Articles Posted in U.S. Court of Appeals for the Eighth Circuit

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Petitioner, a citizen of Bosnia and Herzegovina, part of the former Yugoslavia, sought review of the BIA's affirmance of the IJ's finding that petitioner was ineligible for relief from removal because he failed to prove he was not an alien who committed, assisted, or otherwise participated in extrajudicial killings under color of law of any foreign nation pursuant to 8 U.S.C. 1182(a)(3)(E)(iii). The IJ found petitioner removable because, at the time of his admittance and adjustment of status, he concealed that he had served in the Army of the Serb Republic, Vojska Republika Srpske (VRS). The court explained that DHS proved by clear and convincing evidence that petitioner was removable because he was inadmissible under section 1182(a)(6)(C)(i) for willful misrepresentation of a material fact, and thus the issue was whether he was eligible for waiver relief from that removal under section 1227(a)(1)(H). Because petitioner concedes that he was removable for willful misrepresentation and DHS's evidence indicates that he may have participated or assisted in extrajudicial killings at Srebrenica in July, 1995, the court denied the petition for review. The court lacked jurisdiction to grant petitioner's request for voluntary departure. View "Maric v. Sessions" on Justia Law

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Petitioner, a native and citizen of Guatemala, sought review of the BIA's decision affirming the IJ's denial of his requests for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court concluded that the BIA applied the proper de novo standard for reviewing the IJ's finding that petitioner had not demonstrated an objectively reasonable fear of future persecution; substantial evidence supports the BIA's conclusion that petitioner failed to demonstrate past persecution and future persecution; substantial evidence supports the IJ and BIA's determination that petitioner failed to establish eligibility for asylum; and thus petitioner was not eligible for withholding of removal. Accordingly, the court denied the petition. View "Lemus-Arita v. Sessions, III" on Justia Law

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Petitioner, a citizen of Mexico, challenged the denial of his motion to reopen an order of removal in absentia when he failed to appear for a removal hearing in an immigration court. The court concluded that petitioner failed to develop an argument explaining why his failure to appear was because of exceptional circumstances within the meaning of 8 U.S.C. 1229a(b)(5)(C). Assuming for the sake of analysis that petitioner's alleged absence from the United States could be an exceptional circumstance, the court concluded that the Board reasonably determined that petitioner was in the United States when the Department filed the Notice to Appear to initiate the removal proceedings, and the Board gave reasonable weight to the fact that petitioner's counsel verified the accuracy of the address and made no objection to the immigration court's jurisdiction. View "Alvarado-Arenas v. Sessions" on Justia Law

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Defendant was convicted of illegally reentering the United States and sentenced to 51 months in prison. The court concluded that the occupant of the apartment where defendant was found voluntarily consented to entry; articulable facts warranted the agents' lawful protective sweep where the agents knew that defendant had a prior conviction for aggravated assault on a police officer and that he may be present in the apartment; the totality of the circumstances demonstrated that defendant voluntarily consented to the search of his bedroom; and defendant's requests for suppression of all evidence was without merit. Accordingly, the court affirmed the judgment. View "United States v. Ortega-Montalvo" on Justia Law

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Petitioners Hernandez-Martinez and Dominguez-Herrera, non-permanent residents of the United States and a married couple, sought review of the denial of their consolidated applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1229b(b)(1). The court concluded that petitioners failed to meet their burden under the REAL ID Act, 8 U.S.C. 1229a(c)(4), to establish their eligibility for cancellation of removal where both petitioners have committed a crime involving moral turpitude. In this case, Hernandez-Martinez had been convicted of theft in the municipal court of Hutchinson, Kansas, and Dominguez-Herrera had been convicted of theft in the municipal court of Great Bend, Kansas, which was a criminal offense, and the crimes were punishable by a year or more in prison. Accordingly, the court denied the petition for review. View "Dominguez-Herrera v. Sessions" on Justia Law

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Ramon Mendoza, a naturalized United States citizen, challenged the district court's grant of summary judgment for ICE agent Justin Osterberg, the County, the County employees, and Sheriff Davis on numerous claims based on an improper immigration detainer that was issued and later withdrawn. The detainer was withdrawn once Osterberg confirmed that Mendoza was not in fact Ramon Mendoza-Gutierrez, an aggravated felon. The court concluded that Osterberg had arguable probable cause to issue the ICE detainer and was entitled to qualified immunity on plaintiff's Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics claim; the sheriff was entitled to qualified immunity because he had no direct participation in the alleged violations; there was no violation of Mendoza's constitutional rights and the County employees are entitled to qualified immunity; the district court properly granted summary judgment for Sheriff Davis and the County on plaintiff's claims of supervisory and municipal liability under 42 U.S.C. 1983 where employees received instructive memorandum and on-the-job training; the actions in this case cannot reasonably be attributed to a defective governmental policy or custom; even if there were no policies or training on how to handle ICE detainers, there was no constitutional violation; there was no Fifth Amendment due process violation; and there was no evidence of defendants' conspiracy in violation of section 1984(3). Accordingly, the court affirmed the judgment. View "Mendoza v. Davis" on Justia Law

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Petitioner and her infant son, natives and citizens of Honduras, seek review of the BIA's order dismissing their appeal of the IJ's decision denying asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court concluded that substantial evidence supports the BIA's determination that petitioner failed to establish that she was or will be persecuted on account of a protected ground. In this case, petitioner identified her proposed particular social group as Honduran women in domestic relationships who are unable to leave their relationships. Petitioner testified, however, that she was able to leave her abusive relationship and reside in Honduras safely for approximately five years. The court also concluded that petitioner failed to establish that she would be tortured if she were to return to Honduras and that the Honduran government was aware of the abuse, much less consented to the conduct. Accordingly, the court denied the petition for review. View "Fuentes-Erazo v. Sessions" on Justia Law

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Petitioner, a native and citizen of Guatemala, filed an untimely motion to reopen his removal proceedings. In this case, petitioner failed to demonstrate that his relatives' deaths in 2010 and 2011 reflected changed country conditions and the district court did not abuse its discretion in denying the motion. Therefore, the court agreed with the BIA's determination that petitioner failed to establish changed country conditions and affirmed the judgment. View "Villatoro-Ochoa v. Lynch" on Justia Law

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Petitioner, a native of Haiti, seeks review of the BIA's decision affirming the IJ's finding that he was ineligible for relief under the Convention Against Torture (CAT). In this case, petitioner argues that the BIA erred in affirming the IJ because the IJ applied the wrong legal standard when it failed to grant petitioner a presumption that he had a well-founded fear of future persecution based on past persecution. The court concluded that a showing of past persecution does not establish a presumption under the law regarding the likelihood of future torture upon removal. Therefore, neither the BIA nor the IJ applied the wrong legal standard in petitioner's case. To the extent that petitioner's arguments challenge the agency's factual determinations, the court lacks jurisdiction to review such claims under 8 U.S.C. 1252(a)(2)(D). Finally, when considering petitioner's CAT claim, the immigration courts were required to determine the likelihood that petitioner would suffer future torture if removed to Haiti, and they did not err in citing or relying on relevant case law. Accordingly, the court dismissed the petition for review. View "Martine v. Lynch" on Justia Law

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Petitioner, a Mexican citizen, seeks review of the BIA's affirmance of the IJ's denial of his request for administrative closure of his immigration proceedings. DHS initiated removal proceedings in 2012, asserting that he was removable as an alien who was present in the country without being admitted or paroled. The IJ denied the request for administrative closure, emphasizing that petitioner's infant son would not turn 21 within a reasonable time to sponsor a visa petition on his behalf, and the lack of a pending visa application made the anticipated duration of closure indefinite. The court joined the other circuits that have held that circuit courts have jurisdiction to review denials of motions for administrative closure, assuming, of course, that other judicial prerequisites (like finality) are satisfied. After determining that it has jurisdiction, the court concluded that the IJ committed no clear error of judgment in weighing the In re Avetisyan considerations and did not abuse its discretion by being unmoved by petitioner's arguments in favor of administrative closure. Because it is unclear to the court whether the BIA heard and thought about petitioner's alternative request to exercise its independent authority to grant administrative closure, the court remanded the matter to the BIA to consider whether petitioner's requests warrants a favorable exercise of the BIA's discretion. Accordingly, the court affirmed in part and remanded in part. View "Gonzalez-Vega v. Lynch" on Justia Law