Justia Immigration Law Opinion Summaries

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

After petitioner, a lawful permanent resident, was convicted of one count of trafficking in counterfeit goods in violation of 18 U.S.C. 2320(a), USCIS denied petitioner her application for naturalization. USCIS concluded that petitioner had been convicted of an offense involving fraud or deceit with a loss to the victim of over $10,000, an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i). The court held that a conviction under section 2320 does not necessarily involve fraud or deceit because a defendant can be convicted of trafficking in counterfeit goods for conduct that is merely likely to cause “mistake” or “confusion.” Therefore, petitioner's conviction was not an aggravated felony under section 1101(a)(43)(M)(i). The court reversed and remanded for further proceedings. View "Lifeng Wang v. Rodriquez" on Justia Law

Petitioner, a native and citizen of Mongolia, seeks review of the BIA's decision to deny his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner asserts that his whistleblowing activities constituted a political opinion for which he was persecuted with either the consent or acquiescence of government actors. The court adopted the analytical framework of Matter of N–M– for the purpose of identifying whether an applicant has established the required factual nexus between any purported political whistleblowing and actual persecution. Under this framework, the court concluded that substantial evidence supports the Board’s conclusion that petitioner failed to present evidence that his purported persecutors were motivated by his anticorruption beliefs, or that the corruption was even connected to government actors. In this case, petitioner failed to establish that his whistleblowing amounted to political opinion as a protected ground, or that he was persecuted by or at the acquiescence of government officials. In regard to CAT relief, the court agreed with the Board that it was unlikely that petitioner would face torture at the hands of the government if returned to Mongolia. Accordingly, the court denied the petition for review. View "Lkhagvasuren v. Lynch" on Justia Law

Petitioner was deported to El Salvador following a misdemeanor firearms conviction. Petitioner subsequently reentered the United States without inspection and then filed a motion to reopen, his second, on the ground that his original lawyer did not properly advise him how to adjust his status after he married a United States citizen. After the Supreme Court announced a change in law that placed in question the legality of the original deportation, petitioner supplemented his motion to reopen. The court concluded that petitioner was not entitled to equitable tolling and denied review as to the adjustment of status issue; the court agreed with every circuit that has squarely addressed the issue, and held that it has authority to review refusals to reopen sua sponte to the limited degree that the refusal was based on legal error; and, because the court concluded that the Board’s decision in this case was based on a legally erroneous premise, the court granted the petition for review, vacated the Board’s denial, and remanded to the Board to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop. View "Bonilla v. Lynch" on Justia Law

Petitioner is a Salvadoran citizen and national who was a former Salvadoran professional soccer player and then government official. The IJ concluded that petitioner was ineligible for asylum and withholding of removal because there were serious reasons for believing he committed serious nonpolitical crimes in both El Salvador and Guatemala; the IJ found petitioner to be non-credible after concluding that his explanation for failing to report his violent interactions with police in his asylum application was highly implausible; the IJ pointed out that petitioner admitted to having lied to the Salvadoran court, and found that petitioner failed to produce relevant evidence corroborating his story about the attacks; and the IJ held that petitioner has not met his burden under the Convention Against Torture (CAT) because he had neither demonstrated he would likely be tortured in either El Salvador or Guatemala. The BIA thereafter dismissed petitioner's appeal and largely adopted the IJ's reasoning. The court concluded that the agency's credibility determination was valid; the Guatemalan charges provide a sufficient basis upon which to conclude that petitioner is ineligible for asylum and withholding of removal; petitioner's law of the case argument is meritless; and, in regard to the CAT claim, the BIA's order commanding petitioner's removal to Nicaragua stands. Accordingly, the court denied the petition for review. View "Silva-Pereira v. Lynch" on Justia Law

The plaintiff class and the government entered into a settlement agreement in 1997 which “sets out nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” In 2015, the plaintiff class moved to enforce the Settlement, arguing that it applied to all minors in the custody of immigration authorities. The court concluded that the settlement unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents. The district court erred in interpreting the Settlement to provide release rights to adults. The court also concluded that the district court did not abuse its discretion in denying the motion to amend on the record before it. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Flores v. Lynch" on Justia Law

Rolando Mora-Huerta, a Mexican national, was denied a visa application by a consular officer on the ground that he was a “gang associate” who intended to enter the United States to engage in unlawful conduct. Plaintiff, Mora's wife and a United States citizen, filed suit challenging the consular officer's decision. The court held that, under Marks v. United States, and the court's recent en banc decision in United States v. Davis, Justice Kennedy's concurrence in Kerry v. Din is the controlling opinion. Under the Din concurrence, the facially legitimate and bona fide reason test has two components. First, the consular officer must deny the visa under a valid statute of inadmissibility. Second, the consular officer must cite an admissibility statute that “specifies discrete factual predicates the consular officer must find to exist before denying a visa,”or there must be a fact in the record that “provides at least a facial connection to” the statutory ground of inadmissibility. Applying that opinion to this case, the court concluded that the consular officer gave a facially legitimate reason to denying Mora's visa because he cited a valid statute of inadmissibility and a bona fide factual reason that provided a facial connection to the statutory ground of inadmissibility: the belief that Mora was a gang associate. Accordingly, the court affirmed the district court's dismissal of the complaint. View "Cardenas v. Lynch" on Justia Law