Justia Immigration Law Opinion Summaries

The First Circuit held that the requirements for establishing membership in a particular social group in support of a request for asylum or withholding of removal do not categorically preclude applicants from successfully relying on any group defined in material part as women "unable to leave" a domestic relationship.Petitioner, a native and citizen of the Dominican Republic, sought asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner alleged that her former domestic partner and the father of her son abused her in the past, will abuse her in the future, and will remain unfettered by Dominican law enforcement authorities. The immigration judge ruled against Petitioner in part on claimed inadequacy of the tendered social groups. The Board of Immigration Appeals (BIA) affirmed. The First Circuit remanded the case for further proceedings, holding that the BIA's holding that Petitioner's claim necessarily failed because the groups to which she claimed to belong were necessarily deficient was arbitrary and unexamined. View "De Pena-Paniagua v. Barr" on Justia Law

Jose Angel Banuelos-Galviz (Banuelos) entered the United States in 2006. Roughly three years later, he was served with a document labeled “Notice to Appear.” By statute, a notice to appear must include the time of the removal hearing. But Banuelos’s document did not tell him the date or time of the hearing, so the immigration court later sent him a notice of hearing with this information. Banuelos then sought asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge rejected each request, and Banuelos appealed to the Board of Immigration Appeals. While the administrative appeal was pending, the Supreme Court decided Pereira v. Sessions, which held that the stop-time rule was not triggered by a notice to appear that omitted the time of the removal hearing. Because Banuelos’s notice to appear lacked both the date and time, he moved for a remand so that the immigration judge could consider his request for cancellation of removal. To qualify for cancellation of removal, Banuelos needed to show continuous presence in the United States for at least ten years. His ability to satisfy this requirement turned on whether the combination of the deficient notice to appear and notice of hearing had triggered the "stop-time rule." If the stop-time rule had been triggered, Banuelos would have had only about three years of continuous presence. But if the stop-time rule had not been triggered, Banuelos’s continuous presence would have exceeded the ten-year minimum. The Board held that the stop-time rule had been triggered because the combination of the two documents—the incomplete notice to appear and the notice of hearing with the previously omitted information—was the equivalent of a complete notice to appear. Given this application of the rule, the Board found that Banuelos’s period of continuous presence had been too short to qualify for cancellation of removal. So the Board denied his motion to remand. Given the unambiguous language of the pertinent statutes, the Tenth Circuit determined the stop-time rule was not triggered by the combination of an incomplete notice to appear and a notice of hearing. The Court thus granted the petition for review and remanded to the Board for further proceedings. View "Banuelos-Galviz v. Barr" on Justia Law

The Center lodged a FOIA request with the Department of Justice (DOJ) for records of communications between the Attorney General, the Office of the Attorney General and any Office of Immigration Litigation or Office of the Solicitor General lawyers related to 11 certified cases decided in 2002-2009. DOJ produced about 1,000 pages but withheld 4,000 pages, citing FOIA Exemption 5, which allows the withholding of agency memoranda not subject to disclosure in the ordinary course of litigation, 5 U.S.C. 552(b)(5). Exemption 5 encompasses the attorney work product, attorney-client, and deliberative process privileges. DOJ submitted a Vaughn index describing each document withheld, identifying documents reflecting discussions between attorneys working within different offices of issues related to immigration cases under consideration or on certification for decision by the Attorney General.The Center unsuccessfully argued that the documents contained ex parte communications outside Exemption 5's scope because the DOJ attorneys’ eventual litigation role taints the advice they provide the Attorney General at the certification stage; removal proceedings end in federal court litigation where those same attorneys are opposite the immigrant. The Seventh Circuit affirmed. The Office of Immigration Litigation and Solicitor General attorneys do not hold interests adverse to the noncitizen at the stage at which the Attorney General certifies a case for decision. “ To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.” View "National Immigrant Justice Center v. United States Department of Justice" on Justia Law

The First Circuit denied Petitioner's petition for review of the order of the Board of Immigration Appeals (BIA) denying Petitioner's motion to reopen his immigration case, holding that the BIA did not abuse its discretion in denying Petitioner's motion to reopen on the grounds that Petitioner did not establish changed country conditions.Petitioner, a native and citizen of Guatemala who illegally entered the United States and was later placed in removal proceedings, applied for asylum and withholding of removal on the grounds that he feared gang violence upon his return to Guatemala. The immigration judge (IJ) denied Petitioner's applications. The BIA dismissed Petitioner's appeal, agreeing with the conclusion of the IJ that Petitioner had not shown that he would more likely than not suffer persecution upon his return to Guatemala. Petitioner later moved the BIA to reopen his case, alleging ineffective assistance of counsel and that country conditions in Guatemala had substantially changed. The BIA denied Petitioner's motion to reopen. The First Circuit affirmed, holding that the BIA did not err in declining to equitably toll the ninety-day statutory filing deadline and in concluding that Petitioner had not demonstrated that country conditions in Guatemala had substantially changed since his hearing. View "Molina v. Barr" on Justia Law

The Immigration Reform and Control Act (IRCA) makes it unlawful to hire an alien knowing that he is unauthorized to work in the U.S., 8 U.S.C. 1324a(a)(1), (h)(3). Employers must use an I-9 form to “attest” that they have “verified” that any new employee “is not an unauthorized alien” by examining approved documents. IRCA requires all employees to complete an I–9, attest that they are authorized to work, and provide specific personal information. It is a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization, 18 U.S.C. 1028, 1546; it is not a federal crime for an alien to work without authorization. State laws criminalizing such conduct are preempted. The I–9 forms and appended documentation and the employment verification system may only be used for enforcement of specified federal laws.Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Unauthorized aliens were convicted for fraudulently using another person’s Social Security number on tax withholding forms that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. The Kansas Supreme Court reversed, concluding that IRCA prohibits a state from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9.The U.S. Supreme Court reversed, rejecting the theory that no information placed on an I–9 could ever be used by any entity or person for any reason, other than the listed federal statutes. The sole function of the federal employment verification system is to establish that an employee is not barred from working in this country. The tax-withholding documents play no part in that process. Submitting withholding documents helped the defendants get jobs, but did not assist them in showing that they were authorized to work. The Kansas laws do not fall into a field that is implicitly reserved exclusively for federal regulation. Federal law does not create a unified, comprehensive system regarding the information that a state may require employees to provide. It is possible to comply with both IRCA and the Kansas statutes; the Kansas prosecutions did not frustrate any federal interests. View "Kansas v. Garcia" on Justia Law

The Attorney General was statutorily authorized to impose all three challenged immigration-related conditions on Byrne Criminal Justice Assistance grant applications. The conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens.The Second Circuit held that the Certification Condition (1) is statutorily authorized by 34 U.S.C. 10153(a)(5)(D)'s requirement that applicants comply with "all other applicable Federal laws," and (2) does not violate the Tenth Amendment's anticommandeering principle; the Notice Condition is statutorily authorized by section 10153(a)(4)'s reporting requirement, section 10153(a)(5)(C)'s coordination requirement, and section 10155's rule‐making authority; and the Access Condition is statutorily authorized by section 10153(a)(5)(C)'s coordination requirement, and section 10155's rule‐making authority.The court also held that the Attorney General did not overlook important detrimental effects of the challenged conditions so as to make their imposition arbitrary and capricious. Accordingly, the court reversed the district court's award of partial summary judgment to plaintiffs; vacated the district court's mandate ordering defendants to release withheld 2017 Byrne funds, as well as its injunction barring defendants from imposing the three challenged immigration‐related conditions on such grants; and remanded for further proceedings. View "New York v. United States Department of Justice" on Justia Law

The First Circuit denied Petitioner's petition for review of an order of the Board of Immigration Appeals (BIA) affirming the denial by an immigration judge (IJ) of his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), holding that the BIA's decision was supported by substantial evidence in the record.Petitioner applied for asylum, withholding of removal, and protection under the CAT. Thereafter, Petitioner was placed in removal proceedings. The IJ denied Petitioner's applications and ordered his removal. The BIA affirmed the IJ's decision. The First Circuit denied Petitioner's petition for review, holding (1) the denial of Petitioner's asylum application was supported by substantial record evidence; (2) because Petitioner could not succeed on his asylum claim his claim for withholding of removal was properly denied; and (3) Petitioner's claim regarding the denial of CAT protection was waived. View "Gao v. Barr" on Justia Law

The First Circuit denied two petitions for judicial review challenging the orders of the Board of Immigration Appeals (BIA) first finding that Petitioner was not entitled to asylum, withholding of removal, or CAT protection and then placing the case back on the docket and proceeding from where it left off before the case was administratively closed, holding that the BIA correctly interpreted the word "recalendar."In 2010, the BIA upheld the IJ's decision denying Petitioner's claims for asylum, withholding of removal, and CAT protection. The Petitioner petitioned for judicial review. First Circuit remanded the case to the BIA, and on remand, the government moved to close the proceedings administratively. The BIA granted the motion and administratively closed the case in 2013. The parties then filed a stipulation of dismissal, and the First Circuit dismissed the pending petition for judicial review and entered a judgment of voluntary dismissal. In 2016, the government moved to reinstate the case. The BIA granted the motion and decreed that its original 2010 decision "now takes effect." Petitioner petitioned for judicial review. The First Circuit denied both petitions for judicial review, holding that "recalendar" means to reinstate the case to the active docket in the same posture as it occupied when it was paused for administrative closure. View "Arevalo v. Barr" on Justia Law

Hamid Sow, a citizen of Guinea, sought review of the Board of Immigration Appeals’ (BIA) denial of his motion to remand based upon ineffective assistance of counsel, and motion to reopen based upon new evidence. In December 2016, Sow entered the United States and immediately applied for asylum because he was a homosexual, and the stigma of being a homosexual in a devout Muslim community in his homeland meant danger for himself and his family. Sow only spoke French, and relied on other detainees to relate information to his attorney. Without a translator, Sow's counsel did not fully understand Sow’s concerns: Sow tried to communicate to his counsel that the content of affidavits counsel “did not match up with what happened.” When asked about discrepancies in facts from the affidavits presented, Sow responded he could not explain them because he did not have an opportunity to read them. In his oral decision, the IJ said that he “unfortunately” had to deny Sow’s application based solely on an adverse credibility finding. In coming to this conclusion, the IJ specifically highlighted the inconsistencies in statements made in affidavits. He noted that, if it were true that Sow were a homosexual, then he “clearly should get” asylum. Sow, represented by new counsel, appealed to the BIA. He argued that the IJ erred in failing to assess Sow’s well-founded fear of future persecution. The BIA denied Sow’s motion to remand. It held that the IJ did not clearly err in making an adverse credibility determination and the record did not establish that Sow was entitled to relief “independent of his discredited claim of past harm.” It also denied Sow’s ineffective assistance of counsel claim, reasoning that counsel “reasonably relied on, and submitted the evidence provided by, the respondent and his friends.” The Eleventh Circuit concluded the BIA abused its discretion in denying Sow’s motion to remand based on ineffective assistance of counsel. It therefore granted Sow’s petition for review, vacated the BIA’s decisions, and remanded to the BIA with instructions to remand to the IJ for reconsideration of Sow’s asylum application. View "Sow v. U.S. Attorney General" on Justia Law

The First Circuit dismissed Petitioner's petition for review of a decision of the Bureau of Immigration Appeals (BIA) rejecting reopening and reconsideration of denial of relief from removal, holding that the limitations in 8 U.S.C. 1252(a)(2)(C)-(D) divest this Court of jurisdiction over the petition.Petitioner, a native and citizen of Sudan, was removed from the United States after his robbery conviction. Petitioner later filed a motion to reopen removal proceedings as to his requests for relief based on purported changed country conditions in Sudan. The motion was filed outside the ninety-day deadline for motions to reopen and the thirty-day deadline for motions to reconsider. The immigration judge denied the motion. The BIA dismissed Petitioner's appeal, concluding that 8 C.F.R. 1003.23(b)(1) prevented Petitioner from filing his motion to reopen and, alternatively, that the motion was denied in the exercise of the BIA's discretion. The First Circuit dismissed Petitioner's petition for review, holding that because no questions of law or constitutional claims were presented by Petitioner's challenge to the BIA's alternative discretionary holding, the jurisdictional bar set forth under 8 U.S.C. 1252(a)(2)(C)-(D) applied. View "Daoud v. Barr" on Justia Law