Justia Immigration Law Opinion Summaries

In 2000, Britkovyy, a Ukrainian citizen, entered the U.S. through Mexico and twice stated that he was born in the U.S. The following day, Britkovyy—through an interpreter—explained that he had misunderstood the question and had not claimed citizenship. Britkovyy was paroled (allowed to enter but not “admitted”) and charged as inadmissible for falsely representing himself as a citizen. Britkovyy did not appear; an IJ ordered him removed in absentia. Britkovyy never left the country and married a U.S. citizen. In 2007, Britkovyy’s outstanding immigration was discovered warrant during a traffic stop. His wife petitioned for family-based permanent residency for Britkovyy. He applied to adjust his immigration status with both the immigration court (in re-opened removal proceedings) and with USCIS. The immigration court concluded it lacked jurisdiction; USCIS has exclusive jurisdiction to adjust the status of an “arriving alien,” and Britkovyy was an arriving alien because he was paroled, not admitted. USCIS denied Britkovyy’s application under 8 U.S.C. 1182(a)(6)(C)(ii), 1255(a). His removal proceedings remain pending.The immigration statutes do not provide for judicial review of the USCIS denial, so Britkovyy filed suit under the Administrative Procedure Act (APA). While his appeal from the dismissal of his suit was pending, the Supreme Court held that 8 U.S.C. 1252(a)(2)(B)(i) strips federal courts of jurisdiction to review facts found as part of discretionary-relief proceedings under section 1255, which governs adjustment of status. The Seventh Circuit concluded it lacked jurisdiction. Section 1252(a)(2)(B)(i) strips courts of jurisdiction to review USCIS’s denial of an adjustment-of-status application. This immigration-specific jurisdiction-stripping statute precludes an APA challenge. View "Britkovyy v. Mayorkas" on Justia Law

A jury convicted Defendant of felonious assault on a peace officer under section 2903.13(A) of the Ohio Revised Code and misdemeanor resisting arrest. While Defendant was in prison, he was served with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice alleged that Defendant was a Mexican citizen in the country illegally who had been convicted of an aggravated felony and was thus removable. The notice alleged that his conviction qualified as an aggravated felony because it was a crime of violence under the INA. Defendant was once again arrested and charged with illegal reentry. Defendant moved to dismiss the indictment, arguing that his section 2903.13(A) assault conviction was not an aggravated felony. The district court denied Defendant’s motion.   The Ninth Circuit affirmed. The panel disagreed with Defendant’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Defendant also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. The panel explained that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel, therefore, concluded that section 2903.13(a) is a crime of violence under Section 16(a), it thus qualifies as an aggravated felony under Section 1101(a)(43)(F), and Defendant’s removal order was not fundamentally unfair. View "USA V. JACINTO ALVAREZ" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. Although the Board entertained the government’s challenge to a portion of the immigration judge’s decision in Petitioner’s case, it declined to consider Petitioner’s challenges to that decision because Petitioner had not filed a cross-appeal. Petitioner argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the immigration judge’s alternative order on the merits of his claims.The Ninth Circuit affirmed. The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross-appeals. Rather, the Board has authority to prescribe its own rules of procedure so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel concluded that it lacked jurisdiction to consider Petitioner’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board. View "JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND" on Justia Law

Petitioner, a Cuban immigrant, sought immigration relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) as well as through and application for asylum, and withholding of removal under the Immigration and Nationality Act (“INA”). The Immigration Judge denied the petitions, based on two inconsistencies with Petitioner's testimony. The Board of Immigration Appeals affirmed.The Eleventh Circuit reversed the Board of Immigration Appeals' affirmance of the Immigration Judge's denial of Petitioner's immigration application, finding the record lacks substantial evidence that would allow the court to affirm the Immigration Judge's adverse credibility determination. The court noted that the inconsistencies were involved translated statements that more properly seen as were "approximations." Thus, the court determined that the Immigration Judge committed clear error in making an adverse credibility determination. View "Ignacio Balaez Serra v. U.S. Attorney General" on Justia Law

Elizur International Inc. (“Elizur”) filed a Form I-140 Immigration Petition for Alien Worker on behalf of its employee, seeking to permanently employ their employee in the United States as a multinational executive or manager under the Immigration and Nationality Act (“INA”). The United States Citizenship and Immigration Services (“USCIS”) denied Elizur’s petition. Rather than file an administrative appeal, Elizur and the employee sued in federal court and lost.   The Fourth Circuit affirmed. The court concluded that the agency did not commit a clear error in judgment. The record contains ample support for the agency’s conclusion that Elizur failed to provide the necessary level of detail as to the employee's duties to permit the agency to conclude that the employee functioned in a managerial or executive capacity while employed at Triple-R. Further, the generic and vague statements, many of which the agency cited in its decision, fall well short of what’s required to demonstrate that the employee primarily performed managerial or executive functions. View "Chuncheng Ren v. USCIS" on Justia Law

The Department of Homeland Security (DHS) deported Petitioner, a permanent resident of the United States, since he was six years old, because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with the police an aggravated felony. Because of that designation, Petitioner was not allowed back into the United States. In 2018, the Supreme Court ruled that the type of offense Petitioner committed no longer qualified as an aggravated felony. Learning of that decision in 2019, Petitioner moved the BIA to reconsider its original removal order and to equitably toll the usual thirty-day deadline for filing such motions in view of the legal change. The BIA declined. It did not dispute that Petitioner is entitled to be readmitted into the country, but it rejected Petitioner’s request to toll the limitations period, believing him insufficiently diligent in discovering his rights.   The Fourth Circuit held that it has jurisdiction. Accordingly, the Court vacated the Board’s diligence determination, remanding to the BIA to consider the second prong of the equitable-tolling inquiry—whether the change in the law constituted an extraordinary circumstance—as well as the merits of Petitioner’s claim. The court explained that because the BIA determined Petitioner was not diligent, it did not consider whether Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable tolling. View "Damien Williams v. Merrick Garland" on Justia Law

After conceding that he was removable from the United States for entering the country without being admitted or paroled, Petitioner applied for asylum on the ground that gangs in his native Honduras had persecuted him in the past and that he feared persecution from them should he return there. An immigration judge and the Board of Immigration Appeals determined, as relevant, that any harm Petitioner had suffered bore no connection to his political opinions and denied his application. Petitioner for review of the agency's decision and his motion to reconsider that decision.   The Eighth Circuit denied Petitioner’s petitions. The court explained that the record here does not contain much evidence, if any, that Petitioner’s refusal to assist the gang, even one as powerful and politically influential as MS-13, was meant to reflect a political opinion or that the gang thought his refusal was due to a political opinion. Further, the court wrote that Petitioner’s contention that the IJ and BIA failed to examine the record adequately in reaching their conclusions is untenable. The IJ recounted the gang's interactions with Petitioner and concluded that he never expressed any political opinion or anti-corruption sentiment or that the gang imputed those things to him—conclusions that find ample support in the record. View "Hugo Aguilar Montecinos v. Merrick B. Garland" on Justia Law

The Department of Homeland Security (DHS) deported Petitioner Petitioner, a permanent resident of the United States since he was six years old, because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with the police an aggravated felony. Because of that designation, Petitioner was not allowed back into the United States, not even to visit. He would spend the next eleven years in Jamaica, working mostly for room and board, his U.S.-citizen mother, siblings, girlfriend, and children affording only a handful of trips to see him. In 2018, the Supreme Court ruled that the type of offense Petitioner committed no longer qualified as an aggravated felony. Learning of that decision in 2019, Petitioner moved the BIA to reconsider its original removal order and to equitably toll the usual thirty-day deadline for filing such motions in view of the legal change. The BIA declined. It did not dispute that Petitioner is entitled to be readmitted into the country, but it rejected Petitioner’s request to toll the limitations period, believing him insufficiently diligent in discovering his rights.   The Fourth Circuit held that it has  have jurisdiction to review the BIA’s decision and that it must review it de novo. And the Court vacated the Board’s diligence determination, remanding to the BIA to consider the second prong of the equitable-tolling inquiry—whether the change in the law constituted an extraordinary circumstance—as well as the merits of Petitioner’s claim. View "Damien Williams v. Merrick Garland" on Justia Law

Petitioner petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reconsider the denial of an administrative closure of his removal proceedings. Petitioner moved for reconsideration, arguing an intervening BIA decision -- Matter of Cruz-Valdez -- granted administrative closure authority the BIA previously found lacking and instructed the Board to apply the administrative closure standard set out in Avetisyan. The BIA agreed   The Eighth Circuit denied Petitioner’s petition for review. The court held that the BIA did not abuse its broad discretion to deny motions to reconsider. As in Gonzalez-Vega, the court concluded it is “clear from the record that the [BIA] had the appropriate [Avetisyan] considerations in mind and committed no clear error of judgment in weighing them.” Petitioner argued the BIA did not analyze all the Avetisyan factors. But the court wrote it does not require the Board “to recite the considerations mechanically when applying them to the facts.” The BIA announced its decision in terms sufficient to enable us to perceive that it has heard and thought and not merely reacted. Accordingly, the BIA did not abuse its broad discretion in denying the motion to reconsider View "Alejandro Islas-Saldana v. Merrick B. Garland" on Justia Law

The First Circuit denied in part and dismissed in part the order of the Board of Immigration Appeals (BIA) upholding an immigration judge's (IJ) denial of Petitioners' request for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), holding that Petitioners were not entitled to relief.The IJ denied the requests for asylum and withholding of removal brought by Petitioners, a mother and daughter who were natives and citizens of Honduras, based on its finding Petitioners failed to demonstrate a well-founded fear of future persecution "on account of" a statutorily protected ground. Petitioners sought judicial review. The First Circuit denied the petition in part and otherwise dismissed it, holding (1) substantial evidence supported the agency's findings; and (2) Petitioners' CAT claim was not administratively exhausted. View "Barnica-Lopez v. Garland" on Justia Law