Justia Immigration Law Opinion Summaries

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

The Fifth Circuit granted Petitioner’s petition for review of the Board of Immigration Appeals (BIA) dismissal of Petitioner’s appeal from the immigration judge’s (IJ) denial of his application for relief from removal. Because the IJ’s adverse credibility determination was not supported by evidence in the record, the court determined that the BIA erred in affirming it and remanded the case to the BIA. Petitioner filed a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA).   The Fifth Circuit found that Petitioner is entitled to attorneys’ fees under the EAJA and awarded $56,169.79. The court found that the government’s position was not substantially justified at each stage of this litigation. Accordingly, Petitioner is entitled to attorneys’ fees and costs under the EAJA. The court found that the EAJA statutory rate, adjusted for regional cost of living increases, adequately compensates counsel for the work performed. Petitioner also sought fees for work performed by a paralegal. The court wrote that a review of district court cases analyzing the prevailing rate for paralegals in Louisiana under the EAJA reveals a range of $75/hr to $100/hr. In light of the paralegal’s experience,the court found that a rate of $100/hr appears appropriate. View "Nkenglefac v. Garland" on Justia Law

Defendant entered the United Stated without authorization in 2004. He was then convicted of malicious wounding in Virginia and was deported back to El Salvador. Defendant later re-entered the United States before being convicted of another crime in 2020. He was indicted for illegal entry. moved to dismiss that indictment, arguing that the five year statute of limitations on his prosecution had run and that his crime of malicious wounding was not a deportable offense. The district court rejected Defendant's claims.On appeal, Fourth Circuit affirmed the district court's denial of Defendant's collateral attack of his removal order, finding that Defendant entered the United States without authorization, committed a deportable offense, re-entered again illegally, and then committed another crime. The court explained that Defendant's "case falls right at the heart of what Congress sought to criminalize and the executive branch seeks to stop with the illegal reentry statute of 8 U.S.C. Sec. 1326." View "US v. Omar Alas" on Justia Law

Petitioner petitioned for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenged the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case.   The Ninth Circuit dismissed the defective NTA claim for lack of jurisdiction and denied the petition as to the CAT claim. The panel granted the petition and remanded as to the administrative closure issue, given the government’s recommendation that the panel does so based on an intervening decision by the Attorney General. The panel granted the petition and remanded as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm. The panel concluded that substantial evidence supported the agency’s determination that Petitioner failed to establish the requisite government involvement or government acquiescence to any torture View "JOSUE UMANA-ESCOBAR V. MERRICK GARLAND" on Justia Law

Appellant is a dual citizen of the United Kingdom and Saudi Arabia who entered the United States on a visa to receive graduate medical education. He sought to adjust his immigration status to that of a legal permanent resident under Section 1255 of the Immigration and Nationality Act (the “INA”). The United States Citizenship and Immigration Services (“USCIS”) determined that he was ineligible for adjustment of status and denied his applications. Appellant and his wife challenged that decision by filing suit under the Administrative Procedure Act (“APA”). The district court dismissed the case for lack of subject-matter jurisdiction under 8 U.S.C. Section 1252(a)(2)(B)(i).   The DC Circuit affirmed and held that the district court correctly dismissed Appellants’ case for lack of subject-matter jurisdiction. Based on the plain meaning of Section 1252(a)(2)(B)(i), and the reasoning of Patel v. Garland, 142 S. Ct. 1614, USCIS’s decision to deny Appellants’ application for adjustment of status is unreviewable by a federal district court. The court explained that to avoid the dismissal of their case, Appellants sought to confine Patel’s holding to petitions for review of removal orders. Although Patel addressed a judgment made in a removal proceeding before an immigration judge and reserved ruling on whether Section 1252(a)(2)(B)(i) bars review of analogous judgments by USCIS that are challenged under the APA in a federal court. The court saw no basis for the distinction that Appellants attempt to draw. Section 1252(a)(2)(B) specifically provides that the relevant jurisdiction-stripping language applies “regardless of whether the judgment, decision, or action is made in removal proceedings.” View "Adil Abuzeid v. Alejandro Mayorkas" on Justia Law

Petitioner entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Petitioner’s OSC did not list the time and place of his proceedings. Petitioner sought suspension of deportation, a form of relief available prior to IIRIRA. IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals like Petitioner, whose proceedings were pending when IIRIRA was enacted, this stop-time rule applies retroactively to proceedings initiated by an OSC.   Accordingly, Petitioner’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Petitioner contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable.   The Ninth Circuit denied Petitioner’s petition for review of the BIA’s decision, the panel held that: 1) an OSC that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Petitioner’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the CAT. View "WINSTON GUTIERREZ-ALM V. MERRICK GARLAND" on Justia Law