Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fourth Circuit
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The Fourth Circuit denied a petition for review of the BIA's decision that petitioner was deportable for committing an aggravated felony within the meaning of the Immigration and Nationality Act. The court held that petitioner's convictions for taking custodial indecent liberties with a child under Virginia Code 18.2-370.1(A) qualified categorically as an aggravated felony of sexual abuse of a minor under the INA. View "Thompson v. Barr" on Justia Law

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After plaintiffs were arrested and detained by ICE under 8 U.S.C. 1226(a), pending removal for being in the United States without inspection or admission, they filed suit against ICE and DHS, challenging their transfer or anticipated transfer from ICE's detention facility to an out of state facility. Plaintiffs alleged a violation of their substantive due process right to family unity and procedural due process right to notice and an opportunity to be heard, because such transfers separated them from their children and made it impossible for children to have access to their parents or to visit them. The Fourth Circuit affirmed the district court's grant of the government's motion to dismiss and held that plaintiffs did not have a due process right to family unity in the context of immigration detention pending removal. Furthermore, the court did not have the authority to create a new substantive due process right in view of Supreme Court decisions cautioning courts from innovating in this area. Likewise, the court held that, because plaintiffs right to family unity did not exist, their procedural due process claim failed. View "Reyna v. Hott" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's denial of petitioner and her son's application for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The court vacated the BIA's order with respect to the CAT claim and remanded, holding that the BIA failed to fully consider the evidence in support of petitioner's CAT claim. In this case, petitioner and her son were threatened by members of a local street gang that, if they did not leave their native country of El Salvador within 24 hours, they would be murdered. Petitioner and her son decided to come to the United States after local law enforcement refused to provide any form of aid. The court held that the BIA's wholesale failure to fully consider the country conditions evidence petitioner presented to show government acquiescence in her torture constituted reversible error. View "Cabrera Vasquez 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 determination that petitioner failed to demonstrate the requisite governmental acquiescence for relief under the Convention Against Torture (CAT) and that he had not derived citizenship under the Child Citizenship Act of 2000 (CCA) because he was not in the "physical custody" of his father during the requisite time period. The court held that whether the government would acquiesce to torture under the CAT is a mixed question of fact and law. The court also held that whether petitioner was in the "physical custody" of his father was a mixed question of fact and law. In this case, the BIA applied the wrong standard of review to both determinations by applying the clear error, rather than the de novo, standard of review. View "Duncan v. Barr" on Justia Law

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The risks of torture from all sources should be combined when determining whether a Convention Against Torture (CAT) applicant is more likely than not to be tortured in a particular country. The Fourth Circuit granted a petition for review of the BIA's final order affirming the denial of petitioner's claim for protection under CAT. The court agreed with petitioner that the BIA made a legal error when it denied him CAT relief because it failed to aggregate his risk of torture from all three of the entities that he fears: gangs, vigilante groups, and the police. The court also agreed with petitioner that the BIA and IJ erred by (1) failing to meaningfully engage with the live testimony and over 300 pages of documentary evidence that he originally produced in support of his claim, and (2) failing to meaningfully consider the additional evidence that he submitted on remand about the risk of torture that he faced in El Salvador. Therefore, the court held that the BIA and IJ failed to provide a cogent, articulable basis for its determination that petitioner's evidence was insufficient. Accordingly, the court vacated the BIA's judgment and remanded for further proceedings. View "Rodriguez-Arias v. Whitaker" on Justia Law

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The Fourth Circuit granted a petition for review of an order of removal, holding that the BIA applied the wrong standard of review. The court held that, whether petitioner established that the government would acquiesce in his torture under 8 C.F.R. 1208.16(c)(2) was a mixed question of law and fact, and the IJ's determination that the evidence did not meet the relevant standard was a legal judgment subject to de novo review by the Board. Accordingly, the court remanded for the Board to review the IJ's determination under the proper standard. View "Cruz-Quintanilla v. Whitaker" on Justia Law

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The temporary, ex parte emergency order presented by plaintiff did not qualify as a predicate state court custody order for the special immigrant juvenile application. The Fourth Circuit affirmed the district court's judgment and held that it properly concluded that the USCIS did not impose an ultra vires requirement for permanent custody orders within the SIJ application process. Therefore, the agency did not act arbitrarily, capriciously or contrary to law, or abuse its discretion in determining that plaintiff failed to present a qualifying predicate order in support of his SIJ petition. Finally, the court held that the Full Faith and Credit Act was inapplicable under the facts presented in this case. View "Perez v. Cissna" on Justia Law

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Petitioner, a citizen and native of El Salvador, challenged the BIA's dismissal of his appeal of the IJ's denial of his application for withholding of removal and protection under the Convention Against Torture (CAT). The court assumed, without deciding, that petitioner was a member of a particular social group comprised of his disabled father's immediate family members and that he suffered past persecution in El Salvador. Even with that assumption, the court held that petitioner failed to establish the requisite nexus between any persecution he suffered and his relation to his disabled father. Accordingly, the court denied the petition for review. View "Cortez-Mendez v. Whitaker" on Justia Law

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The Fourth Circuit granted a petition for review of the BIA's determination that petitioner was removable under the Immigration and Nationality Act (INA) based on his commission of a crime involving moral turpitude within five years of his admission to the United States. The court explained that it was DHS's burden to affirmatively prove (by clear and convincing evidence) that petitioner last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determined whether his 2012 felony abduction offense fell within the five-year window for removability. The court held that DHS failed to prove that petitioner was admitted in 2008. In this case, the record contained essentially unrebutted evidence showing that petitioner was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise). View "Mauricio-Vasquez v. Whitaker" on Justia Law

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Tairou was born in Benin in 1977. Although Tairou married a woman, he testified that in 2007, he “figured out [he] was a homosexual” and entered into a relationship with a man. Despite the general secrecy surrounding their relationship, the men were openly affectionate in front of Tairou’s cousin, who took pictures. Tairou was subsequently confronted by a group of approximately 40 men, including his uncles, cousins, ministers from the mosque, and other villagers. The crowd threatened and harassed him for five hours. In Tairou’s declaration attached to his asylum application, he asserted that several people said that he “should die,” and some "outright threatened to kill [him].” A week later, Tairou’s cousins forced their way into his home and beat him, threatening to “kill [him], to shame [him] publicly again,” and to harm his wife and children. Tairou’s son sustained head and arm injuries trying to protect his father. The Fourth Circuit remanded a removal order. The BIA erred in finding that Tairou was not subjected to past persecution. Binding precedent explicitly holds that a threat of death constitutes persecution. Tairou established that he was subjected to past persecution; the BIA must consider whether, in light of Tairou’s demonstrated past persecution, he has a well-founded fear of future persecution. View "Tairou v. Whitaker" on Justia Law