The Eighth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court applied the deferential evidence standard and held that the harm petitioner suffered at the hands of a local politician was not severe enough to constitute past persecution. Furthermore, petitioner failed to establish a well-founded fear of future persecution where he could relocate to another part of Ecuador. View "Molina-Cabrera v. Sessions" on Justia Law

Rodriguez-Penton moved from Cuba to the U.S. when he was 15. He is a lawful permanent resident. Rodriguez-Penton was indicted for conspiracy to distribute and possess Oxycodone, retained counsel Butler, and initially cooperated but stopped because he feared for his family’s safety. The government offered Rodriguez-Penton plea deals but he entered an open guilty plea. Rodriguez-Penton’s Cuban citizenship arose during the hearing: the court stated that there was no need to review the civil rights one forfeits by pleading guilty; inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing; and asked about an Immigration and Customs Enforcement detainer, but did not advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences and sentenced him to a 121-month prison term. Rodriguez-Penton alleges that he learned of the deportation risk after sentencing, during a meeting with his prison counselor. Rodriguez-Penton appealed, represented by Butler, arguing that his plea was not knowing and voluntary. After hearing testimony from Butler and an interpreter, a magistrate concluded that Butler merely told Rodriguez-Penton that he did not have to worry about deportation. Rodriguez-Penton testified unequivocally that he “would not have gone to trial, even if he could not have negotiated a better plea arrangement.” The district court dismissed his 28 U.S.C. 2255 motion. The Sixth Circuit reversed. The legal standard for ineffective assistance of counsel claims has changed in the context of non-citizens faced with criminal charges. Rodriguez-Penton asserted that his decision-making process would have been different if he had been properly advised; the government has not offered any countervailing evidence that Rodriguez-Penton could not have secured a more favorable plea. View "Rodriguez-Penton v. United States" on Justia Law

After noncitizen minors entered the United States unaccompanied by a parent or guardian, they were placed in the custody of the United States Office of Refugee Resettlement (ORR). ORR subsequently released plaintiffs to a parent or sponsor when they concluded that each minor was not dangerous to himself or the community, and was not a flight risk. In 2017, the minors were arrested because of alleged gang membership and transferred to secure juvenile detention facilities. The Ninth Circuit affirmed the district court's grant of a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the basis for their rearrest. The panel held that the district court did not abuse its discretion in concluding that the minors were entitled to some sort of due process hearing and ordering the government, pendente lite, to provide members of the minor class with the procedural protections set forth in its order. In this case, the district court did not abuse its discretion in granting the preliminary injunction, and the preliminary injunction was entirely consistent with the mandate in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 that ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child. View "Saravia v. Sessions" on Justia Law

Saravia is a citizen of El Salvador. When Saravia was five, his mother left for the U.S. for economic reasons. In 2005, members of MS-13 began trying to recruit Saravia. He refused; they beat and threatened him with the murder of his family if his father reported the gang to the police. His father to send Saravia and Saravia’s younger sister to live with their mother in New Jersey. They entered without inspection in 2006. Saravia claims that MS-13 subsequently killed two of his cousins and attacked his father. In 2015, Saravia was arrested for aggravated assault, simple assault on a law enforcement officer, resisting arrest by physical force or violence, aggravated assault with a deadly weapon, unlawful possession of a firearm, and unlawful possession of a weapon. Saravia testified that, while he was in police custody, MS-13 called his mother and threatened to kill him if he returned to El Salvador. During his probation, Saravia was arrested for driving under the influence. Saravia was denied asylum and withholding of removal, 8 U.S.C. 1231(b)(3)(A), and relief under the Convention Against Torture. The IJ found Saravia credible but determined that Saravia failed to corroborate his claim. The Board affirmed. The Third Circuit vacated, based on the Board’s failure to follow precedent holding that an IJ must “give the applicant notice of what corroboration will be expected and an opportunity to present an explanation if the applicant cannot produce such corroboration.” View "Saravia v. Attorney General United States" on Justia Law

In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana. The trial court sentenced Gonzalez to 74 days in custody After serving his 74 days in custody, Gonzalez was deported in October 2000. Gonzalez reentered the United States about a year later. He subsequently was convicted of possession of a controlled substance for sale, making criminal threats, and domestic battery. In June 2002, Gonzalez was deported again. He reentered the United States, but was deported yet again in April 2017. On January 1, 2017, Penal Code section 1473.7 became effective, allowing a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." In August 2017, Gonzalez moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing, the superior court denied Gonzalez's motion. Gonzalez appealed, contending the court erred in denying his motion under section 1473.7. Specifically, he claimed he established prejudicial error based on his counsel's failure to adequately advise him of the immigration consequences of his plea and failure to seek an immigration safe alternative disposition. The Court of Appeal concluded Gonzalez's arguments lacked merit, and as such, affirmed. View "California v. Gonzalez" on Justia Law

Guerrero-Sanchez attempted to unlawfully enter the U.S.in 1998. He was removed back to Mexico. Guerrero-Sanchez reentered the U.S. without inspection. In 2012, he was arrested for his role in an Idaho-based drug trafficking organization. Guerrero-Sanchez pled guilty and was sentenced to 42 months of imprisonment. ICE reinstated his 1998 order of removal, 8 U.S.C. 1231(a)(5). The Third Circuit denied his petition for review and motion for stay of the reinstated removal order. Guerrero-Sanchez completed his sentence and was transferred to ICE custody pending removal. An asylum officer concluded that Guerrero-Sanchez's claim that he would be tortured by a drug cartel if removed to Mexico was reasonable and referred the matter to an immigration judge. The IJ found that he was ineligible for withholding relief under section 1231(b)(3) because he committed a particularly serious crime and that he did not qualify for Convention Against Torture relief because he did not establish that the Mexican Government would consent to or be willfully blind to torture. While his case remained pending before the BIA, Guerrero-Sanchez sought habeas relief, challenging his detention while he awaits a determination on whether he will be afforded country-specific protection from removal. The district court granted the petition. The Third Circuit affirmed. The detention of an alien, who has a reinstated order of removal but is also pursuing withholding-only relief is governed by the post-removal law, 8 U.S.C. 1231(a) rather than section 1226(a), the pre-removal statute; section 1231(a)(6) compels an implicit bond hearing requirement after prolonged detention. View "Guerrero-Sanchez v. Warden York County Prison" on Justia Law

A lawful permanent resident alien who has already been admitted to the United States -- who is not currently seeking admission or readmission -- can, for stop-time purposes, be rendered inadmissible by virtue of a qualifying criminal conviction. The Eleventh Circuit denied a petition for review of the BIA's decision that petitioner was barred from seeking cancellation of removal. The court held that the BIA correctly concluded that petitioner was ineligible for cancellation of removal because the stop-time rule -- triggered when he committed a crime involving moral turpitude in January 1996 -- ended his continuous residence a few months shy of the required seven-year period. View "Barton v. U.S. Attorney General" on Justia Law

Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, the Travel Act is divisible in that respect. Petitioner challenged the BIA's finding that he was removable for a controlled substance offense and ineligible for cancellation of removal. The panel denied the petition for review in part and held that petitioner's conviction qualified as a controlled substance offense under the modified categorical approach. The panel held, however, that the BIA's conclusion that petitioner was ineligible for relief under 8 U.S.C. 1229b was not supported by substantial evidence. The panel held that section 1229b states that the relevant time period ends "when the alien is served a notice to appear." In this case, the BIA used the date on which the notice to appear was issued, not the date when it was served on petitioner. Therefore, the panel granted the petition in part and remanded for the BIA to consider petitioner's claim for cancellation of removal. View "Myers v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's motion to suppress evidence. In this case, petitioner was on a fishing trip with friends when his boat lost power. When Coast Guard officers arrived to tow the boat, they detained petitioner and subsequently placed him in removal proceedings. The panel held that petitioner made a prima facie showing that the Coast Guard officers who detained him violated 8 C.F.R. 287.8(b)(2), which requires that an immigration officer have reasonable suspicion, based on specific articulable facts that a person is, or is attempting to be, engaged in an offense against the United States, or is an alien illegally in the United States, in order for the immigration officer to briefly detain the person for questioning. In this case petitioner was detained solely on the basis of his race and his detention was contrary to the requirements of section 287.8(b)(2). Furthermore, the violation alleged by petitioner was egregious both for its grotesque nature and its patent unlawfulness. View "Sanchez v. Sessions" on Justia Law

A Lebanese citizen, Al-Saka married Hashem, a U.S. citizen, in Beirut in 1999. He entered the U.S. in 2001 as a conditional permanent resident based on his marriage to Hashem continuing for at least two years. Just weeks later, the couple signed a religious divorce. In August 2001, the Lebanese government granted a legal divorce. Two months later, Michigan annulled the marriage at Hashem’s request after finding that “there had been no marital cohabitation.” In 2003, Al-Saka married another woman in Lebanon and took steps to remove the permanent-residence condition. Because he had divorced Hashem, he could not file a joint petition with her, as the law requires, 8 U.S.C. 1186a(c)–(d). He instead claimed that deportation would cause hardship and that he married Hashem in good faith. An UJ found that Al-Saka and Hashem did not marry in good faith, and refused to waive the joint-petition requirement. She rejected his hardship claim on the ground that his family remained in Lebanon. The BIA affirmed. The Sixth Circuit denied Al-Saka’s petition for relief, noting substantial evidence that his first marriage was not in good faith and rejecting a claim of ineffective assistance of counsel. View "Al-Saka v. Sessions" on Justia Law