Justia Immigration Law Opinion Summaries

Veloz-Alonso, a citizen of Mexico, entered the U.S. illegally in the 1990s. He was removed in 1997, 1999, and 2008. In 2018, Veloz-Alonso was discovered again and was indicted for illegal reentry. He pleaded guilty and sought release on bail pending sentencing. Under the Bail Reform Act (BRA), a defendant pleading guilty must be detained unless the court finds by clear and convincing evidence that he is not a flight risk or a danger to the community, 18 U.S.C. 3143(a)(1). The government argued that Veloz-Alonso was subject to an order of removal and an ICE detainer, so that, if released, he would be taken into custody, removed, and unable to attend a sentencing hearing. The court granted the motion subject to electronic monitoring and a property lien on his house. The court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.” The Sixth Circuit reversed. While deportable aliens are not per se ineligible for bail, the district court incorrectly inferred that an alien released on bail is ineligible for ICE detention. Reading the BRA’s permissive use of release to supersede the Immigration and Naturalization Act’s mandatory detention would be incongruent with canons of statutory interpretation. To the extent that ICE may fulfill its statutory mandates without impairing the purpose of the BRA, there is no statutory conflict. View "United States v. Veloz-Alonso" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reconsider the BIA's previous order denying him a discretionary adjustment of status. The court noted that it had jurisdiction to review the petition for abuse of discretion. The court held that the district court did not abuse its discretion in denying the motion for reconsideration. In this case, the BIA satisfied its obligation to provide a "rational explanation" for its original decision to deny petitioner relief when it denied his motion to reconsider. In this case, the BIA's explanation that it did not violate the clear error standard of review in its weighing of the attempted suicide of one of petitioner's victims qualified as a "rational explanation." View "Camacho v. Whitaker" on Justia Law

8 U.S.C. 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep. Subsection (iv) permits a felony prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law. The Ninth Circuit reversed defendant's conviction with respect to the "encourage or induce" counts. The panel affirmed with respect to the mail fraud counts in a memorandum disposition. View "United States v. Sineneng-Smith" on Justia Law

Tairou was born in Benin in 1977. Although Tairou married a woman, he testified that in 2007, he “figured out [he] was a homosexual” and entered into a relationship with a man. Despite the general secrecy surrounding their relationship, the men were openly affectionate in front of Tairou’s cousin, who took pictures. Tairou was subsequently confronted by a group of approximately 40 men, including his uncles, cousins, ministers from the mosque, and other villagers. The crowd threatened and harassed him for five hours. In Tairou’s declaration attached to his asylum application, he asserted that several people said that he “should die,” and some "outright threatened to kill [him].” A week later, Tairou’s cousins forced their way into his home and beat him, threatening to “kill [him], to shame [him] publicly again,” and to harm his wife and children. Tairou’s son sustained head and arm injuries trying to protect his father. The Fourth Circuit remanded a removal order. The BIA erred in finding that Tairou was not subjected to past persecution. Binding precedent explicitly holds that a threat of death constitutes persecution. Tairou established that he was subjected to past persecution; the BIA must consider whether, in light of Tairou’s demonstrated past persecution, he has a well-founded fear of future persecution. View "Tairou v. Whitaker" on Justia Law

In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law

Salmoran, a citizen of Mexico, was granted lawful permanent resident status in 2004. In 2015, he pled guilty to violation of New Jersey Statutes 2C:24- 4(b)(5)(b): Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree. DHS charged Salmoran as removable for having been convicted of: the aggravated felony crime of sexual abuse of a minor; an offense relating to child pornography; and a crime of child abuse, child neglect, or child abandonment. The BIA held that the conviction “categorically constitutes a crime of child abuse," so as to subject him to removal (8 U.S.C. 1101(a)(43)(I), 1227(a)(2)(E)(i)) but did not address whether the conviction was categorically an aggravated felony for an offense relating to child pornography, rejected Salmoran’s argument that the state statute was broader than the federal offense, and found that Salmoran was “statutorily precluded from applying for cancellation of removal. The Third Circuit remanded. The conviction qualifies as a crime of child abuse, but does not qualify as an aggravated felony relating to child pornography; while Salmoran is removable, he may still file an application for cancellation of removal. View "Salmoran v. Attorney General United States" on Justia Law

Petitioner, a citizen of Poland, is married to a lawful U.S. permanent resident; their son is a U.S. citizen. Petitioner last entered the U.S., to remain, in 1999. In 2016, DHS charged Petitioner under 8 U.S.C 1182(a)(6)(A)(i) as an alien present without being admitted or paroled. Petitioner sought cancellation of removal. An IJ denied Petitioner’s application, finding that Petitioner was a “habitual drunkard” under 8 U.S.C. 1101(f)(1) and unable to prove that he was a person of “good moral character” during the 10-year period before his application, 8 U.S.C. 1229b(b)(1). The IJ relied on evidence that Petitioner had been convicted five times for drunk driving and once as a “Disorderly Person” related to being drunk in public. Three of the DUI convictions fell outside the 10-year period. The IJ cited Petitioner’s high blood alcohol levels at the time of his arrests as evidence of Petitioner’s high tolerance, and testimony that he was an alcoholic. Petitioner had also been confined in a penal institution for longer than allowed by 8 U.S.C. 1101(f)(7). The BIA dismissed Petitioner’s appeal. The Sixth Circuit denied a petition for review. Because Petitioner is a deportable alien with an interest only in discretionary relief, he may not bring a void-for-vagueness challenge to the “habitual drunkard” provision under the Due Process Clause. Rejecting an equal protection claim, the court stated that there is a rational basis for saying that a “habitual drunkard” lacks “good moral character.” View "Tomaszczuk v. Whitaker" on Justia Law

The First Circuit upheld the rejection of Petitioner’s motion to reopen his removal proceedings by the Board of Immigration Appeals (BIA) and denied his petition for judicial review, holding that Petitioner failed to demonstrate due diligence in filing his untimely motion to reopen.Petitioner waited four and one-half years before moving to reopen his removal proceedings. The BIA denied the motion to reopen as untimely, finding no basis for equitable tolling, concluding that Petitioner had not exercised due diligence in filing his motion. The First Circuit affirmed, holding that the BIA did not commit a material error of law and did not exercise its authority arbitrarily, capriciously, or irrationally by denying the motion to reopen. View "Pineda v. Whitaker" on Justia Law

The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing.The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). View "Martinez-de Ryan v. Whitaker" on Justia Law

The Fifth Circuit granted a petition for review of the BIA's decision affirming the IJ's deportation order. The court held that the BIA erred in construing 8 U.S.C. 1227(a)(2)(A)(iii) to apply to an individual who was a naturalized citizen at the time of conviction. In this case, petitioner was not rendered an "alien" at the time of conviction by nature of his subsequent ab initio denaturalization. Therefore, petitioner was not subject to deportation under section 1227(a)(2)(A)(iii) because he was a naturalized citizen at the time he was convicted. View "Okpala v. Whitaker" on Justia Law