Justia Immigration Law Opinion Summaries

Petitioner, an Indian citizen and former resident of the nation's Punjab state, petitioned for review of the BIA's decision that his asylum application was time-barred because he failed to provide corroboration of his date of entry under 8 U.S.C. 1158(a)(2)(B). At issue was whether the BIA erred in imposing the corroboration provision pursuant to section 1158(b)(1)(B)(ii) on petitioner's showing of timely filing under section 1158(a)(2)(B). The court held that, under basic principles of statutory construction, the BIA improperly imported the corroboration requirement of 8 U.S.C. 1158(a)(2)(B)(ii), which governed demonstration of refugee status, into section 1158(a)(2)(B), which required applications to be timely filed. The court also held that section 1158(b)(1)(B)(ii) applied to the merits of an asylum claim, not the one-year filing deadline for asylum applications and that the one-year provision was governed by section 1158(a)(2)(B), which was silent on the issue of corroboration. The court further held that the one-year bar determination was not reviewable absent a legal or constitutional question. Accordingly, the court granted the petition for review and remanded the matter to the BIA.

Husband and wife appealed the BIA's denial of wife's motion to reopen her case to consider her application for adjustment of status after the IJ made an express adverse creditability finding against husband and wife and denied their claims for relief on that basis. At issue was whether lying to the immigration authorities was a sufficient basis for an adverse creditability finding and whether a lie uttered by one spouse could fairly be attributed to the other. The court affirmed the BIA's denial of wife's motion and held that discovering husband and wife knowingly received the government for years was a perfectly good reason not to believe their testimony. The court also held that it did not matter which spouse told the lie, and which one tacitly assented, where the IJ reasonably concluded that husband and wife were executing a common plan to deceive the asylum officer and reasonably believed both of them.

Defendant appealed from the sentence imposed by the district court following his guilty plea to one count of attempted reentry after deportation. At issue was whether the district court committed reversible error by applying a 16 level increase to the offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). The court held that defendant failed to satisfy the applicable plain error standard of review with respect to the district court's determination that he was previously convicted of a "crime of violence," namely, "statutory rape." The court also held that the district court did not otherwise abuse its discretion or impose a sentence that was either procedurally erroneous or substantively unreasonable. Accordingly, the court affirmed the sentence entered by the district court where the district court provided a thorough explanation for its determination, appropriately responded to the various arguments made by defense, did not give undue weight to the Guidelines, and reasonably took into account defendant's prior record as well as several mitigating factors.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that petitioner met the seven years of continuous residence requirement by finding that she was admitted in any status on the day she became the beneficiary of an approved I-130, Petition for Alien Relative. Instead, the BIA determined than an alien with an approved Form I-130 and a pending adjustment of status application only had a pending application of admission and was therefore, not admitted in any status. Therefore, the BIA concluded that petitioner did not meet the seven years of continuous residence requirement for cancellation of removal. The court held that an approved Form I-130 did not confer admission status on an undocumented alien for purposes of showing seven years of continuous residence under 28 U.S.C. 1229b(a)(2). The court also held that an approved Form I-130 petition merely provided an undocumented alien permission to apply for adjustment of status. Accordingly, the petition for review was denied.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that receiving an employment authorization document was comparable to being a participant in the Family Unity Program. Instead, the BIA found petitioner ineligible for cancellation of removal because he had not met his seven years of continuous residence, which it determined began on the date his application for adjustment of status was approved. The court held that the grant of employment authorization, pending the approval of adjustment of status to that of an LPR under 8 U.S.C. 1255 did not confer admission status as an undocumented alien for purposes of calculating seven years of continuous residence under 8 U.S.C 1229(a)(2). The court also held that employment authorization, under 8 C.F.R. 274a.12(c), merely allowed such alien the right to work while his or her application for adjustment was being adjudicated. Accordingly, the petition for review was denied.

Petitioner, a native of Guatemala, filed a petition of review of the Department of Homeland Security's decision to reinstate an immigration judge's 1989 order of deportation pursuant to post-Illegal Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1231(a)(5), reinstatement provision 241(a)(5). At issue was whether the reinstatement provision, enacted as part of the IIRIRA, applied retroactively to a petitioner who applied for discretionary relief prior to IIRIRA's effective date. The court held that the application of section 241(a)(5) was permissibly retroactive when it applied to such petitioners in light of Landgraf v. USI Films Prod. Accordingly, the court granted the petition for review in part and remanded for further proceedings. Because the court lacked jurisdiction to review agency determinations of eligibility for special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), however, the court denied the petition in part.

Petitioner appealed the Board of Immigration Appeals' ("BIA") determination that it did not have jurisdiction to accept an appeal filed one day late due to a post office error. At issue was whether the 30 day deadline for filing a notice of appeal with the BIA was jurisdictional. The court held that the 30 day deadline must be read as a claim-processing rule that was not jurisdictional. The court also held that, since the BIA erred as a matter of law in concluding that it lacked jurisdiction, the court must remand to the BIA to permit it to fully reconsider whether, under the circumstances presented, it would hear the appeal from the immigration judge's decision in this case. The court also concluded that all the BIA needed to do to avoid subjecting aliens to the risk of losing their appeals due to bad weather or delivery service error was to allow people to send notices of appeal over the internet.

Defendants, both Mexican citizens, were arrested and charged with illegal entry into the United States in violation of 8 U.S.C. 1325. Defendants appeared at a group plea hearing in the United States District Court for the District of Arizona as part of the district's Operation Streamline. At issue was whether the taking of guilty pleas at a large group plea hearing violated the Fifth Amendment right to due process where defendants contend that the record did not disclose that they voluntarily and understandably pleaded guilty. The court concluded that, because they were not faced with a silent record, defendants must demonstrate that any error in the proceeding or in the transcript was plain and affected their substantial rights. Namely, they must show a reasonable probability that, but for the error, they would not have entered their pleas. The court also held that, because defendants did not even suggest, much less show, that they would not have pleaded guilty if the plea hearing had been more individualized, it could not conclude that there was any plain error. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. At issue was whether substantial evidence supported the BIA's determination that petitioner failed to show that he was persecuted on account of his membership in a particular social group. The court held that substantial evidence supported the BIA's determination where, although petitioner was not precluded from demonstrating membership in a particular social group as a former military officer, he failed to establish that any persecution was or will be on account of his membership in such a group.

Petitioner, a native and citizen of Vietnam, petitioned for review of the Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's order of removal. At issue was whether petitioner's state misdemeanor conviction for rendering criminal assistance was a crime related to obstruction of justice and thus constituted an aggravated felony under the Immigration and Nationality Act ("INA"), 8 U.S.C. 101(a)(43)(S). The court granted the petition for review and held that petitioner's conviction lacked the necessary actus reus and was not categorically an obstruction of justice according to the definition provided in In Re Espinoza-Gonzalez. The court also held that nothing in the record of petitioner's conviction established that he provided assistance to an individual who was subject to a pending judicial proceeding or ongoing police investigation and therefore, his conviction did not qualify as obstruction of justice under the modified categorical approach.