Justia Immigration Law Opinion Summaries

Mbonga joined an athletic club that had connections with the Congo’s then-ruling political party, the People’s Party for Reconstruction and Development. The club’s leaders recruited Mbonga to join the party’s youth group in 2013. The leaders allegedly planned to use the youth group to disrupt peaceful protests by the opposition party, the Union for Democracy and Social Progress. Mbonga refused to participate and, instead, joined the opposition party because of its political platform favoring equality and nonviolence. He began to attend the opposition party’s demonstrations and meetings. He claims that he was subsequently beaten by police several times.In 2018, Mbonga arrived in the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture. An IJ denied relief, finding that Mbonga was not credible and lacked a likelihood of future persecution because of changed conditions in the Congo. The country had since elected a new president from Mbonga’s own political party. The BIA affirmed. The Sixth Circuit denied a petition for review. The BIA can find a disqualifying change in conditions using general evidence showing that the political party that persecuted a refugee has lost power, which shifts the burden to the refugee to identify specific evidence proving that persecution still remains likely. Mbonga did not present such evidence. View "Mbonga v. Garland" on Justia Law

Goulart, a citizen of Brazil. was removed in 2013, after the BIA determined that his conviction was a crime of violence under 18 U.S.C. 16(b). In 2015, the Ninth Circuit held that section 16(b) was unconstitutionally vague. In 2018, the Supreme Court affirmed in “Dimaya.” Goulart learned of the latter ruling on June 9, 2018, when he was so informed by his former defense attorney. He filed his motion for reconsideration based on a change in the law on July 16, 2018.The Ninth Circuit held that the BIA did not abuse its discretion in denying Goulart’s claim for equitable tolling of the 30-day motions deadline. Goulart failed to present any evidence suggesting that he diligently pursued his rights during the time between his removal in 2013 and when he learned of Dimaya in 2018. Even assuming that he was unaware of the Ninth Circuit’s 2015 decision, the BIA did not act arbitrarily or irrationally in determining that Goulart failed to make reasonable efforts to pursue relief. View "Goulart v. Garland" on Justia Law

The Fifth Circuit affirmed the BIA's decision denying petitioner's second motion to reopen his immigration proceedings. Petitioner, a native and citizen of India, was ordered to be deported in absentia in 1996 by an IJ, but was not actually deported. The court concluded that petitioner failed to demonstrate that he lacked notice, and the BIA did not err in concluding that his second motion to reopen for lack of notice was time and number barred. In this case, petitioner does not contest the IJ's legal determination or factual findings that it was his burden to inform the immigration court of his correct address and he failed to do so. The court also concluded that Pereira v. Sessions, 138 S. Ct. 2105 (2018), is inapplicable to petitioner's case because it deals with a materially different statute. Therefore, the BIA did not abuse its discretion in concluding that Pereira did not warrant reopening of petitioner's deportation proceedings. View "Maradia v. Garland" on Justia Law

On March 4, 2020, Governor Newsom declared a state of emergency due to the spread of COVID-19. On March 16, the Legislature enacted an emergency amendment to the Budget Act, appropriating $500 million, and authorizing additional disbursements for any purpose related to the state of emergency upon order of the Director of Finance, with notice to the Legislature, but without requiring statutory approval of each individual project. On April 15, Governor Newsom announced a $75 million Disaster Relief Fund to “support undocumented Californians impacted by COVID-19 who are ineligible for unemployment insurance and disaster relief, including the CARES Act, due to their immigration status.” Approximately 150,000 undocumented adult Californians would receive a one-time cash benefit of $500 per adult with a cap of $1,000 per household to deal with specific needs arising from the pandemic.On April 29, the plaintiffs filed suit challenging the Project as an unlawful expenditure of public funds (Code Civ. Proc. 526a.), reasoning that federal law provides that undocumented immigrants are not eligible for state public benefits, with exceptions, 8 U.S.C. 1621(a), including the enactment of a state law after the date of the enactment of the federal act. Plaintiffs alleged that the Project was not enacted by a state law and sought a temporary restraining order. The court of appeal dismissed, as moot, an appeal from the denial of a TRO. The spending has already occurred; there is no indication it will be reauthorized. View "Cerletti v. Newsom" on Justia Law

The First Circuit granted in part and denied in part Petitioner's petition for review of the decisions of the Board of Immigration Appeals (BIA) determining that Petitioner's previous conviction constituted a "particularly serious crime" making him ineligible for withholding of removal and denying his application for deferral of removal under the Convention Against Torture (CAT), holding that the BIA erred in part.The lower agencies found that Petitioner's conviction for possession of oxycodone with intent to distribute in violation of Mass. Gen. Laws ch. 94C, 32A(a) was a particularly serious crime rendering him ineligible for withholding of removal and denied his application for deferral of removal under the CAT. The First Circuit denied Petitioner's petition for review insofar as he sought CAT relief but granted the petition in part because the immigration judge informed Petitioner that he was eligible for potential relief only under the CAT and treated Petitioner's conviction for drug trafficking as if it were a per se bar to withholding of removal. The First Circuit remanded the case to the BIA with instructions to give Petitioner a new hearing to determine whether he was entitled to withholding of removal. View "De Carvalho v. Garland" on Justia Law

Jathursan, a citizen of Sri Lanka, entered the U.S. without inspection in 2018. He was apprehended and expressed a fear of returning to Sri Lanka. After a credible fear interview, DHS determined that Jathursan had a credible fear of persecution in Sri Lanka. Jathursan applied for asylum, withholding of removal, and Convention Against Torture (CAT) protection. Jathursan cited his Tamil race and/or ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his imputed membership in the LTTE through his brother, and his status as a Tamil failed asylum seeker.The BIA upheld the immigration judge’s findings that Jathursan failed to establish past persecution on account of a protected ground, a well-founded fear of future persecution on account of a protected ground, or that he would more likely than not be tortured if he returned to Sri Lanka. The Eleventh Circuit vacated and remanded for further consideration of his asylum and withholding-of-removal claims based on his fear of future persecution as a Tamil failed asylum seeker and the denial of relief under CAT. The court rejected his claims for asylum and withholding of removal based on past persecution; substantial evidence supported the BIA’s denial of relief on that ground. View "Jathursan v. United States Attorney General" on Justia Law

The Second Circuit affirmed the district court's dismissal of plaintiffs' Second Amended Complaint (SAC) based on lack of subject matter jurisdiction. The SAC sought review of the USCIS's revocation of Plaintiff Nouritajer's previously-approved Form I-140, Immigrant Petition for Alien Worker (I-140); the USCIS Administrative Appeals Office's (AAO) denial of Nouritajer's revocation appeal on August 1, 2018; and the May 29, 2019 denial of plaintiffs' motion to reopen and reconsider the revocation. The court agreed with the district court that the jurisdictional bar to a substantive challenge to a discretionary decision by the Secretary of Homeland Security applies here, because plaintiffs do not assert a procedural challenge to the revocation decision. Rather, plaintiffs assert several arguments which essentially challenge the underlying reasons for the revocation of the immigration petition. View "Nouritajer v. Jaddou" on Justia Law

Following several unlawful reentries into the U.S., Lopez sought review of the 2017 reinstatement of his 1996 order of removal, arguing that the drug conviction on which it was based was vacated in 2014.The Ninth Circuit dismissed Lopez’s petition. The 1996 order had a valid basis both when it was issued and when he was removed; he failed to establish a miscarriage of justice that would permit the court to entertain a collateral attack under 8 U.S.C. 1252(a)(2)(D). Lopez’s conviction was legally valid at the time his original removal order was issued and when it was executed. The vacatur of his conviction did not make his removal order “void ab initio” under governing precedent. The court noted that Lopez was independently removable at the time of his underlying proceedings for having entered the United States unlawfully. View "Vazquez v. Garland" on Justia Law

Arulnanthy, part of Sri Lanka’s Tamil ethnic minority, entered the U.S. through Mexic in 2018. He was immediately apprehended. An asylum officer conducted a credible-fear interview, 8 U.S.C. 1225(b)(1)(B). Arulnanthy described two 2018 encounters with the Sri Lanka Police after officials discovered that Arulnanthy was planning to participate in a local election as a member of the Tamil Party. The first encounter involved detention and beating. The asylum officer determined that Arulnanthy had established a credible fear of persecution based on his political opinion. Arulnanthy indicated that he intended to apply for asylum and withholding of removal, and relief under the Convention Against Torture (CAT). His application's description of his police encounters differed from his previous account. Arulnanthy submitted documentary evidence, some pertaining to his police encounters, and the rest concerning country conditions in Sri Lanka, particularly the situation facing many Tamils.The IJ denied relief, finding that Arulnanthy was not a credible witness based on three omissions and discrepancies. The BIA dismissed Arulnanthy’s appeal. In 2020, Arulnanthy was removed from the United States. The Fifth Circuit remanded, first holding that the appeal was not mooted by Arulnanthy’s removal. The adverse credibility finding was fatal to Arulnanthy’s asylum claim but not to his CAT claim. The BIA violated the CAT regulations by ignoring Arulnanthy’s hundreds of pages of evidence about country conditions in Sri Lanka. View "Arulnanthy v. Garland" on Justia Law

Prasad owned and operated Maremarks, through which he filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations to come to the U.S. as Maremarks’ employees performing work for Maremarks’ clients. Prasad falsely represented in the H-1B petitions that there were specific, bona fide positions available for the H-1B beneficiaries. Prasad was convicted of 21 counts of visa fraud, 18 U.S.C. 1546(a), and two counts of aggravated identity theft, 18 U.S.C. 1028A(a)(1). The district court ordered forfeiture under 18 U.S.C. 982(a)(6)(A)(ii): $1,193,440.87.The Ninth Circuit affirmed, rejecting Prasad’s argument that he did not “obtain” the entire $1,193,440.87 because he eventually paid portions of the money to the H1B beneficiaries. Prasad possessed the full $1,193,440.87 paid by the end-clients and had control over the money before he paid a percentage of it to employees. Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and its prior construction of virtually identical criminal forfeiture provisions, the court concluded that the term extends to receipts and is not limited to profit. Although the H-1B beneficiary employees performed legitimate work for end-clients, the portions of the money that Maremarks received for that work and subsequently paid to the beneficiary employees was, nonetheless, “obtained directly or indirectly from” Prasad’s unlawful conduct. View "United States v. Prasad" on Justia Law