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Diaz entered the U.S. in 2002. She was apprehended in 2007 and placed in removal proceedings. At a 2012 hearing, Diaz sought asylum and withholding of removal, claiming that she believed the La Familia drug cartel, would seek revenge for her brother’s refusal to work for them. The IJ found that Diaz’s asylum application untimely, assessed her claim under the higher “clear probability of persecution” standard for withholding of removal, and denied relief, noting that the cartel had not harmed or threatened her or anyone in her family other than her brother. The BIA dismissed an appeal. Diaz was allowed to remain in the U.S. She received work authorization and regularly reported to ICE. In 2017, Diaz learned that her father had been kidnapped by the Knights Templar Mexican cartel and that the kidnappers stated that they were looking for Diaz’s brother. They specifically mentioned Diaz and threatened to hurt family members. Diaz moved to reopen and to stay removal, citing “changed country conditions.” ICE apprehended Diaz outside her home and scheduled her removal. The BIA denied her stay of removal. The Sixth Circuit dismissed her petition for review. Diaz was deported. The BIA then declined to reopen. The Sixth Circuit vacated. The BIA failed to credit the facts in Diaz’s declarations, which undermined its conclusion and abused its discretion in summarily rejecting Diaz’s Convention Against Torture argument that she could not safely relocate internally in Mexico. View "Trujillo Diaz v. Sessions" on Justia Law

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Sharareh fled Iran in 1986, became a naturalized citizen of Norway, and married a Norwegian citizen. In 1999, using a Norwegian passport, Sharareh entered the U.S. She applied for asylum, stating that she was an Iranian national without disclosing that she was a Norwegian citizen. She falsely stated that she was married to an Iranian citizen who had been tortured. The application was granted. Sharareh traveled to Norway several times in 2001-2002 using her Norwegian passport. Sharareh applied for adjustment of status, omitting reference to Norway. She became a lawful permanent resident. In 2008, she was charged with removability under 8 U.S.C. 1227(a)(1)(A). An IJ denied relief under 8 U.S.C. 1227(a)(1)(H), stating fraud waiver is not available for frauds committed at the time of an adjustment of status. The IJ declined to consider DHS’ argument that Sharareh was barred from all relief because she filed a frivolous asylum application, 8 U.S.C. 1158(d)(6). DHS later conceded that an IJ may waive frauds committed in an adjustment of status. The BIA remanded. The IJ denied relief, finding that Sharareh had made a knowing frivolous asylum application. The BIA and Seventh Circuit upheld the denial. The court rejected an argument that the BIA procedurally erred in granting DHS’ motion to remand. DHS’ opposition brief sought affirmance of the decision, while also arguing that the record supported a frivolous asylum application finding. This was the proper way to preserve the issue on appeal. View "Shojaeddini v. Sessions" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal from the IJ's decision finding petitioner removable and denial of his applications for withholding of removal and for protection under the Convention Against Torture (CAT). The court held that petitioner waived his challenge to the IJ's application of the "one central reason" nexus standard to petitioner's withholding of removal application; substantial evidence supported the IJ's conclusion that petitioner's worship of Santa Muerte was not one central reason for his persecution by Mexican law enforcement; and substantial evidence supported the denial of petitioner's application for CAT protection. View "Garcia-Moctezuma v. Sessions" on Justia Law

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There is no reason to conclusively presume prejudice when an individual was denied the right to counsel during his initial interaction with DHS officers, provided the individual was able to consult with counsel before the removal order is executed. The Ninth Circuit denied petitions for review of DHS's final administrative order of removal under 8 U.S.C. 1228(b). Assuming that a due process violation occurred when petitioner did not have counsel present at the outset of the removal process, the panel held that petitioner must show that he was prejudiced by the violation. In this case, petitioner failed to show that denial of the right to counsel during his initial interaction with DHS officers prejudiced him. In this case, petitioner has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he could not contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor could he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal. View "Gomez-Velazco v. Sessions" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal for lack of jurisdiction of plaintiff's action challenging DHS's denial of I-130 visa petitions. Plaintiff filed petitions seeking Legal Permanent Residence (LPR) status for his non-citizen wife and her three non-citizen children. DHS denied the petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 because defendant had been convicted of committing a lewd and lascivious act with a child under the age of fourteen. Because the Adam Walsh Act clearly delineates who may have a petition granted—rather than who may literally file a petition—the panel held that the amended statute applied to petitions that were filed before, but were still pending on, its effective date. Therefore, USCIS correctly applied the Adam Walsh Act in plaintiff's case. The panel also held that applying the Adam Walsh Act to pending petitions did not violate the Ex Post Facto Clause; the panel lacked jurisdiction to review plaintiff's statutory claims concerning the "no risk" determination; and plaintiff's constitutional claims were not colorable. View "Gebhardt v. Nielsen" on Justia Law

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The Eleventh Circuit affirmed defendant's conviction for reentering the country illegal following deportation. The court held that defendant was unable to meet the requirements that would allow for a collateral attack of her underlying deportation order. Even assuming without deciding that defendant was correct in asserting that a conviction for Florida grand theft no longer qualified as a crime involving moral turpitude, the court held that defendant was not deprived of a meaningful opportunity for judicial review of her deportation order and may not collaterally attack her underlying deportation order in these 8 U.S.C. 1326 proceedings. The court also held that the district court's evidentiary rulings were either not erroneous or, if they were, the error was harmless. View "United States v. Watkins" on Justia Law

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The Seventh Circuit previously concluded that it lacked jurisdiction to review the BIA’s characterization of Fuller’s conviction for attempted criminal sexual assault as a “particularly serious crime,” under 8 U.S.C. 1231(b)(3)(B)(ii). The characterization barred Fuller from withholding of removal under the Immigration and Nationality Act and the Convention Against Torture. The court also upheld the denial of deferral of removal under CAT, finding that Fuller had not credibly shown that he was bisexual, nor that the Jamaican government would regard him as such. Fuller then unsuccessfully sought to reopen the ruling and submit evidence of his sexual orientation and that he will be killed if returned to Jamaica. The evidence consisted of letters from individuals who knew Fuller in Jamaica and concerned acts of violence against Fuller. Without reaching the merits, the Seventh Circuit denied Fuller a stay of removal. The BIA considered Fuller’s new evidence and was not persuaded that it would have made a difference in the credibility determination; the BIA’s decision on a motion to reopen “is discretionary and unreviewable.” The court stated: “It is sobering to realize that if the Board has made the wrong call, the consequence for Fuller may be death” and expressed hope that this would be taken into consideration. View "Fuller v. Sessions" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was not removable for a controlled substance offense under 8 U.S.C. 1227(a)(2)(B)(i). The panel held that the state crimes underlying his removal, Nevada Revised Statutes 199.480 and 454.351, were not a categorical match to the federal generic statutes because they were overbroad and indivisible. Accordingly, the statute may not be used as a predicate offense to support removal. View "Villavicencio v. Sessions" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's decision dismissing his appeal challenging the IJ's competence determination. The panel held that the BIA in two related ways abused its discretion in affirming the IJ’s competence evaluation and determination. First, the BIA affirmed the IJ's inaccurate factual finding about the mental health evidence in the record and failed to recognize that the medical record upon which the BIA and the IJ heavily relied was nearly a year old and may no longer reflect petitioner's mental state. Second, the BIA abused its discretion by affirming the IJ's departure from the standards set forth in Matter of M-A-M-, 25 I&N Dec. at 480–81. In this case, the IJ did not adequately ensure that DHS complied with its obligation to provide the court with relevant materials in its possession that would inform the court about petitioner's mental competency. The panel remanded with instructions. View "Calderon-Rodriguez v. Sessions" on Justia Law

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The Ninth Circuit affirmed defendants' misdemeanor convictions under 8 U.S.C. 1325(a)(1) for attempting to enter the United States "at any time or place other than as designated by immigration officers." The panel held that a place "designated by immigration officers" refers to a specific immigration facility, not an entire geographic area. In this case, there was no dispute that defendants did not enter the United States through a facility where immigration officials could accept applications for entry. Therefore, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendants attempted to enter the United States in a place other than as designated by immigration officers. View "United States v. Aldana" on Justia Law