Justia Immigration Law Opinion Summaries

The Ninth Circuit affirmed the district court's dismissal for lack of jurisdiction of plaintiff's action challenging DHS's denial of I-130 visa petitions. Plaintiff filed petitions seeking Legal Permanent Residence (LPR) status for his non-citizen wife and her three non-citizen children. DHS denied the petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 because defendant had been convicted of committing a lewd and lascivious act with a child under the age of fourteen. Because the Adam Walsh Act clearly delineates who may have a petition granted—rather than who may literally file a petition—the panel held that the amended statute applied to petitions that were filed before, but were still pending on, its effective date. Therefore, USCIS correctly applied the Adam Walsh Act in plaintiff's case. The panel also held that applying the Adam Walsh Act to pending petitions did not violate the Ex Post Facto Clause; the panel lacked jurisdiction to review plaintiff's statutory claims concerning the "no risk" determination; and plaintiff's constitutional claims were not colorable. View "Gebhardt v. Nielsen" on Justia Law

The Eleventh Circuit affirmed defendant's conviction for reentering the country illegal following deportation. The court held that defendant was unable to meet the requirements that would allow for a collateral attack of her underlying deportation order. Even assuming without deciding that defendant was correct in asserting that a conviction for Florida grand theft no longer qualified as a crime involving moral turpitude, the court held that defendant was not deprived of a meaningful opportunity for judicial review of her deportation order and may not collaterally attack her underlying deportation order in these 8 U.S.C. 1326 proceedings. The court also held that the district court's evidentiary rulings were either not erroneous or, if they were, the error was harmless. View "United States v. Watkins" on Justia Law

The Seventh Circuit previously concluded that it lacked jurisdiction to review the BIA’s characterization of Fuller’s conviction for attempted criminal sexual assault as a “particularly serious crime,” under 8 U.S.C. 1231(b)(3)(B)(ii). The characterization barred Fuller from withholding of removal under the Immigration and Nationality Act and the Convention Against Torture. The court also upheld the denial of deferral of removal under CAT, finding that Fuller had not credibly shown that he was bisexual, nor that the Jamaican government would regard him as such. Fuller then unsuccessfully sought to reopen the ruling and submit evidence of his sexual orientation and that he will be killed if returned to Jamaica. The evidence consisted of letters from individuals who knew Fuller in Jamaica and concerned acts of violence against Fuller. Without reaching the merits, the Seventh Circuit denied Fuller a stay of removal. The BIA considered Fuller’s new evidence and was not persuaded that it would have made a difference in the credibility determination; the BIA’s decision on a motion to reopen “is discretionary and unreviewable.” The court stated: “It is sobering to realize that if the Board has made the wrong call, the consequence for Fuller may be death” and expressed hope that this would be taken into consideration. View "Fuller v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision concluding that petitioner was not removable for a controlled substance offense under 8 U.S.C. 1227(a)(2)(B)(i). The panel held that the state crimes underlying his removal, Nevada Revised Statutes 199.480 and 454.351, were not a categorical match to the federal generic statutes because they were overbroad and indivisible. Accordingly, the statute may not be used as a predicate offense to support removal. View "Villavicencio v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision dismissing his appeal challenging the IJ's competence determination. The panel held that the BIA in two related ways abused its discretion in affirming the IJ’s competence evaluation and determination. First, the BIA affirmed the IJ's inaccurate factual finding about the mental health evidence in the record and failed to recognize that the medical record upon which the BIA and the IJ heavily relied was nearly a year old and may no longer reflect petitioner's mental state. Second, the BIA abused its discretion by affirming the IJ's departure from the standards set forth in Matter of M-A-M-, 25 I&N Dec. at 480–81. In this case, the IJ did not adequately ensure that DHS complied with its obligation to provide the court with relevant materials in its possession that would inform the court about petitioner's mental competency. The panel remanded with instructions. View "Calderon-Rodriguez v. Sessions" on Justia Law

The Ninth Circuit affirmed defendants' misdemeanor convictions under 8 U.S.C. 1325(a)(1) for attempting to enter the United States "at any time or place other than as designated by immigration officers." The panel held that a place "designated by immigration officers" refers to a specific immigration facility, not an entire geographic area. In this case, there was no dispute that defendants did not enter the United States through a facility where immigration officials could accept applications for entry. Therefore, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendants attempted to enter the United States in a place other than as designated by immigration officers. View "United States v. Aldana" on Justia Law

President Trump's issuance of Proclamation 9645 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats" violated the Immigration and Nationality Act (INA) and exceeded the scope of his delegated authority. The Ninth Circuit affirmed the district court's order enjoining enforcement of the Proclamation's section 2(a), (b), (c), (e), (g), and (h), holding that the Government's interpretation of 8 U.S.C. 1182(f) not only upended the carefully crafted immigration scheme Congress has embodied in the INA, but it deviated from the text of the statute, legislative history, and prior executive practice as well; the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be detrimental to the interests of the United States; the Proclamation conflicted with the INA's prohibition on nationality-based discrimination in the issuance of immigrant visas; and the President was without a separate source of constitutional authority to issue the Proclamation. However, the panel limited the scope of the preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. View "Hawaii v. Trump" on Justia Law

Gitau, a Kenyan citizen, married a U.S. citizen, Johnson, and became a lawful permanent resident on a conditional basis. Under 8 U.S.C. 1186a(c)(1)(A) and (B), she and Johnson could remove the conditional nature of her status by jointly filing Form I-751. They divorced, however, and Gitau was unable to satisfy the joint filing requirement. She filed a petition to waive the joint filing requirement, 8 U.S.C. 1186a(c)(4), which was denied. In removal proceedings she renewed her waiver request, arguing that she entered into the marriage in good faith and that her removal would result in extreme hardship. The IJ ruled against Gitau, finding her not to be a credible witness and that the evidence other than her own testimony was insufficient to support her claim of good faith. The IJ also found that Gitau had not demonstrated extreme hardship. The BIA affirmed. The First Circuit dismissed a petition for review. The court noted inconsistencies in Gitau’s evidence and that, in 2007, Johnson purported to marry two other individuals seeking U.S. residence status. The only evidence of hardship not barred due to timing concerns was Gitau's testimony that it would be impossible for her to find work in her field in her parents' village in Kenya. View "Gitau v. Sessions" on Justia Law

The Ninth Circuit affirmed the district court's preliminary injunction in an action brought by civil detainees confined in U.S. Customs and Border Protection facilities within the Tucson Sector of the U.S. Border Patrol. The detainees alleged that they were subjected to inhumane and punitive treatment. The panel held that the district court did not abuse its discretion in granting a preliminary injunction requiring that defendants provide detainees with mats and blankets after 12 hours, and properly applied precedent such that neither side has shown that the limited preliminary injunction was illogical, implausible, or without support in the record. In this case, the district court properly read and applied Bell v. Wolfish, 441 U.S. 520 (1979). The panel also held that plaintiffs have not shown that the district court abused its discretion in issuing only a limited preliminary injunction. View "Doe v. Kelly" on Justia Law

In November 2005, Lee was admitted to the U.S. as a nonimmigrant student's spouse. In March 2006, the Temple sought a nonimmigrant religious worker (R-1) visa for Lee. That petition remained pending in USCIS’s California Service Center (CSC) for almost four years. In October 2009, CSC indicated that USCIS intended to approve the petition and retroactively amend Lee’s status, to give her lawful status June 2006-May 2009 and that the Temple could apply for an extension for the remaining eligibility period, through May 2011. CSC’s approval notice stated that the R‐1 visa was valid through May 2009. CSC later approved an extension, covering May 2010-October 2011, leaving a gap in Lee’s lawful status. A November 2010 I‐360 petition, seeking classification as a special immigrant religious worker, stated that Lee had worked for the Temple since October 2009. CSC denied the application because Lee had worked when she did not have a valid visa. In June 2013, CSC agreed to eliminate the gap; CSC approved the I‐360 petition. In December 2013, Lee sought to adjust her status to lawful permanent resident. The Nebraska Service Center denied Lee’s application, noting a status violation. USCIS indicated its intent to revoke the I‐360 petition for failure to establish that Lee had worked continuously in a qualifying occupation for two years immediately preceding the application. The Temple responded that CSC had unreasonably delayed the initial application. USCIS considered that an admission and revoked the I‐360. The Seventh Circuit affirmed dismissal of a petition for judicial review. The revocation at issue is the type of discretionary action that 8 U.S.C. 1252(a)(2)(B)(ii) bars from judicial review. View "Bultasa Buddhist Temple of Chicago v. Nielsen" on Justia Law