Justia Immigration Law Opinion Summaries

The First Circuit granted Petitioner’s petition for judicial review of the decision of the Board of Immigration Appeals (BIA) denying Petitioner’s motion to reopen his removal proceedings, holding that the BIA overlooked a significant factor relevant to its analysis.During his removal hearing, Petitioner, an Indonesian national and an evangelical Christian, testified that he had experienced persecution in Indonesia on account of his faith. An immigration judge denied relief. Approximately ten years later, Petitioner moved to reopen his removal proceedings, arguing that conditions in Indonesia affecting Indonesian Christians had materially changed. The BIA denied relief. The First Circuit vacated the BIA’s order, holding that the BIA abused its discretion in neglecting to consider significant facts that may have had a bearing on the validity of Petitioner’s motion to reopen. The Court remanded so that the BIA may determine, after considering all the relevant evidence, whether Petitioner has made a prima facie showing of eligibility for the relief sought. View "Sihotang v. Sessions" on Justia Law

The First Circuit (1) denied Petitioners’ petition for review as to their challenge to the determination of the Board of Immigration Appeals (BIA) that Petitioners' motion to reopen a removal order was untimely and number barred, and (2) dismissed the petition for lack of jurisdiction as to Petitioners’ challenge to the BIA’s decision not to exercise its authority to reopen sua sponte.Petitioners, natives of Guatemala, were ordered removed by an immigration judge in 2000. In 2001, the BIA denied their appeal. In 2017, Petitioners filed a motion to reopen or reconsider the removal order. The BIA denied the motion as untimely filed and numerically barred. The BIA also declined to reopen the removal proceedings sua sponte because it did not consider Petitioners’ situation “exceptional.” The First Circuit affirmed, holding (1) the BIA correctly held that Petitioners had failed to justify the delay in filing the motion to reopen and dismissing it as untimely; and (2) this Court lacked jurisdiction to review the BIA’s decision not to reopen sua sponte. View "Lemus v. Sessions" on Justia Law

The Ninth Circuit reversed the district court's order declining to extend a Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an immigrant pursuing lawful permanent resident status. In this case, an ICE Assistant Chief Counsel representing the government intentionally forged and submitted an ostensible government document in an immigration proceeding, which had the effect of barring plaintiff from obtaining lawful permanent resident status, a form of relief to which he was otherwise lawfully entitled. The panel held that a Bivens remedy was available on these narrow and egregious facts because none of the special factors outlined in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), and other Supreme Court precedent applied. The panel also held that the ICE Assistant Chief Counsel was not entitled to qualified immunity because qualified immunity could not shield an officer from suit when he intentionally submits a forged document in an immigration proceeding in clear violation of 8 U.S.C. 1357(b). View "Lanuza v. Love" on Justia Law

The Eighth Circuit dismissed a petition for review challenging the denial of her application for asylum as untimely. The court held that it lacked jurisdiction to review the BIA's determination that petitioner did not establish an excuse for her late filing based on changed circumstances. In this case, the IJ was making a case-specific materiality determination, not announcing a per se rule. Neither the IJ nor the BIA engaged in an analysis of the statute or otherwise elaborated on the meaning of "changed circumstances," which foreclosed the possibility that this case presented a question of statutory interpretation for the court to review. View "Burka v. Sessions" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's denial of petitioner's request for asylum, withholding of removal, and application for relief under the Convention Against Torture (CAT) based on his claim that he faced danger in his home country of Ghana. The court held that it lacked jurisdiction to determine the timeliness of petitioner's asylum application; the evidence petitioner submitted to support his request to remand based on changed country conditions was immaterial and did not support a remand based on changed country conditions; and petitioner's claim of humanitarian asylum was foreclosed because he failed to raise this issue to the agency.The court also held that petitioner failed to demonstrate a likelihood of future persecution or torture. In this case, petitioner's evidence would not compel all reasonable factfinders to conclude that his life or freedom would be endangered by a return to Ghana. Therefore, the court denied his petition for review of the denial of withholding of removal. Likewise, petitioner's claim for relief under the CAT also failed. View "Degbe v. Sessions" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision ordering petitioner removed under 8 U.S.C. 1227(a)(1)(B) and 1227(a)(2)(B)(i). The court held that petitioner acquired United States citizenship at birth through his United States citizen parent, Jorge Boreland, the husband of his mother and his legal parent under the relevant section of the Immigration and Nationality Act. The court noted that the principle guiding this decision—that a child born into a legal marriage is presumed to be the child of the marriage—is a lasting one, with deep roots in the common law. View "Jaen v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner ineligible for cancellation of removal. The panel held that the BIA's determination that witness tampering under Oregon Revised Statutes 162.285 was a crime involving moral turpitude did not warrant deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the agency's analysis directly conflicted with circuit precedent, and was inconsistent both internally and with prior BIA decisions.The panel held that Oregon Revised Statutes 162.285 was not categorically a crime involving moral turpitude because the statute captures conduct that was neither fraudulent nor base, vile, or depraved. Although the statute was divisible, the subsection that formed the basis for petitioner's conviction was likewise not a categorical match for a crime involving moral turpitude. Accordingly, the panel remanded for further proceedings. View "Vasquez-Valle v. Sessions" on Justia Law

The Ninth Circuit reversed the district court's dismissal based on lack of jurisdiction of plaintiff's complaint under the Federal Tort Claims Act (FTCA). Plaintiff sought damages suffered as a result of his removal from the United States in violation of this court's temporary stay of removal.The panel held that 8 U.S.C. 1252(g) did not deprive it of jurisdiction to hear the FTCA claims of a noncitizen who was wrongfully removed in violation of a court order. Therefore, the district court erred in holding otherwise. The panel held that a decision or action to violate a court order staying removal fell outside of the statute's jurisdiction-stripping reach. Even if the panel agreed that plaintiff's claims tangentially arose from the execution of his removal order, the panel would still retain jurisdiction because the Attorney General lacked the authority, and thus the discretion, to remove him. Finally, the panel rejected the government's alternative argument that plaintiff's claims were barred by the FTCA's foreign country exception. View "Arce v. United States" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's order dismissing petitioner's administrative appeal of the IJ's denial of her motion to reopen removal proceedings and rescind her in absentia removal order. The court held that the BIA abused its discretion because it did not address whether petitioner's inability to get proper medical attention constituted exceptional circumstances sufficient to excuse her failure to attend her asylum hearing. Therefore, the court remanded for the agency to determine in the first instance whether petitioner's motion to reopen warranted a favorable exercise of the BIA's discretion. View "Payeras v. Sessions" on Justia Law

The Ninth Circuit held that the BIA erred in finding that petitioner's conviction for child abuse and neglect under Nevada law was categorically a "crime of child abuse" under 8 U.S.C. 1227(a)(2)(E)(i). The panel held that it was bound by this circuit's opinion in Martinez-Cedillo v. Sessions, No. 14-71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which deferred to the BIA's interpretation, in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), that the generic crime of child abuse includes acts and omissions that create at least a "reasonable probability" that a child will be harmed. In this case, the Nevada statute was broader than the federal generic crime and there was a realistic probability that Nevada could prosecute conduct under its statute that fell outside the scope of the federal generic crime. Therefore, the panel granted the petition for review of the BIA's determination that petitioner was removable. View "Alvarez-Cerriteno v. Sessions" on Justia Law