Justia Immigration Law Opinion Summaries

Petitioner, a Nepalese citizen, petitioned for review of the BIA's denial of his application for asylum and withholding of removal and the Convention Against Torture (CAT). Petitioner claimed that he was subjected to past persecution and feared future persecution based on his political opinion and membership in a particular social group, the Nepal Student Union. The court remanded the case because the IJ's finding, as affirmed by the BIA, that petitioner failed to prove the necessary nexus that he was persecuted on account of his political opinion, was not supported by substantial evidence. Accordingly, the court granted the petition for review. View "Sharma v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Ecuador, petitioned for review of the BIA's decision denying his appeal from the IJ's denial of his motion to reopen his in absentia deportation proceedings, rescind the in absentia order, stay deportation, and change venue. Petitioner argued that he never received the notice of deportation hearing; the notice of hearing (NOH) was statutorily deficient under 8 U.S.C. 1252b(a)(3)(A) because it was written only in English and not also in Spanish; and due process required that a NOH be in a language the alien could understand. The court concluded that petitioner's unsupported denial of receipt of the certified mail notice was insufficient to rebut the presumption of effective service; the fact that the NOH was only printed in English did not prejudice petitioner; and the NOH comported with due process. Accordingly, the court denied the petition for review. View "Ojeda-Calderon v. Holder, Jr." on Justia Law

Defendant pled guilty to unlawful reentry and subsequently appealed the district court's denial of his motion to suppress. The court affirmed the judgment of the district court because neither defendant's identity nor his INS file were suppressible, although the court concluded that the agents lacked reasonable suspicion and clearly violated the Fourth Amendment in stopping defendant. Accordingly, the court was bound by precedent and affirmed the denial of defendant's motion to suppress. View "United States v. Hernandez-Mandujano" on Justia Law

Defendant appealed his sentence stemming from his conviction for illegal reentry after deportation. The court held that it was error to rule that defendant's third degree aggravated assault conviction constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) and apply the 16-level increase to the base offense level. The error was not harmless where the district court did not clearly state that it would impose the same sentence if there had not been a 16-level enhancement based on the prior crime of violence. Accordingly, the court reversed and remanded for resentencing. View "United States v. Martinez-Flores" on Justia Law

Petitioners, citizens of Pakistan, petitioned for review of the BIA's determination that they could not adjust their status because for more than 180 days, they had not been in "lawful status." The BIA agreed with the IJ's conclusion that petitioners failed to maintain continuous lawful status since their entry into the United States and failed to qualify for any exception to the requirement. The court concluded that the BIA properly denied "lawful status" and reasonably determined that petitioners had failed to maintain theirs. Accordingly, the court affirmed the judgment. View "Dhuka, et al v. Holder, Jr." on Justia Law

Plaintiff, a citizen and national of Iran, filed suit seeking relief under the Administrative Procedures Act, 5 U.S.C. 704 and 706, and the Declaratory Judgment Act, 28 U.S.C. 2201(a), when plaintiff's application to obtain lawful permanent residence status was denied by USCIS ten years after he filed the application. Because the government had not demonstrated a significant change in the law between 1999 and 2010 as applied to plaintiff's petition for permanent resident status, USCIS was collaterally estopped from concluding that plaintiff was ineligible for an adjustment to permanent resident status on the basis of his provision of support to the mujahedeen movement. USCIS's denial of application was set aside under 5 U.S.C. 706. Accordingly, the court reversed, rendered summary judgment to plaintiff, and remanded to the agency for further proceedings. View "Amrollah v. Napolitano, et al" on Justia Law

Plaintiff appealed the district court's grant of summary judgment to defendants. Plaintiff had petitioned under 8 U.S.C. 1421(c) for review of his denied naturalization application but the district court determined that he could not demonstrate good moral character as a matter of law, a prerequisite of naturalization. The court affirmed and held that a "hearing de novo" within the meaning of section 1421(c) encompassed a Federal Rule of Civil Procedure 56 review on summary judgment; consideration of prior conduct was appropriate where the conduct was relevant to assessing the applicant's moral character or present conduct indicated poor moral character; affidavit evidence of present conduct, without more, could not create a genuine issue of material fact as to moral character where it conflicted with probative evidence of prior conduct; and collateral estoppel applied to an applicant's testimony in naturalization proceedings where that testimony, if credited, attacked an essential premise underlying a prior criminal conviction. View "Kariuki v. Tarango, et al" on Justia Law

Defendant pleaded guilty to a one-count indictment charging him with illegal reentry of a removed alien in violation of 8 U.S.C. 1326(a). On appeal, defendant challenged his sentence of twelve months imprisonment. The government conceded that the district court's lack of notice that it intended to depart upward from the Sentencing Guidelines was a clear and obvious error in violation of Federal Rule of Criminal Procedure 32(h). Even assuming that the error affected defendant's substantial rights, defendant has not met his burden of showing that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. The court also held that the district court did not abuse its discretion in sentencing defendant where the district court was permitted to consider the need for deterrence as a sentencing factor and defendant's previous immigration encounters and removals in departing upward from his sentencing range. Accordingly, the court affirmed the sentence. View "United States v. Zelaya-Rosales" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the decision of the BIA that he was removable for having been convicted of an aggravated felony. The IJ concluded that petitioner's conviction for attempted sexual assault under Texas Penal Code section 22.011 was a crime of violence as defined in 18 U.S.C. 16(b) because the offense presented a substantial risk of the use of physical force against another. When petitioner appealed the IJ's order of removal, the BIA dismissed the appeal. Because the record did not establish that petitioner was convicted of an aggravated felony, as defined by 8 U.S.C. 1101(a)(43), the court granted his petition and vacated the order of removal. View "Rodriguez v. Holder, Jr." on Justia Law

This case arose from a finding that a lawful permanent resident of the United States' conviction of burglary of a vehicle under New Mexico's burglary statute rendered him removable pursuant to 8 U.S.C. 1227(a)(2)(A)(iii) for committing a crime of violence. The court concluded that the burglary under the New Mexico statute did constitute a crime of violence where it entailed a significant likelihood that force would be used against another's property. Because the court did not have jurisdiction over petitioner's remaining claims, the court dismissed them. Accordingly, the court denied in part and dismissed in part. View "Escudero-Arciniega v. Holder, Jr." on Justia Law