Justia Immigration Law Opinion Summaries

Kumar, born in India, belonged to a caste considered to be of lower social standing. He joined the Bahujan Samaj Party (BSP) because of its opposition to the caste system. He asserts that as a result of his work for the BSP, he was beaten four times by the police and members of opposing parties. An IJ denied his application for asylum and related relief on adverse credibility grounds. The BIA dismissed Kumar’s appeal.The Ninth Circuit remanded. Under the REAL ID Act, IJs must base credibility determinations on “the totality of the circumstances, and all relevant factors.” 8 U.S.C. 1158(b)(1)(B)(iii), abrogating the single factor rule to which the Ninth Circuit previously adhered. Two of Kumar's three alleged testimonial inconsistencies were actually not inconsistent. Concerning finding that a third-party letter conflicted with Kumar’s testimony, the court concluded that the inconsistency was wholly illusory. A finding that it was implausible that Kumar would not have suffered more injuries after a certain attack relied entirely, improperly, on conjecture. The IJ’s conclusion that Kumar’s affect suggested that he was reciting a rehearsed story, rather than relating incidents he had personally experienced, “passed the low bar for reviewing such findings.” No specific number of inconsistencies requires sustaining or rejecting an adverse credibility determination but falsehoods and fabrications weigh particularly heavily in the inquiry; clear falsehoods and fabrications were entirely absent here. View "Kumar v. Garland" on Justia Law

Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding. View "United States v. De la Mora-Cobian" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioners' second motion to reopen their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel concluded that the Board erred by failing to assess petitioners’ individualized risk of persecution in Indonesia due to their identity as evangelical Christians. Although the Board correctly recognized that Christians in Indonesia are a disfavored group, the panel explained that the Board failed to account for petitioners' status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general. Accordingly, the panel remanded for the Board to assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. The panel also remanded with instructions. View "Nababan v. Garland" on Justia Law

Goulart, a citizen of Brazil. was removed in 2013, after the BIA determined that his conviction was a crime of violence under 18 U.S.C. 16(b). In 2015, the Ninth Circuit held that section 16(b) was unconstitutionally vague. In 2018, the Supreme Court affirmed in “Dimaya.” Goulart learned of the latter ruling on June 9, 2018, when he was so informed by his former defense attorney. He filed his motion for reconsideration based on a change in the law on July 16, 2018.The Ninth Circuit held that the BIA did not abuse its discretion in denying Goulart’s claim for equitable tolling of the 30-day motions deadline. Goulart failed to present any evidence suggesting that he diligently pursued his rights during the time between his removal in 2013 and when he learned of Dimaya in 2018. Even assuming that he was unaware of the Ninth Circuit’s 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to make reasonable efforts to pursue relief. View "Goulart v. Garland" on Justia Law

Following several unlawful reentries into the U.S., Lopez sought review of the 2017 reinstatement of his 1996 order of removal, arguing that the drug conviction on which it was based was vacated in 2014.The Ninth Circuit dismissed Lopez’s petition. The 1996 order had a valid basis both when it was issued and when he was removed; he failed to establish a miscarriage of justice that would permit the court to entertain a collateral attack under 8 U.S.C. 1252(a)(2)(D). Lopez’s conviction was legally valid at the time his original removal order was issued and when it was executed. The vacatur of his conviction did not make his removal order “void ab initio” under governing precedent. The court noted that Lopez was independently removable at the time of his underlying proceedings for having entered the United States unlawfully. View "Vazquez v. Garland" on Justia Law

Prasad owned and operated Maremarks, through which he filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations to come to the U.S. as Maremarks’ employees performing work for Maremarks’ clients. Prasad falsely represented in the H-1B petitions that there were specific, bona fide positions available for the H-1B beneficiaries. Prasad was convicted of 21 counts of visa fraud, 18 U.S.C. 1546(a), and two counts of aggravated identity theft, 18 U.S.C. 1028A(a)(1). The district court ordered forfeiture under 18 U.S.C. 982(a)(6)(A)(ii): $1,193,440.87.The Ninth Circuit affirmed, rejecting Prasad’s argument that he did not “obtain” the entire $1,193,440.87 because he eventually paid portions of the money to the H1B beneficiaries. Prasad possessed the full $1,193,440.87 paid by the end-clients and had control over the money before he paid a percentage of it to employees. Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and its prior construction of virtually identical criminal forfeiture provisions, the court concluded that the term extends to receipts and is not limited to profit. Although the H-1B beneficiary employees performed legitimate work for end-clients, the portions of the money that Maremarks received for that work and subsequently paid to the beneficiary employees was, nonetheless, “obtained directly or indirectly from” Prasad’s unlawful conduct. View "United States v. Prasad" on Justia Law

Quebrado entered the U.S. in 2006. In 2011, he was served a notice to appear lacking the time or place of his removal hearing. He later was served notice with the date, time, and place of his hearing. His final order of removal issued in 2014. In 2018, the Supreme Court (Pereira) held that the stop-time rule, which sets out the circumstances under which a period of continuous physical presence is deemed to end for cancellation of removal, is triggered by a notice to appear only if it includes the “time and place” of removal proceedings. Quebrado then moved to reopen before the BIA, arguing he was statutorily eligible for cancellation. The BIA denied the motion.The Ninth Circuit remanded. A final order of removal does not trigger the stop-time rule. Under 8 U.S.C. 1229b(d)(1) a period of continuous physical presence ends upon the earlier of two events: Under subsection (A), upon the service of the notice to appear, and under subsection (B), upon the commission of certain offenses. Neither subsection applied here. Quebrado’s presence was not deemed to end, so his claim for cancellation facially satisfied the 10-year presence requirement. Quebrado’s improbable situation is entirely of the government’s own making: “If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” View "Quebrado-Cantor v. Garland" on Justia Law

Detained, separated from his family, speaking no English, and having diligently pursued representation, asylum applicant Usubakunov finally connected with a pro bono attorney at Catholic Charities who agreed to represent him. When that attorney was unavailable on the date of his merits hearing, Usubakunov requested his first continuance of that hearing. The IJ denied a continuance, leaving Usubakunov unassisted.The Ninth Circuit remanded. Under these circumstances, the IJ’s refusal to grant a continuance of Usubakunov’s merits hearing deprived him of his right to counsel and was an abuse of discretion because it was tantamount to a denial of counsel. The immigrant illustrated diligence, not bad faith, coupled with very difficult barriers. This was not a case of indefinite continuances, nor was it a case where Usubakunov was trying to game the system. View "Usubakunov v. Garland" on Justia Law

A border patrol agent found and stopped Rizo-Rizo near the U.S./Mexico border. Rizo-Rizo admitted that he was a citizen of Mexico without appropriate immigration documents. The agent arrested him. Rizo-Rizo was then questioned again, waived his Miranda rights, and confirmed that he was a citizen of Mexico who had just “illegally entered.” Rizo-Rizo was charged with the misdemeanor of attempted illegal entry, 8 U.S.C. 1325(a)(1), and chose to plead guilty without a plea agreement. The magistrate listed these elements of attempted illegal entry. Defense counsel objected, claiming that “the Defendant ha[d] to know he was an alien” and that the magistrate had improperly omitted an element of the offense. The magistrate overruled the objection. Rizo-Rizo pled guilty and was sentenced to time served.The district court and Ninth Circuit affirmed, holding that knowledge of alienage was not an element of 8 U.S.C. 1325(a)(1). The statute describes a regulatory offense and no presumption in favor of scienter applies. View "United States v. Rizo-Rizo" on Justia Law

In April 2020, the district court entered a preliminary injunction and provisionally certified nationwide subclasses of ICE detainees with risk factors or disabilities placing them at heightened risk of severe illness and death from COVID-19. The court found that plaintiffs were likely to succeed on claims of deliberate indifference to the medical needs of detainees, punitive conditions of confinement, and violation of the Rehabilitation Act, 29 U.S.C. 794. The preliminary injunction imposed a broad range of obligations on the federal government.The Ninth Circuit reversed, stating that neither the facts nor the law supported a judicial intervention of this magnitude. The plaintiffs did not make a clear showing that ICE acted with deliberate indifference to medical needs or in reckless disregard of health risks. If a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, alone, amount to punishment; there was a legitimate governmental objective here, ICE was holding detainees because they were suspected of having violated the immigration laws or were otherwise removable. ICE’s national directives did not create excessive conditions of “punishment.” Rejecting the Rehabilitation Act claim, the court stated that the plaintiffs at most demonstrated that they were subjected to inadequate national policies; they did not show they were treated differently from other detainees “solely by reason” of their disabilities. View "Fraihat v. United States Immigration and Customs Enforcement" on Justia Law