Justia Immigration Law Opinion Summaries

The First Circuit denied Petitioner's petition for review of the decision of the Board of Immigration Appeals (BIA) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), holding that Petitioner was not entitled to relief.After the Department of Homeland Security initiated removal proceedings against him Petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under CAT. The immigration judge denied the petition, determining, as relevant to this appeal, that Petitioner suffered no persecution and that any alleged persecution was not caused by his membership in a particular social group. The BIA affirmed. The First Circuit affirmed, holding that Petitioner's claim failed because he did not prove a nexus between the alleged persecution and a statutorily protected ground. View "Marquez-Paz v. Barr" on Justia Law

Every 10 years, the U.S. undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” The Secretary of Commerce must “take a decennial census of population . . . in such form and content as he may determine,” 13 U.S.C. 141(a), and report to the President, who must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census, 2 U.S.C. 2a(a), applying the “method of equal proportions” formula to the population counts to calculate the number of House seats for each state.In July 2020, the President issued a memorandum to the Secretary, announcing a policy of excluding from the apportionment base aliens who are not in lawful immigration status. The President ordered the Secretary “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.”The Supreme Court vacated an injunction, prohibiting the Secretary from including the information needed to implement the President’s memorandum and directed dismissal of the lawsuits for lack of jurisdiction. The threatened impact of an unlawful apportionment on congressional representation and federal funding does not establish a “legally cognizable injury.” Any chilling effect from the memorandum dissipated upon the conclusion of the census. The Secretary has not altered census operations in a concrete manner that will predictably change the count. Any prediction of how the Executive Branch might eventually implement the general statement of policy is conjecture. It is unclear how many aliens have administrative records that would allow the Secretary to avoid impermissible estimation; whether the Census Bureau can timely match its records to census data; and to what extent the President might direct the Secretary to “reform the census” to implement his general policy. The plaintiffs suffer no concrete harm from the challenged policy, which does not require them “to do anything or to refrain from doing anything.” View "Trump v. New York" on Justia Law

The First Circuit dismissed Appellant's appeal of the order of the district court dismissing Appellant's complaint seeking an order compelling the Board of Immigration Appeals (BIA) to rescind and reissue an order of removal it affirmed in 2013 and later refused to reopen, holding that the district court lacked subject matter jurisdiction.In 2013, the BIA affirmed an order authorizing the removal of Appellant to his country of origin. Appellant filed a motion to reopen his removal proceedings, which the BIA denied. Appellant then commenced this action in the United States District Court against officials of the Department of Justice claiming a right of action under the Administrative Procedure Act (APA) and any statutes providing for habeas corpus. The district court dismissed the complaint for failure to state a claim. The First Circuit dismissed Appellant's appeal, holding that Appellant's APA claim and habeas claim both arose from his removal proceedings and that the district court lacked subject matter jurisdiction over those claims. View "Gicharu v. Carr" on Justia Law

Mexican citizen Hernandez-Alvarez was a permanent U.S. resident when, in 2002, he was convicted of indecent solicitation of a child. DHS initiated removal on the grounds that his conviction constituted an aggravated felony. Hernandez-Alvarez argued that the conviction did not qualify as an aggravated felony. He was removed before the Board of Immigration Appeals acted on his motion for reconsideration. The Board determined that his removal constituted a withdrawal of that motion. Fifteen years later, Hernandez-Alvarez moved for reconsideration and reopening, citing two Supreme Court decisions: Esquivel-Quintana (2017), and Pereira (2018). He argued that his motion was timely because it merited equitable tolling; alternatively, he requested that the Board invoke its authority to reopen his proceedings sua sponte. The Board concluded that equitable tolling was not warranted because Hernandez-Alvarez failed to show due diligence; it rejected his argument based on Pereira that the IJ did not have jurisdiction over his removal proceedings and declined to exercise its power to reopen the proceedings sua sponte.The Seventh Circuit denied his petition for review. Hernandez-Alvarez failed to exhaust his remedies before the Board for his argument that his 2019 motion is timely because it relates back to his 2004 motion. Hernandez-Alvarez did not diligently pursue his rights in the two years following the Esquivel-Quintana holding that a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old does not qualify as sexual abuse of a minor under the Immigration and Nationality Act. The Board did not commit legal error in declining to reopen his proceedings. View "Hernandez-Alvarez v. Barr" on Justia Law

Innova, wanting to hire a citizen of India with a bachelor’s degree as a computer programmer, sought an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, U.S. Citizenship and Immigration Services (USCIS) denied the application, concluding that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”The Ninth Circuit reversed, concluding that USCIS’s denial was arbitrary and capricious. USCIS’s suggestion that there is “space” between "typically needed," per the OOH, and "normally required," per the regulation is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." The regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. USCIS misrepresented the OOH and failed to consider key evidence, namely, OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.” View "Innova Solutions, Inc. v. Baran" on Justia Law

Ghanian native and citizen, petitioner Joachim Addo appealed when his application for asylum was denied by an immigration judge and the Board of Immigration Appeals. Petitioner was the son of the chief of the Challa tribe. For several years the Challa have been in a land dispute with another tribe, the Atwode. The Atwode tribe was larger than the Challa, but the Challa controlled more land in the Nkwanta district, and in the past they often leased land to the Atwode. Starting in 2005 the Atwode began violating the lease terms and customs. Petitioner’s father instructed the Challa to stop leasing land to the Atwode, and he took the Atwode to court over the land disputes, winning every case. The Atwode responded with violence against the Challa and vowed to eliminate Petitioner’s father and family. This led to several violent incidents perpetrated by the Atwode against Petitioner and other members of his family. Shortly after these attacks, Petitioner and his father agreed that, for his own safety, Petitioner would relinquish his position as heir-apparent to the Challa chiefdom and would move from Nkwanta to Accra, the capital of Ghana. But this did not stop the Atwode, and harassment continued. In January 2017 Petitioner entered the United States. He expressed a fear of returning to Ghana and was granted a credible-fear interview. An asylum officer determined that Petitioner was credible and referred his case to adjudication. At a hearing in June 2017 the IJ determined that Petitioner was removable. Petitioner indicated, however, that he wished to apply for asylum, so the IJ scheduled a hearing to consider the asylum claim. Petitioner filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. In the briefs on his petition for review by the Tenth Circuit Court of Appeals, Petitioner challenged the denial of asylum and withholding of removal, arguing that substantial evidence did not support the BIA’s determination that he could successfully avoid future persecution by relocating within Ghana. The Court agreed with Petitioner that the decision on his ability to safely relocate was unsupported by substantial evidence. The petition was granted and the matter remanded to the BIA for further proceedings. View "Addo v. Barr" on Justia Law

Plaintiffs–Appellants were United States citizens or lawful permanent residents who worked as farm laborers. Defendants–Appellees Cervantes Agribusiness and Cervantes Enterprises, Inc. (collectively, Cervantes) were agricultural businesses owned and managed by members of the Cervantes family in southern New Mexico. Plaintiffs brought claims against Cervantes for breach of contract, civil conspiracy, and violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), based on Cervantes’s failure to employ them after a labor contractor, allegedly acting on Cervantes’s behalf, recruited them under the H-2A work-visa program of the United States Department of Labor (DOL). The district court granted summary judgment in favor of Cervantes on all claims. After review of the trial court record, the Tenth Circuit reversed the trial court’s ruling on the breach-of-contract and AWPA claims because the evidence, taken in the light most favorable to Plaintiffs, was sufficient to support a finding that the contractor was acting as Cervantes’s agent when it recruited them. But the Court affirmed summary judgment in favor of Cervantes on the conspiracy claim because of the lack of evidence of an agreement between Cervantes and the contractor to engage in unlawful acts. View "Alfaro-Huitron v. WKI Outsourcing Solutions" on Justia Law

Ronald Sewell, a 20-year-old Jamaican national, pleaded guilty to two counts of first degree robbery and pleaded guilty as charged to possession of a stolen firearm. The district court sentenced him to serve three years imprisonment at hard labor without parole eligibility for each first degree robbery, and one year imprisonment at hard labor for possession of a stolen firearm, with the sentences to run concurrently. After he served his sentences, the federal Government commenced removal proceedings based on these felony guilty pleas. Sewell filed an application for post-conviction relief in which he contended the guilty pleas had to be set aside because counsel rendered ineffective assistance by failing to advise him that they would result in his removal from the United States. Sewell’s former counsel testified at the post-conviction evidentiary hearing stating she was unaware that Sewell was not a United States citizen, and that she would have advised him of the possibility of removal if she had known his status as a noncitizen. Former counsel also testified that Sewell spoke English fluently and without an accent, and that he never informed her that he was born outside of the United States. The judge who presided over the post-conviction evidentiary hearing also accepted the guilty pleas. The judge indicated that she recalled the case and agreed that nothing about Sewell would have prompted anyone to question whether he was a United States citizen. Nonetheless, the district court granted Sewell’s application for post-conviction relief and ordered that his guilty pleas be withdrawn. The court noted that no one had advised defendant of the strong likelihood he would be removed from the United States based on his guilty pleas, the plea form did not contain any place to indicate citizenship, and therefore the court found it incumbent upon it to grant the relief requested. The State appealed. The Louisiana Supreme Court reversed, finding that under the circumstances here, Sewell failed to carry his burden post-conviction that his attorney’s failure to inquire into his citizenship fell below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668 (1984). Therefore, the district court erred in granting Sewell’s application for post-conviction relief and in ordering that Sewell’s guilty pleas be withdrawn. Accordingly, the State’s application was granted and the rulings of the courts below reversed. Sewell’s guilty pleas were reinstated. View "Louisiana v. Sewell" on Justia Law

The Eleventh Circuit denied a petition for review contending that the IJ erred by ordering petitioner removed under 8 U.S.C. 1182 for unlawfully entering the United States. Petitioner claims that her factual admissions and concession of removability were plainly contradicted by the record—which she says proves that she was lawfully admitted in 2002 on a tourist visa—and that she should not be bound by them at all. Petitioner contends that she should have been charged under 8 U.S.C. 1227 for overstaying her six-month tourist visa—not section 1182 for unlawful entry. Furthermore, she alleges that her first attorney provided ineffective assistance of counsel.The court held that petitioner failed to show the "egregious circumstances" required for her to be released from a counseled concession. In this case, petitioner failed to demonstrate that the concession was untrue or incorrect. The court accepted the Board's factual finding that after petitioner's lawful entry in 2002, she could have left and reentered the United States unlawfully on a later date, which would make both her concession and her testimony true. Furthermore, even if petitioner's concession were incorrect, she cannot show either of the two circumstances that could release her from her concession. In this case, the concession did not lead to an unjust result and she cannot show that her concession was the product of unreasonable professional judgment. Finally, the Board did not err by denying petitioner's motion to remand where the new evidence she sought to introduce on remand was not material. View "Dos Santos v. U. S. Attorney General" on Justia Law

The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary. View "Singh v. Barr" on Justia Law