Justia Immigration Law Opinion Summaries

The Fifth Circuit denied a petition for review challenging the denial of immigration relief to petitioner, concluding that petitioner's appeal amounts to a challenge alleging that the IJ's decision was not supported by substantial evidence and the court cannot say that the evidence in this case compels a contrary result. While petitioner's family will undoubtedly be distraught at his removal and their familial ties will be strained, the court concluded that the evidence in this case does not establish that this family would suffer hardship above and beyond that regularly faced by families who are separated. View "Morales v. Garland" on Justia Law

In a public-health emergency, 42 U.S.C. 265 authorizes the Executive Branch to "prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate." The Executive exercised that power during the COVID-19 pandemic, issuing a series of orders prohibiting "covered aliens" from entering the United States by land from Mexico or Canada.The DC Circuit affirmed the district court's preliminary injunction in part, finding that it is likely that aliens covered by a valid section 265 order have no right to be in the United States and concluding that the Executive may expel plaintiffs under section 265, but only to places where they will not be persecuted or tortured. The court addressed plaintiffs' likelihood of success on the merits and rejected their arguments that section 265 covers only transportation providers such as common carriers; that the Executive has no power to expel aliens for violating a valid section 265 order; and that they are entitled to apply for asylum. However, the court concluded that plaintiffs are likely to succeed on the merits of their narrow argument that under section 1231 the Executive cannot expel them to places where they face persecution or torture. Finally, the court concluded that the district court did not abuse its discretion in finding that the equities require a preliminary injunction to stop the Executive from expelling plaintiffs to places where they will be persecuted or tortured. The court remanded for further proceedings and ultimate resolution of the merits, including plaintiffs' claim that the section 265 order is arbitrary and capricious. View "Huisha-Huisha v. Mayorkas" on Justia Law

Plaintiffs, Honduran immigrants, filed suit challenging USCIS's decision to administratively close appellants' cases based on lack of jurisdiction as arbitrary and capricious under the Administrative Procedures Act. The Fifth Circuit held that appellants' claims are not indirect challenges to their deportation orders, and therefore reversed the district courts that dismissed their cases for lack of subject matter jurisdiction.However, the court concluded that USCIS correctly determined that appellants are not "arriving aliens" within the meaning of the relevant regulation. The court determined that USCIS erred by characterizing appellants' travel and reentry as advance parole because Congress has statutorily provided that Temporary Protected Status beneficiaries returning from authorized travel abroad must be admitted into the country in the same immigration status they held prior to departure. The court explained that appellants were not parolees waiting for their applications to be processed prior to departing the country, and thus their statuses could not be converted to those of paroled aliens upon their return. Rather, the court concluded that appellants were fully admitted into the country upon their return and thus were not arriving aliens when they submitted their applications for adjustment of status. Accordingly, the court affirmed the district court's grant of summary judgment to the Government. View "Duarte v. Mayorkas" on Justia Law

The Fifth Circuit denied a petition for review challenging the BIA's decision affirming petitioner's removal. Petitioner claims that worsened conditions in her home country, El Salvador, entitle her to remain in the United States. After determining that it has jurisdiction over the petition for review, the court concluded that the BIA did not err in denying petitioner relief on the merits. In this case, the BIA did not need specifically to refute the two Salvadoran officials' belief that the violence at issue arose from a coordinated gang campaign. Nor did the BIA err in applying Singh v. Lynch, 840 F.3d 220 (5th Cir. 2016). Based on petitioner's scattered anecdotal evidence, the court concluded that the BIA's conclusion that she did not meet the heavy burden of showing changed circumstances was neither irrational nor unsupported by the evidence. View "Martinez-Guevara v. Garland" on Justia Law

When Menjivar was 10 years old, her family started attending an evangelical church in El Salvador. Menjivar became a youth leader. Menjivar, her sister, and other youth group members preached to young people. One of their missions was to help people leave gangs. Their pastor received a letter warning him to protect the youth group. Menjivar left El Salvador, fearing reprisals from the gang. When she was 17 years old, she entered the U.S., seeking asylum, withholding of removal, and protection under the Convention Against Torture.Menjivar compiled documentary evidence, including affidavits from her sister and pastor, and country condition reports. The IJ received her evidence late, took about 45 minutes to review it, and denied her application, finding that she failed to establish a well-founded fear of future persecution and failed to show that she was ever personally harmed or threatened. The BIA affirmed, finding no due process violation. The Eighth Circuit denied a petition for review. The IJ reviewed and considered the evidence; his decision discusses the very evidence Menjivar claims was overlooked. In addition, Menjivar failed to show prejudice. The affidavits from her sister and her pastor do not support a particularized fear of future harm to her but only mention general threats against church members. View "Menjivar v. Garland" on Justia Law

The Fourth Circuit granted the petition for review challenging the BIA's dismissal of petitioner's appeal of the IJ's denial of petitioner's motion to reopen removal proceedings. The court concluded that petitioner's motion to reopen should have been considered under 8 C.F.R. 1003.23(b)(3), not section 1003.23(b)(4). Therefore, petitioner filed his motion within 90 days of the final hearing, in which case section 1003.23(b)(3) applies instead of section 1003.23(b)(4). In this case, the BIA abused its discretion by failing to evaluate whether petitioner offered, in the proper form and with the appropriate contents, evidence that was material and not previously available at the initial hearing. The court also concluded that Zambrano v. Sessions', 878 F.3d 84 (4th Cir. 2017). A.R. 47, 64, framework in examining changed circumstances should have been applied to petitioner's asylum application. The court vacated and remanded for the BIA to consider petitioner's motion to reopen under the appropriate standard. The BIA should also address petitioner's asylum application under the framework of Zambrano and conduct any further proceedings consistent with the opinion. View "Garcia Hernandez v. Garland" on Justia Law

The Fourth Circuit denied a petition for review challenging the BIA's denial of petitioner's application for asylum based on its finding that she had not shown she was persecuted on account of her membership in her alleged particular social group, "family members of Guisela Toledo-Vasquez." The court concluded that, despite the tragic circumstances that caused petitioner to flee Mexico, substantial evidence supports the Board's conclusion that she was not persecuted on account of her family relationship with Guisela. Rather, petitioner's family membership to Guisela is merely an incidental, tangential, superficial and subordinate reason for her persecution. In this case, the record suggests that had petitioner been someone else other than Guisela's sister, she would have been targeted just the same. View "Toledo-Vasquez v. Garland" on Justia Law

The First Circuit denied Petitioner's petition for review of a final order of removal issued by the Board of Immigration Appeals (BIA), holding that the immigration judge (IJ) and BIA properly concluded that Petitioner's Massachusetts conviction for accessory after the fact rendered him removable as an aggravated felon.The U.S. Department of Homeland Security initiated removal proceedings against Petitioner. An IJ held that Petitioner was removable under the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii) for having committed an aggravated felony, as defined under 8 U.S.C. 1101(a)(43). As relevant to this appeal, the IJ held that Petitioner's Massachusetts accessory-after-the-fact conviction was categorically an offense relating to obstruction of justice and so was a proper ground for removal as an aggravated felony. The BIA denied Petitioner's appeal. The First Circuit denied Petitioner's petition for review, holding that the BIA did not err in determining that Petitioner's Massachusetts conviction rendered him ineligible for withholding of removal. View "Silva v. Garland" on Justia Law

The Eighth Circuit concluded that it lacked jurisdiction to review the BIA's refusal to sua sponte reopen immigration proceedings because the decision is purely discretionary. The court also concluded that equitable tolling, even if petitioner raised the issue, does not fall into the narrow exception allowing the court to consider colorable constitutional claims. View "Salcido Mar v. Garland" on Justia Law

Khaytekov, a citizen of Uzbekistan, came to the U.S. in 2001 and overstayed his visa for many years. In removal proceedings, Khaytekov sought asylum. alleging that he had been persecuted “by nationalist[s] and fascist[s]” in Uzbekistan because of his religion, nationality, and political opinion and feared “physical attacks” if he returned. While his removal proceedings were pending, Khaytekov married a U.S. citizen, withdrew his request for asylum, and applied to adjust his status to lawful permanent resident, which required him to show that he was “admissible” 8 U.S.C. 1255(a). An IJ found Khaytekov inadmissible because he had filed a “completely fabricated” asylum application. Khaytekov later admitted that the application contained false information; he had not been persecuted in Uzbekistan. Khaytekov’s subsequent request for a hardship waiver was denied because Khaytekov had knowingly filed a frivolous asylum application, which rendered him “permanently ineligible” for any benefits under the immigration laws, section 1158(d)(6). The BIA upheld the decision.The Sixth Circuit previously denied relief, rejecting a “Pereira” claim in which Khaytekov alleged that he received a defective notice to appear. Following a remand from the Supreme Court, the Sixth Circuit again denied Khaytekov’s petition. To be “permanently ineligible,” an asylum seeker who files a frivolous application must have received adequate notice “of the consequences” of doing so, section 1158(d)(4)(A), (d)(6). The standard asylum application form contains a warning about frivolous applications. The IJ did not give Khaytekov the customary verbal secondary warning, but nothing in section 1158(d) requires an additional warning. View "Khaytekov v. Garland" on Justia Law