Articles Posted in US Court of Appeals for the Fourth Circuit

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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

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The Fourth Circuit granted the petition for review of the BIA's decision ordering petitioner removed to her native El Salvador. The court held that petitioner credibly testified by affidavit that MS-13 threatened and extorted her after her father left El Salvador; MS-13 threatened to kill her children if she did not meet the gang's demands; and she felt terrorized by the threats and fears for her safety and the safety of her children. The court also held that petitioner was persecuted on account of her family membership. Because the BIA did not reach the issue of whether the Salvadoran government was either unwilling or unable to control the gang members who threatened the family, the court remanded for the BIA to consider this factual issue in the first instance. The court vacated the BIA's order denying withholding of removal and remanded. View "Zavaleta-Policiano v. Sessions" on Justia Law

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Petitioner sought review of the BIA's order finding him both removable and inadmissible on the basis of his North Carolina deferred prosecution agreement for soliciting a child by computer to commit a sex act. The Fourth Circuit denied the petition for review, holding that the BIA properly found petitioner removable and inadmissible for being convicted of a crime involving moral turpitude. In this case, petitioner's deferred prosecution agreement was a "conviction" under the Immigration and Nationality Act; the phrase "crime involving moral turpitude" was not void for vagueness in the removability and admissibility contexts; and, even if petitioner's crime was not considered "violent or dangerous," his application would still be denied. View "Boggala v. Sessions" on Justia Law

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The Fourth Circuit affirmed the denial of petitioner's application for asylum after an IJ granted her application for withholding of removal. The court held that the interplay between 8 U.S.C. 1231(a)(5) and 1158 was unambiguous: Congress intended that aliens subject to reinstated orders of removal be precluded from applying for asylum. Furthermore, barring illegal reentrants from applying for asylum did not violate international law. The court also held that, because the petition was not timely filed as to the underlying order of removal, the court lacked jurisdiction to address petitioner's objections to the June 2015 hearing. View "Calla Mejia v. Sessions" on Justia Law

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The Fourth Circuit denied the petition for review of the denial of petitioner's application for asylum and withholding of removal. The court held that substantial evidence in the record supported the IJ's factual conclusion that petitioner's case was solely one of personal conflict among family members. In this case, petitioner and her son had fled Honduras based on threats from her mother-in-law. Therefore, petitioner did not meet her burden of showing persecution "on account of" a protected ground. View "Velasquez v. Sessions" on Justia Law

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Petitioner, a citizen and native of Mexico, petitioned for review of the BIA's order affirming the IJ's decision finding him ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1)(C). The Fourth Circuit denied the petition for review, holding that petitioner's 2005 criminal proceedings under Virginia Code 18.2-251 for possession of cocaine constituted a "conviction" as defined within the plain text of 8 U.S.C. 1101(a)(48)(A). In this case, both statutory elements of a conviction were satisfied and thus the BIA did not err in upholding the IJ's decision. View "Payan Jaquez v. Sessions" on Justia Law