Justia Immigration Law Opinion Summaries

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Petitioner asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured—either by Salvadoran officials or by members of a rival gang with the acquiescence of the Salvadoran government. The Board concluded that Petitioner failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen.   The Ninth Circuit filed: (1) an order amending its opinion filed on June 24, 2022, otherwise denying a motion to amend, and stating that petitions for rehearing and for rehearing en banc may be filed, and (2) an amended opinion granting Petitioner’s petition for review of the Board of Immigration Appeals’ decision affirming denial of protection under the Convention Against Torture, and remanding. In the amended opinion, the panel held that the Board erred by failing to adequately consider Petitioner’s aggregate risk of torture from multiple sources, and erred in rejecting Petitioner’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence.   The panel concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. The panel concluded that the Board also erred by disregarding credible testimony from Petitioner’s expert. The panel remanded for the agency to properly assess the aggregate risk that Petitioner will be tortured if he is removed to El Salvador and, as part of that assessment, to properly consider the expert testimony. View "MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND" on Justia Law

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Petitioner petitioned for review of an order of the Board of Immigration Appeals (BIA). The order dismissed his appeal of an Immigration Judge’s denials of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. He presented several procedural and substantive challenges on appeal.   The Fifth Circuit dismissed the petition for review in part for lack of jurisdiction  and denied in part. The court explained that the BIA did not specifically discuss the IJ’s interpretation of the evidence, but it did reference the particular testimony on the severity of his attacks, the police involvement, and the affidavits that Petitioner alleged the IJ misconstrued. Even if the BIA did not agree with Petitioner’s contention about mischaracterizations, the BIA did mention the evidence that Petitioner alleges it failed to consider meaningfully. This is sufficient.    Finally, the court concluded, that it was reasonable for the BIA to conclude that the new evidence Petitioner presented would not change the outcome of his case. The medical evaluation Petitioner sought to submit would not have altered his case because the evaluation did not discuss symptoms and injuries related to the BJP attacks. Further, it was reasonable for the BIA to conclude Petitioner’s new declaration or affidavits would not have influenced his case, considering he already supplied a declaration and his testimony describing his injuries as minor could not be remedied with his additional evidence. View "Kumar v. Garland" on Justia Law

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Freza, a citizen of the Dominican Republic, became a lawful permanent U.S. resident in 2004. In 2012, he was convicted of robbery, aggravated assault with a firearm, burglary, and possession of a weapon for an unlawful purpose. While Freza was serving his ten-year sentence, removal proceedings were initiated against him under 8 U.S.C. 1227(a)(2)(A)(iii). Freza told the IJ that he had attempted to contact pro bono legal organizations, but none could take his case; he had no resources. At Freza’s second master calendar hearing in February 2020, the IJ proceeded with Freza pro se. On March 18, Freza applied for asylum, withholding of removal, and relief under the Convention Against Torture. Due to staffing shortages during the pandemic, Freza’s third hearing occurred in October 2020, with Freza appearing pro se via video. The merits hearing was set for December and later rescheduled for January 2021. A pro bono attorney first spoke to Freza the day before the hearing.The IJ denied her motion to continue the hearing for 30 days, stating that Freza had been aware of his merits hearing “for quite some time.” The merits hearing continued with Freza proceeding pro se and testifying about his experiences of and fears of future violence. The BIA affirmed the removal order. The Third Circuit vacated. The IJ’s denial of a continuance for Freza’s counsel to prepare to adequately represent him violated Freza’s right to counsel. View "Freza v. Attorney General United States" on Justia Law

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Petitioner a native and citizen of Mexico, sought review of a Board of Immigration Appeals (“BIA”) decision affirming the decision of an Immigration Judge (“IJ”) denying Petitioner’s application for cancellation of removal. Petitioner’s application rested on his assertion that removing him from the United States would cause “exceptional and extremely unusual hardship” to his three young, U.S.-citizen children, whose mother, Petitioner testified, was unable to care for them. Petitioner sought a brief continuance of the merits proceeding to enable him to present live testimony from an expert and three others regarding his children’s health, the family’s circumstances, and the nature and severity of the hardship that his removal would cause. The IJ denied the requested continuance as well as an alternative request to permit the expert to testify by telephone and then found Petitioner ineligible for cancellation on the ground that he failed to establish the necessary hardship. The Board of Immigration Appeals affirmed.   The Second Circuit granted Petitioner’s petition. The court concluded that the agency abused its discretion in denying the brief continuance that Petitioner sought. The IJ’s denial fell outside the range of permissible decisions because it prevented Petitioner from presenting relevant and material testimony in support of his application with regard to the precise ground on which the BIA ruling turned. View "Martinez Roman v. Garland" on Justia Law

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The Board of Immigration Appeals (BIA) denied Petitioner’s cancellation of removal concluding that his receipt of temporary protected status (TPS) was not admission and, therefore, he could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission. The BIA also denied Petitioner’s application for asylum concluding that his 2016 domestic-violence conviction was a “particularly serious crime” that barred him from relief. Petitioner challenges the BIA’s decision raising two primary arguments: (1) under Ninth Circuit precedent, his TPS does constitute an admission “in any status” under the cancellation statute, 8 U.S.C. Section 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.   The Ninth Circuit filed: (1) an order amending the opinion filed June 28, 2022, otherwise denying the petitions for rehearing and rehearing en banc and stating that no further petitions for rehearing would be accepted, and (2) an amended opinion denying Petitioner’s petition for review of the BIA decision. In the amended opinion, the panel held that: (1) Petitioner’s receipt TPS was not an admission, and he, therefore, could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal; and (2) the BIA properly concluded that Petitioner’s domestic-violence conviction was a particularly serious crime (“PSC”) that barred him from obtaining asylum. The panel rejected Petitioner’s argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions. View "JOSE HERNANDEZ V. MERRICK GARLAND" on Justia Law

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Iris and Jose lived with their two children in Usulután, a part of El Salvador that they believed to be controlled by MS-13. They ran a small retail business. In 2016, gang members began extorting Jose, threatening to kill the family if Jose did not pay. Gang members robbed Jose and a colleague at gunpoint. Jose did not report the crimes to the police. He knew that the police conducted daily raids in his neighborhood to combat gang activity but he believed that the gangs had infiltrated the government. He feared that MS-13 would learn of his complaints and kill him. The mayor was subsequently arrested for helping gang members collect “rent.” Members of MS-13 interrogated Jose about his dealings with the police. Jose left El Salvador but the gang continued to extort and threaten Iris. Eventually, she fled to the United States.The family sought asylum and withholding of removal, submitting country-condition reports about gang activity in El Salvador that corroborated their testimony. An IJ ordered the family’s removal, finding Iris and Jose credible, but concluding that they had not established that the government was unable or unwilling to control MS-13. The BIA affirmed. The Sixth Circuit denied a petition for review. The BIA did not commit a legal error in interpreting and applying the asylum and withholding-of-removal statutes. Its opinion permits discernment of the grounds on which it relied and its findings have a fair evidentiary basis. View "Rodriguez de Palucho v. Garland" on Justia Law

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Petitioner a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s (IJ) denial of his application for cancellation of removal. Petitioner contended that the BIA erred in concluding that he failed to demonstrate that his stepchildren are United States citizens, and thus “qualifying relatives” for purposes of his application, and by improperly reviewing the IJ’s findings of fact de novo. He also asserted that the BIA’s interpretation of 8 U.S.C. Section 1229b(b)(1)(D) violates the Fifth Amendment as it has been construed to guarantee equal protection.   The Fifth Circuit denied the petition. The court concluded that Section1229b(b)(1)(D)’s requirement that an alien demonstrate “exceptional and extremely unusual hardship” to a qualifying relative, irrespective of hardship suffered by the alien, passes constitutional muster. In enacting the “exceptional and extremely unusual hardship” standard, Congress thus emphasized that an alien must provide evidence of harm to a qualifying relative substantially beyond that which ordinarily would be expected due to the alien’s deportation. The court further explained that Congress’s articulated justification provides a “reasonably conceivable state of facts that could provide a rational basis” for the hardship requirement, and Petitioner’s argument on this issue lacks merit. View "Agustin-Matias v. Garland" on Justia Law

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Lopez, a citizen of El Salvador, entered the United States without authorization in 2001. In removal proceedings in 2009, he applied for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA). While removal proceedings continued, Lopez was charged with possession of marijuana. Following a guilty plea in 2015, DHS added a charge of removability under 8 U.S.C. 1182(a)(2)(A)(i)(II), applicable to aliens who committed a controlled substance offense. That triggered a limiting provision in NACARA (Section 203(b)) that bumps the requirement of continuous presence in the United States from seven to 10 years and restarts the clock from the commission of the controlled substance offense. Lopez cited section 212(h), which gives the Attorney General discretion to grant a waiver of inadmissibility for applicants who meet the eligibility requirements, to excuse that added charge. The Board of Immigration Appeals denied Lopez relief, holding that a 212(h) waiver may not be used with an application for NACARA cancellation of removal.The Third Circuit denied a petition for review. An application for NACARA cancellation of removal is not an application for adjustment of status; the enactment of NACARA did not expand section 212(h). View "Lopez v. Attorney General United States" on Justia Law

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Petitioner petitioned for habeas relief after being in immigration detention for over a year without a bond hearing. During her initial removal proceedings, she was subject to mandatory detention under 8 U.S.C. Section 1226(c) (“Subsection C”) due to a conviction. Thus, she was not statutorily entitled to a bond hearing. However, in Casas Castrillon v. Department of Homeland Security, the Ninth Circuit held that once a noncitizen’s immigration case reaches judicial review, the authority for holding a Subsection C detainee shifts to 8 U.S.C. Section 1226(a) (“Subsection A”), which does entitle a noncitizen to a bond hearing. Accordingly, Petitioner argued she was entitled to a bond hearing.   The Ninth Circuit vacated the district court’s grant of habeas relief and held that a noncitizen of the United States—who initially was subject to mandatory detention under 8 U.S.C. Section 1226(c)—is not entitled to a bond hearing under 8 U.S.C. Section 1226(a) while awaiting a decision from this court on a petition for review.   Here, the panel observed that the Supreme Court’s decision in Jennings does not directly address the question in Casas Castrillon—when, if ever, mandatory detention under Subsection C ends. However, the panel explained that Jennings’s reasoning makes clear that Subsection A and Subsection C apply to discrete categories of noncitizens, and not to different stages of a noncitizen’s legal proceedings. The district court declined to reach Petitioner’s alternative argument that she was entitled to habeas relief as a matter of due process. The panel remanded to the district court to consider this question. View "LEXIS HERNANDEZ AVILEZ V. MERRICK GARLAND, ET AL" on Justia Law

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Petitioner and her minor daughter petition for review of the decision of the Board of Immigration Appeals denying their motion to reopen removal proceedings to allow them to apply for cancellation of removal. The Fifth Circuit granted the petition for review and remanded to the Board of Immigration Appeals for further proceedings.   The court explained that an abuse of discretion occurs if the BIA’s decision “is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies. That standard is met here because the BIA’s decision to deny Petitioner’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. View "Parada v. Garland" on Justia Law