Justia Immigration Law Opinion Summaries

The State of Georgia appealed the grant of habeas relief in regard to appellee Jude Ebele Aduka, a citizen of Nigeria. Appellee was arrested in 2007 after being found with numerous counterfeit goods. An indictment was handed down in 2009 and thereafter the State offered a plea deal which appellee rejected because of concerns he had about how such a deal would impact his immigration status. In 2012, however, appellee pleaded guilty to a single count of offer for sale of counterfeit goods. During the plea colloquy with the trial court, appellee stated he understood that entering a guilty plea “may have an impact” on his immigration status and that he understood that his guilty plea “could mean [he] could be deported.” The trial court sentenced appellee to five years of “confinement” to be served entirely on probation and ordered him to pay a fine. In 2015, appellee was arrested by federal immigration agents. Appellee petitioned for habeas relief concerning his 2012 plea and conviction. While the habeas petition was still pending, an immigration judge issued an order for appellee’s removal from the United States due to his counterfeit goods conviction. In his habeas petition, appellee alleged that plea counsel was constitutionally ineffective because he failed to advise appellee that pleading guilty to a violation of OCGA 10-1-454 would subject him to mandatory deportation for committing an “aggravated felony” under federal law. The habeas court determined plea counsel was deficient by failing to inform appellee that he would be deported if he pleaded guilty to violating OCGA 10-1-454 (c). The habeas court found plea counsel’s informing appellee that he “may” be deported was not reasonable upon a direct reading of the federal statute at issue. The Georgia Supreme Court found appellee's plea counsel did not act outside the wide range of reasonable conduct afforded attorneys who represent criminal defendants, including those defendants who are noncitizens, when he advised appellee that he “could be” deported, rather than informing appellee that he “would be” deported if he entered the plea in question. Accordingly, the Court reversed the habeas court's judgment. View "Georgia v. Aduka" on Justia Law

Flores, a native of Ecuador, legally entered the U.S. in 1978 but overstayed his visa. He obtained legal permanent resident (LPR) status in 1979 and a passport stamp reading “temporary evidence of lawful admission for permanent residence valid until 1‐2‐80.” In November 1979, INS denied Flores’ application for adjustment of status and granted voluntary departure. Flores remained. In 1994, an immigration judge ordered his deportation. The BIA dismissed his appeal. In 2008, Flores was arrested and placed in detention. After three months, he was placed on supervised release. The BIA granted a motion to reopen; an IJ terminated the removal proceedings in 2010. The BIA closed the case in 2011. Flores subsequently received a notice from USCIS requesting that he report for a “[r]eview of your IJ decision, and LPR status.” Flores appeared and received a second passport stamp. He received his green card in 2012. In 2013, Flores sent administrative claims to federal entities under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671‐2680. After those entities denied his claims, Flores filed suit under the FTCA, alleging false arrest and imprisonment and other claims. The Second Circuit affirmed summary judgment for the government. Flores failed to present his claims within the two‐year statute of limitations; the “continuing violation doctrine” did not apply to this action and Flores failed to establish entitlement to equitable tolling of the limitations period. Flores’s injuries ceased after the IJ’s 2010 order. View "Flores v. United States" on Justia Law

Cruz-Martinez, a Mexican citizen, came to the U.S. illegally in 1993. He was removed in 2002 under a stipulated removal order for “Rocha-Martinez,” which was an alias. Cruz-Martinez states that in 2005 armed men who had fought with his brothers threatened him at his mother’s home in Mexico while looking for his brother; the police did nothing. Cruz-Martinez returned to the U.S. without permission. He acquired criminal convictions for aggravated assault, possession of cocaine, and obstructing police. Cruz-Martinez married a U.S. citizen with whom he has a child and is a step-father to her other children. All of his siblings and his mother now reside in the U.S. Some, including his mother, have gone back and forth to Mexico without incident; none have sought protection from persecution. In 2014, DHS reinstated the 2002 removal order. The Chicago Asylum Office made a positive reasonable-fear determination. The IJ denied Cruz-Martinez’s applications for asylum and for withholding of removal under the Convention Against Torture, finding no clear probability of persecution or torture. The Board affirmed, denying Cruz-Martinez’s request for consideration of new evidence concerning the State Department’s travel warning and news articles about conditions in Mexico. The Seventh Circuit denied his petition for review, upholding the reinstatement of the removal order, the refusal to consider new evidence, and findings that Cruz-Martinez was ineligible for asylum and not eligible for CAT protection. View "Cruz-Martinez v. Sessions" on Justia Law

Cruz-Martinez, a Mexican citizen, came to the U.S. illegally in 1993. He was removed in 2002 under a stipulated removal order for “Rocha-Martinez,” which was an alias. Cruz-Martinez states that in 2005 armed men who had fought with his brothers threatened him at his mother’s home in Mexico while looking for his brother; the police did nothing. Cruz-Martinez returned to the U.S. without permission. He acquired criminal convictions for aggravated assault, possession of cocaine, and obstructing police. Cruz-Martinez married a U.S. citizen with whom he has a child and is a step-father to her other children. All of his siblings and his mother now reside in the U.S. Some, including his mother, have gone back and forth to Mexico without incident; none have sought protection from persecution. In 2014, DHS reinstated the 2002 removal order. The Chicago Asylum Office made a positive reasonable-fear determination. The IJ denied Cruz-Martinez’s applications for asylum and for withholding of removal under the Convention Against Torture, finding no clear probability of persecution or torture. The Board affirmed, denying Cruz-Martinez’s request for consideration of new evidence concerning the State Department’s travel warning and news articles about conditions in Mexico. The Seventh Circuit denied his petition for review, upholding the reinstatement of the removal order, the refusal to consider new evidence, and findings that Cruz-Martinez was ineligible for asylum and not eligible for CAT protection. View "Cruz-Martinez v. Sessions" on Justia Law

The Fifth Circuit upheld Senate Bill 4 (SB4), a Texas law that forbids "sanctuary city" policies throughout the state, and held that SB4's provisions, with one exception, did not violate the Constitution. The court held that none of SB4's provisions conflict with federal law where the assistance-cooperation, the status-inquiry, and the information-sharing provisions were not conflict preempted. The court affirmed the district court's injunction against enforcement of Section 752.053(a)(1) only as it prohibits elected officials from "endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws." The court held that plaintiffs failed to establish that every seizure authorized by the ICE-detainer mandate violated the Fourth Amendment; the "materially limits" phrase had a clear core and was not void for vagueness; and plaintiffs' "commandeering" argument failed. Accordingly, the court vacated in large part the district court's preliminary injunction and remanded with instructions to dismiss the vacated provisions. View "City of El Cenizo v. Texas" on Justia Law

The Eleventh Circuit granted the petition for review of the BIA's denial of cancellation of removal. In this case, petitioner satisfied the third requirement of eligibility for cancellation of removal where the Florida statute under which petitioner had been convicted, trafficking in cocaine, was neither divisible nor had a categorical match in the Controlled Substance Act (CSA). Therefore, the court vacated the BIA's decision and remanded for further proceedings. View "Francisco v. U.S. Attorney General" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's denial of asylum and withholding where petitioner, a citizen of China, alleged that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. The panel held that neither the IJ nor the BIA made a finding that petitioner's testimony was not credible. Under the panel's well-established precedent, the panel was required to treat a petitioner's testimony as credible in the absence of such a finding. The panel adopted this rule before the REAL ID Act and reaffirmed it after its passage. The panel explained that the plain text and context of the statute dictate the conclusion that the REAL ID Act's rebuttable presumption of credibility applies only on appeal to the BIA. In this case, petitioner's evidence was sufficiently persuasive and compelled the conclusion that the harm he suffered from the government due to his resistance to his wife's forced abortion rose to the level of past persecution. Furthermore, petitioner and his wife were not similarly situated, and thus the BIA erred in concluding that the wife's voluntary return to China undermined petitioner's own fear of future persecution. The panel remanded for the district court to exercise its discretion in granting petitioner asylum relief, and to grant him withholding relief. View "Ming Dai v. Sessions" on Justia Law

Petitioner challenged the BIA's retroactive application of a new rule expanding the types of larceny that qualify as a crime of moral turpitude. The Second Circuit granted the petition for review and reversed the BIA's latest order issued on remand. In this case, the BIA issued Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016), on the same day that it dismissed petitioner's appeal. The court considered the factors in Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015), to determine that the BIA could not apply the new rule in Diaz-Lizarraga retroactively. In light of the second and third Lugo factors, the court found that Diaz-Lizarraga was an abrupt departure from BIA precedent and that petitioner relied on the previous rule when pleading guilty. The court then applied the categorical approach and the BIA's pre-Diaz-Lizarraga standard for larceny crimes involving moral turpitude, and held that the BIA erred when it found that petitioner's larceny conviction constituted such a crime. View "Obeya v. Sessions" on Justia Law

Melesio‐Rodriguez was brought to the U.S. from Mexico as a child. She became a lawful permanent resident in 1998, at age 19. She was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. DHS charged her as removable under 8 U.S.C. 1227(a)(2)(B)(i)) and alleged that she had failed to disclose a cocaine‐possession conviction that occurred before she was granted permanent resident status. An immigration judge found Melesio‐Rodriguez removeable. She told the judge she did not wish to apply for protection but expressed interest in applying for a U‐visa, for which she was potentially eligible as a victim of domestic violence. The judge stated that only USCIS had jurisdiction over U‐ visas and that he would order removal. Melesio‐Rodriguez said she understood “really clearly” and confirmed twice that she wished to accept the order as final rather than reserve an appeal. Melesio‐Rodriguez then retained counsel and unsuccessfully moved for reconsideration, arguing that the IJ had not fully apprised her of her rights; one of her convictions was not a “conviction” for immigration purposes; she was eligible for a U‐visa; she feared torture in Mexico; and the removal proceedings violated the Fifth and Eighth Amendments. The Seventh Circuit dismissed her petition for review. Melesio‐Rodriguez is a criminal alien and the question of her waiver of appeal is factual in nature, so the court lacked jurisdiction, 8 U.S.C. 1252(a)(2)(C). View "Melesio-Rodriguez v. Sessions" on Justia Law

Melesio‐Rodriguez was brought to the U.S. from Mexico as a child. She became a lawful permanent resident in 1998, at age 19. She was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. DHS charged her as removable under 8 U.S.C. 1227(a)(2)(B)(i)) and alleged that she had failed to disclose a cocaine‐possession conviction that occurred before she was granted permanent resident status. An immigration judge found Melesio‐Rodriguez removeable. She told the judge she did not wish to apply for protection but expressed interest in applying for a U‐visa, for which she was potentially eligible as a victim of domestic violence. The judge stated that only USCIS had jurisdiction over U‐ visas and that he would order removal. Melesio‐Rodriguez said she understood “really clearly” and confirmed twice that she wished to accept the order as final rather than reserve an appeal. Melesio‐Rodriguez then retained counsel and unsuccessfully moved for reconsideration, arguing that the IJ had not fully apprised her of her rights; one of her convictions was not a “conviction” for immigration purposes; she was eligible for a U‐visa; she feared torture in Mexico; and the removal proceedings violated the Fifth and Eighth Amendments. The Seventh Circuit dismissed her petition for review. Melesio‐Rodriguez is a criminal alien and the question of her waiver of appeal is factual in nature, so the court lacked jurisdiction, 8 U.S.C. 1252(a)(2)(C). View "Melesio-Rodriguez v. Sessions" on Justia Law