Justia Immigration Law Opinion Summaries

Defendant was convicted of illegal entry in violation of 8 U.S.C. 1325 and illegal reentry in violation of 8 U.S.C. 1326, predicated on his expedited removal in 2012. The court concluded that defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government’s failure to inform him of the possibility of withdrawal relief. Because defendant's 2012 removal was not fundamentally unfair, the court affirmed the section 1326 conviction and sentence for illegal reentry. Because the revocation of defendant's revocation of his supervised release was premised on the section 1326 conviction, the court also affirmed the district court's revocation. View "United States v. Peralta-Sanchez" on Justia Law

Petitioner seeks review of the IJ and BIA's conclusion that he was ineligible for cancellation of removal, and order of removal. Petitioner's removal was based on his 1998 conviction for delivery of a controlled substance (heroin) under Oregon Revised Statutes 475.992(1)(a). The court concluded that section 475.992(1)(a) is overbroad in its definition of “delivery,” and the modified categorical approach may not be applied because section 475.992(1)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation. Therefore, the court held that a conviction for delivering heroin under section 475.992(1)(a) is not an aggravated felony. The court granted the petition for review and remanded. View "Sandoval v. Yates" on Justia Law

Petitioner, a native and citizen of El Salvador, seeks review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal. The IJ determined that petitioner was removeable based on her prior conviction under California Penal Code section 136.1(a), for witness tampering, because it is a categorical crime involving moral turpitude. The court granted the petition for review with respect to the application for cancellation of removal, concluding that the IJ and BIA failed to consider the broad definition of “malice” in section 136, which indicates that the offense is not a categorical match to the generic definition of a crime involving moral turpitude. The court declined to reach the question of divisibility sua sponte. The court remanded to the BIA to consider whether section 136.1(a) is divisible and, if so, to conduct the modified categorical analysis. View "Duran Escobar v. Lynch" on Justia Law

Petitioner seeks review of the BIA's affirmance of the IJ's denial of withholding of removal and denial of relief under the Convention Against Torture (CAT). The court rejected the BIA's decision to follow its own precedent in Matter of C-T-L, which held that the "one central reason" test for asylum applies to withholding, even though the withholding statute says merely "a reason." The court held that "a reason" is a less demanding standard than "one central reason." Because the BIA accepted the government’s view under the wrong standard, the court remanded to the BIA to decide the case under the correct standard: " a reason" rather than "one central reason." The court also concluded that the statute and regulations do not establish a “rogue official” exception to CAT relief. The court explained that the regulations say that torture has to be at the instigation of or with the consent or acquiescence of a public official or some other person acting in an official capacity. In this case, the record leaves no room for doubt the four policemen that attacked petitioner were public officials who themselves inflicted the torture. Because the BIA did not evaluate relocation under the no-burden-shifting standard, and applied the incorrect standard in assessing petitioner's withholding claim, the court remanded pursuant to INS v. Ventura. Accordingly, the court granted the petition. View "Barajas-Romero v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's affirmance of the IJ's decision finding him ineligible for cancellation of removal based on his conviction for four counts of shoplifting, as well as his controlled substance conviction. The court held that INA 212(h), 8 U.S.C. 1182(h), permits the Attorney General to waive only a ground of inadmissibility; it cannot waive a conviction that bars cancellation of removal. Petitioner was found to be inadmissible not on the grounds of his shoplifting or marijuana possession convictions, but because he entered without inspection. Consequently, the 212(h) waiver provision does not apply to his inadmissibility finding. In this case, petitioner's shoplifting convictions preclude him from seeking cancellation of removal and the court declined to reach his argument that treating a conviction for the possession of marijuana as a bar to cancellation of removal is arbitrary and capricious. Accordingly, the court denied the petition for review. View "Guerrero-Roque v. Lynch" on Justia Law

Petitioner, a native and citizen of El Salvador, seeks review of the BIA's opinion in Matter of W-G-R-, wherein the BIA dismissed petitioner's appeal from an IJ's denial of petitioner's applications for withholding of removal and relief from removal under Article 3 of the Convention Against Torture (CAT). The court denied the petition with regards to petitioner's claims for withholding of removal. The court concluded that the BIA's articulation of its “particularity” and “social distinction” requirements for demonstrating membership in a “particular social group” are entitled to Chevron deference; the BIA reasonably determined that petitioner's proposed particular social groups of “former members of Mara 18” and “deportees from the United States to El Salvador” are not cognizable; but the court granted the petition with respect to the denial of petitioner's CAT claim because the IJ committed legal error and the BIA employed an impermissible standard of review in assessing petitioner's request for CAT relief. The court remanded to allow the agency to reconsider the application for CAT relief recognizing that killings can constitute torture and to undertake the requisite fact finding in accordance with the agency’s regulations. View "Garay Reyes v. Lynch" on Justia Law

Petitioner, a native and citizen of Peru, seeks review of the BIA's refusal to consider his application for adjustment of status in proceedings limited to consideration of relief related to asylum. Petitioner fraudulently entered the United States under an Italian passport in order to gain the benefits of the Visa Waiver Program (VWP). The court joined its sister circuits and held that an ineligible alien who fraudulently enters under the VWP is bound by the VWP’s limitations, including its waiver of any challenge to deportation other than asylum. The court also concluded that the lack of a nexus to a protected ground is dispositive of petitioner's asylum and withholding of removal claims. Finally, with respect to the CAT claim, the court found nothing in the record compelling a contrary conclusion to that of the IJ. Accordingly, the court denied the petition. View "Riera-Riera v. Lynch" on Justia Law

The Supreme Court unanimously held in Holder v. Martinez Gutierrez that the BIA permissibly construed section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. 1229b(a), when it concluded that an alien seeking cancellation of removal had to satisfy the years-of-residence requirement on his own, without relying on a parent’s residential history. In this case, petitioner argues that Martinez Gutierrez announced a new rule of law and that, under Chevron Oil Co. v. Huson, its holding should not be applied retroactively to him. The court concluded, however, that petitioner's citation of Nunez-Reyes v. Holder in support of his argument for prospective application of Martinez Gutierrez is not persuasive. The court explained that this case is different from Nunez-Reyes where the court is not overruling its own firmly rooted precedent and the record offers no evidence that applying Martinez Gutierrez retroactively will risk the sort of broad injustice that concerned the court in Nunez-Reyes. Therefore, the court concluded that Chevron Oil is not applicable in this case and that Garfias-Rodriguez v. Holder offers a much closer analogy to this case. Garfias-Rodriguez held that in this situation the proper approach to the issue of retroactivity is set forth in Montgomery Ward & Co., Inc. v. FTC. Applying the Montgomery Ward factors, the court held that Martinez Gutierrez should be applied retroactively. Accordingly, the court denied the petition for review. View "Lemus v. Lynch" on Justia Law

Petitioner, a Mexican citizen, seeks review of the denial of her application for a waiver of inadmissibility and adjustment of her status to that of a lawful permanent resident. At issue is a question of first impression for the federal courts: Has an alien “reentered” the United States for the purpose of reinstating a removal order, 8 U.S.C. 1231(a)(5), when she was previously removed at a border-crossing checkpoint? The court held that that when, as here, an alien is issued an expedited removal order at a U.S. border-crossing checkpoint, that alien has entered the United States for the purpose of the reinstatement provision’s “reentry” requirement. The court applied the plain meaning of the provision in question and, under this definition, petitioner entered the country when she left Mexico and came into the sovereign territory of the United States at the San Ysidro border-crossing station. The court noted that its decision—which is limited to the reinstatement provision’s definition of “reentry”—does not disturb the longstanding common-law definition. Accordingly, the court denied the petition for review. View "Tellez v. Lynch" on Justia Law

Petitioners Mendez-Garcia and Rivera-Baltazar claim in separate applications that removal would result in hardship to their respective sons, who were United States citizens under 21 years of age at the time of the application pursuant to 8 U.S.C. 1229b(b)(1)(D). While these applications were pending, petitioners’ sons turned 21 and no longer met the statutory definition of “child,” pursuant to section 1101(b)(1). The BIA denied relief. The court concluded that, because the BIA offered a reasonable interpretation of section 1229b, the IJ in each case did not err in considering whether Mendez-Garcia and Rivera-Baltazar had a qualifying relative for purposes of the hardship requirement as of the time of the decision on the application for cancellation of removal; even assuming that Matter of Isidro-Zamorano and the precedents on which it relies are factually distinguishable from the situations here, the BIA’s interpretation of the hardship requirement in section 1229b(b)(1)(D) would nonetheless be binding; the statutory definition of "child" controls because section 1101(b)(1) includes an explicit definition of the term; the decisionmaking process here did not violate Mendez-Garcia’s and Rivera-Baltazar’s due process rights; the court rejected petitioners' argument that their due process rights were violated because they had “settled expectations” that they could apply for and receive cancellation of removal, and these settled expectations were upset by the change in the status of their qualifying relatives; and the court rejected Mendez-Garcia's claim that his due process rights were violated based on the cap on grants of cancellation of removal. Accordingly, the court denied the petitions. View "Mendez-Garcia v. Lynch" on Justia Law