Justia Immigration Law Opinion Summaries

The petitioners, both Mexican citizens, were never lawfully admitted to the U.S. Years ago, each was served with a Notice to Appear (NTA) for removal proceedings. The NTAs were defective; they did not list the date or time for an initial hearing. The petitioners were not present at their respective removal hearings. They were ordered removed in absentia. Both were removed to Mexico. Each illegally returned to the U.S. and each was indicted for illegal reentry, 8 U.S.C. 1326(a). In light of the Supreme Court’s 2018 Pereira v. Sessions decision, they moved to dismiss their indictments by collaterally attacking their underlying removal orders (8 U.S.C. 1326(d)) based on the defective NTAs. The Seventh Circuit affirmed the denials of their motions. The petitioners failed to demonstrate that they satisfy the requirements of section 1326(d). Neither exhausted administrative remedies by petitioning to reopen removal proceedings. Catching the errors in the deficient NTAs would not have led to non-discretionary relief from removal; if either had alerted the immigration court of the NTA’s omissions, ICE could have proceeded with removal by serving a new, compliant NTA. Pereira addressed the “narrow question” whether an NTA that omits the time or place of an alien’s removal hearing triggers the statutory stop-time rule and terminates the period of continuous physical presence in the U.S. necessary for an alien to be eligible for discretionary cancellation of removal. View "United States v. Rangel-Rodriguez" on Justia Law

The Second Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal from an IJ's denial of her application for asylum. Petitioner claimed that she was entitled to asylum because if she is returned to El Salvador, she will be persecuted on account of her membership in a particular social group ‐‐ Salvadoran women who have resisted the sexual advances of a gang member ‐‐ and political opinion ‐‐ resistance to the norm of female subordination to male dominance that pervades El Salvador.The court held that, although petitioner failed to establish her asylum claim based on membership in a particular social group, the agency did not adequately consider petitioner's political opinion claim. In this case, the agency concluded that petitioner did not have a political opinion; concluded that petitioner simply chose to not be a victim; and failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. Accordingly, the court remanded for further proceedings. View "Hernandez-Chacon v. Barr" on Justia Law

Lo and Dieng are citizens of Senegal. Lo entered the U.S. in 1997 on a student visa but did not attend the university. Dieng used a false passport to join him in 2003. Their daughter was born in 2006. In 2007, Dieng applied for asylum, withholding of removal, and protection under the Convention Against Torture, asserting that her relatives had attempted to subject her to female genital mutilation (FGM) and that, if removed, she and her daughter would be subjected to FGM. Dieng later conceded that, at her age, she was no longer at risk, and that their daughter could stay in the U.S. with relatives. The IJ denied relief. The BIA affirmed, noting that the couple could relocate within Senegal to an area where FGM is not practiced. After their second daughter was born, DHS took action to enforce the removal order. The couple sought to reopen their case, alleging changed conditions. They submitted documents indicating that their relatives intended to perform FGM on Dieng and the girls. The BIA dismissed the petition as untimely, finding the proferred evidence speculative and self-serving and noting that the girls, U.S. citizens, were not subject to removal. The Sixth Circuit denied a petition for review. Even if the evidence were credible, the couple did not establish a well-founded fear of prosecution. The BIA did not abuse its discretion in finding that the family could reasonably relocate to avoid FGM. View "Dieng v. Barr" on Justia Law

USCIS permissibly construed the statutory phrase "accompanying, or following to join" in 8 U.S.C. 1101(a)(15)(U)(ii) when it adopted its regulation, 8 C.F.R. 214.14(f)(4), requiring that a spouse's qualifying relationship exist at the time of the initial U-visa petition and that the qualifying relationship continues throughout the adjudication of the derivative petition.The Ninth Circuit affirmed the district court's grant of summary judgment to government defendants, according Chevron deference to USCIS's interpretation of the statute in enacting the regulation. Given the deference to the agency to impose regulations interpreting (and gap filling) the immigration statutes, the panel held that the requirement was a reasonable interpretation. The panel also held that the equal protection clause has not been violated, because children and spouses were not similarly situated and distinction between nonimmigrant derivative spouses was rationally based. View "Medina Tovar v. Zuchowski" on Justia Law

Petitioner Alonso Martinez-Perez sought review of a final Board of Immigration Appeals (BIA) order that dismissed his appeal, holding that neither the BIA nor the Immigration Court had jurisdiction to grant Petitioner’s application for cancellation of removal. Petitioner was a native and citizen of Mexico. He entered the United States in 2001, without being inspected and admitted or paroled. On April 9, 2009, the Department of Homeland Security (DHS) charged him as removable from the United States pursuant to the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Immigration officials served Petitioner with a notice to appear, which did not include a date and time for his hearing. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Petitioner, through counsel, admitted the allegations contained in the notice to appear and conceded the charge of removability. The Immigration Judge found Petitioner removable. The Tenth Circuit found the Supreme Court held that a notice to appear that omits the removal proceeding’s time or place does not stop the alien’s accrual of continuous presence in the United States for purposes of cancellation of removal. The requirements of a notice to appear were claim-processing rules; the Court thus concluded the Immigration Court had authority to adjudicate issues pertaining to Petitioner’s removal even though Petitioner’s notice to appear lacked time-and-date information. With respect to issues raised regarding the BIA’s or Immigration Judge’s jurisdiction to grant Petitioner’s application in the absence of establishing a qualifying relative at the time of hearing: the Tenth Circuit concluded that for the BIA to conclude that neither it nor the Immigration Court had jurisdiction to grant Petitioner’s application was error. Moreover, before the BIA, Petitioner alleged and described what he contended was an improper delay on the part of the Immigration Court. Given this case’s procedural history, which is undisputed, the Tenth Circuit concluded it was within the BIA’s jurisdiction to interpret the applicable statutes in a way that would not penalize Petitioner for the Immigration Court’s delay. Because the BIA erred in holding that it lacked jurisdiction to grant Petitioner’s application and, in turn, failed to exercise its interpretive authority, the Court remanded. View "Martinez-Perez v. Barr" on Justia Law

Defendant-Appellant Petrona Gaspar-Miguel appealed a district court’s affirmance of her conviction for entering the United States. On appeal, she contended the district court’s conclusion that she “entered” the United States even though she was under the constant surveillance of a border patrol agent was contrary to established law defining “entry.” The Tenth Circuit rejected this argument and affirmed the district court. View "United States v. Gaspar-Miguel" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner committed a crime involving moral turpitude. The panel held that an aggravated assault conviction under Arizona Revised Statutes 13-1203(A)(2) and 13-1204(A)(2) qualifies as a crime involving moral turpitude that made petitioner removable.In this case, the parties have treated both the basic and aggravated assault provisions as divisible, and the panel agreed that such an approach comported with circuit and state precedent. In consideration of the charging document, plea agreement, and plea colloquy together, the panel held that it was clear petitioner was convicted under sections 13-1203(A)(2) and 13-1204(A)(2). The panel was satisfied that under its cases, an aggravated assault conviction under sections 13-1203(A)(2) and 13-1204(A)(2) involving the use of a deadly weapon or dangerous instrument qualifies as a crime involving moral turpitude. View "Altayar v. Barr" on Justia Law

A conviction under California Penal Code 114 is not an aggravated felony or a crime involving moral turpitude under the Immigration and Nationality Act. The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was ineligible for cancellation of removal due to her conviction under section 114.The panel used the categorical approach to determine whether the California statute categorically quaifies as an aggravated felony. The necessary elements for conviction under section 114 are: (1) the use; (2) of a false document; (3) to conceal citizenship or alien status; (4) with specific intent. The panel compared these elements with the federal definition of an aggravated felony and held that the California statute cannot be a match to the federal offense because it includes documents, such as fake drivers' licenses, that are not enumerated in the description of the federal crime. Furthermore, the state statute was not divisible. The panel also held that section 114 did not constitute a crime involving moral turpitude because, under the categorical approach, section 114 does not require fraudulent intent. Therefore, the panel held that the BIA erred in holding that petitioner's state conviction precluded her from consideration of cancellation of removal. Accordingly, the panel remanded for further proceedings. View "Jauregui-Cardenas v. Barr" on Justia Law

Kada, a Chaldean Christian from Iraq, immigrated with his family at age 12 as Lawful Permanent Residents. Kada was convicted of assault with a deadly weapon and carrying a concealed weapon. Charged with removability, 8 U.S.C. 1227(a)(2)(C), Kada was represented by Attorney Kent, who indicated that he would apply for Convention Against Torture (CAT) relief. Kent failed to file Kada’s CAT application or to request an extension. The IJ found Kada removable. Kent moved to reopen, arguing that hospitalizations prevented him from meeting the deadlines. Kent attached his medical records and included Kada’s CAT application and evidence. Kada explained that he had uncles who “disappeared under Saddam Hussein,” and other family members “kidnapped by ISIS,” that he is “completely Americanized,” knowing “little Arabic.” Kada argued that, if he were not tortured as a Chaldean Christian, he would be tortured by Iraqi authorities because of his criminal record and deportee status. The IJ denied Kada’s motion, finding that Kent had failed to establish his incapacity on or shortly before the filing deadline. The BIA denied an appeal.With new counsel, Kada again moved to reopen, arguing ineffective assistance of counsel. Kada was removed. He provided a declaration that, in Iraq, men pointed weapons at him but let him go. Kada has since stayed hidden without access to medication. Kada’s friend reported the incident to the police and perpetrators were apprehended. They confessed that they wanted to kidnap Kada to blackmail his family. The BIA denied Kada’s motion, concluding that Kada had not demonstrated prejudice. The Sixth Circuit vacated. The BIA failed to account for evidence and prior decisions, involving nearly identical circumstances and did not analyze whether Kada showed a reasonable probability that, but for the ineffective assistance, he would have been entitled to remain in the U.S. View "Kada v. Barr" on Justia Law

Vasquez-Abarca’s parents brought him to the U.S. in 1986. In 1995, at age 14, he was arrested for having sex with a 12-year-old but told authorities that he was either 16-17 years old and was convicted of a felony sex offense. He was deported in 1997. Vasquez-Abarca reentered illegally and was arrested for disorderly conduct. In 2001, he was convicted of failing to register as a sex offender and charged with illegal reentry, 8 U.S.C. 1326(a). He was sentenced to 57 months in prison. He was deported in 2005. Vasquez-Abarca reentered in 2006. In the following years, he committed multiple driving-related offenses, resulting in two felony convictions in Georgia; after his release, he was sentenced in Illinois to an additional 24 months for violating the terms of his supervised release on the illegal reentry conviction. He was deported in 2015. Vasquez-Abarca illegally re-entered again in 2016. He was arrested on an outstanding warrant for using a fake driver’s license and was convicted of a felony.Vasquez-Abarca also pleaded guilty to illegally reentering. The guidelines range was 30-37 months. The defense argued that Vasquez-Abarca’s driving violations stemmed from his lack of legal residency status. The court imposed a sentence of 72 months; 8 U.S.C. 1326(b)(2) authorized a sentence of up to 20 years. The Seventh Circuit affirmed. The sentence was a reasonable exercise of the judge’s discretion under 18 U.S.C. 3553(a). The judge gave a sufficient explanation for the decision, based primarily on Vasquez-Abarca’s criminal history and that a previous 57-month sentence for the same crime had not deterred him. View "United States v. Vasquez-Abarca" on Justia Law