Justia Immigration Law Opinion Summaries

The Ninth Circuit granted in part and denied in part a petition for review of the BIA's determinations that petitioner does not qualify for derivative citizenship and that his burglary conviction renders him removable. The panel held that petitioner is not a derivative citizen of the United States and did not become a citizen of the United States under 8 U.S.C. 1431(a). In this case, petitioner concedes that he never resided in the United States pursuant to a lawful admission for permanent residence while he was under the age of eighteen. Therefore, petitioner was subject to removal proceedings.The IJ and the BIA found that petitioner was removable because his California burglary conviction was a crime-of-violence aggravated felony. While this appeal was pending, the Supreme Court held that the "crime of violence" statute, as incorporated into the Immigration and Nationality Act's definition of aggravated felony, is unconstitutionally vague. Therefore, the panel held that petitioner's burglary conviction can no longer support removal as a crime-of-violence aggravated felony. The panel remanded to the BIA for the agency to determine whether petitioner is removable on another ground, including based on his California conviction for receipt of stolen property. View "Cheneau v. Barr" on Justia Law

In 2004, Abreu was convicted in Pennsylvania of 22 drug-related counts and was sentenced to 27-54 years’ imprisonment, to run consecutively to a federal sentence Abreu was already serving. The Superior Court of Pennsylvania affirmed. Abreu later unsuccessfully sought relief under the Pennsylvania Post Conviction Relief Act (PCRA). In 2015, Abreu filed a habeas petition under 28 U.S.C. 2254, claiming that his PCRA counsel’s assistance was ineffective in failing to assert that his trial counsel had rendered ineffective assistance. The district court rejected his claims.The Third Circuit granted a certificate of appealability as to claims that trial counsel performed ineffectively by failing to challenge the admission of grand jury testimony and by failing to seek to strike a police officer’s testimony recounting statements made by others. While Abreu’s appeal was pending, he was released on early parole, subject to a federal removal order, and then removed to the Dominican Republic. His federal conviction (not at issue) permanently bars his reentry. The Third Circuit directed the district court to dismiss Abreu’s petition as moot. Without a collateral consequence of Abreu’s state conviction that can be redressed by a favorable decision on his petition, there is no case or controversy under Article III. View "Abreu v. Superintendent Smithfield SCI" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision finding petitioner removable as an aggravated felon for having been convicted of fraud involving a loss to the victims exceeding $10,000 pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), 1101(a)(43)(M)(i). Defendant was convicted of insurance fraud and grand larceny, and was ordered to pay $77,199 in restitution without any indication as to whether the restitution order was for the benefit of victims of the insurance fraud, the grand larceny, or both.The court held that the BIA relied on inadequate analysis in concluding that the $77,199 restitution order, on its own, showed that petitioner's insurance fraud caused more than $10,000 in victim losses. In this case, where petitioner was convicted of two separate crimes and ordered to pay an overarching restitution amount without indication of what part, if any, was for the insurance fraud, the court held that the restitution order, without more, is insufficient to demonstrate that more than $10,000 in losses were caused by the insurance fraud count as distinct from the larceny count. Furthermore, the BIA gave no explanation why it concluded that more than $10,000 of the restitution award was attributable to losses caused by the insurance fraud. Accordingly, the court vacated the BIA's decision and remanded for further proceedings. View "Rampersaud v. Barr" on Justia Law

The Fourth Circuit denied the petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding that petitioner is statutorily ineligible for cancellation of removal because, during his first seven years of continuous residence after admission to the United States, he committed an offense listed in 8 U.S.C. 1182(a)(2) that rendered him inadmissible.The Supreme Court held, in Barton v. Barr, 140 S. Ct. 1442 (2020), that conviction of an offense listed in Section 1182(a)(2) renders a lawful permanent resident "inadmissible" for purposes of Section 1229b(d)(1) even if he is not seeking admission. In this case, because petitioner committed such an offense during his initial seven years of residence after admission to the United States, and was later convicted of that offense, the court held that he is ineligible for cancellation of removal. View "Argueta v. Barr" on Justia Law

Argentine citizen Cabeda, a lawful U.S. permanent resident, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse at age 34 with a 15-year-old boy. Immigration authorities found her removable for having committed a state-law offense qualifying as an “aggravated felony,” 8 U.S.C. 1227(a)(2)(A)(iii), specifically the “sexual abuse of a minor.”The Third Circuit granted her petition for review. Notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed because the Pennsylvania statute under which she was convicted could conceivably be violated by conduct that falls short of satisfying all the elements of the federally defined crime of sexual abuse of a minor. The categorical approach mandates ignoring what she actually did and focusing instead on what someone else, in a hypothetical world, could have done. The court called this “a surpassingly strange result but required by controlling law.” View "Cabeda v. Attorney General United States" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner fled her Cameroonian village after she was ordered to marry the village chieftain, called the Fon. In this case, petitioner's credible and unrebutted testimony establishes that, during the period after she left home, she was hiding in fear of her life and of being captured and taken to the palace for a forced marriage. Furthermore, the record does not demonstrate any safe relocation in a place where the Fon's writ did not run.The panel held that substantial evidence does not support the Board's conclusion that petitioner could relocate within Cameroon to avoid future persecution or torture; her proposed social group of "women resistant to forced marriage proposals" lacked social distinction; and she failed to establish a clear probability of torture with government acquiescence. View "Akosung v. Barr" on Justia Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging defendant with illegal reentry in the United States. The court held that an alien may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair.In this case, defendant failed to meet his burden on any of the elements. Furthermore, even if defendant could collaterally attack the deportation order under Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018), his attack fails. Therefore, the immigration court had jurisdiction over defendant's deportation proceedings and the district court did not err in denying his motion to dismiss the indictment. View "United States v. Aquilar Escobar" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that petitioner is not eligible for asylum where substantial evidence supports the BIA's conclusion that the Sri Lankan army's alleged treatment of petitioner was not on account of a protected ground -- his imputed political opinion and his Tamil ethnicity -- but rather because of his possible involvement with a terrorist organization.The court also held that substantial evidence supports the BIA's conclusion that petitioner's fear of future persecution was not objectively reasonable because he did not show that the Sri Lankan government would target him or that the Sri Lankan government routinely persecutes Tamils. The court disagreed with the Ninth Circuit that the degree to which a group is disfavored alters an applicant's burden to establish either an individualized risk or a pattern or practice of persecution. Accordingly, the court held that the agency did not err by failing to analyze petitioner's well-founded fear of future persecution claim under the "disfavored group" test. Finally, the court upheld the BIA's finding that petitioner did not qualify for withholding of removal pursuant to the CAT. View "Lingeswaran v. U.S. Attorney General" on Justia Law

Salazar-Marroquin, a Mexican citizen, entered the U.S. with a B-2 visitor’s visa in 2000 at age 16 and stayed despite the expiration of his visa. In 2010 he was arrested for driving without a license and was served with a Notice to Appear charging him as removable under 8 U.S.C. 1182(a)(6)(A)(i), with a time and date for his hearing “to be set.” Salazar-Marroquin then received two Notices of Hearing, causing confusion, he says, that led him to miss his removal hearing. He was ordered removed in absentia. Two motions to reopen were denied.His third motion to reopen asserted that he had been charged incorrectly because, instead of entering the country illegally, he had been admitted on a visa; because he was not removable as charged, his 10 years’ continuous presence should allow him to seek cancellation of removal if a new Notice to Appear issued. He also asserted that he should be allowed to seek adjustment of status based on his marriage to a U.S. citizen. Salazar-Marroquin filed a supplemental motion to terminate his removal proceedings because his Notice to Appear, lacking the specific time or place of the removal proceedings, was deficient and did not trigger the “stop-time” rule under 8 U.S.C. 1229b(d)(1).The Seventh Circuit held that Salazar-Marroquin is entitled to have the Board of Immigration Appeals take a fresh look at his motion to have his case reopened based on evidence that he entered legally, despite the generally applicable time-and-number limits on motions to reopen. View "Salazar-Marroquin v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's request for deferral of removal under the Convention Against Torture (CAT).The panel held that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought" under 18 U.S.C. 1111(a); because federal law defines the term "human being" to exclude an unborn fetus, California Penal Code section 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition; section 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus; and, under the modified categorical approach, petitioner's section 187(a) second degree murder conviction under section 187(a) for the unlawful killing of a human being is an aggravated felony under the INA. Accordingly, substantial evidence supported the denial of deferral and petitioner is removable as charged. View "Gomez Fernandez v. Barr" on Justia Law