Justia Immigration Law Opinion Summaries

The Ninth Circuit denied in part and granted in part a petition for review of the BIA's denial of withholding of removal and protection under the Convention Against Torture (CAT). The panel held that the Board correctly concluded that petitioner's proposed social group of "Mexican wealthy business owners" was not cognizable because it lacked social distinction, particularity, or an immutable characteristic. Even if petitioner's proposed group were cognizable, the panel concluded that he would still not be entitled to relief. In this case, substantial evidence supports the IJ's decision that petitioner did not establish a nexus between the feared harm and his alleged membership in the proposed group.In regard to the CAT claim, the panel held that the Board erred in finding that petitioner had not proven he had been "subjected to any harm by Mexican officials." Even if the judicial officers were not in uniform and did not act in their official capacity, the panel concluded that petitioner has sufficiently demonstrated that he was the victim of an official perpetration of violence. The panel remanded with instructions for the Board to consider whether the attack by the judicial police officers qualifies as torture and whether petitioner has established that it was more likely than not he would be tortured if returned to Mexico. View "Macedo Templos v. Wilkinson" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal of the denial of her requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang's extortion and other demands.The court rejected the Board's "excessively narrow" view of the nexus requirement, and concluded that petitioner established that her familial ties were one central reason for her persecution. In this case, the record conclusively establishes a nexus between the death threats made against petitioner and her ties to her nuclear family. The court also concluded that the record conclusively establishes that the Guatemalan government was unable or unwilling to control petitioner's persecutors. Accordingly, the court remanded to the Board to reconsider petitioner's claims. View "Diaz De Gomez v. Wilkinson" on Justia Law

After NYLAG sought access to non-precedential "unpublished opinions" issued by the BIA in immigrant cases under the Freedom of Information Act (FOIA), the district court dismissed the case and concluded that FOIA's remedial provision does not authorize district courts to order agencies to make records publicly available. NYLAG seeks disclosure of these opinions, which are not routinely made available to the public, in order to aid in its representation of low-income clients in removal and asylum proceedings.The Second Circuit vacated the district court's judgment, concluding that FOIA's remedial provision authorizes the relief NYLAG seeks. The court explained that FOIA's text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. 552(a)(2), including the obligation to make certain documents publicly available. Therefore, the court remanded for further proceedings. View "New York Legal Assistance Group v. Board of Immigration Appeals" on Justia Law

An alien who entered the United States without being "inspected and admitted or paroled" may not have his status adjusted to lawful permanent resident by virtue of obtaining Temporary Protected Status (TPS). Petitioner, a native of Honduras, challenged the USCIS's denial of his application to obtain lawful-permanent-resident status in district court. The government moved to dismiss, but the district court denied the motion and remanded to the agency. The government appealed.The Fifth Circuit reversed and remanded, holding that the district court incorrectly interpreted and applied the relevant immigration statutes. The court held that the text of the relevant statutory provisions confirms that TPS does not cure the bar to status adjustment in 8 U.S.C. 1255. The court rejected petitioner's and amici's contention that because a TPS recipient is considered as "being in, and maintaining, lawful status as a nonimmigrant," section 1255(a)'s requirement that an alien be inspected and admitted is satisfied. The court concluded that this contention failed because granting TPS does not constitute an admission under section 1255(a); granting TPS does not constitute a waiver of the admission requirement in section 1255; and being "admissible" under section 1254a does not create an alternative method for satisfying the requirement that one be admitted under section 1255. In this case, the court concluded that TPS does not excuse petitioner from the requirement of being inspected and admitted into the United States. The court explained that, because petitioner was never lawfully admitted, he cannot now seek to adjust his status under section 1255(a). View "Rodriguez Solorzano v. Mayorkas" on Justia Law

The Ninth Circuit granted a petition for review of the DHS's order reinstating petitioner's prior order of removal. Petitioner, a Canadian citizen, was deported from the United States in the summer of 1990 under a final order of deportation. 26 years later, he was taken into custody by ICE after an arrest for driving under the influence of alcohol. DHS then reinstated his prior deportation order under section 241(a)(5) of the Immigration and Nationality Act.The panel held that a noncitizen has not "reentered the United States illegally" within the meaning of 8 U.S.C. 1231(a)(5) based solely on the fact of inadmissibility at the time of reentry. In this case, DHS failed to apply the correct legal standard under section 1231(a)(5) for entering a reinstatement order. The panel explained that petitioner's case is fundamentally different from circuit precedent, where the panel allowed reinstatement of prior deportation orders for noncitizens who had reentered the United States through fraud. The panel agreed with the government's tacit admission that it is not entitled to deference, and the panel did not give Chevron deference to agency decisions made without "a lawmaking pretense in mind," such as those made with little or no procedure and that "stop short of [binding] third parties." The panel noted that many inadmissible noncitizens who enter or reenter the United States do so without violating sections 1325 or 1326, for these sections do not punish entries or reentries solely on the ground of a noncitizen's inadmissibility. Furthermore, the panel's conclusion was reinforced by the INA's provisions governing relief from removal, the severe practical difficulties of basing reinstatement solely on inadmissibility at the time of reentry, and the DHS regulation governing reinstatement. View "Tomczyk v. Wilkinson" on Justia Law

Petitioner sought review of the BIA's decision upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States.The Eighth Circuit held that the "serious reasons for believing" standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. 1158(b)(2)(A)(iii), 8 U.S.C. 1231(b)(3)(B)(iii), and 8 C.F.R. 1208.16(d)(2). Because no such finding was made in this case, the court reversed and remanded for further proceedings. View "Rubio Barahona v. Wilkinson" on Justia Law

Petitioner, a native and citizen of Tanzania, petitions for review of an order issued by the BIA dismissing his appeal from the IJ's decision denying his application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner separately seeks review of the BIA's order denying his motion to reopen and denying his request for review of that motion by a three-member panel.The Fifth Circuit denied in part the petitions for review and concluded that it did not have jurisdiction to review factual challenges to the removal order; substantial evidence supports the conclusion of the IJ and BIA that petitioner failed to meet his burden of proof for CAT relief; and the BIA did not abuse its discretion in finding that petitioner did not present newly discovered evidence to corroborate his claim for CAT relief. The court dismissed the petition for review of the unexhausted claims, and dismissed for lack of jurisdiction the petition for review of the BIA's non-referral of petitioner's motion to a three-member panel. View "Tibakweitira v. Wilkinson" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d). View "United States v. Bastide-Hernandez" on Justia Law

Martinez-Baez, born in Mexico in 1980, claims that he unlawfully crossed the U.S.-Mexico border in 2000. The exact dates of his entries are unclear. Border agents returned him to Mexico three times in June 2000. Martinez-Baez claims that after his third return, he immediately re-entered and began working at a plastics factory. He filed his first federal tax return was in 2002. Martinez-Baez has three U.S.-citizen children. His daughter, born in 2012, has speech and language impairments that make it difficult for her to communicate.Martinez-Baez's Notice to Appear, dated April 2011, charged that he was removable under 8 U.S.C. 1227(a)(6)(A)(i). Martinez-Baez sought cancellation of removal, 8 U.S.C. 1229b. Cancellation is possible but discretionary, if the noncitizen has been physically present in the U.S. for a continuous period of not less than 10 years, has been a person of good moral character, has not been convicted of a specified offense, and establishes that removal would result in exceptional and extremely unusual hardship to a spouse, parent, or child, who is a U.S. citizen or lawful permanent resident. The IJ denied relief, holding that Martinez-Baez had failed to establish his continuous presence and hardship The BIA affirmed. The Seventh Circuit remanded. The IJ erred procedurally by failing to resolve whether Martinez-Baez’s testimony about the most important fact—his date of entry—was credible. The IJ and Board mischaracterized the evidence pertaining to the asserted hardship. View "Martinez-Baez v. Wilkinson" on Justia Law

The Ninth Circuit affirmed a petition for review of the BIA's decision denying petitioner's applications for asylum and related relief. The panel held that petitioner's credible testimony about an attempted gang rape was sufficient to establish past persecution, and that the Board erred in imposing evidentiary requirements of ongoing injury or treatment beyond the attempted sexual assault in order to show persecution.The panel stated that it has consistently treated rape as one of the most severe forms of persecution, and explained that some forms of physical violence are so extreme that even attempts to commit them constitute persecution. In this case, petitioner's credible testimony about the attempted gang rape is sufficient to show persecution. The panel explained that attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator's domination, control over the victim and imperviousness to the law. Furthermore, requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. The panel remanded for further proceedings. View "Kaur v. Wilkinson" on Justia Law