Justia Immigration Law Opinion Summaries

The Eleventh Circuit granted a petition for review of the BIA's ruling that petitioner's conviction for sexual misconduct, N.Y. Penal Law 130.20, qualifies, under the modified categorical approach, as the aggravated felony of rape, 8 U.S.C. 1101(a)(43)(A), and a crime involving moral turpitude.Because the record of conviction does not make clear whether petitioner pleaded guilty to forcible or statutory rape, the court need not decide whether the New York statute is divisible as between those two different kinds of rape or whether the criminal complaint is a valid Shepard document. The court explained that, even if it were to resolve both issues in the department's favor, the criminal complaint would still fail to establish that petitioner pleaded guilty to forcible rape. Furthermore, the board failed to address whether statutory rape is a crime involving moral turpitude, so the court does not address that issue. Nor does the court need to address petitioner's alternative argument that he is eligible for a discretionary waiver of deportation even if he is removable. The court vacated and remanded for further proceedings. View "George v. U.S. Attorney General" on Justia Law

Hamid Sow, a citizen of Guinea, sought review of the Board of Immigration Appeals’ (BIA) denial of his motion to remand based upon ineffective assistance of counsel, and motion to reopen based upon new evidence. In December 2016, Sow entered the United States and immediately applied for asylum because he was a homosexual, and the stigma of being a homosexual in a devout Muslim community in his homeland meant danger for himself and his family. Sow only spoke French, and relied on other detainees to relate information to his attorney. Without a translator, Sow's counsel did not fully understand Sow’s concerns: Sow tried to communicate to his counsel that the content of affidavits counsel “did not match up with what happened.” When asked about discrepancies in facts from the affidavits presented, Sow responded he could not explain them because he did not have an opportunity to read them. In his oral decision, the IJ said that he “unfortunately” had to deny Sow’s application based solely on an adverse credibility finding. In coming to this conclusion, the IJ specifically highlighted the inconsistencies in statements made in affidavits. He noted that, if it were true that Sow were a homosexual, then he “clearly should get” asylum. Sow, represented by new counsel, appealed to the BIA. He argued that the IJ erred in failing to assess Sow’s well-founded fear of future persecution. The BIA denied Sow’s motion to remand. It held that the IJ did not clearly err in making an adverse credibility determination and the record did not establish that Sow was entitled to relief “independent of his discredited claim of past harm.” It also denied Sow’s ineffective assistance of counsel claim, reasoning that counsel “reasonably relied on, and submitted the evidence provided by, the respondent and his friends.” The Eleventh Circuit concluded the BIA abused its discretion in denying Sow’s motion to remand based on ineffective assistance of counsel. It therefore granted Sow’s petition for review, vacated the BIA’s decisions, and remanded to the BIA with instructions to remand to the IJ for reconsideration of Sow’s asylum application. View "Sow v. U.S. Attorney General" on Justia Law

The Eleventh Circuit affirmed defendant's convictions for procuring naturalization unlawfully, in violation of 18 U.S.C. 1425(a), and misuse of evidence of an unlawfully issued certificate of naturalization, in violation of 18 U.S.C. 1423.The court held that the annotated Form N-400 was (1) admissible non-hearsay as an adopted admission of a party-opponent under Federal Rule of Evidence 801, and, (2) alternatively, was properly admitted under the public record hearsay exception in Federal Rule of Evidence 803. Furthermore, the officer's red marks in the annotated Form N-400 Application was not testimonial and did not violate the Confrontation Clause. The court also held that the district court did not abuse its discretion by admitting defendant's post-Miranda statement, and the evidence was sufficient to sustain defendant's conviction as to Count 1. View "United States v. Santos" on Justia Law

Petitioner, a citizen of India, appealed from the denial of his petition for a writ of habeas corpus under 28 U.S.C. 2241. Petitioner has been in ICE custody for 31 months and argued that he was entitled to release under the Supreme Court's ruling in Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001). In Zadvydas, the Supreme Court held that the Constitution limits detention of lawfully-admitted noncitizens under 8 U.S.C. 1231(a)(6) to a period reasonably necessary to bring about the alien's removal and does not permit indefinite detention.The Eleventh Circuit held that section 1231(a)(1)(C) requires that petitioner return the incomplete travel document application in bad faith, i.e., petitioner intentionally withheld the necessary information in order to apply. In this case, the court could not evaluate whether petitioner's removal period had been extended by operation of section 1231(a)(1)(C). Because there was insufficient evidence to evaluate the district court's denial of the petition for habeas relief, the court reversed and remanded. View "Singh v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's final order reversing the IJ's grant of petitioner's application for asylum and denial of withholding of removal. The court agreed with the BIA that petitioner failed to establish membership in a particular social group. In light of Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), petitioner's proposed social group of "women in Mexico who are unable to leave their domestic relationships" was not a cognizable particular social group under the Immigration and Nationality Act. View "Amezcua-Preciado v. U.S. Attorney General" on Justia Law

Defendant's prior conviction in Washington for delivery of cocaine is an aggravated felony under 8 U.S.C. 1101(a)(43), which bars him from establishing the "good moral character" necessary for naturalization. The Eleventh Circuit affirmed the district court's dismissal of plaintiff's complaint, challenging DHS's denial of his application for naturalization. The court held that accomplice liability under the Washington statute is no broader than under the federal Immigration and Nationality Act, and the Washington statute is no broader than the federal Act regarding "administering" a controlled substance. View "Bourtzakis v. U.S. Attorney General" on Justia Law

Plaintiff filed suit alleging that Immigration Services violated the Administrative Procedure Act (APA) in two ways: when it used a beyond-a-reasonable-doubt standard rather than a preponderance-of-the-evidence standard to evaluate his I-130 petition for sponsorship of close relatives, and when it did not allow him to offer rebuttal evidence. In this case, plaintiff had been convicted of possession of child pornography, which put him outside the bounds of the visa-sponsorship program unless he could show that he posed no risk to his wife, the person he was trying to sponsor.The Eleventh Circuit affirmed the district court's dismissal of the action, holding that courts lack jurisdiction to review either the process or the outcome of the no-risk decision. Under the Adam Walsh Act, the USCIS has "sole and unreviewable discretion" to determine if citizens like plaintiff pose "no risk" to their foreign relatives. Therefore, the district court correctly held that the Adam Walsh Act prevented it from exercising jurisdiction over plaintiff's APA claim. View "Bourdon v. United States Department of Homeland Security" on Justia Law

8 C.F.R. 1003.14 sets forth a claim processing rule as opposed to a jurisdictional rule. The Eleventh Circuit held that, even assuming petitioner's notice to appear (NTA) was deficient under the regulations, the agency properly exercised jurisdiction over his removal proceedings because section 1003.14 could not have imposed jurisdictional limitations. Therefore, the IJ and BIA properly exercised jurisdiction over petitioner's removal order based on the authority conferred upon them by 8 U.S.C. 1229(a)(1). Therefore, the court denied the petition for review as to petitioner's Pereira claim.To the extent petitioner argued that he was nonetheless entitled to a remand because his NTA violated the agency's claim-processing rules, the court dismissed this part of his petition for lack of jurisdiction because he failed to exhaust the claim before the agency. The court rejected petitioner's due process claim, holding that the agency's decision not to address petitioner's appeal absent DHS briefing did not render his appeal fundamentally unfair.However, the court held that the BIA's determination that any motive to harm petitioner based on his family status was at most incidental was not supported by substantial evidence, because it was abundantly clear that petitioner's family relationship was one central reason, if not the central reason, for the harm he experienced. Therefore, the court granted his petition for review, and remanded his asylum and withholding of removal claims. View "Perez-Sanchez v. U.S. Attorney General" on Justia Law

The Eleventh Circuit granted the petition for review of the BIA's denial of petitioner's asylum, withholding of removal, and Convention Against Torture (CAT) claims. Petitioner alleged past persecution and a well-founded fear of future persecution, both individually and as a member of a group, based on his practice of Ahmadiyya Islam.The court held that the IJ ignored specific evidence that petitioner brought to its attention and the BIA ignored the same evidence on appeal. In this case, petitioner cited specific examples that supported his position, including Ahmadis' inability to openly practice their religion, to propagate their religion, to convene for religious gatherings, to perform a pilgrimage, to vote, to build mosques, and to pray in certain manners. View "Ali v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision holding petitioner inadmissible because he falsely represented himself as a citizen when applying for a Georgia driver's license. Petitioner argued that he simply checked the wrong box, and that citizenship did not affect the application. The court held that it did not have jurisdiction to review petitioner's claim because it was a factual matter regarding whether he checked the wrong box and thus lacked the requisite subjective intent to trigger the statute. The court also held that it did not have to defer to the Board's interpretation of Matter of Richmond, 26 I. & N. Dec. 779, 786–87 (BIA 2016), finding a materiality element in 8 U.S.C. 1182(a)(6)(C)(ii)(I). Rather, the statute did not require that citizenship be material to the purpose or benefit sought. View "Patel v. U.S. Attorney General" on Justia Law