Articles Posted in US Court of Appeals for the Fifth Circuit

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The Fifth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that the BIA did not abuse its discretion in denying petitioner's motion to reconsider because supporting authority was wholly absent from his motion — other than the regulatory standard of review for questions of law. The court also held that substantial evidence supported the BIA' finding that petitioner did not suffer past persecution by gang threats to his family where his entire family still lived in El Salvador and have experienced no problems with the gang. Substantial evidence also supported the BIA's finding that petitioner lacked a well-founded fear of future persecution where, combined with his family's continued safety, petitioner admitted that he never attempted to relocate within his home country. View "Cruz v. Barr" on Justia Law

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The Fifth Circuit vacated the district court's judgment in an action seeking a declaratory judgment that DHS had improperly denied plaintiff's application to adjust his status to that of a legal permanent resident. Although the court had jurisdiction in this case, it held that plaintiff failed to state a claim upon which relief could be granted. In this case, plaintiff overstayed his nonimmigrant visitor visa, accruing time as an alien in unlawful status. Therefore, that period made him ineligible for an adjustment of status. The court entered judgment that the complaint be dismissed with prejudice. View "Melendez v. McAleenan" on Justia Law

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The Fifth Circuit denied a petition for attorneys' fees and expenses under the Equal Access to Justice Act. In this case, the court granted the government's motion to remand to allow the BIA to consider the issues raised in petitioners' opening brief. The court held that attorneys' fees were unwarranted because the government was the prevailing party on the bulk of petitioner's claims and was substantially justified in denying protection under the Convention Against Torture. View "W. M. V. C. v. Barr" on Justia Law

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8 U.S.C. 1503(a)'s reference to "the final administrative denial" means the first final administrative denial. The Fifth Circuit affirmed the district court's dismissal of plaintiff's challenge to the USCIS's denial of a certificate of citizenship, holding that the claim was time-barred. In this case, the USCIS first denied plaintiff a certificate of citizenship in 2008 and then again in 2016, but plaintiff only challenged the agency's 2016 denial. The court affirmed and held that, while the text was silent regarding duplicative denials, in defining a limitations period, Congress expressed its interest in finality. The court explained that implicitly authorizing a series of duplicative claims would frustrate that interest. View "Gonzalez v. Limon" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment for the United States in an action brought by a foreign national from Honduras under the Federal Tort Claims Act, alleging that he was falsely imprisoned by federal immigration authorities. The court held that 8 U.S.C. 1252(g) and 1226(e) did not preclude the district court from having jurisdiction over this case. On the merits, the court held that the district court correctly determined that Border Patrol and ICE agents acted with authority of law to arrest and detain plaintiff. In this case, plaintiff illegally entered the United States and Border patrol agents lawfully apprehended him at that time. View "Hernandez Najera v. United States" on Justia Law

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The Fifth Circuit denied a petition for review of petitioner's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged membership in three possible groups stemming from his work as a law enforcement official. The court held that substantial evidence supported the BIA's conclusion that petitioner did not show the alleged persecution was on account of a protected ground and he was therefore not entitled to asylum or withholding of removal. In this case, even if petitioner's social groups were cognizable, he failed to show a nexus between the alleged persecution and his membership in the groups. Furthermore, the record evidence did not compel the conclusion that petitioner was eligible for CAT relief. View "Martinez Manzanares v. Barr" on Justia Law

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The Fifth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was not impermissibly retroactive as applied to petitioner, because no adjustment-application was pending at the time of the reinstatement order, and his previous adjustment application was denied due to his failure to prosecute. The court held that petitioner's contention that his entry was lawful because he was allegedly waved through at an entry checkpoint was foreclosed by precedent. Accordingly, the court denied the petition for review. View "Terrazas-Hernandez v. Barr" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal of the denial of her motion to reopen. The court rejected petitioner's contention that she was entitled to reopen the in absentia removal order because she never received notice despite having satisfied her statutory obligation to provide an address to receive notice. The court held that 8 U.S.C. 1229(a)(1)(F)(i)—like its predecessor, 8 U.S.C. 1252b(a)(1)(F)(i)—requires an alien who is physically in the United States and subject to removal from the United States to provide a United States address to receive notice by mail. Applying this interpretation of section 1229(a)(1)(F)(i), the court held that the BIA did not abuse its discretion in dismissing the appeal and in rejecting the argument that a Guatemalan address was sufficient. Even assuming arguendo that an alien may satisfy her obligation to provide an address under section 1229(a)(1)(F)(i) by providing a foreign address, petitioner could not prevail because there was no realistic possibility that, absent the errors, the BIA would have reached another outcome than to dismiss the appeal. View "Luna-Garcia v. Barr" on Justia Law

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After appellants, each accompanied by a minor child, stated to Customs and Border Patrol (CBP) that they feared persecution in their home countries, they were arrested and charged with misdemeanor improper entry and detained in El Paso. Their children were transferred to the custody of the Office of Refugee Resettlement (ORR). In these consolidated appeals, appellants argued that they should not have been criminally prosecuted because they sought asylum, and being separated from their children rendered their convictions constitutionally infirm. The Fifth Circuit affirmed the district court's judgment in favor of the government, holding that nothing in 8 U.S.C. 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process, nor have appellants shown that qualifying for asylum would be relevant to whether they improperly entered; appellants' argument that deporting them without their children amounted to cruel and unusual punishment under the Eighth Amendment failed because the four deported appellants were found inadmissible during post-conviction civil immigration proceedings, rather than criminal proceedings; the court declined to apply the outrageous government conduct doctrine in this case; appellants' claims of right of access to evidence were rejected; appellants' fair trial claim repackaged appellants' unsuccessful Brady claim and failed for the same reasons; and the government did not impermissibly burden appellants' right against self-incrimination. View "United States v. Vasquez-Hernandez" on Justia Law

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The Fifth Circuit affirmed the BIA's order denying petitioner and her son's applications for asylum and withholding of removal. The court held that the BIA was not required to consider a reformulated particular social group on appeal that was never presented to the IJ. In this case, petitioners were on notice that appellate bodies like the BIA were not required to consider arguments made for the first time on appeal; petitioners were represented by counsel at each material stage of the proceedings; and the IJ gave their counsel multiple opportunities at the hearing to clarify or revise their proposed particular social group in view of his concerns about its viability. View "Cantarero-Lagos v. Barr" on Justia Law