Justia Immigration Law Opinion Summaries

The en banc court overruled Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), and held that petitioner, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the Immigration and Nationality Act (INA) became applicable there, was not removable under 8 U.S.C. 1182(a)(7)(a)(i). Section 1182(a)(7)(a)(i) applies to noncitizens who do not possess a valid entry document "at the time of application for admission." The en banc court held that the phrase "at the time of application for admission" refers to the particular point in time when a noncitizen submits an application to physically enter into the United States. Therefore, the en banc court granted the petition for review to the extent that the BIA determined that petitioner was removable "as an intending immigrant without a . . . valid entry document" under section 1182(a)(7).The en banc court held that the BIA properly concluded that petitioner is ineligible for relief in the form of cancellation of removal where substantial evidence supports the BIA's determination that petitioner failed to carry her burden of establishing ten years of continuous presence in the United States. Therefore, the en banc court granted in part and denied in part the petition for review, and remanded to the agency for a determination in the first instance as to whether petitioner was removable under the second ground originally charged in the Notice to Appear— removability as "[a]n alien present in the United States without being admitted or paroled" under section 1182(a)(6). View "Torres v. Barr" on Justia Law

The First Circuit denied Petitioner's petition for review of determinations by the immigration judge (IJ) and Board of Immigration Appeals (BIA) denying Petitioner's request for withholding of removal and voluntary departure, holding that there was no abuse of discretion or error of law.Petitioner was arrested in Connecticut on criminal charges. When served with a notice to appear in immigration court, Petitioner requested withholding of removal and voluntary departure. The IJ ruled against Petitioner, and Petitioner appealed. Before the IJ made its ruling Petitioner's wife filed an I-130 petition on his behalf. While Petitioner's appeal to the BIA was pending, Petitioner's charges in Connecticut were dropped and his I-130 petition was approved. Based on these developments, Petitioner moved to remand his case to the IJ. The BIA denied Petitioner's appeal and his motion to remand. The First Circuit denied Petitioner's petition for review, holding (1) Petitioner's withholding of removal claim failed; (2) the IJ did not err in denying Petitioner's application for voluntary departure; (3) the IJ did not err in denying Petitioner's motion for a continuance; and (4) the BIA did not abuse its discretion in denying Petitioner's motion to remand. View "Lee v. Barr" on Justia Law

Avitso, a citizen of Togo, entered the U.S. as a student in 2004 and married a U.S. citizen. In 2011, USCIS denied a Petition for Alien Relative filed by Avitso’s wife and an application for adjustment of status filed by Avitso, concluding they had entered into a fraudulent marriage to procure immigration benefits, which made Avitso removable, 8 U.S.C. 1182(a)(6)(C)(i), 1227(a)(1)(A). Notice of removal proceedings was mailed to Avitso at the address where USCIS investigators had been told he resided. In 2012, DHS mailed notice to a different address. The immigration court also mailed notice; it was returned, marked “moved left no address.” Avitso failed to appear. The IJ entered a removal order.In 2019, remarried and represented by new counsel, Avitso moved to reopen, alleging that he “did not personally receive" notice but a copy was forwarded to him by his then-attorney. The motion cited ineffective assistance of counsel. The IJ denied the motion, concluding Avitso failed to meet case law requirements to establish ineffective assistance and even if those requirements were satisfied, the outcome would not have been different. The BIA dismissed Avitso’s appeal. The Eighth Circuit denied a petition for review. Avitso’s motion to reopen included no evidence that he notified former counsel of his ineffective assistance claims, provided her an opportunity to respond, or filed a complaint with disciplinary authorities. The BIA enforces those requirements to discourage baseless allegations and deter meritless claims. View "Avitso v. Barr" on Justia Law

The Second Circuit affirmed the district court's decision affirming the Board's conclusion that Aleutian violated certain statutory and regulatory requirements governing the H-1B temporary foreign worker program, and order requiring Aleutian to pay back wages to two Program workers.The court held that agency regulations duly promulgated under the statute unambiguously require H-1B employers to make wage payments in "prorated installments," "no less often than monthly." Therefore, the court concluded that an employer's failure to satisfy this requirement constitutes a failure to comply with the Immigration and Nationality Act's overall "required wage obligation"—a conclusion that supports DOL's award of back wages to Employee Gangjee.The court declined to adopt the proposed limitations on DOL's investigatory authority by holding that DOL's investigation into an H-1B Program complaint may not exceed the specific allegations of misconduct made in that complaint. Rather, the court affirmed DOL's authority to investigate Aleutian's compliance with the H-1B Program's wage requirement as to Employee Horn, as well as to Gangjee. The court stated that such an inquiry was reasonably within the scope of DOL's investigative authority into the allegations made in Gangjee's complaint and is lawfully contemplated by Program regulations. View "Aleutian Capital Partners v. Pizzella" on Justia Law

After the government removed petitioner from the United Stated, the removal mooted the government's appeal of the district court's order directing the government to release petitioner from immigration detention. The government now moves to dismiss the appeal as moot and requests vacatur of the district court's decisions related to 8 C.F.R. 241.14(d), a regulation that the government had invoked to detain petitioner. Petitioner opposes the government's request for vacatur and separately requests vacatur of the Second Circuit's opinion granting the government's motion for a stay pending appeal.The Second Circuit held that because the district court's decisions related to 8 C.F.R. 241.14(d) could have legal consequences in future litigation between the parties, those decisions should be vacated so that "the rights of all parties are preserved." However, this court's opinion granting the government's motion for a stay pending appeal does not warrant vacatur because it does not have legal consequences for the parties. The court held that a decision concerning a stay is not a final adjudication on the merits of an appeal and lacks preclusive effect. Therefore, the court denied petitioner's motion to vacate this court's opinion granting the government's motion for a stay pending appeal, granted the government's motion to vacate the district court's decisions related to section 241.14(d), dismissed the appeal as moot, and remanded with instructions to dismiss petitioner's challenge to his detention as moot. View "Hassoun v. Searls" on Justia Law

The First Circuit denied Petitioner's petition for judicial review of the decision of the Board of Immigration Appeals (BIA) affirming the judgment of the immigration judge (IJ) denying Petitioner's applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), holding that Petitioner's claims failed.Petitioner, an Ecuadorian national, conceded removability and applied for asylum, withholding of removal, and CAT protection. The IJ determined that Petitioner had failed to substantiate any of his three claims and denied relief. The BIA affirmed. The First Circuit affirmed, holding that substantial evidence supported the agency's findings. View "Loja-Tene v. Barr" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's 2018 decision finding him removable under 8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted of an "aggravated felony" as defined by section 101(a)(43)(A) of the Immigration and Nationality Act (INA). The BIA found that petitioner was convicted of "sexual abuse of a minor" based on his 2010 New York state conviction under New York Penal Law 130.65(3) for sexual abuse in the first degree.The Second Circuit rejected petitioner's contention that section 130.65(3) criminalizes more conduct than the federal definition of "sexual abuse of a minor" covers. The court held that, because a conviction under N.Y. Penal Law 130.65(3) requires both that the victim be under the age of eleven and that the perpetrator's contact with the victim be "for the purpose of gratifying sexual desire," the state statute reaches no farther than the crime of "sexual abuse of a minor" as set forth in section 101(a)(43)(A) and construed by the BIA in In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. Therefore, a conviction under the state statute is an aggravated felony under the INA. View "Rodriguez v. Barr" on Justia Law

The Second Circuit denied a petition for review of the the BIA's decision affirming the IJ's order of removal of petitioner to the Dominican Republic. The court held that a conviction under New York Penal Law 165.50 is categorically an aggravated felony under 8 U.S.C. 1101(a)(43)(G). The court deferred to the BIA's reasonable interpretation of the ambiguous term "including" in "including receipt of stolen property" in section 1101(a)(43)(G). Under that interpretation, "'receipt of stolen property' is a distinct aggravated felony independent of theft and the property received need not have been stolen by means of 'theft' as generically defined." The court also determined that an intent to deprive is inherent in the requirement that an offender "knowingly" possesses stolen property. The court considered petitioner's remaining arguments and concluded that they are without merit. View "Santana v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's denial of immigration relief to petitioner. The panel held that Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), which held that California Penal Code section 245(a)(1), which proscribes certain aggravated forms of assault, is categorically a "crime involving moral turpitude" for purposes of the immigration laws, is consistent with Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc) and entitled to deference. Therefore, the panel held that the BIA correctly determined that petitioner's conviction under section 245(a)(1) was for a crime involving moral turpitude and that he was therefore inadmissible under the Immigration and Nationality Act (INA). The panel lacked jurisdiction to consider petitioner's challenges to the denial of his waiver under section 212(h) of the INA, because he failed to raise a cognizable legal or constitutional question concerning that determination. View "Safaryan v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision, holding that petitioner has adequately exhausted his particularly serious crime argument but that the BIA and IJ did not err in concluding that petitioner's conviction for being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. 922(g)(1) and 924(A)(2), constitutes a particularly serious crime barring withholding of removal.The panel also held that the termination of petitioner's grant of asylum by reopening his asylum-only proceeding was not error, and the IJ did not have jurisdiction to consider his request for an adjustment of status because of the limited scope of such proceedings. The panel stated that petitioner's request for an adjustment of status should have been made to the USCIS, not the IJ. View "Bare v. Barr" on Justia Law