Justia Immigration Law Opinion Summaries

Petitioner sought review of the BIA's decision to vacate the withholding of removal relief granted to him by the IJ. The BIA concluded that petitioner was not eligible for withholding of removal because his conviction for transportation of methamphetamine constituted a particularly serious crime. The court concluded that it had jurisdiction over the petition for review because petitioner raised a legal challenge to the BIA's ruling - whether the BIA engaged in impermissible factfinding. Here, the BIA completely accepted the factual findings made by the IJ and petitioner did not point to any fact found by the IJ that was ignored by the BIA or any fact found by the BIA that was not found by the IJ. The BIA specifically and explicitly stated that it applied the clear error standard and applied the Matter of Frentescu factors to the facts found by the IJ. Accordingly, the court concluded that the BIA did not engage in impermissible factfinding. View "Perez-Palafox v. Holder" on Justia Law

Petitioner sought review of the BIA's denial of his motion to reopen under the Convention Against Torture (CAT). The court rejected petitioner's principal argument that the regulations governing motions to reopen at 8 C.F.R. 1003.2(c) did not apply to motions that arise under the CAT, insofar as the language of these regulations makes no reference to either the CAT or to deferral or removal. Accordingly, the court held that the procedural requirements specified in 8 C.F.R. 1003.2(c) applied to CAT claims. The BIA did not abuse its discretion in concluding that the evidence of "mistreatment and abuse" presented by petitioner did not constitute evidence of "worsening" country conditions, which meant that this evidence was insufficient to show that the "changed circumstances" exception to the bar on untimely motions to reopen applied to this case. The court lacked jurisdiction to review the BIA's decision not to invoke its sua sponte authority to reopen proceedings. Accordingly, the court denied in part and dismissed in part. View "Go v. Holder" on Justia Law

While on the waiting list but after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1231(a)(5), DHS issued a reinstatement of petitioner's removal order. Petitioner sought review of this reinstatement, arguing that the application of the reinstatement statute in the Act was impermissibly retroactive with respect to her, as her Form I-130 was filed prior to the Act's effective date. The court agreed with the Fifth and Seventh Circuits and held that the mere filing and approval of a Form I-130 created no vested right to apply for adjustment of status. In this case, petitioner's brother filed an I-130 on her behalf and the government placed her on the waiting list. She did not apply for adjustment of status. She took no pre-enactment action sufficient to create a vested right to apply for adjustment, and therefore the reinstatement provisions of the Act could be permissibly applied to her. Accordingly, the court denied the petition for review. View "Montoya v. Holder" on Justia Law

While petitioner, a native of Iran and citizen of Armenia, was appealing the BIA's removal order, he married a United States citizen. The BIA then affirmed the removal order and petitioner filed a timely motion to reopen, which the BIA denied. The court concluded that the BIA abused its discretion by improperly relying on a de facto DHS veto as dispositive of petitioner's motion to reopen; petitioner's affidavit was sufficient to make the prima facie showing required when the BIA considered a motion to reopen; had the BIA addressed the issue on the merits, it would have been an abuse of discretion to deny the motion; and if the BIA had indeed meant to address those merits, it did not fulfill its obligation to provide a reasoned explanation for its actions. Accordingly, the court granted the petition for review and remanded to the BIA for further proceedings. View "Tadevosyan v. Holder" on Justia Law

The government appealed the dismissal of defendant's indictment for unlawful reentry. Defendant had pleaded guilty to "conspiracy to commit the crime of burglary" in violation of Nev. Rev. Stat. 199.480.205.060(1) and was subsequently ordered removed as an undocumented alien convicted of an aggravated felony. Applying the methodology prescribed by the Supreme Court for defining generic offenses for categorical purposes, the generic federal definition of conspiracy, 8 U.S.C. 1101(a)(43)(U), conditioned conviction on performance of an overt act in pursuit of the conspiratorial objective. Because Nevada's conspiracy statute criminalized a broader range of conduct than the properly determined generic definition of conspiracy, defendant's conviction did not qualify as an aggravated felony. Accordingly, the court affirmed the district court's determination that defendant's prior removal order was constitutionally inadequate because she was denied her right to seek discretionary relief from removal. View "United States v. Garcia-Santana" on Justia Law

Petitioner sought review of the BIA's dismissal of his appeal from an IJ's entry of a final order of removal. In 1989, petitioner pleaded guilty to possession of cocaine with intent to distribute after police officers pulled over a truck in which petitioner was the driver and the sole occupant and where the truck contained 900 pounds of cocaine. The conviction was overturned on appeal because the officers lacked sufficient suspicion to make a traffic stop. As a general rule, a voluntary guilty plea to criminal charges was probative of evidence that the petitioner did, in fact, engage in the charged activity, even if the conviction was later overturned for a reason unrelated to voluntariness. The court concluded that the BIA did not violate due process or otherwise err in holding that petitioner was removable under 8 U.S.C. 1182(a)(2)(C)(i) where there was "reason to believe" that he "is or has been an illicit trafficker" in a controlled substance or knowingly has assisted others in trafficking. Accordingly, the court denied the petition for review. View "Chavez-Reyes v. Holder" on Justia Law

Petitioner, admitted to the United States on a B2 visitor visa, petitioned for review of the BIA's order dismissing her appeal, contending that the BIA erred in determining that the statutory language of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(h)("212(h) waiver"), excludes her from eligibility to apply for an inadmissibility waiver under section 212(h). The court concluded that the plain language of section 212(h) unambiguously demonstrated that petitioner's post-entry adjustment of status to an LPR after her admission to the United States as a visitor did not constitute an admission in the context of section 212(h). Only noncitizens who entered in the United States as LPRs are barred from eligibility to apply for the 212(h) waiver. Accordingly, petitioner was not barred from applying for the waiver and the court granted the petition for review. View "Negrete-Ramirez v. Holder, Jr." on Justia Law

Petitioner, a Canadian, was ordered removed when customs officials determined that he planned to work in the United States as a photographer/cameraman without documentation. At issue was whether a Canadian arriving at the border and subjected to expedited removal but never detained was entitled to habeas relief, under either the traditional habeas structure, 28 U.S.C. 2241, or the more limited regime applicable to expedited removal orders, 8 U.S.C. 1252(e)(2). The court concluded that it lacked jurisdiction to consider petitioner's claims under the traditional habeas statute because petitioner was never in custody. Determining that it had jurisdiction under the limited review provisions of section 1252(e)(2), the court held that petitioner was not entitled to relief because, as applied to the narrow facts of this case, section 1252(e)(2) did not permit the court to consider any further collateral damage. View "Smith v. U.S. Customs & Border Protection" on Justia Law

Petitioner, a citizen of China of Korean and Chinese descent, petitioned for review of the BIA's affirmance of the IJ's denial of petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). At issue was whether an IJ could use the maxim "falsus in uno, falsus in omnibus" (i.e. false in one thing, false in everything) to find that material inconsistencies in testimony regarding one claim supported an adverse credibility determination on another claim. The court denied the petition for review, holding that Ninth Circuit precedent permitted the BIA to use an adverse credibility finding on one claim to support an adverse finding on another claim in a pre-REAL ID Act case. View "Li v. Holder" on Justia Law

Petitioner, a citizen of Honduras, petitioned for review of the BIA's dismissal of his motion to reopen. The court concluded that petitioner was correct that the Board's place-of-filing rule was a procedural claims-processing rule, not a jurisdictional bar to the Board's authority to consider a motion to reopen. The originating statute, 8 U.S.C. 1229a(c)(7), did nothing to diminish the Board's jurisdiction or authorize the Board to diminish its own jurisdiction. Accordingly, the court granted the petition for review, vacated the Board's order and remanded for further proceedings. View "Hernandez v. Holder" on Justia Law