Justia Immigration Law Opinion Summaries

The Ninth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's denial of his applications for asylum and withholding of removal from Somalia. The panel held that the restricted-residence exception applies when the country's authorities are unable or unwilling to protect the applicant from persecution by nongovernmental actors. The panel concluded that the Board erred by determining that petitioner did not qualify for a firm-resettlement exception because the persecution he suffered was perpetrated by nongovernment actors. On remand, the Board should consider whether petitioner was firmly resettled in South Africa.The panel also held that petitioner suffered past persecution in Somalia on account of a protected ground. In this case, the record evidence would compel any reasonable factfinder to conclude that petitioner suffered persecution on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than petitioner's. The panel explained that Al-Shabaab's accusation that petitioner and his brother were featuring Islamically forbidden, "Satanic" films provided direct evidence of their political and religious motive. Even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel also remanded to give the government an opportunity to rebut the presumption of future persecution triggered by petitioner's showing of past persecution on account of a protected ground. View "Abdi Asis Ali Aden v. Wilkinson" on Justia Law

The Eighth Circuit denied a petition challenging the BIA's denial of petitioner's motion to reopen. The Board denied petitioner's motion as untimely because it was filed more than 90 days after the Board had issued a final administrative decision. The court concluded that petitioner's claims for discretionary relief fail because petitioner does not have a constitutionally protected interest in receiving a second try at a cancellation-of-removal proceeding. Furthermore, because petitioner had no protected interest in a second proceeding, her Fifth Amendment due process challenge to the BIA's decision to deny her motion to reopen failed. Finally, the court concluded that the BIA did not abuse its discretion in denying the motion based on its determination that the new evidence petitioner submitted was not new or material. View "White v. Wilkinson" on Justia Law

In removal proceedings for entering and remaining in the country unlawfully, Pereida sought to establish his eligibility for cancellation of removal under 8 U.S.C. 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove that they have not been convicted of specified criminal offenses. While his proceedings were pending, Pereida was convicted of a crime under Nebraska law. Analyzing whether Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, the IJ found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—conducting business without a required license—which did not. Because Nebraska had charged Pereida with using a fraudulent social security card to obtain employment, the IJ concluded that Pereida’s conviction likely constituted a crime involving moral turpitude. The BIA and the Eighth Circuit upheld the denial of relief.The Supreme Court affirmed. An alien seeking to cancel a lawful removal order bears the burden of showing he has not been convicted of a disqualifying offense. The alien has not carried that burden when the record shows he was convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. The Nebraska statute is divisible, listing multiple crimes, some of which are crimes of moral turpitude. In cases involving divisible statutes, judges determine which of the offenses an individual committed by employing a “modified” categorical approach, reviewing the record to discover which of the enumerated alternatives played a part in the defendant’s conviction. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, they work against the alien seeking relief from a lawful removal order. View "Pereida v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner sought relief after he had been threatened and beaten by gang members and police officers who urged him to join the gang. The court concluded that petitioner's negative view of gangs does not amount to a "political opinion" within the meaning of the immigration laws, and that substantial evidence supports the BIA's decision that he has not established a likelihood of future torture if he were to be removed to El Salvador. The court considered petitioner's remaining arguments and found them to be without merit. View "Zelaya-Moreno v. Wilkinson" on Justia Law

The First Circuit vacated the order of the Board of Immigration Appeals (BIA) affirming the order of the immigration judge (IJ) denying Petitioner's application for withholding of removal, holding that the IJ and BIA made legal errors.Petitioner, a native and citizen of Honduras, twice entered the United States without authorization. After the government ordered Petitioner removed to Honduras, Petitioner filed an application for withholding of removal. The IJ denied the motion. The BIA affirmed and denied Petitioner's motion to reopen and remand. The First Circuit vacated the removal order and remanded the case to the BIA for further proceedings, holding (1) the BIA erred in dismissing Petitioner's appeal based on her failure to corroborate; and (2) the BIA erred in finding that Petitioner did not adequately apply for relief under the Convention Against Torture. View "Molina-Diaz v. Rosen" on Justia Law

In 2017, Sunuwar was admitted to the U.S. as a lawful permanent resident based on a diversity visa. In 2018, he beat and strangled his wife, Sunuwar was convicted of strangulation and contempt for violating a protection-from-abuse order. Charged with removability as an alien who was convicted of an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii), a crime of domestic violence, section 1227(a)(2)(E)(i), and a crime involving moral turpitude, section1227(a)(2)(A)(i), and as an alien who was found to have violated a protection order, 1227(a)(2)(E)(ii), Sunuwar contested the charges of removability and sought asylum, withholding of removal under the Immigration and Nationality Act, and withholding of removal under the Convention Against Torture (CAT). His wife supported his petition but gave differing factual accounts.An IJ determined that Sunuwar is deportable and had committed a particularly serious crime that disqualifies him from all forms of relief except CAT deferral of removal. The IJ denied CAT deferral of removal based on an adverse credibility finding with respect to Sunuwar having been kidnapped and stabbed by Maoists in Nepal. The Third Circuit denied a petition for relief. Sunuwar was deportable, based on his violation of the protection order; there was no error in the particularly-serious-crime determination and the adverse credibility finding was reasonable. View "Sunuwar v. Attorney General United States" on Justia Law

The First Circuit vacated the order of the Board of Immigration Appeals (BIA) affirming the determination of an immigration judge (IJ) that Petitioners, a husband and wife who were natives and citizens of Brazil, were not eligible for an adjustment of status pursuant to the "grandfathering" provisions of section 245(i) of the Immigration and Nationality Act (INA), holding that the BIA and IJ did not appropriately focus their inquiry.On appeal, Petitioners argued that the BIA applied incorrect standards in determining that a labor certification application (LCA) filed on behalf of the petitioner husband was not "approvable when filed" and erred in denying their motion to remand. The First Circuit held (1) determining whether an LCA is approvable when filed requires a holistic inquiry that is not a license to deny grandfathering based on any perceived shortcoming in an LCA; and (2) the IJ and BIA did not keep their focus on that inquiry in the course of their evaluation of the petitioner's LCA. View "Oliveira v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of immigration relief to petitioner. The panel held that a conviction for importing, manufacturing, or dealing in firearms without a license, 18 U.S.C. 922(a)(1)(A), is categorically an "illicit trafficking in firearms" aggravated felony under 8 U.S.C. 1101(a)(43)(C). Therefore, petitioner is ineligible for asylum based on his conviction under section 922(a)(1)(A). In this case, the panel deferred to the BIA's interpretation of "illicit trafficking" in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), that illicit trafficking in a controlled substance – another aggravated felony – includes any felony conviction involving the "unlawful trading or dealing of any controlled substance." The panel explained that section 922(a)(1)(A) is a categorical match to "illicit trafficking in firearms" under section 1101(a)(43)(C). View "Chacon v. Wilkinson" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In this case, the Knights Templar, a local drug cartel, murdered petitioner's husband, twice threatened her life, and forcibly took her property in retaliation for helping her son escape recruitment by fleeing to the United States. The Board assumed without explicitly deciding that petitioner's social groups, comprised of her family or property owners, were cognizable.The Ninth Circuit held that substantial evidence does not support the BIA's conclusion that petitioner was not persecuted "on account of" her membership in a particular social group. Under the panel's case law, it is sufficient under our mixed-motive precedent for the petitioner to show that a protected ground "was a cause of the persecutors' acts." Furthermore, the panel found Parada v. Sessions, 902 F.3d at 910, instructive and concluded that Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from "purely personal retribution." The panel explained that the BIA erred in its nexus analysis for both petitioner's asylum claim and her withholding of removal claim. The panel remanded with instructions for the BIA to reconsider petitioner's asylum claim, and for the BIA to consider whether petitioner is eligible for withholding of removal under the proper "a reason" standard. The panel denied the petition as it relates to petitioner's claim for relief under CAT. View "Naranjo Garcia v. Wilkinson" on Justia Law