Justia Immigration Law Opinion Summaries

Petitioners, three siblings and citizens of Guatemala, petitioned for review of the BIA's dismissal of petitioners' administrative appeal on the merits based on an IJ's denial of their applications for asylum and withholding of removal, as well as the BIA's denial of petitioners' motion to reconsider its prior decision and to reopen the proceedings based on ineffective assistance of counsel. The court held that petitioners did not satisfy the asylum requirement where the refusal to join criminal gangs did not meet the requirements of 8 U.S.C. 1101(a)(42)(A). The court also held that petitioners failed to meet their burden of establishing ineffective assistance of counsel. Accordingly, the BIA did not err in denying asylum and withholding of removal relief and acted well within its discretion in denying the motion to reopen.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA that dismissed his appeal, finding that evidence of his alienage was admissible and that removal was proper despite the hardship he alleged it would impose on his family. The court held that, even assuming that the search and seizure here constituted a violation of the Fourth Amendment, any such violation was not egregious. Any evidence ICE obtained, by virtue of petitioner's arrest by local officers, was admissible and sufficient to establish petitioner's alienage and removeability. The court also held that it lacked jurisdiction to review the BIA's hardship determination because it was a discretionary decision barred from appellate review. Accordingly, the court denied the petition.

Petitioner, a citizen of Laos and a lawful permanent resident of the United States, petitioned for review of the BIA's decision affirming the IJ's removal order. The court held that because the Attorney General and the BIA applied section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), nunc pro tunc in In re L- and In re G-A- -- cases where an excludable alien had traveled and re-entered before being charged as deportable -- without regard to whether a statutory counterpart was charged in the deportation proceeding, and because the BIA failed to address whether this created a distinct basis for finding an impermissible retroactive effect, the petition for review was granted. The court directed the Attorney General to exercise his section 212(c) discretion to decide whether petitioner warranted a waiver of deportation.

Petitioner, a citizen of Mexico, filed a timely petition for judicial review following removal, asserting that his 2002 burglary conviction was not an aggravated felony that authorized expedited removal. The court held that, although it had jurisdiction to consider the aggravated felony issue under 8 U.S.C. 1252(a)(2)(D), the review was precluded because petitioner did not raise the issue in the administrative removal proceeding and petitioner's claim was based entirely on a post-removal state court order, evidence that was not part of the administrative record on appeal. Accordingly, the court denied the petition for review.

Petitioner, a citizen of the Philippines, petitioned for review of the BIA's conclusion that petitioner's motion to reopen had not been timely filed and no exceptional circumstances warranted exercise of its discretionary authority to reopen proceedings sua sponte. The court held that the BIA did not abuse its discretion in denying the motion to reopen where petitioner failed to file the motion within the statutorily prescribed time limits and, even if petitioner had shown due diligence to excuse her lateness, she had not demonstrated prejudice based on ineffective assistance of counsel. The court also held that it lacked jurisdiction to review the BIA's decision on its own motion whether or not to reopen proceedings, since that decision was committed to agency discretion by law.

Petitioner, a citizen of Nigeria, petitioned for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture. The court held that substantial evidence supported the BIA's determination that petitioner was ineligible for asylum or other relief because he failed to demonstrate past persecution on account of his Christian religion or a well founded fear of future persecution if he were to return to Nigeria. Accordingly, the court denied the petition for review.

Defendant, manager of a kosher meatpacking company, was convicted of 86 counts of bank, wire, and mail fraud; making false statements to a bank; money laundering; and violations of an order of the Secretary of Agriculture. Defendant appealed his convictions and sentence. The court held that there was no evidence in the record that the district court's decision to remain on the case prejudiced defendant's verdict and concluded that the district court did not err by denying defendant's motion for a new trial. The court also held that the district court did not abuse its discretion in trying the financial charges first where the district court's order was a practical solution given the nature and number of the charges. The court further held that, with the exception of one count of false statements to a bank which was premised solely on violations of immigration law, any error on this evidence would have been harmless because it would have had no effect on the verdict. Therefore, the district court did not abuse its wide discretion in excluding evidence. The court finally held that, because defendant's offense was falsely stating that the company was in compliance with its laws, the court did not commit plain error with its instruction on harboring illegal aliens; defendant's money laundering convictions were lawful and did not merge with any other of his crimes; there was no error in the district court's loss calculation; and the district court did not abuse its considerable discretion in imposing a 324 month sentence. Accordingly, the court affirmed the judgment of the district court.

Petitioner, a native and citizen of Guatemala, petitioned for review of a decision of the BIA dismissing his appeal from an IJ's order removing him from the United States. Petitioner asserted that the evidence of his alienage was obtained in violation of his rights under the Fourth and Fifth Amendments and the evidence should have been suppressed or, at a minimum, he should have been afforded an evidentiary hearing on his motion to suppress evidence. The court held that the exclusionary rule generally did not apply to a civil deportation proceeding; petitioner's case for exclusion of evidence was even weaker where the alleged misconduct was committed by an agent of a separate sovereign; and, in any event, the court agreed with the BIA that the evidence of alleged "egregious violations" here was insufficient to warrant a hearing on petitioner's motion to suppress. The court also held that there was no need for a hearing or exclusion of evidence because the record contained no support for petitioner's belief that the traffic stop and arrest were racially motivated and because the DHS, in any event, justified the officer's actions. The court further held that the statements petitioner made to police and ICE agents were voluntary and admissible where he did not submit evidence of "promises, prolonged interrogation, interference with his right to counsel or other indicia of coercion or duress" that might suggest that his statements were involuntary. Therefore, the petition for review was denied.

Petitioners, natives and citizens of India, petitioned for review of an order of the BIA affirming the IJ's denial of their motions to reopen and rescind their in absentia orders of deportation to India. Petitioners contended that they did not receive proper notice of the deportation hearing, which the IJ held in absentia. The court held that the IJ and BIA reasonably concluded that petitioners failed to rebut the strong presumption of effective service because they did not provide documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to their failure to provide an address where they could receive mail. Therefore, the court concluded that the government satisfied its burden of showing delivery by sending the notices of deportation proceedings by certified mail.

Petitioner, native and citizen of Mexico, petitioned for review of the BIA's upholding of the denial of his application for deferral or removal under the Convention Against Torture (CAT). Petitioner contended that the BIA evaluated his testimony under an improper legal standard, failed to correct errors by the IJ regarding the scope of the CAT, and violated his rights under the Due Process Clause of the Fifth Amendment. The court held that it lacked jurisdiction to review the BIA's factual determination where the BIA did not err in its treatment of petitioner's testimony and the BIA determined that even assuming petitioner's testimony was honest or credible, his inability to provide important details and key dates made the testimony unpersuasive in establishing a likelihood of torture. Therefore, in light of 8 U.S.C. 1229(a)(c)(4)(B), this approach did not constitute an error of law. The court also held that the BIA applied the correct legal standard in dismissing petitioner's administrative appeal and that any error by the IJ was rendered harmless by the BIA's application of a correct legal standard. The court further held that petitioner had not established a violation of his rights under the Due Process Clause. Therefore, the petition for review was denied.