Justia Immigration Law Opinion Summaries

After the district court granted petitioner's application for naturalization, petitioner then moved for attorney's fees and costs under the Equal Access to Justice Act (EAJA). The district court denied the motion. The government concedes that petitioner is entitled to costs in the amount he requests because he is the prevailing party and, unlike for attorney's fees, there is no "substantially justified" requirement for costs under the EAJA.The Eighth Circuit affirmed the district court's order with modifications that petitioner is awarded costs. The court held that the district court did not abuse its discretion by determining that the government's position was substantially justified and did not err in denying the requested attorneys' fees under the EAJA. In this case, the government's position that petitioner lacked good moral character because he had given false testimony for the purpose of obtaining immigration or naturalization benefits was substantially justified. Finally, the court denied petitioner's motion to supplement the record. View "Garcia v. Barr" on Justia Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging defendant with illegal reentry in the United States. The court held that an alien may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair.In this case, defendant failed to meet his burden on any of the elements. Furthermore, even if defendant could collaterally attack the deportation order under Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018), his attack fails. Therefore, the immigration court had jurisdiction over defendant's deportation proceedings and the district court did not err in denying his motion to dismiss the indictment. View "United States v. Aquilar Escobar" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's final order affirming the IJ's order of removal. Petitioner and her son, natives and citizens of El Salvador, filed an application for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT), claiming that she was persecuted because of her family membership.The court held that petitioner's financial resources, rather than her family membership, was the central reason for the persecution; the Board did not err in concluding that petitioner's first group -- membership in the Fuentes family -- is not cognizable; petitioner failed to prove past persecution on account of her membership in two other particular social groups -- Salvadoran female heads of households and vulnerable Salvadorean females; and, having failed to establish past persecution, petitioner is not entitled to a presumption of a well-founded fear of future persecution. Consequently, petitioner cannot meet the higher standard of proof for withholding of removal. View "Rodriguez Fuentes v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal from an IJ's decision denying deferral of removal under the Convention Against Torture (CAT). As a preliminary matter, the court held that it need not determine whether the BIA applied an incorrect legal standard of review, because petitioner did not raise the aggregate risk argument before the BIA.The court held that the BIA correctly found that res judicata did not bar consideration of past torture petitioner suffered in the 1980s and any error by the IJ in concluding otherwise was harmless both because the IJ nevertheless considered that evidence and because the BIA also considered the evidence and applied the correct legal standard. The court also held that substantial evidence in the record supports the BIA's conclusion that petitioner's argument that he would likely be tortured upon return to Iraq was based on a chain of assumptions and speculation. View "Alzawed v. Barr" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's final order of removal denying petitioner's application for deferral of removal under the Convention Against Torture (CAT). As a preliminary matter, the court held that it was precluded from reviewing the issue of whether the BIA incorrectly applied the clear error standard of review and engaged in improper factfinding, because petitioner had not exhausted his administrative remedies as to these issues when he filed his initial petition, and because, after exhausting, he never properly petitioned this court to review them.The court also held that the BIA did not err in finding that petitioner had failed to meet his burden of persuasion that he is more likely than not to be tortured if returned to South Sudan. In this case, the BIA's decision is supported by substantial evidence because the BIA correctly concluded that petitioner must show more than a pattern of general ethnic violence in South Sudan to meet the CAT's likelihood requirement. Therefore, a reasonable adjudicator could have found the evidence insufficient to establish a likelihood of torture. View "Lasu v. Barr" on Justia Law

In 2001, Shire, a citizen of Somalia, was lawfully admitted to the U.S. as a refugee; in 2004, he obtained lawful permanent resident status. In 2006, Shire pled guilty to two drug offenses and was sentenced to 170 days' imprisonment. In 2008, an IJ ordered him removed under 8 U.S.C. 1227(a)(2)(B)(i). In 2018, Shire, still in the U.S., moved to reopen his removal proceedings to apply for asylum, citing changed country conditions.The IJ denied relief, noting that al-Shabaab came into prominence in 2006 and was using the same tactics in 2018 that it had been using in 2008. The IJ also determined that Shire failed to demonstrate a substantial likelihood of a different outcome, noting that Shire’s conviction for an aggravated felony rendered him ineligible for asylum and withholding of removal. Shire did not establish entitlement to relief from removal under the Convention Against Torture; the Somali government, while weak, was resisting al-Shabaab and would not acquiesce to the torture of its citizens; the number of deaths from al-Shabaab was low compared to the total population of Somalia; and Shire’s personal circumstances did not subject him to particular notoriety in Somalia. The BIA affirmed. In 2019, Shire was removed to Somalia. The Eighth Circuit denied a petition for review, finding those conclusions supported by substantial evidence. View "Shire v. Barr" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of his motion to reopen removal proceedings and to deny his motion to remand. The court held that it lacked jurisdiction to review the vast majority of petitioner's arguments concerning his motion to reopen his asylum and withholding of removal claims because they merely constitute a brief in opposition to the BIA's factual findings.In regard to the CAT claim, the court held that the BIA did not abuse its discretion in determining that he had not shown facts that would likely change the result in the case on account of a material change in country conditions. In regard to the motion for remand, the court lacked jurisdiction to review petitioner's arguments to the extent they concern his asylum and withholding of removal claims; petitioner's claims that the BIA committed legal error lacked merit; and the court cannot say the BIA abused its discretion in determining that further proceedings on his motion to reopen his CAT claim were not warranted by the newly presented evidence attached to his motion to remand. Finally, the court rejected petitioner's Fifth Amendment due process claim. View "Sharif v. Barr" on Justia Law

The Eighth Circuit affirmed the BIA's final order of removal, rejecting petitioner's claim under the Convention Against Torture (CAT) for deferral of his removal to Somalia. In this case, the BIA concluded that the IJ's ultimate finding that petitioner would more likely than not be tortured if returned to Somalia depended on testimony that was unsupported by adequate foundation, relied on country reports that discussed human rights violations at too high a level of generality, and cited treatment of persons with HIV that either fell short of torture or was not sufficiently widespread to show that petitioner likely would suffer torture.The court held that petitioner's claim -- that the agency never had subject matter jurisdiction to order him removed because the Notice to Appear issued by the Department did not specify a time and place of his removal proceedings -- is foreclosed by Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019). The court also held that the BIA's reasoning addressed the relevant evidence and provided sufficient justification for concluding that the IJ's finding was clearly erroneous. The court stated that it was satisfied that the BIA's decision accounted for all of the asserted risks in concluding that the IJ clearly erred. View "Abdi Omar v. Barr" on Justia Law

The Eighth Circuit affirmed defendant's conviction for illegal reentry after removal. Defendant makes a collateral attack on his 2008 removal, arguing that failure to provide him a Spanish interpretation of his Notice of Intent deprived him of the ability to challenge the government's decision to classify him as an aggravated felon, and thus depriving him of the opportunity to seek voluntary departure.The court held that, assuming that defendant was not an aggravated felon, he was not reasonably likely to have received preconclusion voluntary departure at the time of his removal in 2008. Therefore, defendant cannot show prejudice as required by 8 U.S.C. 1326(d)(3), and the district court properly denied his motion to dismiss the indictment. In this case, defendant failed to present compelling positive equities, like close relatives who are United States citizens or legal permanent residents, and defendant failed to reference a single case where an alien convicted of a felony sexual offense has received pre-conclusion voluntary departure. In light of defendant's serious and recent felony convictions and the lack of a sufficiently compelling counter-balancing factor at the time of his removal, the court concluded that it is not reasonably likely that he would have received pre-conclusion voluntary departure. View "United States v. Ramirez" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner is removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having been convicted of a crime involving moral turpitude.The court held that petitioner's conviction for obstruction of legal process in violation of Minn. Stat. Ann. 609.50, subdiv. 2(2) does not categorically constitute a crime involving moral turpitude. The court stated that there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude. Furthermore, the level of harm required to complete the offense is also insufficient to constitute a crime involving moral turpitude. Therefore, the BIA erred in finding otherwise and the court vacated the order of removal. View "Ortiz v. Barr" on Justia Law