Justia Immigration Law Opinion Summaries

Gutierrez was born and raised amid violence in Honduras. He resisted MS-13’s attempts to coerce him to join the gang or pay a “war tax” and the gang repeatedly brutalized him and his wife and threatened to kill them. The record contains gruesome photos of his wounds. Gutierrez entered the U.S. illegally and sought relief under the Convention Against Torture (CAT). The immigration judge, finding Gutierrez credible and his account “detailed, plausible, and coherent,” found that “MS-13 is more likely than not to torture or kill him upon his return” but denied CAT relief and ordered Gutierrez removed, finding that any such torture would not occur with the “consent or acquiescence” of Honduran officials. The BIA dismissed Gutierrez’s appeal.The Fifth Circuit denied his petition for review. Gutierrez made a compelling humanitarian case for why removing him to Honduras will effectively abandon him to torture and death at the hands of MS-13 thugs but to make out a CAT claim, the law demands that this violence will likely occur “with the consent or acquiescence” of Honduran officials, 8 C.F.R. 1208.18(a)(1). The IJ and BIA found that Gutierrez had not established “consent or acquiescence.” The evidence does not compel a contrary conclusion. View "Gutierrez v. Garland" on Justia Law

Singh, a native of India,arrived in the U.S. in 1991, without travel documents or proof of identity. He falsely claimed that his name was Davinder Singh. Singh failed to appear at his immigration hearing and was ordered deported in absentia. Singh filed an asylum application under the name Baljinder Singh and married a U.S. citizen. Singh successfully petitioned to adjust his status to lawful permanent resident without disclosing his immigration history. When Singh later sought naturalization, he again failed to disclose his immigration history. In 2006, he became a U.S. citizen. In 2011, he pled guilty to conspiracy to distribute and possess with intent to distribute heroin, MDMA, and marijuana. Singh’s citizenship was revoked, 8 U.S.C. 1451(a), because he illegally procured naturalization.An IJ held Singh removable both for having been convicted of an aggravated felony, 8 U.S.C. 1101(a)(43)(U), conspiracy to commit a controlled substances offense, and for having been convicted of a controlled substances offense. The BIA dismissed his appeal. The Ninth Circuit remanded. The pertinent statutory provisions permit removal only of individuals who were “aliens” at the time of their criminal convictions. The court rejected an argument that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. View "Singh v. Attorney General of the United States" on Justia Law

New Jersey Law Enforcement Directive 2018-6, states “that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities,” and barred counties and local law enforcement from assisting federal immigration authorities by providing any non-public personally-identifying information regarding any individual, providing access to state, county, or local law enforcement equipment, office space, database, or property not available to the general public, providing access to a detained individual for an interview, without the detainee's written consent, or providing notice of a detained individual’s upcoming release from custody. The Directive prohibited local law enforcement agencies and officials from entering “any agreement to exercise federal immigration authority pursuant to Section 287(g) of the Immigration and Nationality Act” and required them to “notify a detained individual” when federal immigration authorities requested to interview the person, to have the person detained past his release date, or to be informed of the person’s upcoming release.The Third Circuit affirmed the dismissal of challenges to the Directive. For a federal law to preempt state law it must represent the exercise of a power conferred on Congress by the Constitution. Because the Constitution confers upon Congress the power to regulate individuals, not states, the federal law must be best read as one that regulates private actors, The cited federal laws, 8 U.S.C. 1373 and 1644, which regulate only state action, do not preempt the Directive. View "Ocean County Board of Commissioners v. Attorney General New Jersey" on Justia Law

In 2005, Rodriguez pleaded no contest to the charge of possession for sale of methamphetamine. She was placed on probation. She brought her Penal Code 1473.7 motion soon after she was detained by federal authorities, facing deportation. She submitted declarations of her own and from the law office that represented her, stating that her conviction was legally invalid because a prejudicial error damaged her ability to meaningfully understand the actual or potential adverse immigration consequences of her no contest plea. She stated that she had come to the U.S. when she was an infant and that her family, including her two young children, her parents, and her five sisters, all live in the U.S. The trial court rejected her motion, noting that she appeared to be on probation in another case and that she failed to show there was a reasonable probability that she would not have entered her plea if she had been fully informed of its adverse immigration consequences.The court of appeal reversed the denial of Rodriguez’s motion. Rodriguez's probation status in a separate case did not bar her motion. She showed it was reasonably probable that she would not have entered her plea if she had known its adverse immigration consequences. View "People v. Rodriguez" on Justia Law

Reyes, a native of Colombia, entered the U.S. on a visitor’s visa in 1989. Reyes had numerous criminal arrests and convictions, including indecent exposure convictions in 2007 and 2008. In 2009, Reyes married a U.S. citizen and adjusted his status through an application that his wife filed on his behalf. In 2011, Reyes was again charged with indecent exposure and pleaded no contest to a felony. He was sentenced to eight months in jail and three years probation. In 2014, he pleaded no contest to an additional felony for violation of the same California indecent exposure statute and was sentenced to 16 months in prison and three years of parole. In 2015, the government initiated removal proceedings. Relying on the 2011 and 2014 convictions, the government charged Reyes with being subject to removal under 8 U.S.C. 1227(a)(2)(A)(ii) as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. He argued that his convictions were not categorically crimes involving moral turpitude and submitted applications for relief from removal.The BIA rejected his argument. The Ninth Circuit granted a petition for review. The BIA erred in retroactively applying its 2013 precedent to change the legal consequences of Reyes’s 2011 conviction. View "Reyes-Afanador v. Garland" on Justia Law

The Eighth Circuit denied a petition for review challenging the BIA's decision affirming the IJ's denial of relief under the Convention Against Torture (CAT). The court rejected petitioner's challenge to the non-per-se-PSC (particularly serious crime) term under 8 U.S.C. 1231(b)(3)(B)(ii)) as unconstitutionally vague, concluding that the statute's text, while ambiguous, does more than apply to a crime's imagined, ordinary case and it imposes standards that must reference underlying facts. The court also rejected petitioner's alternative, non-refoulement claim. In this case, after determining that petitioner committed a PSC (past), the IJ did not need to conduct a separate danger-to-the-community analysis (present or future). Finally, the court concluded that petitioner was not entitled to CAT relief where he concedes that his evidence does not meet the more-likely-than-not standard of proof for being tortured if he were returned to Somalia. View "Mumad v. Garland" on Justia Law

The First Circuit affirmed the decision of the district court granting Appellee's petition for a writ of habeas corpus and ordering the immigration judge (IJ) to conduct a new bond hearing, holding that the district court did not err in concluding that Appellee was entitled to a new hearing.Appellee was detained under 8 U.S.C. 1226(a) and was denied bond at a hearing before an IJ, who placed the burden on Appellee to prove he was neither a danger to the community nor a flight risk. Appellee subsequently petitioned for a writ of habeas corpus, arguing that his constitutional due process right required the government - not him - to bear the burden of proof at his bond hearing. The district court agreed and ordered the IJ to conduct a new bond hearing at which the government would bear the burden of proof. The First Circuit affirmed, holding that Appellee was entitled to a new hearing before an IJ at which the government will bear the burden of proving either dangerousness or a flight risk in order to continue detaining Appellee. View "Doe v. Tompkins" on Justia Law

Addressing two petitions for review, the Ninth Circuit held that noncitizens at reasonable fear hearings before an immigration judge (IJ), including noncitizens whose removal orders have been reinstated, are statutorily entitled to counsel. The court noted that 8 U.S.C. 1362 provides that noncitizens shall have the privilege of being represented (at no expense to the government), by counsel of their choosing in "any removal proceedings" before an IJ and in any appeal proceedings before the Attorney General.Absent exceptional circumstances, denying a continuance despite the noncitizen’s inability to retain counsel within 10 days (the mandatory time for an IJ review hearing under 8 C.F.R. 208.31(g)) is not a denial of this entitlement if the asylum officer notified the noncitizen of the negative fear determination and the noncitizen requested IJ review and informed the noncitizen of the opportunity to have counsel, such as by providing a list of legal service providers. The statutory entitlement to counsel does not mean that a noncitizen must have counsel before an IJ can proceed, but only that a noncitizen must at least be informed and have an opportunity to seek counsel within section 208.31(g)(1)’s constraints. A noncitizen may waive the right to counsel, but such waiver must be knowing and voluntary. The court rejected additional due process arguments concerning the noncitizen’s hearing difficulties and the IJ’s failure to call a witness by telephone. View "Orozco-Lopez v. Garland" on Justia Law

Munyuh, a Protestant and anglophone, taught physical education in Cameroon before fleeing to the U.S. She was tortured by police, who suspected her of membership in the SCNC, an anglophone separatist group, and escaped with the help of her husband. Her 14-year-old son and husband still live in Cameroon. She was denied asylum and related relief on adverse credibility grounds.The Ninth Circuit vacated the order of removal and remanded. The immigration judge erred by failing to give specific, cogent reasons for rejecting Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration concerning the distance she traveled in a police truck before escaping on foot after officers raped her and being rescued by her husband. The IJ further erred by discounting Munyuh’s supporting documentation without giving her adequate notice and the opportunity to provide corroborative evidence. The “IJ seemed determined to pick every nit she could find” and discounted probative evidence on flimsy grounds, displaying “a dubious understanding of how rape survivors ought to act.” View "Munyuh v. Garland" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner left India because he feared being harmed by members of a rival political party.The court concluded that the agency properly determined that petitioner could safely relocate within India to avoid the possibility of future persecution or torture and that it would be reasonable to expect him to do so. The court explained that petitioner cannot challenge the agency's determination by relying on general country conditions evidence without showing how the evidence demonstrates that a person in his particular circumstances would be subject to persecution or torture. In this case, petitioner's allegation that he was mistreated by members of a political party that is aligned with a party in power nationally does not undermine the agency's conclusion that he can safely relocate within the country. View "Singh v. Garland" on Justia Law