Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit
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E.A., a citizen of El Salvador unlawfully entered the U.S. in 2016, at age 12, as an unaccompanied minor and was released to her mother, who resided in New York. Shortly thereafter, the family relocated to Arkansas, where E.A. filed a successful Motion to Change Venue to Memphis and a Change of Address Form. Latino Memphis (LM) represented E.A. pro bono. In January 2018. LM appeared on behalf of E.A. in a telephonic hearing. E.A.'s master-calendar hearing was scheduled for June 2018 in Memphis. In April 2018, LM moved to withdraw, stating that E.A. had moved out of its covered geographic area to New York. E.A. failed to appear and was ordered removed in absentia. In November, E.A., moved to reopen, represented by Catholic Charities. E.A. asserted that she was unable to obtain legal counsel to assist her in changing her hearing location after returning to New York. E.A.’s mother had given birth 10 days before E.A.’s hearing. E.A. asserted that she was eligible for Special Immigrant Juvenile Status (SIJS). The IJ denied E.A.’s request to reopen and did not address SIJS. The BIA affirmed.The Sixth Circuit vacated the removal order and remanded. Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s age, E.A.’s mother’s failed attempts to obtain counsel to help change the hearing address, and E.A.’s inability to travel alone for the hearing, E.A. established exceptional circumstances. View "E. A. C. A. v. Rosen" on Justia Law

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Singh, a citizen of India, came to the U.S. in 1991, then 22 years old. He obtained a temporary transit visa for work on a ship, Singh drove cabs instead. He has taken periodic trips back to India. In 1997 and 2005 he entered into "sham" marriages. Charged as removable for remaining in the country illegally, 8 U.S.C. 1227(a)(1)(B), Singh sought cancellation of removal, 8 U.S.C. 1229b(b)(1), arguing that his removal would harm his children (U.S. citizens), born in 2011 and 2013, and mother, a legal permanent resident, who owns a convenience store and has a good relationship with his U.S.-citizen brothers,The IJ denied Singh’s application finding that Singh failed to prove that he had continuously been present in the U.S. for a 10-year period immediately prior to the date that he was served with his “notice to appear” and failed to prove “exceptional and extremely unusual hardship." The BIA affirmed. The Sixth Circuit denied relief. Reviewing the hardship claim as a mixed question of law and fact, the court noted that Singh did not dispute that his mother’s and children’s health conditions were insufficiently serious to create that hardship; BIA precedent holds that diminished educational options alone do not establish the required hardship. Singh did not show that his children would be deprived of all opportunity to obtain any education. Singh failed to exhaust his remedies with respect to a claim of unconstitutional bias by the IJ. View "Singh v. Rosen" on Justia Law

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Silvestre-Gregorio, then age 16, entered the U.S. illegally in 2001. He was detained within weeks. At his removal hearing, he did not have an attorney but was assisted by an interpreter and a social worker. The interpreter spoke Spanish; Silvestre-Gregorio spoke little English and some Spanish; his native tongue was a regional dialect of Guatemala. He answered open-ended questions in Spanish, including where he was born and how he crossed the border. The IJ had to repeat some questions and explained to Silvestre-Gregorio his ability to appeal and his right to be represented by retained counsel. The IJ asked several times whether he would like time to find an attorney. Silvestre-Gregorio declined, saying that he wanted to finish his case that day. Silvestre-Gregorio was removed from the U.S. in June 2001. Silvestre-Gregorio returned to the U.S. in 2002. He accumulated convictions for domestic assault, public intoxication, theft, DUI, and driving without a license.In 2018, he was charged with unlawful reentry of a removed alien, 8 U.S.C. 1326(a). Silvestre-Gregorio argued that his 2001 removal violated his right to due process and could not be the basis for a section 1326 conviction. The Sixth Circuit affirmed the denial of the motion. Silvestre-Gregorio could understand the interpreter during his removal hearing and did not have a constitutional right to government-provided counsel or to be notified of discretionary relief (voluntary removal). View "United States v. Silvestre-Gregorio" on Justia Law

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In 2015, Hernandez-Serrano, age 16, entered the U.S. without inspection and was placed in removal proceedings. A year later, a Tennessee juvenile court made findings that rendered Hernandez-Serrano potentially eligible for “Special Immigrant Juvenile” status, 8 U.S.C. 1101(a)(27)(J), for which he applied. Hernandez-Serrano unsuccessfully sought administrative closure of his removal case pending a decision. In 2018, the IJ ordered Hernandez-Serrano removed to El Salvador. Hernandez-Serrano appealed to the BIA. Weeks later, his application for Special Immigrant Juvenile status was granted. Hernandez-Serrano challenged only the IJ’s denial of his motion for administrative closure, The BIA denied his motion, holding that the IJ lacked authority to close Hernandez-Serrano’s case administratively under 8 C.F.R. 1003.10, 1003.1(d) as interpreted in a 2018 Attorney General decision that “immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.”The Sixth Circuit denied relief. The authority of IJs to take certain actions “[i]n deciding the individual cases before them” does not delegate general authority not to decide those cases at all. The court noted that in more than 400,000 cases in which an alien was charged with being subject to removal, IJs or the BIA have closed cases administratively, removing them from the docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. “Adjudicatory default on that scale strikes directly at the rule of law.” View "Hernandez-Serrano v. Barr" on Justia Law

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Morales became a lawful U.S. permanent resident in 2001. In 2006 she traveled to Guadalajara and stayed for several months. She flew to Tijuana and called her cousin, Guadalupe, a U.S. citizen living in California. Guadalupe agreed to pick Morales up in Tijuana. Guadalupe arrived with her boyfriend, Ruiz, a U.S. citizen, and a Los Angeles police officer. Morales was with her cousin Alisa and Alisa’s sons. Jorge, age five, was to travel to Los Angeles. Alisa gave Morales an envelope with a birth certificate inside. Morales claims she never examined it. At the border, Customs Officers determined the identities and citizenship of the three adults. Guadalupe said the boy was her cousin and presented a birth certificate, which had been issued in California for Jonathan Clemente. Officer Banuelos testified later that Morales had “insist[ed] that the birth certificate belonged to the child” and that the four had traveled from Los Angeles and back together; “I couldn’t get a straight answer" concerning the parents. Jorge spoke no English and stated that his name was Jorge Navarro. Another officer completed an “I-213” form, indicating that Morales had admitted that she had obtained a fraudulent birth certificate and attempted to smuggle Jorge into the U.S.Morales was charged as ineligible for admission, having knowingly encouraged, induced, assisted, abetted, or aided an undocumented alien, to enter or try to enter the U.S, 8 U.S.C. 1182(a)(6)(E)(i). An IJ found that the officers’ testimony was credible, that Morales’s testimony was not, and that Morales was removable “by clear, unequivocal, and convincing evidence.” The BIA dismissed her appeal. The Sixth Circuit denied a petition for review, rejecting challenges to the sufficiency of the evidence. View "Bribiesca v. Barr" on Justia Law

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Cuevas-Nuno, a native of Mexico, entered the U.S illegally and was charged as removable, 8 U.S.C. 1182(a)(6)(A)(i). Cuevas-Nuno conceded removability but applied for cancellation of removal and successfully moved to transfer his case from Virginia to Memphis. Notice of his next master hearing was sent to Cuevas-Nuno’s counsel. Cuevas-Nuno did not attend his second hearing. The IJ conducted an in absentia hearing, found Cuevas-Nuno’s cancellation of removal application abandoned, dismissed it, and ordered Cuevas-Nuno removed. Sixteen days later, Cuevas-Nuno moved to reopen, stating that he was confused about the date of the hearing. The IJ found no exceptional circumstance and denied the motion. The BIA upheld the determination.The Sixth Circuit dismissed a petition for review; Cuevas-Nuno failed to administratively exhaust his claims. Cuevas-Nuno’s argument that the incorrect notice his counsel’s employee gave him constitutes an “exceptional situation” sufficient for the IJ to sua sponte reopen her removal order is different from the issue of whether that conduct constitutes an “exceptional circumstance” sufficient to reopen the order under section 1229a(b)(5)(C)(i). His BIA brief did not mention lack of notice under 8 U.S.C. 1229a(b)(5)(C)(ii), his due process right to be heard, or his failure to submit evidence supporting his eligibility for cancellation of removal. The brief only discussed exceptional situations within the context of its argument that the IJ erred in failing to exercise her sua sponte discretion to reopen her removal order—not an 8 U.S.C. 1229a(b)(5)(C)(i) motion to reopen. View "Cuevas-Nuno v. Barr" on Justia Law

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Marqus, a citizen of Iraq, was admitted to the U.S. as a refugee in 2012 and later adjusted his status to Lawful Permanent Resident. In 2017, he was convicted of attempted criminal sexual conduct. In removal proceedings, against the government’s objections, the IJ admitted three expert declarations concerning country conditions. Marqus believes that he would be tortured if he were to return to Iraq because he is Chaldean Christian; was previously tortured by and deserted from the Iraqi military; was previously targeted, abused, and threatened by the El Mahdi army; and lacks documentation to travel within Iraq without being stopped and tortured. The IJ determined that Marqus was ineligible for withholding of removal because the “particularly serious crime” bar applied, 8 U.S.C. 1158(b)(2)(A)(ii) or for protection under the Convention Against Torture. The BIA dismissed his appeal and denied his request to consider new evidence: an additional country-conditions expert declaration, the Department of State 2017 Human Rights Report on Iraq, and the 2017 International Religious Freedom Report on Iraq.The Sixth Circuit affirmed in part but remanded. It is not clear that the new evidence materially changes Marqus’s chances of obtaining CAT relief but that evidence, particularly the reports, could be significant. Without an analysis by the BIA of why this evidence is immaterial, it is impossible to determine whether the BIA abused its discretion. View "Marqus v. Barr" on Justia Law

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In 2008, Melara, a citizen of El Salvador, entered the U.S. illegally and was removed after being apprehended. In 2016, Melara’s wife and children immigrated legally to the U.S. and became lawful permanent residents. Melara then experienced threats and violence from the MS-13 gang. In 2017, Melara illegally reentered the U.S. The government apprehended him and reinstated his 2008 removal order. An asylum officer found that he had established a reasonable possibility of future torture. An IJ found that Melara was not entitled to relief. The BIA dismissed an appeal. The Sixth Circuit remanded Melara’s withholding-only case and dismissed his other petitions for review. The BIA reinstated Melara’s appeal.Melara has remained in detention since December 2017. In June 2019, Melara filed a habeas corpus petition, 28 U.S.C. 2241, seeking either release from detention or a bond hearing before a neutral decision-maker. The district court dismissed Melara’s petition, holding that 8 U.S.C. 1226 does not apply to his detention and under 8 U.S.C. 1231(a)'s indefinite-detention standard, his due process claims fail because his removal is reasonably foreseeable. The Sixth Circuit affirmed. Section 1231(a) provides the authority for detaining aliens in withholding-only proceedings. Because Melara’s removal is reasonably foreseeable, his continued detention does not violate due process under the Supreme Court’s decision in Zadvydas v. Davis. View "Martinez v. LaRose" on Justia Law

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Skripkov worked as an event planner for the Chelyabinsk (Russia) regional government and served on a commission that oversaw government procurement activities. In 2010, regional leadership directed Skripkov to accept bids from specified suppliers at inflated prices. Skripkov refused and received “[c]onstant threats,” causing him to resign. Skripkov continued to receive threats. Skripkov and his wife moved to a different town. In 2014, Skripkov learned about a bidding competition held by the government of Chelyabinsk, believed that the “staggering” amount at issue was unjustified, and reported to a prominent watchdog organization. Skripkov continued to experience threats; someone threw a rock through his window and a note found in the backyard stated: “[Y]ou d[ug] into our business, we will spoil your life.” In 2018, Skripkov assumed a more public role as an anti-corruption activist, which led to several arrests and physical violence, accompanied by more threats.Skripkov, on vacation in the U.S., received a call from his mother explaining that individuals had come by her house to ask about Skripkov’s adopted son. Skripkov feared that they would take his son. He and his wife sought asylum. The Russian government issued an indictment against Skripkov. An IJ and the BIA denied relief, finding that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. The Seventh Circuit granted Skripkov’s petition for review. The BIA erred in disregarding evidence that Skripkov would be criminally prosecuted for his political opinion if he is returned to Russia. View "Skripkov v. Barr" on Justia Law

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Kilic, a national of Bosnia and Herzegovina, was a lawful permanent U.S. resident. A Michigan court sentenced Kilic to five to 20 years of imprisonment for conspiracy to commit armed robbery, making her deportable, 8 U.S.C. 1101(a)(43)(G), (U), 1227(a)(2)(A)(iii). The Board of Immigration Appeals affirmed the UJ’s denial of relief.The Sixth Circuit denied a petition for review. Kilic was not entitled to a waiver of inadmissibility under 8 U.S.C. 1182(h) (section 212(h)) or deferral of removal under the Convention Against Torture. To benefit from a section 212(h) waiver, a deportable alien must first “assimilate[] to the position of an applicant for admission”—either by voluntarily leaving the country and then seeking readmission or applying for adjustment of status. Kilic did neither. The court rejected an argument that the conditions for 212(h) relief violate equal protection by irrationally favoring aliens who have left the country over those who apply for the waiver while in the U.S. Under the Convention Against Torture, an alien may not be removed to a country where she would probably be tortured, 8 C.F.R. 208.16(c), 208.17(a). The immigration judge found that Kilic failed to show that she was likely to be tortured in Bosnia. View "Kilic v. Barr" on Justia Law