Justia Immigration Law Opinion Summaries

Petitioner was ordered excluded in 1996 and then unlawfully re-entered the United States. In 2007, DHS served Petitioner with a Notice to Appear (NTA) in immigration court but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Petitioner’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Petitioner’s cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Petitioner’s 1996 order, and he filed a petition for review but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings.   The Ninth Circuit dismissed Petitioner’s petitioner for lack of jurisdiction. The court held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Because Petitioner’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the court concluded that it lacked jurisdiction to consider the merits of his petition.   The court relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. Section 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases. View "MIGUEL LOPEZ LUVIAN V. MERRICK GARLAND" on Justia Law

Petitioner, a citizen of Mexico, became a lawful permanent resident in 1997. Subsequently, he was convicted of four separate crimes in Washington state, including the delivery of a controlled substance. At the time, this offense was an "aggravated felony." and therefore, Petitioner became removable. Petitioner was removed; however, he subsequently re-entered the United States. In 2016, the government detained Petitioner and reinstated his previous removal order.In January 2017, Petitioner filed a petition for review of the reinstatement order, which was ultimately denied. While it was still pending, Petitioner filed a motion to reopen with the immigration judge. The immigration judge denied the motion, Petitioner unsuccessfully filed an administrative appeal to the Board of Immigration Appeals, and then appealed to the Ninth Circuit.The Ninth Circuit denied Petitioner's petition for review, finding that 8 U.S.C. Sec. 1231(a)(5), generally bars reopening reinstated orders of removal and that Petitioner did not establish a "gross miscarriage of justice." The Ninth Circuit also held that the agency lacked authority to sua sponte reopen such reinstated removal orders. View "RICARDO BRAVO-BRAVO V. MERRICK GARLAND" on Justia Law

The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”   The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.   The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. View "USA V. JUAN BASTIDE-HERNANDEZ" on Justia Law

Petitioner was deported in 1991 but illegally reentered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (“USCIS”) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed.Denying Petitioner’s petition for review, the Ninth Circuit held that: 1) the permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) applied retroactively to Petitioner such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated, and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (“CAT”).   Specifically, the court held that the permanent inadmissibility bar applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. First, the court explained that Petitioner did not have a vested right in adjustment relief. Second, IIRIRA imposed a new legal consequence on Petitioner not for his pre-IIRIRA illegal reentry but because of his illegal presence after IIRIRA. Lastly, given IIRIRA’s aims of toeing a harder line on immigration and limiting the availability of discretionary relief, it would be anomalous for Petitioner to obtain a perpetual right to seek relief at his own convenience. View "JORGE RIVERA VEGA V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief from removal under the Convention Against Torture (“CAT”) The BIA affirmed based upon the IJ’s adverse credibility determination.   The Ninth Circuit granted the petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record. The court remanded on an open record for the BIA to determine in the first instance whether the remaining inconsistency is sufficient to support the adverse credibility determination.   The court held that substantial evidence did not support the IJ’s reliance upon insufficient corroborating evidence as a basis for finding Petitioner not credible because the IJ categorically ignored documents that were consistent with Petitioner’s testimony. The court explained that by ignoring such evidence, the IJ did not consider “the totality of the circumstances” when making the adverse credibility determination.   The court held that the BIA further erred by misinterpreting the IJ’s holding regarding corroborating evidence as relying on 8 U.S.C. Section 1158(b)(1)(B)(ii), and by erroneously characterizing the IJ’s holding as concluding that Petitioner did not provide sufficient corroborating evidence to sustain his burden of proof independent of his own non-credible testimony when the IJ actually relied upon the lack of documentation as one factor supporting its adverse credibility determination under 8 U.S.C. Section 1158(b)(1)(B)(iii). The court did not reach the BIA’s holding concerning Petitioner’s eligibility for protection under CAT. View "HAYK BARSEGHYAN V. MERRICK GARLAND" on Justia Law

Bangladesh citizen Atm Magfoor Rahman Sarkar, his wife, and their two children petitioned for review of the Board of Immigration Appeals’s (BIA) order denying their third motion to reopen removal proceedings. Although this case was pending for nearly five years, shortly before oral argument both Sarkar and the Government moved to administratively close this case because the Government deemed Sarkar a low enforcement priority. On the merits, it was undisputed that Sarkar’s third motion to reopen was untimely and numerically barred. Nevertheless, he argued he was entitled to relief because he presented new and material country-condition evidence that established his prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Ninth Circuit affirmed the BIA, finding Sarkar's attempts to connect generalized evidence of increased Islamic extremism with his contentions that he has become known “as a fierce opponent of religious extremism” and he has “no doubt” that he was known as an enemy “within the Bangladesh Jihadi/Extremist network” failed to establish a nexus between a reasonable fear of future persecution and his proposed protected grounds. "[I]t points to generalized crime and societal shifts that do not target him or those in his proposed social groups." View "Sarkar v. Garland" on Justia Law

The Board of Immigration Appeals (“BIA”) denied Petitioner’s cancellation of removal concluding that his receipt of temporary protected status (“TPS”) was not an admission and, therefore, he could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission. The BIA also denied Petitioner’s application for asylum concluding that his 2016 domestic-violence conviction was a “particularly serious crime” that barred him from relief. Petitioner challenged the BIA’s decision raising two primary arguments: (1) under the court’s precedent, his TPS does constitute an admission “in any status” under the cancellation statute, 8 U.S.C. Section 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.   The Ninth Circuit denied his petition for review. The court explained that considering the Supreme Court’s recent decision in Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021), and the plain language of the TPS statute, 8 U.S.C. Section 1254a(c)(5), the court concluded that the granting of TPS does not constitute being “admitted in any status” under the cancellation statute. The court held that Sanchez effectively overruled circuit precedent requiring consideration of the benefits conferred by an alien’s immigration status in determining whether the alien had been admitted. The court wrote that Sanchez is clear that TPS does not constitute an admission to the United States no matter how great its benefits. The court further rejected Petitioner’s argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions. View "JOSE HERNANDEZ V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of El Salvador, sought a petition for review with the Ninth Circuit after the Board of Immigration Appeals ("BIA")dismissed his appeal under 8 U.S.C. Sec. 1229b(a). Previoulsy, Petitioner had been granted special rule cancellation of removal and adjustment of status to lawful permanent resident under section 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). However, in 2015, removal proceedings were initiated against Petitioner after he was convicted of a state-law drug offense. The Immigration Judge found Petitioner was removable because he was ineligible for a second grant of cancellation of a removal under 8 U.S.C. Sec. 1229b(a).The Ninth Circuit affirmed the BIA, finding that a plain reading of the relevant statutory law supports the Immigration Judge's and the BIA's position. View "MANUEL HERNANDEZ V. MERRICK GARLAND" on Justia Law

Petitioner asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured. Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board of Immigration Appeals (“Board”) concluded that Petitioner failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen.   The Ninth Circuit, in granting Petitioner’s petition for review the court held that the Board erred by failing to adequately consider Petitioner’s aggregate risk of torture from multiple sources, and erred in rejecting Petitioner’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence.   The court concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. Discussing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), the court explained that when an applicant posits multiple theories for why he might be tortured, the relevant inquiry is whether the total probability that the applicant will be tortured exceeds 50 percent.   Here, the Board considered Petitioner’s two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. The court concluded that in doing so, the Board misapplied Cole and Matter of J-F-F-.  By requiring Petitioner to show that every step in two hypothetical chains was more likely than not to occur, the Board increased his CAT burden. View "MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND" on Justia Law

Petitioner asserted that changed circumstances in his native Jamaica— a spike in violence against members of the People’s National Party—justified his untimely second motion to reopen. Because an Immigration Judge in an earlier proceeding found Petitioner not credible and questioned his actual identity, the Board of Immigration Appeals (“Board”) ruled that the new evidence of political violence did not matter because Petitioner may not even be a member of the People’s National Party.   The Ninth Circuit denied in part and dismissed in part holding that the Board may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument. The court concluded that the Board did not abuse its discretion in denying Petitioner’s motion to reopen. The court explained that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied on adverse credibility grounds, the respondent must either overcome the prior credibility determination or show that the new claim is independent of the evidence that was found to be not credible.   Here, Petitioner did not challenge the adverse credibility finding but instead argued that his new evidence was independent of the evidence that was found to be not credible. The court rejected that argument. The court explained that the IJ had previously found Petitioner’s testimony about his identity not credible, thus undermining his entire claim. Moreover, Petitioner’s claims remained the same throughout his proceedings. The court concluded that the basis of Petitioner's motion to reopen therefore remained intertwined with his credibility problem. View "GARFIELD GREENWOOD V. MERRICK GARLAND" on Justia Law