Justia Immigration Law Opinion Summaries

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The en banc court held that the second clause of the derivative citizenship statute set out at former 8 U.S.C. 1432(a)(5) does not require that the child have been granted lawful permanent residency prior to the age of eighteen in order to derive citizenship from a parent who naturalized, but the child must have demonstrated an objective official manifestation of permanent residence.The en banc court concluded that the Cheneau panel properly concluded that it was bound under circuit precedent by Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008). Furthermore, the panel properly highlighted the problems in applying the Romero-Ruiz analysis of section 1432(a)(5) in the present context. In reconsidering Romero-Ruiz, the en banc court agreed with Judge Bennett's concurring opinion that Romero-Ruiz must be overruled to the extent that it interpreted "reside permanently" to require lawful permanent resident status. The en banc court remanded to the three-judge panel so that the panel may, in its discretion, apply the revised rule to this case. View "Cheneau v. Garland" on Justia Law

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The Fifth Circuit denied a petition for review challenging petitioner's order of removal after he threatened to commit a religiously motivated act of terrorism. Petitioner, who suffers from schizophrenia, was reported by his brother after petitioner made threats of killing kuffars (non-believers).The court concluded that the Attorney General interpreted 8 U.S.C. 1158(b)(2)(A)(iv) correctly as a matter of law. The Attorney General first determined that the plain meaning of "reasonable grounds" comports with the well-established standard for "probable cause." The Attorney General then determined that "a danger to the security of the United States" means "[a]ny level of danger to national security . . . ; it need not be a 'serious,' 'significant,' or 'grave' danger." Therefore, petitioner is ineligible for asylum under section 1158(b)(2)(A)(iv). The court also held that the BIA's determination that petitioner was a threat to national security was supported by substantial evidence as a matter of fact. View "Mirza v. Garland" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's decision upholding the IJ's determination that defendant was subject to removal from the United States because he had been convicted of a crime involving moral turpitude. The IJ determined that the plea agreement signed by petitioner, his defense counsel, and the prosecutor was clear and convincing evidence of a criminal conviction because it contained an indication of guilt and the sentence imposed. Applying a deferential standard of review, the court concluded that petitioner failed to show that the IJ or BIA violated a statutorily imposed evidentiary requirement by finding that the plea agreement at issue proved the existence of a forgery conviction by clear and convincing evidence. Therefore, it is not, as a matter of law, deficient or inadmissible. View "Vu Quang Nguyen v. Garland" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner and her minor child's motion to reopen. The panel held that exceptional circumstances warranted reopening of their in absentia removal orders.The panel first considered the circumstances that caused petitioner's failure to appear. In this case, petitioner suffers from chronic memory problems that stem from a childhood head injury, so she did not remember what the IJ had told her orally about her next hearing date. Therefore, she relied on the information in the notice of hearing. However, because petitioner cannot read, she asked her family members to read the notice for her, but the new notice, unlike the first one, provided a numerical date for the hearing, "07/12/2016." Petitioner's family interpreted this notation as December 7, 2016, based on how numerical dates in Latin America (and most of the rest of the world) are typically written, with the day appearing before the month. The panel explained that the BIA abused its discretion by concluding that petitioner should have confirmed her hearing date through the immigration court's automated system. Furthermore, the BIA erred in not addressing whether petitioner had any motive for failing to appear and whether the in absentia removal orders would cause unconscionable results. Secondly, the panel concluded that imposing the removal orders would present an unconscionable result. Finally, the panel noted that the IJ entered an in absentia order against petitioner's minor child and thus petitioner's failure to appear prejudiced the child's opportunity for relief as well. Accordingly, the panel remanded for further proceedings. View "Hernandez-Galand v. Garland" on Justia Law

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The Eleventh Circuit lacked jurisdiction to consider a petition challenging the Board's decision on appeal that preconclusion voluntary departure was not warranted in petitioner's case. Petitioner contends that he would have applied for preconclusion voluntary departure had the IJ told him about it. The court concluded that the Board's decision was within its independent discretion; that is, no matter what the IJ would have decided about preconclusion voluntary departure had it been raised, the Board had the authority to enforce its own judgment on the question. Furthermore, once the Board exercised that judgment and ordered removal, it cut off any jurisdiction the court might have had to consider the petition. View "Blanc v. United States Attorney General" on Justia Law

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Thayalan, a citizen of Sri Lanka, was apprehended near the U.S.– Mexico border after making an illegal entry. Thayalan expressed a fear of returning to Sri Lanka. The asylum officer found that Thayalan had demonstrated a credible fear of persecution Thayalan testified that in 2007, when he was about 16 years old, he was kidnapped and blindfolded by members of the Sri Lankan army. While he was detained, soldiers hit his head against a wall and punched him in the stomach. He also described 2019 incidents, when members of the Eelam People’s Democratic Party (EPDP) tried to extort money from him because of the EPDP’s false belief that he financially supported a rival political party.Thayalan was ordered removed based on findings that the army’s mistreatment of Thayalan did not rise to the level of persecution and the EPDP members targeted Thayalan for extortion because they wanted his money, not because of disapproval of any political opinion. Thayalan failed to establish past persecution or a well-founded fear of future persecution on account of a ground protected by statute and was ineligible for both asylum and withholding of removal. The Third Circuit denied a petition for review, rejecting arguments that the past-persecution determination contravened its precedents and that substantial evidence did not support the agency’s determination about what motivated the EPDP’s extortion efforts.. View "Thayalan v. Attorney General United States" on Justia Law

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DHS Agent Swivel saw someone whom he thought he recognized from a prior case. It was Santos-Portillo, a Honduran national who was in the U.S. illegally, having been deported in 2011. Agents staked out Santos-Portillo’s house, arrested Santos-Portillo. and took him to an ICE office, where he was fingerprinted. Agent Swivel then gave Santos-Portillo Miranda warnings and interrogated him. Santos-Portillo admitted he was from Honduras, that he had previously been deported, and that he had not obtained permission to return to the U.S. Santos-Portillo was charged with violating 8 U.S.C. 1326(a). At Santos-Portillo’s detention hearing Swivel testified that he neither sought nor secured an administrative arrest warrant to detain Santos-Portillo. Santos-Portillo unsuccessfully moved to suppress all post-arrest evidence, citing 8 U.S.C. 1357(a), which permits warrantless arrests only if agents have probable cause and have a “reason to believe . . . there is [a] likelihood of the person escaping before a warrant can be obtained.”Santos-Portillo was convicted and deported again. The Fourth Circuit affirmed. Section 1357(a) does not authorize courts to suppress evidence for violations of the provision. Based on a “proper respect for Congress’s role in determining the consequences of statutory violations,” the court rejected a request to exercise its discretion to create a suppression remedy. View "United States v. Santos-Portillo" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner was removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. 1227(a)(2)(A)(i).The panel applied the two-step Chevron inquiry, concluding that: (1) the phrase "the date of admission" in section 1227(a)(2)(A)(i)(I) is ambiguous; and (2) the interpretation in Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), of that ambiguous phrase is "a permissible construction of the statute." The panel concluded that Alyazji, and its application in the unpublished BIA decision in this case, meet the requirements for Chevron deference set forth in United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). The panel acknowledged that the Alyazji interpretation of section 1227(a)(2)(A)(i)(I) results in serious consequences when applied to petitioner, who is a Micronesian citizen, because he had less incentive to apply to become a legal permanent resident or naturalize as a United States citizen. View "Route v. Garland" on Justia Law

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In 1997, Romero, a citizen of Guatemala, was granted voluntary departure, having entered the U.S. without documentation. In 2011, Romero was removed. He returned almost immediately. When he was taken into custody, DHS notified Romero of its intent to reinstate his prior removal order. Romero expressed a fear of returning to Guatemala and was referred to an asylum officer, 8 C.F.R. 208.31(b). Finding that Romero had “a reasonable fear of persecution,” the asylum officer referred the matter to an IJ.The Notice of Referral to Immigration Judge provided the place of the hearing, noting that the date and time were “To Be Determined.” Romero subsequently received a Notice of Withdrawal-Only Hearing that included the date, time, and place. The IJ denied withholding of removal. Before the BIA, Romero cited the Supreme Court’s 2018 “Pereira” decision, and argued that “[a] notice of referral to [an] immigration judge is an analogous document to a notice to appear and must contain a location and a date and time for a removal hearing in order to create jurisdiction for an immigration court.”The BIA rejected Romero’s jurisdictional challenge, reasoning that it lacked the authority to grant the relief Mejia Romero sought – termination of the proceedings – in a withholding proceeding. The Third Circuit denied a petition for review. Romero’s Notice of Withholding-Only Hearing included the information required by the regulations. Pereira’s holding is not readily transferable to 8 C.F.R. 1003.14. View "Romero v. Attorney General United States" on Justia Law

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In 2002, at the age of seven, Sanchez, a citizen of Mexico, entered the U.S. without inspection. In 2012, he obtained Deferred Action for Childhood Arrivals (DACA) status; DHS periodically granted him renewals. In 2019, Sanchez was charged in New Jersey with sexual assault and endangering the welfare of a child. USCIS revoked Sanchez’s DACA status. DHS took him into custody and charged him as being present without having been admitted or paroled, 8 U.S.C. 1182(a)(9)(B)(ii).Sanchez applied for asylum, withholding of removal, and for relief under the Convention Against Torture. The IJ denied asylum, finding that Sanchez failed to meet the one-year filing deadline or show extraordinary circumstances; denied withholding of removal, finding the proposed social group was not cognizable; and denied his CAT claim, finding he did not demonstrate at least a 50 percent chance he would be tortured upon his return to Mexico. Two weeks after the IJ ordered Sanchez’s removal, his state criminal charges were dismissed.The BIA denied remand, citing then-Attorney General Sessions’ 2018 Castro-Tum holding that, under the regulations governing the Executive Office of Immigration Review, IJs and the BIA do not have the general authority to indefinitely suspend immigration proceedings by administrative closure unless a regulation or a previous judicially approved settlement expressly authorizes such an action. The Third Circuit vacated and remanded. The relevant regulations confer the general authority to administratively close cases to IJs and the BIA. View "Sanchez v. Attorney General United States" on Justia Law