Justia Immigration Law Opinion Summaries

Petitioner is a native and citizen of El Salvador who entered the United States in 1997. Later that year she was detained and subsequently ordered removed in absentia. Petitioner applied for Temporary Protected Status ("TPS"), but under a different name. Petitioner was granted TPS in 2003 under that different name and continued to renew her TPS using that information.Since obtaining TPS, Petitioner has departed the United States only on one occasion, but she was out of the country for 111 days. At the time, she had considered seeking permission from immigration officials to leave the United States but decided not to do so because her TPS was not in her own name. Upon her return, Petitioner was apprehended by Border Patrol Agents. The Department of Homeland Security initiated formal removal proceedings against her. At her hearing before the IJ, Petitioner conceded to being removable as charged but sought TPS relief.The IJ determined that she was ineligible for TPS because her 111-day absence disrupted her continuous physical presence in the United States. The IJ and BIA denied relief. On appeal, the Fifth Circuit affirmed the BIA's denial of Petitioner's petition, finding that her 111-day absence was not “brief, casual, and innocent” under 8 U.S.C. 1254a(c)(4). View "Tobar v. Garland" on Justia Law

Petitioner petitions for review of the Board of Immigration Appeals (“BIA”) order (1) affirming the Immigration Judge’s (“IJ”) denial of his application for cancellation of removal and dismissing his appeal, and (2) denying his motion to reopen and remand his removal proceedings. Petitioner, a citizen of Mexico, conceded removability. This petition is about only his application for cancellation of his removal. The main grounds for both his appeal to the BIA and his motion to reopen were Petitioner’s claim that his counsel rendered ineffective assistance and denied him constitutional due process as to his cancellation-of-removal application.   The Eleventh Circuit concluded as to the denial of Petitioner’s application that: (1) cancellation of removal is a purely discretionary form of relief from removal; (2) Petitioner does not have a constitutionally protected liberty interest in that purely discretionary relief; and (3) therefore, Petitioner’s constitutional due process claim is meritless, and we lack jurisdiction to entertain it under the Immigration and Nationality Act (“INA”).   As to Petitioner’s ineffective assistance claims in his motion to reopen and remand, the court concluded that: (1) Petitioner cannot establish a constitutional due process violation based on the BIA’s denial of his motion to reopen because he does not have a protected liberty interest in either discretionary cancellation of removal or in the granting of a motion to reopen; (2) the BIA properly followed its legal precedent and (3) the court lacks jurisdiction to entertain Petitioner’s challenge to the denial of his motion to reopen. View "Rosendo Ponce Flores v. U.S. Attorney General" on Justia Law

Plaintiff, his wife, and his three children are Libyan citizens who have resided lawfully in the United States for over a decade. Plaintiff filed an I-140 petition seeking a waiver of the labor-certification requirement of his visa because he is a “professional holding an advanced degree whose work is in the national interest of the United States.” While the petition was pending, Plaintiff and his family filed I-485 applications for status adjustment to legal permanent residents (“LPRs”) under 8 U.S.C. Section 1255(a). Section 1255 grants the Attorney General the discretion to adjust the status of certain aliens to LPR status if they have met certain statutorily specified conditions. The USCIS granted the family’s I-485 petitions prematurely. The district court found that it had no subject matter jurisdiction to review the original denial of the I-140 because Plaintiffs had not exhausted their administrative remedies.   The Fifth Circuit affirmed the order of dismissal. The court held that it does not have subject matter jurisdiction to review a status-adjustment decision by the USCIS under either the APA or the INA because the alien retains the right to de novo review of that decision in his final removal proceedings. Thus, the court found that Plaintiffs have not yet exhausted administrative remedies and the court may not exercise jurisdiction. View "Elldakli v. Garland" on Justia Law

The First Circuit denied Petitioner's petition for review of a final order of removal issued by the Board of Immigration Appeals (BIA) dismissing Petitioner's appeal of the decision of the immigration judge (IJ) concluding that Petitioner's Brazilian conviction constituted both an aggravated felony and a particularly serious crime rendering him ineligible for asylum, withholding of removal, cancellation of removal, and voluntary departure, holding that there was no error of law.On appeal, Petitioner argued that his Brazilian conviction was in absentia and that both the IJ and BIA erred in determining that the conviction was valid for immigration purposes, thus barring him from obtaining the relief he sought. The First Circuit affirmed, holding (1) the Brazilian conviction was not in absentia; (2) there was no evidence to support Petitioner's claim that his foreign conviction was a travesty of justice; and (3) substantial evidence supported the IJ's conclusion that Petitioner's conviction was not politically motivated. View "Andrade-Prado, Jr. v. Garland" on Justia Law

Petitioner petitioned for review of an order by the Board of Immigration Appeals (BIA) denying his second motion to reopen removal proceedings. Petitioner’s more pressing concern is to avoid a decision on the merits of this petition for review until he has successfully obtained relief from removal. To do so, he joins the government’s request to transfer this matter to mediation.   The Ninth Circuit denied Petitioner’s and denied the parties’ joint request to send this case to mediation in order to put the appeal into abeyance while Petitioner pursued other forms of relief from removal. The panel found that the parties had not disguised the fact that the objective of transferring the matter to mediation was to delay Petitioner’s removal from the country until the government had agreed to provide discretionary relief. The panel wrote that it was an abuse of the court’s mediation process to use it for a purpose unrelated to resolving disputes and as a substitute for the issuance of a stay. The panel additionally noted that the government had numerous means to avoid enforcement against Petitioner, including specific procedural tools to hold Petitioner's case in abeyance, such as remanding the matter to the BIA, moving to reopen proceedings with the BIA or to dismiss the proceedings, requesting a continuance from the BIA, or simply deciding not to execute Petitioner’s final order of removal—decisions which are the prerogative of the Executive Branch, not the judiciary. Thus, the panel denied the motion to refer to mediation. View "NSHAN AYANIAN V. MERRICK GARLAND" on Justia Law

Petitioner petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his request for administrative closure of his removal proceedings. The agency relied on the Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a then-controlling decision of the Attorney General that prohibited administrative closure. The Attorney General subsequently overruled that decision and revised the agency’s position.   The Second Circuit denied the petition for review. First, the court held that an agency does not abuse its discretion by relying on an interpretation of its regulations that are controlling at the time of its decision—even if the agency subsequently revises that interpretation—as long as it reflects a reasonable interpretation of the regulations. Second, the court concluded that the regulations, in this case, are at least ambiguous with respect to the availability of administrative closure and that Matter of Castro-Tum expressed a reasonable interpretation of the regulations that is entitled to deference. Third, the court agreed with the BIA that the Matter of Castro-Tum did not authorize administrative closure in this case. View "Garcia v. Garland" on Justia Law

Al-Adily is a citizen of Iraq and a lawful U.S. permanent resident. After returning his rental car to Thrifty 163 days past its due date, Al-Adily pleaded guilty to failing to return rental property worth between $1,000 and $20,000, under Michigan law. The state court ordered him to pay $10,660.56 in restitution, matching Thrify's itemized restitution request, including a daily loss-damage-waiver charge for 170 days, repair costs, an airport concession fee, and state and municipal taxes.In removal proceedings, DHS alleged that Al-Adily’s conviction constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i), allowing for deportation under 8 U.S.C. 1227(a)(2)(A)(iii), as an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The IJ noted oddities in Thrifty’s itemization but felt bound by the restitution amount. With the assistance of new counsel seven years later, Al-Adily successfully moved to reopen his removal proceedings. A new IJ concluded that Thrifty’s loss amount was necessarily equal to the amount of court-ordered restitution and denied Al-Adily’s applications for withholding of removal and relief under the Convention Against Torture. The BIA affirmed.The Sixth Circuit reversed. The Supreme Court has warned that restitution orders must be considered with caution, especially where the amount was determined under a lower evidentiary standard. Thrifty’s itemization is internally inconsistent. Several enumerated charges do not stem from “the specific counts covered by the conviction” or are not losses at all. View "Habib Al-Adily v. Garland" on Justia Law

Petitioner was convicted under Wash. Rev. Code Section 9A.56.190 and served a fifteen-month prison sentence. The BIA concluded that he was removable for having committed an aggravated felony under 8 U.S.C. Section 1101(a)(43)(G), which describes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.”   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. Section 1101(a)(43)(G). A plurality of the court concluded that it was necessary to consider Washington's accomplice liability in conducting the categorical analysis of Washington robbery. The plurality explained that, in Valdivia-Flores, the court relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the Supreme Court concluded that generic theft encompasses aiding and abetting. Because Petitioner’s conviction did not establish that he acted as a principal, the plurality concluded that it must consider the possibility he acted as an accomplice. Having held that second-degree robbery under Wash. Rev. Code Section  9A.56.190 is a categorical match with generic theft, the en banc court concluded that Petitioner had been convicted of an aggravated felony and denied his petition for review. View "MCKENZY ALFRED V. MERRICK GARLAND" on Justia Law

Petitioner was born in the former Soviet Union in what is now Armenia. He entered the United States with his family in 1992 at age seven, becoming a lawful permanent resident in 1994. Petitioner and several others were charged in a 20-count indictment in district court and the Department of Homeland Security sought Petitioner’s removal. An Immigration Judge (IJ) found that Petitioner’s conspiracy conviction rendered him removable and that he was not entitled to relief from removal. The IJ thus ordered that Petitioner be removed to Armenia. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit dismissed in part and denied in part Petitioner’s petition for review. The panel held that: (1) in evaluating whether the government has satisfied the “exceed[ing] $10,000” requirement, the relevant loss amount for a conspiracy conviction is the loss associated with the conspiracy; and (2) the agreed-upon sentencing enhancement in Petitioner’s plea agreement was sufficient to prove that his offense of conviction involved more than $10,000 in losses. The panel held that under Section 1101(a)(43)(M)(i), the loss tied to a conspiracy conviction is the loss associated with the scheme that forms the basis for the conviction. The panel explained that when an alien has been convicted of a conspiracy to commit a qualifying crime of “fraud or deceit,” the government need not ascribe to the alien coconspirator some individual portion of the overall conspiracy-related loss to demonstrate that the loss threshold has been satisfied. The panel also concluded that the government had met its burden of proving that the conspiracy to which Petitioner pleaded guilty involved more than $10,000 in losses. View "ARMAN KHALULYAN V. MERRICK GARLAND" on Justia Law

Defendant, a criminal noncitizen with a burglary conviction and two subsequent illegal-reentry convictions, was convicted of illegal reentry for a third time. The district court characterized his burglary conviction as an aggravated felony. The district court also characterized his two prior illegal-reentry convictions as aggravated felonies under a statutory provision stating that illegal reentry is itself an aggravated felony when committed by someone previously deported following an aggravated felony conviction. The designation “aggravated felony” is significant because it subjects the alien to a maximum prison sentence of 20 years. On appeal, Defendant argued that the district court mischaracterized his past offenses because, under an intervening Supreme Court case, his predicate burglary conviction no longer qualifies as an aggravated felony. He insists the district court erred in sentencing him under Section 1326(b)(2).   The Fifth Circuit reformed the judgment to reflect that Defendant was convicted and sentenced under Section 1326(b)(2) and affirmed the judgment as reformed. The court explained that Defendant was correctly sentenced under Section 1326(b)(2) because he was previously removed “subsequent to a conviction for commission of an aggravated felony.” Defendant’s first illegal reentry, for which he was sentenced under Section 1326(b)(2), was an aggravated felony under Section 1101(a)(43)(O). View "USA v. Huerta-Rodriguez" on Justia Law