Justia Immigration Law Opinion Summaries

by
The government sought to revoke defendant's citizenship based on his role as a former Salvadorian military officer in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador. The district court conducted a three-day bench trial and declined to cancel defendant's American citizenship.The Fifth Circuit found that, although defendant may have refused to actually shoot civilians, he "assisted" and "participated in the commission of" extrajudicial killings during the Salvadorian Civil War, rendering him statutorily ineligible to assume the "high privilege" of American citizenship. In this case, defendant captured the innocent civilians who were killed; he detained them knowing that their unlawful deaths were imminent; and he thoroughly helped with the coverup and coached others to do the same. The court concluded that these actions—undisputed by the parties—show that defendant assisted and participated in the extrajudicial killing of ten Salvadorians at San Sebastian. Therefore, he was not a person of good moral character, was not eligible to become a citizen, and illegally procured his citizenship. Accordingly, the district court erred in concluding otherwise, the court reversed the district court's judgment, and remanded. View "United States v. Vasquez" on Justia Law

by
The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of deferral of removal under the Convention Against Torture (CAT). In this case, Michoacán state police arrested and brutally tortured petitioner until she confessed to the kidnapping and murder of a five-year old boy. After her charges were dismissed, she fled to the United States.The panel held that the BIA erred by reviewing the IJ's decision de novo, rather than for clear error, and concluded that the record compelled the determination that petitioner met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to Mexico. The panel explained that, reviewed under the proper standard, the IJ's factual findings were not erroneous where the IJ found that the Michoacán state police tortured petitioner, and the revived arrest warrant guaranteed she would be placed back in custody of the Michoacán state police, who previously tortured her, precluding relocation. Furthermore, the state police officers specifically threatened to torture petitioner again if she reported their misconduct—which she did. Finally, the IJ considered the country condition reports showing an increased threat of torture for indigenous women. The panel remanded for the BIA to grant deferral of removal pursuant to the CAT. View "Soto-Soto v. Garland" on Justia Law

by
Tobias-Chaves and her daughter traveled from Honduras and entered the U.S. in 2014, to escape from Tobias-Chaves’s abusive husband. DHS filed charges against them in Houston, where they were then living. That Immigration Court attempted to send Tobias-Chaves a Notice to Appear but because of a clerical error, she never received it. The court ordered the women removed in absentia. Two years later, Tobias-Chaves learned (and informed the courts) of the error. Her case was reopened in Houston. Tobias-Chaves applied for asylum. Her case was transferred to Memphis. There was then no immigration court in Louisville. An immigration court was created in Louisville in 2018, and the “Louisville docket” was transferred, including Tobias-Chaves’s case. There was no formal change of venue. Tobias-Chaves was not given an opportunity to dispute the change. The Louisville court held a hearing, at which her attorney argued that venue had never properly been transferred.The IJ denied Tobias-Chaves’s application for asylum and ordered her removed. The BIA affirmed, finding the “sua sponte change of venue” harmless error; Tobias-Chaves lived 75 miles from the Louisville location but more than 400 miles from the Memphis building. The Sixth Circuit affirmed. Although the court violated procedural rules in transferring the proceeding, that violation was a procedural question relating to venue, not jurisdiction. In order to successfully challenge a procedural error such as an improper change of venue, a petitioner must show prejudice. Tobias-Chaves failed to do so. View "Tobias-Chaves v. Garland" on Justia Law

by
Sanchez, a citizen of El Salvador, entered the U.S. unlawfully in 1997 and obtained Temporary Protected Status (TPS) in 2001. TPS allows foreign nationals from countries designated by the government as having unusually bad or dangerous conditions to temporarily live and work in the U.S. In 2014, Sanchez unsuccessfully applied under 8 U.S.C. 1255 to obtain lawful permanent resident (LPR) status. Section 1255 provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a temporary basis—to obtain adjustment of status to LPR. The Third Circuit agreed that Sanchez’s unlawful entry precluded his eligibility for LPR status under section 1255, notwithstanding his TPS.A unanimous Supreme Court affirmed. Section 1255 provides that eligibility for LPR status generally requires an “admission,” the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer. Sanchez did not enter lawfully and his TPS does not eliminate the effect of that unlawful entry. Section 1254a(f)(4) provides that a TPS recipient who applies for permanent residency will be treated as having nonimmigrant status, the status traditionally and generally needed to invoke the section 1255 LPR process, but that provision does not address 1255’s separate admission requirement. Lawful status and admission are distinct concepts and establishing the former does not establish the latter. There are immigration categories in which individuals have nonimmigrant status without admission, so when Congress confers nonimmigrant status for purposes of 1255, but says nothing about admission, the Court has no basis for finding an unlawful entrant eligible to become an LPR. View "Sanchez v. Mayorkas" on Justia Law

by
Petitioner sought review of the BIA's final order finding that petitioner was removable as a non-citizen convicted of two or more crimes involving moral turpitude based on its determination that New York petit larceny constitutes such a crime.The Second Circuit certified the following question to the New York State Court of Appeals: Does an intent to "appropriate" property under New York Penal Law 155.00(4)(b) require an intent to deprive the owner of his or her property either permanently or under circumstances where the owner's property rights are substantially eroded? View "Ferreiras Veloz v. Garland" on Justia Law

by
Garcia, a citizen of Mexico, entered the U.S. without inspection in 2000 and was placed in removal proceedings in 2011. Garcia sought Cancellation of Removal or voluntary departure in the alternative. In 2018, Garcia married a U.S. citizen, who filed an I-130 Petition for Alien Relative. An IJ denied Garcia’s request for a continuance pending adjudication of his I-130 petition, noting that even if USCIS approved his I-130 petition, Garcia would have to leave and be processed at the American consulate in Mexico because he had not been “admitted or paroled following inspection.” The IJ found Garcia ineligible for Cancellation of Removal but granted voluntary departure.While his BIA appeal was pending, USCIS approved Garcia's I-130 petition, which required Garcia, to travel to a U.S. consulate but by leaving the U.S., noncitizens who have been unlawfully present for more than one year become inadmissible for 10 years. The Attorney General may waive this bar for immigrant-spouses of U.S. citizens. USCIS could take over a year to process the waiver, during which a noncitizen remains abroad. USCIS amended its regulations in 2013 to permit applicants to apply for a provisional unlawful presence waiver before departing the U.S.; this workaround did not extend to noncitizens in removal proceedings, unless those proceedings are administratively closed. In 2018, then-Attorney General Sessions issued the “Castro-Tum” decision, holding that IJs and the BIA did not have general authority to grant administrative closure. The BIA, citing Castro-Tum, denied Garcia’s request for administrative closure and upheld the denial of Cancellation of Removal.The Sixth Circuit vacated. IJs and the BIA have the authority for administrative closure to permit noncitizens to seek provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” for the disposition of Garcia’scase. View "Garcia-DeLeon v. Garland" on Justia Law

by
The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of sua sponte reopening petitioner's immigration proceedings based on the departure bar provision in 8 C.F.R. 1003.23(b)(1). Petitioner argued that an IJ should not be prevented from reopening a noncitizen's case on the IJ's own motion based solely on the noncitizen's departure during or after prior proceedings.The panel joined the Tenth Circuit and held that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ's discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, the BIA erred in determining that the departure bar prevented the IJ from reopening petitioner's immigration proceedings sua sponte. The panel remanded to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible. View "Balerio Rubalcaba v. Garland" on Justia Law

by
Ademiju immigrated to the U.S. in 2001 and had a green card. In 2011, he became involved in a scheme to defraud Medicare. He pled guilty to healthcare fraud, 18 U.S.C. 1347, and stipulated to a $1.5 million loss amount, acknowledging that “pleading guilty may have consequences with respect to his immigration status” and that he “affirms that he wants to plead guilty … even if the consequence is his automatic removal.” At sentencing, Ademiju personally acknowledged that his ability to stay in this country was not assured. His counsel told the court, “I’m not an immigration specialist … But it’s my understanding that … any sentence of less than one year … he would be at least eligible for a waiver.” Apparently, no one knew that statement was incorrect. The district court sentenced Ademiju to 11 months’ imprisonment plus $1.5 million in restitution.Ademiju was released from federal prison and transferred into ICE custody; he retained an immigration attorney who informed him that his offense of conviction and the stipulated loss amount subjected him to mandatory deportation. Ademiju filed a 28 U.S.C. 2255 motion to vacate his conviction because his attorney provided ineffective assistance of counsel, arguing that the statute of limitations should be tolled because he received incorrect advice from an attorney about his options for recourse within the limitations period and could not have discovered the problem himself due to the inadequacy of his prison’s law library. The Seventh Circuit affirmed the dismissal of his motion; Ademiju has not met the high standard for equitable tolling. View "Ademiju v. United States" on Justia Law

by
The Eighth Circuit denied the petition for review challenging the BIA's decision affirming the IJ's denial of petitioner's application for asylum and withholding of removal. The court concluded that the BIA's decision to review the factual issue for clear error was correct.The court also concluded that, even if the court assumed that petitioner suffered harm that amounted to past persecution, the court would still conclude that it was not motivated by her membership in a particular social group. In this case, the record shows that petitioner was targeted because the individual that threatened her father assumed that she owned the land that once belonged to her father—not because she was related to him. Finally, petitioner failed to establish a well-founded fear of future persecution because she failed to carry her burden of demonstrating that she could not relocate in Honduras. View "Padilla-Franco v. Garland" on Justia Law

by
The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that substantial evidence supported the BIA's finding that petitioner failed to establish a nexus between the identity of her nuclear family and her asserted persecution. The court explained that petitioner is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. Furthermore, petitioner is ineligible for CAT relief because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. View "Sanchez-Castro v. U.S. Attorney General" on Justia Law