Justia Immigration Law Opinion Summaries

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

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

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

Petitioner, a native of Russia, seeks review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner, who was born in Georgia in 1964 and is of Greek and Russian descent, asserted he was afraid to return to Russia because he feared he would be subject to persecution by “skinhead-fascists” based on his non-Russian appearance. The IJ noted several discrepancies between petitioner's application for asylum, his interview with the asylum officer, and his later testimony. The court concluded that the IJ identified, and the Board adopted, specific, cogent reasons for petitioner's adverse credibility finding that were supported by substantial evidence. Because petitioner's applications for asylum, withholding of removal, and relief under the CAT were based upon the same discredited testimony, his other claims for relief also fail. Accordingly, the court denied the petition for review. View "Chakhov v. Lynch" on Justia Law

Petitioners, brothers and natives of Guatemala, petitioned for review of the BIA's affirmance of the IJ's denial of their applications for asylum, withholding of removal, and CAT relief. Petitioners concede that they filed their application more than a year after they arrived in the United States, but they contend that the attack on their father in 2008 constituted changed circumstances. The court concluded that this contention is not a constitutional claim and does not raise a question of law. Rather, this contention amounts to a quarrel with the BIA's discretionary factual determination and thus the court lacks jurisdiction to review the BIA's determination that the asylum claims are time-barred. Petitioners also argue that their credible evidence of extortionate demands and violent attacks by criminal gangs against members of their family for more than twenty years established that they suffered past persecution and have a well-founded fear of future persecution on account of their membership in a particular social group. The court concluded, however, that substantial evidence supports a finding that petitioners' family is no different from any other Guatemalan family that has experienced gang violence and there is no evidence that petitioners' mistreatment is associated with their membership in a social group. Finally, the court denied CAT relief and concluded that substantial evidence supports the BIA's finding that the Maras 18 gang in Guatemala was not acting with the consent or acquiescence of a public official. Accordingly, the court denied the petitions for review. View "Cambara-Cambara v. Lynch" on Justia Law

Petitioner seeks review of the BIA's conclusion that he is ineligible for cancellation of removal under 8 U.S.C. 1229(b), because he had sustained a prior conviction for an aggravated felony. Although the government argued before the immigration judge and the Board that petitioner's burglary conviction also qualified as an aggravated felony under section 1101(a)(43)(G), the court may not consider whether to affirm the denial of relief on that ground, because the Board did not decide the issue. The court concluded that remand is warranted for the Board to consider in the first instance whether the burglary conviction is an aggravated felony under section 1101(a)(43)(G). Accordingly, the court granted the government's motion to remand. View "Kong Meng Xiong v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's affirmance of the IJ's denial of petitioner's request for adjustment of status and dismissal of petitioner's appeal. Petitioner was charged with being subject to removal as an alien present in the United States without inspection and without admission or parole. The court concluded that, by virtue of the evidence showing that petitioner was in Rochester, any reasonable adjudicator would be compelled to find that he rebutted any presumption of reliability accorded the information set forth in the TECS-II document that he departed the United States by plane from Houston at 2:24 p.m. on January 21, 2005. The court concluded that the administrative finding that petitioner was departed on that date is unsupported by substantial evidence. The court noted that it would be fundamentally unfair to rely on I-213 documents as the only evidence that petitioner entered without inspection in the absence of an opportunity for petitioner to present evidence concerning the manner in which they were prepared. Accordingly, the court granted the petition for review and remanded the case for the limited purpose of allowing petitioner to present evidence regarding the draft and final I-213s. View "Rodriguez-Quiroz v. Lynch" on Justia Law

Petitioner, a citizen of Ghana and a lawful permanent resident of the United States, was convicted of three counts of medical assistance fraud in violation of Minn. Stat. 609.466. DHS commenced removal proceedings based on the ground that petitioner was removable because he had been convicted of an aggravated felony pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(A)(iii). The BIA agreed and ordered petitioner removed to Ghana. Petitioner seeks review of the BIA's decision. In this case, there is one conviction, and the total loss is directly tied to three specific fraud counts “covered by the conviction.” The court need not decide whether totally unrelated fraud counts in a single conviction may be aggregated. As the BIA recognized, petitioner's three fraud counts of conviction were part of a sufficiently interrelated fraud to warrant aggregation, whether or not the criminal complaint included an express allegation of conspiracy or scheme to defraud. Likewise, the order to pay an aggregated restitution amount demonstrated that petitioner did not commit multiple, unrelated frauds. Accordingly, the court denied the petition for review. View "Sokpa-Anku v. Lynch" on Justia Law

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, limits who may file a petition for a visa on behalf of an immediate family member who is a foreign national. In 2009, Joel Bremer, who had previously been convicted of sexual abuse of a minor, petitioned for a spousal visa on behalf of his wife, a native and citizen of the Philippines. The USCIS, exercising discretion delegated to it by the Secretary, determined that Mr. Bremer failed to show that he posed no risk to his wife and denied his petition. The Bremers filed a class action suit contending that the manner in which the USCIS makes the no-risk determinations violates the Administrative Procedure Act (APA), 5 U.S.C. 701(a)(1), and the Constitution. The district court granted in part the Bremers' motion for class certification, dismissed the case, and concluded that the Bremers sought judicial review of determinations that were committed to the “sole and unreviewable discretion” of the Secretary. The court remanded to the district court for further consideration of Count II where the Bremers allege that the Adam Walsh Act no longer applies to Mr. Bremer's petition; the court agreed with the Bremers that whether Mr. Bremer’s petition has already been filed, and if so, whether Clause (viii) is inapplicable, are predicate legal questions over which the district court has jurisdiction; the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., bars judicial review of the Bremers' challenges to how the Secretary has exercised his discretion to make a no-risk determination under the Act; and the court rejected the Bremers' remaining claims. View "Bremer v. Johnson" on Justia Law

Petitioner, a citizen of Guatemala, seeks review of the BIA's decision affirming the IJ's denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The BIA found that the IJ did not clearly err in its findings of fact and provided cogent reasons for the IJ’s credibility determination. Even in light of petitioner's plausible explanations, based on the specific, cogent reasons identified by the IJ, the court concluded that a reasonable adjudicator could reach the same credibility determination as the IJ and BIA. Because petitioner provided the same evidence to support all three claims, and the evidence was insufficient to meet even the burden of proof required for asylum, her remaining claims also fail. Accordingly, the court denied the petition for review. View "Arevalo-Cortez v. Lynch" on Justia Law