Justia Immigration Law Opinion Summaries

Togonon, a citizen of the Philippines, was admitted to the U.S. as a lawful permanent resident. He was later convicted of arson (California Penal Code 451(b)). DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on his conviction for "an aggravated felony," “an offense described in” 18 U.S.C. 844(i). The BIA upheld a removal order.The Ninth Circuit vacated. The California statute is not a categorical match to its federal counterpart, under which a defendant acts “maliciously” if he either intentionally damages or destroys property covered by section 844(i) or acts with “willful disregard” of the likelihood that damage or injury would result from his acts; acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property. California courts have interpreted the term “maliciously” in section 451(b) more broadly. A defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm. View "Togonon v. Garland" on Justia Law

Nkemchap Nelvis Takwi sought review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Mr. Takwi was a 36-year-old native and citizen of Cameroon. In August 2019, he came to the United States without authorization and claimed he would be persecuted if returned to Cameroon. An asylum officer conducted an interview and found Mr. Takwi had a “credible fear of persecution.” Shortly thereafter, the government charged Mr. Takwi as “subject to removal” because he was a noncitizen who attempted to enter the United States without valid entry documents. The Tenth Circuit granted the petition and remanded this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility. View "Takwi v. Garland" on Justia Law

Fuentes-Rodriguez pleaded guilty to illegally reentering the U.S. after having been previously convicted of an aggravated felony (8 U.S.C. 1326(b)(2)) and was sentenced to 30 months’ imprisonment. The Fifth Circuit affirmed that his underlying felony conviction for family-violence assault under Texas Penal. Code 22.01(a)(1) constituted an aggravated felony. While his certiorari petition was pending, the U.S. Supreme Court decided in "Borden" (2021) that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(i) of the Armed Career Criminal Act (ACCA). Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a),2 which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision. On remand, the Fifth Circuit vacated. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly but his conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding for entry of an amended judgment by the district court will reduce the risk of future confusion. A reformed judgment should reflect that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony.” View "United States v. Fuentes-Rodriguez" on Justia Law

Abdelsalam came to the U.S. in 2017 on a fiance visa. His fiance, Mona, discovered that Abdelsalam had other relationships and was planning to divorce her as soon as he gained citizenship and reported him to immigration authorities. Abdelsalam subsequently physically injured and threatened Mona and burglarized her house. He pled guilty to making criminal threats. The trial court orally told him that, as a result of the conviction, he would be deported. He was also advised in writing that he would be deported. His attorney reviewed the immigration consequences of the plea with Abdelsalam, who orally acknowledged that he understood those consequences, and stated that he would “wait for immigration.”After deportation proceedings were initiated, Abdelsalam claimed he never understood that he would be deported and should be allowed to withdraw his plea. The court of appeal affirmed the denial of the motion to withdraw the plea, finding it unsupported by the record. A defendant cannot be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported. View "People v. Abdelsalam" on Justia Law

Cabrera, a citizen of Mexico, legally entered the U.S. on a B-2 visa and overstayed. In 2015, her boyfriend physically assaulted her in front of her child. The responding officer noted her physical injuries. Cabrera’s child stated that the man had grabbed Cabrera and choked her. Cabrera’s boyfriend was charged with criminal domestic violence, Cabrera aided the police in prosecuting him, rendering her eligible to seek a U visa, available to noncitizens who have been a victim of criminal activity and who help authorities investigating or prosecuting that crime, 8 U.S.C. 1101(a)(15)(U). Cabrera obtained the required certification, attesting to her help, from law enforcement in December 2017. In February 2018, before Cabrera filed her U visa application, DHS issued her notice to appear. A month later, Cabrera filed her U visa application. She moved to continue the deportation proceedings.The IJ denied the motion, acknowledging there was a “significant probability” that USCIS would grant the U visa. The BIA dismissed Cabrera's appeal, finding that she failed to show good cause for a continuance. The Fourth Circuit vacated. The BIA and IJ abused their discretion. The BIA has held that there is a “rebuttable presumption” that a movant who has filed a prima facie approvable application for a U visa warrants a favorable exercise of discretion for a continuance. The BIA failed to explain why it departed from established policies. View "Cabrera v. Garland" on Justia Law

Mutua, a citizen of Kenya, was admitted into the U.S. as a non-immigrant temporary visitor for business. He did not depart as his visa required but married a U.S. citizen. Several years later, Mutua applied for adjustment of status. DHS denied Mutua’s application because he had criminal charges pending, arising from an alleged sexual assault of a child (his niece). Matua's trial resulted in a hung jury. The state dismissed the charge because the victim did not want another trial. Mutua was charged as removable, 8 U.S.C. 1227(a)(1)(B). The IJ recognized that Mutua was statutorily eligible for adjustment of status but denied his application because Mutua did not merit a favorable exercise of discretion. The BIA affirmed, rejecting an argument that the IJ required Mutua to prove his lack of criminal activity by a “clear and convincing” standard. The BIA declined to take administrative notice of Mutua’s criminal trial transcript.The Eleventh Circuit denied a petition for review, rejecting arguments that the IJ held Mutua to an improperly high burden of proof when considering whether he was entitled to a favorable exercise of discretion, that the BIA applied the wrong standard of review to the IJ’s determination and misinterpreted its own regulations on administrative notice, and that the BIA should have referred his appeal to a three-member panel because his case involved complex, novel, or unusual issues of law. View "Mutua v. United States Attorney General" on Justia Law

Herrera-Martinez owned a restaurant and a bar in Honduras with a business partner. In 2002, narco-traffickers began to pressure him to sell drugs; they allegedly beat him and threatened his life after he reported them to police. Herrera-Martinez fled to the United States and hired a lawyer, but skipped his last immigration hearing. Herrera-Martinez was later deported but returned after five days. Herrera-Martinez pled guilty to burglary of a habitation with intent to commit theft and was, again, deported. During his third stay in the U.S. Herrera-Martinez was detained for illegal reentry. He sought withholding of removal and protection under the Convention Against Torture, testifying that the narco-traffickers killed his former business partner after he left Honduras and murdered his brother-in-law.An IJ held that Herrera-Martinez experienced “at best a severe level of harassment,” did not establish a well-founded fear of future persecution, did not show persecution on account of any recognized social groups, and did not establish that Honduran officials would acquiesce in any torture. On remand, the IJ additionally found Herrera-Martinez not credible. The BIA affirmed. The Fourth Circuit denied a petition for review. Herrera-Martinez’s withholding claim failed because the particular social group he advanced, prosecution witnesses, was not particular. Herrera-Martinez’s testimony was not credible; he failed to show that it is more likely than not he would be tortured if he returned to Honduras and that the Honduran government would acquiesce to such torture. View "Herrera-Martinez v. Garland" on Justia Law

The Fifth Circuit denied the petition for review challenging the BIA's determination that petitioner is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err by holding that the 2019 IJ could reexamine whether petitioner's felony assault conviction was a particularly serious crime. After determining that the court had jurisdiction to review petitioner's alternative argument, the court concluded that the BIA did not err in determining on the merits that petitioner was ineligible for withholding of removal because his felony assault conviction was a particularly serious crime. Finally, the court concluded that a foreign government's "failure to apprehend the persons threatening the alien" or "the lack of financial resources to eradicate the threat or risk of torture" do not constitute sufficient state action for petitioner to be entitled to protection under the CAT. View "Aviles-Tavera v. Garland" on Justia Law

The Fifth Circuit denied the petition for panel rehearing, withdrew its prior opinion, and substituted the following opinion. As an initial matter, petitioner conceded that her argument regarding recission of her in absentia removal order and Pereira v. Sessions, 138 S. Ct. 2105 (2018), was foreclosed by precedent. The court denied the petition for review, finding no indication that the BIA abused its discretion by applying an incorrect legal standard when it denied petitioner's motion to reopen. The court also concluded that the BIA did not abuse its discretion in determining that petitioner did not make a prima facie showing for cancellation of removal. View "Parada-Orellana v. Garland" on Justia Law

The Ninth Circuit filed (1) an order withdrawing the opinion and dissent filed on June 23, 2021, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion denying the petition for review of a decision of the BIA.In the amended opinion, the panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. In this case, the circumstance specific to petitioner clearly established that the amount of marijuana in his possession exceeded thirty grams. View "Bogle v. Garland" on Justia Law