Justia Immigration Law Opinion Summaries

President Trump lawfully exercised the broad discretion granted to him under section 1182(f) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f), to issue Proclamation No. 9645, suspending the entry of aliens into the United States, and the Proclamation does not violate the Establishment Clause. The Proclamation sought to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat,and placed entry restrictions on the nationals of foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.The Supreme Court held that section 1182(f) entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions; Trump fulfilled section 1182(f)'s sole prerequisite that the President find that the entry of the covered aliens would be detrimental to the interests of the United States; even assuming that some form of inquiry into the persuasiveness of the President's findings was appropriate, plaintiffs' attacks on the sufficiency of the findings could not be sustained; the Proclamation comports with the remaining textual limits in section 1182(f); plaintiffs failed to identify any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation's vetting system; and plaintiffs' argument that the President's entry suspension violates section 1152(a)(1)(A) ignored the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.Finally, the Court applied rational basis review and held that plaintiffs, although they have standing to challenge the exclusion of their relatives, have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause where the Proclamation was expressly premised on legitimate purposes and said nothing about religion. The Court drew a distinction between whether it must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review. View "Trump v. Hawaii" on Justia Law

Bermudez-Ariza, a citizen of Colombia, alleges that he fled Colombia to escape persecution by the Fuerzas Armadas Revolucionarias de Colombia on account of his political opinions. He entered the United States illegally in 2002, and, in removal proceedings, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ initially denied all relief but, on subsequent remand from the BIA, reconsidered and granted asylum. The BIA vacated the IJ’s decision, holding that the IJ lacked jurisdiction to reconsider asylum on remand. The Ninth Circuit granted a petition for review and remanded to the BIA for consideration, on the merits, of the grant of asylum. For the BIA to retain jurisdiction when remanding to an IJ, it must expressly retain jurisdiction, and qualify or limit the scope of the remand. If the BIA fails to do either of those things, the scope of the remand is general and the IJ may reconsider any prior decisions, 8 C.F.R. 1003.23(b)(1). Because the BIA did not expressly retain jurisdiction when it remanded to the IJ in this case, the IJ had jurisdiction to reconsider his initial denial of Bermudez-Ariza’s application for asylum. View "Bermudez-Ariza v. Sessions" on Justia Law

During the Rwandan Genocide, the United States admitted a limited number of refugees with priority given to those who were in the most danger, including, in 1998, Ngombwa and purported members of his family. In 1998, DHS received information from prosecutors in Rwanda that Ngombwa had twice been convicted in absentia by Rwandan tribal courts for participation in the Genocide and had been named in an indictment in the International Criminal Tribunal for Rwanda. The government proved at trial that his admission, status, and eventual naturalization were based on material falsehoods. At sentencing, the government proved to the district court’s satisfaction that the falsehoods were used to conceal Ngombwa’s participation in the Genocide. The Eighth Circuit affirmed his convictions for unlawful procurement of naturalization and conspiracy to commit the same, 18 U.S.C. 1425, 371, and his above-Guidelines sentence of 180 months. Rejecting Ngombwa’s claim his counsel was ineffective for failing to contact and interview five of his family members, the court reasoned that counsel made a strategic decision to avoid more detrimental evidence. View "United States v. Ngombwa" on Justia Law

Sanchez-Arvizu pleaded guilty to illegal reentry, 8 U.S.C. 1326(a) and (b)(2). Applying the 2015 Sentencing Guidelines, the probation officer assessed a 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), finding that Sanchez-Arvizu was deported after a conviction for a “crime of violence,” his Texas conviction for indecency with a child by sexual contact, and calculating an advisory Guidelines range of 41-51 months of imprisonment. Under the November 2016 Guidelines, Sanchez-Arvizu’s sentencing range would be 15-21 months. The probation officer arrived at a range of 1-7 months under those Guidelines. The district court stated that “a sentence of 51 months would be entirely appropriate,” but sentenced Sanchez-Arvizu at the low end of the Guidelines range because this was his first conviction for illegal reentry. The court stated that it had considered all of the 18 U.S.C. 3553(a) factors and sentenced Sanchez-Arvizu to 42 months in prison. The Fifth Circuit vacated and remanded because, while this appeal was pending, the Supreme Court held that for "statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ . . . requires the age of the victim to be less than 16.” The statute under which Sanchez-Arvizu was convicted is categorically broader than the generic federal definition, so the court erred by deeming Sanchez-Arvizu’s conviction a crime of violence under Guidelines section 2L1.2. View "United States v. Sanchez-Arvizu" on Justia Law

Under the Illegal Immigration Reform and Immigrant Responsibility Act, nonpermanent residents who are subject to removal may be eligible for cancellation of removal if they have “been physically present" in the U.S. for a continuous period of not less than 10 years, 8 U.S.C. 1229(b)(1)(A). Continuous presence is deemed to end when the alien is served notice under section 1229(a), which provides for written notice to appear, specifying the “time and place" of proceedings. The Department of Homeland Security often serves notices that fail to specify the time, place, or date of initial removal hearings. Pereira, a citizen of Brazil, came to the U.S. in 2000 and remained after his visa expired. Following a 2006 DUI arrest, DHS served Pereira with a “notice to appear” that ordered him to appear at a date to be set in the future. A year later, the Immigration Court mailed Pereira notice setting the date and time for his hearing. Sent to the wrong address, the notice was returned as undeliverable. Pereira failed to appear and was ordered removed in absentia. In 2013, Pereira was detained by DHS. In reopened removal proceedings, Pereira demonstrated that he never received the 2007 notice. Pereira applied for cancellation of removal, arguing that he had been continuously present for more than 10 years. The BIA affirmed a removal order; the First Circuit denied Pereira’s petition for review. The Supreme Court reversed. A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear” under section 1229(a) and does not trigger the stop-time rule. The unambiguous statutory text clarifies that the notice must specify “time and place” of the hearing. View "Pereira v. Sessions" on Justia Law

Alejandro Lujan Jimenez petitioned for review a final order of removal and an order by the Bureau of Immigration Appeals (“BIA”) declining to sua sponte reopen removal proceedings. Lujan is a native and citizen of Mexico. He first entered the United States as a child sometime in the 1990s. His most recent entry into the United States occurred in May 2004. In January 2007, Lujan pled guilty in Colorado state court to Criminal Trespass of a Motor Vehicle with the Intent to Commit a Crime Therein, and sentenced to 35 days in jail. The Department of Homeland Security filed a notice charging Lujan as removable. He received three continuances of removal proceedings until April 2009 when he conceded removability. Lujan then applied for adjustment of status and cancellation of removal. He obtained four additional continuances of his removal proceedings. Lujan appeared in immigration court on June 5, 2013, and the IJ granted counsel’s motion to withdraw. Lujan stated that he was attempting to obtain new counsel, but proceeded pro se at the hearing. The IJ denied relief, concluding that Lujan was ineligible for adjustment of status based on his immigration history and that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude—his criminal trespass offense in Colorado. Lujan appealed to the BIA, arguing that the IJ’s denial of a continuance violated his right to due process and that his Colorado conviction was not a crime involving moral turpitude. The BIA affirmed the IJ’s ruling. Lujan then filed an untimely petition for review, which was dismissed. The Tenth Circuit determined it lacked jurisdiction over petition number 17-9527: review of the BIA’s decision declining to sua sponte reopen his removal proceedings. The Court has previously held that “we do not have jurisdiction to consider [a] petitioner’s claim that the BIA should have sua sponte reopened the proceedings . . . because there are no standards by which to judge the agency’s exercise of discretion.” View "Lujan-Jimenez v. Sessions" on Justia Law

Mothers and children fled violence perpetrated by gangs in Honduras and El Salvador and were apprehended near the U.S. border. They were moved to a Pennsylvania detention center. Immigration officers determined that they were inadmissible. They were ordered expeditiously removed, 8 U.S.C. 1225(b)(1), and unsuccessfully requested asylum. They sought habeas relief, claiming that Asylum Officers and IJs violated their constitutional and statutory rights in conducting the “credible fear” interviews. The Third Circuit initially affirmed the dismissal of the claims for lack of subject matter jurisdiction. The court held that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the U.S. to challenge that lack of jurisdiction, the petitioners’ relationship to the U.S. amounted only to presence for a few hours before their apprehension. The children were subsequently accorded Special Immigrant Juvenile (SIJ) status—a classification intended to safeguard abused, abandoned, or neglected alien children who are able to meet rigorous eligibility requirements. The Third Circuit then reversed the dismissal, noting that protections afforded to SIJ children include eligibility for application of adjustment of status to that of lawful permanent residents, exemption from various grounds of inadmissibility, and procedural protections to ensure their status is not revoked without good cause. The jurisdiction-stripping provision of the Immigration and Nationality Act is an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of expedited removal orders. View "Osorio-Martinez v. Attorney General United States" on Justia Law

Petitioner-Appellant Azael Bedolla-Zarate, a native and citizen of Mexico, petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) Final Administrative Removal Order (FARO) based upon his having been convicted of an aggravated felony. Bedolla-Zarate was convicted of third-degree sexual abuse of a minor in Wyoming state court in September 2016. He contended that his conviction did not qualify as an aggravated felony. The Tenth Circuit found a person convicted under the Wyoming sexual abuse of a minor statute necessarily has committed sexual abuse of a minor under the INA, therefore DHS properly issued a FARO against Bedolla-Zarate for committing an aggravated felony under the INA. The Court denied review. View "Bedolla-Zarate v. Sessions" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal based on petitioner's prior convictions for theft. The court held that the Maryland theft statute was not divisible and the modified categorical approach was inapplicable in this case, and not all of the offenses encompassed under the relevant Maryland statute qualified as crimes involving moral turpitude. Accordingly, the court vacated the BIA's decision and remanded for consideration of petitioner's application for cancellation of removal. View "Leyva Martinez v. Sessions" on Justia Law

Shabo immigrated to the U.S. in 1985. In 1992, at the age of 25, he was convicted of an aggravated felony: possession with the intent to deliver 50-225 grams of cocaine. He served 60 months of imprisonment. An immigration judge ordered his removal to Iraq based on his conviction for an aggravated felony and a crime relating to a controlled substance. The BIA denied his appeal. Because the Iraqi government was not issuing travel papers, Shabo remained in the U.S. Iraq began issuing travel papers last year. Shabo moved to reopen his 1998 BIA proceedings to seek protection under the Convention Against Torture, claiming that, as a Chaldean Christian, he faces likely torture in Iraq. He concedes that he is deportable under 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i). He argued that the circumstances in Iraq have changed considerably since 1997 when the IJ ordered his removal. The BIA found his petition untimely; that the changed-country-conditions exception does not apply to Convention Against Torture applications; and that Shabo had not presented sufficient evidence that he was “more likely than not” to be subject to torture. The Sixth Circuit dismissed his appeal, citing 8 U.S.C. 1252(a)(2)(C): “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D)” unless the matter involves constitutional claims or questions of law. View "Shabo v. Sessions" on Justia Law