Articles Posted in US Court of Appeals for the Fourth Circuit

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The Eleventh Circuit denied a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for asylum. In Mejia v. Sessions, 866 F.3d 573, 584 (4th Cir. 2017), the court recently held that an alien subject to a reinstated order of removal may not apply for asylum. Mejia's fact pattern was substantially similar to petitioner's where the alien had grounds to apply for asylum prior to her initial removal. The court held that petitioner's arguments were inconsistent with the plain terms of 8 U.S.C. 1158(a)(2)(D) and were contrary to Mejia's holding that section 1231(a)(5) attached a categorical prohibition against applying for asylum to aliens subject to reinstated orders of removal. View "Lara-Aguilar v. Sessions" on Justia Law

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Ramirez, a citizen of El Salvador, first entered the U.S. in 1996 at age 17. Nearly 20 years later, Ramirez was placed in removal proceedings, charged with being present without being admitted or paroled under 8 U.S.C. 1182(a)(6)(A)(i). Ramirez applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), 111 Stat. 2160, 2196–2199 (1997), which allows certain nationals from designated countries to apply for suspension of deportation or special rule cancellation of removal and adjust their status to permanent residency. To qualify under NACARA, an alien ordinarily must establish at least seven years of continuous presence in the U.S. but an applicant who is inadmissible or removable for having committed a crime involving moral turpitude (CIMT) must establish at least 10 years of continuous presence after becoming inadmissible or removable. In 2012, Ramirez was convicted of petit larceny and obstruction of justice. The Board of Immigration Appeals found him ineligible for NACARA relief. The Fourth Circuit vacated the order of removal, holding that obstruction of justice under Virginia law is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. The court directed the government to facilitate Ramirez’s return to the United States to participate in further proceedings. View "Ramirez v. Sessions" on Justia Law

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In addition to federal officers, the "egregious violation" exclusionary rule also applied in civil deportation proceedings to state and local officers. The Fourth Circuit denied the petition for review of the BIA's decision affirming the IJ's rejection of petitioner's motion to suppress statements he made to state officers and ICE and ordering his voluntary departure. The court held that, under the totality of the circumstances, the Maryland Transportation Authority Police (MdTAP) officers did not use coercion, threats, or force towards plaintiff. In this case, at most, an MdTAP officer's questioning of petitioner was aggressive, but the officers showed no indication of threatening or violent behavior such that petitioner lacked the option to not answer any questions regarding his immigration status. View "Sanchez v. Sessions" on Justia Law

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The Fourth Circuit granted the petition for review of an order of removal after the BIA determined that the crime petitioner pleaded guilty to, sexual solicitation of a minor in Maryland, was a crime involving moral turpitude. The court explained that, under Maryland law, sexual solicitation of a minor does not require that the perpetrator know the victim’s age. Under BIA precedent, a sexual offense against a child categorically involved moral turpitude only if the perpetrator knew or should have known that the victim was a minor. In this case, the court held that the BIA failed to explain its change in position and remanded to the BIA for further proceedings. View "Jimenez-Cedillo v. Sessions" on Justia Law

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The Fourth Circuit affirmed the district court's grant of a preliminary injunction against enforcement of Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. The Proclamation succeeded President Trump's executive orders and indefinitely suspended the entry of some or all immigrants and nonimmigrants from eight countries. Determining that plaintiffs' claims were justiciable, the court held that plaintiffs have met their high burden of demonstrating that the Proclamation's purported purpose was not "bona fide" under Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). Next, the court examined official statements from President Trump and other executive branch officials, along with the Proclamation itself, and held that the Proclamation failed to demonstrate a primarily secular purpose. Rather, the Proclamation continued to exhibit a primarily religious anti-Muslim objective. Therefore, the court held that plaintiffs have demonstrated that they will likely succeed on the merits of their Establishment Clause claim. Furthermore, the likelihood of irreparable harm, the balance of equities, and the public interest all favored granting injunctive relief. View "International Refugee Assistance Project v. Trump" on Justia Law

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Petitioner, a native and citizen of Honduras, petitioned for review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. The Fourth Circuit held that the BIA erred in holding that petitioner did not meet the nexus requirement where at least one central reason for petitioner's persecution was membership in his family, a protected social group under the Immigration and Nationality Act. Therefore, the court vacated the BIA's denial of withholding of removal and remanded for further proceedings. The court separately remanded for consideration of the asylum claim in light of its recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), which affected petitioner's argument that a statutory "changed circumstances" exception allows consideration of his untimely application. Accordingly, the court granted in part and denied in part the petition for review. View "Salgado-Sosa v. Sessions" on Justia Law

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Zambrano, a Honduran citizen, joined the Honduran military and helped arrest gang members. After he left the army, gang members tried to get revenge. Zambrano moved frequently and tried unsuccessfully to enter the U.S. five times, finally entering in 2011. The gang’s efforts continued. In 2012, armed men broke into the apartments of Zambrano’s sister and former girlfriend, asking about his location. They threatened his friends and family for more than a year. In 2014, U.S. immigration authorities arrested Zambrano. The gang heard about Zambrano’s potential deportation and increased their efforts, including assaulting one brother and breaking into the home of another. Zambrano sought asylum based on the new assaults. Ordinarily, an alien must apply for asylum within one year after entering the U.S. but the deadline is flexible if the alien can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” 8 U.S.C. 1158(a)(2)(B),(a)(2)(D). Zambrano argued that the 2014 attacks represented changed circumstances due to the increased violence against his family and the new scope of the gang's search, spanning various cities. The IJ and BIA rejected the argument. The Fourth Circuit remanded. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance and may include an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. View "Zambrano v. Sessions" on Justia Law

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Zambrano, a Honduran citizen, joined the Honduran military and helped arrest gang members. After he left the army, gang members tried to get revenge. Zambrano moved frequently and tried unsuccessfully to enter the U.S. five times, finally entering in 2011. The gang’s efforts continued. In 2012, armed men broke into the apartments of Zambrano’s sister and former girlfriend, asking about his location. They threatened his friends and family for more than a year. In 2014, U.S. immigration authorities arrested Zambrano. The gang heard about Zambrano’s potential deportation and increased their efforts, including assaulting one brother and breaking into the home of another. Zambrano sought asylum based on the new assaults. Ordinarily, an alien must apply for asylum within one year after entering the U.S. but the deadline is flexible if the alien can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” 8 U.S.C. 1158(a)(2)(B),(a)(2)(D). Zambrano argued that the 2014 attacks represented changed circumstances due to the increased violence against his family and the new scope of the gang's search, spanning various cities. The IJ and BIA rejected the argument. The Fourth Circuit remanded. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance and may include an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. View "Zambrano v. Sessions" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum. The court held that the BIA applied the wrong legal standard for assessing asylum eligibility when it categorically held that additional proof of an existing claim did not establish changed circumstances. Accordingly, the court vacated the BIA's order and remanded for further proceedings. View "Zambrano v. Sessions" on Justia Law

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The Fourth Circuit denied a petition for review of an order of removal issued by DHS. Petitioner was removed without the benefit of a hearing on the basis that he entered the United States under the Visa Waiver Program and waived his right to contest removal under the terms of that program. The court found that petitioner was admitted under the Visa Waiver Program based on the administrative record amassed by DHS; the evidence was sufficient to support DHS's claim that petitioner waived his right to a hearing prior to removal based on the manner of his entry, coupled with evidence of the admission process under the program; and, in the alternative, petitioner failed to demonstrate prejudice if his waiver was not knowing and voluntary. View "Nardea v. Sessions" on Justia Law