Articles Posted in US Court of Appeals for the Fifth Circuit

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The Fifth Circuit granted a petition for review of the BIA's final order of removal determining that petitioner was ineligible for cancellation of removal because his 2007 conviction of attempted theft from a person under Texas law counts as a crime involving moral turpitude (CIMT) under a 2016 BIA decision. The court exercised its discretion to consider petitioner's claim and determined that it had jurisdiction to consider it. On the merits, the court held that the definition of CIMTs announced in In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 848 (BIA 2016), may be applied only to crimes committed after that decision issued. Therefore, the BIA erred in retroactively applying Diaz-Lizarraga's new definition to petitioner's conviction for attempted theft. The court remanded for further proceedings. View "Monteon-Camargo v. Barr" on Justia Law

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The Fifth Circuit vacated the BIA's final order denying petitioner's motion to reopen removal proceedings. Petitioner claimed that she never received notice of her removal hearing. The court held that the BIA abused its discretion in refusing to reopen petitioner's removal proceedings where petitioner satisfied her obligation to provide a new address to the "Attorney General" by notifying ICE of her change of address. Accordingly, the court remanded for further proceedings. View "Fuentes-Pena v. Barr" on Justia Law

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The Fifth Circuit denied a petition for review of the the BIA's decision affirming the IJ's determination that petitioner was removable because she was convicted of a drug offense. Petitioner argued that she was not removable because she was convicted for possessing a small amount of marijuana for personal use. The court held that the BIA's interpretation of 8 U.S.C. 1227(a)(2)(B)(i)'s personal-use exception was reasonable. Applying the BIA's circumstances-specific approach, the court held that petitioner's conviction did not fall within the personal-use exception. In this case, substantial evidence supported the BIA's findings that petitioner possessed 54.6 pounds of marijuana—substantially more than the personal-use exception’s 30-gram threshold. View "Cardoso de Flores v. Whitaker" on Justia Law

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Petitioner, a native and citizen of Honduras, sought review of the BIA's decision denying his motion to reopen his removal proceedings so that he could apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Fifth Circuit held that the BIA acted within its discretion in declining to reopen petitioner's in absentia removal proceedings based on lack of notice. The court did not reach the merits of petitioner's claim contending that the BIA abused its discretion denying his motion to reopen because the court lacked jurisdiction under 8 U.S.C. 1231(a)(5), over this question of fact. The court also held that petitioner's contention that the BIA violated his due process rights was unavailing, because this court has held that no liberty interest existed in a motion to reopen, and therefore due process claims were not cognizable in the context of reopening proceedings. The court rejected petitioner's remaining claims and dismissed the petition in part and denied it in part. View "Mejia v. Whitaker" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court affirmed the BIA's adverse credibility determination and held that it was supported by substantial evidence. In this case, the BIA catalogued numerous, specific inconsistencies in petitioner's presentation, and it identified crucial omissions in statements submitted by petitioner and in third parties' supporting affidavits. Furthermore, given the reiterative content of documents and the BIA's extensive credibility assessment, the BIA did not fail to give full and fair consideration of all circumstances that gave rise to petitioner's claims. View "Ghotra v. Whitaker" on Justia Law

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The Fifth Circuit affirmed the dismissal of an action brought by the State of Texas, seeking a declaratory judgment under 28 U.S.C. 2201 that SB 4 -- which curbs sanctuary city policies by requiring law enforcement agencies to comply with, honor, and fulfill federal immigration detainer requests -- does not violate the Fourth or Fourteenth Amendments and is not preempted by federal law. Although the district court held that Texas lacked Article III standing to seek declaratory judgment, the court held that the district court lacked federal question jurisdiction under 28 U.S.C. 1331 in light of Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983). In Franchise Tax Board, the Supreme Court held that section 1331's grant of federal question jurisdiction does not encompass suits by the States to declare the validity of their regulation despite possibly conflicting federal law. The court explained that Franchise Tax Board reinforces comity among federal and state courts and mandates that the court dismiss Texas's declaratory relief action. View "Texas v. Travis County" on Justia Law

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The Fifth Circuit granted a petition for review of the BIA's decision affirming the IJ's deportation order. The court held that the BIA erred in construing 8 U.S.C. 1227(a)(2)(A)(iii) to apply to an individual who was a naturalized citizen at the time of conviction. In this case, petitioner was not rendered an "alien" at the time of conviction by nature of his subsequent ab initio denaturalization. Therefore, petitioner was not subject to deportation under section 1227(a)(2)(A)(iii) because he was a naturalized citizen at the time he was convicted. View "Okpala v. Whitaker" on Justia Law

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The Fifth Circuit denied a petition for review of a final order of removal issued by the BIA. Petitioner claimed that he never received notice of his removal hearing. The court held that petitioner failed to provide the immigration court with his correct mailing address, and failed to rebut the weak presumption of delivery of his notice of hearing. View "Mauricio-Benitez v. Sessions" on Justia Law

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The Fifth Circuit held that, because 8 U.S.C. 1182(a)(2)(A)(i)(II) does not overcome the presumption against retroactivity, applying it to petitioner was impermissibly retroactive. The court granted the petition for review of the BIA's order finding petitioner inadmissible based on his conviction for possessing AB-CHMINACA in violation of Louisiana Revised Statutes 40.966(C). After petitioner's arrest, but before his conviction, AB-CHMINACA was added to the federal schedules of controlled substances. The court reasoned that, for purposes of retroactivity analysis, it is the timing of the defendant's conduct, not of his conviction, that controls. In this case, when petitioner possessed AB-CHMINACA, he had no notice that such a crime carried the consequence of inadmissibility. View "Lopez Ventura v. Sessions" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's denial of petitioner's motion to reopen. In this case, petitioner's application for cancellation of removal was denied for reasons that have since become legally infirm. However, petitioner reentered the country illegally rather than challenge his removal from abroad. Petitioner was re-apprehended by immigration authorities more than a decade later. The court held that his original order of removal was not subject to being reopened because he conceded that he had reentered the United States illegally after having been removed. View "Rodriguez-Saragosa v. Sessions" on Justia Law