Justia Immigration Law Opinion Summaries

The Fifth Circuit denied a petition for review challenging the BIA's decision affirming the denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). While the court has misgivings about the IJ's reliance on inter-proceeding evidence under Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015), the court concluded that the judge's credibility findings were otherwise supported by substantial evidence and that petitioner's due process claims based on the IJ's alleged bias lacked merit. The court further concluded that the BIA did not abuse its discretion by denying petitioner's motion to remand to consider new evidence. View "Singh v. Garland" on Justia Law

The Eighth Circuit denied the petition for review of the BIA's decision upholding the IJ's denial of petitioner's application for cancellation of removal. Petitioner testified regarding his daughter's suicide attempt and cited it as evidence that his removal would result in exceptional and extremely unusual hardship to her.The court concluded that the BIA did not misapply the standard for exceptional and extremely unusual hardship by focusing on the daughter's current conditions. The court explained that the BIA's future-oriented analysis shows that the BIA applied the correct legal standard. Furthermore, the court lacks jurisdiction to review the IJ's findings. In this case, the cause of the daughter's declining mental health is a factual matter involving credibility assessments—precisely the sort of discretionary, fact-finding exercise that Congress has shielded from judicial review in cancellation disputes. The court also concluded that the BIA's decision not to address the IJ's misstatement about petitioner's eligibility for reentry is also outside the court's jurisdiction. View "Garcia-Ortiz v. Garland" on Justia Law

Petitioner sought review of the BIA's decisions affirming the IJ's decision to allow petitioner to withdraw his application for admission to the United States, denying his motion to reopen, and affirming the IJ's finding that he was inadmissible. Petitioner, a Polish citizen, was a lawful permanent resident (LPR) of the United States, but he effectively abandoned his LPR status and was inadmissible after he stayed overseas too long to take care of his ailing grandfather.The Second Circuit held that it lacked jurisdiction to review both the agency's decision to allow petitioner to withdraw his application and to deny his motion to reopen. Accordingly, the court dismissed the petitions insofar as they challenge those decisions. However, the court concluded that its jurisdiction to review the IJ's inadmissibility finding depends on whether that finding survives the withdrawal of petitioner's application for admission and therefore qualifies as a final order of removal, and this appears to be a question of first impression in this circuit that also has not been resolved by the agency. Therefore, the court granted the petition for review in 19-3001 in part and remanded for the BIA to clarify what, if any preclusive effect the IJ's inadmissibility finding, affirmed by the Board, would be given in subsequent immigration proceedings. View "Juras v. Garland" on Justia Law

The panel's order withdrew the opinion filed on September 16, 2021, on remand from the Supreme Court; replaced it with a superseding opinion; and unanimously voted to deny the petition for panel rehearing, and ordered that no further petitions for rehearing or rehearing en banc would be entertained.The panel granted in part and denied in part the petition for review of a decision of the BIA, and remanded, concluding that, in the absence of an opportunity to cross-examine its declarants, the Board erred in relying on a probation report to conclude that petitioner had been convicted of a particularly serious crime. The panel also concluded that the Board did not err in denying petitioner's application for deferral of removal under the Convention Against Torture. The panel remanded for further proceedings. View "Alcaraz-Enriquez v. Garland" on Justia Law

The en banc court held that an individual's inadmissible status renders that individual's reentry illegal for purposes of reinstatement of a prior removal order under 8 U.S.C. 1231(a)(5), regardless of the individual's manner of reentry. The en banc court reaffirmed the holdings of two of its prior published opinions, which are in turn consistent with the interpretation of 8 U.S.C. 1231(a)(5) adopted by the two other circuits to have squarely addressed this issue. In this case, petitioner was a noncitizen subject to a previous removal order who illegally reentered the United States, and thus DHS did not err in reinstating his removal order.The en banc court found petitioner's contention, that the reinstatement of the removal order violates due process because it interferes with his right to remain in the United States with his wife, lacking in merit. The en banc court further concluded that it lacked jurisdiction to consider petitioner's contention that insufficient evidence supported his original removal order. Accordingly, the en banc court denied in part and dismissed in part the petition for review. View "Tomczyk v. Garland" on Justia Law

The Migrant Protection Protocols (MPP) was created by the Secretary of DHS on December 20, 2018. On June 1, 2021, DHS permanently terminated MPP. The district court subsequently vacated the Termination Decision and ordered DHS to implement the Protocols in good faith or to take a new agency action that complied with the law. DHS chose not to take a new agency action, and instead chose to notice an appeal and defended its Termination Decision, seeking a stay of the district court's injunction while the appeal was pending. The Fifth Circuit denied the motion and the Supreme Court affirmed. On October 29, 2021, DHS issued two additional memoranda to explain the Termination Decision, purporting to "re-terminate" MPP. The Government then informed the Fifth Circuit that, in its view, the October 29 Memoranda had mooted this case.Under Supreme Court and Fifth Circuit precedent, the court concluded that this case is nowhere near moot. In any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The court stated that the Government's litigation tactics disqualify it from such equitable relief. The court addressed and rejected each of the Government's reviewability arguments and determined that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum.On the merits, the court concluded that the Termination Decision was arbitrary and capricious under the APA. The court also concluded that the Termination Decision is independently unlawful because it violates 8 U.S.C. 1225, which requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. Finally, in regard to the Government's contention that section 1182 allows DHS to parole aliens into the United States on a case-by-case basis, the court concluded that deciding to parole aliens en masse is the opposite of case-by-case decisionmaking. The court denied the Government's motion to vacate the judgment and affirmed the district court's judgment. View "Texas v. Biden" on Justia Law

The First Circuit denied the petition filed by Petitioner, a native and citizen of Haiti, seeking review of an order of the Board of Immigration Appeals (BIA) that affirmed the denial of Petitioner's application for protection under the Convention Against Torture (CAT), holding that Petitioner's claims failed.After Petitioner was served with a notice to appear alleging that he was subject to removal, Petitioner filed an application for asylum, withholding of removal, and protection under the CAT. An immigration judge (IJ) denied Petitioner's application. The BIA affirmed and adopted the IJ's determination. The First Circuit affirmed, holding that the lower courts did not err in finding that Petitioner failed to show that it was more likely than not that he would be tortured in Haiti if he returned. View "Bonnet v. Garland" on Justia Law

Chavez-Chilel entered the U.S. without admission. DHS issued her a Notice to Appear (NTA), “on a date to be set at a time to be set,” charging her with removability, 8 U.S.C. 1182(a)(6)(A)(i). A subsequently-served notice specified the date and time. Chavez-Chilel sought asylum, withholding of removal, and protection under the Convention Against Torture, asserting that she would be subject to persecution because she is a member of a particular social group (PSG): “Guatemalan women.” The IJ denied Chavez-Chilel's motion to terminate her removal proceedings, reasoning that she suffered no prejudice from any deficiency in the NTA; "Pereira" concerned only cancellation of removal and its stop-time rule, not asylum or withholding of removal. A deficient NTA does not divest the IJ of jurisdiction. Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. The IJ denied Chavez-Chilel’s applications, finding that, while she was credible and that her rape qualified as past persecution, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The BIA affirmed.The Third Circuit denied a petition for review. Failure to include the date and time of her hearing in the NTA did not require termination of the immigration proceedings. Substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a PSG for asylum or withholding purposes. View "Chavez-Chilel v. Attorney General United States" on Justia Law

Scarlett was born in Honduras in 2013. Her family moved to the United States in 2015. The Los Angeles County Department of Children and Family Services received a referral claiming that her father, Franklin, had attacked her mother, Karen. The Department filed a Welfare and Institutions Code 300(a), (b)(1) petition. The court found true the allegations that, because of multiple instances of domestic violence, and because Franklin had hit Scarlett with a belt, Franklin placed Scarlett at risk of serious physical harm and Karen failed to protect her.Scarlett subsequently filed a request for Special Immigrant Juvenile (SIJ) findings under Code of Civil Procedure 155.1. A child is eligible for SIJ status if: the child is a dependent of a juvenile court, in the custody of a state agency by court order, or in the custody of an individual or entity appointed by the court; the child cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis; and it is not in the child’s best interest to return to his or her home country or the home country of her parents. The juvenile court denied the request, ruling the findings were “discretionary.” The court of appeal reversed. The lower court was required to consider the evidence submitted and Scarlett submitted unimpeached and uncontradicted evidence that required the court to enter an order with the findings Scarlett requested under section 155. View "In re Scarlett V." on Justia Law

Ge, then a citizen of China, entered the U.S. on a student visa. After pursuing his education for four years, he enlisted in the Army through the Military Accessions Vital to the National Interest (MAVNI) program, which allows foreign nationals to enlist in the armed forces and thereafter apply for naturalization under 8 U.S.C. 1440(a). Ge filed his application in May 2016. After completing interviews and tests administered by USCIS, he received notice in July 2017, that his naturalization oath ceremony had been scheduled for later that month. Days later, he was informed that the ceremony had been canceled. USCIS had a new policy, requiring that enhanced Department of Defense background checks for all MAVNI applicants before their naturalization applications could be granted.Ge filed suit in December 2018, under 8 U.S.C. 1447(b). The district court directed USCIS to adjudicate Ge’s naturalization application within 45 days. Shortly after the court’s remand order, Ge reported that he had been sworn in as a citizen. The court dismissed Ge’s action. Ge then sought attorneys fees under the Equal Access to Justice Act, 28 U.S.C. 2412, alleging that he was the “prevailing party” and that USCIS’s position was not “justified in law and fact at all stages.” The district court denied his motion, ruling that Ge did not qualify as a prevailing party because its remand was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.” The Fourth Circuit affirmed. After the remand order, Ge was still the applicant; USCIS was still the agency that could grant or deny the application. The legal relationship had not changed. View "Ge v. United States Citizenship & Immigration Services" on Justia Law