Justia Immigration Law Opinion Summaries

The First Circuit denied Petitioner’s petition for judicial review of a decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of Petitioner’s applications for asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT), holding that the BIA did not err by affirming the IJ’s conclusion that Petitioner did not qualify for relief.Petitioner’s claims for asylum, withholding of removal, and withholding of removal under the CAT were principally supported by her testimony that she was mistreated in Honduras because of her Afro-Honduran race and physical disability caused by polio. The IJ found that Petitioner had failed to carry her burden in proving either past persecution or a well-founded fear of future persecution and rejected Petitioner’s claims. The BIA affirmed. The First Circuit affirmed, holing (1) there was substantial evidence supporting the BIA’s and IJ’s conclusions that Petitioner had not shown past persecution or a well-founded fear of future persecution; and (2) the BIA did not err by failing to consider Petitioner’s claim for humanitarian asylum. View "Martinez-Perez v. Sessions" on Justia Law

In 2002, Morales pleaded no contest to a drug offense. He served his sentence, voluntarily departed the U.S., and reentered the country. In 2017, while residing in the U.S., he moved to vacate this conviction under the newly enacted Penal Code section 1473.71, hoping to obtain legal status via a “U visa.” Morales contended that but for his conviction, his assistance in a 2009 law enforcement investigation would have made him eligible for that visa, and that he pleaded no contest only because of the ineffective assistance of his counsel, who failed to tell him his conviction would result in his deportation and inability to ever legally reenter the U.S.. The superior court denied his motion without prejudice based on its interpretation of section 1437(b), which addresses the timeliness and due diligence required of motions filed in the face of removal proceedings. The court of appeal reversed. The lower court ignored the plain terms of section 1473.7(a)(1); interpreting subdivision (b) to prevent noncitizens from seeking relief until and unless they are subject to removal proceedings would turn a provision about timeliness and due diligence into one that guarantees delay and renders section 1473.7 ineffectual in many cases. View "People v. Morales" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiff under the Administrative Procedure Act (APA), challenging the U.S. Consulate's denial of his visa application filed on behalf of his wife, who is a native and citizen of Germany. Determining that the district court had subject matter jurisdiction under 28 U.S.C. 1331 and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction, the panel held that the APA provides no avenue for review of a consular officer's adjudication of a visa on the merits. The panel explained that, rather, the only standard by which it could review the merits of a consular officer's denial of a visa was for constitutional error, where the visa application was denied without a facially legitimate and bona fide reason. In this case, the consular officer's citations to the Immigration and Nationality Act and identification of the wife's criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application. Accordingly, the panel affirmed the district court's denial of the petition for writ of mandamus. View "Allen v. Milas" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner's conviction for felony child endangerment constituted a crime of child abuse that rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). Petitioner's conviction of felony child endangerment under California Penal Code 273a(a) was for driving under the influence with a child in his car who was not wearing a seat belt. The panel held that the Board's interpretation of a crime of child abuse, neglect or abandonment in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), was entitled to Chevron deference. Applying that definition in this instance, the panel held that petitioner's California conviction was a categorical match to the crime of child abuse, neglect, or abandonment. Furthermore, the Board's interpretation applied retroactively to Martinez-Cedillo's 2008 conviction, which occurred before the Board's decisions in Velazquez-Herrera and Soram. View "Martinez-Cedillo v. Sessions" on Justia Law

The DC Circuit reversed the district court's grant of summary judgment for USCIS in an action filed by plaintiff, under the Administrative Procedure Act, to renounce his United States citizenship. USCIS denied plaintiff's renunciation request, claiming that he lacked the "intention" necessary to relinquish his citizenship under the Immigration and Nationality Act (INA). Determining that plaintiff's claim was ripe for review, the court held that the Tritten Letter's interpretation of "intention" in 8 U.S.C. 1481 did not warrant Chevron deference. Absent Chevron deference, the court held that USCIS's interpretation was in tension with the statute's structure; USCIS's interpretation rested on a faulty premise that plaintiff did not intend to relinquish his citizenship because one's mere physical presence in the United States did not require exercising a right of citizenship; and USCIS purported to adopt the State Department's interpretation of the intention requirement, but it misconstrued the State Department's approach. Therefore, the Tritten Letter's interpretation of "intention" was impermissible. View "Kaufman v. Nielsen" on Justia Law

The Second Circuit granted a petition for review of the BIA's order finding petitioner ineligible for cancellation of removal because his prior state conviction for sale of marijuana in the third degree constituted an aggravated felony under the Immigration and Nationality Act. The court held that New York Penal Law 221.45 was not punishable as a federal felony by the Controlled Substances Act. Rather, NYPL 221.45 explicitly extends to the distribution of less than an ounce of marijuana without remuneration, and was thus punishable as a federal misdemeanor. Therefore, petitioner's crime of conviction was not categorically an aggravated felony. View "Hylton v. Sessions" on Justia Law

The Ninth Circuit denied a petition for review of the Board's decision denying petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude (bribery). 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 a crime involving moral turpitude is not unconstitutionally vague. The panel held that Boutilier v. INS, 387 U.S. 118 (1967), does not foreclose consideration of whether a crime committed by a non-citizen constitutes a crime of moral turpitude so as to render her inadmissible. The panel also held that the Supreme Court's recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), extending to the immigration context its earlier opinion in Johnson, did not eviscerate the panel's holding in Tseung Chu such that the panel should overrule it. Therefore, the panel remained bound by Jordan and Tseung Chu. View "Martinez-de Ryan v. Sessions" on Justia Law

The First Circuit remanded this case to the Board of Immigration Appeals (BIA) for reconsideration of Petitioner’s eligibility for asylum, holding that the BIA committed several errors in its review of the decision of the immigration judge (IJ).An IJ granted Petitioner asylum, concluding that Petitioner met his burden of proving he was entitled to asylum. Among other things, the IJ found that the police in Mexico would be unable to protect Petitioner from members of organized crime who had murdered his son and continued to target him and the rest of his nuclear family. The BIA concluded that the IJ’s finding of inability was clearly erroneous. The First Circuit reversed, holding (1) among the BIA’s errors in reviewing the IJ’s decision, the BIA failed to examiner separately the evidence of the government’s willingness to protect Petitioner from persecution and the evidence of its ability to do so; and (2) the BIA’s flawed analysis of the IJ’s decision required a remand of this case. View "Justo v. Sessions" on Justia Law

Dhakal, a member of the Nepali Congress political party, which is targeted by the Maoist party, worked with the U.S. Agency for International Development. In 2012, he received a letter from the Maoists, ordering him to cease his activities. Weeks later, four men stopped him, told him that the Maoist party had sent them, beat him and smashed his motorbike, saying “next time, he will be finished.” A ranger discovered Dhakal. A newspaper reported the attack. Dhakal continued his activities and received more threats In 2013, Dhakal arrived in the U.S. after the University of Rhode Island invited him to participate in a course in nonviolent conflict resolution. Maoists went to his home and threatened his wife, who fled with their children. Dhakal sought asylum. While Dhakal’s application remained pending, Nepal suffered an earthquake and was designated for Temporary Protected Status (TPS), so that its eligible nationals would not be removed and could receive employment authorization. Dhakal' TPS was twice extended. Dhakal is in lawful status and manages a Wisconsin gas station. In 2016, an asylum officer found Dhakal not credible and that Dhakal had not shown a reasonable possibility of future persecution. A final denial letter stated that, because of Dhakal’s TPS status, his asylum application would not be referred for adjudication in removal proceedings. Dhakal filed suit under the Administrative Procedures and Declaratory Judgment Acts, arguing that he has exhausted all administrative remedies presently available. The Seventh Circuit affirmed dismissal. The challenged decision is not a final agency action so Dhakal is not entitled to relief under the APA. The statutory scheme for adjudication of asylum claims must be allowed to take its course. View "Dhakal v. Sessions" on Justia Law

The Fifth Circuit dismissed in part and denied in part a petition for review of the BIA's decision upholding the IJ's denial of his application for withholding of removal under the Immigration and Nationality Act, 8 U.S.C. 1231(b)(3). The court held that it did not have jurisdiction over petitioner's challenges to the IJ's determination that his mistreatment was not torture under the Convention Against Torture (CAT), and petitioner's request to remand to the BIA so that the BIA could consider a derivative asylum claim based on his wife's recent grant of asylum. Therefore, the court dismissed as to these claims. The court agreed with the IJ's finding that petitioner had not proven that he was harmed because of his political opinion or one imputed to him. Furthermore, to the extent petitioner's claimed social group was family members of Roma, the record was devoid of evidence that the persecution suffered by his wife was directed at him. Accordingly, the court denied the petition in all other respects. View "Revencu v. Sessions" on Justia Law