Justia Immigration Law Opinion Summaries

In 2004, Petitioner was ordered removed in absentia; however, he continued to reside in the United States. In 2019, Petitioner filed a motion to reopen under 8 U.S.C. Sec. 1229a(c)(7)(C)(iv)(III), which extends the amount of time a Petitioner who is a "battered spouse" can file a motion to reopen. The Board of Immigration Appeals ("BIA") denied Petitioner's motion to reopen, refusing to waive the one-year filing deadline that applied to battered spouses. The BIA determined that the abuse Petitioner suffered did not qualify as an "extraordinary circumstance" and that the hardship Petitioner or his children would not suffer "extreme hardship" if removed.The Fifth Circuit denied Petitioner's petition for review, finding that the BIA did not abuse its discretion. Extraordinary circumstances or extreme hardship requires proof of something beyond ordinary circumstances or mere hardship, and something more than the typical challenges associated with relocation. View "Pena-Lopez v. Garland" on Justia Law

8 U.S.C. Section 1226(a) permits the Attorney General to detain aliens pending their removal hearings. The Attorney General has adopted procedures for making that discretionary decision. Under those procedures, an alien is given notice and three opportunities to seek release by showing they are neither a flight risk nor a danger to the community. A district court determined that a class of aliens had a likelihood of establishing that those procedures violated the Due Process Clause of the Fifth Amendment. That court then issued a preliminary injunction ordering that to continue detaining an alien under 1226(a), the government must prove by clear and convincing evidence that an alien is either a flight risk or a danger to the community. The district court also required immigration judges to consider an alien’s ability to pay any bond imposed and consider alternatives to detention.   The Fourth Circuit vacated the district court’s preliminary injunction order and held that under 8 U.S.C. Section 1252(f)(1), the district court lacked jurisdiction to issue class-wide injunctive relief that enjoined or restrained the process used to conduct Section 1226(a) bond hearings. Further, the court held that as for the individual relief issued by the district court, the detention procedures adopted for 1226(a) bond hearings provide sufficient process to satisfy constitutional requirements. Thus, the aliens are unable to establish a likelihood of success on their due process claims. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief. View "Marvin Miranda v. Merrick Garland" on Justia Law

The Transgender Law Center (collectively “TLC”), acting on behalf of the family and estate of an asylum-seeker, submitted two FOIA requests. The first FOIA request was directed to the U.S. Immigration & Customs Enforcement (“ICE”), and the second was directed to the Department of Homeland Security Office for Civil Rights and Civil Liberties. TLC filed suit in district court seeking declaratory and injunctive relief. The district court granted TLC’s request for declaratory judgment holding that the agencies had failed to timely respond to their FOIA requests, but ruled for the agencies in all other respects.   The Ninth Circuit reversed the district court’s partial summary judgment; vacated the district court’s mootness determination; and remanded. The court held that the government’s belated disclosure was not “adequate” under FOIA. The court reasoned that the Government failed to carry its burden because the agencies did not appropriately respond to positive indications of overlooked materials provided by TLC and did not hew to their duty to follow obvious leads.The court further held that the agencies’ Vaughn indices were filled with boilerplate or conclusory statements; and this high-level, summary approach resulted in an unacceptable lack of specificity and tailoring that undermined TLC’s ability to contest the agencies’ withholdings. The court also held that the Government failed to come forward with clear, precise, and easily reviewable explanations for why the information was not segregable. View "TRANSGENDER LAW CENTER V. ICE" on Justia Law

Petitioner was ordered removed and sought relief under the Convention Against Torture. Petitioner claimed he had a well-founded fear of persecution based on his membership in two social groups, his father’s immediate family and “young Guatemalan men who refuse to cooperate with gang members.” The Immigration Judge denied Petitioner relief and the Board of Immigration Appeals.The Eighth Circuit denied Petitioner's petition for relief. Petitioner's main claim was that the group his father belonged to which subjected him to likely persecution was not a "cognizable social group" at the time the Immigration Judge and Board of Immigration Appeals issued their opinions. However, subsequently, the group gained recognition.The Eighth Circuit determined that, notwithstanding any issues related to the group's recognition, Petitioner's application failed because he failed to establish a nexus between the persecution he allegedly suffered and either of his proposed social groups. Additionally, substantial evidence supports the determination that TojinPetitioner did not suffer past persecution. View "Diego Tojin-Tiu v. Merrick Garland" on Justia Law

Petitioner petitioned the Eleventh Circuit for review of his Final Administrative Removal Order and adverse reasonable fear determination, which were issued during his expedited removal proceedings as an alien convicted of an aggravated felony under the Immigration and Nationality Act.   Petitioner contended that he was substantially prejudiced by his lack of counsel at the hearing before the immigration judge in his reasonable fear proceedings. He also argued that he was denied a “full and fair hearing” before the immigration judge because the judge failed to provide an adequate explanation of the procedures.   The Eleventh Circuit denied Petitioner’s petition for review and held that Petitioner’s due process rights were not violated during his expedited removal proceedings. The court concluded that the immigration judge reasonably found that Petitioner’s assertions failed to establish his torture claim and the record does not compel a contrary finding. The court further concluded that substantial evidence supports the asylum officer’s and immigration judge’s negative reasonable fear determination on Petitioner’s claim for CAT relief.   The court reasoned that under the substantial prejudice standard, the petitioner “must demonstrate that, in the absence of the alleged violations, the outcome of the proceeding would have been different.”  Petitioner failed to identify how he would have presented his case differently before the immigration judge.  Further, while Petitioner testified that some individuals threatening him were Haitian public officials, he did not offer any examples to show that those officials were threatening him in their official capacities or under the color of law. View "Emmanuel Priva v. U.S. Attorney General" on Justia Law

Petitioner sought review of the Board of Immigration Appeals (BIA) final order affirming the Immigration Judge’s (IJ) denial of his application for asylum on account of racial persecution. Petitioner had applied for asylum under the Immigration and Nationality Act (INA) Section 208(b)(1), 8 U.S.C. Section 1158(b)(1), withholding of removal under INA Section 241(b)(3), 8 U.S.C. Section 1231(b)(3), and protection under the Convention Against Torture (CAT), 8 C.F.R. Section 208.16(c). On appeal, Petitioner argued that (1) the BIA failed to provide reasoned consideration on his request for asylum relief based on racial persecution, having adopted in large part the IJ’s determination making the same mistake, and (2) the IJ should have permitted him advance notice of the need for specific corroborating evidence to meet his burden of proof and an automatic continuance to provide that evidence after determining that his testimony was credible because 8 U.S.C. Section 1158(b)(1)(B)(ii) requires it.   The Eleventh Circuit denied Petitioner’s request to review the BIA's final order. The court held that the BIA’s decision makes clear that it provided reasoned consideration to Petitioner’s racial claim. The court reasoned that a review of the decision shows that the BIA did not misstate the contents of the record, fail to adequately explain its rejection of logical conclusions, or provide an unreasonable justification for its decision, which, when present, would tend to suggest a failure to provide reasoned consideration. The court dismissed the rest of the petition finding that Petitioner failed to exhaust his second claim. View "Sergio Elias Lopez Morales v. U.S. Attorney General" on Justia Law

Plaintiffs, a group of blood plasma companies, challenged a U.S. Customs and Border Protection ("CBP") rule precluding aliens from entering the U.S. using B-1 business visitor visas to sell plasma. Plaintiffs claimed that they invested substantial resources to develop plasma collection facilities near the border and that the CPB rule failed to take Plaintiffs' interests into account when creating the new rule.The district court denied Plaintiffs' motion for a preliminary injunction, finding that the Plaintiffs' interests were not within the Administrative Procedure Act's "zone of interests." The district court, determining the zone-of-interest determination was jurisdictional, dismissed the complaint.The D.C. Circuit reversed. For the Plaintiffs to sue under the APA, they must have been “adversely affected or aggrieved by agency action within the meaning of a relevant statute." However, the zone-of-interests determination is a merits issue, not a jurisdictional one. From there, the D.C. Circuit considered the merits, finding that the Plainitffs' case interests should have been considered under the B-1 analysis. Thus, the court remanded the case for further proceedings. View "CSL Plasma Inc. v. United States Customs and Border Protection" on Justia Law

Kithongo, born in Kenya, alleges he and his family endured hardships during his childhood there, including being harassed for political and religious reasons, and he watched a police officer murder his friend during political unrest. Kithongo assumed a new name and began working for a company of acrobats. At age 19, Kithongo was admitted into the U.S. on a P1 nonimmigrant performer visa and overstayed his period of authorization. He is 31 years old and married with children. Kithongo has been convicted of misdemeanors for battery, theft, and marijuana possession. Most recently, he was convicted in Indiana for conspiring with others to rob three victims, two of whom were children. Kithongo knowingly accompanied his co‐conspirators to the scene of the crime, likely aware that one of them was carrying a firearm. The robbery was violent.Kithongo was sentenced to one year in prison and charged with removability under 8 U.S.C. 1227(a)(1)(B), (a)(2)(A)(iii) for having an aggravated felony conviction. Kithongo applied for withholding of removal and relief under the Convention Against Torture (CAT). He denied that his conviction constituted an aggravated felony and applied for adjustment of status. The IJ ordered Kithongo removed; the BIA affirmed. The Seventh Circuit dismissed his appeals with respect to adjustment of status and withholding for lack of jurisdiction and denied the appeal concerning CAT relief on exhaustion grounds. View "Kithongo v. Garland" on Justia Law

The Executive Office for Immigration Review (EOIR), maintains an Attorney Discipline Program. Under the Program, Plaintiff filed a complaint against his former attorney. Plaintiff sought to compel the EOIR to complete its investigation of his complaint against his former attorney and to report its investigation results. Plaintiff relief on the Mandamus Act, 28 U.S.C. Section 1361, and the Administrative Procedure Act (APA), 5 U.S.C. Section 706(1).   The Ninth Circuit affirmed the district court’s dismissal of an action seeking to compel the Executive Office for Immigration Review to complete its investigation of Plaintiff’s complaint. The court held that the district court erred in treating the requirements for obtaining relief under the APA as jurisdictional and dismissing the complaint on that basis. The court reasoned that because Mandamus relief and relief under the APA are in essence the same, Plaintiff had an adequate remedy under the APA. The court followed precedent and chose to analyze the APA claim only. Here, the EOIR had a clear, mandatory duty to investigate Plaintiff’s complaint within a reasonable time, but it had no duty to report its investigation results to Plaintiff. Thus, Plaintiff would only be entitled to relief if the EOIR unreasonably delayed in carrying out its duty to investigate. The court applied the six-factor balancing test announced in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), holding that the EOIR’s delay was not unreasonable under the APA. View "PRYMAS VAZ V. DAVID NEAL" on Justia Law

Petitioner sought review of a Board of Immigration Appeals (“BIA”) decision finding her ineligible for cancellation of removal because of her 2014 New York conviction for attempted second-degree money laundering. Petitioner entered the United States without inspection in 1995. In 2014, she pleaded guilty under a plea agreement to attempted money laundering in the second degree. The agreement provided that she would receive a sentence of “time served.” Days later, the Department of Homeland Security served Petitioner with a Notice to Appear, charging her as removable for having entered the United States without inspection. Petitioner did not contest removability.   The Second Circuit granted Petitioner’s review of the Board of Immigration Appeals decision affirming the denial of Petitioner’s application for cancellation of removal. The court held that because the crime of conviction lacks the requisite scienter, it is not a crime involving moral turpitude. The court reasoned that the INA provides that aliens convicted of, or who admit having committed, or who admit committing acts that constitute the essential elements of a crime involving moral turpitude are ineligible for cancellation of removal. To determine whether a crime is a CIMT, the agency asks whether the act is accompanied by a vicious motive or a corrupt mind. Both the circuit court and the BIA have made clear that the indispensable component of a CIMT is evil intent. Here, the knowledge required for conviction under Petitioner’s crime falls well short of the depravity described by the BIA as requisite for a CIMT. View "Jang v. Garland" on Justia Law