Justia Immigration Law Opinion Summaries

The Second Circuit granted a petition for review of the BIA's denial of petitioners' third motion to reopen. Petitioners argued that the BIA abused its discretion in denying their motion to reopen because it failed to address their primary evidence of changed country conditions for Christians in Indonesia and incorrectly concluded that their failure to submit a new asylum application with their motion made the motion procedurally deficient under 8 C.F.R. 1003.2(c)(1).The court held that the BIA's one-and-a-half page order failed to account for relevant evidence of changed country conditions. The court also held that section 1003.2(c)(1) does not require the submission of a new asylum application for motions such as this one. Accordingly, the court vacated the BIA's decision and remanded for explicit consideration of the changed country conditions evidence. View "Tanusantoso v. Barr" on Justia Law

Both the State and respondent-defendant Eswin Figueroa-Lemus petitioned for review of the court of appeals’ judgment affirming the denial of the defendant’s motion to withdraw his guilty plea. Defendant, a lawful permanent resident of the United States, was arrested in 2012, and charged with one count each of possession of a controlled substance (cocaine), possession of drug paraphernalia, and driving under the influence. In 2013, he pled guilty to the controlled substance count pursuant to a statutorily sanctioned stipulation with the district attorney for the deferral of judgment for a period of two years, pending satisfaction of the conditions of his deferral. At the providency hearing at which his plea was taken, the defendant acknowledged his awareness that his plea could make him deportable, and defense counsel affirmatively stated on the record that he and the defendant had a lengthy conversation about immigration consequences, after which the defendant understood that this drug offense would render him deportable. When expressly asked by the trial court whether plea counsel’s statement was true, the defendant responded affirmatively. Weeks thereafter, the State moved to revoke the deferred judgment, alleging that defendant had been arrested by federal Immigration and Customs Enforcement (“ICE”) officers and therefore could no longer comply with the requirements of his deferred judgment. Defendant then moved to withdraw his guilty plea. The State challenged the appellate court’s jurisdiction on the grounds that until defendant was actually sentenced and judgment of conviction enters, there could be no final judgment from which an appeal would lie. Defendant challenged the appellate court’s ultimate conclusion on the merits that he was not entitled to an advisement by his counsel to the effect that he would be detained without bond during the pendency of any deportation proceedings initiated against him by the federal government. The Colorado Supreme Court found that because a guilty plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and sentence does not become a final, appealable judgment unless and until the deferral is revoked, sentence is actually imposed, and judgment of conviction enters, defendant was without any immediate right to appeal the denial of his motion, and the court of appeals was therefore not authorized to entertain the defendant’s claim. Choosing, nevertheless, to exercise its original jurisdiction in this case, the Supreme Court found the district court did not abuse its discretion in denying the defendant’s motion. The court of appeals' judgment was vacated. View "Colorado v. Figueroa-Lemus" on Justia Law

In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA.Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious.As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252.The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations. View "Department of Homeland Security v. Regents of University of California" on Justia Law

In 2001, Ferreyra, 13 years old, entered the U.S. under the Visa Waiver Program, 8 U.S.C. 1187, which allows visitors to come to enter for 90 days. Ferreyra's mandatory waiver of the right to contest removal, except based on asylum, was signed by his parents. Ferreyra did not leave. In 2018, he was charged as removable for having overstayed. He declared that he wished to apply for asylum, withholding of removal and relief under the Convention Against Torture. Ferreyra claimed that, if removed to Argentina, he would face persecution based on his membership in a particular social group—his family. Ferreyra related that, when he was a child in Argentina, his uncle had sexually assaulted him, that his uncle still lived there, and that his uncle had warned that he would kill him if he told anyone about the assault.The IJ denied relief, finding that Ferreyra failed to show that his uncle had targeted him based on his family membership or that the government was unable or unwilling to protect him. The IJ denied Ferreyra’s request for cancellation of removal based on family hardship as unavailable in the asylum-only proceedings. The BIA ordered his removal. The Seventh Circuit denied a petition for review. Ferreyra did not present a case warranting relief because of a credible fear of persecution or torture. The waiver is valid; Ferreyra, therefore, cannot present a claim for cancellation of removal based on family hardship. View "Ferreyra v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal. The panel held that "wealthy landowners" in Colombia do not constitute a cognizable particular social group for purposes of asylum and withholding of removal because the group lacks particularity and social distinction. Applying the particular social group analysis, the panel held that the agency correctly concluded that petitioner's arguments, and the majority of the evidence he submitted, pertain to the Revolutionary Armed Forces of Colombia's perception of wealthy landowners rather than to Colombian society's perception of the purported group. View "Cordoba v. Barr" on Justia Law

The First Circuit vacated the decision of the Board of Immigration Appeals (BIA) dismissing Petitioner's appeal of the immigration judge's (IJ) claims for relief and ordering her removed to El Salvador, holding that the IJ denied Petitioner her statutory right to be represented by the counsel of her choice.Petitioner, a native and citizen of El Salvador, entered the United States without being admitted or paroled. Over the course of her removal proceedings, Petitioner retained an attorney, lost that attorney, and attempted to find another to assist her in presenting the merits of her claims for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied relief. Petitioner appealed and filed a motion to reopen and remand. The BIA dismissed the appeal, denied Petitioner's motion, and ordered her removed to El Salvador. The First Circuit vacated the BIA's order and remanded the matter, holding that the IJ failing to meaningfully effectuate Petitioner's statutory right to counsel, and the assistance of a lawyer likely would have affected the outcome of Petitioner's removal proceedings. View "Hernandez Lara v. Barr" on Justia Law

The Supreme Court vacated its decision reversing the lower courts' conclusions that the Immigration Reform and Control Act of 1986 (IRCA) did not preempt Defendant's prosecution for identity theft, holding that, in accordance with the decision of the United States Supreme Court on certiorari in this case, Defendant's prosecution was not preempted by the IRCA.A district court judge found Defendant guilty after denying his motion to dismiss charges based on representations in his W-4 employment form and I-9 form. On appeal, Defendant argued that the IRCA preempted identify theft prosecutions. The court of appeals affirmed. The Supreme Court reversed, concluding that IRCA preempted Defendant's prosecution. The United States Supreme Court granted certiorari and held that state law prosecutions for identity theft were not preempted by the IRCA. The Kansas Supreme Court affirmed in accordance with the decision of the United States Supreme Court. View "State v. Garcia" on Justia Law

The Supreme Court vacated its decision reversing the judgment of both the court of appeals and district court concluding that the Immigration Reform and Control Act of 1986 (IRCA) did not preempt Defendant's prosecution for identity theft and making false information, holding that, in accordance with the decision of the United States Supreme Court on certiorari in this case, Defendant's prosecution was not preempted by the IRCA.A district court judge found Defendant guilty after denying his motion to dismiss charges based on representations in his W-4 employment form. On appeal, Defendant argued that the IRCA preempted identify theft and making false information prosecutions. The court of appeals affirmed. The Supreme Court reversed, concluding that IRCA preempted Defendant's prosecutions. The United State Supreme Court granted certiorari and held that state law prosecutions for identity theft and making false information were not preempted by the IRCA. The Kansas Supreme Court affirmed in accordance with the decision of the United States Supreme Court. View "State v. Morales" on Justia Law

Immigrants have historically been eligible for various public benefits and the receipt of those benefits, with limited exceptions did not jeopardize the immigrant’s chances of becoming a lawful permanent resident or citizen. The Department of Homeland Security (DHS) issued a new rule, intended to prevent immigrants whom the Executive Branch deems likely to receive any amount of public assistance, from entering the country or adjusting their status. The rule purports to implement the “public charge” provision of 8 U.S.C. 1182(a)(4).The Seventh Circuit affirmed a preliminary injunction against the rule’s enforcement in favor of Cook County, Illinois. The county had standing because the law threatened immediate financial harm because it would cause immigrants to forego preventative health care. The interests of the county are among those protected or regulated by federal law. There is “abundant evidence” supporting the county’s interpretation of the “public charge provision” as being triggered only by long-term primary dependence and that provision does not provide DHS unfettered discretion. The rule is unlikely to survive “arbitrary and capricious” review; it is unclear how immigration officials are to make “public charge” predictions. Cook County lacks legal remedies for the harms imposed by the rule. View "Cook County v. Wolf" on Justia Law

To hold categorically that an applicant for relief under the Convention Against Torture must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law.The Second Circuit granted a petition for review challenging the denial of petitioner's application for asylum, withholding of removal, and protection under the CAT. The court held that the IJ erred as a matter of law for penalizing petitioner for her prompt flight. Although the IJ credited petitioner's testimony that the threats received by the MS-13 gang were believable and no way remote, it erred by requiring that petitioner and her family wait until they suffered physical harm or until the threats recurred before they fled. The court remanded for further proceedings. View "Martinez De Artiga v. Barr" on Justia Law