Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fourth Circuit
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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

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Plaintiffs alleged that Proclamation 9645, which imposed certain restrictions on the entry of individuals from eight countries, violates their rights under the Establishment Clause, as well as under other clauses of the Constitution, because it lacks a rational relationship to legitimate national security concerns and is motivated solely by anti-Muslim animus. The government filed a motion to dismiss plaintiffs' complaints for failure to state a claim based mainly on the Supreme Court's recent decision in Trump v. Hawaii, 138 S. Ct. 2392 (2018), which reversed a preliminary injunction against the enforcement of Proclamation 9645 that had been issued on facts that are essentially the same as those alleged here. The Hawaii Court held that the government had "set forth a sufficient national security justification to survive rational basis review" and thus plaintiffs had not demonstrated that they were likely to succeed on the merits of their claims. The Fourth Circuit reversed the district court's judgment and held that the district court misunderstood the import of the Supreme Court's decision in Hawaii and the legal principles it applied. The court held that Proclamation 9645 restricts the entry of foreign nationals from specified countries, giving reasons for doing so that are related to national security, and it makes no reference to religion. In this case, although the district court agreed that the Mandel standard is controlling, it failed to apply the standard of review properly, moving past the face of the Proclamation to consider in its analysis external statements made by President Trump. The court proceeded beyond consideration of only the facially stated purposes of Proclamation 9645 and determined whether plaintiffs have alleged plausible constitutional claims under the rational basis standard of review. Under the rational basis standard, plaintiffs' constitutional claims failed because the Proclamation was plausibly related to the Government's stated objective to protect the country and improve vetting processes. The court remanded with instructions to dismiss the complaints. View "International Refugee Assistance Project v. Trump" on Justia Law

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The Fourth Circuit denied petitions for review of the BIA's final order of removal. Applying the modified categorical approach, the court held that defendant's prior conviction for distribution of cocaine under Virginia Code 18.2-248, including distribution of that substance as an accommodation under Virginia Code 18.2-248(D), satisfies the federal definitions of an "aggravated felony" and of a crime "relating to a controlled substance" pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). The court also held that the district court did not abuse its discretion in denying petitioner's motion to reconsider. View "Cucalon v. Barr" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's order denying petitioner's asylum application and ordering his removal to Guatemala. The court held that petitioner established that the past persecution he suffered at the hands of the Guatemalan military was on account of a statutorily protected ground: his imputed political opinion. The court held that the evidence compelled the conclusion that petitioner has established the requisite nexus between his undisputed past persecution and imputed political opinion. In this case, petitioner credibly testified that he refused to engage in inhuman conduct as a conscripted teenager in the Guatemalan military (G-2 intelligence unit), including murdering an infant, and that he threatened to expose the G-2's human rights abuses. Consequently, he was confined to a hole in the ground for ten months. Furthermore, he credibly testified that while he was in the hole, G-2 soldiers mocked him with his own words—telling him to call human rights groups to defend him. View "Lopez Ordonez v. Barr" on Justia Law

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8 U.S.C. 1155 commits visa petition revocation decisions to the Secretary's discretion. Plaintiff and his stepson appealed the district court's dismissal of their complaint alleging that the USCIS unlawfully revoked their I-130 family visa petition. The Fourth Circuit affirmed the district court's dismissal of the complaint, holding that 8 U.S.C. 1155 is discretionary and thus the court lacked jurisdiction to review the agency's revocation due to 8 U.S.C. 1252(a)(2)(B)(ii). The court emphasized that the dismissal of these claims in this proceeding for lack of jurisdiction does not preclude this court, or any other court of appeals, from reviewing them under section 1252(a)(2)(D) upon a petition from a removal proceeding. View "Polfliet v. Cuccinelli" on Justia Law

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Petitioner sought withholding of removal and protection under the Convention Against Torture. The Fourth Circuit held that the Board erred in finding that the government rebutted the future-threat presumption. The court explained that it was the government's burden to prove either condition that rebuts the presumption, and the record did not support a finding that it did. Therefore, the court vacated the denial of withholding of removal and remanded for the agency to grant relief on this claim. The court affirmed the district court's denial of petitioner's CAT application, because the record supported the Board's finding that petitioner did not meet the burden of proof. In this case, a reasonable adjudicator would not be compelled to find that petitioner proved that there is more than a fifty-percent chance that petitioner's former partner would torture her and that Honduran law enforcement would turn a blind eye. View "Ortez-Cruz v. Barr" on Justia Law

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On rehearing en banc, the Fourth Circuit reversed the judgment and remanded with instructions to grant plaintiff's motion to set aside the agency's final action denying plaintiff special immigrant juvenile (SIJ) status. In this case, USCIS interpreted 8 U.S.C. 1101(a)(27)(J) (i) to require a permanent custody order and thus denied plaintiff's SIJ application, dismissing his administrative appeal. The court held that the agency's rejection of plaintiff's SIJ provision -- that clause (i) requires a permanent custody order -- is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Because the agency's interpretation of clause (i) was not in accordance with law, the court remanded to the agency to take another look at plaintiff's SIJ application. View "Perez v. Cuccinelli" on Justia Law

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The Fourth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of his application for asylum. The court held that the BIA's ruling, that petitioner's proposed social group -- merchants in the formal Honduran economy -- did not constitute a particular social group under the Immigration and Nationality Act, was not manifestly contrary to the law nor an abuse of discretion. View "Canales-Rivera v. Barr" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's rulings determining that petitioner's testimony was not credible. The court held that the Baltimore IJ failed to give petitioner an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record. The court declined to address whether the adverse credibility determination and denials of petitioner's applications for withholding of removal and relief under the Convention Against Torture were erroneous. Accordingly, the court vacated the BIA's summary affirmance of the IJ's rulings and remanded for reconsideration of petitioner's asylum claim, which included affording her an opportunity to testify and appropriate consideration of that testimony as well as any factual determinations. View "Atemnkeng v. Barr" on Justia Law

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The Fourth Circuit dismissed the petition for judicial review of the BIA's order denying petitioner's application for asylum. The court held that the BIA's July 9 remand order did not constitute a final order of removal within the meaning of 8 U.S.C. 1252, and thus the court lacked jurisdiction to consider the petition. In this case, the BIA remanded petitioner's case to the IJ for background checks, and thus the BIA order underlying the petition for judicial review was not a final order. View "Kouambo v. Barr" on Justia Law