Justia Immigration Law Opinion Summaries

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's motion to reopen based on changed country conditions. Petitioner fears persecution if he is deported to Iran based on his Christian faith.The panel concluded that, because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. Furthermore, even if it does, the first exception to the law-of-the-case doctrine applies to petitioner's case. After reviewing the record, the panel concluded that the prior panel's decision, which was unsupported by substantial evidence, was clearly erroneous and enforcing it against petitioner would be unjust. In this case, the prior panel ignored the IJ's factual and legal errors; the prior panel accepted the IJ's incorrect application of the falsus maxim; and the prior panel accepted the IJ's violation of Kamalthas v. INS, 251 F.3d 902 (7th Cir. 2000). The panel also concluded that petitioner had not waived any challenge to the Board's interpretation of 8 U.S.C. 1003.2(c)(1), and determined on de novo review that petitioner was not required to include a new application for relief when he had previously submitted an application for relief based on his religious persecution claim. Finally, the panel concluded that the Board abused its discretion in determining that plaintiff failed to establish changed country conditions or prima facie eligibility for CAT relief. Accordingly, the panel remanded for further proceedings. View "Etemadi v. Garland" on Justia Law

Petitioner sought review of the BIA's decision dismissing his due process claims, the denial of his motion to terminate, and the denial of his application for withholding or deferral of removal under the Convention Against Torture (CAT). In this case, the IJ determined that petitioner was not competent to represent himself in removal proceedings; appointed a qualified representative; denied petitioner's motion to terminate; and found petitioner removeable for an aggravated felony.The Ninth Circuit dismissed petitioner's due process claims and denied his petition for review. The panel concluded that, given the record in this case, the IJ's safeguards sufficed to provide petitioner with due process such that termination of the proceedings was not required. The panel also concluded that amicus counsel's fact-based disagreements with the IJ's discretionary "particularly serious crime" determination are unexhausted and unreviewable. Finally, the panel concluded that the evidence does not compel reversal of the BIA's denial of deferral or removal under CAT. View "Benedicto v. Garland" on Justia Law

Petitioner, a criminal alien facing deportation to Somalia, petitions for review of the order of the BIA confirming his removability and denying his applications for withholding of removal, protection under the Convention Against Torture (CAT), and a refugee inadmissibility waiver. Petitioner also challenges the denial of his petition for a writ of habeas corpus.The Eleventh Circuit concluded that petitioner failed to preserve whether his defective notice to appear violated the agency's claim-processing rules; petitioner is removable for his controlled substance conviction; and, in the alternative, petitioner is removable for his second-degree assault conviction. The court also concluded that the Board denied the refugee inadmissibility waiver under the correct legal standard; the Board did not err in denying petitioner's applications for withholding of removal and for protection under the CAT; and petitioner's habeas petition is moot as to detention under 8 U.S.C. 1226(c), and is not ripe as to detention under section 1231(a). Accordingly, the court dismissed in part, denied in part, dissolving the stay of removal and remanded with instructions to dismiss the habeas petition. The court denied the government's motion to dismiss the appeal. View "Farah v. U.S. Attorney General" on Justia Law

On rehearing en banc, the court held that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and overruled the court's prior precedent establishing and applying it. The single factor rule required the court to sustain an adverse credibility determination from the BIA, so long as one of the agency's identified grounds was supported by substantial evidence. The panel remanded to the three-judge panel to re-examine the petition for review in light of the court's clarification of the standard for reviewing the BIA’s adverse credibility determinations. View "Alam v. Garland" on Justia Law

The Ninth Circuit denied the petition for review challenging the BIA's order denying petitioner's application for withholding of removal and relief under the Convention Against Torture (CAT). The panel also affirmed the BIA's refusal to allow petitioner to seek asylum in light of the reinstatement of his prior order of removal. The panel concluded that petitioner does not have the right to seek asylum under the INA, and he did not have a constitutional right to have DHS consider whether, as a discretionary matter, to overlook his prior removal order and thereby allow him to seek asylum.The panel concluded that there is no basis for upsetting the BIA's denial of petitioner's application for withholding of removal. The panel explained that because the BIA's finding of changed circumstances was sound and sufficient to rebut the presumption of future persecution on account of petitioner's perceived sexual orientation, there is no need to address the BIA's finding that he could safely relocate within El Salvador; where the IJ concluded that it was not more likely than not that petitioner would be persecuted if he returned to El Salvador on the basis of his anti-gang beliefs, the record does not compel a different conclusion; and the panel rejected petitioner's claims that he would be persecuted on account of his membership in several other social groups. In regard to CAT relief, the panel concluded that there was no error in the IJ's finding that petitioner was not likely to face torture in El Salvador for the same reasons he was not likely to face persecution for withholding purposes. View "Iraheta-Martinez v. Garland" on Justia Law

In 2006, petitioner was convicted under New York's child endangerment statute, N.Y. Penal Law 260.10(1). In 2017, the United States initiated removal proceedings against him, citing as a ground of removal defendant's conviction of a crime of child abuse, child neglect, or child abandonment pursuant to 8 U.S.C. 1227(a)(2)(E)(i). In 2010, the BIA held that this provision included convictions under child-endangerment statutes for which "actual harm" is not an element of the crime.The Second Circuit held that the holding in Matter of Soram, 25 I. & N. Dec. 378, 381 (B.I.A. 2010), applies retroactively, rendering petitioner removable. The court also held that it lacked jurisdiction to review the denial of petitioner's cancellation of removal because the agency retains discretion to weigh the probative value of uncorroborated arrest reports. Accordingly, the court denied in part and dismissed in part. View "Marquez v. Garland" on Justia Law

Under 8 U.S.C. 1226(c), the government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. In 2012, the plaintiffs filed a habeas petition on behalf of a putative class of noncitizens who are detained under section 1226(c) in New Jersey, contending that it violates due process to mandatorily detain noncitizens who have substantial defenses to removal and that the procedure for conducting “Joseph” hearings is constitutionally inadequate.The Third Circuit held that section 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. For those detainees who contend that they are not properly included within section 1226(c) and are therefore entitled to a Josepth hearing, the government has the burden to establish the applicability of section 1226(c) by a preponderance of the evidence and the government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Section 1252(f)(1) does not authorize classwide injunctions, so the court reversed the district court’s order in part. View "Gayle v. Warden Monmouth County Correctional Institution" on Justia Law

S.H.R. petitioned the superior court for the appointment of a guardian of his person and for judicial findings that would enable him to petition the USCIS to classify him as a special immigrant juvenile (SIJ) under federal immigration law. The superior court denied both petitions.The Court of Appeal concluded that S.H.R. had the burden of proving by a preponderance of the evidence the facts supporting SIJ status. Because the trial court found his evidence did not support the requested findings, S.H.R. has the burden on appeal of showing that he is entitled to the SIJ findings as a matter of law. In this case, S.H.R. has failed to meet his burden by failing to prove parental abandonment or neglect and that reunification was not viable. Therefore, the court affirmed the superior court's denial of the SIJ petition. The denial of the SIJ petition rendered the guardianship petition moot, and thus the court also affirmed the denial of that petition. View "S.H.R. v. Rivas" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the district court's grant of summary judgment in favor of the Government on petitioner's United States citizenship claim. The panel concluded that petitioner failed to present sufficient evidence to permit a rational trier of fact to find, by a preponderance of the evidence, that his parents obtained a legal separation, as required for him to derive U.S. citizenship under former section 321(a) of the Immigration and Nationality Act (INA). Even assuming arguendo that they did divorce and that petitioner's parents thereafter had a legitimate de facto union that would be recognized under Peruvian law, petitioner nonetheless failed to present sufficient evidence to establish that his parents were legally separated under Peruvian law. Because petitioner's petition for review presents no other grounds for avoiding his removal to Peru, the panel denied the petition. View "Giha v. Garland" on Justia Law

Rodriguez-Ramirez, a citizen of El Salvador testified that he fled to the U.S. in 2016, days after gang members threatened him outside his daughter’s school; he reported this threat to the local prosecutor, who prepared a report based on the information Rodriguez-Ramirez provided. Rodriguez-Ramirez did not provide any other corroborating evidence. The IJ relied on two inconsistencies: despite Rodriguez-Ramirez’s testimony that this threat occurred in February 2016, the report he provided from the prosecutor twice stated, on different pages, that the threats occurred in January 2016 and Rodriguez-Ramirez testified that the gang members showed him a weapon but he did not provide this information to the prosecutor or in his written asylum application. The IJ found that Rodriguez-Ramirez did not have a convincing explanation for the discrepancy. An adverse credibility determination was also supported by the IJ’s demeanor findings. The BIA dismissed an appeal from the denial of his application for asylum and withholding of removal.The Ninth Circuit denied a petition for review. The BIA and IJ were permitted to afford substantial weight to inconsistencies that “bear[] directly on [Rodriguez-Ramirez]’s claim of persecution.” The IJ was not required to give Rodriguez-Ramirez notice and an opportunity to provide additional corroborating evidence because substantial evidence supports the adverse credibility determination. View "Rodriguez-Ramirez v. Garland" on Justia Law