Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Eighth Circuit
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The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's request for cancellation of removal. The court concluded that petitioner's grant of Temporary Protected Status (TPS) did not obviate the need for him to demonstrate that he was "admitted" in order to be eligible for cancellation of removal. In this case, 8 U.S.C. 1254a(e) does not excuse section 1229b(a)'s admission requirement for TPS recipients.The court also concluded that petitioner's grant of TPS is not an "admission" for purposes of cancellation of removal. The court explained that its holding in Velasquez v. Barr, 979 F.3d 572, 578 (8th Cir. 2020), is thus limited to adjustment of status and does not bear on whether TPS is an admission for cancellation-of-removal purposes. Furthermore, the fact that section 1254a(f)(4) expressly provides that TPS time counts for these specific purposes indicates it does not apply for other purposes—like cancellation of removal. View "Artola v. Garland" on Justia Law

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The Eighth Circuit affirmed the Board's determination that petitioner's 2011 Iowa conviction for possession of a controlled substance disqualifies him from relief in the form of cancellation of removal. The court concluded that the Board correctly found Iowa Code Section 124.401(5) divisible as between marijuana and other controlled substances, and the Board did not err in finding petitioner ineligible for cancellation of removal. The court also concluded that the Board did not abuse its discretion in denying petitioner's motion for reconsideration when it interpreted petitioner's arguments in his motion as new and as clearly distinct from what he had raised in his appeal. View "Aquino Arroyo v. Garland" on Justia Law

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The Eighth Circuit denied a petition for review challenging petitioner's removability and seeking asylum. Petitioner, a Somali native who is part of a minority Islamic sect called Sufism, fled Somalia to escape the country's civil war. He came to the United States in 2000 and his entire family resides in the United States, including his nine children.The court concluded that petitioner's conviction for possession of khat relates to a federal controlled substance under 8 U.S.C.  1227(a)(2)(B)(i). In this case, khat contains at least one of two substances listed on the federal drug schedules and thus petitioner is removable. In regard to asylum, the court applied de novo review and concluded that petitioner's evidence was insufficient to establish the social distinctiveness of his proposed social group: those suffering from mental health illnesses, specifically post traumatic stress disorder. Furthermore, the Board did not err in concluding that the IJ's factual finding that the Somali government was helpless against al-Shabaab was clearly erroneous. View "Ahmed v. Garland" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's request for asylum. Petitioner feared religious persecution by gangs if she returned to her home country of El Salvador. Because petitioner has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, the court explained that she bears the burden to show that relocation would not be reasonable. The court concluded that substantial evidence supports the BIA's determination that petitioner could relocate to another part of El Salvador if forced to return. In this case, petitioner worked for months in San Salvador without trouble from gangs. View "Guatemala-Pineda v. Wilkinson" on Justia Law

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The Eighth Circuit granted a petition for review of the denial of petitioner's application for cancellation of removal. The court held that petitioner's 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. 1101(a)(43)(B), and thus the 2006 conviction for illegal reentry under 8 U.S.C. 1326 does not qualify as an aggravated felony under 8 U.S.C. 1101(a)(43)(O). Therefore, petitioner is not statutorily ineligible for cancellation of removal and the court remanded for further proceedings. View "Lopez-Chavez v. Garland" on Justia Law

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The Eighth Circuit denied petitions for review of the reinstatement of a 1998 removal order by the DHS and the denial of a motion to reopen the 1998 removal proceedings by the BIA. The court rejected petitioner's contention that his reinstated 1998 removal order was obtained in violation of his constitutional rights, because his counsel was ineffective. The court concluded that petitioner's contention is untimely because it was not raised within thirty days of the underlying removal order, as required by 8 U.S.C. 1252(b)(1). The court also concluded that there is substantial evidence supporting the existence of a prior removal order, and petitioner's reentry was unlawful because he reentered within ten years of his removal without the Attorney General's permission to reapply for admission.The court concluded that the Board correctly determined that the immigration court lacked jurisdiction to reopen the 1998 proceedings. The court explained that an alien ordinarily has a right to file one motion to reopen within ninety days of a final removal order, but an alien forfeits that right by illegally reentering the country. Petitioner's motion also came well after the expiration of the ninety-day time limit for an alien’s motion. Finally, the court agreed with the Board that current law does not allow for a miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order. View "Gutierrez-Gutierrez v. Garland" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's decision to deport and remove petitioner to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The court concluded that the BIA did not err in determining that petitioner's second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal. The court also concluded that the IJ and the BIA did not err in finding that the particularly serious crime bar foreclosed petitioner's relief for withholding of removal under the CAT. Finally, the court need not address the likelihood that petitioner will be tortured because substantial evidence supports the IJ and the BIA's finding that his torture would not be directed by or acquiesced to by the Somali government. View "Jama v. Wilkinson" on Justia Law

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The Eighth Circuit held that the categorical approach does not require a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. Rather, the categorical approach requires a petitioner seeking cancellation of removal to demonstrate that the state offense he was convicted of is broader than the federal offense.In this case, the BIA erred in finding that petitioner was ineligible for cancellation of removal on the basis of his Florida conviction for possession of marijuana. The court explained that the Florida statute is unambiguously broader than the federal law referenced in 8 U.S.C. 1229b(b)(C), and this was all that petitioner was required to show under the categorical approach. Furthermore, because the BIA did not properly consider the IJ's alternative grounds for denying relief, those issues are not properly before the court. The court granted the petition for review, vacated, and remanded for further proceedings. View "Gonzalez v. Wilkinson" on Justia Law

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The Eighth Circuit denied a petition challenging the BIA's denial of petitioner's motion to reopen. The Board denied petitioner's motion as untimely because it was filed more than 90 days after the Board had issued a final administrative decision. The court concluded that petitioner's claims for discretionary relief fail because petitioner does not have a constitutionally protected interest in receiving a second try at a cancellation-of-removal proceeding. Furthermore, because petitioner had no protected interest in a second proceeding, her Fifth Amendment due process challenge to the BIA's decision to deny her motion to reopen failed. Finally, the court concluded that the BIA did not abuse its discretion in denying the motion based on its determination that the new evidence petitioner submitted was not new or material. View "White v. Wilkinson" on Justia Law

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The Eighth Circuit granted in part a petition for review of the the BIA's order upholding the IJ's decision to terminate petitioner's withholding of removal status, deny his application for protection under the Convention Against Torture (CAT), and deny his motion to remand based on new evidence. The court explained that once an alien is found to have committed a particularly serious crime, the agency no longer needs to engage in a separate determination to address whether the alien is a danger to the community. Therefore, the IJ and the BIA did not err in failing to consider petitioner's likelihood of future misconduct.The court found that the BIA's categorical ban on evidence concerning mental health issues is arbitrary and capricious. The court reaffirmed its position that all reliable information pertaining to the nature of the crime, including evidence of mental health conditions, may be considered in a particularly serious crime analysis. The court lacks jurisdiction to review petitioner's claim that the IJ and BIA erred in finding his testimony not credible because the claim relates to the termination of petitioner's statutory withholding of removal. To the extent that such adverse credibility determination impacted petitioner's claim for relief under CAT, the court concluded that the IJ supported her determination with specific, cogent reasons for her disbelief. The court upheld the finding that petitioner had not established that he was more likely than not to be tortured upon his return to Iraq. Accordingly, the court granted the petition for review for further consideration of petitioner's mental health evidence in determining whether he is barred from withholding of removal based on a particularly serious crime. The court otherwise denied the petition. View "Shazi v. Wilkinson" on Justia Law