Justia Immigration Law Opinion Summaries

Sanchez, a citizen of El Salvador, entered the U.S. unlawfully in 1997 and obtained Temporary Protected Status (TPS) in 2001. TPS allows foreign nationals from countries designated by the government as having unusually bad or dangerous conditions to temporarily live and work in the U.S. In 2014, Sanchez unsuccessfully applied under 8 U.S.C. 1255 to obtain lawful permanent resident (LPR) status. Section 1255 provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a temporary basis—to obtain adjustment of status to LPR. The Third Circuit agreed that Sanchez’s unlawful entry precluded his eligibility for LPR status under section 1255, notwithstanding his TPS.A unanimous Supreme Court affirmed. Section 1255 provides that eligibility for LPR status generally requires an “admission,” the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer. Sanchez did not enter lawfully and his TPS does not eliminate the effect of that unlawful entry. Section 1254a(f)(4) provides that a TPS recipient who applies for permanent residency will be treated as having nonimmigrant status, the status traditionally and generally needed to invoke the section 1255 LPR process, but that provision does not address 1255’s separate admission requirement. Lawful status and admission are distinct concepts and establishing the former does not establish the latter. There are immigration categories in which individuals have nonimmigrant status without admission, so when Congress confers nonimmigrant status for purposes of 1255, but says nothing about admission, the Court has no basis for finding an unlawful entrant eligible to become an LPR. View "Sanchez v. Mayorkas" on Justia Law

Alcaraz-Enriquez and Dai each appeared before an immigration judge (IJ), requesting that he not be returned to his country of origin. For Alcaraz-Enriquez, the IJ had to determine whether Alcaraz-Enriquez had committed a disqualifying “particularly serious crime” based on a California conviction. The IJ considered his probation report, which detailed a serious domestic violence incident, and Alcaraz-Enriquez’s own testimony, admitting that he hit his girlfriend, allegedly in defense of his daughter. The IJ found Alcaraz-Enriquez ineligible for relief. The BIA affirmed. Dai testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. Dai initially failed to disclose that his wife and daughter had returned voluntarily to China since accompanying him to the U.S. When confronted, Dai told the “real story.” The IJ denied relief. The BIA affirmed. In both cases the Ninth Circuit granted relief, noting that neither the IJ nor the BIA made an explicit “adverse credibility determination” under 8 U.S.C. 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). The Supreme Court vacated. A reviewing court must accept administrative findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” In neither case did the Ninth Circuit consider the possibility that the BIA implicitly found the presumption of credibility rebutted. The BIA expressly adopted the IJ’s decision, which noted that Alcaraz-Enriquez’s story had changed, a factor the statute specifically identifies as relevant to credibility. In Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Dai’s demeanor, candor, and internal inconsistency. The statute requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. View "Garland v. Dai" on Justia Law

Palomar-Santiago, a Mexican national living in the U.S, was convicted in California state court of felony DUI in 1988. Lower courts then understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal, 8 U.S.C. 1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the U.S and indicted for unlawful reentry after removal. Section 1326, criminalizing unlawful reentry, provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that “any administrative remedies that may have been available” were exhausted, “the opportunity for judicial review” was lacking, and “the order was fundamentally unfair.” Palomar-Santiago argued that his prior removal order was invalid in light of the 2004 “Leocal” holding, that felony DUI is not an aggravated felony. The Ninth Circuit affirmed the dismissal of the charges.A unanimous Supreme Court reversed. Each of the statutory requirements of section 1326(d) is mandatory; defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. The first two requirements are not satisfied just because a noncitizen was removed for an offense that should not have rendered him removable. An immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that error. Section 1326(d) unambiguously forecloses Palomar-Santiago’s interpretation. View "United States v. Palomar-Santiago" on Justia Law

Nonpermanent resident aliens ordered removed from the U.S. may obtain discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years, 8 U.S.C. 1229b(b)(1). The “stop-time rule” included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in removal proceedings; “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges and the time and place at which the removal proceedings will be held. A notice that omits any required information does not trigger the stop-time rule.The government ordered the removal of Niz-Chavez and sent him a document containing the charges against him. Weeks later, it sent another document, providing the time and place of his hearing. The government argued that because the documents collectively specified all statutorily required information for “a notice to appear,” Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.The Supreme Court held that a notice to appear sufficient to trigger the stop-time rule is a single document containing all the information about an individual’s removal hearing specified in section 1229(a)(1). In addition to the statute’s use of the article, “a” and the singular noun, “notice,” its structure and history support requiring the government to issue a single notice containing all the required information. Administrative inconvenience never justifies departing from a statute’s clear text. View "Niz-Chavez v. Garland" on Justia Law

In removal proceedings for entering and remaining in the country unlawfully, Pereida sought to establish his eligibility for cancellation of removal under 8 U.S.C. 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove that they have not been convicted of specified criminal offenses. While his proceedings were pending, Pereida was convicted of a crime under Nebraska law. Analyzing whether Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, the IJ found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—conducting business without a required license—which did not. Because Nebraska had charged Pereida with using a fraudulent social security card to obtain employment, the IJ concluded that Pereida’s conviction likely constituted a crime involving moral turpitude. The BIA and the Eighth Circuit upheld the denial of relief.The Supreme Court affirmed. An alien seeking to cancel a lawful removal order bears the burden of showing he has not been convicted of a disqualifying offense. The alien has not carried that burden when the record shows he was convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. The Nebraska statute is divisible, listing multiple crimes, some of which are crimes of moral turpitude. In cases involving divisible statutes, judges determine which of the offenses an individual committed by employing a “modified” categorical approach, reviewing the record to discover which of the enumerated alternatives played a part in the defendant’s conviction. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, they work against the alien seeking relief from a lawful removal order. View "Pereida v. Wilkinson" on Justia Law

Every 10 years, the U.S. undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” The Secretary of Commerce must “take a decennial census of population . . . in such form and content as he may determine,” 13 U.S.C. 141(a), and report to the President, who must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census, 2 U.S.C. 2a(a), applying the “method of equal proportions” formula to the population counts to calculate the number of House seats for each state.In July 2020, the President issued a memorandum to the Secretary, announcing a policy of excluding from the apportionment base aliens who are not in lawful immigration status. The President ordered the Secretary “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.”The Supreme Court vacated an injunction, prohibiting the Secretary from including the information needed to implement the President’s memorandum and directed dismissal of the lawsuits for lack of jurisdiction. The threatened impact of an unlawful apportionment on congressional representation and federal funding does not establish a “legally cognizable injury.” Any chilling effect from the memorandum dissipated upon the conclusion of the census. The Secretary has not altered census operations in a concrete manner that will predictably change the count. Any prediction of how the Executive Branch might eventually implement the general statement of policy is conjecture. It is unclear how many aliens have administrative records that would allow the Secretary to avoid impermissible estimation; whether the Census Bureau can timely match its records to census data; and to what extent the President might direct the Secretary to “reform the census” to implement his general policy. The plaintiffs suffer no concrete harm from the challenged policy, which does not require them “to do anything or to refrain from doing anything.” View "Trump v. New York" on Justia Law

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the U.S., 8 U.S.C. 1225(a)(1). An applicant may avoid expedited removal by demonstrating a “credible fear of persecution,” meaning “a significant possibility . . . that the alien could establish eligibility for asylum.” An applicant who makes this showing is entitled to a standard removal hearing. An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. IIRIRA limits habeas corpus review; courts may not review “the determination” that an applicant lacks a credible fear of persecution.Thuraissigiam, a Sri Lankan national, was stopped immediately after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer's rejection of his credible-fear claim was affirmed. Thuraissigiam filed a federal habeas petition, requesting a new opportunity to apply for asylum. The Supreme Court reversed the Ninth Circuit’s ruling in Thuraissigiam’s favor.As applied here, Section 1252(e)(2) does not violate the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, section 9, cl. 2. At a minimum, the Clause “protects the writ as it existed in 1789.” Habeas has traditionally provided a means to seek release from unlawful detention. Thuraissigiam does not seek release from custody, but an additional opportunity to obtain asylum. His claims fall outside the scope of the writ as it existed when the Constitution was adopted.As applied here, Section 1252(e)(2) does not violate the Due Process Clause. For aliens seeking initial entry, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” An alien in Thuraissigiam’s position has only those rights regarding admission that are provided by statute. View "Department of Homeland Security v. Thuraissigiam" on Justia Law

In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA.Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious.As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252.The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations. View "Department of Homeland Security v. Regents of University of California" on Justia Law

Nasrallah pled guilty to receiving stolen property. In removal proceedings, Nasrallah sought relief under the international Convention Against Torture (CAT) to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed but granted CAT relief. The Board of Immigration Appeals ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because circuit precedent precluded review in cases involving commission of a crime specified in 8 U.S.C. 1252(a)(2)(C).The Supreme Court reversed. Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order but preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” nor does a CAT order merge into a final order of removal. A CAT order does not affect the validity of a final order of removal.The Illegal Immigration Reform and Immigrant Responsibility Act authorizes direct “review of a final order of removal” in a court of appeals and requires that all challenges arising from the removal proceeding be consolidated for review,. The Foreign Affairs Reform and Restructuring Act implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” The REAL ID Act clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. View "Nasrallah v. Barr" on Justia Law

Sineneng-Smith operated a California immigration consulting firm, assisting clients to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline but nonetheless charged each client over $6,000, netting more than $3.3 million. Sineneng-Smith was indicted under 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), which make it a felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” An enhanced penalty applies if the crime is “for the purpose of commercial advantage or private financial gain,” Appealing her convictions to the Ninth Circuit, Sineneng-Smith asserted a First Amendment right to file administrative applications on her clients’ behalf. The court invited amici to brief issues framed by the panel, then held that section 1324(a)(1)(A)(iv) is unconstitutionally overbroad under the First Amendment.A unanimous Supreme Court vacated. “The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.” No extraordinary circumstances justified the court's takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments concerning her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that section 1324(a)(1)(A)(iv) might cover protected speech, including abstract advocacy and legal advice. A court is not "hidebound" by counsel’s precise arguments, but the Ninth Circuit’s "radical transformation of this case" went too far. View "United States v. Sineneng-Smith" on Justia Law