Justia Immigration Law Opinion Summaries

The Second Circuit affirmed the district court's grant of habeas corpus relief to petitioner, who was detained pursuant to 8 U.S.C. 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. The habeas petition challenged the procedures employed in petitioner's bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk.The court held that the district court correctly granted the petition where petitioner was denied due process because he was incarcerated for fifteen months (with no end in sight) while the Government at no point justified his incarceration. The district court also provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that petitioner was either a danger or a flight risk. View "Velasco Lopez v. Decker" on Justia Law

Two years after the Fifth Circuit held that it lacked jurisdiction to review the denial of petitioner's motion to reopen because he had committed an offense covered in 8 U.S.C. 1227(a)(2)(A)(iii), the Supreme Court issued Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). In Guerrero-Lasprilla, the Court held that even in cases involving aliens who are removable for having committed certain crimes, courts of appeals have jurisdiction to consider constitutional claims or questions of law. Therefore, the Supreme Court concluded that courts of appeals have jurisdiction to determine whether an undisputed set of facts demonstrates diligence on the part of an alien requesting equitable tolling.On remand from the Supreme Court, the Fifth Circuit held that the BIA did not err in measuring petitioner's diligence from the issuance of Carranza-De Salinas v. Holder, 700 F.3d 768, 773–75 (5th Cir. 2012), in which this court held that the repeal of former Section 212(c) of the Immigration and Nationality Act could not be retroactively applied to aliens in petitioner's position. The court rejected petitioner's contention that the extraordinary circumstances that stood in his way was the fact that he was prohibited from filing a motion to reopen prior to this court's decision in Lugo-Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016). The court explained that, contrary to petitioner's view, Lugo-Resendez resolved an open question. However, it did not constitute an intervening change in binding precedent. Rather, the intervening changes that affected petitioner's ability to obtain relief were Vartelas v. Holder, 566 U.S. 257, 273–75 (2012), and Carranza-De Salinas. View "Londono-Gonzalez v. Whitaker" on Justia Law

The Fifth Circuit granted the petition for panel rehearing. The court withdrew its prior opinion on May 6, 2020 and substituted the following opinion.Since the prior opinion issued, the Supreme Court decided Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory term "final order of removal." Without expressing an opinion as to whether Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), the court applied Melendez v. McAleenan, 928 F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019), to this case.Plaintiff filed suit seeking review of USCIS's legal determination declaring him ineligible for adjustment to permanent status. Although plaintiff had been granted Temporary Protected Status (TPS), he had entered the United States illegally, which would ordinarily bar the adjustment of status. The court dismissed plaintiff's complaint with prejudice; reversed the district court's holding that it lacked jurisdiction; and asserted the court's own jurisdiction over plaintiff's claim. The court followed Melendez in holding that plaintiff sought review of the government's legal interpretation of statutory provisions that govern TPS and adjustment of status. The court explained that, because this is a "pure legal task," it is a nondiscretionary decision that is not barred by the jurisdiction-stripping statute, and thus the district court erred in concluding that it did not have jurisdiction to hear plaintiff's claims. The court also held that plaintiff has failed to state a legally cognizable claim under Melendez. The court explained that those with TPS who first entered the United States unlawfully are foreclosed from applying for adjustment of status as a matter of law. View "Nolasco v. Crockett" on Justia Law

The Supreme Court affirmed the judgment of the circuit court dismissing a suit by Plaintiffs, local taxpayers, for declaratory and injunctive relief filed against a sheriff and a locality concerning the sheriff's cooperation agreement with the federal government regarding the enforcement of federal immigration laws, holding that Plaintiffs lacked standing to file this action.The sheriff entered into an agreement with the United States Immigration and Customers Enforcement authorizing the sheriff and his officers to, among other things, interrogate any person they detain about the person's right to be or remain in the United States and serve warrants for immigration violations. Plaintiffs filed this complaint seeking to have the courts prohibit the alleged use of local tax revenue to enforce federal immigration law and assert that the use of local funds for that purpose is unlawful. The circuit court sustained Defendants' demurrers, concluding that Plaintiffs could not demonstrate that the sheriff acted outside the scope of his duty and authority in entering into the agreement. The Supreme Court affirmed but on different grounds, holding that Plaintiffs' allegations were insufficient to establish local taxpayer standing. View "McClary v. Jenkins" on Justia Law

In 2013, the status of Grijalva-Martinez, a citizen of Guatemala, was adjusted from asylee to lawful permanent resident. In 2016, he was convicted, under New Jersey law, of criminal sexual contact and of endangering the welfare of children. The government charged him as removable as an alien convicted of a crime involving moral turpitude (CIMT), an aggravated felony, and a crime of child abuse, child neglect, or child abandonment. Grijalva-Martinez applied for withholding of removal and Convention Against Torture (CAT) protection, asserting that he feared violence at the hands of gang members, including his former stepfather.The IJ sustained the removability charges, finding that Grijalva-Martinez’s conviction for criminal sexual contact was both a CIMT under 8 U.S.C. 1227(a)(2)(A)(i) and an aggravated felony under section 1227(a)(2)(A)(iii) and that he was ineligible for withholding of removal because he was convicted for criminal sexual contact, a particularly serious crime (8 U.S.C. 1231(b)(3)(B)(ii)) and ineligible for CAT relief because he had not established that he would be subject to torture if removed. The BIA and the Third Circuit upheld the decision, rejecting arguments that the IJ and BIA erred in concluding that criminal sexual contact is an aggravated felony, erred in concluding that the conviction is for a particularly serious crime, and failed to apply the proper legal framework to the CAT claim. View "Grijalva-Martinez v. Attorney General United States" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's decision determining that petitioner was ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1). The panel held that the BIA reasonably concluded that petitioner had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed based on his conviction for the offense of knowingly sponsoring or exhibiting an animal in a fighting venture under 7 U.S.C. 2156(a)(1). The panel deferred to the BIA's conclusion that, pursuant to the cross-reference in section 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless of whether the alien meets the immigration prerequisites for inadmissibility or deportability. View "Ortega-Lopez v. Barr" on Justia Law

The Second Circuit affirmed the district court's judgment in favor of the government defendants in a Freedom of Information Act (FOIA) action brought by plaintiff, seeking documents related to the revocation of his visa.The court held that the contested documents were properly withheld under FOIA Exemption 3, and specifically INA 222(f), because they pertain to the issuance and refusal of a visa. Furthermore, officials properly invoked Exemption 3 to withhold revocation documents as they are related to visa issuances and refusals. Finally, plaintiff failed to meet his burden of demonstrating that the records are needed by a court "in the interest of the ends of justice," and the discretionary release of records under 8 U.S.C. 1202(f)(1) provides no basis for disclosure in this FOIA action. For the reasons set forth in a separate summary order addressing FOIA Exemption 5 filed simultaneously with this opinion, the court affirmed the judgment. View "Spadaro v. United States Customs and Border Protection" on Justia Law

The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings. View "Cortes-Maldonado v. Barr" on Justia Law

Cartagena was born in El Salvador in 1996. In 2013, her parents moved to the U.S. Cartagena remained in El Salvador with her newborn daughter and two siblings. Cartagena received a call from a man, calling himself her cousin, who told her to tell her parents "they have to send us $200.” He sent texts saying that if they didn’t send the money an unidentified gang would kill her siblings. Cartagena’s parents sent her money for the gang. The threats continued. Her parents were unable to meet increasing demands. Gang members came to the family home and cut Cartagena's nine-year-old brother with a knife, telling him that “his parents [had] to see.” They later returned and beat Cartagena and her brother and raped Cartagena, threatening to kill her daughter. Cartagena fled to the U.S. with her daughter and siblings.Cartagena sought asylum based on the persecution that was based on her membership to the Cartagena family social group. An IJ found her credible but concluded that she had failed to demonstrate that the persecution occurred on account of her group membership because “the primary motivation … was monetary gain.” The BIA agreed, finding that family members were harmed because of their failure to meet the extortion demands, rather than their family ties.The Fourth Circuit reversed. The IJ and BIA failed to consider important evidence that compels the conclusion that family membership was at least one central reason for the persecution. Their conclusions are contrary to law and inconsistent with the evidence of repeated statements that the money being extorted was from Cartegena’s parents and that the persecutors contacted her in order to communicate their threats to her parents. View "Hernandez-Cartagena v. Barr" on Justia Law

Larios, an El Salvadoran national, entered the country without inspection in 1986. In 1998, Larios, allegedly thinking he was being robbed, pulled out a knife and caused the person to flee. Larios pleaded guilty to “threaten[ing] to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror,” N.J. Stat. 2C:12-3(a). In removal proceedings, he sought cancellation of removal, 8 U.S.C. 1229b(b)(1), a discretionary form of relief unavailable to those who have “been convicted of an offense under section 1182(a)(2),” including “a crime involving moral turpitude” (CIMT).Larios argued that his crime could not qualify as a CIMT because, under the categorical approach, the elements of a state statute must define an offense not broader than the federal statute, while “the least culpable conduct necessary to sustain a conviction under the [New Jersey] statute,” a threat to commit “simple assault,” did not meet the criteria to qualify as “turpitudinous.” The Third Circuit held the statute was divisible and remanded. On remand, however, the IJ declined to apply the modified categorical approach. The BIA affirmed. After a second remand, the BIA again rejected Larios’s application.The Third Circuit granted Larios's third petition, stating that under the modified categorical approach, Larios’s crime of conviction has a minimum mental state of recklessness but lacks any statutory aggravating factors, so the least culpable conduct is a reckless threat to commit a violent property crime, which is not turpitudinous. View "Larios v. Attorney General United States" on Justia Law