Justia Immigration Law Opinion Summaries

Plaintiff and her husband (collectively, "plaintiffs") filed suit claiming that the USCIS acted arbitrarily and capriciously in violation of the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq., and the Due Process Clause, by denying the husband's I-130 petition without affording them the opportunity to cross-examine plaintiff's ex-husband regarding his statement that their marriage was entered into for the purpose of evading the immigration laws. The court concluded that the district court correctly held that there was no statutory right of cross-examination in I-130 visa adjudications. Therefore, the court affirmed the district court's grant of summary judgment on this claim. The court concluded, however, that plaintiffs' due process rights were violated where the immediate relative status for an alien spouse was a right to which citizen applicants were entitled and that protected interest was entitled to the protections of due process; plaintiffs' showed sufficient prejudice; and additional process was due in this case pursuant to Mathews v. Eldridge. Accordingly, the court reversed the district court's grant of summary judgment as to the due process claim and remanded for further proceedings. View "Ching v. Mayorkas" on Justia Law

KDS petitioned for review from the summary decision of an ALJ in favor of ICE on 225 out of 271 alleged violations of 8 U.S.C. 1324a(b) and the resulting civil penalty. Section 1324a(b) requires employers to verify that their employees are legally authorized to work in the United States. The court held that compliance required that the relevant information from the documents be transcribed onto the I-9 Form, regardless of whether copies of the documents were retained. The court concluded that it was neither arbitrary nor capricious to require that employers actually complete their I-9 Forms; applying Skidmore deference, the court rejected KDS's alternative argument that even if it had not complied with all of its verification and documentation obligations under section 1324a(b), its non-compliance should be treated as compliance under section 1324a(b)(6)(A); and the court found no error in the ALJ's penalty calculations. Accordingly, the court denied KDS's petition for review. View "Ketchikan Drywall Servs. v. ICE, et al." on Justia Law

Petitioners, a married couple from Jordan, petitioned for review of the BIA's decision that extraordinary circumstances did not excuse their untimely applications for asylum. According to petitioners, their delay in filing asylum applications was reasonable because of various barriers they encountered after their lawful status elapsed, including ineffective assistance of counsel and their inability to file asylum applications due to having been served Notices to Appear. The court concluded that, even assuming that petitioners could demonstrate extraordinary circumstances, they did not file their applications within a reasonable period given those circumstances. Accordingly, the court denied the petition for review. View "Al Ramahi, et al. v. Holder, Jr." on Justia Law

Petitioner, a Mexican national, petitioned for review of the BIA's orders finding her ineligible for cancellation of removal and denying her motion to reopen. The court concluded that petitioner "resided in the United States continuously for 7 years after having been admitted in any status" under 8 U.S.C. 1229b(a)(2) where maintenance of lawful status after the admission was not required and where petitioner's brief trip to Mexico on advance parole did not end her period of continuous residence. Accordingly, the court granted the petition for review in regard to this issue. The court concluded, however, that the BIA properly denied petitioner's motion to reopen because she could not retract her concessions of removeability. Therefore, the court denied the petition for review in regard to this issue. View "Galindo v. Holder" on Justia Law

Defendant pled guilty to illegal reentry after a prior deportation and subsequently appealed the district court's denial of his motion to dismiss the indictment on the ground that the prior deportation order was fundamentally unfair. The court concluded that defendant had shown that he exhausted his administrative remedies by appealing the IJ's adverse ruling to the BIA. Defendant failed, however, to show that an error or obstacle related to his deportation proceedings improperly deprived him of the opportunity for judicial review. Because 8 U.S.C. 1326(d)(1), (d)(2), and (d)(3) must all be satisfied either directly or constructively, the court affirmed the denial of the motion to dismiss and his conviction without addressing the merits of his argument. View "United States v. Gonzalez-Villalobos" on Justia Law

Petitioner, a native and citizen of Indonesia who is a Christian and of Chinese descent, petitioned for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA treated petitioner as credible, the court concluded that there was no basis to exclude from consideration petitioner's testimony that the staff of a public hospital deliberately delayed administering medical treatment to her three-month-old daughter on account of petitioner's race and religion. This evidence was directly relevant to whether petitioner suffered past persecution and may also be relevant to whether she had shown an individualized likelihood of future persecution. Accordingly, on remand, the BIA must reconsider petitioner's request for withholding of removal giving full weight to the evidence concerning the baby's death. The court addressed the remaining claims, granting the petition for review in part, denying it in part, dismissing it in part, and remanding for further proceedings. View "Sumolang v. Holder" on Justia Law

Petitioner, a 37-year-old gay native and citizen of the Philippines, petitioned for review of the BIA's order vacating an IJ's grant of withholding of removal and protection under the CAT. The court concluded that the BIA failed to apply the clear standard of review to the IJ's factual findings, and also abused its discretion by ignoring factual findings of the IJ. The court granted the petition for review as to the application for withholding of removal where no reasonable factfinder could conclude that the harm petitioner suffered on account of his sexual orientation did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization. The court, however, denied the petition for review of the BIA's denial of CAT relief where it was unclear that petitioner's beatings and economic deprivation rose to the level of torture. View "Vitug v. Holder" on Justia Law

Petitioner, a native of Senegal, petitioned for review of the BIA's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner mistakenly filed an N-400 citizenship application instead of filing an I-589 asylum application. After the N-400 application was denied, he filed the I-589 application. The IJ found that petitioner was not credible because he did not supply the same level of detail about persecution when he filled out his mistakenly filed N-400 citizenship application. The court held that substantial evidence did not support the BIA's adverse credibility finding and that the BIA erred when it adopted the IJ's flawed reasoning and when it found that petitioner was not credible on the ground that petitioner's citizenship and asylum applications were inconsistent. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Bassene v. Holder" on Justia Law

Defendant, a Mexican citizen, alleged that the Arizona crime of conviction, "attempt to commit smuggling" in violation of A.R.S. 13-2319, did not categorically fit the federal definition of an alien smuggling offense and thus ought not to have triggered a sixteen-level sentencing guidelines enhancement. On the merits, the parties agreed that defendant was improperly sentenced. However, the issue on appeal was the proper appellate remedy for defendant who was entitled to a resentencing but, having been deported, was unable to be present for a resentencing hearing. The court affirmed the sentence without prejudice, pursuant to United States v. Plancarte-Alvarez, to a later request by defendant, if and when he should return to the United States or waive his right to be physically present at resentencing, that his previous sentence be vacated and that he be resentenced in light of this opinion. View "United States v. Aguilar-Reyes" on Justia Law

Plaintiff challenged the Department of Labor's new regulations providing that a labor certification expired after 180 days unless a visa application was filed or, in this case, 180 days after the regulation became final. Plaintiff alleged that enforcing the 180-day rule without providing actual notice constituted an impermissible retroactive rule. The court agreed with the district court that publication of the proposed and final rules in the Federal Register afforded adequate notice of the revision, and that the regulation was not impermissibly retroactive. Further, the text of the statute did not foreclose the establishment of an expiration date for labor certifications. Because the regulation did not have retroactive effect, plaintiff's labor certifications expired when it did not take timely action after the effective date of the new regulation. Accordingly, the court affirmed the district court's grant of summary judgment for the government. View "Elim Church of God v. Harris" on Justia Law