Justia Immigration Law Opinion Summaries

Rafael, a citizen of Guatemala, applied for admission to the U.S. DHS served her with a Notice to Appear at a place and time “to be determined.” Months later, she received a Notice of Hearing, stating the time, date, and location for that hearing. Rafael appeared and applied for asylum and withholding of removal on the basis that, if returned to Guatemala, she would suffer violence because she is a woman. An IJ found Rafael credible, considered the evidence, including the 2018 State Department Report, then found that Rafael could not show that the Guatemalan government was unable or unwilling to protect women from persecution by private individuals. The IJ found that the Guatemalan government had taken measures to address the problem and that Rafael had not established a cognizable protected group, proven a nexus to a protected ground, or shown either that she had suffered past persecution or held an objectively reasonable fear of future persecution.Before the BIA, Rafael claimed that the removal proceedings were invalid for lack of jurisdiction because the initial Notice did not state the time and place. The BIA dismissed her appeal. The Sixth Circuit denied a petition for review. Rafael received the necessary notice and the IJ had jurisdiction; for purposes of her due process claim, she was not prejudiced by the omission of the place and time from the original notice. View "Rafael v. Garland" on Justia Law

California AB 32 phases out private detention facilities within the state. Because of fluctuations in immigration, ICE relies exclusively on private detention centers in California. AB 32 carves out exceptions for the state’s private detention centers. The United States and GEO, which operates private immigration detention centers, sued. The district court ruled largely in favor of California.The Ninth Circuit reversed. California is not simply exercising its traditional police powers, but rather impeding federal immigration policy. . Under the Supremacy Clause, state law must fall if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The presumption against preemption does not apply to areas of exclusive federal regulation, such as the detention of immigrants. California did more than just exercise its traditional state police powers – it impeded the federal government’s immigration policy. Congress granted the Secretary of the Department of Homeland Security broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities. AB 32 also discriminated against the federal government in violation of the intergovernmental immunity doctrine by requiring the federal government to close all its detention facilities, while not requiring California to close any of its private detention facilities until 2028. View "GEO Group, Inc., v. Newsom" on Justia Law

In 1997, with the help of an interpreter, defendant Estaban Bravo pleaded guilty to, and was convicted on, a plea bargain agreement of: a felony violation of domestic violence (count 1); and felony violation of child cruelty (count 2). The trial court sentenced defendant to two years’ incarceration, suspended, and placed him on formal probation for 36 months on terms and conditions including 25 days’ custody, for which he was granted time served. In 2018, defendant moved to vacate the judgment pursuant to Penal Code sections 1016.5 and 1473.7. In 2019, the trial court denied the motion. In late 2020, following defendant’s appeal of the trial court’s decision, the Court of Appeal affirmed. In March 2021, the California Supreme Court granted review, and in May issued California v. Vivar, 11 Cal.5th 510 (2021), disapproving of the appellate court’s opinion in Bravo. The Supreme Court transferred the appeal in Bravo back to the Court of Appeal with directions to vacate the decision and reconsider the matter in light of Vivar. Defendant stated that the immediate advantage of his plea was that he would be released from custody that same day so that he could return to his construction job without being fired and could therefore support his spouse and their child. Defendant stated he was informed by counsel and the prosecution that Immigration and Customs Enforcement (ICE) would conduct a sweep of the county jail where he was being held by the next morning; being released that afternoon allowed him to avoid the ICE sweep and likely deportation as a result of that encounter. Before the Court of Appeal, defendant contended that at the time he executed the plea agreement, he was unaware of future immigration consequences of his plea, and had he known, he would not have executed the agreement. After reconsideration, the Court of Appeal found that notwithstanding its sufficiency to meet the statutory language of section 1016.5, the advisement on defendant’s 1997 plea agreement was inadequate to advise him of the mandatory immigration consequences of his plea. "In such cases, '[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction." However, "a defendant's self-serving statement - after trial, conviction and sentence... must be corroborated independently by objective evidence." Here, notably, defendant offered no statement or declaration by his trial counsel or any other contemporaneous evidence other than the statements in his declaration to support that claim. Accordingly, there was no supportable reason for defendant to believe the court would accept an immigration-neutral alternative charge. The Court held the trial court did not abuse its discretion in denying defendant's section 1473.7 application; judgment was therefore affirmed. View "California v. Bravo" on Justia Law

Hernandez, a citizen of Guatemala, has two minor children. Her daughter, A.L. is also a citizen of Guatemala. Her son, born in 2018, is a U.S. citizen. In 2016, Hernandez left Guatemala with her daughter and entered the U.S. without authorization. In removal proceedings under 8 U.S.C. 1182(a)(6)(A)(i), Hernandez sought asylum and withholding of removal, alleging that she was a member of the indigenous K’iche’, whom the Guatemalan government does not help. She alleged that she had suffered and feared future “persecution in the form of severe economic disadvantage or the deprivation of liberty, food, housing, employment and other essentials of life” on account of her status as an indigenous K’iche’ woman.Although the IJ found Hernandez credible, he denied her claims for relief and ordered her removed. The BIA affirmed. The Sixth Circuit denied a petition for review. Substantial evidence supports a conclusion that Hernandez had not shown “persecution” because any economic deprivation she suffered or feared was not, and would not be, “deliberately imposed by the Guatemalan government or non-government actors the government is unable or unwilling to control.” View "Hernandez-Hernandez v. Garland" on Justia Law

During 2005 removal proceedings, Amaya returned to Honduras after her mother fell ill. An IJ issued an in absentia removal order. After Amaya reentered the U.S. in 2019, the government reinstated its removal order, 8 U.S.C. 1231(a)(5), rendering Amaya ineligible for asylum. An IJ denied Amaya’s applications for withholding of removal and protection under the Convention Against Torture (CAT). He assumed that Amaya testified credibly and concluded that Amaya had demonstrated past persecution on account of a protected ground.The Ninth Circuit remanded. Given her pro se status, Amaya’s Notice of Appeal was sufficiently specific to inform the Board of the issues; the Board violated her due process rights by summarily dismissing her appeal. The Board “may not ignore a pro se petitioner’s inartful legal arguments.” Given the limited relief to which she was entitled, Amaya’s Notice was sufficient. Her statement that "the police from my government of Honduras didn’t do nothing to help me" put the Board on notice that she challenged the finding that she did not establish that the police would be unable or unwilling to protect her. Her statement that "[t]he gangs MS-13 [are] there in all the places in Honduras" notified the Board that she disputed the IJ’s conclusion that she could relocate safely within Honduras. Amaya’s failure to discuss past torture or the likelihood of future torture did not mean that her entire appeal was automatically subject to summary dismissal. View "Nolasco-Amaya v. Garland" on Justia Law

The Fifth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal challenging the IJ's denial of his motion to reopen removal proceedings and rescinding his in absentia removal order. The court concluded that the BIA based its decision on a legally erroneous interpretation of 8 U.S.C. 1229(a). In this case, the initial notice to appear did not contain the time and date of petitioner's hearing, and the BIA found that the notice combined with the subsequent notice of hearing containing the time and place of petitioner's hearing satisfied the written notice requirement of section 1229(a). However, the court concluded that this was directly contrary to the Supreme Court's interpretation of section 1229(a) in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), which made clear that subsequent notices may not cure defects in an initial notice to appear. View "Rodriguez v. Garland" on Justia Law

The issue this interlocutory appeal presented for the Vermont Supreme Court's review centered on whether evidence seized by federal Border Patrol agents during a roving patrol (pursuant to their authority to conduct warrantless searches under 8 U.S.C. 1357) was admissible in a state criminal proceeding when that search did not comply with Article 11 of the Vermont Constitution. Defendants Phillip Walker-Brazie and Brandi-Lena Butterfield argued that because the overwhelming purpose of Vermont’s exclusionary rule was to protect individual liberty, the Supreme Court should apply the exclusionary rule and suppress the evidence pursuant to Article 11. To this the Supreme Court agreed, holding that such evidence is inadmissible in Vermont criminal proceedings. View "Vermont v. Walker-Brazie" on Justia Law

Abushagif, a Libyan national admitted to the U.S. as a non-immigrant student, was placed in removal proceedings in 2010. Libya became engulfed in a civil war, with Muammar Qadhafi leading the country. Abushagif applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming that his brother had been jailed for declining to join Qadhafi’s forces in killing civilians. Abushagif stated that he did not want to participate in the civil war. Nothing suggested that Abushagif’s father had ever worked for the Qadhafi regime. After Qadhafi’s administration collapsed, Abushagif withdrew his application and agreed to pre-conclusion voluntary departure but did not leave. In 2019, he moved to reopen, arguing that the country conditions in Libya had materially changed and that he would be a target for persecution if he returned. Abushagif declared that his father had been kidnapped and tortured by militias because of his work for the Qadhafi administration and that they planned to kidnap him once he landed in Libya. Abushagif also stated that he had converted to Christianity, had come out as bisexual, and that he had served in the Qadhafi regime’s national guard.The I.J. denied the motion. The Fifth Circuit remanded for a limited purpose; the BIA abused its discretion by entirely failing to address the CAT claim. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention. View "Abushagif v. Garland" on Justia Law

Cui. a Chinese citizen, overstayed her work visa and applied for asylum. In 2014, Cui was arrested while out of state. Neither she nor her counsel attended her merits hearing before the IJ. She was ordered removed in absentia. Although Cui engaged a second lawyer, that lawyer incorrectly filed an appeal to the BIA. In July 2014, Cui’s counsel attempted to file a motion to reopen before the IJ, but the clerk rejected and did not file the motion because of the pending appeal and because another attorney was counsel of record in the immigration court. Cui’s counsel did not attempt to rectify his errors or refile the motion to reopen within the statutorily allotted 180 days, 8 U.S.C. 1229a(b)(5)(C)(i).Over two years later, after the BIA returned Cui’s case to the IJ for lack of jurisdiction to consider the erroneous appeal, Cui’s counsel again moved to reopen before the IJ. Both the IJ and the BIA dismissed the 2016 motion as untimely. The Ninth Circuit denied a petition for review. The 180-day deadline to file a motion to reopen was not tolled. The BIA neither abused its discretion in determining that Cui’s 2016 motion was untimely nor legally erred by declining to sua sponte reopen her case. View "Cui v. Garland" on Justia Law

Alfred entered the U.S. from Palau under the Compact of Free Association between the U.S. and several Pacific Island territories. Seven years later, Alfred pled guilty in Washington state court to second-degree robbery and two counts of attempted robbery in the second degree. According to his plea agreement, Alfred alone first tried to obtain cash from a credit union teller before going to a coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle. During Alfred’s incarceration, he was charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(G)--a theft or burglary offense for which the term of imprisonment is at least one year. According to the IJ, the Ninth Circuit’s Alvarado-Pineda holding controlled; the state statute under which Alfred was convicted was a categorical match to the federal generic offense. Alfred, like Alvarado-Pineda, had been sentenced to a term of imprisonment of more than a year for each conviction. The BIA affirmed.The Ninth Circuit vacated, citing its post-Alvarado-Pinedo holding, Valdivia-Flores, that convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under 8 U.S.C. 1101(a)(43)(G), (U). View "Alfred v. Garland" on Justia Law