Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA dismissing an appeal from an order of removal to Mexico. Despite petitioner's testimony to the contrary, an IJ found that petitioner was inadmissible because the inspectors at the border inspection station had reason to believe that petitioner was knowingly involved in drug trafficking. The BIA dismissed the appeal because substantial evidence supported the finding that an immigration officer had the necessary "reason to believe." The court granted the petition for a new hearing because the IJ misunderstood the relevant legal standard and in the circumstances, the court held that it was appropriate to remand for further proceedings to evaluate the credibility of petitioner's testimony that he did not know he was transporting marijuana, and the effect of the determination on the question of whether the IJ or BIA had "reason to believe" in light of all the evidence placed before the IJ during the course of the proceedings.

Petitioner, a native and citizen of Guatemala, was convicted twice for second-degree commercial burglary when he was arrested for walking out of a supermarket with unpaid items on two separate occasions. As a result, the BIA found him removable as an alien convicted of an aggravated felony and also as an alien convicted of two crimes involving moral turpitude (CIMTs). Petitioner petitioned for review, challenging the determinations that the prior convictions were grounds for removal. The court held that the BIA erred in holding that petitioner's convictions were generic attempted theft offenses where simply entering a commercial building was not in itself "a substantial step" supporting attempted theft liability. The court also held that the BIA erred in concluding that the convictions qualified as CIMTs, either because it misapprehended the elements of the crime of conviction or because it misread caselaw. Therefore, the court granted the petition for review and vacated the order of removal.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner argued on appeal that he acted as a whistleblower against government corruption and that the BIA erred in denying his claims for asylum, withholding of removal, and relief under the CAT. The court held that the BIA erroneously denied asylum and withholding of removal based on its conclusion that petitioner failed to establish a nexus to political activity. Therefore, the court granted the petition for review and remanded to the BIA for consideration of whether the government had met its burden to rebut the presumption that petition had a well-founded fear of future persecution on the basis of his whistleblowing activities. The court also held that the BIA improperly placed the burden on petitioner to show that he could not relocate within Mexico and failed to apply the presumption of a nationwide threat. Therefore, the court vacated the BIA's decision regarding the CAT relief and remanded for the agency to determine whether the government met its burden.

Defendant appealed from his conviction and sentence for reentry after deportation. Defendant contended that his deportation was invalid because the IJ failed to advise him of his eligibility for voluntary departure. The government claimed that the court need not reach that question because defendant waived his right to appeal. The court held that appellate waiver, negotiated by the district court at sentencing in exchange for a reduced sentence, was invalid and unenforceable. In a memorandum disposition filed contemporaneously with the opinion, the court held that the IJ failed to adequately advise defendant of his ability to apply for voluntary departure, and the court remanded for the district court to determine whether defendant was prejudiced by that failure.

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision to affirm the IJ's order of removal pursuant to 8 U.S.C. 1227(a)(2)(A)(ii) where petitioner was an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for passing a bad check with intent to defraud and his 2004 conviction for possession of 15 or more access devices with intent to defraud. The court held that it lacked jurisdiction over the petition for review where petitioner was convicted of two crimes involving moral turpitude, for which each sentence of a year or more could be imposed, and which did not arise out of a common criminal scheme; and where the IJ's denial of the cancellation request was a discretionary decision as to which petitioner had not raised a colorable legal or constitutional claim. Accordingly, the court denied the petition for review.

Petitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the BIA's denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.

Petitioner, who came to the United States from Armenia, petitioned for review of the BIA's decision that she failed to satisfy her burden of proving eligibility for asylum and withholding of removal and the BIA's decision that petitioner also failed to satisfy her burden of proving eligibility for protection under the Convention Against Torture (CAT). At issue was whether the whistleblowing doctrine extended to petitioner who faced retaliation from a notorious criminal who was protected by corrupt government officials. The court held that the record compelled the conclusion that petitioner expressed a political opinion in her unsuccessful attempts to have the notorious criminal prosecuted and that the record compelled a finding that in his threats and attacks on petitioner and her family, the notorious criminal was motivated, in part, by the knowledge that she was exposing his corrupt ties to law enforcement agencies. Therefore, the court applied the whistleblowing doctrine and granted the petition as to the BIA's denial of her claims for asylum and withholding of removal. The court denied, however, the petition to the extent petitioner sought to remand for adequate consideration of her CAT claim where the BIA concluded that the record did not show a likelihood that petitioner would face torture upon returning to Armenia.

Petitioner, a native of the Philippines, petitioned for review of an order of the BIA directing his removal, as well as the BIA's order denying reconsideration. At issue was whether the IJ erred in finding him removable, whether the IJ erred in finding him ineligible for withholding of removal, and whether the IJ violated his due process rights. As a preliminary matter, the court held that petitioner's notice of appeal gave the BIA an adequate opportunity to pass on the arguments he presented. The court also held that the government satisfied its burden of proving removability where petitioner was convicted of a controlled substance offense. The court held, however, that petitioner failed to carry his burden of proving that he was entitled to relief from removal where he failed to demonstrate persecution on a protected ground or that the IJ violated his due process rights where petitioner failed to demonstrate prejudice. Accordingly, the petition for review was denied.

Petitioner, a native and citizen of Mexico, challenged a decision of the BIA denying him cancellation of removal and voluntary departure. At issue was whether the BIA erred in determining that petitioner was ineligible for cancellation of removal because his convictions for carrying a concealed weapon under California Penal Code 12025(a) did not constitute a removable firearms offense under 8 U.S.C. 1227(a)(2)(C). Also at issue was whether the BIA erred in denying petitioner voluntary departure because the denial was based on his criminal conviction under section 12025(a) and that conviction did not render him ineligible for voluntary departure. The court held that a conviction under section 12025(a) was categorically a "firearms offense" under section 1227(a)(2)(C) and therefore, the BIA properly held that petitioner was statutorily ineligible for cancellation of removal. The court dismissed petitioner's second ground for appeal because it found that the BIA's denial of voluntary departure was a matter of discretion and the court lacked jurisdiction to review such a discretionary decision. Accordingly, the court denied in part and dismissed in part.

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 held that the BIA correctly concluded that petitioner returned to the United States after having been "unlawfully present in the United States for an aggregate period of more than 1 year," which rendered her inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(I). The court rejected petitioner's argument that the section 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1101. The court further held that the BIA correctly concluded that petitioner did not satisfy the requirements of 8 U.S.C. 1182(a)(9)(C)(ii)'s exception to inadmissibility and held that in order to be eligible under this section, an alien must remain outside the United States for more than ten years before returning to the United States. Accordingly, the court denied the petition for review.