Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Eighth Circuit
by
Petitioner, a native of Côte d’Ivoire and citizen of Burkina Faso was admitted to the United States in 2016 with an F-1 student visa. Petitioner soon withdrew from the university, terminating his student visa. He sought asylum, withholding of removal, and CAT relief based on his fears of harm from his political opinions and affiliation with the Congress for Democracy and Progress. Three years later, he updated his affidavit with two additional bases for fear of future persecution: his Christian faith and Fulani ethnicity. Petitioner petitioned for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and Convention Against Torture protections. Petitioner argued that the BIA abused its discretion by finding no clear error in the IJ’s adverse credibility determination.   The Eighth Circuit denied the petition. The court held that because the IJ identified specific, cogent reasons to disbelieve Petitioner’s testimony, sufficient evidence supports the IJ’s adverse credibility determination. The BIA did not err in affirming the IJ’s denial of asylum or withholding of removal. Petitioner argued that the IJ’s adverse credibility determination for his asylum and withholding-of-removal applications should not foreclose his application for CAT protections. Because Petitioner did not raise these arguments before the BIA, they are unexhausted, and the Eighth Circuit lacks jurisdiction to consider them. View "Wendkouni Zongo v. Merrick B. Garland" on Justia Law

by
In 2019, the Department of Homeland Security charged Petitioner with removability for two counts of being an aggravated felon and for having been convicted of a crime involving moral turpitude within five years of being admitted to the United States. Petitioner conceded her removability, making her inadmissible to the United States and subject to deportation. Seeking relief from removal, Petitioner applied for a waiver of inadmissibility. To qualify for the waiver, Petitioner needed to demonstrate statutory eligibility and that the equities warranted a favorable exercise of discretion. The Immigration Judge denied Petitioner’s application. Petitioner petitioned for review of the Board of Immigration Appeals’ denial of her waiver of inadmissibility.   The Eighth Circuit denied in part and dismissed in part. The court explained that although the BIA did not include hardship to Petitioner’s relatives when it listed Petitioner’s positive equities, it still considered hardship in its decision. The BIA recognized that Petitioner’s removal would “likely result in a considerable level of hardship to herself, her spouse, and her children.” Accordingly, the court denied Petitioner’s petition on this ground. Further, Petitioner challenged the BIA’s weighing of equities, specifically how it weighed her crimes. The court wrote that this is not a reviewable question of law. It is a challenge to “the discretionary conclusion of not meriting a favorable exercise of discretion,” which the court does not have jurisdiction to review. View "Aisha King v. Merrick B. Garland" on Justia Law

by
Petitioner, a citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. The Board concluded that Petitioner’s prior conviction in Kansas for possession of methamphetamine made him removable from the United States.   The Eighth Circuit concluded that Petitioner is removable and therefore denied the petition for review. Petitioner contends that the approved instruction allows a prosecutor to charge a defendant with possession of multiple drugs in the alternative. But the instruction calls for insertion of a “controlled substance” in the singular, and recommends that “an alternative charge instruction not be given” because “the defendant cannot be convicted of multiplicitous crimes.”   Petitioner further asserted that drug type must be a “means” of committing the offense because Section 21-5706(c)(1) imposes the same punishment for possession of each substance. But while different punishments would conclusively establish that drug type is an element, equivalent punishments do not show that drug type is a means. The legislature may simply have concluded that each separate drug possession offense deserves the same punishment, regardless of whether the offender possessed cocaine, heroin, or methamphetamine. Accordingly, the court held that the Board correctly concluded Petitioner was removable for committing a controlled substance offense. View "Humberto Barbosa v. Merrick Garland" on Justia Law

by
Petitioner, a forty-seven-year-old native and citizen of Mexico, first entered the United States in 1991 and, most recently, in 1996 without inspection. The Department of Homeland Security (“DHS”) initiated removal proceedings. Petitioner conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), claiming past persecution and well-founded fear of future persecution and torture in Mexico because of his membership in two Particular Social Groups (“PSGs”), “Married Homosexual Men” and “Homosexual Men in Mexico.” More than five years later, after evidentiary hearings but before Petitioner applied to the U.S. Citizenship and Immigration Services for a U-visa, the Immigration Judge (“IJ”) denied Petitioner’s motion for a continuance to file a U-visa application. Then, in a lengthy Decision and Memorandum, the IJ denied his application for asylum, withholding of removal and CAT relief on the merits. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s administrative appeal and denied his motion to reconsider. Petitioner petitioned for review of both BIA orders.   The Eighth Circuit denied the petitions. The court explained that under the deferential substantial evidence standard, evidence of “general, widespread discrimination” does not trump the BIA’s finding, based on specific facts in the administrative record, that Petitioner could avoid future persecution by reasonably relocating from his rural home town to another part of Mexico. The BIA pointed to Mexico City, where Petitioner’s husband is from and which is reported to have “taken the lead in . . . taking measures to protect the rights of the LGBT population.” View "Flavio Pacheco-Moran v. Merrick B. Garland" on Justia Law

by
Petitioner, a forty-seven-year-old native and citizen of Mexico, first entered the United States in 1991 and, most recently, in 1996 without inspection. The Department of Homeland Security (“DHS”) initiated removal proceedings. Petitioner conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), claiming past persecution and well-founded fear of future persecution and torture in Mexico because of his membership in two Particular Social Groups (“PSGs”), “Married Homosexual Men” and “Homosexual Men in Mexico.” More than five years later, after evidentiary hearings but before Petitioner applied to the U.S. Citizenship and Immigration Services for a U-visa, the Immigration Judge (“IJ”) denied Petitioner’s motion for a continuance to file a U-visa application. Then, in a lengthy Decision and Memorandum, the IJ denied his application for asylum, withholding of removal and CAT relief on the merits. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s administrative appeal and denied his motion to reconsider. Petitioner petitioned for review of both BIA orders.   The Eighth Circuit denied the petitions. The court explained that under the deferential substantial evidence standard, evidence of “general, widespread discrimination” does not trump the BIA’s finding, based on specific facts in the administrative record, that Petitioner could avoid future persecution by reasonably relocating from his rural home town to another part of Mexico. The BIA pointed to Mexico City, where Petitioner’s husband is from and which is reported to have “taken the lead in . . . taking measures to protect the rights of the LGBT population.” View "Flavio Pacheco-Moran v. Merrick B. Garland" on Justia Law

by
Petitioner petitions for review of the Board of Immigration Appeals (“BIA”) dismissal of his appeal. Petitioner is an auto mechanic from Guatemala. He testified that in February 2013, he took the bus to buy some tools. On the bus ride home, three men robbed him and the other passengers on the bus. He did not see the faces of two of the robbers. One of the men pressed a knife against Petitioner’s right side and took one of his cell phones and his wallet. The Attorney General initiated removal proceedings against Petitioner. He then applied for asylum, withholding of removal, and protection under the Convention Against Torture. To the Immigration Judge (“IJ”), Petitioner argued that he was persecuted for his “anti-gang” political opinion and for his membership in the particular social group of witnesses who cooperate with law enforcement. The IJ denied his application, concluding that Petitioner did not show that his proposed social group is cognizable. Petitioner appealed to the BIA, which adopted the IJ’s decision. Petitioner appealed the BIA’s decision.   The Eighth Circuit denied Petitioner’s petition for review. The court explained that it agrees with the BIA that Petitioner has not proven that his proposed social group is socially distinct. Further, neither the BIA nor the IJ applied a presumption against Petitioner’s asylum claim on the ground that private, not government, actors allegedly persecuted him. And even if they had, remand would be unnecessary because the court already concluded that Petitioner has not proven membership in a cognizable social group. View "Jaime Oxlaj v. Merrick Garland" on Justia Law

by
Petitioner, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of his application for cancellation of removal. In his petition, Petitioner argued that the IJ erred as a matter of law in denying his application for cancellation of removal based on the IJ’s conclusion that the harm Petitioner’s children will suffer upon his removal is not “exceptional and extremely unusual.”   The Eighth Circuit affirmed. The court concluded that Petitioner’s argument is actually an “argument . . . that the [IJ] erred in failing to afford what he believes is sufficient weight to Petitioner’s step-son’s emotional hardship in rendering the hardship determination.” The court explained that a petitioner’s argument “that the [Board] applied the incorrect legal standard by failing to adequately consider certain factors” is actually a challenge to the Board’s discretionary determination that the court lacks jurisdiction to review. View "Artemio Garcia-Pascual v. Merrick B. Garland" on Justia Law

by
After conceding that he was removable from the United States for entering the country without being admitted or paroled, Petitioner applied for asylum on the ground that gangs in his native Honduras had persecuted him in the past and that he feared persecution from them should he return there. An immigration judge and the Board of Immigration Appeals determined, as relevant, that any harm Petitioner had suffered bore no connection to his political opinions and denied his application. Petitioner for review of the agency's decision and his motion to reconsider that decision.   The Eighth Circuit denied Petitioner’s petitions. The court explained that the record here does not contain much evidence, if any, that Petitioner’s refusal to assist the gang, even one as powerful and politically influential as MS-13, was meant to reflect a political opinion or that the gang thought his refusal was due to a political opinion. Further, the court wrote that Petitioner’s contention that the IJ and BIA failed to examine the record adequately in reaching their conclusions is untenable. The IJ recounted the gang's interactions with Petitioner and concluded that he never expressed any political opinion or anti-corruption sentiment or that the gang imputed those things to him—conclusions that find ample support in the record. View "Hugo Aguilar Montecinos v. Merrick B. Garland" on Justia Law

by
Petitioner petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reconsider the denial of an administrative closure of his removal proceedings. Petitioner moved for reconsideration, arguing an intervening BIA decision -- Matter of Cruz-Valdez -- granted administrative closure authority the BIA previously found lacking and instructed the Board to apply the administrative closure standard set out in Avetisyan. The BIA agreed   The Eighth Circuit denied Petitioner’s petition for review. The court held that the BIA did not abuse its broad discretion to deny motions to reconsider. As in Gonzalez-Vega, the court concluded it is “clear from the record that the [BIA] had the appropriate [Avetisyan] considerations in mind and committed no clear error of judgment in weighing them.” Petitioner argued the BIA did not analyze all the Avetisyan factors. But the court wrote it does not require the Board “to recite the considerations mechanically when applying them to the facts.” The BIA announced its decision in terms sufficient to enable us to perceive that it has heard and thought and not merely reacted. Accordingly, the BIA did not abuse its broad discretion in denying the motion to reconsider View "Alejandro Islas-Saldana v. Merrick B. Garland" on Justia Law

by
Petitioner and her daughter, D.A.M.I., natives and citizens of Guatemala, petition for review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ) decision finding Petitioner removable and denying her application for asylum and withholding of removal. Petitioner alleged persecution on account of her membership in two particular social groups (PSG)—witnesses who cooperate with law enforcement and nuclear family members of Interiano-Erazo—and on account of an imputed political opinion. Petitioner challenged only the BIA’s determination that she failed to demonstrate that her proposed group of “witnesses who cooperate with law enforcement” is particular and socially distinct within Guatemalan society.   The Eighth Circuit denied the petition. The court explained that even assuming that the Eighth Circuit’s jurisprudence does not require as a matter of law that witness-based PSGs include an element of public testimony, the BIA and the IJ committed no error because each found that the record contains insufficient evidence to demonstrate that Guatemalan society views “witnesses who cooperate with law enforcement” as a socially distinct group. Accordingly, the court found that Petitioner has failed to show that the record, in this case, compels a conclusion contrary to the BIA’s determination that Guatemalan society does not view “witnesses who cooperate with law enforcement” as a socially distinct group. View "Judith Lemus-Coronado v. Merrick Garland" on Justia Law