Justia Immigration Law Opinion Summaries

In 2003, Jasso obtained lawful U.S. permanent resident status. More than a decade later, he pled guilty to first-degree home invasion in Michigan. DHS began removal proceedings, arguing that Jasso’s home-invasion conviction was a “crime of violence” under 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii), which then defined a “crime of violence” with both an elements clause and a residual clause, 18 U.S.C. 16. The IJ found that Jasso’s home-invasion conviction was a crime of violence under the residual clause. Before the Board of Immigration Appeals acted, the Sixth Circuit found the residual clause unconstitutionally vague. The BIA remanded for a new removability determination. The IJ terminated the proceeding, warning Jasso that DHS could “recharge under a different theory.” Two days later DHS initiated a second removal proceeding, arguing that Jasso’s home-invasion conviction was a “burglary offense” rather than a “crime of violence,” 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii). The IJ agreed and rejected Jasso’s argument that res judicata barred the second proceeding. The BIA affirmed, concluding that res judicata does not apply in removal proceedings involving aggravated felons. The Sixth Circuit vacated and remanded for determination of whether claim preclusion applies, which depends on whether the first removal proceeding was dismissed with or without prejudice—an issue never addressed by the Board. View "Jasso-Arangure v. Whitaker" on Justia Law

Petitioner, a citizen of the United Kingdom and a lawful U.S. permanent resident, was convicted of two counts of rape in 2011 under Ohio law. He was charged as removable for being convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), which lists rape as an aggravated felony, but it does not define the term. An IJ found held that Petitioner was removable without eligibility for relief. Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated felony because Ohio’s definition of rape includes digital penetration, whereas the federal law does not. The BIA disagreed. The Sixth Circuit reversed, noting that the Fifth Circuit and the BIA previously considered this question. The BIA reversed course in Petitioner’s case. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the Immigration and Nationality Act cannot; the Ohio conviction does not categorically fit within the federal definition, and Petitioner’s conviction is not an aggravated felony. View "Keeley v. Whitaker" on Justia Law

Liao, a citizen of China, became a lawful U.S. permanent resident in 2005. In 2015, Liao had a physical altercation with his girlfriend, Yu. A neighbor called the police. Yu told responding officers that she was holding her infant son, J.Y., while Liao struck her, but that J.Y. was not “hit or hurt.” She said, however, that during the fight, J.Y. was placed on the bed and fell to the floor. Officers arrested Liao, charging him with three offenses, including endangering the welfare of a child, Pa. Cons. Stat. 4304(a)(1). Liao was convicted and served 106 days of his prison sentence. An IJ ordered Liao’s removal for committing “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment,” which rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). The Third Circuit granted a petition for review and remanded to the BIA, reasoning that the elements of his conviction do not match the elements of the crime of “child abuse” under federal law, which requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm. The Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not require such a risk. View "Liao v. Attorney General United States" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's determination that petitioner was removable under the Immigration and Nationality Act (INA) based on his commission of a crime involving moral turpitude within five years of his admission to the United States. The court explained that it was DHS's burden to affirmatively prove (by clear and convincing evidence) that petitioner last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determined whether his 2012 felony abduction offense fell within the five-year window for removability. The court held that DHS failed to prove that petitioner was admitted in 2008. In this case, the record contained essentially unrebutted evidence showing that petitioner was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise). View "Mauricio-Vasquez v. Whitaker" on Justia Law

Veloz-Alonso, a citizen of Mexico, entered the U.S. illegally in the 1990s. He was removed in 1997, 1999, and 2008. In 2018, Veloz-Alonso was discovered again and was indicted for illegal reentry. He pleaded guilty and sought release on bail pending sentencing. Under the Bail Reform Act (BRA), a defendant pleading guilty must be detained unless the court finds by clear and convincing evidence that he is not a flight risk or a danger to the community, 18 U.S.C. 3143(a)(1). The government argued that Veloz-Alonso was subject to an order of removal and an ICE detainer, so that, if released, he would be taken into custody, removed, and unable to attend a sentencing hearing. The court granted the motion subject to electronic monitoring and a property lien on his house. The court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.” The Sixth Circuit reversed. While deportable aliens are not per se ineligible for bail, the district court incorrectly inferred that an alien released on bail is ineligible for ICE detention. Reading the BRA’s permissive use of release to supersede the Immigration and Naturalization Act’s mandatory detention would be incongruent with canons of statutory interpretation. To the extent that ICE may fulfill its statutory mandates without impairing the purpose of the BRA, there is no statutory conflict. View "United States v. Veloz-Alonso" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reconsider the BIA's previous order denying him a discretionary adjustment of status. The court noted that it had jurisdiction to review the petition for abuse of discretion. The court held that the district court did not abuse its discretion in denying the motion for reconsideration. In this case, the BIA satisfied its obligation to provide a "rational explanation" for its original decision to deny petitioner relief when it denied his motion to reconsider. In this case, the BIA's explanation that it did not violate the clear error standard of review in its weighing of the attempted suicide of one of petitioner's victims qualified as a "rational explanation." View "Camacho v. Whitaker" on Justia Law

In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law

Salmoran, a citizen of Mexico, was granted lawful permanent resident status in 2004. In 2015, he pled guilty to violation of New Jersey Statutes 2C:24- 4(b)(5)(b): Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree. DHS charged Salmoran as removable for having been convicted of: the aggravated felony crime of sexual abuse of a minor; an offense relating to child pornography; and a crime of child abuse, child neglect, or child abandonment. The BIA held that the conviction “categorically constitutes a crime of child abuse," so as to subject him to removal (8 U.S.C. 1101(a)(43)(I), 1227(a)(2)(E)(i)) but did not address whether the conviction was categorically an aggravated felony for an offense relating to child pornography, rejected Salmoran’s argument that the state statute was broader than the federal offense, and found that Salmoran was “statutorily precluded from applying for cancellation of removal. The Third Circuit remanded. The conviction qualifies as a crime of child abuse, but does not qualify as an aggravated felony relating to child pornography; while Salmoran is removable, he may still file an application for cancellation of removal. View "Salmoran v. Attorney General United States" on Justia Law

The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing.The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). View "Martinez-de Ryan v. Whitaker" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of a final order of removal, challenging the BIA's determination that he was convicted of a "particularly serious crime" within the meaning of 8 U.S.C. 1231(b)(3)(B)(ii), which rendered him ineligible for statutory withholding of removal and withholding of removal under the Convention Against Torture (CAT).The Ninth Circuit held that the statutory phrase "particularly serious crime" was not unconstitutionally vague on its face. The panel reasoned that the "particularly serious crime" inquiry requires an imprecise line-drawing exercise, but it was no less certain than the "perfectly constitutional statutes" that the Supreme Court discussed. The panel held that the fatal combination in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which applied an uncertain standard to an idealized crime on the context of the categorical approach, was not present in this circumstance, because the particularly serious crime inquiry requires consideration of what a petitioner actually did. View "Melgoza Guerrero v. Whitaker" on Justia Law