Justia Immigration Law Opinion Summaries

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum and for withholding and deferral of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT).The court held that petitioner's second‐degree assault conviction under NYPL 120.05(2) qualifies as an aggravated felony crime of violence under 18 U.S.C. 16(a). Therefore, petitioner was removable and ineligible for asylum. The court rejected petitioner's remaining claims, which challenged the BIA's determination that his assault was a particularly serious crime and his CAT deferral, as lacking in merit. View "Singh v. Barr" on Justia Law

The Fifth Circuit held that petitioner's prior Texas conviction for possession of methamphetamine with intent to deliver was a violation of a state law "relating to a controlled substance" as defined in the Controlled Substances Act (CSA). Therefore, the court held that petitioner failed to show that the BIA erred in finding that his Texas drug delivery conviction rendered him removable. The court also held that it lacked jurisdiction to review the BIA's discretionary decision to deny cancellation of removal. Accordingly, the court denied the petition for review of the BIA's decision affirming the IJ's finding of removability and discretionary denial of petitioner's application for cancellation of removal. View "Padilla v. Bar" on Justia Law

The Third Circuit granted a petition for review challenging the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT). The court held that the IJ and BIA erred in deciding that petitioner's conviction for conspiracy to commit wire fraud is a conviction for a particularly serious crime, making him ineligible for withholding of removal. In this case, the IJ and BIA failed to correctly apply the analysis articulated in In re N-A-M-, skipping right over the preliminary consideration of elements. Therefore, on remand, the agency should first determine whether the elements of petitioner's offense potentially fall within the ambit of a particularly serious crime. Only then may it proceed to consider the facts and circumstances particular to petitioner's case.The court also held that the IJ failed to observe the rule articulated in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), requiring immigration judges to notify a noncitizen in removal proceedings that he is expected to present corroborating evidence before finding that failure to present such evidence undermines his claim. Therefore, the court must remand for a new corroboration determination. View "Luziga v. Attorney General" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision finding petitioner ineligible for cancellation of removal because he sustained a prior conviction for a crime involving moral turpitude when he was convicted of theft by receiving in violation of Nebraska law. The court also held that Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019), foreclosed petitioner's claim that neither the IJ nor the BIA had subject matter jurisdiction over his removal proceedings, because the initial notice to appear served on petitioner did not include information about when and where to appear. View "Inzunza Reyna v. Barr" on Justia Law

Upon sua sponte rehearing, the Fifth Circuit withdrew its prior opinion and substituted the following opinion.The court granted the petition for review and held that petitioner failed to exhaust his challenge to the immigration court’s jurisdiction based on alleged defects in his Notice to Appear. The court also held that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. 1227(a)(2)(C). Therefore, the court concluded that this conviction did not disqualify petitioner from seeking cancellation of removal. Accordingly, the court vacated the BIA's order and remanded for further proceedings. View "Flores-Abarca v. Barr" on Justia Law

The Fifth Circuit granted a petition for review of the BIA's decision holding petitioner statutorily ineligible for cancellation of removal based on a prior 2004 firearm transportation conviction. The court held that petitioner failed to exhaust his challenge to the immigration court's jurisdiction based on alleged defects in his Notice to Appear.However, on the merits, the court held that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. 1227(a)(2)(C). Therefore, petitioner's conviction did not disqualify him from seeking cancellation of removal. The court remanded for further proceedings. View "Flores-Abarca v. Barr" on Justia Law

In 2005, defendant-appellant Jorge Rodriguez pled guilty to unlawful intercourse by a person over 21 under Penal Code1 section 261.5(d). Defendant, as a person over 21, admitted to having sex with a person under the age of 16. The trial court sentenced defendant to formal probation for 36 months. Days later, defendant was taken into custody by the Immigration and Naturalization Service pending resolution by an immigration judge whether defendant would be removed from the United States. That same year, defendant was ordered removed. In 2007, defendant admitted to violating his probation. The trial court added 60 days to defendant’s sentence, to be served on a work release program to commence December 14, 2007, and reinstated defendant’s probation. On September 10, 2008, defendant admitted a violation of a term of his probation requiring defendant to report to probation. The court then reinstated probation. In 2016, filed a petition for dismissal under Penal Code section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under section 17(b). As mitigation, defendant provided in his petition that he married the victim and had two children with her. Moreover, defendant noted that both violations of probation occurred because he was in the custody of Immigration and Customs Enforcement (ICE) and was deported so he was unable to meet his probation officer or check in for his weekend custody obligation. Both motions were denied, and defendant appealed. On January 1, 2017, Penal Code section 1473.7 went into effect. Among other things, section 1473.7 permitted a defendant to challenge a conviction based on a guilty plea where prejudicial error affected the defendant’s ability to understand the immigration consequences of the plea. On July 10, 2017, following the filing of the Court of APpeal's opinion in defendant’s first appeal, defendant, in pro. per., filed a motion to vacate his conviction under section 1473.7. The trial court denied defendant’s motion without defendant or defense counsel present. The Court of Appeal determined the trial court abused its discretion in denying defendant's section 1473.3 motion and reversed. View "California v. Rodriguez" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination, in a precedential decision, that even though petitioner was a lawful permanent resident, she was inadmissible under 8 U.S.C. 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because she had been convicted of a crime involving moral turpitude. In this case, the crime was Arizona solicitation to possess marijuana for sale. The BIA rejected petitioner's contention that, by referencing "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excludes crimes of solicitation even if they otherwise constitute crimes involving moral turpitude.Applying Chevron deference, the panel affirmed the BIA's determination that even though petitioner was a legal permanent resident, she was removable because she was inadmissible to the United States when she presented herself at the border. Furthermore, a conviction in Arizona for solicitation to possess at least four pounds of marijuana for sale constitutes a crime involving moral turpitude for purposes of section 1182(a)(2)(A)(i)(I), and thus petitioner was inadmissible. The panel rejected petitioner's contention that, by referencing only "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excluded crimes of solicitation, and the panel saw no reason to deviate from Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007). View "Gonzalez Romo v. Barr" on Justia Law

Bastardo-Vale, a citizen of Venezuela, who entered the U.S. on a student visa, sought review of the Board of Immigration Appeals decision that his Delaware conviction for second-degree unlawful imprisonment constituted a “particularly serious crime,” rendering him ineligible for asylum and withholding of removal relief, 8 U.S.C. 1158(b)(2), 1231(b)(3). His state conviction arose from a forcible sexual encounter with a fellow student; he pleaded no contest to second-degree unlawful imprisonment and was sentenced to the maximum term of one year’s imprisonment, which was suspended for eleven months of time served. The Department of Homeland Security then charged Bastardo-Vale with removability under 8 U.S.C. 1227(a)(2)(A)(i), for being convicted of a crime involving moral turpitude, and under 8 U.S.C. 1227(a)(1)(C)(i), for failing to comply with the conditions of his nonimmigrant status. Overruling its own precedent, the Third Circuit denied the petition for review. The phrase “particularly serious crime” as used in both the asylum and withholding of removal statutes includes, but is not limited to, aggravated felonies. The phrase “particularly serious crime” means the same thing in both statutes, and the language of those statutes shows that aggravated felonies are a subset of particularly serious crimes. View "Bastardo-Vale v. Attorney General United States" on Justia Law

Hillocks, a citizen of Trinidad and Tobago and a lawful U.S. permanent resident, was convicted of using a communication facility to facilitate a felony. The Board of Immigration Appeals applied the modified categorical approach, looked to Hillocks’s plea colloquy, and found that Hillocks used a phone to facilitate the sale of heroin. The Board found that his conviction was therefore both an aggravated felony and related to a controlled substance, 8 U.S.C. 1227(a)(2) and ordered Hillocks removed. The Third Circuit vacated the removal order. The categorical approach does not call for the consideration of the facts of a particular case; the court presumes that the state conviction rested upon the least of the acts criminalized by the statute, and then determines whether that conduct would fall within the federal definition of the crime. The modified approach only applies when the statute of conviction has alternative elements, and “at least one” of the alternative divisible categories would, by its elements, be a match with a generic federal crime. Pennsylvania’s statute does not have enumerated categories that suggest alternate elements, it does not provide different punishments depending on the underlying crime; the underlying felonies serving as a basis for a conviction under the statute are means, not separate elements. View "Hillocks v. Attorney General United States" on Justia Law