In March 2003, Raul Novoa pled guilty to possession of methamphetamine for sale. The trial court sentenced him to 180 days in county jail and three years' probation. In 2012, the United States began deportation proceedings against Novoa, which were ongoing at the time of this opinion. In May 2017, Novoa successfully moved to vacate his 2003 conviction per Penal Code section 1473.7. The State appealed, arguing the trial court erred by: (1) holding Novoa's trial counsel to a duty the law did not require; and (2) finding Novoa suffered prejudice. In support of its position, the State contended the superior court's factual findings were not supported by substantial evidence. Moreover, the State argued laches prohibited Novoa's motion. The Court of Appeal found the State’s arguments were without merit and thus affirmed the superior court. View "California v. Novoa" on Justia Law

The Fifth Circuit denied a petition for review of petitioner's reinstated removal order and the BIA's denial of withholding of removal and protection under the Convention Against Torture (CAT). In regard to petitioner's collateral attack on the underlying 2004 in absentia removal order, the court held that the petition for review of the underlying removal order was not filed within 30 days and therefore the court lacked jurisdiction to consider her collateral attacks. The court also held that substantial evidence supported the BIA's conclusion that petitioner was not entitled to withholding of removal as her own testimony shows that she was never harmed and that her fear of future harm was speculative. Furthermore, the BIA's denial of CAT protection was also supported by substantial evidence where petitioner failed to show that she would be tortured and that the Guatemalan government would acquiesce in her torture. Finally, the court held that the BIA did not abuse its discretion in denying petitioner's motion to reopen. View "Luna-Garcia De Garcia v. Barr" on Justia Law

Liem, a citizen of Indonesia, is ethnically Chinese and a Seventh Day Adventist Christian. In Indonesia, Liem witnessed and experienced persecution based on belonging to these groups. In 1999, he obtained a six-month visa for vacationing in the U.S.. He stayed beyond its expiration, obtained employment, married, and fathered two American-born children. He is active at First Indonesian Seventh-Day Adventist Church. In 2003, Liem applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied his asylum application as untimely but granted withholding of removal. The BIA vacated, stating Liem failed to establish a clear probability that he would be persecuted if returned to Indonesia. Liem moved to stay his removal and reopen the proceedings, referencing a continued pattern of anti-Chinese harassment and.a pattern of anti-Christian persecution. The BIA denied the motion, citing State Department findings of a decrease in discrimination against Chinese Christians in Indonesia. In 2018, ICE agents arrested Liem. Liem filed another motion to reopen, claiming that, since his 2003 merits hearing, conditions for Chinese Christians had materially deteriorated and that international agencies have reported that hatred and Islamic extremism directed at Indonesian Christians is rising, and the Indonesian government is unwilling to act for fear of reprisals from far-right Islamist groups. He noted the implementation of Sharia law in part of the country. The Third Circuit vacated the denial of his motion, finding that the BIA did not meaningfully consider the evidence and arguments nor explain its conclusions. View "Liem v. Attorney General United States" on Justia Law

Cabrera, born in the Dominican Republic in 1979, was admitted to the U.S. as a lawful permanent resident in 1988. Two years later, he was adopted by a natural born U.S. citizen, Attenborough. Had he been Attenborough’s biological child, 8 U.S.C. 1409, would have provided him a pathway to automatic derivative citizenship. As an adopted child, the statute does not apply to him and his road to citizenship is more difficult. In 2014, Cabrera pled guilty to conspiracy to possess with intent to distribute heroin and was sentenced to 36 months’ imprisonment. Upon his release, Cabrera was served with notice of removal proceedings based on conviction of an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii), and conviction of a controlled substance offense, section 1227(a)(2)(B)(i). Cabrera argued, on constitutional grounds, that he was entitled to derivative citizenship through his adoptive father and could not be removed. The Immigration Judge held that he lacked jurisdiction to hear the constitutional claim and ordered Cabrera removed. The Board of Immigration Appeals affirmed. The Third Circuit denied a petition for review, rejecting Cabrera’s argument disparate treatment between adopted and biological children violates the guarantee of equal protection under the Fifth Amendment’s Due Process Clause. View "Cabrera v. Attorney General United States" on Justia Law

The United States challenged California's enactment of three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. The Ninth Circuit held that the district court did not abuse its discretion when it concluded that AB 450's employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California's prerogatives under the Tenth Amendment and the anticommandeering rule. Therefore, the panel affirmed the district court's denial of a preliminary injunction as to these laws. The panel also affirmed the district court's denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law. However, the panel held that one subsection of AB 103—codified at California Government Code section 12532(b)(1)(C)—discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Therefore, the panel reversed the preliminary injunction order as to this part and remanded for further proceedings. View "United States v. California" on Justia Law

In 1998, Garcia-Martinez pleaded guilty to assault with a deadly weapon under N.J.S. 2C:12-1(b)(2). According to his plea colloquy, Garcia-Martinez’s role was minor: he stuck out his foot to trip the victim. Once the victim was on the ground, Garcia-Martinez’s friends “jumped on [the victim] and started hitting him” and “some of [Garcia-Martinez’s] friends punched [the victim], kicked him and struck him.” Garcia-Martinez stood by during their assault; he soon left the scene. The Board of Immigration Appeals has found in the past that “assault with a deadly weapon” is a generic crime of moral turpitude that makes a noncitizen ineligible for cancellation of removal, 8 U.S.C. 1182(a)(2)(A)(i)(I). The Board found that there was no realistic probability that the New Jersey law could be applied to conduct outside the scope of the generic crime and concluded that Garcia-Martinez’s conviction was for a crime involving moral turpitude. The Seventh Circuit granted a petition for review and remanded. Although the New Jersey statute appears to fit the generic definition of assault with a deadly weapon, only some of the conduct covered by the statute appears to be sufficiently vile, base, immoral, or depraved to deserve the label moral turpitude. The Board speculated about the type of weapon that Garcia-Martinez’s accomplices may have possessed and did not explain why the generic definition of assault with a deadly weapon includes tripping. View "Garcia-Martinez v. Barr" on Justia Law

After plaintiffs were arrested and detained by ICE under 8 U.S.C. 1226(a), pending removal for being in the United States without inspection or admission, they filed suit against ICE and DHS, challenging their transfer or anticipated transfer from ICE's detention facility to an out of state facility. Plaintiffs alleged a violation of their substantive due process right to family unity and procedural due process right to notice and an opportunity to be heard, because such transfers separated them from their children and made it impossible for children to have access to their parents or to visit them. The Fourth Circuit affirmed the district court's grant of the government's motion to dismiss and held that plaintiffs did not have a due process right to family unity in the context of immigration detention pending removal. Furthermore, the court did not have the authority to create a new substantive due process right in view of Supreme Court decisions cautioning courts from innovating in this area. Likewise, the court held that, because plaintiffs right to family unity did not exist, their procedural due process claim failed. View "Reyna v. Hott" on Justia Law

Petitioner, who has been held in custody under 8 U.S.C. 1226(a) since May 2017 while he litigates the issue of whether he is a removable alien, petitioned for a writ of habeas corpus. The Eighth Circuit reversed the district court's grant of habeas relief to petitioner, holding that section 1226(a) is not susceptible of more than one construction and that the constitutional avoidance doctrine has no application here. Therefore, the district court erred when it concluded that pre-removal order detention under section 1226(a) is limited to "the period reasonably necessary to receive a removal decision." The court remanded for further consideration of petitioner's constitutional arguments. View "Ali v. Brott" on Justia Law

In 2012, K.H., a Guatemalan citizen, then seven years old, was kidnapped, beaten, and raped by gang members. The Guatemalan police caught K.H.’s persecutors, who were tried, convicted, and sentenced. The government provided K.H. with psychological treatment, temporarily placed her in a child refuge center, helped her with a visa application, and required that K.H. and her grandmother relocate. Shortly thereafter, while her visa application was pending, K.H. fled to the United States, where her mother was living. K.H. was apprehended by immigration authorities at the U.S.-Mexico border in 2014. The Board of Immigration Appeals affirmed the denial of her applications for asylum and humanitarian asylum because she failed to demonstrate that the Guatemalan government was unwilling or unable to control her persecutors and protect her. The Sixth Circuit affirmed, concluding that substantial evidence supported the BIA’s determination. The court noted the government’s timely intervention and the arrests, prosecution, conviction, and sentencing of K.H.’s persecutors, as well as the steps taken by the to protect K.H. K.H. did not suffer past persecution, so her claim for humanitarian asylum must fail. View "K. H. v. Barr" on Justia Law

Cruz, a native of El Salvador, grew up in a neighborhood dominated by the 18th Street gang. A rival gang, MS-13, sought to recruit Cruz and his friends as “spies” to relay information about 18th Street activities. After they refused, MS-13 threatened and assaulted them. MS-13 members murdered Cruz’s friend. Later that week, one of them told Cruz “if [he] was just as stupid as Brian, then the same thing would happen.” Cruz fled El Salvador and was apprehended near Hidalgo, Texas. In his deportation proceeding, Cruz sought asylum based on his fear of gang violence if he returned home. While his asylum application was pending, MS-13 killed one of Cruz’s friend, while 18th Street killed another. Both gangs extorted protection money from Cruz’s mother. When she missed a payment, 18th Street members broke into her house, beat her, and threatened to rape Cruz’s sister. While the Immigration Judge found Cruz’s testimony credible, she denied Cruz’s asylum application because Cruz failed to establish that he faced this persecution “on account of” a protected ground (8 U.S.C. 1101(a)(42)(A)). The BIA affirmed. The Sixth Circuit denied a petition for review. Cruz did not establish a connection between his “well-founded fear of persecution” and his membership in a particular social group. View "Cruz-Guzman v. Barr" on Justia Law