Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fourth Circuit
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The Fourth Circuit granted the petition for review of the BIA's final order of removal, holding that petitioner and his family sufficiently established persecution based on threats of death and harm by the Revolutionary Armed Forces of Colombia, commonly known as FARC. Petitioner was a Colombian police officer who investigated FARC rebels.The court held that the BIA's determination that petitioner had not suffered past persecution was manifestly contrary to the law and constituted an abuse of discretion. In this case, petitioner had received multiple threats of death and harm to himself and his family from FARC. Furthermore, when an asylum applicant, such as petitioner, establishes that he has suffered past persecution, he is presumed to have a well-founded fear of future persecution. Because the BIA failed to apply this presumption, the BIA must reconsider the asylum application and apply the proper presumption. The court remanded for further proceedings. View "Rodriguez Bedoya v. Barr" on Justia Law

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Wambura, a citizen of Tanzania, was a lawful U.S. permanent resident. Wambura pled guilty to a conspiracy to fraudulently secure a mortgage and obtain federally subsidized rent using a stolen identity. He was sentenced to 60 months' imprisonment and ordered to pay $434,867.65 in restitution. Removal proceedings (8 U.S.C. 1227(a)(2)) asserted that Wambura had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct and had been convicted of an aggravated felony relating to an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000.Wambura applied for asylum and withholding of removal and for protection under Convention Against Torture. The IJ concluded that Wambura was removable based on his aggravated felony and moral turpitude convictions and, because of those convictions, was ineligible for cancellation of removal or asylum. Due to the length of his sentence, Wambura was ineligible for withholding of removal. Pursuing deferral of removal under CAT, Wambura testified about his involvement with an opposition political party and claimed that his father told him he is being followed by the secret police. The IJ asked for corroborating evidence. Wambura claimed he was unable to provide it because he was unable to access his email account. The BIA affirmed a denial of relief.The Fourth Circuit remanded. Once the requirements for removability are met, the government does not have the burden to prove that the amount of loss caused by the fraud conviction is $10,000 or more for purposes of asylum and withholding of removal. An IJ is not required to provide an alien with advance notice of the need to offer corroborating evidence but must make a finding as to whether such corroborating evidence was reasonably available if it was not provided. View "Wambura v. Barr" on Justia Law

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Petitioner, a native and citizen of El Salvador, petitioned for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed asylum and withholding of removal on the grounds that she suffered persecution as a member of a particular social group: "married El Salvadoran women in a controlling and abusive domestic relationship."The Fourth Circuit dismissed the petition in part because the court lacked jurisdiction over petitioner's numerous proposed social groups not presented to the agency. The court denied the petition for review on petitioner's asylum claim, holding that the Attorney General's ruling in Matter of A-B- is not arbitrary and capricious, and petitioner's social group runs afoul of the anti-circularity requirement. In this case, "married El Salvadoran women in a controlling and abusive domestic relationship" did not "exist independently of the harm asserted." Rather, the group was defined in terms of the very persecution alleged. Because petitioner's asylum claim fails, her claim for statutory withholding of removal must also fail under the heightened standard. Finally, petitioner's CAT claim failed because petitioner failed to establish that it is more likely than not that she would be tortured upon returning to El Salvador. View "Amaya-De Sicaran v. Barr" on Justia Law

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Cartagena was born in El Salvador in 1996. In 2013, her parents moved to the U.S. Cartagena remained in El Salvador with her newborn daughter and two siblings. Cartagena received a call from a man, calling himself her cousin, who told her to tell her parents "they have to send us $200.” He sent texts saying that if they didn’t send the money an unidentified gang would kill her siblings. Cartagena’s parents sent her money for the gang. The threats continued. Her parents were unable to meet increasing demands. Gang members came to the family home and cut Cartagena's nine-year-old brother with a knife, telling him that “his parents [had] to see.” They later returned and beat Cartagena and her brother and raped Cartagena, threatening to kill her daughter. Cartagena fled to the U.S. with her daughter and siblings.Cartagena sought asylum based on the persecution that was based on her membership to the Cartagena family social group. An IJ found her credible but concluded that she had failed to demonstrate that the persecution occurred on account of her group membership because “the primary motivation … was monetary gain.” The BIA agreed, finding that family members were harmed because of their failure to meet the extortion demands, rather than their family ties.The Fourth Circuit reversed. The IJ and BIA failed to consider important evidence that compels the conclusion that family membership was at least one central reason for the persecution. Their conclusions are contrary to law and inconsistent with the evidence of repeated statements that the money being extorted was from Cartegena’s parents and that the persecutors contacted her in order to communicate their threats to her parents. View "Hernandez-Cartagena v. Barr" on Justia Law

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The Fourth 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), and ordering his removal from the United States to El Salvador. The court held that substantial evidence supported the findings that petitioner was not entitled to asylum and withholding of removal. In this case, the record does not compel the conclusion that the Salvadoran government was unwilling or unable to control MS-13. Therefore, the court must uphold the IJ and BIA's conclusion that petitioner does not qualify as a refugee under 8 U.S.C. 1102(a)(42)(A), and is ineligible for asylum and withholding of removal.The court also held that substantial evidence in the record supports the BIA's determination that petitioner was not eligible for CAT protection, and the BIA did not otherwise err in dismissing the appeal of the IJ's denial of petitioner's CAT application. In this case, the IJ did not commit legal error, much less an obvious one, in finding that petitioner failed to establish that it was more likely than not that he would be tortured in El Salvador with the consent or acquiescence of the government. View "Portillo-Flores v. Barr" on Justia Law

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The Fourth Circuit denied the petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding that petitioner is statutorily ineligible for cancellation of removal because, during his first seven years of continuous residence after admission to the United States, he committed an offense listed in 8 U.S.C. 1182(a)(2) that rendered him inadmissible.The Supreme Court held, in Barton v. Barr, 140 S. Ct. 1442 (2020), that conviction of an offense listed in Section 1182(a)(2) renders a lawful permanent resident "inadmissible" for purposes of Section 1229b(d)(1) even if he is not seeking admission. In this case, because petitioner committed such an offense during his initial seven years of residence after admission to the United States, and was later convicted of that offense, the court held that he is ineligible for cancellation of removal. View "Argueta v. Barr" on Justia Law

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The Immigration and Nationality Act states that any alien who is “likely at any time to become a public charge is inadmissible,” 8 U.S.C. 1182(a)(4)(A) but has never defined “public charge.” The Department of Homeland Security sought to define “public charge,” via rulemaking, as an alien who was likely to receive certain public benefits, including many cash and noncash benefits, for more than 12 months in the aggregate over any 36-month period. The district court enjoined that Rule nationwide.The Fourth Circuit reversed. Invalidating the Rule “would visit palpable harm upon the Constitution’s structure and the circumscribed function of the federal courts that document prescribes” and would entail the disregard of the statute's plain text. The Constitution commands “special judicial deference” to the political branches in light of the intricacies and sensitivities inherent in immigration policy. Congress has charged the executive with defining and implementing a purposefully ambiguous term and has resisted giving the term the definite meaning that the plaintiffs seek. The court noted that, in cases addressing the identical issue, the Supreme Court granted the government’s emergency request to stay the preliminary injunctions, an action which would have been improbable if not impossible had the government, as the stay applicant, not made “a strong showing that it was likely to succeed on the merits.” View "Casa De Maryland, Inc. v. Trump" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's decision finding that petitioner was removable because he had been convicted of two crimes involving moral turpitude. The court held that neither of petitioner's convictions for leaving an accident in violation of Va. Code Ann. 46.2–894 and for use of false identification in violation of Va. Code Ann. 18.2–186.3(B1) is categorically a crime involving moral turpitude. The court explained that petitioner's failure-to-stop conviction lacked the required culpable mental state and there is no morally reprehensible conduct. Regardless of the required culpable mental state, the court was not convinced that the offense of false identification has the required moral reprehensible conduct to qualify as a crime involving moral turpitude. Accordingly, the court vacated the BIA's order of removal and remanded with instructions that the government be directed to return petitioner to the United States. View "Nunez-Vasquez v. Barr" on Justia Law

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The Fourth Circuit held that petitioner's prior misdemeanor conviction under Virginia Code 18.2-280(A), for willful discharge of "any firearm" in a public place without resulting bodily injury, qualifies as a federal "firearm offense" for purposes of removal under the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(C). The court held that the plain language of the Virginia statute, as supported by later acts of Virginia's legislature and by decisions of its appellate courts, prohibits conduct involving the use of a "any firearm," including antique firearms. Therefore, petitioner was not required to identify a prosecution under the Virginia statute involving an antique firearm to defend against removal. Accordingly, the conduct punishable under Virginia Code 18.2-280(A) is broader than the conduct encompassed by the federal definition of a "firearm offense." View "Gordon v. Barr" on Justia Law

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Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's final order of removal affirming the IJ's denial of his application for asylum and other forms of relief. Petitioner claimed that he was persecuted and fears future persecution on account of his family ties.The Fourth Circuit dismissed the petition for review in part, holding that petitioner's jurisdictional argument -- that because his initial notice to appear did not include a time or date for a hearing, the immigration court lacked jurisdiction over his removal proceeding -- is squarely foreclosed by the court's recent opinion in United States v. Cortez, 930 F.3d 350, 355 (4th Cir. 2019), which was issued only after the parties' briefing in this case. The court denied the petitioner for review in part, holding that substantial evidence supports the determination of the IJ and BIA that petitioner has not met his burden of showing eligibility for asylum. In this case, the record does not compel the conclusion that family membership was at least one central reason why petitioner was threatened by his brother's attackers. Therefore, petitioner cannot satisfy the nexus requirement and is not eligible for asylum. View "Cedillos-Cedillos v. Barr" on Justia Law