangs to the police are perceived or recognized as a group by society in Guatemala. The panel explained that, although the record contained two State Department Human Rights Reports and a Congressional Research Service report, none of those documents discussed reporting gang violence to police, or any risks or barriers associated with doing so. Furthermore, the documents did not assert that Guatemalan society recognizes those who, without more, report gang violence as a distinct group. Furthermore, the testimony failed to support a finding of social recognition. Accordingly, the panel dismissed in part and denied in part. View "Conde Quevedo v. Barr" on Justia Law

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Da Silva, a two-year-old native of Brazil, was admitted to the U.S. in 1994 with a B-2 visa. She has never left the U.S. Da Silva married a U.S. citizen, Leach, a member of the armed services, who subjected Da Silva to abuse and engaged in extramarital affairs, including with L.N. During a confrontation, Da Silva punched L.N. in the nose twice. Da Silva pleaded guilty to assault, 18 U.S.C. 113(a)(4) and was sentenced to 18 months’ imprisonment. In removal hearings, the IJ recognized that Da Silva had “been provoked.” She unsuccessfully sought cancellation of removal for battered spouses under the Violence Against Women Act, 8 U.S.C. 1229b(b)(2)(A). Da Silva could not satisfy the “good moral character” requirement because of her imprisonment for her assault conviction. She argued that she qualifies for the exception because the “act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty.” The IJ found that Leach had threatened to take away Silva’s children due to her undocumented status, was consistently unfaithful, verbally and physically abused her and her daughter, and refused to allow her to seek immigration status, and found that her removal would result in extreme hardship but that the assault convictions were not “connected to” the cruelty. The Third Circuit vacated; “connected to” is unambiguous and means “having a causal or logical relationship.” Da Silva’s convictions are connected to Leach's extreme cruelty. View "Da Silva v. Attorney General United States" on Justia Law

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Baez-Sanchez, a citizen of Mexico, is removable. His conviction for aggravated ba]ery of a police officer renders him inadmissible, 8 U.S.C. 1182(a)(2)(A)(i)(I). He applied for a U visa, which is available to some admissible aliens who have been victims of crime in this country. An IJ granted a waiver of inadmissibility, 8 U.S.C. 1182(d)(3)(A)(ii). The BIA remanded with instructions to consider an additional issue. The IJ did so and reaffirmed. The BIA then concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges. The Seventh Circuit held that 8 C.F.R. 1003.10(a) permits IJs to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. The BIA concluded that the court's decision was incorrect and did not consider the issues remanded by the court. Baez-Sanchez filed another petition for review. The Seventh Circuit vacated, stating that it had “never before encountered defiance of a remand order.” Article III judicial power is not subject to disapproval or revision by another branch of government. The Attorney General, the Secretary, and the BIA are free to maintain, in another case, that the decision was mistaken but they are not free to disregard a mandate in the very case making the decision. An immigration judge has ruled in favor of Baez-Sanchez; all issues have been resolved. Baez-Sanchez may seek a U visa. View "Baez-Sanchez v. Barr" on Justia Law

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The petitioners, both Mexican citizens, were never lawfully admitted to the U.S. Years ago, each was served with a Notice to Appear (NTA) for removal proceedings. The NTAs were defective; they did not list the date or time for an initial hearing. The petitioners were not present at their respective removal hearings. They were ordered removed in absentia. Both were removed to Mexico. Each illegally returned to the U.S. and each was indicted for illegal reentry, 8 U.S.C. 1326(a). In light of the Supreme Court’s 2018 Pereira v. Sessions decision, they moved to dismiss their indictments by collaterally attacking their underlying removal orders (8 U.S.C. 1326(d)) based on the defective NTAs. The Seventh Circuit affirmed the denials of their motions. The petitioners failed to demonstrate that they satisfy the requirements of section 1326(d). Neither exhausted administrative remedies by petitioning to reopen removal proceedings. Catching the errors in the deficient NTAs would not have led to non-discretionary relief from removal; if either had alerted the immigration court of the NTA’s omissions, ICE could have proceeded with removal by serving a new, compliant NTA. Pereira addressed the “narrow question” whether an NTA that omits the time or place of an alien’s removal hearing triggers the statutory stop-time rule and terminates the period of continuous physical presence in the U.S. necessary for an alien to be eligible for discretionary cancellation of removal. View "United States v. Rangel-Rodriguez" on Justia Law

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The Second Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal from an IJ's denial of her application for asylum. Petitioner claimed that she was entitled to asylum because if she is returned to El Salvador, she will be persecuted on account of her membership in a particular social group ‐‐ Salvadoran women who have resisted the sexual advances of a gang member ‐‐ and political opinion ‐‐ resistance to the norm of female subordination to male dominance that pervades El Salvador. The court held that, although petitioner failed to establish her asylum claim based on membership in a particular social group, the agency did not adequately consider petitioner's political opinion claim. In this case, the agency concluded that petitioner did not have a political opinion; concluded that petitioner simply chose to not be a victim; and failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. Accordingly, the court remanded for further proceedings. View "Hernandez-Chacon v. Barr" on Justia Law

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Lo and Dieng are citizens of Senegal. Lo entered the U.S. in 1997 on a student visa but did not attend the university. Dieng used a false passport to join him in 2003. Their daughter was born in 2006. In 2007, Dieng applied for asylum, withholding of removal, and protection under the Convention Against Torture, asserting that her relatives had attempted to subject her to female genital mutilation (FGM) and that, if removed, she and her daughter would be subjected to FGM. Dieng later conceded that, at her age, she was no longer at risk, and that their daughter could stay in the U.S. with relatives. The IJ denied relief. The BIA affirmed, noting that the couple could relocate within Senegal to an area where FGM is not practiced. After their second daughter was born, DHS took action to enforce the removal order. The couple sought to reopen their case, alleging changed conditions. They submitted documents indicating that their relatives intended to perform FGM on Dieng and the girls. The BIA dismissed the petition as untimely, finding the proferred evidence speculative and self-serving and noting that the girls, U.S. citizens, were not subject to removal. The Sixth Circuit denied a petition for review. Even if the evidence were credible, the couple did not establish a well-founded fear of prosecution. The BIA did not abuse its discretion in finding that the family could reasonably relocate to avoid FGM. View "Dieng v. Barr" on Justia Law

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USCIS permissibly construed the statutory phrase "accompanying, or following to join" in 8 U.S.C. 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R. 214.14(f)(4), requiring that a spouse's qualifying relationship exist at the time of the initial U-visa petition and that the qualifying relationship continues throughout the adjudication of the derivative petition. The Ninth Circuit affirmed the district court's grant of summary judgment to government defendants, according Chevron deference to USCIS's interpretation of the statute in enacting the regulation. Given the deference to the agency to impose regulations interpreting (and gap filling) the immigration statutes, the panel held that the requirement was a reasonable interpretation. The panel also held that the equal protection clause has not been violated, because children and spouses were not similarly situated and distinction between nonimmigrant derivative spouses was rationally based. View "Medina Tovar v. Zuchowski" on Justia Law

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Petitioner Alonso Martinez-Perez sought review of a final Board of Immigration Appeals (BIA) order that dismissed his appeal, holding that neither the BIA nor the Immigration Court had jurisdiction to grant Petitioner’s application for cancellation of removal. Petitioner was a native and citizen of Mexico. He entered the United States in 2001, without being inspected and admitted or paroled. On April 9, 2009, the Department of Homeland Security (DHS) charged him as removable from the United States pursuant to the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Immigration officials served Petitioner with a notice to appear, which did not include a date and time for his hearing. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Petitioner, through counsel, admitted the allegations contained in the notice to appear and conceded the charge of removability. The Immigration Judge found Petitioner removable. The Tenth Circuit found the Supreme Court held that a notice to appear that omits the removal proceeding’s time or place does not stop the alien’s accrual of continuous presence in the United States for purposes of cancellation of removal. The requirements of a notice to appear were claim-processing rules; the Court thus concluded the Immigration Court had authority to adjudicate issues pertaining to Petitioner’s removal even though Petitioner’s notice to appear lacked time-and-date information. With respect to issues raised regarding the BIA’s or Immigration Judge’s jurisdiction to grant Petitioner’s application in the absence of establishing a qualifying relative at the time of hearing: the Tenth Circuit concluded that for the BIA to conclude that neither it nor the Immigration Court had jurisdiction to grant Petitioner’s application was error. Moreover, before the BIA, Petitioner alleged and described what he contended was an improper delay on the part of the Immigration Court. Given this case’s procedural history, which is undisputed, the Tenth Circuit concluded it was within the BIA’s jurisdiction to interpret the applicable statutes in a way that would not penalize Petitioner for the Immigration Court’s delay. Because the BIA erred in holding that it lacked jurisdiction to grant Petitioner’s application and, in turn, failed to exercise its interpretive authority, the Court remanded. View "Martinez-Perez v. Barr" on Justia Law

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Defendant-Appellant Petrona Gaspar-Miguel appealed a district court’s affirmance of her conviction for entering the United States. On appeal, she contended the district court’s conclusion that she “entered” the United States even though she was under the constant surveillance of a border patrol agent was contrary to established law defining “entry.” The Tenth Circuit rejected this argument and affirmed the district court. View "United States v. Gaspar-Miguel" on Justia Law