Justia Immigration Law Opinion Summaries

Sanchez-Ruano, a citizen of Mexico, was admitted into the U.S. in 1995 as a visitor. He overstayed and has amassed criminal convictions including for possessing marijuana, receiving stolen property, DUI, and being the driver in two hit-and-runs. In 2013, he was charged with removability under 8 U.S.C. 1227(a)(1)(B) for remaining in the country longer than permitted. He requested a continuance pending the status of his U Nonimmigrant Status application. After numerous continuances, his U-visa application was denied. The IJ found Sanchez-Ruano statutorily ineligible for cancellation of removal due to his conviction for marijuana possession, 8 U.S.C. 1182(a)(2). Sanchez-Ruano argued that, given his previous admittance, section 1182(a)(2) did not apply to him for the purposes of cancellation of removal and that the personal use exception for violations involving 30 grams or less of marijuana under section 1227(a)(2)(B)(i) rendered him eligible for cancellation of removal. The BIA dismissed his appeal without analyzing his argument.The Ninth Circuit denied a petition for review. Aliens who have been admitted and commit certain crimes are deportable under section 1227(a); section 1229b(b)(1)(C) bars cancellation of removal if an alien has been convicted of “an offense under” sections 1182(a)(2), 1227(a)(2), or 1227(a)(3). Given Sanchez-Ruano’s conviction of an offense described under 1182(a)(2), the BIA correctly determined that he was statutorily ineligible for cancellation. View "Sanchez-Ruano v. Garland" on Justia Law

The Montgomery County Council established the Emergency Assistance Relief Payment Program (EARP) in March 2020 to provide emergency cash assistance to County residents with incomes equal to or less than 50% of the federal poverty benchmark who were not eligible for federal or state pandemic relief. Although eligibility for EARP aid is not dependent on a person’s status as an undocumented immigrant, such individuals are eligible to receive EARP payments. To fund EARP, the County appropriated $10,000,000 from reserve funds to the County’s Department of Health and Human Services. Taxpayers filed suit in Maryland state court, asserting that EARP violated 8 U.S.C. 1621(a), which, with few exceptions, generally prohibits undocumented persons from receiving state and local benefits. Recognizing that Section 1621 does not authorize private enforcement, the plaintiffs cited the Maryland common law doctrine of taxpayer standing, which “permits taxpayers to seek the aid of courts, exercising equity powers, to enjoin illegal and ultra vires acts of [Maryland] public officials where those acts are reasonably likely to result in pecuniary loss to the taxpayer.” The case was removed to federal court based on federal question jurisdiction, 28 U.S.C. 1331. The court granted the County summary judgment. The Fourth Circuit affirmed. Congress has declined to authorize private parties to enforce Section 1621, a legislative decision that cannot be circumvented by invocation of a state’s law of taxpayer standing. View "Bauer v. Elrich" on Justia Law

The New Jersey Attorney General issued Law Enforcement Directive 2018-6, the Immigrant Trust Directive. Concluding “that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities,” the Directive 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 any 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 unless the detainee signs a written consent; or providing notice of a detained individual’s upcoming release from custody. The Directive prohibited “any agreement to exercise federal immigration authority” and required local law enforcement 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.Plaintiffs cited 8 U.S.C. 1373 and 1644, which bar government officials and entities from prohibiting or restricting, any government entity or official from sending to, or receiving from federal immigration authorities “information regarding the citizenship or immigration status . . . of any individual.” The Third Circuit affirmed the dismissal of the suit. Federal law does not preempt the Directive; every form of preemption is based on a federal law that regulates the conduct of private actors, not the states. View "Ocean County Board of Commissioners v. Attorney General of New Jersey" on Justia Law

The Eighth Circuit denied a petition for review challenging the BIA's denial of petitioner's second motion to reopen her immigration proceedings. Having reviewed petitioner's proffered evidence, including her affidavit and several news articles, the court concluded that there was no abuse of discretion in the BIA's assessment that the evidence unfortunately "shows that the poor conditions facing gays and Christians in Somalia have remained substantially similar since the time of [her] hearing" and that reopening was not warranted on the basis of changed country conditions.The court also concluded that petitioner failed to establish that she was denied a fair hearing in violation of her due process rights. The court explained that petitioner's removal proceedings did not deny her a fair hearing because nothing in the record suggests the IJ would have had any indication that petitioner, who was incarcerated at the time, was intoxicated or otherwise unable to understand the proceedings. View "Yusuf v. Garland" on Justia Law

Parada-Orellana, a citizen of El Salvador, entered the U.S. in 2005 and was detained. She was served while in detention with a notice, ordering her to appear at a date and time to be set. ICE agents advised Parada-Orellana that she would need to update her address with the immigration court. Parada-Orellana claims she gave her “immigration papers” to her uncle’s wife, who misplaced them. Parada-Orellana relocated to Maryland without updating her address. An IJ ordered Parada-Orellana to be removed in absentia, reasoning that because she failed to provide her address, the court was not required to provide her with written notice of her hearing.In 2010, ICE detained Parada-Orellana. After her release, she consulted lawyers but did not address the deportation order. In 2015, Parada-Orellana married Ferman, a U.S. citizen. Parada-Orellana claims she helps Ferman run his business and manage his medical conditions. They do not have children together. Ferman filed an I-130 petition for alien relative, which was approved. Parada-Orellana then moved to reopen her removal proceedings to rescind her removal order or to allow her to apply for cancellation of removal because her husband would suffer exceptional and unusual hardship without her support.An IJ determined that Parada-Orellana was entitled to equitable tolling of the deadline for her motion, considering the Supreme Court’s Pereira decision, but denied the motion on the merits. The BIA dismissed an appeal. The Fifth Circuit denied a petition for review. While Parada-Orellana did not have a “full merits” hearing on her application for cancellation, the BIA’s conclusion that she failed to establish a prima facie case for the underlying relief is a discretionary decision barred from review by 8 U.S.C. 1252(a)(2)(B)(i). View "Parada-Orellana v. Garland" on Justia Law

The Ninth Circuit granted the petition for review of the denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT).The panel agreed with the agency's determination that petitioner did not establish eligibility for withholding of removal on account of his political opinion. Although petitioner did not present his social group claim to the agency, the panel concluded that it may consider it now because presenting it to the agency would have been futile. The panel also concluded that the agency failed to consider certain evidence in the record showing that it is more likely than not that petitioner would be tortured if removed to El Salvador. In this case, the exhaustion requirement contains an exception for cases in which exhaustion would be futile, the futility exception is satisfied here, and the agency's treatment of claims of persecution based on imputed gang membership is legally flawed. The panel remanded for the BIA to consider in the first instance petitioner's social group claim based on his perceived gang membership, and to reconsider petitioner's CAT claim. View "Vasquez-Rodriguez v. Garland" on Justia Law

Yaasin Isxaaq appealed a district court order denying his applications for post-conviction relief, in which he sought to withdraw his guilty pleas in three underlying criminal cases. Isxaaq was charged with theft in June 2016, and pleaded guilty to an amended charge of disorderly conduct later that month. Isxaaq was later charged with misdemeanor sexual assault in February 2017 and pleaded guilty in March 2017. Isxaaq was then charged with misdemeanor theft, and pleaded guilty in January 2020. All three charges were class B misdemeanors. Isxaaq was detained by Immigration and Customs Enforcement (“ICE”), pending deportation proceedings, on January 29, 2020. In all three cases, Isxaaq argued his guilty pleas were not knowingly, intelligently, or voluntarily made because he had not been properly advised on adverse immigration consequences, and because an interpreter was not used when he communicated with his attorneys. After review, the North Dakota Supreme Court affirmed, concluding the district court did not err in denying Isxaaq’s applications for post-conviction relief. View "Isxaaq v. North Dakota" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's decision affirming the IJ's order denying petitioner and her two minor children's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner testified that she had suffered persecution, or alternatively torture, at a drug cartel's behest because of her membership in a particular social group defined as "Mexican mothers who refuse to work for the Cartel."The court concluded that the BIA did not err in denying petitioner's asylum application because petitioner's social group is not sufficiently particularized or socially distinct. Insofar as petitioner relies on her uncle's death as evidence of persecution, the court has previously explained that evidence of isolated violence is insufficient. Because petitioner was unable to demonstrate eligibility for asylum, it follows that she is also unable to demonstrate eligibility for withholding of removal. Finally, the court concluded that substantial evidence supported the BIA's denial of CAT relief based on the fact that petitioner can safely relocate, joining her parents in a Mexican state free from the cartel's control. View "Rosales-Reyes v. Garland" on Justia Law

A conviction under Fla. Stat. 790.23(1)(a)—which makes it unlawful for a convicted felon to "own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device"—does not constitute a "firearm offense" within the meaning of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(C), and its cross-reference to 18 U.S.C. 921(a)(3).The Eleventh Circuit granted the petition for review of the BIA's final order of removal and vacated the BIA's decision deeming petitioner removable under section 1227(a)(2)(C) of the INA, based on his conviction for a violation of Fla. Stat. 790.23(1)(a). Applying the categorical approach, the court explained that the prohibited items for the possession and concealed carrying offenses in section 790.23(1)(a) are means of committing those crimes, and not elements of separate crimes. View "Simpson v. U.S. Attorney General" on Justia Law

The Fourth Circuit denied a petition for review challenging the BIA's order denying petitioner's application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Petitioner claims that he fears persecution by the gangs and police of El Salvador on account of his status as a former member of the MS-13 gang.The court concluded that petitioner does not identify any purported error in the social-distinction standard applied by the BIA in its order. In this case, the BIA agreed with the IJ that petitioner's proposed groups do not satisfy the social-distinction test because he has not shown that gang members who have renounced their gang membership are recognized in Salvadoran society to be a distinct group. The court concluded that the IJ did not apply the wrong standard and correctly stated that the relevant inquiry was whether "society in El Salvador recognizes former gang members as a group." The court explained that, although the IJ referred to petitioner's repeated testimony that his tattoos would identify him as a former gang member, it did not employ a literal visibility standard for social distinction. The court also concluded that the record does not support petitioner's claim that the IJ failed to consider the documentary evidence in assessing whether his proposed social groups were cognizable. To the contrary, the IJ made clear reference to documents submitted by petitioner and DHS. Finally, the court concluded that, viewed as a whole, the administrative record does not compel a finding that Salvadoran society views former MS-13 members or former MS-13 members who left for moral reasons as socially distinct.In regard to petitioner's CAT claim, the court concluded that the IJ and BIA specifically addressed some of the evidence petitioner contends they ignored; the BIA similarly referenced country-conditions evidence; and petitioner presents nothing to rebut the presumption that the agency considered that evidence to the extent it was relevant. The court also concluded that substantial evidence supported the BIA's finding that petitioner has not shown it is more likely than not he will be tortured if removed to El Salvador. View "Nolasco v. Garland" on Justia Law