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

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The Fourth Circuit affirmed in substantial part the district court's issuance of a nationwide injunction as to Section 2(c) of the challenged Second Executive Order (EO-2), holding that the reasonable observer would likely conclude EO-2's primary purpose was to exclude persons from the United States on the basis of their religious beliefs. Section 2(c) reinstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen. Determining that the case was justiciable, the Fourth Circuit held that plaintiffs have more than plausibly alleged that EO-2's stated national security interest was provided in bad faith, as a pretext for its religious purpose. Because the facially legitimate reason offered by the government was not bona fide, the court no longer deferred to that reason and instead may look behind the challenged action. Applying the test in Lemon v. Kurtzman, the court held that the evidence in the record, viewed from the standpoint of the reasonable observer, created a compelling case that EO-2's primary purpose was religious. Then-candidate Trump's campaign statements revealed that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States. President Trump and his aides have made statements that suggest EO-2's purpose was to effectuate the promised Muslim ban, and that its changes from the first executive order reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States. These statements, taken together, provide direct, specific evidence of what motivated both executive orders: President Trump's desire to exclude Muslims from the United States and his intent to effectuate the ban by targeting majority-Muslim nations instead of Muslims explicitly. Because EO-2 likely fails Lemon's purpose prong in violation of the Establishment Clause, the district court did not err in concluding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The court also held that plaintiffs will likely suffer irreparable harm; the Government's asserted national security interests do not outweigh the harm to plaintiffs; and the public interest counsels in favor of upholding the preliminary injunction. Finally, the district court did not abuse its discretion in concluding that a nationwide injunction was necessary to provide complete relief, but erred in issuing an injunction against the President himself. View "International Refugee Assistance Project v. Trump" on Justia Law

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The Fourth Circuit denied a petition for review of a final order of removal, concluding that Maryland third degree burglary qualifies as a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii). The Fourth Circuit explained that Maryland's third degree burglary statute, breaking and entering a dwelling of another, with the intent to commit a crime, implicates moral values beyond the duty to obey the law and inherently is base, vile, or depraved. The act of breaking and entering a dwelling, with the intent to commit any crime, necessarily involves conduct that violates an individual's reasonable expectation that her personal living and sleeping space will remain private and secure. The Fourth Circuit reasoned that an individual's expectation that her dwelling will remain private, secure, and free from intruders intending to commit a crime is violated regardless whether the dwelling is occupied at the time of the burglary. View "Uribe v. Sessions" on Justia Law

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Petitioner, a native of Panama and admitted to the United States on a B-2 visitor visa, was subjected to expedited removal proceedings because he was not lawfully admitted for permanent residence and his burglary offense was an aggravated felony for purposes of immigration law. Petitioner unsuccessfully sought review in the immigration court, petitioned for review, and was then removed. Following the DHS's subsequent cancellation of petitioner's removal order, the Attorney General moved in this Court to dismiss petitioner's petition for review. The court denied the Attorney General's renewed motion to dismiss, concluding that the court was not stripped of jurisdiction in a pending case simply by writing "cancelled" on a removal order the DHS has sued to remove an alien, and the court declined to dismiss the petition on mootness grounds. The court found that the Attorney General waived his remaining arguments. On the merits, the court concluded that the offense of statutory burglary in Virginia does not constitute an aggravated felony for purposes of immigration law. The court concluded that the Virginia burglary statute is indivisible, and application of the modified categorical approach is inappropriate. Using the categorical approach, the court concluded that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. Therefore, the DHS erred in classifying petitioner's conviction as an aggravated felony. The court granted the petition for review, vacated, and remanded. View "Castendet-Lewis v. Sessions III" on Justia Law

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Defendant, a citizen of Jamaica, asserted a Sixth Amendment ineffective assistance of counsel challenge to his conviction under the criminal counterfeiting statute. The district court determined that, although counsel provided deficient performance, defendant was not prejudice because the district court corrected counsel's deficiencies. In this case, defendant unknowingly pleaded to an aggravated felony that rendered him automatically deportable. Counsel had consulted with an immigration attorney regarding repercussions of defendant's plea to his immigration status, but the immigration attorney gave advice based upon an amended version of the statute that did not apply to defendant's case. Therefore, neither counsel nor the district court informed defendant that he was pleading to a crime that rendered him automatically deportable. The court issued a certificate of appealability and addressed defendant's claim on the merits. The court concluded that defendant received deficient performance under the Sixth Amendment, and that it prejudiced defendant because the district court's warnings, which were general and referenced only a vague "risk" or possibility of deportation, did not cure counsel's deficient performance. The court explained that defendant could demonstrate prejudice by showing a reasonable likelihood that, absent his counsel's error, he could have negotiated a different plea agreement or would have gone to trial instead. Accordingly, the court reversed, vacated, and remanded for further proceedings. View "United States v. Swaby" on Justia Law

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Petitioner, a citizen of Honduras, sought review of the BIA's order affirming the IJ's conclusion that she was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Petitioner argued that she feared persecution on account of her nuclear family ties to her husband Johnny Martinez, whom she suspected had been murdered by his employer. The court granted the petition and remanded, concluding that petitioner's familial relationship with Martinez necessarily was one central reason for the persecution and fear of future persecution established by her, thereby meeting the statutory "nexus requirement" for asylum provided in the Immigration and Nationality Act (INA) in 8 U.S.C. 1158(b)(1)(B)(i). View "Cantillano Cruz v. Sessions" on Justia Law

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Robert S. Roland and his wife filed suit against USCIS and related government officials after Roland's Form I-130 Petition for Alien Relative, filed on behalf of his wife, was denied. The USCIS concluded that Roland posed a risk to his wife based on his prior convictions for criminal offenses, including sexual offenses against minors. The district court granted summary judgment to USCIS, concluding that it lacked subject matter jurisdiction under 8 U.S.C. 1252(a)(2)(B)(ii). Based on the plain language of section 1252(a)(2)(B)(ii) and its application of the same in Lee v. U.S. Citizenship & Immigration Servs., the court agreed that the district court lacked subject matter of certain discretionary agency decisions, including the denial of an application for adjustment of status. Accordingly, the court affirmed the judgment. View "Roland v. USCIS" on Justia Law

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Petitioner, a citizen of Thailand, appealed the BIA's decision affirming the IJ's determination that petitioner failed to demonstrate that she entered into her marriage in good faith, as required by 8 U.S.C. 1186a(c)(4)(B). In this case, petitioner sought a hardship waiver that would allow her to stay in the country despite the fact that her marriage to a United States citizen had ended in divorce. The court held that the BIA applied the wrong standard of review because the issue of whether petitioner established that her marriage was entered into in good faith under section 1186a(c)(4)(B) is a mixed question of fact and law, and thus the IJ's ultimate conclusion that the credited evidence did not meet the good faith standard is a legal judgment subject to de novo review. Accordingly, the court granted the petition and remanded for the BIA to review the IJ's determination under the proper standard. View "Upatcha v. Sessions" on Justia Law

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Petitioner, a native and citizen of Pakistan who was granted asylum in 1997, appealed the BIA's decision affirming the IJ's order of removal. The IJ found that petitioner deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status. The court affirmed the BIA's holding that because petitioner adjusted his status from an alien granted asylum to a lawful permanent resident, he no longer had protections based on his original asylum status. In this case, the court concluded that the BIA's interpretation of 8 U.S.C. 1159(b) was the best interpretation of the statute and that, in any event, it deserved Chevron deference. Accordingly, the court denied the petition for review. View "Mahmood v. Sessions" on Justia Law

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Petitioner, a native and citizen of Nepal, challenges the BIA's finding of removeability under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i). Section 237(a)(2)(A)(i) authorizes the removal of any alien who "is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission." Petitioner was considered removeable based on the determination that his 2007 embezzlement conviction constituted a crime involving moral turpitude. The court accorded Chevron deference to the BIA's decision in Matter of Alyazji, to determine that petitioner's relevant "date of admission" was January 18, 2003: the date he was most recently admitted to the United States after taking a brief vacation abroad. Accordingly, the court denied the petition for review. View "Sijapati v. Boente" on Justia Law

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Petitioner, a native of Belarus, seeks review of the BIA's final order of removal based on petitioner's Virginia involuntary manslaughter offense, which the agency deemed a categorical crime involving moral turpitude. The court explained that an involuntary manslaughter conviction can be secured in Virginia without proving a conscious disregard of risks attendant to the offender’s conduct; such a conviction can be predicated on proof that the offender failed to appreciate or be aware of the risks emanating from his conduct. Therefore, the court concluded that Virginia’s involuntary manslaughter offense is not categorically a crime involving moral turpitude. Accordingly, the court granted the petition for review and vacated, remanding for further proceedings. View "Sotnikau v. Lynch" on Justia Law