Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit
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In 2004, Enriquez-Perdomo a nine-year-old Honduran national, was ordered removed. INS signed a warrant of removal/deportation but never removed her. The 2012 Deferred Action for Childhood Arrivals (DACA), program applied to persons who immigrated to the U.S. when they were under the age of 16 and were under age 31 in 2012 and meet other specific requirements. In 2013, USCIS approved Enriquez-Perdomo for DACA. She renewed her DACA status through January 2019. In 2017, Enriquez-Perdomo went to an Immigration and Customs Enforcement (ICE) office to post bond for ICE detainees. Enriquez-Perdomo alleges that ICE officers (Defendants) confirmed that she had received DACA, but nevertheless arrested her without a warrant, motivated by her ethnicity and by her assistance of detainees. She claims that Defendants transported her between facilities and deprived her of sleep and food during her eight days in custody. Enriquez-Perdomo sued Defendants in their individual capacities, seeking money damages under “Bivens.”The district court dismissed her claims for lack of subject-matter jurisdiction under 8 U.S.C. 1252(g). The Sixth Circuit vacated in part. Notwithstanding her removal order, Enriquez-Perdomo was eligible for DACA relief and was granted affirmative relief from removal. Although the government could terminate that relief, it did not. Enriquez-Perdomo’s arrest and detention were unauthorized so 1252(g) does not preclude her claims; her removal order was not executable. There is no Bivens remedy for First Amendment retaliation claims; the court remanded Fourth Amendment and Fifth Amendment claims. View "Enriquez-Perdomo v. Newman" on Justia Law

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Yousif, a citizen of Iraq, came to the U.S. in 2000 as a refugee. He became a lawful permanent resident. In 2010, he was convicted of conspiracy to distribute 100 kilograms or more of marijuana. In removal proceedings, Yousif applied for withholding of removal under the Convention Against Torture and under the Immigration and Nationality Act, or deferral of removal. He argued that if he returned to Iraq, he would be persecuted because of his religion. Yousif did not appeal a 2011 removal order. In 2017, he moved to reopen his application based on changed conditions in Iraq, alleging he would face torture because of “his Christian religion, long residence in the U.S. [and] . . . his ethnicity.” At Yousif’s hearing, Yousif testified, stating that he feared “all Muslims.” The IJ found the government’s evidence “more persuasive,” and rejected Yousif’s claims.The BIA affirmed, finding that the IJ correctly applied the aggregate approach in assessing the probability of torture and that the evidence did not establish that Yousif would “be singled out for torture.” The Sixth Circuit denied a petition for review. Substantial evidence supports the BIA’s denial of his application, and the BIA acted within its discretion in denying Yousif’s motion to remand. View "Yousif v. Garland" on Justia Law

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Iris and Jose lived with their two children in Usulután, a part of El Salvador that they believed to be controlled by MS-13. They ran a small retail business. In 2016, gang members began extorting Jose, threatening to kill the family if Jose did not pay. Gang members robbed Jose and a colleague at gunpoint. Jose did not report the crimes to the police. He knew that the police conducted daily raids in his neighborhood to combat gang activity but he believed that the gangs had infiltrated the government. He feared that MS-13 would learn of his complaints and kill him. The mayor was subsequently arrested for helping gang members collect “rent.” Members of MS-13 interrogated Jose about his dealings with the police. Jose left El Salvador but the gang continued to extort and threaten Iris. Eventually, she fled to the United States.The family sought asylum and withholding of removal, submitting country-condition reports about gang activity in El Salvador that corroborated their testimony. An IJ ordered the family’s removal, finding Iris and Jose credible, but concluding that they had not established that the government was unable or unwilling to control MS-13. The BIA affirmed. The Sixth Circuit denied a petition for review. The BIA did not commit a legal error in interpreting and applying the asylum and withholding-of-removal statutes. Its opinion permits discernment of the grounds on which it relied and its findings have a fair evidentiary basis. View "Rodriguez de Palucho v. Garland" on Justia Law

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Tantchev, a citizen of Bulgaria, entered the U.S. in 1999, with a business visa. He received lawful permanent resident status in 2012., Tantchev ran a trucking business out of a Chicago warehouse. In 2008, Tantchev started a side business coordinating the export of shipping containers from Chicago to Mongolia for customers. Tantchev never looked inside the containers; he completed customs paperwork describing the contents of the containers using the information provided by the customers. Customs learned that several of these shipping containers held stolen cars. In 2016, Tantchev was convicted of exporting stolen vehicles, 18 U.S.C. 553. The Seventh Circuit affirmed his conviction, rejecting a challenge to the use of an “ostrich” instruction, referencing situations where the defendant is willfully blind to material facts,After Tantchev was released from prison, he was placed in removal proceedings, 8 U.S.C. 1227(a)(2)(A)(iii), on the grounds that his conviction was an aggravated felony under 8 U.S.C. 1101(a)(43)(G). An immigration judge ordered Tantchev deported. The BIA affirmed. Tantchev was deported in 2022. The Sixth Circuit denied a petition for review. The BIA in Tantchev’s case did not err in concluding that the mens rea of willful blindness encompassed in section 553(a)(1) categorically matches the mens rea requirement of a receipt of stolen property crime under section 1101(a)(43)(G). View "Tantchev v. Garland" on Justia Law

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The Secretary of Homeland Security’s 2021 Guidance notes that the Department lacks the resources to apprehend and remove all of the more than 11 million removable noncitizens in the country and prioritizes apprehension and removal of noncitizens who are threats to “national security, public safety, and border security.” Whether a noncitizen poses a threat to public safety "requires an assessment of the individual and the totality of the facts and circumstances.” The Guidance lists aggravating and mitigating factors that immigration officers should consider and does not “compel an action to be taken or not taken,” and “may not be relied upon to create any right or benefit.” In a suit by Arizona, Montana, and Ohio, the district court issued a “nationwide preliminary injunction,” blocking the Department from relying on the Guidance priorities and policies in making detention, arrest, and removal decisions. The Sixth Circuit granted a stay pending appeal and subsequently reversed the order. The court noted “many dubious justiciability questions” with respect to standing. The Guidance leaves considerable implementation discretion and does not create any legal rights for noncitizens, suggesting it is not reviewable. Even if the states cleared the justiciability hurdles, they are unlikely to succeed on the merits of their claim that the Guidance violates the Administrative Procedure Act, whether on the grounds that it is contrary to law, it is arbitrary or capricious, or it lacks a required notice and comment, 5 U.S.C. 706(2), 553. View "Arizona v. Biden" on Justia Law

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The Board of Immigration Appeals (BIA) dismissed an appeal by Antonio, a citizen of the Dominican Republic, from an order denying his request for deferral of removal under the Convention Against Torture. The Sixth Circuit granted a stay of removal pending a decision on the merits of his petition, 8 U.S.C. 1252(b)(3)(B). "Everyone agrees" that Antonio will likely be tortured if he is removed. The record indicates that Antonio, who was involved with serious drug trafficking gangs that might have control over the Dominican Republic police forces, will not be protected by the government from the torture to which he will be subject upon his return. Antonio has made a substantial showing that one of his torturers in the past was a police officer. In light of his strong showing of irreparable harm, Antonio’s arguments present a sufficient likelihood of success to weigh in favor of granting a stay pending an appeal on the merits. A stay pending a merits decision is necessary to preserve any value in hearing his case on the merits. View "Antonio v. Garland" on Justia Law

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After Ramirez-Figueredo entered the U.S. from Cuba, he amassed convictions for the delivery and manufacture of controlled substances, domestic violence, assault with a dangerous weapon, retail fraud, stalking, assault and battery, disorderly conduct, possession of a switchblade, receiving stolen property, possession of a controlled substance, and indecent exposure. In 2020, a woman claimed that Ramirez-Figueredo had raped her and kept her for two days. About a month later, officers arrested Ramirez-Figueredo. A search of his backpack revealed heroin and methamphetamine. After receiving his Miranda rights, Ramirez-Figueredo confessed that the drugs were from the Sinaloa Cartel and that he intended to sell them. He admitted to distributing methamphetamine, heroin, and cocaine in Lansing. He pleaded guilty to drug crimes under Michigan law.In federal court, he pled guilty under 21 U.S.C. 841(a)(1). The district court performed a Rule 11 colloquy but, contrary to FRCP 11(b)(1)(O), did not tell Ramirez-Figueredo that his guilty plea might have immigration-related consequences. Ramirez-Figueredo’s counsel claimed that his client had cooperated and proffered, but that the government had not moved for a downward departure under U.S.S.G. 5K1.1. After calculating a Guidelines range of 168-210 months, the district court sentenced Ramirez-Figueredo to 192 months’ imprisonment. The Sixth Circuit affirmed. Ramirez-Figueredo was already deportable when he pleaded guilty. The district court considered the minimal evidence of his cooperation. View "United States v. Ramirez-Figueredo" on Justia Law

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In 2001, after being convicted of forgery, Estrada-Gonzalez was removed to Guatemala. Twenty years later, he was arrested for domestic violence. Estrada-Gonzalez pleaded guilty to illegally reentering the U.S, 8 U.S.C. 1326; the government agreed to recommend a within-Guidelines sentence. The agreement added: “Neither party will recommend or suggest in any way that a departure or variance is appropriate, either regarding the sentencing range or regarding the kind of sentence.” The agreed guidelines range was six-12 months. The prosecutor noted that the state had dismissed Estrada-Gonzalez’s domestic-violence charges, then played an officer’s body-camera footage from Estrada-Gonzalez’s arrest, and stated that a sentence at the top of the guidelines range “would be at the least appropriate”: I realize that the statutory maximum is 20 years based on his prior forgery conviction … I would echo [the court’s] sentiments in regards to the safety of not only the wife, the children … certainly a high end of the sentencing guideline range would be at the least appropriate." The court imposed an 18-month term, rejecting the defense argument that the government had violated the plea agreement.The Sixth Circuit affirmed. The district court heard the prosecution’s ambiguous statement and rejected Estrada-Gonzalez’s reading of it, finding that the prosecutor had been advocating only “for a sentence at the high range of the guidelines.” What the prosecutor expressed is a type of fact question; the district court did not clearly err in its resolution of the question. View "United States v. Estrada-Gonzalez" on Justia Law

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The Secretary of Homeland Security’s 2021 Guidance notes that the Department lacks the resources to apprehend and remove all of the more than 11 million removable noncitizens in the country and prioritizes apprehension and removal of noncitizens who are threats to “our national security, public safety, and border security.” “Whether a noncitizen poses a current threat to public safety,” the Guidance says, “requires an assessment of the individual and the totality of the facts and circumstances.” The Guidance lists aggravating and mitigating factors that immigration officers should consider and does not “compel an action to be taken or not taken,” and “is not intended to, does not, and may not be relied upon to create any right or benefit.”In a suit by Arizona, Montana, and Ohio, the district court issued a “nationwide preliminary injunction,” blocking the Department from relying on the Guidance priorities and policies in making detention, arrest, and removal decisions. The Sixth Circuit granted a stay pending appeal. The court noted “many dubious justiciability questions” with respect to standing. The Guidance leaves considerable implementation discretion and does not create any legal rights for noncitizens, suggesting it is not reviewable. The preliminary injunction likely causes irreparable harm to the Department by interfering with its authority to exercise enforcement discretion and allocate resources toward this administration’s priorities. A stay pending appeal should not substantially injure the three states. View "Arizona v. Biden" on Justia Law

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Tescari and Salame, Venezuelan citizens, have two minor children. Tescari removed the children from their home in Venezuela and brought them with her to the U.S. Salame filed a petition seeking their return under the Hague Convention on Civil Aspects of International Abduction. Tescari and the children were granted asylum in the U.S.The parties stipulated that Salame had a prima facie of wrongful removal and retention. Tescari claimed an affirmative defense under Article 13(b) of the Convention, 22 U.S.C. 9003(e)(2). The court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.The Sixth Circuit affirmed. Because the alleged abuse was relatively minor, the court had no discretion to refuse the petition nor to consider potential future harm. The determination that Salame could provide the children with shelter, food, and medication in Venezuela is not clearly erroneous. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it is a zone of war, famine, or disease. Any defects in the Venezuelan court system fall short of "an intolerable situation." While the factors that go into a grant of asylum may be relevant to Hague Convention determinations, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. View "Ajami v. Solano" on Justia Law