Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Third Circuit
by
In 1997, Liang learned that his girlfriend was pregnant. Because they had not yet married, Chinese government officials forced her to abort their baby. To protest, Liang met with a local official. A scuffle ensued. It ended when a security guard slammed a door on his hand, scarring it. Liang then began attending underground church meetings. In 2000, Chinese police burst into a church meeting and declared it an illegal religious gathering. They arrested several people, including Liang. At the station, the police abused and beat Liang; he still suffers hearing loss. They locked him in a cold cell, gave him little to eat, and kept him for 15 days. Liang kept going to church. To avoid the police, the group met less often and constantly changed locations.Almost a decade later, Liang fled to the U.S. and sought asylum, claiming political persecution and religious persecution. Though the IJ found Liang credible, he found that he had not been persecuted, despite the government’s apparent concession. The BIA affirmed, categorizing the incidents as not “sufficiently egregious” and the threat of rearrest as not “concrete and menacing.” The Third Circuit granted a petition for review. The BIA was right about political persecution, but its reasons for rejecting religious persecution were flawed. By not considering religious persecution cumulatively, it misapprehended applicable law. View "Liang v. Attorney General United States" on Justia Law

by
Born in Yemen in 1986, Ghanem was admitted to the U.S. as a lawful permanent resident in 2003. In 2009, Ghanem returned to Yemen to get married and settled with his wife in Sana’a. Pro-democracy uprisings, the Arab Spring, soon swept the region. Ghanem joined the reformers, participating in peaceful protests. Ghanem was warned that he was a potential political target given his open opposition to the Shia militants. Houthi rebels arrived at his home “with guns drawn” and removed his family. Ghanem was kidnapped, and brutally tortured for two weeks, followed by two weeks in the intensive care unit of a hospital. Ghanem attempted in vain to bring his torturers to justice. When his captors learned that he brought charges, they began to look for him, threatening to kill him., Ghanem fled but his abusers pursued him. While Ghanem was seeking refuge in Asia, the Houthis gained control of the government and obtained a judgment against him in absentia, sentencing him to 10 years' imprisonment.Ghanem was detained after he attempted to enter the U.S. under the mistaken impression that he still possessed a valid immigrant visa, 8 U.S.C. 1227(a)(1). Appearing pro se at a removal hearing, Ghanem sought asylum and withholding of removal on the basis of past persecution for political opinion and protection from removal under the Convention Against Torture. The Third Circuit vacated the denial of relief. The evidence indicated a nexus between the persecution Ghanem suffered and a protected ground. The BIA erroneously treated Ghanem’s familial relation to his persecutors as disqualifying. Ghanem would be unable to escape “gross, flagrant [and] mass violations of human rights” with the government’s acquiescence if returned to Yemen. View "Ghanem v. Attorney General of the United States" on Justia Law

by
The Third Circuit denied a petition for review challenging the BIA's ruling that petitioner's conviction for aggravated identity theft in violation of 18 U.S.C. 1028A(a)(1) is a crime involving moral turpitude (CIMT), thus making him removable pursuant to 8 U.S.C. 1227(a)(2)(A)(ii). The court applied the modified categorical approach and concluded that petitioner pleaded guilty to violating section 1028A with the predicate felony of bank fraud, an undeniable CIMT. The court explained that that, by itself, is sufficient to support the BIA's ruling that petitioner's 1028A(a)(1) conviction constituted a CIMT because it requires fraudulent intent. Because this conviction is petitioner's second CIMT, the court concluded that the BIA did not err in concluding that he is removable under section 1227 (a)(2)(A)(ii). View "Sasay v. Attorney General of the United States" on Justia Law

by
Under 8 U.S.C. 1226(c), the government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. In 2012, the plaintiffs filed a habeas petition on behalf of a putative class of noncitizens who are detained under section 1226(c) in New Jersey, contending that it violates due process to mandatorily detain noncitizens who have substantial defenses to removal and that the procedure for conducting “Joseph” hearings is constitutionally inadequate.The Third Circuit held that section 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. For those detainees who contend that they are not properly included within section 1226(c) and are therefore entitled to a Josepth hearing, the government has the burden to establish the applicability of section 1226(c) by a preponderance of the evidence and the government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Section 1252(f)(1) does not authorize classwide injunctions, so the court reversed the district court’s order in part. View "Gayle v. Warden Monmouth County Correctional Institution" on Justia Law

by
B.C., a native of Cameroon, primarily speaks “Pidgin” English, and reports that he has only limited abilities in “Standard” English. He fled from Cameroon to the U.S. after allegedly facing persecution at the hands of his government and, in removal proceedings, applied for asylum, withholding of removal, and relief under the Convention Against Torture. In interviews and hearings, immigration officials either presumed he spoke “Standard” English or gave him a binary choice between “English or Spanish” or “English or French.” Despite persistent clues that he was not fluent in “Standard” English, he was left without an interpreter, resulting in confusion and misunderstanding. Relying on purported “inconsistencies” in his statements, an IJ denied B.C.'s applications on the ground that he was not credible. The BIA affirmed. When presented with additional country conditions evidence, expert reports on the linguistic differences between “Standard” and “Pidgin” English, and B.C.’s card showing membership in an allegedly persecuted group, the BIA denied his motion to reopen.The Third Circuit vacated. B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent, resulting in a muddled record and impermissibly coloring the agency’s adverse credibility determination. On remand, the agency must also remedy other errors B.C. has identified by dealing with the corroborative evidence he submitted. View "B. C. v. Attorney General United States" on Justia Law

by
Singh, a native of India,arrived in the U.S. in 1991, without travel documents or proof of identity. He falsely claimed that his name was Davinder Singh. Singh failed to appear at his immigration hearing and was ordered deported in absentia. Singh filed an asylum application under the name Baljinder Singh and married a U.S. citizen. Singh successfully petitioned to adjust his status to lawful permanent resident without disclosing his immigration history. When Singh later sought naturalization, he again failed to disclose his immigration history. In 2006, he became a U.S. citizen. In 2011, he pled guilty to conspiracy to distribute and possess with intent to distribute heroin, MDMA, and marijuana. Singh’s citizenship was revoked, 8 U.S.C. 1451(a), because he illegally procured naturalization.An IJ held Singh removable both for having been convicted of an aggravated felony, 8 U.S.C. 1101(a)(43)(U), conspiracy to commit a controlled substances offense, and for having been convicted of a controlled substances offense. The BIA dismissed his appeal. The Ninth Circuit remanded. The pertinent statutory provisions permit removal only of individuals who were “aliens” at the time of their criminal convictions. The court rejected an argument that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. View "Singh v. Attorney General of the United States" on Justia Law

by
New Jersey Law Enforcement Directive 2018-6, states “that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities,” and barred counties and local law enforcement from assisting federal immigration authorities by providing any non-public personally-identifying information regarding any individual, providing access to state, county, or local law enforcement equipment, office space, database, or property not available to the general public, providing access to a detained individual for an interview, without the detainee's written consent, or providing notice of a detained individual’s upcoming release from custody. The Directive prohibited local law enforcement agencies and officials from entering “any agreement to exercise federal immigration authority pursuant to Section 287(g) of the Immigration and Nationality Act” and required them to “notify a detained individual” when federal immigration authorities requested to interview the person, to have the person detained past his release date, or to be informed of the person’s upcoming release.The Third Circuit affirmed the dismissal of challenges to the Directive. For a federal law to preempt state law it must represent the exercise of a power conferred on Congress by the Constitution. Because the Constitution confers upon Congress the power to regulate individuals, not states, the federal law must be best read as one that regulates private actors, The cited federal laws, 8 U.S.C. 1373 and 1644, which regulate only state action, do not preempt the Directive. View "Ocean County Board of Commissioners v. Attorney General New Jersey" on Justia Law

by
The New Jersey Attorney General issued Law Enforcement Directive 2018-6, the Immigrant Trust Directive. Concluding “that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities,” the Directive barred counties and local law enforcement from assisting federal immigration authorities by providing any non-public personally-identifying information regarding any individual; providing access to any state, county, or local law enforcement equipment, office space, database, or property not available to the general public; providing access to a detained individual for an interview unless the detainee signs a written consent; or providing notice of a detained individual’s upcoming release from custody. The Directive prohibited “any agreement to exercise federal immigration authority” and required local law enforcement to “notify a detained individual” when federal immigration authorities requested to interview the person, to have the person detained past his release date, or to be informed of the person’s upcoming release.Plaintiffs cited 8 U.S.C. 1373 and 1644, which bar government officials and entities from prohibiting or restricting, any government entity or official from sending to, or receiving from federal immigration authorities “information regarding the citizenship or immigration status . . . of any individual.” The Third Circuit affirmed the dismissal of the suit. Federal law does not preempt the Directive; every form of preemption is based on a federal law that regulates the conduct of private actors, not the states. View "Ocean County Board of Commissioners v. Attorney General of New Jersey" on Justia Law

by
Valarezo-Tirado, an Ecuadorian citizen, entered the U.S. illegally in 2017. In 2020, DHS reinstated a 2015 removal order and conducted a reasonable fear interview. Valarezo-Tirado was twice informed of his right to postpone the interview to procure an attorney and was provided with a list of pro bono attorneys. He proceeded without an attorney. Valarezo-Tirado described his interactions with police concerning a conflict with a neighbor who was involved in drug trafficking and his fear for his family’s safety, The asylum officer found that Valarezo-Tirado was “credible,” but that he did not establish a reasonable fear of persecution or torture if removed to Ecuador, stating that the verbal threats of unspecified harm did not rise to the level of severe physical or mental pain. Valarezo-Tirado failed to provide specific and persuasive evidence to establish a reasonable possibility that a public official would acquiesce to his future harm. On appeal, he again declined to seek legal representation. The IJ found that the situation amounted to “a personal matter.”The Third Circuit remanded. The IJ did not adequately explain the reasons for her decision. On remand, if the IJ concludes Valarezo-Tirado must come forth with corroborating evidence, she must reopen the proceedings, inform Valarezo-Tirado of the evidence that requires corroboration, and must give Valarezo-Tirado an opportunity to furnish such information or provide an explanation for its absence. The court rejected Valarezo-Tirado’s argument that he was denied his right to counsel. View "Valarezo-Tirado v. Attorney General United States" on Justia Law

by
The Third Circuit denied a petition for review challenging the BIA's decision denying petitioner's motion to reopen immigration proceedings after the IJ denied petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In this case, the IJ sustained charges of removeability against petitioner, who is a native and citizen of Jamaica living in the United States, after she pleaded guilty to conspiracy to commit mail and wire fraud.The court concluded that it lacks jurisdiction to review the BIA's decision declining to reopen petitioner's proceedings sua sponte, but the court has jurisdiction over the remaining issues in the petition under 8 U.S.C. 1252(a). The court concluded that the BIA did not abuse its discretion in denying petitioner's motion to reopen in part because it contained no evidence to warrant reconsideration of the conclusion that petitioner had failed to establish official acquiescence. The court emphasized that petitioner's motion to reopen fails not because it contained unconvincing evidence of official acquiescence, but because it contained no such evidence. Petitioner fails the materiality requirement—and falls short of the procedural hurdle—because she presented no evidence addressing a core deficiency of her application. The court explained that, had she produced such evidence, the BIA could then move to the substantive hurdle and evaluate whether the evidence established a reasonable likelihood that she can establish that she is entitled to relief. Finally, the court rejected petitioner's due process claims, concluding that petitioner has no protectible expectation of entitlement of relief. In any event, the court was confident that the BIA reviewed the evidence petitioner presented and applied the presumption of regularity to its determination. View "Darby v. Attorney General of the United States" on Justia Law