Justia Immigration Law Opinion Summaries

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

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

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

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

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

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

Defendant pleaded guilty to unlawfully re-entering the United States following removal. The district court sentenced him to 51 months in prison. On appeal, Defendant argued that the district court miscalculated his advisory Guidelines range by deferring to the U.S. Sentencing Guidelines’ commentary rather than applying the Guidelines themselves.   Defendant argued that (A) after Kisor, courts should not defer to the Guidelines’ commentary unless the Guidelines themselves are ambiguous. He then argued that (B) Application Note 3 to Section 2L1.2 conflicts with the unambiguous Guidelines by requiring courts to “double-count” certain prior convictions when calculating the guidelines range. The Fifth Circuit affirmed the Defendant’s conviction for illegal reentry. The court held that the district court properly calculated Defendant’s guidelines range, and his double-counting objection lacks merit.   The court reasoned that Application Note 3 to Section 2L1.2 is not in tension with the Guidelines. Rather, application Note 3 merely describes what the Guidelines’ text and structure would unambiguously require even in its absence. Further, Defendant cites no precedent supporting his argument that “double-counting” is per se incompatible with the Guidelines and the Guidelines’ text and structure do not support Defendant’s argument. View "USA v. Cordova-Lopez" on Justia Law

Petitioner a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”) denied Petitioner’s application for relief from removal and ordered him removed to Cameroon after determining that Petitioner was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Petitioner was removed to Cameroon.   The Fifth Circuit granted Petitioner’s petition for review of the BIA’s dismissal of his appeal on the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and remanded the case to the BIA.   The court reasoned that under BIA precedent, an adverse credibility determination should not be based on inconsistencies that take one by surprise. Relatedly, the court has approved, but not required, that petitioners should be given the opportunity to explain any non-obvious discrepancies that may bear on their credibility. Here, at no point during the hearing before the IJ was Petitioner provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross-examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence.  Further, the court noted that there is no evidence—beyond the statement of the BIA majority—that Petitioner’s counsel failed to preserve this issue on appeal. View "Nkenglefac v. Garland" on Justia Law

A mother and daughter from El Salvador were ordered removed. The Board of Immigration Appeals affirmed. Mother and daughter retained counsel and filed a petition for review in the Fifth Circuit. As a result of personal issues and the challenges presented by the COVID-19 pandemic, counsel requested three extensions to file an opening brief. Upon the final due date, instead of filing an opening brief, counsel filed a motion asking the court to dismiss the petition for the mother, but remand it for the daughter. Evidently, the mother had died and the daughter was now proceeding as a minor orphan.The Fifth Circuit denied the petition. First, counsel provided no legal arguments for the relief he sought on behalf of his clients. Second, the court was not provided with the relevant standard to apply to the voluntary withdrawal of a petition for review. Finally, the court noted that counsel provided no explanation as to why giving up on daughter's petition for review was in her best interest and that, in the court's assessment, doing so would be manifestly unjust. View "Vasquez-De Martinez v. Garland" on Justia Law

In 2004, Petitioner was ordered removed in absentia; however, he continued to reside in the United States. In 2019, Petitioner filed a motion to reopen under 8 U.S.C. Sec. 1229a(c)(7)(C)(iv)(III), which extends the amount of time a Petitioner who is a "battered spouse" can file a motion to reopen. The Board of Immigration Appeals ("BIA") denied Petitioner's motion to reopen, refusing to waive the one-year filing deadline that applied to battered spouses. The BIA determined that the abuse Petitioner suffered did not qualify as an "extraordinary circumstance" and that the hardship Petitioner or his children would not suffer "extreme hardship" if removed.The Fifth Circuit denied Petitioner's petition for review, finding that the BIA did not abuse its discretion. Extraordinary circumstances or extreme hardship requires proof of something beyond ordinary circumstances or mere hardship, and something more than the typical challenges associated with relocation. View "Pena-Lopez v. Garland" on Justia Law