Justia Immigration Law Opinion Summaries

The Eighth Circuit denied a petition for review challenging the BIA's decision reversing the IJ's ruling that petitioner merited asylum because he had a well-founded fear of future persecution in Nigeria for his political opinions. The court held that, despite the harmless error of substituting its own findings about communicating his political opinions, substantial evidence supported the BIA's determination that petitioner was ineligible for asylum, because he failed to show that he faced a particularized threat of persecution. Furthermore, the BIA did not exceed its authority by requiring corroborating evidence for petitioner to meet his burden of proof.The court also held that petitioner could not show that the outcome of proceedings would have differed with notice and opportunity, and thus he failed to demonstrate prejudice from any procedural error. View "Uzodinma v. Barr" on Justia Law

Rocha entered the U.S. with her sons and presented herself, asserting that she had fled from a Mexican cartel. After passing a credible‐fear interview, she was paroled into the U.S. The family stayed with Torres, in Chicago. Torres was a violent drunk. He threatened and abused Rocha, once brandishing a machete. Neighbors witnessed the attack and called the police. Rocha and her sons relocated to Miami. Chicago police asked her to return. She did so and stayed in shelters for victims of domestic violence while cooperating with the police and testifying at Torres’s trial. Rocha’s cooperation entitled her to apply for a nonimmigrant “U visa,” which allows violent crime victims who provide assistance to law enforcement to remain in the U.S. for four years, 8 U.S.C. 1101(a)(15)(U).With respect to Rocha’s asylum petition, an IJ found Rocha removable but granted a continuance. Days after Rocha submitted her U‐visa application, the immigration court moved up the date of her hearing, leaving Rocha with only two days to prepare. The IJ found her ineligible for relief. Rocha’s counsel did not mention the U‐visa petition at the hearing, thinking that it would be pointless without application receipts. The BIA affirmed the denial of her applications for asylum, withholding of removal and protection under the CAT and summarily rejected her request for a remand to seek a continuance to pursue the U visa. The Seventh Circuit granted Rocha’s petition for review; she is entitled to a remand for the purpose of deciding whether her pending U‐visa application entitles her to a continuance. View "Guerra-Rocha v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision reversing an IJ's grant of deferral of removal under the Convention Against Torture. The panel held that the Board erred by conducting a de novo review of the IJ's factual findings, instead of reviewing them for clear error, as required by 8 C.F.R. 1003.1(d)(3)(i).In this case, the BIA's failure to evaluate the factual findings of the IJ's conclusion -- that petitioner had established that Mexican officials would have the specific intent to torture him -- that were key to the IJ's holding, indicated that the BIA was not reviewing the IJ's determination for clear error. Because the BIA did not explain why the IJ's findings were illogical, implausible, or not supported by permissible inferences from the record, the panel had no trouble concluding that the BIA failed to apply clear error review to the IJ's finding of specific intent. Furthermore, the BIA failed to apply clear error review to the IJ's finding that petitioner would be tortured in criminal detention in Mexico. Accordingly, the panel remanded for reconsideration. View "Guerra v. Barr" on Justia Law

The Immigration Reform and Control Act (IRCA) makes it unlawful to hire an alien knowing that he is unauthorized to work in the U.S., 8 U.S.C. 1324a(a)(1), (h)(3). Employers must use an I-9 form to “attest” that they have “verified” that any new employee “is not an unauthorized alien” by examining approved documents. IRCA requires all employees to complete an I–9, attest that they are authorized to work, and provide specific personal information. It is a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization, 18 U.S.C. 1028, 1546; it is not a federal crime for an alien to work without authorization. State laws criminalizing such conduct are preempted. The I–9 forms and appended documentation and the employment verification system may only be used for enforcement of specified federal laws.Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Unauthorized aliens were convicted for fraudulently using another person’s Social Security number on tax withholding forms that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. The Kansas Supreme Court reversed, concluding that IRCA prohibits a state from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9.The U.S. Supreme Court reversed, rejecting the theory that no information placed on an I–9 could ever be used by any entity or person for any reason, other than the listed federal statutes. The sole function of the federal employment verification system is to establish that an employee is not barred from working in this country. The tax-withholding documents play no part in that process. Submitting withholding documents helped the defendants get jobs, but did not assist them in showing that they were authorized to work. The Kansas laws do not fall into a field that is implicitly reserved exclusively for federal regulation. Federal law does not create a unified, comprehensive system regarding the information that a state may require employees to provide. It is possible to comply with both IRCA and the Kansas statutes; the Kansas prosecutions did not frustrate any federal interests. View "Kansas v. Garcia" on Justia Law

The Fifth Circuit denied petitions for review challenging the BIA's decision denying petitioner relief from an order of removal in absentia. The court agreed with the BIA that petitioner's ten year delay in filing his motion to reopen was inexcusable. In this case, when petitioner discovered that he had been ordered removed in absentia, he could have immediately applied to reopen his proceedings. However, petitioner did not and lost his chance to have his case administratively closed. Furthermore, when petitioner moved to reopen, he could have raised all his arguments in the first motion. Petitioner failed to do so and thus he lost his chance to have half of his arguments decided on the merits. View "Mejia v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen her removal proceedings. The court held that the information statutorily required to be contained in a notice to appear (NTA) may be supplied in more than one document. The court also held that an NTA is perfected, and the stop-time rule is triggered, when the alien receives all required information, whether in one document or more.The court held that the BIA did not abuse its discretion by failing to reopen petitioner's removal proceedings to allow her to seek cancellation of removal or to rescind the in absentia order of removal. In this case, the document petitioner received perfected her initial NTA by providing proper notice of her removal hearing and terminated her "continued presence" in the United States pursuant to the stop-time rule, precluding her eligibility for cancellation of removal. View "Yanez-Pena v. Barr" on Justia Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction setting aside the Migrant Protection Protocols (MPP), under which non-Mexican asylum seekers who present themselves at the southern border of the United States are required to wait in Mexico while their asylum applications are adjudicated.After determining that the individual plaintiffs had standing and the organizational plaintiffs had standing, the panel followed East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020), argued on the same day as this case, in which the court held that a motions panel's legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels.On the merits, the panel held that plaintiffs had showed a likelihood of success on their claim that the MPP is inconsistent with 8 U.S.C. 1225(b). The panel explained that a plain-meaning reading of section 1225(b), as well as the Government's longstanding and consistent practice, made clear that a section (b)(1) applicant may not be "returned" to a contiguous territory under section 1225(b)(2)(C), which is a procedure specific to a section (b)(2) applicant. Furthermore, plaintiffs showed a likelihood of success on their claim that the MPP does not comply with the United States's treaty-based non-refoulement obligations codified in 8 U.S.C. 1231(b).Because the MPP is invalid in its entirety due to its inconsistency with section 1225(b), the panel held that it should be enjoined in its entirety. Plaintiffs have successfully challenged the MPP under section 706(2)(A) of the Administrative Procedure Act, and the MPP directly affects immigration into this country along the United States's southern border. The panel also held that the other preliminary injunction factors favored plaintiffs, and that the district court did not abuse its discretion in setting aside the MPP. Accordingly, the panel lifted the emergency stay imposed by the motions panel. View "Innovation Law Lab v. Wolf" on Justia Law

An interim final rule, coupled with the presidential proclamation that was issued on the same day, that strips asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry, conflicts with the text and congressional purpose of the Immigration and Nationality Act (INA).The Ninth Circuit affirmed the district court's grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of the interim final rule. Given the preliminary stage of the appellate process at which the motions panel issued the order denying the government's stay motion and the motion panel's stated reservations, the Ninth Circuit panel treated the motions panel's decision as persuasive, but not binding. The panel also held that the Organizations' claims were justiciable and they have otherwise satisfied Article III standing requirements, and the Organizations' claims continue to fall within the zone of interests of the INA and of the regulatory amendments implemented by the rule.On the merits of the preliminary injunction, the panel held that the district court correctly concluded that the rule is substantively invalid because it conflicts with the plain congressional intent instilled in 8 U.S.C. 1158(a), and is therefore not in accordance with law under the Administrative Procedure Act (APA). The panel explained that section 1158(a) provides that migrants arriving anywhere along the United States's borders may apply for asylum, but the rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. Therefore, the rule was effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in section 1158(a). The panel held that, even if the text of section 1158(a) were ambiguous, the rule fails at the second step of Chevron because it is an arbitrary and capricious interpretation of that statutory provision. Furthermore, the panel held that the rule is unreasonable in regard to the United States's treaty obligations under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees.The panel briefly addressed the procedural arguments raised by the parties; held that the Organizations demonstrated a sufficient likelihood of irreparable injury to warrant injunctive relief; held that the public interest weighs sharply in the Organizations' favor; and held that the district court did not abuse its discretion in enjoining enforcement of the rule. View "East Bay Sanctuary Covenant v. Trump" on Justia Law

The Nicaraguan government has a “de facto concentration of power in a single party,” the Sandinistas. According to human rights observers, police generally protect or give preferential treatment to pro-government [Sandinista] demonstrations while disrupting or denying registration for opposition groups and “did not protect opposition protesters when pro-government supporters harassed or attacked them.” Herrera described violent attacks against the Liberal Party and testified that she was subjected to a pattern of threatening words and conduct that rose to the level of persecution. Herrera concluded she would be killed for her Liberal Party leadership role if she stayed. After she left, Sandinistas repeatedly visited her family’s home demanding to know where she had gone. Herrera arrived in the U.S. and sought political asylum. The government did not dispute that she was targeted on account of her political opinion, 8 U.S.C. 1101(a)(42), or by members of the ruling Sandinista Party. The IJ concluded that Herrera’s experiences did not “rise to the level of past persecution” because she “was never physically harmed,” “never arrested or imprisoned,” and “[n]ever threatened by a government official.” The BIA affirmed. The Third Circuit vacated, noting that Herrera’s home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint. View "Herrera-Reyes v. Attorney General United States" on Justia Law

Meriyu, now 49 years old, is an Indonesian citizen who is of Chinese descent and of the Buddhist faith. She came to the U.S. in 2000 on a nonimmigrant visa. Meriyu claims she was prompted to leave by her mistreatment, based on her religion and ethnicity, and by violence in Indonesia. In 2002, charged with removability under 8 U.S.C. 1227(a)(1)(B), Meriyu sought relief from removal based on fear of persecution on account of race and religion. She was ordered removed after she failed to appear at a hearing; 14 years later, she moved to reopen the proceedings. Meriyu is married and has a 12-year-old child. She claims she did not appear because she had sustained injuries to her ankle and foot. The BIA upheld an IJ’s ruling that the motion was untimely and that she could not show a material change in country conditions since the hearing. Her two subsequent motions to reopen were also denied. The Seventh Circuit denied a petition for review. When compared to the 2003 conditions described in the State Department reports, current conditions in Indonesia do not reflect any “new threshold” of human rights abuses. Meriyu’s evidence did not suggest any prospect of persecution if she returned to Indonesia. View "Meriyu v. Barr" on Justia Law