Justia Immigration Law Opinion Summaries

The Ninth Circuit granted a petition for review of the BIA's denial of petitioner's claim under the Convention Against Torture (CAT). The panel held that substantial evidence does not support the BIA's determination that petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The panel explained that the BIA reached its determination by misapplying the circuit's precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record.The panel held that the existing record compels the conclusion that petitioner has met her burden under CAT. In this case, the lack of affirmative evidence that there is a general or specific area within Mexico where petitioner can safely relocate, the evidence that Los Zetas operate throughout much of Mexico, and the evidence that LGBTQ individuals are at heightened risk throughout Mexico, together compel a conclusion contrary to the BIA's. The panel remanded for the BIA to grant deferral of removal. View "Xochihua-Jaimes v. Barr" on Justia Law

The Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense (DoD) to make budgetary transfers from funds appropriated by Congress to it for other purposes in order to fund the construction of a wall on the southern border of the United States in California and New Mexico.The Ninth Circuit first held that California and New Mexico have Article III standing to pursue their claims because they have alleged that the actions of the Federal Defendants will cause particularized and concrete injuries in fact to the environment and wildlife of their respective states as well as to their sovereign interests in enforcing their environmental laws; California has alleged environmental and sovereign injuries "fairly traceable" to the Federal Defendants' conduct; and a ruling in California and New Mexico's favor would redress their harms. Furthermore, California and New Mexico easily fall within the zone of interests of Section 8005 of the Act and are suitable challengers to enforce its obligations under the Administrative Procedure Act.The panel held that the district court correctly determined that Section 8005 did not authorize DoD's budgetary transfer to fund construction of the El Paso and El Centro Sectors. The panel explained that the district court correctly determined that the border wall was not an unforeseen military requirement, that funding for the wall had been denied by Congress, and therefore, that the transfer authority granted by Section 8005 was not permissibly invoked. Therefore, the panel affirmed the district court's judgment, declining to reverse the district court’s decision against imposing a permanent injunction, without prejudice to renewal. View "California v. Trump" on Justia Law

Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019 does not authorize the Department of Defense's budgetary transfers to fund construction of the wall on the southern border of the United States in California, New Mexico, and Arizona.The Ninth Circuit first held that Sierra Club and SBCC have established that their members satisfy the demands of Article III standing to challenge the Federal Defendants' actions. In this case, Sierra Club's thousands of members live near and frequently visit these areas along the U.S.-Mexico border to do a variety of activities; the construction of a border wall and related infrastructure will acutely injure their interests because DHS is proceeding with border wall construction without ensuring compliance with any federal or state environmental regulations designed to protect these interests; and the interests of Sierra Club's members in this lawsuit are germane to the organization's purpose. Furthermore, SBCC has alleged facts that support that it has standing to sue on behalf of itself and its member organizations. Sierra Club and SBCC have also shown that their injuries are fairly traceable to the challenged action of the Federal Defendants, and their injuries are likely to be redressed by a favorable judicial decision.The panel held that neither Section 8005 nor any constitutional provision authorized DoD to transfer the funds at issue. The panel reaffirmed its holding in State of California, et al. v. Trump, et al., Nos. 19-16299 and 19-16336, slip op. at 37 (9th Cir. filed June 26, 2020), holding that Section 8005 did not authorize the transfer of funds at issue here because "the border wall was not an unforeseen military requirement," and "funding for the wall had been denied by Congress." The panel also held that Sierra Club was a proper party to challenge the Section 8005 transfers and that Sierra Club has both a constitutional and an ultra vires cause of action here. The panel explained that the Federal Defendants not only exceeded their delegated authority, but also violated an express constitutional prohibition designed to protect individual liberties. The panel considered the Federal Defendants' additional arguments, holding that the Administrative Procedure Act (APA) is not to be construed as an exclusive remedy, and the APA does not displace all constitutional and equitable causes of action, and Sierra Club falls within the Appropriations Clause's zone of interests. Finally, the panel held that the district court did not abuse its discretion in granting Sierra Club a permanent injunction enjoining the federal defendants from spending the funds at issue. View "Sierra Club v. Trump" on Justia Law

Morales, a citizen of Mexico, entered the U.S. without inspection as a child. As an adult shooting victim, he petitioned for U nonimmigrant status, a special visa for victims of certain crimes, 8 U.S.C. 1101(a)(15)(U). While his petition was pending, he was charged as removable under 8 U.S.C. 1182(a)(6)(A)(i) as a noncitizen present in the U.S. without being admitted and under section 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of marijuana. Morales cited his pending U visa petition as a defense to removal. The immigration judge agreed to waive both grounds of inadmissibility to allow him to pursue the U visa petition but later ordered Morales removed as charged on those same grounds. The Seventh Circuit remanded to the BIA. The court rejected an argument that the I’s initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal; Morales’s position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. Morales had, however, asked the IJ to continue or administratively close his case instead of ordering removal. The IJ entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the BIA affirmed on the same basis. Those alternatives were wrongly rejected. View "Morales v. Barr" on Justia Law

The Eighth Circuit affirmed the BIA's final order of removal, rejecting petitioner's claim under the Convention Against Torture (CAT) for deferral of his removal to Somalia. In this case, the BIA concluded that the IJ's ultimate finding that petitioner would more likely than not be tortured if returned to Somalia depended on testimony that was unsupported by adequate foundation, relied on country reports that discussed human rights violations at too high a level of generality, and cited treatment of persons with HIV that either fell short of torture or was not sufficiently widespread to show that petitioner likely would suffer torture.The court held that petitioner's claim -- that the agency never had subject matter jurisdiction to order him removed because the Notice to Appear issued by the Department did not specify a time and place of his removal proceedings -- is foreclosed by Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019). The court also held that the BIA's reasoning addressed the relevant evidence and provided sufficient justification for concluding that the IJ's finding was clearly erroneous. The court stated that it was satisfied that the BIA's decision accounted for all of the asserted risks in concluding that the IJ clearly erred. View "Abdi Omar v. Barr" on Justia Law

Dijamco’s mother, a U.S. green card holder, filed a visa petition on Dijamco’s behalf in 1992. Though the petition received approval, Congress restricts the number issued each year. After four years of waiting in the Philippines, Dijamco had not received a visa; she used fraudulent papers to enter the U.S. In 2005, a visa became available, allowing Dijamco to seek a green card. USCIS denied Dijamco’s application. While her administrative appeal was pending, Dijamco’s mother died, which automatically revoked Dijamco’s visa petition. USCIS dismissed her appeal based on changed circumstances. Dijamco attempted to revive her visa petition. The day after USCIS denied her request for humanitarian reinstatement, Congress enacted an amendment, providing that the death of the petitioning family member did not automatically preclude a beneficiary from receiving a visa, 8 U.S.C. 1154. The agency determined that the amendment did not apply and stated that it would not exercise its equitable discretion to reopen Dijamco's adjustment-of-status application because she entered the country fraudulently.DHS has not taken action to compel her removal, which would have provided a pathway for judicial review. The Seventh Circuit concluded that the district court lacked subject matter jurisdiction to consider any of Dijamco’s claims. The Administrative Procedure Act’s general provision authorizing judicial review of final agency actions yields to immigration-specific limitations. USCIS exercised unreviewable discretion in revoking Dijamco’s petition and refusing to reinstate it. View "Dijamco v. Wolf" on Justia Law

The Eighth Circuit affirmed defendant's conviction for illegal reentry after removal. Defendant makes a collateral attack on his 2008 removal, arguing that failure to provide him a Spanish interpretation of his Notice of Intent deprived him of the ability to challenge the government's decision to classify him as an aggravated felon, and thus depriving him of the opportunity to seek voluntary departure.The court held that, assuming that defendant was not an aggravated felon, he was not reasonably likely to have received preconclusion voluntary departure at the time of his removal in 2008. Therefore, defendant cannot show prejudice as required by 8 U.S.C. 1326(d)(3), and the district court properly denied his motion to dismiss the indictment. In this case, defendant failed to present compelling positive equities, like close relatives who are United States citizens or legal permanent residents, and defendant failed to reference a single case where an alien convicted of a felony sexual offense has received pre-conclusion voluntary departure. In light of defendant's serious and recent felony convictions and the lack of a sufficiently compelling counter-balancing factor at the time of his removal, the court concluded that it is not reasonably likely that he would have received pre-conclusion voluntary departure. View "United States v. Ramirez" on Justia Law

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the U.S., 8 U.S.C. 1225(a)(1). An applicant may avoid expedited removal by demonstrating a “credible fear of persecution,” meaning “a significant possibility . . . that the alien could establish eligibility for asylum.” An applicant who makes this showing is entitled to a standard removal hearing. An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. IIRIRA limits habeas corpus review; courts may not review “the determination” that an applicant lacks a credible fear of persecution.Thuraissigiam, a Sri Lankan national, was stopped immediately after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer's rejection of his credible-fear claim was affirmed. Thuraissigiam filed a federal habeas petition, requesting a new opportunity to apply for asylum. The Supreme Court reversed the Ninth Circuit’s ruling in Thuraissigiam’s favor.As applied here, Section 1252(e)(2) does not violate the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, section 9, cl. 2. At a minimum, the Clause “protects the writ as it existed in 1789.” Habeas has traditionally provided a means to seek release from unlawful detention. Thuraissigiam does not seek release from custody, but an additional opportunity to obtain asylum. His claims fall outside the scope of the writ as it existed when the Constitution was adopted.As applied here, Section 1252(e)(2) does not violate the Due Process Clause. For aliens seeking initial entry, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” An alien in Thuraissigiam’s position has only those rights regarding admission that are provided by statute. View "Department of Homeland Security v. Thuraissigiam" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner is removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having been convicted of a crime involving moral turpitude.The court held that petitioner's conviction for obstruction of legal process in violation of Minn. Stat. Ann. 609.50, subdiv. 2(2) does not categorically constitute a crime involving moral turpitude. The court stated that there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude. Furthermore, the level of harm required to complete the offense is also insufficient to constitute a crime involving moral turpitude. Therefore, the BIA erred in finding otherwise and the court vacated the order of removal. View "Ortiz v. Barr" on Justia Law

Associations filed suit contending that the Secretary's decision to expand the reach of the expedited removal process to its statutory limit, sweeping in all individuals without documentation who have resided in the United States for less than two years, violated the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the Suspension Clause. The district court granted a preliminary injunction against the expansion based only on the APA claims, but did not address the INA and constitutional claims.The DC Circuit held that the district court properly exercised jurisdiction under 8 U.S.C. 1252(e) over the Associations' case. However, because Congress committed the judgment whether to expand expedited removal to the Secretary's "sole and unreviewable discretion," 8 U.S.C. 1225(b)(1)(A)(iii)(I), the Secretary's decision is not subject to review under the APA's standards for agency decisionmaking. Furthermore, the Secretary's decision is not subject to the APA's notice-and-comment rulemaking requirements. Accordingly, the court reversed the district court's grant of a preliminary injunction and remanded for further proceedings. View "Make The Road New York v. Wolf" on Justia Law