Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Venezuela, petitioned for review of a BIA decision affirming an IJ's denial of her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner also sought review of the BIA's denial of her petition to reopen her case based on additional evidence. The court held that the record supported the BIA's determination that petitioner was not specifically targeted by snipers on the basis of a statutorily protected ground; petitioner was not singled out at vehicle checkpoints; and the police officer's verbal harassment in the park did not rise to the level of persecution that would qualify her for asylum. The court also held that petitioner did not meet her burden of proving a reasonable fear of future persecution. The court further held that petitioner consistently indicated in her applications that she did not fear being tortured in Venezuela and for the same reasons that she failed to prove the likelihood of persecution for purposes of asylum, her petition for relief under the CAT also failed. The court finally held that the BIA was within its discretion in determining that the new evidence of changed circumstances did not warrant reopening petitioner's case where the general report of alleged violence based on sexual orientation that petitioner submitted did not demonstrate that she was singled out and persecuted. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of El Salvador, petitioned for review of an order of the BIA that affirmed an IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that it lacked jurisdiction to review the BIA's determination that petitioner's asylum application was barred as untimely filed. The court also held that substantial evidence supported the BIA's determinations regarding withholding of removal and CAT relief. Therefore, the petition for review was denied.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying his application for cancellation of removal. After a merits hearing, the IJ found that petitioner satisfied the requirements to cancel removal proceedings but the BIA vacated the decision, determining that the IJ applied the wrong legal standard. Petitioner contended that the BIA incorrectly ruled that the IJ applied the wrong legal standard in determining "exceptional and extremely unusual hardship" and that the BIA applied the incorrect legal standard by failing to adequately consider certain factors that the BIA had considered relevant in other decisions. As a threshold matter, the court held that it had jurisdiction to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the "predicate legal question whether the [BIA] properly applied the law to the facts in determining an individual's eligibility to be considered for the relief." The court held that the issue of whether the IJ applied the correct legal standard was irrelevant where the IJ's findings were reviewable only to the extent that they had been adopted by the BIA. The court also held that because petitioner did not challenge the legal standard applied by the BIA, he did not raise an issue within the court's jurisdiction. Accordingly, the petition was denied.

Defendant pleaded guilty to one count of being an alien found in the United States following a prior removal and sentenced to 77 months imprisonment. At issue was whether the district court procedurally erred in calculating defendant's criminal history under the Guidelines by erroneously finding that the date his present offense commenced was October 1, 2002. Also at issue was whether the district court imposed a substantively unreasonable sentence. The court held that the district court did not clearly err where the unrebutted evidence reasonably supported a finding that defendant last reentered the United States on October 1, 2002 and that he remained in the United States until he was apprehended on January 7, 2010. The court also held that the district court did not impose a substantively unreasonable sentence where the record reflected that the district court considered all the 18 U.S.C. 3553(a) factors; noted that defendant's "serious criminal history" and the need for deterrence justified the sentence; and addressed certain arguments made by defendant. Accordingly, the judgment of the district court was affirmed.

Defendant was convicted of illegal reentry by an alien who was previously deported and sentenced to 70 months imprisonment. Defendant appealed the district court's refusal to allow him to present a defense of necessity and the district court's denial of his purported request for a continuance. The court held that the district court was correct to rule as a matter of law that defendant was not entitled to present a necessity defense where defendant failed to make a prima facie showing of an imminent threat of harm and that he lacked a reasonable, legal alternative to illegally reentering the United States. The court also held that the district court's conduct was not egregious or fundamentally unfair where defendant did not expressly request a continuance and relied on his comment on the morning of trial to suggest that the district court was negligent in not allowing him time to prepare the witnesses. Accordingly, the judgment of the district court was affirmed.

Petitioner, a citizen of Mexico, contended that section 212(a)(6)(C)(ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101, which rendered inadmissible any alien who made a false claim to United States citizenship, should not apply to her because, at the time she made the misrepresentation, she was an unaccompanied minor. The IJ accepted petitioner's argument and granted her adjustment of status. The BIA reversed, pointing to the lack of authority for the IJ's actions yet refusing to enunciate the controlling standard. Accordingly, the court held that it could not discern whether the BIA rejected petitioner's argument on a wholesale basis, refusing to exempt from the statute any minors no matter what the age, or whether the BIA's analysis was more nuanced and hinged on certain facts that warranted the application of the statute to petitioner's case. Therefore, the court remanded the matter to the BIA with instructions to clarify the standard it used in applying section 212(a)(6)(C)(ii) to unaccompanied minors and to articulate the reasons petitioner deserved no relief under that standard.

Petitioner, a citizen of the Philippines, filed a petition for review of the BIA's decision affirming the IJ's final order of removal, concluding that petitioner was barred from seeking adjustment of status under 8 U.S.C. 1255(d). At issue was the relationship between 8 U.S.C. 1255(d) and (i) where section 1255 prescribed the terms upon which various classes of aliens could adjust their status to that of a lawful permanent resident ("LPR"). The court held that the provisions in subsection 1255(d) barred petitioner as a K-1 visa holder from adjusting her status on any basis other than her marriage to the U.S. citizen who petitioned on her behalf and that these provisions were consistent with the carefully crafted scheme that Congress created for the purpose of avoiding marriage fraud. The court also held that petitioner's due process rights were not violated where she was not entitled to a further hearing after she conceded removability and was ineligible for adjustment of status. Accordingly, the court denied the petition for review.

Petitioner, a native of Guatemala, appealed from a final order of removal by the Board of Immigration Appeals ("BIA") seeking review of the BIA's decision to reverse itself by granting the government's motion for reconsideration and vacating the Board's prior decision that had allowed petitioner to reopen his case. At issue was the BIA's decision to rescind its sua sponte grant of petitioner's untimely motion to reopen on the basis of the departure bar. The court remanded and held that the BIA should determine whether petitioner's motion to reopen was timely filed pursuant to 8 U.S.C. 1229(c)(7)(C) under the doctrine of equitable tolling, given his claim of ineffective assistance of counsel, and if so, rule on the motion, whether on the basis of the departure or other grounds.

Appellant appealed a conviction of one count of making a materially false statement and one count of making a materially false statement in an immigration matter. At issue was whether appellant's rights were violated under the Sixth Amendment's Confrontation Clause and whether the evidence was sufficient to convict him. The court held that appellant's Confrontation Clause rights were violated where he did not have the opportunity to be confronted by witnesses against him when a Bosnian judgment of conviction was admitted as testimonial evidence to demonstrate that appellant had lied when he said that he had not killed anyone. The court also held that there was sufficient evidence to support a finding that appellant falsely denied that he had killed anyone before coming to the United States.