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

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Plaintiff challenged CIS's denial of her petition, Form I-130, Petition for Alien Relative, seeking an immigrant visa for her alien father. The court concluded that CIS's decision denying plaintiff's 2012 petition was not arbitrary and capricious or otherwise contrary to law and that substantial evidence supported the decision. In this case, the evidence regarding her father's marriage was sufficient to support CIS's doubts about the marriage's validity and was also sufficient to support denial of the visa petition for failure to prove the father's ultimate eligibility. Accordingly, the court affirmed the judgment. View "Mendoza v. Secretary, DHS" on Justia Law

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This appeal arose from a labor dispute involving the H-2A visa program. Defendant Consolidated Citrus Limited Partnership (“Consolidated Citrus”) appealed from the district court’s order granting judgment in favor of the plaintiffs and holding Consolidated Citrus liable as a joint employer. All original plaintiffs were Mexican nationals who came to the United States temporarily to work as harvesters on citrus groves in central Florida. These plaintiffs entered the United States legally under the federal H-2A visa program. During the 2005-06 harvest season, Consolidated Citrus struggled to find sufficient labor to meet its harvesting needs. Starting with the 2006-07 harvest season, Consolidated Citrus began working with labor contractors to hire temporary foreign workers. One such labor contractor was defendant Ruiz Harvesting, Inc. (“RHI”), owned by Basiliso Ruiz (“Ruiz”). Consolidated Citrus expected the temporary workers to be at their assigned groves at some time in the early morning, but RHI personnel ultimately decided what time the workers would arrive. Each day, RHI transported workers to and from the groves in RHI vehicles. Under the H-2A program regulations, agricultural workers compensated on a piece-rate basis must be paid at least the equivalent of the wages they would have received under the applicable “adverse effect wage rate” (“AEWR”), which was the hourly minimum set by the Department of Labor. Where a worker’s piece-rate wages did not add up to the wages the worker would have earned under the hourly rate, the employer had to supplement that worker’s earnings to meet that minimum wage. The supplemental amount was known as “build-up” pay. RHI perpetrated a kickback scheme to recoup this build-up pay: on payday, RHI employees drove the H-2A temporary workers to a bank where the workers cashed their paychecks. The workers then returned to the RHI vehicle, where an RHI employee collected cash from each worker in an amount equal to that worker’s build-up pay. H-2A workers were told to return money only to Ruiz and RHI and only when the workers’ paychecks included build-up pay. No one from Consolidated Citrus demanded that H-2A temporary workers return their build-up pay, and no H-2A temporary worker ever complained directly to Consolidated Citrus about RHI’s kickback scheme. After careful review of this matter, the Eleventh Circuit affirmed in part, reversed in part, and remanded this case to the district court for further proceedings. To the extent that the district court held Consolidated Citrus liable as a joint employer for purposes of the plaintiffs’ Fair Labor Standards Act (FLSA) claims, the Court affirmed. The Court reversed, however, the district court’s determination that the FLSA “suffer or permit to work” standard applied to the breach of contract claims for purposes of determining whether Consolidated Citrus qualified as a joint employer under the H-2A program. The case was remanded to the district court to apply, in the first instance, that governing standard of common law agency for purposes of the plaintiffs’ breach of contract claims. View "Garcia-Celestino, et al. v. Consolidated Citrus Ltd. Partnership" on Justia Law

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Petitioner, a native and citizen of Haiti, seeks review of the BIA's decision affirming the IJ's order finding him ineligible for relief from removal based on his criminal conviction for abuse of an elderly person or disabled adult under Florida Statute 825.102(1). The court concluded that a conviction for abuse of an elderly person or disabled adult pursuant to the Florida statute is categorically a crime involving moral turpitude. Therefore, the court lacks jurisdiction to review the petition for review under 8 U.S.C. 1252(a)(2)(C) and the petition is dismissed. View "Gelin v. U.S. Attorney General" on Justia Law

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Petitioner, a citizen of Albania, seeks review of the BIA's order upholding the IJ's finding that his conviction for sale of a controlled substance, in violation of Florida Statute 893.13(1)(a)(1), constituted an aggravated felony and therefore rendered him removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(A)(iii). The court concluded that the BIA correctly upheld the IJ's determination that section 893.13(1)(a)(1) is divisible. Therefore, under the modified categorical approach, the court concluded that petitioner's Florida conviction qualifies as an "illicit trafficking" aggravated felony. The court thus denied the petition for review. View "Spaho v. U.S. Attorney General" on Justia Law

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Petitioner, a native and citizen of South Korea, petitioned for review of the BIA's order denying her motion to sua sponte reopen her removal proceedings. Because petitioner has not raised any constitutional claims, the court lacked jurisdiction to review the BIA's denial of her motion for sua sponte reopening. Therefore, the court rejected petitioner's arguments and granted the government's motion to dismiss. The court dismissed the petition for review. View "Bukta v. U.S. Attorney General" on Justia Law

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Petitioner, a lawful asylee from Cameroon, pled guilty to bank fraud and became removable as an aggravated felon. After petitioner completed his criminal sentence, ICE took custody of him and he has been in ICE detention since February 2, 2012. On appeal, the court addressed an issue of first impression: During their removal proceedings, are criminal aliens, like petitioner, detained under section 1226(c) entitled at any point to a bond hearing under the Due Process Clause? The court held that section 1226(c) contains an implicit temporal limitation against the unreasonably prolonged detention of criminal aliens without an individualized bond hearing. The court then established an approach for determining when the removal proceedings and the resulting section 1226(c) mandatory detention of a criminal alien become unreasonably protracted, triggering the need for a bond hearing. Joining the First, Third, and Sixth Circuits, the court adopted the case-by-case approach in determining whether a detention of a criminal alien has become unreasonable. Section 2241 courts must consult the record and balance the government’s interest in continued detention against the criminal alien’s liberty interest, always seeking to determine whether the alien’s liberty interest has begun to outweigh “any justification for using presumptions to detain him without bond.” If the balance tips in the alien’s favor, the district court must grant the section 2241 habeas petition and order the government to afford the criminal alien an individualized bond inquiry. When detained criminal aliens become entitled to a bond hearing, the agency shall conduct a bond inquiry under the procedures outlined in 8 C.F.R. 1236.1(c)(8) and (d). Finally, applying the court's holdings in petitioner's case, the court concluded that he must receive an immediate bond hearing as habeas relief. Accordingly, the court vacated and remanded. View "Sopo v. U.S. Attorney General" on Justia Law

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Petitioner, a citizen of Jamaica and a lawful permanent resident of the United States, petitioned for review of the BIA's ruling that she is deportable because she pleaded guilty to “theft by taking” in violation of Georgia Code 16-8-2. Petitioner argued that this crime is not “a theft offense” as that term is used in the Immigration and Nationality Act’s (INA), 8 U.S.C. 1101(a)(43)(M)(i), list of grounds for deportation. The BIA initially held that Georgia “theft by taking” doesn’t require property to be taken “without consent,” as is required for generic theft, and ruled that petitioner's violation was not "a theft offense. After this initial ruling, a BIA official granted a motion to reconsider and then ruled the second time around that the crime is generic theft. The court granted the petition and concluded that the BIA determined years ago in a published opinion that theft based on taking property through fraudulently obtained consent is not “without consent.” View "Vassell v. U.S. Attorney General" on Justia Law

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An IJ found that petitioner did not have a reasonable fear of persecution or torture, that he had no basis for withholding of removal, and that he could not obtain relief under the Convention Against Torture (CAT). The court agreed with the Ninth and Tenth Circuits that, where an alien pursues a reasonable fear proceeding following DHS’ initial reinstatement of a prior order of removal, the reinstated removal order does not become final until the reasonable fear proceeding is completed. Therefore, the court concluded that it did not have jurisdiction when petitioner filed his petition for review. However, the court joined the Second and Third Circuits and held that if a petition for review is premature when filed, the petition becomes ripe (and jurisdiction vests) when subsequent agency action renders the initial ruling final, and the petition can be adjudicated if no action has been taken on the merits and there is no prejudice to the government. Therefore, the government's motion to dismiss is denied. 8 U.S.C. 1231(a)(5) provides that an alien whose order of removal is reinstated “is not eligible and may not apply for any relief under this chapter.” On the merits, the court joined the Second and Fifth Circuits in holding that, because asylum is a form of relief from removal, a person like petitioner is not eligible for and cannot seek asylum. Accordingly, the court denied the petition for review. View "Jimenez-Morales v. U.S. Attorney General" on Justia Law

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Petitioner, a native and citizen of Honduras, seeks review of the BIA's denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). Giving Chevron deference to the BIA's decision, the court concluded that former members of the Mara-18 gang from Honduras are not a “particular social group” entitled to protection under 8 U.S.C. 1231(b)(3). Because petitioner is removable for pleading guilty to possession of cocaine, a controlled substance offense, the court lacks jurisdiction to review his challenge to the BIA's denial of CAT relief. Accordingly, the court denied the petition. View "Gonzalez v. U.S. Attorney General" on Justia Law

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After plaintiff was ordered removed, he remained in ICE custody from November 25, 2008 until October 21, 2009 - an amount of time greatly exceeding the 90-day statutory period for removal under the Immigration and Nationality Act (INA), 8 U.S.C. 1231(a)(1)(A). Plaintiff filed a Bivens action, arguing that various government officials, knowing that his removal order could not be executed, made false statements in order to unconstitutionally prolong his detention. The district court dismissed his complaint. Although the court held that section 1252(g) does not bar it from considering the merits of plaintiff's claim, the court also found no Bivens remedy available to him, because the INA sets out sufficient meaningful remedies for plaintiff and similarly situated aliens, and because numerous special factors counsel against supplementing this scheme with a new judicially created cause of action. The court noted that Congress did not provide an avenue by which plaintiff can seek monetary relief. The court deferred its judgment and held that no Bivens remedy is available to a plaintiff. View "Alvarez v. ICE" on Justia Law