Justia Immigration Law Opinion Summaries

Petitioner appealed the Board of Immigration Appeals’ judgment that he is removable on the ground that he was convicted of a “crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. Section 1227(a)(2)(E)(i). The parties agree that the least culpable conduct criminalized by the Florida statute under which Petitioner was convicted—culpably negligent child neglect—fits within the BIA’s expansive interpretation of Section 1227(a)(2)(E)(i). The question, then, is whether the BIA’s reading of that provision is permissible inasmuch as it covers Petitioner’s offense.   The Eleventh Circuit affirmed. The court explained that the offense of which all now agree Petitioner was convicted fits within the BIA’s interpretation of Section 1227(a)(1)(E)(i)’s key statutory phrase, “crime of child abuse, child neglect, or child abandonment,” which the Board reads to encompass “child endangerment-type offense[s]” that require a “likelihood or reasonable probability that a child will be harmed.”   Further, the court concluded that the BIA’s interpretation of Fla. Stat. Section 827.03(2)(d) is permissible insofar as it reaches “culpably negligent” child neglect. Thus, because it’s reasonable to interpret “crime of . . . child neglect” as including the Florida offense of culpably negligent child neglect, the court deferred to the BIA’s conclusion that Petitioner’s conviction under Fla. Stat. Section 827.03(2) renders him removable. View "Ariel Marcelo Bastias v. U.S. Attorney General" 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 and time-barred.   Denying in part and dismissing in part Petitioner’s petition for review, the Ninth Circuit 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 court 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.   The court also concluded that the BIA did not abuse its discretion in deciding that equitable tolling of the time and number bar was not available to Petitioner, explaining that he waited 21 years to seek a modification of his conviction, provided no basis as to his reasonable efforts to pursue relief during that period, and provided no explanation for such an exceedingly long delay. Finally, the court concluded that it lacked jurisdiction to consider whether the BIA erred in denying Petitioner’s request to sua sponte reopen proceedings. View "LUIS PEREZ-CAMACHO V. MERRICK GARLAND" on Justia Law

An immigration judge (IJ) concluded that Gutierrez-Vargas was not eligible for asylum or withholding of removal because his conviction for dismembering a human body constituted a particularly serious crime. The IJ further concluded that he was not eligible for deferral of removal because he failed to demonstrate that it was more likely than not that he would be tortured if returned to Mexico. The Board of Immigration Appeals (BIA) affirmed that decision.   Petitioner petitioned for review of the BIA denial of his applications for asylum, withholding of removal, and deferral of removal. He argued that the conduct underlying his conviction did not constitute a “particularly serious crime” and that the IJ abused his discretion in determining that Petitioner did not qualify for deferral of removal under CAT. The court concluded that the IJ and the BIA applied the correct legal framework in determining that Petitioner’s conviction constituted a particularly serious crime. The IJ noted the elements of the offense, Petitioner’s role in dismembering and concealing the victim’s body, his “lengthy prison sentence,” and the state courts’ characterization of Petitioner’s actions.   Further, the court explained that although an applicant’s credible testimony “may be sufficient to sustain the burden of proof without corroboration,” 8 C.F.R. Section 1208.16(c)(2) (emphasis added), the IJ found that Petitioner’s testimony, even taken as true, did not satisfy that burden. Thus, Petitioner has failed to demonstrate any abuse of discretion in that ruling. View "Salvador Gutierrez-Vargas v. Merrick B. Garland" on Justia Law

Marin entered the U.S. illegally as a child in 1988 and was removed within months. He illegally reentered, was ordered removed in 1997, and was removed to Mexico. He illegally reentered, returned to Mexico, and reentered again—most recently in 2004, then remained in the U.S., accumulating convictions for residential burglary, domestic battery, illegal firearm possession, and four DUIs. DHS located Marin in an Illinois prison and reinstated the 1997 removal order. Because Marin has been convicted of residential burglary, an aggravated felony, he is inadmissible for 20 years, 8 U.S.C. 1182(a)(9)(A)(i), and is barred from seeking withholding of removal under the Immigration and Nationality Act or the Convention Against Torture.He sought deferral of removal under the Convention. An asylum officer determined that he had a reasonable fear of torture; he was placed in “withholding only” proceedings. The judge granted deferral of removal. The BIA reversed and ordered him removed. Marin petitioned for review but did not seek a stay of removal from the court. His request for a DHA administrative stay was denied. He was removed while his case was pending. The Seventh Circuit dismissed a petition for review. Because he seeks only deferral of removal in a withholding-only proceeding, his removal moots his claim for relief. View "Garcia-Marin v. Garland" on Justia Law

Petitioner a native and citizen of South Korea, sought review of a Board of Immigration Appeals  (BIA) decision affirming an Immigration Judge’s denial of Petitioner’s application for cancellation of removal. The BIA found Jang ineligible for cancellation because of her state conviction for attempted second-degree money laundering which it deemed a “crime involving moral turpitude” (“CIMT”) under the Immigration and Nationality Act.   The Second Circuit granted Petitioner’s petition for review and remanded the case to the agency for further consideration. The court held that Petitioner’s offense of conviction lacks the scienter required to qualify as a CIMT. The court explained that the BIA’s reliance on Section 470.10(1) to determine that Petitioner’s crime was a CIMT was indisputably misplaced, either as a reference to the Tejwani provision that had been superseded by Section 470.15(1)(b)(ii)(A) before Petitioner’s offense conduct or as a reference to the current Section 470.10(1), which defines money laundering in the third, not second, degree. Further, the knowledge required for conviction under Section 470.15(1)(b)(ii)(A) falls well short of the depravity described by the BIA as requisite for a CIMT. The BIA, therefore, erred in treating Petitioner’s conviction for attempted money laundering in the second degree as a CIMT and on that basis denying her application for cancellation of removal. View "Jang v. Garland" on Justia Law

Petitioner missed the filing deadline for his asylum application by over three years and argued that he qualified for the extraordinary circumstances exception to the time limitation based on his “incapacity or legal disability” due to ignorance of the relevant immigration laws, his young age of 22 years old at the time of his arrival, his lack of English-language skills, and the stress he experienced from fleeing his home country.   The Ninth Circuit denied Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that the BIA did not err in concluding that Petitioner failed to establish extraordinary circumstances to excuse his delay in filing his asylum application. The court concluded that none of the factors identified by Petitioner, either separately or in the aggregate, were of a similar nature or seriousness to the examples of extraordinary circumstances set forth in the regulation. 8 C.F.R. Section 1208.4(a)(5). The court held that the BIA, therefore, did not err in concluding that Petitioner failed to establish the presence of an extraordinary circumstance to excuse the delay in filing his asylum application. View "MARVIN MARTINEZ ALQUIJAY V. MERRICK GARLAND" on Justia Law

Shkembi, a citizen of Albania, attempted to enter this country by representing that he was a national of a country that is a participant in the Visa Waiver Program (VWP), 8 U.S.C. 1187, although Albania is not a VWP participant. His ruse was detected at the airport where he was deemed inadmissible. The VWP precludes contesting removability except by seeking asylum. After denial of his application seeking asylum, withholding of removal, and relief under the Convention Against Torture, Shkembi succeeded in reopening his asylum proceeding. Despite the VWP’s limitation to asylum-only proceedings, Shkembi applied for a marriage-based adjustment of status (AOS) and withdrew his asylum application before the IJ. His file was returned to the Department of Homeland Security, but his AOS application was not adjudicated. After being taken into custody, he filed an unsuccessful emergency motion to reopen his asylum proceedings.The Third Circuit denied a petition for review. The terms of the VWP apply to an alien who is from a non-VWP-participant country, who attempts to enter the U.S. by using the passport of a national of a VWP-participant country. Such an alien, despite his ineligibility for the VWP, is subject to the terms of the VWP. Shkembi has never had a right to seek AOS. The court also rejected an argument that the denial of his emergency motion to reopen deprived him of due process. View "Shkembi v. Attorney General United States" on Justia Law

Petitioner was ordered to be removed from the United States in absentia on June 23, 2006. On August 26, 2019, Petitioner, represented by counsel, filed a motion to reopen the removal proceedings and rescind the in-absentia removal order. The immigration judge (“IJ”) denied that motion, and the Board of Immigration Appeals (“BIA”) affirmed. Petitioner petitioned the court to review that affirmance, arguing that the BIA erred in determining that she was not entitled to equitable tolling of the statutory deadline for filing a motion to reopen because, although she had shown exceptional circumstances, she had not shown that she had pursued her rights diligently.   The Fifth Circuit denied Petitioner’s petition to reopen. The court explained that it has authority to review only the final decision of the BIA unless the underlying decision of the IJ influenced the BIA’s decision. Here, the court explained that even accepting arguendo that Petitioner was prevented from participating in the 2006 proceedings or seeking that they are reopened by her abusive partner and that she was traumatized and unable to seek legal help for some time after escaping the abuse, Petitioner admits that she obtained legal representation—from the very same lawyer representing her here—more than two years before filing her motion to reopen the removal proceedings. Thus, the court cannot conclude that the BIA abused its discretion in finding that Petitioner failed to act with reasonable diligence in pursuing her rights. View "Masin-Ventura v. Garland" on Justia Law

The United States Citizenship and Immigration Services denied the U-visa petition based on its regulation limiting derivative U-visa status to spouses married at the time the principal petition is filed. Plaintiffs challenged that denial in the district court, which granted summary judgment to the government.   The Ninth Circuit affirmed the district court’s denial of Plaintiffs’ application for attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”). The court concluded that the district court did not abuse its discretion, explaining that the factors identified by the district court provided strong support for its determination that the government’s position was substantially justified. Specifically, the court observed that the government’s position was found persuasive by no fewer than six federal judges in the course of the case, and as many judges were persuaded by the government’s position as were persuaded by the Plaintiffs’ position. The court explained that these circumstances supported the district court’s conclusion that the government’s position was not unreasonable. In addition, the court concluded that the district court properly considered the fact that this case involved an issue of first impression. View "MARIA MEDINA TOVAR V. LAURA ZUCHOWSKI" on Justia Law

The Supreme Court dismissed this action in which Plaintiffs challenged the City of Gary's local ordinance designed to protect the rights of immigrants, holding that Plaintiffs lacked standing to bring this action.Plaintiffs, four Indiana residents, challenged the "welcoming ordinance" adopted by Gary in 2017 establishing its commitment to protecting the rights of immigrants, seeking a declaration that four sections of the ordinance violated Ind. Code 5-2-18.2 and enjoining the city from enforcing those sections. The trial court entered summary judgment for Plaintiffs. The Supreme Court remanded the case to the trial court with instructions to dismiss the action for lack of standing, holding that where Plaintiffs alleged no injury but instead argued that neither statutory nor public standing requires an injury, Plaintiffs did not meet constitutional requirements for conferring standing. View "City Of Gary v. Nicholson" on Justia Law