Justia Immigration Law Opinion Summaries

Plaintiff, a native and citizen of Venezuela and citizen of Cuba, appealed the dismissal of his complaint challenging the USCIS's determination that he was statutorily ineligible to adjust status under the Cuban Adjustment Act of 1966 (CAA), Pub. L. No. 89-732, 80 Stat. 1161. The court concluded that any arguments plaintiff may have had regarding the district judge's dismissal of his request for mandamus relief for failure to state a claim for which relief could be granted and any claims under the Declaratory Judgment Act (DJA), 28 U.S.C. 2201, has been abandoned by plaintiff's failure to raise them on appeal. Because the BIA lacked authority to review the USCIS CAA-eligibility determination, plaintiff had exhausted his administrative remedies prior to commencing his proceedings before the IJ. Therefore, the district judge erred when he determined that plaintiff's failure to exhaust available administrative remedies deprived him of jurisdiction over plaintiff's complaint. The court reversed the district court's dismissal for lack of subject matter jurisdiction, remanding for further proceedings. View "Perez v. USCIS" on Justia Law

The H-2B visa program allows U.S. employers to seek admission of foreign workers to perform temporary unskilled non-agricultural work by demonstrating that the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II). The employer must obtain certification from the Department of Labor (DOL) that: qualified workers are not available at the “prevailing wage” in the U.S. to perform the employment in question, and the aliens’ employment will not adversely affect wages and working conditions of similarly employed U.S. workers. DOL has often changed its method for calculating prevailing wages without giving notice or an opportunity to comment and without explanation. Opponents challenged 20 C.F.R. 655.10(f) and the 2009 Wage Guidance, which authorized use of privately-funded surveys to set the prevailing wage for certain occupations. A district court ruled in favor of the opponents. Following notice and comment, DOL announced the 2011 Wage Rule, but has continued to use the 2009 Guidance, having postponed the 2011 Rule’s effective date because it was subject to congressional appropriations riders precluding its implementation. The district court dismissed a challenge. The Third Circuit reversed, holding that the case was ripe and that the 2009 Guidance was arbitrary and violated the APA. View "Comite de Apoyo a los Trabajad v. Perez" on Justia Law

Petitioner, an Indonesian citizen, submitted an application for asylum, alleging that she experienced persecution as an Indonesian Christian. An Immigration Judge (IJ) denied Petitioner’s application for asylum and granted her request for voluntary departure, concluding that Petitioner’s account did not rise to the level of past persecution, nor did Petitioner demonstrate that she would be persecuted if she returned to Indonesia. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision and dismissed Petitioner’s appeal. The First Circuit granted Petitioner’s petition for review and vacated the order of removal, holding that the IJ’s and BIA’s legal conclusions were not supported by substantial evidence in the record. Remanded to the BIA to make a well-reasoned determination as to Petitioner’s eligibility for asylum. View "Panoto v. Holder" on Justia Law

Petitioner, a native and citizen of El Salvador, submitted an application for “temporary protected status,” which affords aliens protection from removal from the United States upon a determination that conditions in the alien’s home country prevent the alien’s safe return. The Attorney General designated El Salvador as a country whose nationals may qualify for temporary protected status after two large earthquakes struck the country. The Department of Homeland Security denied Petitioner’s application. Petitioner was later served with a notice to appear for removal proceedings. Petitioner subsequently filed a renewed application for temporary protected status. An Immigration Judge (IJ) denied the application after finding that Petitioner failed to provide “reliable” information that he was in the country soon enough to be eligible for temporary protected status. The Board of Immigration Appeals (BIA) affirmed. The First Circuit vacated the decision of the BIA, holding that the reasons the BIA gave for its decision were not adequate in this instance. Remanded.View "Shul-Navarro v. Holder" on Justia Law

Ramirez-Coria illegally entered the United States in 1995. He was placed in removal proceedings in April 2009, and conceded removability at his initial hearing. At a second hearing in May 2009, Ramirez-Coria requested a continuance in order to complete his application for cancellation of removal (Form EOIR-42B). The instructions on Form EOIR-42B directed Ramirez-Coria to: (1) attend an appointment with a nearby immigration Application Support Center (ASC) to provide biometric information; (2) obtain a biometrics confirmation notice from the ASC and bring it to his hearing as evidence he had provided his biometrics; and (3) file the completed Form EOIR-42B application and all supporting documentation with the Immigration Court within the time period directed by the IJ. Because Ramirez-Coria had not included the biometric information with his application, the IJ rescheduled his hearing to October 2010, eighteen months away. The IJ later rescheduled the hearing to January 2012, but shortly before the hearing Ramirez-Coria’s counsel moved to withdraw, stating his client had “lost interest in his own case.” New counsel entered an appearance, and the hearing was rescheduled for March 2, 2012. Ramirez-Coria submitted his supporting documentation for the application two days before the March hearing, but without the biometric information. At the hearing, counsel told the IJ that Ramirez-Coria had gone to an ASC the day before and provided his fingerprints. Officials at ASC would not take Ramirez-Coria’s fingerprints without any identification or birth certificate, and counsel stated that Ramirez-Coria had lacked any form of identification for the past three years until the day before the hearing. The government stated that DHS had no record that Ramirez-Coria had provided his fingerprints. Counsel did not dispute the IJ’s observation that the DHS obviously had not had time to complete its required investigation. The IJ also noted that all of Ramirez-Coria’s supporting documentation for the application was untimely because the Immigration Court Practice Manual requires all filings to be submitted at least fifteen days in advance of the hearing. Counsel stated her office had been diligent in contacting Ramirez-Coria, but he had been working a lot and it had been difficult to get the documentation. The IJ determined that Ramirez-Coria’s application for cancellation of removal should have been deemed abandoned and concluded that he had not shown good cause for failing to complete the biometric requirement in over two years, nor had his counsel ever informed the IJ that he was having any problem obtaining his fingerprints. The IJ dismissed his application, but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which concluded the IJ properly deemed his cancellation-of-removal application abandoned, and it dismissed his appeal. Finding no reversible error, the Tenth Circuit denied Ramirez-Coria's petition. View "Ramirez-Coria v. Holder" on Justia Law

Petitioner, a native and citizen of El Salvador, filed applications for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) affirmed. However, the IJ committed a clear error of fact in its factfinding, and this erroneous finding was recited in the BIA’s order denying Petitioner’s appeal. The First Circuit granted Petitioner’s petition for review and remanded for further proceedings, holding that, in light of principles of exhaustion, it was for the BIA to address in the first instance Petitioner’s arguments that the error affected the BIA’s ruling both as to whether he had a well-founded fear of future persecution and as to whether there was a nexus between the persecution and a protected ground.View "Perez v. Holder" on Justia Law

Petitioner, a native and citizen of Guatemala, came to the United States on a tourist visa and later conceded removability. Petitioner sought relief, including withholding of removal, claiming that she had a problem in Guatemala with a group of people known as guerillas. An immigration judge denied relief. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal, concluding that Petitioner had not established past persecution or a clear probability of future persecution, and therefore, Petitioner was not eligible for withholding of removal. The First Circuit affirmed, holding that Petitioner was not eligible for withholding of removal, where the BIA’s determination that Petitioner had not suffered past persecution was not erroneous, and substantial evidence supported the BIA’s conclusion that Petitioner had not established a likelihood of future persecution.View "Bedoya Lopez de Zea v. Holder" on Justia Law

Petitioner, a native and citizen of Brazil, entered the United States on a tourist visa in 2011. Petitioner married a United States citizen in 2004, at which point he was granted conditional permanent resident status. Petitioner and his wife did not seek to alter Petitioner’s status so it would no longer be conditional by the deadline, and, after his marriage ended, Petitioner filed for a hardship waiver. The United States Citizenship and Immigration Service denied Petitioner’s waiver request, and Petitioner was served with a notice to appear in removal proceedings. Petitioner renewed his waiver request, which an Immigration Judge denied. The Board of Immigration Appeals affirmed, finding that Petitioner did not make a showing that he entered into his marriage in good faith. The First Circuit denied Petitioner’s petition for review, holding that the Board’s finding on the issue of whether Petitioner’s marriage was entered into in good faith was supported by substantial evidence on the record.View "Lamim v. Holder" on Justia Law

Petitioner, a citizen of Guatemala, applied for asylum and withholding of removal, claiming that he left for the United States because he feared a gang would kill him. An Immigration Judge (IJ) denied the application. The Board of Immigration Appeals affirmed summarily. The First Circuit denied Petitioner’s petition for review, holding that there was sufficient evidence in the record to support the IJ’s factual finding that Petitioner failed to establish a viable nexus between the persecution he identified and the particular social group to which he claimed to belong - abandoned Guatemalan children lacking protection from gang violence.View "Guerra-Marchorro v. Holder" on Justia Law

Petitioner, a native of Guatemala and an indigenous Mayan Quiche, entered the United States without inspection. After Petitioner was charged with removability, Petitioner filed requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture, arguing that he and his Mayan Quiche community had been attacked by the Guatemalan military on account of their race and ethnicity and that he would suffer serious harm if returned to Guatemala. An immigration judge (IJ) denied Petitioner’s requests for relief and ordered him removed, concluding that Petitioner did not qualify for asylum because he had not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision. The First Circuit vacated the order of the BIA affirming the IJ’s decision and remanded, holding that the BIA’s and IJ’s determinations that Petitioner did not demonstrate past persecution on account of a protected ground were not supported by substantial evidence.View "Ordonez-Quino v. Holder" on Justia Law