Justia Immigration Law Opinion Summaries

Defendant, a native and citizen of Mexico, challenged his conviction for illegal reentry after removal on the ground that the removal order on which the conviction was based was invalid. The court held that in light of the "unique circumstances" of defendant's case, it was not plausible that the IJ would have granted him permission to withdraw his application for admission. Therefore, defendant could not show that he was prejudiced by the IJ's alleged error and could not show that the entry of the February 27, 2006 removal order was "fundamentally unfair" as required by 8 U.S.C. 1326(d)(3). Accordingly, defendant's collateral attack on the removal order failed and the court upheld the district court's ruling.

This case involved the family-sponsored immigration process where appellants were legal permanent residents of the United States and their children were no longer under the age of 21. At issue was whether appellants' children were entitled to any relief under the Child Status Protection Act (CSPA), 8 U.S.C. 1153(h), which was enacted to help keep families together by expediting the immigration process for certain aged-out aliens. The court held that because it agreed that the BIA's interpretation of section 1153(h) warranted deference, the court affirmed the district court's grant of summary judgment in favor of appellees. Therefore, the court held that appellants' children were not among the aged-out aliens entitled to relief under section 1153(h).

Petitioner, a native and citizen of China, petitioned for review of a decision of the BIA affirming the IJ's decision denying asylum in the exercise of its discretion. The BIA's decision balanced the likelihood of persecution and its severity against the negative factors in the record and agreed with the IJ that petitioner's method of entry into the United States - being concealed in a metal box that was welded to the bottom of a car and driven across the border in the desert heat - was so dangerous that asylum should be denied. Petitioner appealed the BIA's decision related to the denial of asylum. After petitioner filed his appeal with the court, DHS successfully completed background checks and the IJ signed and filed a one-page standardized form confirming that withholding of removal had been granted. The form also indicated that appeal from the order was waived. The court held that it had jurisdiction to review the BIA's final order denying relief despite the fact that the BIA remanded pursuant to 8 C.F.R. 1003.1(d)(6). The court held that because the BIA properly considered the totality of the circumstances and weighed the risk of persecution against the egregious nature of petitioner's entry into the United States, the court denied the petition for review.

This case stemmed from plaintiff's detention as an undocumented immigrant where plaintiff claimed that various authorities deprived him of medication for his schizophrenia and that the detention resulted from the insufficient training of public defenders regarding the immigration consequences of criminal pleas. At issue was whether plaintiff properly exhausted his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-80, where the federal agencies denied plaintiff's administrative tort claims before he amended his complaint in an ongoing civil action to name the United States as a party and allege a new cause of action under the FTCA. The court held that the claims were properly exhausted but affirmed the district court's dismissal on the alternative ground that plaintiff stated FTCA claims that fell outside the FTCA's waiver of sovereign immunity. The court also affirmed the grant of summary judgment on plaintiff's ineffective assistance of counsel claims, premised on 42 U.S.C. 1983 and Monell v. Department of Social Services.

Petitioner sought review of a decision of the BIA affirming the IJ's finding of removeability and denial of his application for asylum and withholding of removal. The BIA affirmed the IJ's conclusion that petitioner, who lived for approximately six continuous years with his parents in Iran, abandoned his lawful permanent resident (LPR) status. The BIA also affirmed the IJ's determination that petitioner failed to meet his burden of proof as to eligibility for asylum and withholding of removal. The court held that substantial evidence did not support the BIA's determination that petitioner abandoned his LPR status where the government had not met its burden with respect to petitioner's abandonment by imputation and where there was no evidence that petitioner himself abandoned his LPR status. Therefore, petitioner remained an LPR and was not removable.

Defendant entered a conditional guilty plea to one count of attempted entry after deportation in violation of 8 U.S.C. 1326(a) and (b). On appeal, defendant claimed that the Immigration and Naturalization Act (INA) precluded any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a section 1326 action; under United States v. Mendoza-Lopez, some meaningful review of the order was constitutionally required before the order could be used as a predicate to a criminal proceeding; and therefore, because the statue precluded review, expedited removal orders could not be used as predicates in section 1326 prosecutions. The court held that defendant was entitled to judicial review of the predicate expedited removal orders underlying his section 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. Therefore, the court affirmed the district court's denial of defendant's motion to dismiss his indictment and the subsequent conviction and sentence.

Appellant appealed his conviction on various counts related to transporting and harboring illegal aliens. Appellant challenged the district court's decision to admit into evidence videotaped deposition testimony of detained material witnesses pursuant to 18 U.S.C. 3144. For the first time on appeal, defendant argued that the statute was facially invalid and that the court erred by permitting the government to admit the depositions into evidence at trial without any showing of a witness's unavailability. Appellant also argued that the magistrate judge failed to comply with the statue and that certain procedural requirements of Federal Rule of Criminal Procedure 15 and General Order 05-34 of the United States District Court for the District of Arizona were unmet. The court held that the bulk of appellant's claims were meritless. The court did agree that the district court plainly erred by permitting the government to introduce the now-contested depositions into evidence without a showing of unavailability. The court, however, declined to accord appellant any relief because the court was not persuaded that "the error seriously affect[ed] the fairness, integrity, or public reputation of [the] proceedings." Therefore, the court affirmed the district court's judgment of conviction.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA ordering him removed to his native country. The BIA affirmed the IJ's ruling that petitioner was ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT) because he had been "convicted of a particularly serious crime," driving under the influence (DUI). The BIA also ruled that petitioner was ineligible for deferral of removal under the CAT because he failed to prove a likelihood of future torture. The court held that it had jurisdiction to review the BIA's determination that an alien had been convicted of a "particularly serious crime." The court also held that driving under the influence was not statutorily defined as an aggravated felony did not preclude the BIA from determining that it could be a particularly serious crime. The court further held that the BIA, as the Attorney General's delegate, was permitted in this case to determine whether petitioner's DUI offenses were particularly serious for purposes of asylum eligibility. The court held, however, that the BIA's explanation for its decision was so ambiguous that the court could not conduct meaningful judicial review and therefore, remanded to the BIA for a clear explanation.

Petitioner, a native and citizen of China, petitioned for review of the BIA's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that the IJ's adverse credibility determination was impermissibly based on mischaracterizations of petitioner's testimony as well as inconsistencies that, considering the totality of the circumstances, were trivial. The court held, however, that petitioner was given the proper notice and opportunity to respond to the IJ's request for corroborative evidence. Because petitioner failed to provide that evidence and did not provide any explanation for his failure to do so, and because the IJ was not compelled to conclude that petitioner met his burden of proof without that evidence, the court denied the petition.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT) but remanding the case to the IJ for voluntary departure proceedings. At issue was whether the BIA's decision was a final order and whether the Supreme Court's decision in Dada v. Mukasey, or the promulgation of a new voluntary departure regulation that became effective on January 20, 2009, deprived the court of jurisdiction. The court held that its precedent compelled the conclusion that the BIA's decision was a final order of removal. The court also held that because neither Dada nor the new voluntary departure regulation undermined the court's precedent, the court had jurisdiction over the petition for review and could review the merits of the petition.