Justia Immigration Law Opinion Summaries

The Fourth Circuit dismissed the petition for judicial review of the BIA's order denying petitioner's application for asylum. The court held that the BIA's July 9 remand order did not constitute a final order of removal within the meaning of 8 U.S.C. 1252, and thus the court lacked jurisdiction to consider the petition. In this case, the BIA remanded petitioner's case to the IJ for background checks, and thus the BIA order underlying the petition for judicial review was not a final order. View "Kouambo v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying a waiver of deportation under 8 U.S.C. 1227(a)(1)(H), based on the frivolous asylum application bar at 8 U.S.C. 1158(d)(6). Section 1158(d)(6) states that if the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter.The panel held that the frivolous asylum application bar precluded an applicant from receiving all benefits under the Immigration and Nationality Act. The court held that the phrase "this chapter" refers to Chapter 12 of Title 8 of the U.S. Code, the chapter in which the section is found. Therefore, as a result of the frivolous asylum application finding, the panel held that petitioner was barred from receiving all benefits under the INA, including a waiver of deportation. View "Manhani v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was ineligible for a waiver of removability under section 237(a)(1)(H) of the Immigration and Nationality Act.The panel held that a noncitizen who seeks a section 237(a)(1)(H) waiver is "otherwise admissible" even though he failed to return to his country of origin for at least two years, as required by INA section 212(e). Therefore, the BIA's contrary interpretation contravened the statute's text, and petitioner was otherwise admissible for purposes of section 237(a)(1)(H) waiver notwithstanding 212(e). In this case, notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, petitioner was admissible under several provisions of 8 U.S.C. 1101(a)(15). The panel remanded for the agency to use its discretion in determining whether to grant the requested waiver. View "Fares v. Barr" on Justia Law

After petitioner was ordered removed by DHS because he violated the terms of his admission under the Visa Waiver Program, he filed a motion to reopen. An ICE Deputy Field Officer Director denied petitioner's motion and petitioner appealed.The Fifth Circuit dismissed the petition for lack of jurisdiction because it called for judicial review of a denial of a motion that petitioner was not entitled to file. The court held that, as a Visa Waiver Program participant, petitioner was limited to contesting his removal on the basis of an application for asylum and he has conceded that he was not seeking asylum. Therefore, the statute on its face barred petitioner from challenging his deprivation of a hearing by means of a motion to reopen. Furthermore, petitioner's reliance on the carve-out in 8 U.S.C. 1231(a)(5) was unavailing. View "Lavery v. Barr" on Justia Law

Plaintiff filed suit under the Administrative Procedure Act (APA), challenging the denial of his U visa petition. The district court dismissed plaintiff's action after determining that section 701(a)(2) of the APA precluded judicial review.The Ninth Circuit held that section 701(a)(2) -- which precludes judicial review of actions "committed to agency discretion by law," where there is no judicially manageable standard by which a court can judge how the agency should exercise its discretion -- does not bar judicial review of plaintiff's APA claims. The court explained that 8 U.S.C. 1101(a)(15)(U) and 8 U.S.C. 1184(p) provide meaningful standards by which to review USCIS's denial of plaintiff's U visa. Furthermore, after sua sponte consideration, the panel held that section 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which bars judicial review of certain immigration decisions or action, does not strip jurisdiction over plaintiff's action. View "Perez Perez v. Wolf" on Justia Law

Maslenjak, an ethnic Serb and native of Bosnia, came to the U.S. as a refugee, claiming she and her family feared persecution in Bosnia because her husband had evaded conscription into the Serbian army. In fact, Maslenjak’s husband was an officer in a unit implicated in war crimes. Maslenjak ultimately obtained naturalization. She was later convicted of knowingly procuring her naturalization contrary to law, 18 U.S.C. 1425(a) and of knowingly using an unlawfully issued certificate of naturalization, 18 U.S.C. 1423. The Sixth Circuit affirmed, rejecting arguments that the court improperly instructed the jury that her false statements need not be material in order to convict or erroneously instructed that the jury could also convict Maslenjak if it found that she lacked good moral character. The Supreme Court reversed, holding that lies told in the immigration process must be material and have “played some role in [the] acquisition of citizenship.” The Court instructed that the government could satisfy this materiality element by proving beyond a reasonable doubt that the facts the applicant misrepresented would themselves disqualify her from receiving citizenship or that the applicant’s false statements hid facts that, if known, would have triggered an investigation that likely would have led to the discovery of other disqualifying facts. The Sixth Circuit remanded to the district court. The government has not proven beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak; the instructional error was not harmless. View "United States v. Maslenjak" on Justia Law

The Second Circuit denied the petition for sua sponte reopening of petitioner's removal proceedings pending the outcome of his U-visa application, because petitioner's U-visa application has been denied.However, the court granted the petition for review of the BIA's denial of petitioner's motion to suppress evidence of petitioner's alleged alienage, finding that he made a prima facie showing of an egregious violation of his Fourth Amendment rights. In this case, petitioner established a prima facie case that his arrest was racially motivated and therefore constituted an egregious violation of his constitutional rights. Accordingly, the court remanded for further proceedings. View "Rodriguez v. Barr" on Justia Law

George Job appealed the denial of his motion to withdraw his 2008 guilty plea to the charge of aggravated assault. Job argued the district court abused its discretion by determining a manifest injustice did not result from a 2010 resentencing following the revocation of his probation. He contended the resentencing was illegal and transformed his original non-deportable offense into a deportable offense. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Job" on Justia Law

The Ninth Circuit granted a petition for review of an ICE order reinstating petitioner's prior removal order. Determining that it had jurisdiction, the panel held that petitioner timely challenged the order reinstating his prior removal order.Based on In Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), the panel held that petitioner has shown a gross miscarriage of justice. In this case, there was no valid legal basis for petitioner's removal order at the time of its execution in 2008 because the conviction on which it had been based had been expunged in 1999. Therefore, the panel held that a collateral attack on petitioner's prior removal order was appropriate in this case. The panel also held that there was no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice. The panel did not reach petitioner's due process and regulatory arguments. View "Vega-Anguiano v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removeable. The panel held that petitioner's prior conviction for first degree unlawful imprisonment under Hawaii Revised Statutes 707-721(1) is categorically a crime involving moral turpitude (CIMT) that made him removable. Applying the categorical approach, the panel explained that the Hawaii statute requires proof that the defendant knew that his actions would expose another person to a risk of serious bodily injury, and the panel's decision accords with the decisions of its sister circuits. View "Fugow v. Barr" on Justia Law