Justia Immigration Law Opinion Summaries

Petitioner seeks review of the BIA's decision dismissing his appeal of the IJ's denial of his application for cancellation of removal under 8 U.S.C. 1229b(a). The court applied Medina-Nunez v. Lynch and In re Reza-Murillo, holding that the BIA properly concluded that petitioner was not “admitted in any status” for purposes of cancellation of removal when he was listed as a derivative beneficiary on his mother’s asylum and Nicaraguan Adjustment and Central American Relief Act (NACARA), Title II of Pub.L. 105-100, applications and received work authorization in the United States under 8 C.F.R. 274a.12(c). Accordingly, the court dismissed the petition in part because it lacked jurisdiction over petitioner's contention that he was "admitted in any status" and denied it in part. View "Fuentes v. Lynch" on Justia Law

The IJ granted petitioner, a citizen of India, voluntary departure with an alternate order of removal to India. The BIA affirmed the denial of asylum, withholding of removal, and CAT relief, but remanded the case to the IJ. Petitioner did not file a petition to this court for review of the BIA order within 30 days of the June 2011 decision. On remand, the IJ gave petitioner the required advisals and again granted voluntary departure with an alternate order of removal to India. Petitioner again appealed the IJ’s decision to the BIA. The BIA dismissed the second appeal, declined to reinstate voluntary departure, and ordered petitioner removed to India pursuant to the IJ’s alternate order. Because the BIA’s June 2011 decision remanding solely for voluntary departure proceedings is a “final order of removal,” the IJ’s order became unreviewable on July 23, 2011 upon expiration of the 30 day period to petition for review to this court. In light of Pinto v. Holder and consistent with the Sixth and Tenth Circuits, the court concluded that it lacks jurisdiction over petitioner's current petition. Accordingly, petitioner remains subject to immediate removal to India and the court dismissed the petition. View "Singh v. Lynch" on Justia Law

Petitioner, a native and citizen of Guatemala, seeks review of the BIA's affirmance of the IJ's decision declining to consider his application for asylum and denial of withholding of removal and protection under the Convention Against Torture (CAT). The parties agree that the court must remand to the BIA on petitioner's claims for withholding of removal and protection under CAT in light of intervening circuit precedent. The court held that Congress has not clearly expressed whether 8 U.S.C. 1231(a)(5), enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) prevents an individual subject to a reinstated removal order from applying for asylum under 8 U.S.C. 1158. However, the court concluded that the Attorney General’s regulation preventing petitioner from applying for asylum under these circumstances is a reasonable interpretation of the statutory scheme, and is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Accordingly, the court remanded for the BIA to reconsider petitioner's withholding and CAT claims. View "Perez-Guzman v. Lynch" on Justia Law

Petitioner, a native of Nepal, seeks review of the BIA's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on past persecution and fear of future persecution. In this case, the BIA upheld the IJ's adverse credibility finding based on alleged inconsistencies between petitioner's testimony and certain supporting documents, and because petitioner failed to provide additional corroborative evidence, including testimony by his brother. The court held that the inconsistencies identified by the IJ and BIA were either non-existent or procedurally defective because petitioner was not given the chance to explain them. The court noted also that petitioner's in-court testimony was remarkably detailed, consistent with his written declaration, and plausible in light of the U.S. State Department report and other country conditions evidence in the record. The court further concluded that the BIA’s reliance on the absence of testimony from petitioner's brother was error under Ren v. Holder because the IJ did not give petitioner notice and an opportunity to present the corroborative testimony before denying his asylum application. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Bhattarai v. Lynch" on Justia Law

Petitioner, a citizen of Mexico, seeks review of the BIA's decision finding him ineligible for adjustment of status or cancellation of removal. Petitioner was determined ineligible for adjustment or cancellation under 8 U.S.C. 1182(a)(2)(A)(i)(II) because he had been convicted of violating a controlled substance law. The court concluded that a state conviction expunged under state law is still a conviction for purposes of eligibility for cancellation of removal and adjustment of status. And even though incarceration is not required, the federal definition of conviction is satisfied regardless of the rehabilitative purpose of probation, where the alien was punished or his liberty was restrained by the terms of his probation. The court concluded that petitioner is disqualified from seeking cancellation of removal and adjustment of status because he suffered such a qualifying conviction for a crime relating to a controlled substance. Accordingly, the court denied the petition for review. View "Reyes v. Lynch" on Justia Law

Petitioner, a Mexican citizen, challenged the BIA's decision holding that his misdemeanor conviction for participating in cockfighting under 7 U.S.C. 2156(a)(1) is a categorical crime involving moral turpitude (CIMT). In Nunez v. Holder, the court held that non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim. Because the IJ and BIA never discussed how the statute of conviction - cockfighting - involved a “protected class of victim,” the court remanded for the BIA to consider the issue in light of Nunez. While the court's case law does not explicitly require the BIA to apply this language in Nunez, the court noted that a remand is appropriate in this case because the crime at issue involving harm to chickens is, at first blush, outside the realm of CIMTs. View "Ortega-Lopez v. Lynch" on Justia Law

Petitioner, a Mexican citizen and transgender woman, was apprehended in South Carolina and removed under a Ninth Circuit in absentia removal order. After returning to the U.S. unlawfully, she was apprehended and a reinstated removal order, based on her previous in absentia removal order, was filed against her in North Carolina. At issue is whether the petition for review properly falls under the Ninth Circuit’s judicial authority. In this case, petitioner's in absentia removal order was issued by an IJ in the Ninth Circuit, but venue is ultimately proper in the Eleventh Circuit where the IJ completed proceedings that finalized petitioner's reinstated removal order. The court joined its sister circuits and held that 8 U.S.C. 1252(b)(2)’s venue provision is not jurisdictional. As a result, the court has subject matter jurisdiction over petitioner's claim even if venue is not proper here. Due to the unique circumstances of this case, the court will keep the petition in the Ninth Circuit in the interest of justice. Accordingly, the court remanded to the BIA for further proceedings. View "Bibiano v. Lynch" on Justia Law

Plaintiffs, lawful permanent residents who have committed a crime that could lead to removal and are subject to mandatory detention under 8 U.S.C. 1226(c), filed a class action petition for habeas relief. At issue is whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody. If the answer is no, then the alien may still be detained, but he may seek release in a bond hearing under 8 U.S.C. 1226(a) by showing that he poses neither a risk of flight nor a danger to the community. The court concluded that the statute unambiguously imposes mandatory detention without bond only on those aliens taken by the AG into immigration custody “when [they are] released” from criminal custody. And because Congress’s use of the word “when” conveys immediacy, the court concluded that the immigration detention must occur promptly upon the aliens’ release from criminal custody. Accordingly, the court affirmed the district court's class certification order and preliminary injunction. View "Preap v. Johnson" on Justia Law

Petitioner, a native and citizen of Indonesia, seeks review of the BIA's denial of his motion to reopen his asylum and withholding of removal proceedings. The court concluded that the BIA improperly evaluated petitioner’s submission of newly available, material evidence of changed country conditions in Indonesia, particularly in light of his conversion to Catholicism following his 2006 hearing and the change in the basis of his claim for relief; the Board abused its discretion in concluding that the evidence provided with his motion to reopen was “cumulative” of the evidence submitted at the time of the earlier hearing; the BIA erred in its analysis of petitioner's individualized risk, as it failed to consider the evidence relating to that question in the context of his membership in a disfavored group; and, given the Board’s legal errors in rejecting petitioner’s motion to reopen, the court granted his petition for review, and remanded for further proceedings. View "Salim v. Lynch" on Justia Law

Petitioner, a legal permanent resident, seeks review of the BIA's decision finding him removable and ineligible for cancellation of removal. The court concluded that petitioner's conviction for attempted criminal threats, under California Penal Code sections 422 and 664, constitutes an aggravated felony for which he is removable. First, attempted criminal threats is categorically a crime of violence as defined under 18 U.S.C. 16(a). Second, the California superior court designated the conviction as a felony and imposed a sentence of “at least one year.” Accordingly, petitioner is removable under 8 U.S.C. 1101(a)(43)(F) and is ineligible for cancellation of removal. The court denied the petition. View "Hernandez v. Lynch" on Justia Law