Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fifth Circuit
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Petitioner was born to unmarried parents in Mexico. Both of his parents are now deceased. His father was a Mexican national and his mother a U.S. citizen. Petitioner entered the United States in 2000, at which point he was unaware of any claim to U.S. citizenship. Thus, when he was convicted of burglary, he admitted that he was deportable and ineligible for relief. He was removed in 2003. However, in 2014, he applied for a Certificate of Citizenship, claiming that he had acquired U.S. citizenship at birth through his father. USCIS denied Petitioner's application and he subsequently filed a petition under 8 U.S.C. Sec. 1252(b)(1), along with an opposed motion to transfer his case to the U.S. District Court for the Southern District of Texas for a de novo determination of his citizenship claim under 8 U.S.C. Sec. 1252(b)(5)(B).The Ninth Circuit determined that Petitioner presented sufficient evidence to create a genuine issue of material fact concerning his claim of U.S. citizenship. Thus, the court transferred Petitioner's case to the U.S. District Court for the Southern District of Texas for a de novo review of his citizenship claim. View "Garza-Flores v. Mayorkas" on Justia Law

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In a previous opinion dated September 21, 2021, the Fifth Circuit issued an opinion in this immigration case agreeing with Petitioner that the Board of Immigration Appeals ("BIA") "abused its discretion by entirely failing to address his CAT claim." In that opinion the court noted that a claim seeking CAT relief "is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Thus, the court remanded the case to the BIA to address Petitioner's claim for relief under the Convention Against Torture ("CAT").On remand, the BIA determined that Petitioner failed to meet his burden to establish a prima facie case for CAT relief because Petitioner did not provide sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality, which bears on whether Petitioner has a clear probability of being tortured if he returns to Libya.Finding no error, the Fifth Circuit affirmed the denial of Petitioner's petition for review. View "Abushagif v. Garland" on Justia Law

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Defendant was sentenced to 36 months in prison to be followed by five years of supervised release after pleading guilty to illegal reentry. As a special condition of release, the district court required that Defendant be turned over to immigration authorities upon his release and that he be deported to Mexico. If immigration authorities were unwilling to take Defendant, the court required he self-deport.Defendant challenged the special condition of release requiring he self-deport. The government conceded that the district court committed plain error. The Fifth Circuit remanded for entry of a new written judgment without the special condition requiring Defendant to depart the United States. View "USA v. Badillo" on Justia Law

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Petitioner was convicted in Texas state court of the felony offense of injury to a child, in violation of Texas Penal Code Section 22.04(a)(3). The Department of Homeland Security (DHS) served Petitioner with a Notice to Appear (NTA), charging him with removability under 8 U.S.C. Section 1227(a)(2)(E)(i), as an alien who, at any time after admission, was convicted of a crime of child abuse. After a hearing, the IJ denied Petitioner’s request for cancellation of removal, ordered him removed, and denied his request for voluntary departure. The BIA dismissed Petitioner’s appeal, denied his requests for cancellation of removal or voluntary departure, and ordered his removal. Petitioner then submitted a petition for review to the Fifth Circuit.   The Fifth Circuit denied in part Petitioner’s petition. Petitioner’s motion to terminate “squarely presented” the issue of the statute’s divisibility. Thus, the court held that the BIA did not err in rejecting Petitioner’s claim that the IJ impermissibly ruled on the divisibility issue. Further, based on Section 22.04(a)’s text, relevant state court cases, Texas’ pattern jury instructions, and the record of prior conviction itself, the court held that Section 22.04(a) is divisible as to victim class. Because the statute is divisible, the court applied the modified categorical approach to see which offense, under Section 22.04(a), is the crime of conviction. In so doing, the court looked to Petitioner’s indictment and the judicial confession entered on his guilty plea. Reviewing those documents, it is apparent that Petitioner was charged with, and pleaded guilty to, causing bodily injury to a child. View "Monsonyem v. Garland" on Justia Law

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Petitioner was convicted of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. Section 1349. He was sentenced to one year and one day of imprisonment and ordered to pay $229,717.30 in restitution.   The government served Petitioner with a notice to appear, charging him with removability pursuant to 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Specifically, the government invoked Section 1101(a)(43)(M) & (U), alleging that Petitioner was convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and “an attempt or conspiracy to commit an offense described in section 101(a)(43)(M) of the Act.” Petitioner applied for withholding of removal and protection under the Convention Against Torture (CAT).   Petitioner appealed to the Board of Immigration Appeals (BIA). The BIA found no error in the IJ’s decision and dismissed the appeal. The Fifth Circuit denied Petitioner’s petition in part and dismissed in part.   The court explained Pursuant to Section 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Section 1101(a)(43)(M) defines an “aggravated felony” as “an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and § 1101(a)(43)(U) extends the definition of “aggravated felony” to “an attempt or conspiracy to commit an offense described in this paragraph.” Here, Petitioner’s order of restitution for $229,717.30—which reflects the amount owed within the judgment for his fraud conspiracy conviction— provides clear and convincing evidence of the losses to his victims. View "Osei Fosu v. Garland" on Justia Law

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Petitioner, a native and citizen of Haiti, experienced targeted violence while in Haiti. He fled to the United States, where he was detained and transferred to a detention center in Texas. He sought asylum, withholding of removal, and for protection under the Convention Against Torture (CAT). The Immigration Judge denied relief. The Board of Immigration Appeals (BIA) affirmed and dismissed Petitioner's appeal.Petitioner then sought relief in the Fifth Circuit but failed to address the denial of his CAT claim and withholding of removal claim. Thus, the court only considered the BIA's finding that Petitioner failed to show that the Haitian government was unable or unwilling to protect him.The Fifth Circuit denied Petitioner's petition, citing the efforts of the Haitian government following the attacks against Petitioner. Based on the government's response, Petitioner could not show that the Haitian government was unable or unwilling to protect him. View "Bertrand v. Garland" on Justia Law

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A certificate of appealability to the Fifth Circuit was granted on two issues: 1.) Was Defendant’s sentence enhanced under the unconstitutional residual clause found in 18 U.S.C. Section 16(b)? and 2.) Is Defendant entitled to collateral relief under 28 U.S.C. Section 2255? The Fifth Circuit held that Defendant’s Section 2255 motion is not barred by AEDPA’s res judicata provision and the motion was properly authorized under Section  2255(h)(2). The court reasoned that the court denied Defendant’s request for authorization to file his motion. That means he never actually filed the underlying motion. And it also means that AEDPA’s absolute bar on previously presented claims is inapplicable. Further, the court held that Section  2255(h)(2) requires the court to conclude that Defendant’s underlying claim relies on “[1] a new rule of constitutional law, [2] made retroactive to cases on collateral review by the Supreme Court, that [3] was previously unavailable.” Turning to the merits question, the court held that Defendant’s Section 2255 motion is timely. The court next found that Defendant procedurally defaulted his void-for-vagueness claim. And he cannot excuse that default because he cannot show either (A) cause and prejudice or (B) actual innocence. Thus, the court found no reversible error in the district court's judgment because Defendant failed to preserve his void-for-vagueness claim. And there’s no persuasive reason to excuse that default. View "USA v. Vargas-Soto" on Justia Law

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An asylum Petitioner argued that the Board of Immigration Appeals erred in denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Her application was based on membership in a particular social group and CAT. She defined the particular social group as “Salvadoran women in a domestic relationships who are unable to leave.” She stated that her ex-partner was physically, emotionally, and sexually abusive. The Immigration Judge (“IJ”) denied her application finding that she did not establish the requisite nexus between her harm and her particular social group and the BIA denied her motion to extend the briefing deadline.   The Fifth Circuit denied her petition. The court explained that under 8 U.S.C. Section 1101(a)(42)(A) an applicant seeking asylum must demonstrate that she “is unable or unwilling to avail . . . herself of the protection of [her] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Further, an applicant seeking asylum or withholding of removal based on membership in a particular social group must make three showings. The court explained that while the IJ intimated that Petitioner’s proffered social groups were cognizable. The court has disagreed, holding that circularly defined social groups are not cognizable. Thus, because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Petitioner’s social groups were not cognizable, thus ending the analysis. View "Lopez-Perez v. Garland" on Justia Law

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Petitioner applied for asylum and withholding of removal based on claims he was targeted by gangs for his religious activities. An immigration judge (IJ) disbelieved Petitioner’s story and denied his application. After the Board of Immigration Appeals (BIA) dismissed his appeal and denied reconsideration, Petitioner filed two petitions seeking review.   The Fifth Circuit denied Petitioner’s application. The court first held that it lacked jurisdiction to consider this argument because Petitioner has not exhausted it. The court reasoned that Petitioner did not raise the argument initially before the BIA, despite the fact that he was in possession of the pertinent documents.   Next, in regard to Petitioner’s argument that the IJ’s bias denied him due process, the court held that the record does not show “obvious bias” and Petitioner failed to point to record evidence showing the IJ’s “hostility due to extrajudicial sources” or “a deep-seated favoritism or antagonism that would make fair judgment impossible.” The court reasoned that IJ occasionally questioned Petitioner about his religious activities, but only because those activities were the basis for his claims.   Finally, Petitioner argued that the BIA erred in affirming the IJ’s adverse credibility determination. The court held that the evidence does not compel the conclusion that the IJ’s negative credibility determinations were wrong. The court reasoned that IJ may assess credibility based on inconsistencies between an applicant’s testimony and prior statements. Here, the IJ cited “specific inconsistencies” and “identified crucial omissions in statements” by Petitioner and his sister and in the letters he provided. View "Cardona-Franco v. Garland" on Justia Law

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Defendant pleaded guilty to violating 18 U.S.C. Section 922(g)(5)(A), which makes it unlawful for aliens illegally in the country to possess firearms. But he insisted the district court erred at sentencing by applying Section 2K2.1(a)(4)(B) of the Sentencing Guidelines, which imposes an elevated base offense level if the offense involved a “semiautomatic firearm that is capable of accepting a large-capacity magazine.” Defendant further contended that the United States failed to prove that (1) the firearm and magazine were compatible, and (2) the firearm could fire multiple rounds without reloading.The Fifth Circuit vacated the District Court’s ruling and remanded for resentencing. The court reasoned that the “compatibility” requirement comes straight from the text of the Guidelines: a firearm must be capable of accepting a large capacity magazine. Here, the United States introduced zero evidence (let alone a preponderance) proving that the large-capacity magazine was compatible with Defendant’s firearm. Next, the court rejected the district court’s invitation to rely on proximity as a cure-all. The court reasoned that though it is true the Guidelines’ commentary states that an elevated base offense level comes into play under Section 2K2.1 when a large-capacity magazine is either “attached” or “in close proximity” to a qualifying firearm, both derive from the Guidelines’ unambiguous requirement that the firearm be capable of accepting the magazine. View "USA v. Luna-Gonzalez" on Justia Law