Justia Immigration Law Opinion Summaries

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

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

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

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

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

Plaintiff sought review of defendants' denial of plaintiff's application for naturalization under 8 U.S.C. 1421(c). The district court granted summary judgment for defendants. The court concluded that plaintiff cannot establish that he was lawfully admitted for permanent residence because he was a crewman when he entered the United States. Consequently, plaintiff does not meet the statutory requirements for naturalization under section 1427(a). Accordingly, the court affirmed the district court's grant of summary judgment for defendants. View "Reganit v. Secretary, DHS" on Justia Law

Petitioner, a native and citizen of Peru, seeks review of the BIA's affirmance of the IJ's order of removal, finding that petitioner was ineligible for cancellation of removal because he had been convicted of an aggravated felony, 8 U.S.C. 229b(a), based on his conviction and sentence for a burglary offense. The Board reasonably concluded that house arrest, as a punitive measure that involves a “serious restriction of liberty,” constitutes confinement and is a “term of imprisonment” under the Act. In this case, petitioner's burglary offense, for which he was sentenced to a term of imprisonment of at least one year, qualified as an aggravated felony and made him ineligible for cancellation of removal. Accordingly, the court denied the petition for review. View "Herrera v. U.S. Attorney General" on Justia Law

Petitioner, a native and citizen of Haiti, seeks review of the BIA's order affirming the IJ's denial of his request that he not be removed from the United States. Because petitioner failed to assert before the BIA arguments that he now makes challenging the IJ's finding of no past persecution, he has failed to exhaust that claim, and the court has no jurisdiction to consider it. Petitioner’s status as a criminal alien deprives the court of jurisdiction to consider whether he produced sufficient evidence to prove the likelihood of future persecution. After careful review, the court concluded that the agency committed no legal error and gave “reasoned consideration” to petitioner's claims. Accordingly, the court dismissed the petition for review as to petitioner's claim of past persecution and denied his claim of future persecution. View "Jeune v. U.S. Attorney General" on Justia Law