Justia Immigration Law Opinion Summaries

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

Petitioner alleged that the Angolan government identified her as a supporter of the independence movement after she attended a church-organized, pro-independence rally in 2016. Soon thereafter, three armed men in government uniforms broke into her home and, in front of her children, beat and raped her, leading to a three-day hospital stay. Petitioner claimed, in her asylum application and in sworn testimony before an IJ, that she was never formally a member of FLEC, but rather has only supported independence through peaceful protest and organizing, which is a family tradition of sorts for many Cabindans. However, the IJ interpreted unsworn, nonverbatim statements from Petitioner’s credible fear interview (CFI) as indicating that Petitioner was a member of FLEC. The BIA found this adverse credibility finding reasonable, and affirmed.   The primary issue before the Fifth Circuit was whether the BIA erred in upholding the IJ’s adverse credibility finding. The Fifth Circuit granted Petitioner’s petition for review, vacated the decisions of the BIA and IJ denying Petitioner’s application for asylum and CAT relief, and remanded. The court explained that the BIA and IJ relied heavily on an unsupported conclusion that Petitioner is not a credible witness. At the same time, there appears to be little dispute that, if Petitioner’s claims are true, she would be entitled to asylum under 8 U.S.C. Section 1158(b)(1)(A). As such, the court concluded that the adverse credibility finding is not supported by specific and cogent reasons derived from the record. View "Ndudzi v. Garland" on Justia Law

Petitioner along with his mother, little sister, and two young cousins—crawled under a border fence that separated Mexico from Arizona. The United States Border Patrol agents soon apprehended them walking north along a highway and subsequently handed Petitioner a notice to appear. The notice ordered him to appear for removal proceedings before the Phoenix Immigration Court at a date and time “to be set.”   The Atlanta Immigration Court sent that notice to Petitioner at the most recent address they had on file for him—his aunt’s home in Rock Springs. It was returned, undelivered, to the immigration court. He remained in the United States for nearly a decade and a half before reappearing in the immigration system in July 2019, when he moved to reopen his removal proceedings. An immigration judge denied Petitioner’s motion to reopen. The Board of Immigration Appeals affirmed that judgment and Petitioner argued that under Pereira he could not be removed.   The Eleventh Circuit denied Petitioner’s petition. The court explained an alien is eligible for a second chance at removal proceedings if he never received the notice telling him to attend the hearing he missed. But Petitioner cannot benefit from dodging a hearing or failing to keep the government informed of his current address. Petitioner did not tell the government when he moved, and he let his removal proceedings lie dormant for nearly fifteen years. A flaw in the initial notice handed to him does not entitle him, years later, to another chance at avoiding removal. View "Samuel Dacostagomez-Aguilar v. U.S. Attorney General" on Justia Law

Petitioner was ordered excluded in 1996 and then unlawfully re-entered the United States. In 2007, DHS served Petitioner with a Notice to Appear (NTA) in immigration court but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Petitioner’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Petitioner’s cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Petitioner’s 1996 order, and he filed a petition for review but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings.   The Ninth Circuit dismissed Petitioner’s petitioner for lack of jurisdiction. The court held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Because Petitioner’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the court concluded that it lacked jurisdiction to consider the merits of his petition.   The court relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. Section 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases. View "MIGUEL LOPEZ LUVIAN V. MERRICK GARLAND" on Justia Law

Petitioner, a citizen of Mexico, became a lawful permanent resident in 1997. Subsequently, he was convicted of four separate crimes in Washington state, including the delivery of a controlled substance. At the time, this offense was an "aggravated felony." and therefore, Petitioner became removable. Petitioner was removed; however, he subsequently re-entered the United States. In 2016, the government detained Petitioner and reinstated his previous removal order.In January 2017, Petitioner filed a petition for review of the reinstatement order, which was ultimately denied. While it was still pending, Petitioner filed a motion to reopen with the immigration judge. The immigration judge denied the motion, Petitioner unsuccessfully filed an administrative appeal to the Board of Immigration Appeals, and then appealed to the Ninth Circuit.The Ninth Circuit denied Petitioner's petition for review, finding that 8 U.S.C. Sec. 1231(a)(5), generally bars reopening reinstated orders of removal and that Petitioner did not establish a "gross miscarriage of justice." The Ninth Circuit also held that the agency lacked authority to sua sponte reopen such reinstated removal orders. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

After a jury convicted Jose Hernandez-Calvillo and Mauro Papalotzi (collectively, Appellees) of conspiring to encourage or induce a noncitizen to reside in the United States, they challenged the statute as overbroad under the First Amendment and successfully moved to dismiss the indictment on that basis. The government appealed. The Tenth Circuit Court of Appeals affirmed: 8 U.S.C. § 1324(a)(1)(A)(iv)'s plain language targets protected speech, and the government’s proposed limiting construction found support in the statute’s text or surrounding context. "And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression." The Court thus held the statute was substantially overbroad, and affirmed the district court's dismissal of the indictment. View "United States v. Hernandez-Calvillo" on Justia Law

The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”   The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.   The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. View "USA V. JUAN BASTIDE-HERNANDEZ" on Justia Law