Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fourth Circuit
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In a case before the United States Court of Appeals for the Fourth Circuit, a foreign service officer and a non-citizen were convicted of conspiring to fraudulently obtain U.S. citizenship for the non-citizen and making false statements in the process. The defendants, Laura Anne Gallagher and Andrey Nikolayevich Kalugin, were married in 2015. They were accused of conspiring to achieve naturalization and proof of citizenship for Kalugin by making false statements and submitting fraudulent documents. The jury found them guilty on all counts. On appeal, the court concluded that the evidence was sufficient to support each defendant’s convictions. However, it found that the jury was allowed to consider a legally inadequate theory on one count and an erroneous evidentiary ruling prevented the defendants from offering certain evidence on the remaining two counts. As a result, the court vacated the convictions and remanded the case for further proceedings. View "US v. Gallagher" on Justia Law

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After Petitioner illegally reentered the United States, the Department of Homeland Security (DHS) reinstated the removal order previously entered against him. Petitioner expressed fear of returning to his native country and was placed in withholding only proceedings. The immigration judge and the Board of Immigration Appeals denied relief, and Petitioner petitioned the court for review within 30 days of the Board’s decision.   The Fourth Circuit dismissed the petition. The court held that the INA deprives the court of jurisdiction to resolve Petitioner’s petition for judicial review. The court wrote that Petitioner did not file his petition within 30 days of any final order of removal, and precedent dictates that the statutory filing deadline is jurisdictional. Further, the court noted that the pendency of his withholding-only proceedings did not extend his time to file. So his petition for review was untimely. View "Jose Martinez v. Merrick Garland" on Justia Law

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On July 6, 2023, the Fourth Circuit granted Petitioner's petition for review, reversed the agency’s denial of asylum and withholding of removal, and remanded with instructions to grant Petitioner's application. The Attorney General filed a petition for panel hearing, claiming that the Immigration and Nationality Act and implementing regulations require that the Attorney General make a discretionary judgment as to whether asylum should be granted, even where a noncitizen has met the statutory requirements.The Fourth Circuit agreed. The power to grant asylum is vested solely in the hands of the Attorney General and, even if a noncitizen is otherwise eligible, the Attorney General is empowered by statute to deny relief. While discretionary denials of asylum are exceedingly rare Petitioner's claim that there are no grounds to deny asylum as a matter of discretion must first be considered by the Attorney General. View "Shaker Ullah v. Merrick Garland" on Justia Law

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\Petitioner, a native and citizen of Mexico, petition for review of a final order of removal entered by the Board of Immigration Appeals. The Board determined that Petitioner was ineligible for cancellation of removal because his prior conviction for receipt of stolen property was a crime involving moral turpitude. The Board also held that the immigration judge (IJ) provided Petitioner with legally adequate notice of the conditions applicable to his voluntary departure.   The Fourth Circuit affirmed the Board’s holding that Petitioner’s conviction for receipt of stolen property rendered him ineligible for cancellation of removal. However, the Board erred in concluding that the IJ was not required to advise Petitioner of the bond requirement before granting voluntary departure. Accordingly, the court denied the petition with respect to the cancellation of removal but remanded for the Board to consider Petitioner’s request for voluntary departure. The court explained that the Board did not address whether an alien must show he was prejudiced by the IJ’s delay in providing the required advisals or whether Petitioner had made such a showing. The court therefore granted the petition in part and remanded for the Board to consider Petitioner’s request for remand to the IJ for a new period of voluntary departure with the required advisal. View "Cesar Solis-Flores v. Merrick Garland" on Justia Law

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Petitioner, a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (Board) upholding the immigration judge’s (IJ’s) denial of his application for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and ordering him removed to Honduras. As a former member of the MS-13 gang, Petitioner fears torture by gangs and police in Honduras. The IJ concluded that Ponce-Flores’s risk of torture was substantial, but he had not shown that a government official would more likely than not inflict or acquiesce in it.   The Fourth Circuit denied the petition. The court explained that Petitioner has failed to show that the IJ arbitrarily ignored relevant evidence or otherwise abused her discretion. The court explained that it requires agency adjudicators to demonstrate that they “reviewed all [the applicant’s] evidence, understood it, and had a cogent, articulable basis for [their] determination that [his] evidence was insufficient.” Here, the court concluded that the IJ surpassed that standard. View "Jesus Ponce-Flores v. Merrick Garland" on Justia Law

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Petitioner, a native and citizen of Albania, entered the United States in 2001. He remained in the country until 2008 when he was ordered removed. In 2015, Petitioner was charged with federal bank fraud and aggravated identity theft. In 2016, he was convicted of those charges after pleading guilty and sentenced to 44 months in prison. Based on Petitioner’s convictions, in August 2019, the Department of Homeland Security (“DHS”) began removal proceedings against Petitioner. And also, because of those convictions, in September 2019, DHS moved to terminate his asylum status. Petitioner conceded he was removable based on the bank fraud and identity theft proceedings but requested the IJ waive those grounds for his removal. Petitioner also applied to adjust his status to lawful permanent resident. And he separately sought withholding of removal and protection under the Convention Against Torture (“CAT”). The IJ denied Petitioner’s request for a waiver. Petitioner asked the Fourth Circuit to grant his petition for review and vacate the BIA’s decision determining that the termination of his asylum status renders him ineligible to seek an adjustment of status to a lawful permanent resident under Section 1159(b).   The Fourth Circuit denied the petition. The court concluded that Section 1159(b) unambiguously precludes an alien whose asylum status has been terminated from adjusting to lawful permanent resident status. On that basis, Petitioner’s argument fails at step one of the Chevron test. Since Petitioner’s asylum status had been terminated at the time he sought to adjust to lawful permanent resident status, he was not eligible for that adjustment. View "Tiger Cela v. Merrick Garland" on Justia Law

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An Immigration Judge (IJ) denied Petitioner asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed, and Petitioner petitioned for review.
The Fourth Circuit granted in part, denied in part, and remanded. The BIA properly held that Petitioner was not eligible for CAT protection, and so the court denied the petition for review as to the CAT claim. But the BIA erred in not recognizing the nexus that Petitioner established between the persecution she suffered and her religion. As a result of that error, the BIA erred in determining that Petitioner was not a refugee eligible for asylum. The court explained that when Petitioner left the country 12 days after her initial police report, Petitioner had not been harmed, and she did not offer any evidence that the police colluded with MS-13 or otherwise acquiesced in the gang’s activity. With no such evidence, a reasonable adjudicator could find that there was no government acquiescence in her persecution. View "Odalis Chicas-Machado v. Merrick Garland" on Justia Law

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Petitioner and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings, and the Board of Immigration Appeals (BIA) dismissed their appeal. The BIA concluded that Petitioner had “not rebutted the slight presumption of delivery and receipt of the hearing notice at the address she provided.” Petitioner petitioned for review.   The Fourth Circuit granted the petition and vacated the dismissal by the BIA. The court explained that the statutory scheme contemplates a notice to appear that fully complies with the requirements of Section 1229(a)(1). The Supreme Court has emphasized that this notice must be a “single statutorily compliant document.” That is because the original notice to appear, by itself and regardless of any future need for a change in hearing, is a critical document, “the basis for commencing a grave legal proceeding” with profound implications for people like Petitioner and her son. If the government holds the original removal hearing as envisioned by the satisfactory notice to appear, there is no need for further notices. Of course, “if logistics require a change,” the government has statutory flexibility to send a change of hearing notice. But that flexibility does not excuse the government from its obligations to provide a valid notice to appear in the first instance. That did not happen here. Nor did Petitioner receive proper notice under Section 1229(a)(2). The court concluded that because she did not receive the “written notice required under paragraph (1) or (2) of section 1229(a),” Petitioner is entitled to the reopening of her proceedings and the rescission of her removal order. View "Azucena Lazo-Gavidia v. Merrick Garland" on Justia Law

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Petitioner, a native and citizen of El Salvador, has twice traveled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Petitioner fled threats to his life, and attacks were carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Petitioner was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Petitioner, for his part, was removed to El Salvador in May 2022 and has awaited further developments in these proceedings from his home country. In this appeal, Petitioner challenged and sought reversal of three rulings made by the BIA.   The Fourth Circuit granted Petitioner’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. The court otherwise remanded to the BIA for such further proceedings. The court explained that the BIA declined to “interact seriously” with the record before it in reviewing Petitioner’s claim for CAT protection, and its failure in that regard requires a remand. Petitioner’s evidence, to be certain, is strongly supportive of his CAT claim — he has, after all, already been subjected to “cruel and inhuman treatment” after being initially removed to El Salvador. But the court declined to resolve whether Petitioner is entitled to CAT protection. Instead, the court vacated the BIA’s 2021 Reversal Order with respect to its CAT ruling and remanded for the BIA to fully and properly assess Petitioner’s CAT claim in the first instance. View "Christian Santos Garcia v. Merrick Garland" on Justia Law

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Petitioner applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The immigration judge (“IJ”) denied his application, explaining that while he had left El Salvador because of a genuine fear of gangs, neither he nor his family had had any encounters with gang members. Because the basis for his fear was simply a “generalized” fear of criminal gang members and violence in El Salvador, the IJ found that he was ineligible for relief.On appeal to the Board of Immigration Appeals (“BIA”), Petitioner argued that he had proceeded pro se before the IJ and that the IJ had failed to develop the record, as required by Quintero v. Garland, 998 F.3d 612, 622 (4th Cir. 2021). The BIA concluded, however, that the IJ had fulfilled the requirements of Quintero and affirmed.The Fourth Circuit affirmed, finding that the BIA's conclusions were not legally erroneous or lacked evidentiary support. View "Jose Trejo Tepas v. Merrick Garland" on Justia Law