Articles Posted in U.S. 8th Circuit Court of Appeals

by
Petitioner, a national and citizen of Kenya, sought review of the BIA's dismissal of her appeal from an IJ's order concluding that she was removable and denying her petition for adjustment of status. Petitioner argued that the IJ erred by denying her motion to suppress her I-9 forms and her Hutchison Community College (HCC) applications. The court concluded that INA 274A(b)(5) allows the admission of I-9 forms into evidence in removal proceedings; absent an egregious violation of the Fourth Amendment or other liberty which transgresses the fundamental fairness of the removal proceedings or affects the probative value of the evidence obtained, the exclusionary rule is not available in the removal context to remedy a mere statutory violation of Federal Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; and, therefore, the court denied the petition for review. View "Downs v. Holder, Jr." on Justia Law

by
Plaintiff, a native of Afghanistan, filed suit seeking to compel officials to decide immediately his pending application for adjustment of status. The court affirmed the district court's grant of summary judgment in favor of the officials where the officials' delay in adjudicating plaintiff's adjustment-of-status application was not unreasonable. View "Irshad v. Johnson, et al." on Justia Law

by
Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA dismissing his appeal from the IJ's order of removal. Petitioner admitted that the tampering with evidence conviction justified his removal. However, he argued that res judicata barred DHS from bringing the removal proceedings against him because the tampering with evidence conviction arose from the same nucleus of operative fact as the manslaughter conviction. The court concluded that petitioner's manslaughter and tampering with evidence convictions are two different causes of action that arose out of different facts, required different proof, and redressed different wrongs. Therefore, assuming without deciding that res judica principles applied to immigration proceedings, the requisite elements are not present and the removal proceedings are not barred. Accordingly, the court denied the petition for review. View "Cabrera v. Holder, Jr." on Justia Law

by
Petitioner, a Kenyan citizen, sought review of the BIA's order upholding the IJ's denial of her motion for a continuance and her request for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner asserted that she feared she would be subjected to female genital mutilation (FGM) if she returned to Kenya. Assuming, without deciding, that the IJ violated petitioner's statutory right to counsel by not at least calling her counsel to see that her statutory right to counsel was honored, petitioner cannot prove prejudice. Here, neither petitioner nor her counsel has set forth evidence affirmatively proving that petitioner was entitled to the relief that she seeks. Accordingly, the court denied the petition for review. View "Njoroge v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of Tanzania, sought review of several of the BIA's orders. The court concluded that the court's jurisdiction was limited to reviewing the BIA's denial of petitioner's motion to reopen and reconsider (May 6 order). Because the BIA did not abuse its discretion by denying petitioner's motion, the court denied the petition for review. The court granted, however, petitioner's motion for leave to file a reply brief out of time. View "Mshihiri v. Holder, Jr." on Justia Law

by
Petitioner, a native of China, sought review of the BIA's denial of her motion to reopen her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that the BIA did not abuse its discretion in denying the motion where petitioner failed to produce documents that were previously unavailable to her 2010 merits hearing and that were material to the outcome of the proceeding. She failed to demonstrate the likely impact of any economic sanctions imposed for her violations of China's one-child policy or the probability that she would be subject to sterilization in her particular province. Petitioner failed to make a prima facie case for her substantive asylum eligibility. The court rejected petitioner's argument that the BIA evaluated her exhibits too strictly where the court noted that the BIA correctly found that petitioner's documents from China were not sufficiently authenticated in any manner and were therefore not considered genuine, authentic, and objectively reasonable evidence. Accordingly, the court denied the petition for review. View "Chen v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of Mexico, petitioned for review of a final order of removal entered by the BIA. The court concluded that substantial evidence supported the IJ's determinations, affirmed by the BIA, that petitioner did not provide credible testimony that he entered the United States by car in 2004, and that petitioner was removable because he failed to prove he had been inspected and admitted as he claimed. The I-213 provided strong evidence that petitioner entered the United States afoot without inspection or admission. The IJ and BIA also articulated specific reasons to discredit petitioner's testimony based on discrepancies and contradictions. Accordingly, the court denied the petition for review. View "Diaz-Perez v. Holder, Jr." on Justia Law

by
Petitioner, a citizen of China, sought review of the BIA's affirmance of the IJ's denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ found that petitioner's application for asylum was time-barred. The IJ denied withholding of removal or relief under the CAT because petitioner failed to demonstrate that she was a member of any Christian church or had converted to Christianity and therefore could not demonstrate that she would be persecuted or tortured in China based on her religion. The court concluded that, given the suspicious timing of petitioner's alleged conversion to Christianity and her lack of evidence proving that she was a member of the St. Louis Chinese Baptist Church, minor translation errors relating to Baptist religious practices or the Bible or the harassment of petitioner's Christian friends in China would not undermine the IJ's decision. Accordingly, the court denied the petition for review. View "Yang v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of the Bahamas, sought review of the BIA's decision affirming the IJ's order of removal. The court concluded that petitioner's third-degree assault conviction in Minnesota constituted an aggravated felony. As an aggravated felon, petitioner was statutorily ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3). Having held that 8 U.S.C. 1182(h) was susceptible to multiple interpretations, the court deferred to the BIA's reasonable construction that section 1182(h) relief was unavailable for any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired. Finally, the court rejected petitioner's equal protection challenge to the BIA's construction of section 1182(h) where disagreements among the courts of appeal, or between an agency and one or more of the courts of appeal, would not by itself create an equal protection violation. Accordingly, the court denied the petition for review. View "Roberts v. Holder, Jr." on Justia Law

by
Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's order dismissing his request for withholding of removal and relief under the Convention Against Torture (CAT). The court concluded that petitioner has not presented any evidence indicating that persons who identify gang members to police suffered greater crime than other members of the population who resisted gang violence. Therefore, petitioner's attempt to define a cognizable social group on this basis failed for lack of both particularity and visibility. Petitioner's proffered political status also failed; nothing in the record suggested that MS-13 targeted petitioner for political reasons; and therefore, the BIA's legal determinations were correct and substantial evidence supported its decision to deny withholding of removal under 8 U.S.C. 1231(b)(3)(A). Finally, substantial evidence supported the BIA's decision to deny relief under the CAT where the record did not compel the conclusion that it was more likely than not that petitioner would be tortured with the acquiescence of a public official. Accordingly, the court denied the petition for review. View "Somoza Garcia v. Holder, Jr." on Justia Law