Justia Immigration Law Opinion Summaries

Petitioner, a native of Armenia, sought review of the BIA's order affirming the IJ's decision declaring her asylum application frivolous. The BIA affirmed the IJ's determination that petitioner knowingly filed a frivolous asylum application and that she was statutorily barred from adjustment of status and a 8 U.S.C. 1182(i) waiver on that basis. The court concluded that there was substantial evidence in the record that supported the IJ's and BIA's findings that petitioner received the required warnings and petitioners' arguments to the contrary were without merit. In Matter of X-M-C-, 25I. & N., the BIA held that the only action required to trigger a frivolousness inquiry was the filing of an asylum application and that the IJ and BIA were not prevented from finding that an application was frivolous simply because the applicant withdrew the application or recanted false statements. Even if 8 U.S.C. 1158(d)(6) were ambiguous, the court nonetheless owed Chevron deference to the BIA's published interpretation of the statute, which was reasonable and well-grounded in the policy behind the statute. Accordingly, the court held that section 2258(d)(6) permitted a frivolousness finding based on a withdrawn application and denied the petition for review. View "Kulakchyan v. Holder, Jr." on Justia Law

Petitioner, born in Mexico, appealed the denial of her request for withholding of removal under the Convention Against Torture (CAT). The court issued the opinion to clarify that DHS could seek to terminate a prior grant of withholding of removal in conjunction with removal proceedings as long as DHS met its burden of demonstrating the grounds for doing so. The court held that two separate proceedings were not required under 8 C.F.R. 1208.24(f). The court concluded that: (1) DHS could file a Notice of Appeal when an alien was subject to an extant withholding of removal; (2) there need not be a separate hearing on the termination of the withholding; (3) the government had the burden of demonstrating by the preponderance of the evidence the grounds for the termination of withholding; (4) the government met its burden by submitting official state records of petitioner's state convictions; and (5) petitioner had not shown a denial of procedural due process because her proceedings were not fundamentally unfair and further proceedings would not have changed the outcome. Accordingly, the court denied the petition for review. View "Gutierrez v. Holder, Jr." on Justia Law

Petitioner, a native of China, petitioned for review of the BIA's decision denying a motion to reopen. Petitioner entered the United States to flee an abusive relationship and claimed that she feared persecution in China because she violated China's family planning policy by giving birth to two children in the United States and by being unmarried. The court granted the petition for review because the BIA abused its discretion when it held petitioner to an incorrect legal standard and failed to properly consider much of her relevant evidence. View "Zhao v. Holder" on Justia Law

Petitioner, a native and citizen of Somalia, petitioned for review of the BIA's decision dismissing her asylum claim for lack of timeliness. Petitioner filed petitions for review in this court following the denial of the motion to reconsider and the IJ's last background checks, but did not file a petition after the Board's initial decision denying her asylum application. The court held that petitioners must file their petitions for review within thirty days of the BIA's determination of their applicable claims for asylum, withholding of removal, and protection under the Convention Against Torture. In this instance, petitioner had a full and fair hearing of her claims and a reasonable opportunity to present evidence on her behalf; a final order of removal existed regarding the asylum claiming following the BIA's decision on November 25, 2008, triggering the thirty-day rule; and the court lacked jurisdiction to review the Board's denial of asylum because petitioner failed to timely petition for review. Accordingly, the court dismissed the petitions for review. View "Abdisalan v. Holder" on Justia Law

Petitioner, a former prison guard in India, challenged the BIA's decision affirming the IJ's conclusion that petitioner failed to establish eligibility for asylum and withholding of removal because he had assisted in the persecution of others on account of political opinion. The court granted the petition for review, concluding that the decisions of the IJ and BIA reflected a misunderstanding and misapplication of relevant precedent. The court remanded under INS v. Ventura to consider whether petitioner purposefully assisted in the alleged persecution. In doing so, the BIA should consider in particular whether the work of a sentry on the perimeter of an intelligence facility was integral not only to the functioning of the facility but also to the persecution that occurred inside of it, and the differences between the role of a Nazi guard at a Nazi concentration camp and petitioner, an individual working for a legitimate arm of a recognized government at a legitimate prison facility. View "Kumar v. Holder" on Justia Law

Petitioner, a native and citizen of Belarus, petitioned for review of an order of the BIA affirming an IJ's determination that she was not entitled to asylum, withholding of removal, or relief under the Convention Against Torture (CAT). Petitioner has been deaf since infancy and claimed that her condition subjected her to persecution in Belarus. Petitioner also claimed that she suffered persecution on account of her and her family's religion (Seventh Day Adventists). The court concluded that petitioner has made a showing of past persecution on the basis of religion and that the government failed to rebut this presumption. Accordingly, petitioner was eligible for asylum on this claim. The court granted the petition for review and remanded for further proceedings. View "Rusak v. Holder" on Justia Law

Petitioner, a native and citizen of El Salvador, was convicted of brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code section 417.3. An IJ subsequently determined that petitioner's conviction was for a "crime of violence" and thereby an "aggravated felony," making petitioner statutorily ineligible for cancellation of removal and for asylum. The IJ denied withholding of removal and Convention Against Torture (CAT) relief on the merits. After petitioner appealed, the BIA affirmed the IJ's conclusion but issued its own reasoned decision. Petitioner petitioned for review of the BIA's decision. The court dismissed the petition for review, concluding that California Penal Code section 417.3 qualified categorically as a crime of violence under 18 U.S.C. 16(a) and, therefore, petitioner was an aggravated felon who was ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3). View "Bolanos v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Peru, was found removable because he had committed a theft offense that qualified as an aggravated felony under 8 U.S.C. 1101(a)(43). At issue was whether the government proved that petitioner was convicted of a qualifying felony theft offense. Applying the modified categorical approach, the court concluded that petitioner was clearly and unambiguously charged as a principal who personally drove or took the vehicle of another, without consent and with the intent to deprive the owner of it under California Vehicle Code section 10851(a). Further, the BIA has held that section 10851(a) was a categorical theft offense even though, in some circumstances, it criminalizes taking a vehicle temporarily. The court has also defined a "theft offense" to include taking property without consent and with the intent to deprive the owner of the property, even if the deprivation is less than total or permanent. Accordingly, the court denied the petition. View "Duenas-Alvarez v. Holder" on Justia Law

Petitioner sought review of the government's reinstatement of a removal order issued in 1997. Petitioner contended that ICE could not deport him on the basis of his prior removal order because a federal district court found that due process violations in his 1997 immigration hearing rendered the removal order invalid as a predicate for criminal prosecution under 8 U.S.C. 1326. The court concluded that petitioner was prejudiced by ICE agents' misinformation or lack of information regarding his criminal prosecution, as well as by the absence of an opportunity to contest the reinstatement determination at a meaningful time. Accordingly, the court remanded to ICE to provide that opportunity and to reconsider its reinstatement determination in light of the district court's findings regarding petitioner's 1997 removal proceedings. The court expressed no view as to that determination on remand. Accordingly, the court granted the petition. View "Villa-Anguiano v. Holder" on Justia Law

In these consolidated appeals, at issue was whether landowners could form the basis for membership in a particular social group for purposes of eligibility for asylum. The court granted petitioners', landowners, petition for review as to their asylum claim based on their membership in a particular social group; remanded for the BIA to reconsider its determinations that the particular social group offered by petitioners were not cognizable under the Immigration and Nationality Act (INA) in light of en banc decision in Henriquez-Rivas v. Holder; the BIA should address in the first instance whether the harm suffered by petitioners constituted persecution and whether that persecution was "on account of" a protected basis; and because the BIA denied petitioners' removal claims on the same basis as their asylum claims, the court reversed and remanded those determinations. Finally, the court granted Medina-Gonzalez's petition for review as to his Convention Against Torture claim, remanding for reconsideration of that claim in light of the court's recent decision in Tapia-Madrigal v. Holder. View "Cordoba v. Holder" on Justia Law