Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA determining that petitioner was ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1255(i), because she was inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i), and was not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. 1182(a)(9)(C)(ii). The court denied the petition and held that the BIA correctly concluded that petitioner returned to the United States after being "ordered removed under...any...provision of law, and...enter[ed] or attempt[ed] to reenter the United States without being admitted," which rendered her inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(II). The BIA also correctly concluded that petitioner did not satisfy the requirements of 8 U.S.C. 1182(a)(9)(C)(ii)'s exception to inadmissibility. The court held that in order to be eligible under 8 U.S.C. 1182(a)(9)(C)(ii), an alien must register outside the United States for more than ten years before returning to the United States.

Petitioner, a native and citizen of Nicaragua, petitioned for review of an order of the BIA dismissing his appeal of an IJ's order of removal. The IJ determined that, under 8 C.F.R. 245.13(k)(1), petitioner had abandoned his pending application for adjustment of status under Section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 8 U.S.C. 1255, as of the moment he drove from the United States into Mexico, even if his unplanned departure was not desired and he immediately turned around and attempted to return. The court concluded that deeming petitioner's NACARA application abandoned was contrary to the regulation where petitioner's departure was not "desired," and ordering removal conflicted with NACARA itself. Therefore, the court granted the petition and remanded for further proceedings.

Defendant, a citizen of Mexico and an alien, pleaded guilty pursuant to a plea agreement to violating 8 U.S.C. 1326(a) and 1326(b)(2) because he was found in the United States after having been removed or deported from the United States and without permission to reapply for admission following removal or deportation. Defendant timely appealed his sentence of 21 months' imprisonment where the district court held that a citation for a traffic violation was the same as an arrest under U.S.S.G. 4A1.2(a)(2). The court concluded that nothing in the record suggested that defendant was ever formally arrested for driving with a suspended license. Defendant was not told he was "under arrest," he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that defendant had been "arrested" for purposes of the Sentencing Guidelines. Therefore, defendant's sentence was vacated and the case remanded for resentencing.

Defendant appealed from an oral order denying his request for appointment of new counsel and permitting him to proceed pro se. Defendant was charged in a superseding indictment with one count of being a previously deported alien found in the United States and was currently incarcerated and waiting trial. The court held that it lacked jurisdiction because the collateral order doctrine barred the immediate appeal of an order denying a request to appoint replacement counsel. Because it was clear that the order denying appointment of replacement counsel could be reviewed effectively after trial, the court declined to treat the appeal as a petition for mandamus.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision by the BIA affirming a decision of the IJ to deny petitioner's application for withholding of removal and withholding and deferral of removal under the Convention Against Torture (CAT). The court held that a conviction for residential burglary under California Penal Code 459 constituted a crime of violence and was a "particularly serious crime." Therefore, petitioner was ineligible for withholding of removal. The court also held that, although gang members beat up petitioner and his cousin in 2005, there was no evidence that those gang members knew petitioner or his cousin, nor that the gang members had any reason to hurt them. Further, there was no evidence that the gang members were looking for petitioner today. Therefore, petitioner failed to prove its was more likely than not that he would be tortured upon his return under the CAT. Accordingly, the petition was denied.

Petitioner, a native and citizen of Mexico, petitioned for review of an order of the BIA upholding the IJ's denial of registry, cancellation of removal, and voluntary departure on grounds of alleged constitutional violations and that as a matter of law the administrative record could not support a finding that he lacked good moral character. The court held that the court lacked jurisdiction to review some of petitioner's claims and where the court did possess jurisdiction, petitioner's claims failed on the merits. Therefore, the court denied the petition for review in part and dismissed in part.

Petitioner petitioned for review of the BIA's dismissal of his appeal of an IJ's decision denying his application for cancellation of removal. The BIA concluded that petitioner's 1992 parole as a Special Immigrant Juvenile did not qualify as an admission "in any status" as required by 8 U.S.C. 1229b(a)(2) and, as a result, found petitioner statutorily ineligible for cancellation of removal because he did not establish seven years of continuous physical presence after having been "admitted in any status." The court disagreed and held that parole as a Special Immigrant Juvenile under 8 U.S.C. 1255(h) qualified as an admission "in any status" for the purposes of section 1229b(a)(2). Therefore, the court granted the petition and remanded to the BIA for further proceedings.

This case arose when plaintiffs voluntarily filed applications for adjustment of status in reliance on the Ninth Circuit's opinion in Perez-Gonzalez v. Ashcroft, wherein the court purportedly held that individuals like plaintiffs were eligible for relief. The court held that plaintiffs' request for relief from the retroactive application of Duran Gonzales II to their applications for adjustment of status must be denied because (1) Duran Gonzales II itself applied its rulings to plaintiffs, thus giving the opinion retroactive application; and (2) another three-judge panel had reaffirmed that Duran Gonzales II applied retroactively and that, accordingly, plaintiffs were ineligible to receive I-212 waivers. Therefore, the district court's orders denying plaintiffs' motions to amend class certification and to file an amended complaint, and dismissing the action, were affirmed.

Petitioner, a native and citizen of Ethiopia, petitioned for review of the BIA's decision affirming the IJ's conclusion that petitioner was statutorily ineligible for asylum and withholding of removal because petitioner's armed robbery conviction was "particularly serious." Petitioner had complained to the BIA that the IJ's decision failed to take into consideration several facts. However, all of the purported omissions related to petitioner's claim of a well-founded fear of persecution. The court concluded that the only way to give the BIA the opportunity to correct its own errors was to raise the "particularly serious" issue before the BIA, which defendant simply failed to do. Therefore, the court held that because petitioner did not exhaust the issue before the BIA, the court had no jurisdiction to consider whether or not his crime was "particularly serious." Accordingly, the petition was dismissed.

Petitioner, a native and citizen of Peru, sought review of a decision by the BIA denying his motion to reopen on the ground that petitioner had failed to voluntarily depart. The court held that where, as here, a period of voluntary departure technically expired on a weekend or holiday, and an immigrant filed a motion that would affect his request for voluntary departure on the next business day, such period legally expired on that next business day. Accordingly, the court granted the petition for review and remanded to the BIA for adjudication of petitioner's motion to reopen on the merits.