Articles Posted in U.S. 5th Circuit Court of Appeals

by
Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's dismissal of his appeal from the IJ's denial of his application for statutory withholding of removal and Convention Against Torture (CAT) protection. The court denied the petition for review as to statutory withholding where petitioner did not show that he would be persecuted on account of a protected ground because the court did not recognize economic extortion as a form of persecution under immigration law nor does it recognize wealthy Salvadorians as a protected group; granted the petition for review as to CAT protection where neither the BIA nor the IJ considered the alternative view of the evidence showing that the extortionists may have received their information about petitioner from other government officials acting in their official capacities; and remanded for further consideration of the petition for CAT protection. View "Garcia v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of Mexico and a lawful permanent resident of the United States, appealed the IJ's determination that he was ineligible to apply for cancellation of removal to the BIA. The BIA dismissed the appeal, agreeing with the IJ that petitioner's auto-burglary conviction, as a conviction for an aggravated felony, rendered him ineligible to apply for cancellation of removal. The court made explicit what was dictum in Lopez-Elias v. Reno and joined its sister circuits in holding that a conviction for unauthorized entry of a vehicle with intent to commit a theft therein constituted a conviction for an attempted theft offense, which, under 8 U.S.C. 1101(a)(43)(U) and 1229b(a)(3), rendered petitioner ineligible to apply for cancellation of removal. Accordingly, the court denied the petition for review. View "Garcia v. Holder, Jr." on Justia Law

by
Petitioner, a national of Eritrea, requested asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed that he fled Eritrea to escape an assignment within the country's National Service program, which he asserts is a program of human trafficking and not a legitimate program of military conscription. The IJ denied petitioner's application for asylum and withholding of removal, but granted his application for protection under the Convention Against Torture (CAT). The BIA affirmed. The court recognized that the evidence indicated the practices of the Eritrean government in enforcing its program of National Service were coercive and disturbing; the court noted that some of the evidence submitted in support of petitioner's motion to remand indicated that refusal to participate in National Service may be imputed as political opposition to the Government; but, however, the court could not say that the IJ's finding was unsupported by substantial evidence, nor could the court say that the BIA's denial of the motion was irrational or arbitrary. Accordingly, the court denied the petition. View "Milat v. Holder, Jr." on Justia Law

by
Petitioner, a native of Mexico and a lawful permanent resident, sought review of the BIA's order finding her inadmissible for having committed a crime involving moral turpitude and thus ineligible for cancellation of removal. The court denied relief because DHS may rely on subsequent convictions to meet the clear and convincing evidence standard in proving that a returning alien is applying for admission. View "Munoz v. Holder, Jr." on Justia Law

by
Petitioner was denied special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 203(a)(1), 111 Stat. 2160, 2196, because the BIA considered his 1992 Virginia conviction for "carnal knowledge of a child between thirteen and fifteen years of age" an aggravated felony as defined by the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(A). The court concluded that petitioner's conviction under the Virginia statute necessarily means that he also has been convicted of the generic offense of sexual abuse of a minor, an aggravated felony within the INA. Accordingly, the court denied the petition for review. View "Contreras v. Holder, Jr." on Justia Law

by
Defendant pled guilty to using a fraudulent visa as proof of permission to enter the United States. On appeal, defendant challenged the district court's application of a two level enhancement for previous deportation under U.S.S.G. 2L2.2(b)(1). The court affirmed the sentence, rejecting defendant's contention that because he voluntarily departed he had not "been deported" for the purposes of U.S.S.G. 2L2.2(b)(1). View "United States v. Murillo-Acosta" on Justia Law

by
Petitioners, a married couple who are natives and citizens of India, appealed the BIA's decision denying their petition for adjustment of status, cancellation of removal, and voluntary departure. The court concluded that the district court did not err in determining that Dilshad was statutorily ineligible for adjustment of status under INA 245(i) because she was inadmissible under INA 212(a)(6)(C)(i) for fraudulent entry; Naseem's derivative application thus was also properly denied; and the court denied the petition for review. The court lacked jurisdiction to review any judgment regarding the granting or denying of discretionary relief in the form of cancellation of removal or voluntary departure where this appeal involved neither constitutional questions nor questions of law. Accordingly, the court dismissed the remainder of the petition for want of jurisdiction. View "Sattani, et al. v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of Mexico, sought review from the BIA's dismissal of his appeal from a removal order. At issue was whether petitioner's conviction for aiding or abetting improper entry under 8 U.S.C. 1325(a) rendered him removable under 8 U.S.C. 1227(a)(1)(E)(i). The court concluded that the BIA's finding that the conviction documents associated with petitioner's section 1325(a) conviction established his removability under section 1227(a)(1)(E) was supported by substantial evidence. Accordingly, the court affirmed the judgment of the district court and denied the petition for review. View "Santos-Sanchez v. Holder, Jr." on Justia Law

by
Three children who are natives of Mexico appealed the district court's finding under the Hague Convention of the Civil Aspects of International Child Abduction, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, that they were being wrongfully retained in the United States and should be returned to their mother. While the appeal was pending, USCIS granted the children asylum. As a preliminary matter, the court concluded that the children, who are not parties, have standing to appeal where their well-being was at stake. On the merits, the court concluded that no jurisdictional defect arose from the fact that the director of child and family services was not the actual physical custodian of the children; the absence of ORR as a party was not a meaningful defect; and the Hague Convention was a proper mechanism for the recovery of the children. Accordingly, the district court did not lack jurisdiction to enter the order that the children be returned to their mother. Because the children's fundamental interests are at stake in the district court proceedings and no respondent is making an effort to represent those interests, the court remanded to the district court to appoint the children a guardian ad litem. The district court did not clearly err by failing to account for the mostly retrospective harm allegedly suffered by the children, or the conclusions of the psychologist, which were based on the children's belief that the same conditions would be present upon their return. Finally, the court concluded that an asylum grant did not remove from the district court authority to make controlling findings on the potential harm to the child. Accordingly, the court vacated and remanded. View "Sanchez v. R.G.L." on Justia Law

by
Petitioner sought cancellation of removal but the IJ found that he was not statutorily eligible for the discretionary relief because of the "stop-time rule" in 8 U.S.C. 1229b(d)(1). The court concluded that the plain reading of the provision supported the IJ's application of the stop-time rule where petitioner's conviction of aggravated assault of a family member triggered the rule and denied him eligibility for cancellation of removal. Accordingly, the court denied his petition for review. View "Miresles-Zuniga v. Holder, Jr." on Justia Law