Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner's conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of California Vehicle Code section 2800.4, is categorically a crime involving moral turpitude that made him removable.The panel applied the two-step process in determining whether California Vehicle Code section 2800.4 is categorically a crime involving moral turpitude by first reviewing the elements of the statute de novo and then by deferring, to some extent, to the BIA's conclusion that a crime involves moral turpitude. The panel concluded that it need not decide the appropriate level of deference because, even affording only minimal deference, the BIA's interpretation was correct. View "Lepe Moran v. Barr" 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 relief under the Convention Against Torture (CAT). The panel held that, although the IJ had jurisdiction to terminate petitioner and his family's asylum status, the government violated their due process rights by failing to provide them a full and fair opportunity to rebut the government's fraud allegations at the termination hearing. In this case, the admission of, and reliance on, the record of investigation (ROI) was improper and the ROI is the only purported evidence of fraud in the application.The panel held that, in any new hearing, the government must first prove asylum termination is warranted by a preponderance of the evidence; if petitioner and his family's asylum status is properly terminated, the agency must then conduct a hearing to allow them an opportunity to seek asylum and other relief from deportation; and, on remand, the government must afford them a full and fair opportunity to challenge the ROI. View "Grigoryan v. Barr" on Justia Law

Nasrallah pled guilty to receiving stolen property. In removal proceedings, Nasrallah sought relief under the international Convention Against Torture (CAT) to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed but granted CAT relief. The Board of Immigration Appeals ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because circuit precedent precluded review in cases involving commission of a crime specified in 8 U.S.C. 1252(a)(2)(C).The Supreme Court reversed. Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order but preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” nor does a CAT order merge into a final order of removal. A CAT order does not affect the validity of a final order of removal.The Illegal Immigration Reform and Immigrant Responsibility Act authorizes direct “review of a final order of removal” in a court of appeals and requires that all challenges arising from the removal proceeding be consolidated for review,. The Foreign Affairs Reform and Restructuring Act implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” The REAL ID Act clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. View "Nasrallah v. Barr" on Justia Law

Chen, a citizen of China, entered the U.S. without inspection in 2004. A “Notice to Appear,” dated April 2010, did not include the time and place for a hearing, Immigration officials sent Chen another document, dated July 2010, with that information. Chen appeared and sought asylum; the request was denied as untimely. In 2018, the Supreme Court held (Pereira) that a Notice that omits the time and place of the hearing does not comply with 8 U.S.C. 229(a)(1)(G)(i).Chen (untimely) moved to reopen her case to seek cancellation of removal, as an alien who has lived in the U.S. for a decade. Chen contended that, until the Pereira decision, she did not recognize that she might be eligible for that relief. An alien's accumulation of physical presence time is stopped by the commission of a crime or service of a Notice to Appear. Chen and her lawyer assumed that the April 2010 Notice stopped the accrual of time, but Chen argued that Pereira holds otherwise. The BIA denied the motion, reasoning that the required components of a Notice need not be in a single document if multiple documents collectively provide the required information; Pereira held that multiple notices cannot be combined with the effective date of the first document, but did not address what happens once all information has been provided. Time stops once the alien has all of the information required by statute. The Seventh Circuit denied a petition for review. Chen did not object to the charging documents for years, without any good excuse for delay. View "Chen v. Barr" on Justia Law

The Eighth Circuit affirmed the BIA's dismissal of petitioner's appeal of the IJ's finding that his asylum application was time-barred and denial of withholding of removal and relief under the Convention Against Torture (CAT). The court held that substantial evidence supported the IJ's finding that petitioner does not face persecution based on membership in a particular social group or political opinion in El Salvado and that the El Salvadoran government is not unwilling or unable to protect him. In this case, although the record supports a finding that Mara 18 gang members targeted petitioner for his access to the cooperative's boats, it does not support a finding of persecution based on his membership in the fishing cooperative; petitioner was not and will not be targeted due to this family membership; nor does the tragic death of his wife demonstrate that he faces persecution by Mara 18 gang members when he returns to El Salvador; petitioner had not been targeted by Mara 18 gang members as a political enemy; and the record does not show that the government was unwilling or unable to protect him if he returned.The court also held that petitioner has not established that the harm he fears qualifies as persecution and the BIA did not err in finding that he is ineligible for asylum; the BIA did not need to analyze petitioner's claim that he established changed or extraordinary circumstances bypassing the one year bar; and even if the BIA engaged in prohibited fact-finding in determining that petitioner failed to establish government acquiescence, the error was harmless. View "Prieto-Pineda v. Barr" on Justia Law

Sexual assault in the third degree under CGS 53a-72a(a)(1) necessarily includes as an element the use or threatened use of violent force and thus categorically constitutes a crime of violence as defined in 18 U.S.C. 16(a).The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's order of removal. The court declined to remand for the agency to consider in the first instance whether petitioner's conviction of Connecticut third-degree sexual assault is a crime of violence under the alternative definition in 18 U.S.C. 16(a), but rather considered that legal question de novo and held that it categorically satisfies that definition. The court vacated the petition and denied the pending motion for stay of removal as moot. View "Kondjoua v. Barr" on Justia Law

Perez-Rodriguez, a citizen of Mexico, was ordered removed in June 2016. He reentered the country days later and was arrested and convicted under 18 U.S.C. 1546 for reentry after deportation and false personation in immigration matters. He was sentenced to time served (140 days) and removed again in December 2016. In June 2018, Perez-Rodriguez was arrested in Ohio on a failure to appear warrant for child endangering. He pled guilty to illegal reentry, Perez-Rodriguez had one prior conviction in 2015 for operating a motor vehicle under the influence (DUI), for which he received probation. Based on this criminal history, his prior count of reentry, and his acceptance of responsibility, Pretrial Services recommended a Guidelines range of 8-14 months' imprisonment. The district court entered a sentence of 24 months, noting Perez-Rodriguez’s DUI conviction, that he “apparently violated his probation,” and the need to deter individuals who demonstrate “a pattern of continuing to violate our laws.”The Sixth Circuit reversed and remanded for resentencing, finding Perez-Rodriguez’s sentence substantively unreasonable, Perez-Rodriguez had one DUI conviction before his first deportation, and he had not been convicted of anything that would endanger the public since that conviction. Perez-Rodriguez does not exhibit an extensive “pattern” of deportation and reentry nor do his past actions present that ongoing risk of harm to the public. View "United States v. Perez-Rodriguez" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision ordering petitioner removed based on his 2016 Connecticut state conviction for carrying a pistol or revolver without a permit, in violation of Connecticut General Statutes 29-35(a).The court held that Section 29-35(a) of the Connecticut General Statutes is not a categorical match for the generic federal firearms offense, 8 U.S.C. 1227(a)(2)(C). The court held that the Connecticut statute criminalizes conduct involving "antique firearms" that the INA firearms offense definition does not, precluding petitioner's removal on the basis of the state conviction. The court also held that, under Hylton v. Sessions, 897 F.3d 58 (2d Cir. 2018), the realistic probability test has no bearing here, where the text of the state statute gives it a broader reach than the federal definition. Accordingly, the court vacated the order of removal and remanded with directions to terminate the removal proceedings. View "Williams v. Barr" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner was removable for having been previously convicted of misprision of a felony in violation of 18 U.S.C. 4.The court aligned itself with the Ninth Circuit and held that misprision is not categorically a crime involving moral turpitude (CIMT). The court held that the government failed to show that misprision rises to the level of base, vile, conscience-shocking conduct traditionally attributed to the gravest and most inherently evil offenses. Furthermore, nothing in the misprision statute suggests that the crime has, as an element, the fraudulent intent necessary for misprision to constitute a CIMT. Accordingly, the court vacated the BIA's decision. View "Mendez v. Barr" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's decision affirming petitioners' orders of removal, holding that petitioners' arguments are foreclosed by circuit precedent. Petitioners, lawful permanent residents, pleaded guilty to fifth-degree possession of a controlled substance in Minnesota state court. The court applied the modified categorical approach and held that fifth degree possession of a controlled substance under Minnesota law qualifies as a removable offense under INA 237(a)(2)(B)(i). View "Bannister v. Barr" on Justia Law