Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of the Democratic Republic of the Congo, seeks review of the BIA's final order of removal affirming the IJ's conclusion that petitioner filed a frivolous asylum application and was therefore ineligible for adjustment of status. The court concluded that notice set forth in the I-589 application for asylum suffices to satisfy the requirement under 8 U.S.C. 1158(d)(4)(A) that the applicant be notified of the consequences of filing a frivolous application. Although an immigration judge is free to give an applicant additional warnings during the hearing, there is no statutory requirement that he do so. Therefore, the court rejected petitioner's contention that he did not receive adequate notice. The court rejected petitioner's remaining claims and denied the petition for review. View "Ndibu v. Lynch" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, seeks review of the BIA's decision finding him ineligible for cancellation of removal because he is an aggravated felon. The court held that, based on the court's application of the categorical approach, a conviction under the second paragraph of 18 U.S.C. 659 is not a “theft offense (including receipt of stolen property)” under 8 U.S.C. 1101(a)(43)(G). Therefore, the BIA erred in finding petitioner to be an aggravated felon who is ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3). Accordingly, the court granted the petition for review and remanded for further proceedings. View "Mena v. Lynch" on Justia Law

Petitioner, a native of Haiti, seeks review of the denial of his application for deferral or removal under the Convention Against Torture (CAT) and the denial of his motion to reopen removal proceedings. The BIA explained in In re J-E- that, as usually defined, “specific intent” constitutes “[t]he intent to accomplish the precise criminal act that one is later charged with.” The distinction between specific and general intent rests on the mens rea related to the consequences of a wrongful act. Haiti’s detention of criminal deportees under extremely substandard conditions constitutes the challenged wrongful act both here and in In re J-E-. On the record before it, the BIA found that “Haitian prison conditions are the result of budgetary and management problems as well as the country’s severe economic difficulties,” and not part of an intentional effort to punish criminal deportees. In re J-E- requires a CAT claimant to demonstrate that the state actor who mistreats him desires to cause his severe pain and suffering, and is not merely negligent nor reckless as to the risk. Petitioner argues that a claimant should be able to satisfy this requirement by demonstrating that an official acts with knowledge to a near certainty that he will cause severe pain and suffering. The court joined the majority of its sister circuits, who have considered the issue, in deferring to the BIA's interpretation of the CAT’s intent requirement as articulated in In re J-E-. The court rejected petitioner's contention that the IJ and BIA committed legal error in following the precedent established in In re J-E- to deny his application for deferral of removal under the CAT. Accordingly, the court denied the petition for review and dismissed for lack of jurisdiction the petition for review from the order denying his motion to reopen. View "Oxygene v. Lynch" on Justia Law

Petitioner, a native of Nigeria and the adopted son of a United States citizen, petitioned for review of the BIA's denial of his motion to reopen removal proceedings. At issue is the statutory phrase, “adopted while under the age of sixteen years.” 8 U.S.C. 1101(b)(1)(E)(i). The court concluded that the plain meaning of “adopted” in section 1101(b)(1)(E)(i) forecloses the BIA’s summary disregard of facially valid nunc pro tunc orders relating to adoptions conducted by the various state courts. Here, it was contrary to law for the BIA not to recognize the nunc pro tunc order in petitioner's case and thus the BIA abused its discretion in denying petitioner's motion to reopen his removal proceedings. Accordingly, the court granted the petition for review. View "Ojo v. Lynch" on Justia Law

Petitioner, a native of Haiti, was ordered removed on the grounds that he is an alien who has been convicted of an aggravated felony. Because the Notice of Intent, Form I-851, expressly prompts aliens to raise only factual challenges to removal, the court held that petitioner was not required to raise his legal challenge to removal in order to meet the exhaustion requirement of INA 242(d)(1), 8 U.S.C. 1252(d)(1). Consequently, the court has jurisdiction to consider the petition for review. On the merits, the court concluded that nothing rebuts the common-law presumption when interpreting the term “conspiracy” in the INA. Accordingly, under the categorical approach, a state-law conspiracy need not require proof of an overt act to be classified as an “aggravated felony.” Therefore, the court held that DHS properly classified petitioner’s conviction and the court denied the petition for review. View "Etienne v. Lynch" on Justia Law

Petitioner, a native and citizen of Honduras, petitioned for review of the BIA's decision ordering him removed and denying his motion for reconsideration. The court held that the IJ and the BIA did not err in determining that petitioner was convicted of a "particularly serious crime" rendering him ineligible for withholding of removal under the Immigration and Naturalization Act, 8 U.S.C. 1231(b)(3)(8), and the Convention Against Torture (CAT). The court also held that the BIA did not abuse its discretion in denying petitioner's motion for reconsideration. Because petitioner was convicted of a state crime involving a controlled substance, the court lacks jurisdiction to review questions of fact underlying the present order denying him deferral of removal. Therefore, the court does not have jurisdiction to consider the merits of his claims for deferral or removal under the CAT. The court dismissed in part, and denied in part, the petitions for review. View "Hernandez-Nolasco v. Lynch" on Justia Law

Petitioner, a native of Senegal, challenged the denial of a continuance or administrative closure of his removal proceedings so he could receive a mental health evaluation. Petitioner was deemed removeable after he pled guilty to three counts of second-degree assault following a psychotic episode at his workplace. The court denied the petition for review, concluding that the IJ did not procedurally or substantively err in assessing petitioner's mental competency. In this case, petitioner had received one continuance after another and there was no defect in the proceedings. View "Diop v. Lynch" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's affirmance of the IJ's denial of his application for asylum and withholding of removal. Petitioner argued that his life would be threatened because of his membership in one of two particular social groups: (1) “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and (2) “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.” The court concluded that the BIA erred by interpreting the nexus requirement too narrowly, and that petitioner successfully demonstrated that membership in his proposed social groups was at least one central reason for his persecution; the BIA failed to adequately address the record evidence in making its determination that petitioner’s proposed social groups were not cognizable; and, therefore, the court granted the petition, reversed in part, vacated in part, and remanded for proper consideration of the cognizable social group issue. View "Oliva v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's order affirming the IJ's pretermission of petitioner's application for cancellation of removal. The court found that petitioner's conviction for assault with a deadly weapon, committed against someone with whom he had a domestic relationship, renders him ineligible for cancellation of removal under 8 U.S.C. 1229b(b). Accordingly, the court affirmed the judgment and denied the petition for review. View "Hernandez-Zavala v. Lynch" on Justia Law