Justia Immigration Law Opinion Summaries

After petitioner was ordered removed in abstentia, he filed a motion to reopen on the basis that he was unaware that a notice to appear had been issued years earlier and he never received a notice of hearing. The BIA affirmed the IJ's denial of the motion. The court concluded that the BIA abused its discretion in denying the motion because it concluded that petitioner failed to rebut the presumption of notice without considering all relevant evidence. Accordingly, the court granted the petition for review and remanded to the BIA so that it may consider all relevant evidence offered by defendant to rebut the presumption of notice. View "Torres Hernandez v. Lynch" on Justia Law

Petitioner challenged DHS's decision to reinstate an expedited order of removal. Although petitioner agrees that the court lacks jurisdiction, she formally opposes the motion and seeks a declaration of this circuit's rule of finality as it pertains to this circumstance. The court concluded that the Tenth Circuit has provided a compelling analysis of why reinstatement orders should be regarded as final only upon completion of reasonable fear and withholding-of-removal proceedings. The court agreed with the Tenth Circuit’s analysis and concluded that it applies even where, as here, withholding-of-removal proceedings remain ongoing only because the BIA has remanded to the IJ for background and security checks. The court agreed with Abdisalan v. Holder and adopt its bright-line rule that, when the BIA decides some issues but remands for background and security checks as to others, its decision is not final for purposes of judicial review. It follows that here, the removal proceedings are ongoing because the BIA remanded to the IJ for background and security checks. The reinstatement order is thus non-final, and the court lacked jurisdiction over the petition for review in this case. View "Ponce-Osorio v. Johnson" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's order finding him statutorily ineligible for relief from removal under former section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c). The court concluded that the BIA did not err in finding petitioner ineligible for section 212(c) relief. In this case, the treatment of petitioner's prior offense (transporting an alien within the United States) as an aggravated felony - which is proper even if it is retroactive - means that under the pre-Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, Stat. 3009-546, law otherwise in effect at the time he pleaded guilty in December 1996, he would have been deportable whether he traveled abroad or not. Accordingly, the court denied the petition. View "Limonteco Lucas v. Lynch" on Justia Law

Petitioner, a native and citizen of Guatemala, seeks review of the BIA's dismissal of her appeal from an IJ's denial of her motion to reopen in abstentia removal proceedings and denial of her subsequent motion for reconsideration. The court concluded that petitioner failed to present material evidence of changed country conditions in regard to her claims of femicide. The court also concluded that petitioner failed to present material evidence of changed country conditions in regard to her assertions about the remilitarization of Guatemala after the election of Otto Perez Molina. Therefore, the court concluded that the BIA did not abuse its discretion in agreeing with the IJ that petitioner had not made the required showing. Because the BIA did not abuse its discretion, this court need not reach petitioner's claims regarding her eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Finally, the court lacks jurisdiction to consider petitioner's claim regarding the BIA’s denial of her motion for reconsideration because she filed an untimely petition for review of that decision. The court denied the petition in part and dismissed in part. View "Ramos-Lopez v. Lynch" on Justia Law

Petitioner, a citizen of Mexico, was determined ineligible for cancellation of removal after an IJ concluded that his conviction for deadly conduct under Texas Penal Code 22.05(a) was categorically a crime involving moral turpitude (CIMT). The BIA applied the “realistic probability” approach to hold that deadly conduct was categorically a CIMT and dismissed the appeal. The court held that, for the reasons explained in Mercado v. Lynch, the BIA applied the incorrect standard in analyzing whether petitioner’s conviction constitutes a CIMT. Accordingly, the court reversed and remanded for the BIA to analyze petitioner’s convictions under the minimum reading approach. View "Hernandez v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's order of removal finding that his convictions for indecent exposure and making terroristic threats under Texas law are crimes involving moral turpitude (CIMT). The court concluded that the BIA incorrectly applied the realistic probability approach in analyzing whether petitioner’s convictions are CIMTs. There has not been an intervening change of law that would permit this panel to overturn prior precedent and adopt the realistic probability approach as applied to CIMTs. The court has persistently applied the “minimum reading” approach in this context. Accordingly, the court reversed and remanded for the BIA to analyze petitioner's convictions under the correct approach. View "Mercado v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision rejecting the claim that he is a United States citizen and upholding an order of removal entered against him. At issue is whether petitioner benefits from 8 U.S.C. 1409(c), the provision of the INA governing the transmission of citizenship to persons born out of wedlock. The court concluded that, even accepting for the sake of argument that the law of Nuevo Leon governs the determination of whether petitioner was born out of wedlock, his birth certificate does not reflect that status. The court concluded that the statement of petitioner's mother raises a genuine issue of material fact as to whether she and her ex-husband, Marcelino Hernandez Garcia, had divorced before petitioner was born. The parties agree that if the mother and Marcelino were not married at the time of petitioner’s birth, he was born out of wedlock. In that case, he is a United States citizen by virtue of section 1409(c). Therefore, the court transferred the petition for review for a hearing on petitioner's nationality claim, to determine, specifically whether petitioner's mother and Marcelino were married at the time petitioner was born, and for entry of a final judgment. View "Hernandez Rosales v. Lynch" on Justia Law

Petitioner seeks review of the denial of his applications for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner's applications were based on his claims that he was kidnapped and assaulted by members of the Zetas, a Mexican criminal syndicate, who released him only after he agreed to pay $15,000 - and that after he reported that incident to the police in defiance of the Zetas’ instructions, corrupt police officers threatened and beat him. The court concluded that it has no authority to consider petitioner’s arguments that the IJ and the BIA erroneously found that he was mistreated by people driven by economic motives - not petitioner’s political opinion as expressed through whistleblowing activity; however, petitioner's challenge to the determination that “former informants” do not constitute a “particular social group” is a legal question that the court has jurisdiction to review; in this case, petitioner's proposed particular social group is not sufficiently particular; the court lacked jurisdiction to consider petitioner’s arguments that, contrary to the factual findings below, he faces a probability of torture upon return to Mexico based on his reporting of his mistreatment and not economic reasons; likewise, the court lacked jurisdiction over his factual arguments regarding the reach and power of the Zetas in Mexico and his ability to safely relocate; and the court does have jurisdiction to the extent petitioner argues that the IJ and BIA applied the wrong legal standard in determining that he could not relocate to a part of Mexico where he is unlikely to be tortured, but that argument fails on its merits. Accordingly, the court dismissed in part and denied in part. View "Hernandez-De La Cruz v. Lynch" on Justia Law

Petitioner, a citizen of El Salvador, seeks review of the BIA's decision affirming the IJ's conclusion that petitioner had not established a lawful admission and that, even if he had, it would not matter because expiration of his temporary residency canceled any effect that the admission would have had. The court concluded that petitioner failed to carry his burden of showing that he was admitted to the United States in 1993. Therefore, the court affirmed the BIA's ruling that petitioner did not demonstrate that he was lawfully admitted and is therefore ineligible for an adjustment of status. Furthermore, the BIA did not err in denying petitioner's motion to reopen based on the ineffective assistance of prior counsel because petitioner has not shown that his evidence was so overwhelming that the BIA’s continued disbelief in his factual assertions was arbitrary, capricious, or utterly unreasonable. Accordingly, the court denied the petition for review because the BIA did not err in rejecting petitioner's initial appeal or his motion to reopen. View "Gomez v. Lynch" on Justia Law

Petitioner, a native and citizen of Pakistan, argues that his asylum status was not terminated when he adjusted to legal permanent resident (LPR) status and that, if it was, the IJ erred in denying his subsequent reapplication for asylum. When affirming the IJ's assertion that petitioner’s LPR status terminated his asylum status, and as a result, his deportation proceedings could commence without termination of his asylum status, the BIA relied on its precedential decision, C-J-H-. The court concluded that, because the BIA failed to address and interpret relevant provisions of the Immigration Nationality Act (INA), including section 1158(c), 8 U.S.C. 1158(c), it did not exercise its Chevron discretion in C-J-H-. Accordingly, the court remanded for the BIA to interpret the relevant INA provisions in the first instance. View "Ali v. Lynch" on Justia Law