Justia Immigration Law Opinion Summaries

In 2004, Enriquez-Perdomo a nine-year-old Honduran national, was ordered removed. INS signed a warrant of removal/deportation but never removed her. The 2012 Deferred Action for Childhood Arrivals (DACA), program applied to persons who immigrated to the U.S. when they were under the age of 16 and were under age 31 in 2012 and meet other specific requirements. In 2013, USCIS approved Enriquez-Perdomo for DACA. She renewed her DACA status through January 2019. In 2017, Enriquez-Perdomo went to an Immigration and Customs Enforcement (ICE) office to post bond for ICE detainees. Enriquez-Perdomo alleges that ICE officers (Defendants) confirmed that she had received DACA, but nevertheless arrested her without a warrant, motivated by her ethnicity and by her assistance of detainees. She claims that Defendants transported her between facilities and deprived her of sleep and food during her eight days in custody. Enriquez-Perdomo sued Defendants in their individual capacities, seeking money damages under “Bivens.”The district court dismissed her claims for lack of subject-matter jurisdiction under 8 U.S.C. 1252(g). The Sixth Circuit vacated in part. Notwithstanding her removal order, Enriquez-Perdomo was eligible for DACA relief and was granted affirmative relief from removal. Although the government could terminate that relief, it did not. Enriquez-Perdomo’s arrest and detention were unauthorized so 1252(g) does not preclude her claims; her removal order was not executable. There is no Bivens remedy for First Amendment retaliation claims; the court remanded Fourth Amendment and Fifth Amendment claims. View "Enriquez-Perdomo v. Newman" on Justia Law

In each of these consolidated petitions for review, an alien’s initial counsel withdrew, and the alien represented himself at the merits hearing on his requests for relief from removal. After denying those requests and ordering the aliens removed, the Immigration Judge informed each alien that he had a right to administratively appeal the removal order to the Board of Immigration Appeals and that the right could be waived. Each alien waived that right, preferring to be deported rather than remain in custody. Days afterward, each alien filed a pro se notice of appeal. Later, in briefs filed by pro bono counsel, each alien disputed a removal. The BIA dismissed each administrative appeal, finding that the waiver of an administrative appeal was valid. Each alien then filed an unsuccessful motion for reconsideration with the BIA.The Third Circuit denied petitions for review. The administrative record does not compel the conclusion that the waivers were invalid, and the BIA did not abuse its discretion in denying the alien’s motion to reconsider. Each IJ explained the right to appeal and the meaning of the waiver; the waivers were not involuntary. View "Alexander-Mendoza v. Attorney General United States" on Justia Law

Petitioner sought review of an opinion by the Board of Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ) denying his motion to reopen his prior removal proceedings. Petitioner argued that the IJ had jurisdiction over his motion because an alien may collaterally challenge a removal order when it results in a gross miscarriage of justice. The Ninth Circuit filed: 1) an order amending the opinion filed July 18, 2022; and 2) an amended opinion denying Petitioner’s petition.   The court held that: 1) 8 U.S.C. Section 1231(a)(5), which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; and 2) the agency lacks authority to reopen such reinstated removal orders sua sponte. The panel concluded that this argument was not cognizable in the context of this current appeal, explaining that an alien may raise such a collateral attack, but only in a petition for review of a reinstatement proceeding or order. The panel further explained that, although the then-applicable regulation gave the agency the authority to reopen cases sua sponte, that regulation did not expressly provide that such authority overrode Section 1231(a)(5). Nor could it, the panel observed, given that a regulation does not trump an otherwise applicable statute unless the regulation’s enabling statute so provides. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

Petitioner, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Petitioner argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number-barred   The Ninth Circuit filed: 1) an order amending the opinion filed August 1, 2022, and 2) an amended opinion denying in part and dismissing in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel concluded that the BIA did not err in denying Petitioner’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid.   The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Petitioner could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order. View "LUIS PEREZ-CAMACHO V. MERRICK GARLAND" on Justia Law

Two brothers from Nigeria petition this court to overturn the Board of Immigration Appeals’ refusal to allow their removal proceedings to be reopened. They argue their counsel’s ineffectiveness caused their application for asylum and other relief to be incomplete and therefore denied, and that counsel’s failures constituted extraordinary circumstances justifying reopening of their removal proceedings.   The Fifth Circuit denied the petitions. The court explained that it need not decide f ineffective assistance of counsel would be an extraordinary circumstance justifying equitable tolling of the deadline for seeking reopening. The failure to move in timely fashion to reopen was an independent basis for the BIA to deny relief. The court wrote it need not consider the issue of ineffective counsel as to the biometrics information. The could concluded that Petitioners have not shown any basis for equitable tolling of the filing deadline for reopening. View "Eneugwu v. Garland" on Justia Law

Petitioner petitioned or review of the Board of Immigration Appeals’ final removal order under 8 U.S.C. Section 1252. The Board held that Petitioner, as the recipient of a K-1 nonimmigrant visa, couldn’t adjust status to that of a conditional permanent resident without an affidavit of support from her former husband, who originally petitioned for her K-1 visa.   The Fourth Circuit denied the petition, finding that the Board’s decision to be reasonable under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court held that the Board didn’t act arbitrarily or capriciously by hewing to a regulatory provision that applies on its face, even if another (facially inapplicable) provision might have better protected Petitioner’s reliance interests.   Petitioner’s petition also seeks review of the Board’s refusal to reopen her removal proceedings so she could introduce a document entitled “Questions and Answers: USCIS— American Immigration Lawyers Association (AILA) Meeting,” dated October 9, 2012. Petitioner suggested that this document supported her argument that subsection (f)(1) (and not (f)(2)) should apply to K-1 beneficiaries’ adjustment applications, such that a petitioner couldn’t withdraw a Form I-864 once the K-1 beneficiary has entered the United States. The document doesn’t render the Board’s decision unreasonable. At oral argument, both parties agreed that the document is ambiguous as to whether it truly reflected USCIS’s position in 2012. But even if it did, the Board’s later precedential decision in Petitioner’s case binds USCIS employees. View "Sothon Song v. Merrick Garland" on Justia Law

Petitioner petitioned for review of a final order of removal issued by the Board of Immigration Appeals, dismissing his appeal from the decision of the immigration judge (“IJ”) to deny his motion to reopen. Defendant principally contended that the IJ lacked authority to conduct the removal proceedings because the NTA was defective. Petitioner submitted an affidavit in which he stated that he received the NTA but that it did not contain the date and time of his removal proceedings. Now he contends that the court should remand the matter to the Board for reconsideration of his NTA challenge in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).   The Fifth Circuit denied the petition. The court explained that here, Petitioner received the NTA and does not dispute that he also received the subsequent NOH. The fact that Petitioner received the NOH (or does not dispute receiving the NOH) makes Rodriguez distinguishable. View "Campos-Chaves v. Garland" on Justia Law

The Anoka County Jail referred every detainee born outside the United States, including Plaintiff, to Immigration and Customs Enforcement. The district court determined that this policy violates the Equal Protection Clause, and a jury awarded her $30,000 on a false-imprisonment theory.   The Eighth Circuit affirmed. The court explained that the district court’s conclusion was correct: Anoka County’s policy is a classic example of national-origin discrimination. On its face, it treats people differently depending on where they were born. Those born abroad must wait anywhere from 20 minutes to 6 hours longer while deputies consult ICE. For those born in the United States, by contrast, there is no call and release is immediate. The court explained that it is also significant that Anoka County had national-origin-neutral alternatives at its disposal. The failure to consider these alternatives provides further evidence that it did not adopt a narrowly tailored policy. View "Myriam Parada v. Anoka County" on Justia Law

In 2015, Petitioner, a native and citizen of Venezuela was indicted for aiding and abetting and making false, fictitious, or fraudulent claims to the IRS alongside her co-defendant husband in violation of 18 U.S.C. Sec. 287. She was ordered to pay restitution jointly and severally with her husband in the amount of $45,365 and was sentenced to 48 months in prison.Following these convictions, Petitioner was placed in removal proceedings for the commission of a “crime involving moral turpitude” and seeking to procure a visa by fraud or misrepresentation. The Immigration Judge (“IJ”) sustained both charges of removability. In turn, Petitioner sought withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture.The IJ denied the application, concluding that Hammerschmidt’s testimony regarding alleged persecution and torture was not credible. Even assuming her testimony was credible, the IJ held that her withholding claim would nevertheless fail because her conviction under Sec. 287 constituted an aggravated felony and a particularly serious crime, rendering her ineligible for both asylum and withholding of removal. The IJ also denied CAT relief. The BIA adopted and affirmed.The Fifth Circuit denied in part and dismissed in part Petitioner's petition for withholding of removal under the INA and protection under the CAT. The court noted a conviction need not meet the five-year sentence threshold to constitute a “particularly serious crime” for withholding purposes. The court also noted that the restitution order, which Petitioner conceded held her “joint and severally liable,” indicated that her conduct contributed to a total loss of more than $45,000. View "Hammerschmidt v. Garland" on Justia Law

Petitioner, a native and citizen of Guatemala, applied for cancellation of removal pursuant to 8 U.S.C. Section 1229b(b)(1). He has three children, who were 19, 10, and 5 years old at the time of the merits hearing in April 2017. The immigration judge denied Petitioner’s application. The Board of Immigration Appeals (“BIA”) dismissed his appeal, and Petitioner timely petitioned for review of the BIA’s decision.   The Eighth Circuit affirmed. The court explained that Petitioner failed to provide authority allowing the court to direct the BIA to implement a new analytical standard for exceptional and extremely unusual hardship. To the extent Petitioner claims the BIA misapplied the applicable hardship standard—a question of law which the court may review—his claim is without merit. Further, the court wrote that the BIA’s discretionary conclusion that the hardship to the children is not substantially beyond that typically caused by an alien’s removal “is precisely the discretionary determination that Congress shielded from our review.” View "Hector Gonzalez-Rivas v. Merrick B. Garland" on Justia Law