Justia Immigration Law Opinion Summaries

The Ninth Circuit held that the BIA reasonably interpreted "perjury," as used in 8 U.S.C. 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Given this definition, the panel held that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to . . . perjury."Petitioners, in three separate petitions for review, were convicted of perjury under section 118(a) and then suffered adverse immigration consequences on the ground that each had committed an "aggravated felony," namely, an "an offense relating to . . . perjury" under section 1101(a)(43)(S). The panel applied the categorical approach and held that section 118(a) is a categorical match with the BIA's generic definition of perjury, meaning that they cover the same amount of conduct. The panel rejected petitioners' claims to the contrary and held that section 118(a) is an "offense" relating to . . . perjury" under section 1101(a)(43)(S). The panel disposed of the petitions and any remaining arguments in concurrently filed memorandum dispositions. View "Ho Sang Yim v. Barr" on Justia Law

In April 2020, a Pennsylvania district court ordered the release of 22 immigration detainees because of the COVID-192 pandemic, by granting a temporary restraining order without affording the government an opportunity to be heard. The Petitioners had filed a joint petition, alleging they were at risk of serious harm from COVID-19, although they vary in age from 28-69, have divergent health conditions, have unique criminal histories, and have diverse home and family situations.The Third Circuit vacated those orders, stating that exigent circumstances do not empower a court to jettison fundamental principles of due process or the rules of procedure. Considering all the responsive measures implemented to detect and to prevent the spread of the virus, the challenges of facility administration during an unprecedented situation, and the purposes served by detention, the petitioners did not show a substantial likelihood of success on their claim that the conditions of their confinement constitute unconstitutional punishment and did not establish that the government was deliberately indifferent toward their medical needs. The court too readily accepted the all-or-nothing request for immediate release and erred in not considering as part of the balancing of harm practical difficulties involved in locating and re-detaining the petitioners should the government ultimately prevail or should a petitioner abscond, commit a crime, or violate another term of release. View "Hope v. Warden Pike County Correctional Facility" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's denial of petitioner's motion to reopen removal proceedings. The court held that the BIA did not abuse its discretion in determining that petitioner's seven-years-late motion was untimely and not entitled to equitable tolling.In this case, petitioner argued that the 90-day deadline should be equitably tolled because he exercised due diligence in the face of extraordinary circumstances stemming from the erroneous advice he received from his attorneys. After determining that it had jurisdiction to review the BIA's determination, the court held that the BIA did not misapply the equitable tolling standard and rejected petitioner's claim that the BIA required him to demonstrate a "maximum feasible diligence." Furthermore, the BIA did not abuse its discretion by ignoring petitioner's gross miscarriage of justice claim. View "Flores-Moreno v. Barr" on Justia Law

The First Circuit denied Petitioner's petition for review of an order of the Board of Immigration Appeals (BIA) that denied Petitioner's motion to reconsider his motion to reopen removal proceedings, holding that the BIA did not abuse its discretion.Petitioner, a native and citizen of the Dominican Republic, was charged with being removable from the United States. The Immigration Judge (IJ) sustained the charge of removability and denied Petitioner's application for cancellation of removal. The First Circuit affirmed, holding (1) this Court's precedent forecloses the argument that the IJ lacked jurisdiction to issue the order of removal; (2) the BIA did not abuse its discretion in denying Petitioner's motion to reconsider its denial of Petitioner's motion to reopen; and (3) the BIA did not err in finding that Petitioner failed to make the requisite prima facie case. View "Franjul-Soto v. Barr" on Justia Law

The First Circuit affirmed the judgment of the Board of Immigration Appeals (BIA) ordering Petitioner's removal, holding that Petitioner's state drug conviction was an "aggravated felony" under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43); 1227(a)(2)(A)(iii).Petitioner, a native and citizen of the Dominican Republic, pled guilty to drug possession with the intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32A(a). The Department of Homeland Security sought to remove him because his drug conviction constituted an aggravated felony under the INA. An immigration judge ruled that Petitioner was removable. The BIA affirmed. The First Circuit affirmed, holding that because the mens rea to convict an accomplice under section 32A(a) is no broader than under the Controlled Substances Act, Petitioner's state drug conviction amounted to illicit trafficking in a controlled substance and thus an aggravated felony under the INA. View "Soto-Vittini v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's second motion to reopen asylum proceedings based on changed country conditions. The panel held that the BIA abused its discretion by determining that a non-citizen who seeks to reopen an earlier application for relief and attaches that application to the motion has failed to attach the "appropriate application for relief" as required by 8 C.F.R. 1003.2(c)(1).In this case, petitioner sought only to reopen his prior asylum application because he believed that changed conditions in Azerbaijan revived his previously denied claim for asylum, and he sought asylum on precisely the same ground, political opinion, as he had in his 2004 application. Furthermore, petitioner attached to his motion to reopen his prior asylum application. The panel held that the prior asylum application that petitioner sought to reopen is the "suitable or proper" application to attach, and that it makes no sense to require someone in petitioner's shoes to submit a new asylum application that is identical to the earlier application. View "Aliyev v. Barr" on Justia Law

Five foreign nationals who each contributed $500,000 to Mirror Lake, a new commercial enterprise set to construct and operate a senior living facility, sought to obtain lawful permanent resident status under the EB-5 immigrant-investor program. The USCIS denied the EB-5 visa petitions on the stated ground that none had made a qualifying investment.The DC Circuit held that USCIS's denial of the EB-5 immigrant-investor visa petitions were arbitrary and capricious because the agency failed to offer a reasoned explanation for its denials. In this case, plaintiffs put their capital at risk because the redemption of their investments is dependent on the success of the business. Therefore, USCIS's decision to deny the visas on the purported ground that the investments are not at risk at all is neither reasonably explained nor supported by agency precedent. The court reversed and remanded with instructions to set aside the denials of the EB-5 petitions. View "Mirror Lake Village, LLC v. Wolf" on Justia Law

Abdulla was born in Yemen in 1976. His father became a naturalized U.S. citizen. Abdulla’s parents divorced. Abdulla and his brother, Fawaz, joined their father in the U.S. Abdulla became a lawful permanent resident in 1990. Fawaz received proof of citizenship in 1995, Abdulla claims that his application was never processed. In 2014, Abdulla was convicted of food stamp and wire fraud. DHS served a notice to appear (NTA) in removal proceeding on Abdulla, providing that the hearing date and time remained to be set. Abdulla’s counsel argued that Abdulla had acquired derivative citizenship and that DHS had failed to establish that Abdulla’s convictions were aggravated felonies. He did not argue that the NTA was improper for failure to provide the date and time or that the immigration court lacked jurisdiction, given Abdulla’s derivative citizenship.An IJ denied Abdulla’s motion to terminate. Abdulla’s counsel petitioned for asylum, withholding of removal, and relief under the Convention Against Torture, citing Yemen's civil war. On October 4, 2018, the IJ denied Abdulla’s petition and ordered removal. Abdulla’s BIA appeal was due on November 5, 2018, but was filed on December 21, 2018, by new counsel. Abdulla contended that his failure to timely file occurred for reasons that were beyond his control and exceptional because he reasonably expected his prior counsel to preserve his appeal rights and that upon learning that counsel had failed to do so, he acted with “speed, diligence, and zeal.” The BIA dismissed his appeal. The Third Circuit held that it lacked jurisdiction to review the BIA’s decision not to self-certify the late-filed appeal or Abdulla’s unexhausted merits claim and non-colorable due process claim. View "Abdulla v. Attorney General of the United States" on Justia Law

After the district court granted petitioner's application for naturalization, petitioner then moved for attorney's fees and costs under the Equal Access to Justice Act (EAJA). The district court denied the motion. The government concedes that petitioner is entitled to costs in the amount he requests because he is the prevailing party and, unlike for attorney's fees, there is no "substantially justified" requirement for costs under the EAJA.The Eighth Circuit affirmed the district court's order with modifications that petitioner is awarded costs. The court held that the district court did not abuse its discretion by determining that the government's position was substantially justified and did not err in denying the requested attorneys' fees under the EAJA. In this case, the government's position that petitioner lacked good moral character because he had given false testimony for the purpose of obtaining immigration or naturalization benefits was substantially justified. Finally, the court denied petitioner's motion to supplement the record. View "Garcia v. Barr" on Justia Law

Petitioner sought review of the BIA's final order of removal, seeking discretionary relief under 8 U.S.C. 1255(i), which permits an alien who entered without inspection to obtain relief from removal if, among other things, the alien is the beneficiary of a labor certification. The BIA determined that petitioner was ineligible for discretionary relief. At issue is the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U.S.C. 1252(a)(2)(B), which provides that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief" for certain enumerated categories of discretionary relief.The Eleventh Circuit overruled its prior precedent and held that its best interpretation of section 1252(a)(2)(B)(i) is that the court is precluded from reviewing "any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255" except to the extent that such review involves constitutional claims or questions of law. In this case, plaintiff claims that the BIA erred in its determination that he lacked the requisite subjective intent to misrepresent his citizenship status. Because such a challenge presents a factual question, the court lacked jurisdiction to review the claim under section 1252(a)(2)(B)(i). View "Patel v. United States Attorney General" on Justia Law