Justia Immigration Law Opinion Summaries

Defendant Sigifredo Zendejas Lopez (Lopez) brought a motion pursuant to California Penal Code section 1018 to vacate his 2019 guilty plea on three felony counts, one of which would have lead to almost certain deportation under federal law. Lopez, who was a lawful permanent resident of the United States at the time of his conviction, argued his retained trial counsel failed to provide accurate and affirmative advice about the immigration consequences of the proposed plea. Lopez’s trial counsel testified at the hearing on the motion that he was not aware of the specific immigration consequences of the individual charges Lopez was facing. Therefore, he could not have provided accurate and affirmative advice as to the consequences of a guilty plea to any particular count. Moreover, trial counsel testified that he tried to negotiate a plea bargain to one misdemeanor count, which was rejected by the prosecution. Had he known the immigration consequences of the specific felony counts, there was some possibility that he could have negotiated an immigration-neutral plea offer the prosecution was more likely to accept. But as he admitted, he did not know those consequences. The Court of Appeal determined Lopez was prejudiced by this course of events. He submitted evidence that he would have taken his chances at trial if he had known and fully understood the immigration consequences of the plea agreement trial counsel negotiated. Because Lopez was not accurately and affirmatively advised, and because there was not an effort to negotiate an acceptable plea bargain with the relevant immigration consequences in mind, the Court reversed the trial court’s order denying the motion to withdraw Lopez’s guilty plea in the interests of justice. View "California v. Lopez" on Justia Law

An adult citizen lacks a constitutionally protected liberty interest, protected by the Fifth Amendment's Due Process Clause, in the Government's decision whether to admit the citizen's unadmitted nonresident alien parent into the United States.The Ninth Circuit affirmed the district court's dismissal, based on failure to state a claim, of a civil action brought by plaintiff, a Russian citizen, and his adult son, a U.S. citizen, challenging the government's decision to deny plaintiff an immigration visa.The panel held that, because plaintiff is an unadmitted and nonresident alien, he has no cause of action to challenge the visa denial, and his claims were properly dismissed. Where the son claims that his Fifth Amendment right to due process was violated by the denial of his father's visa because a consular officer allegedly denied that visa in bad faith, the panel agreed that the son's complaint pleads sufficient facts with particularity to raise a plausible inference that plaintiff's visa was denied in bad faith. Nevertheless, the panel concluded that the district court properly dismissed the son's claims because he does not have a liberty interest, protected by due process, in living in the United States with his unadmitted and nonresident alien father. View "Khachatryan v. Blinken" on Justia Law

Calan-Montiel, a citizen of Mexico, entered the U.S. without inspection and was ordered removed. He was returned to Mexico. He came back, again evading inspection, and was caught again in 2019. Convicted under 8 U.S.C. 1326, for reentering without permission, after a removal order, he was sentenced to 16 months' imprisonment. He argued that his first removal was unlawful because his Notice to Appear did not contain the information required by statute.The Seventh Circuit affirmed. A removal order that serves as the basis of a section 1326 prosecution is subject to collateral attack only if the alien demonstrates that he exhausted any administrative remedies that may have been available, the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and the entry of the order was fundamentally unfair. Noncompliance with the one document rule is not a jurisdictional defect in a removal proceeding. There is nothing unfair, “fundamentally or otherwise, about using two documents to provide information.” Calan-Montiel does not deny that he had actual knowledge of the removal order. He could have asked to reopen the proceedings, or sought judicial review, even after being removed. His actions make it impossible to satisfy section 1326(d), even if the agency erred in sending notice of the hearing’s date. View "United States v. Calan-Montiel" on Justia Law

The Ninth Circuit denied petitions for review of the BIA's decision affirming the IJ's denial of petitioner and his family's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel clarified the law concerning implausibility findings and explained that inherent plausibility in the context of adverse credibility determinations refers to the inherent believability of testimony in light of background evidence. An IJ must provide specific and cogent reasons, including citations to record evidence, in support of an implausibility finding, and may not base that finding on speculation or conjecture. Furthermore, the IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing. The cited evidence in the record, including a witness's own testimony, need not conclusively establish that the witness's testimony is false, and the IJ's implausibility finding will ultimately hinge on the application of a reasonable evaluation of the testimony and evidence based on common sense.In this case, the panel concluded that substantial evidence supports the agency's implausibility findings with respect to petitioner's testimony and its finding that petitioner's wife was evasive and nonresponsive. The panel did not consider the Board's alternative holding that assumed petitioner was credible. The panel concluded that the record does not compel the conclusion that the adverse credibility determination was erroneous or that the agency erred in denying petitioner and his family withholding of removal and CAT protection. View "Lalayan v. Garland" on Justia Law

In 1994, Farrell, a U.S. citizen, moved to Switzerland. He married a Swiss citizen; they had a child. In 2004, he naturalized as a Swiss citizen, allegedly with the intent of relinquishing his U.S. nationality; 8 U.S.C. 1481(a)(1) refers to “voluntarily … with the intention of relinquishing United States nationality … obtaining naturalization in a foreign state.” He subsequently made no use of his U.S. citizenship and did not enter the U.S. In 2013, Farrell was arrested in Spain and extradited to the U.S. He pled guilty to interstate travel with intent to engage in sex with a minor and possession of child pornography, which he committed 10 years earlier in the U.S., and was sentenced to imprisonment in the U.S.Farrell corresponded with the State Department, requesting a certificate of loss of nationality (CLN). He was told he would have to sign forms in person in front of a consular officer. Farrell argued that he had already committed the expatriating act when he naturalized in Switzerland and was now attesting that he did so voluntarily with the intent to lose his nationality. The Embassy responded that Farrell could not lose his citizenship while he was imprisoned in the U.S. Farrell sued, claiming that the in-person requirement was contrary to statute and arbitrary. The D.C. Circuit reversed the district court. While the Department has statutory authority to impose an in-person requirement, it acted arbitrarily in denying Farrell a CLN by offering conflicting and ever-evolving reasons for denying the CLN. View "Farrell v. Blinken" on Justia Law

The Fifth Circuit granted petitioner a stay pending review of his petition for immigration relief based on his fear of persecution in India on account of his membership in the Akali Dal Amritsar ("Mann Party"), a Sikh-dominated political party.The court concluded that petitioner has made the requisite showing that he is likely to succeed on the merits of his claim that the IJ's near total denial rate for asylum applications reflected a bias and violated petitioner's due process rights. The court also concluded that petitioner is likely to succeed on the merits of his challenge to the BIA's conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. The court explained that the appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ's adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. In this case, the incredibly high denial rate, when coupled with the IJ's noncompliance with Matter of R-K-K-, presents a substantial likelihood that petitioner will be entitled to relief upon full consideration by a merits panel. The court further concluded that petitioner has demonstrated sufficient probability of irreparable injury. Finally, the balance of the equities, as well as public interest, weigh in favor of a stay of removal. View "Singh v. Garland" on Justia Law

In 2010, Chuchman, a 17-year-old student, joined the Ukrainian Democratic Alliance for Reform (UDAR), a political party that opposed then-president Yanukovych. In 2012, her university’s dean warned Chuchman that she could be expelled for her political activity. Two months later, police assaulted, arrested, and detained Chuchman at a rally. The dean again implored Chuchman to stop her political activity, saying she could be expelled. In 2013, Chuchman was assaulted by the police after attending another protest, suffering a broken nose, and a concussion; she was hospitalized for three weeks. Chuchman entered the U.S. using a cultural exchange visa. Two months later, Ukrainian police began searching for her. They sent summonses to her dormitory and to her parents’ house. While Chuchman was in the U.S., demonstrations and civil unrest broke out across Ukraine, culminating in Yanukovych’s ouster in 2014. UDAR merged with the new president’s party.Chuchman applied for asylum, withholding of removal, and protection under the Convention Against Torture. In Ukraine, the police continued to search for Chuchman, citing “public disturbances.” Chuchman testified that she feared reprisal from the many pro-Yanukovych officials who remained in office. The IJ found Chuchman credible but denied relief. The BIA affirmed. The Seventh Circuit denied a petition for review. Substantial evidence supports the conclusion that Chuchman’s experience in Ukraine did not rise to the level of persecution; she failed to present compelling evidence that the new government would persecute her if she returned. View "Chuchman v. Garland" on Justia Law

DHS took B.R. into custody while he was still a minor, issued him a Notice to Appear (NTA), and initiated removal proceedings against him. After B.R. was released and while those proceedings were ongoing, he sold methamphetamine to an undercover federal officer. B.R. was incarcerated and was ordered removed. On appeal, B.R. petitions for review of the BIA's dismissal of his appeal from the IJ's final order of removal and denial of his application for deferral of removal under the Convention Against Torture.The Ninth Circuit rejected B.R.'s claims that DHS effected improper service of the NTA, depriving the immigration court of jurisdiction, and that DHS should not have been permitted to cure that service violation. Rather, the panel concluded that the IJ is permitted to allow DHS to cure defective service without terminating proceedings, provided that the alien does not demonstrate that DHS's defective service prejudiced the alien's interests. In this case, DHS cured its defective service prior to any substantive removal proceedings and B.R. demonstrated no prejudice from the delay. Furthermore, the panel's holding in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), does not require DHS to serve an NTA upon a minor alien’s custodian at the very moment the alien is released from its custody.The exclusionary rule is generally not available in immigration proceedings, but the panel held that once an alien makes a prima facie showing of an egregious regulatory or Fourth Amendment violation warranting suppression and submits specific evidence that the government’s evidence is tainted, the government has the burden and opportunity to rebut that claim of taint. Therefore, the panel granted B.R.'s petition on this issue and remanded for further development of the record. Finally, in the interest of judicial economy, in the event DHS is able to prove B.R.'s alienage on remand, the panel rejected his assignments of error as to his CAT claim. Accordingly, the panel granted in part, denied in part, and remanded for further proceedings. View "B. R. v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture. The court concluded that substantial evidence supported the IJ's specific, cogent reasons for finding that petitioner's testimony was not credible.In this case, the IJ identified petitioner's inconsistency regarding the year her relationship began with her abusive boyfriend; pointed to contradictions about her living arrangements with him; noted her omission, until the hearing, of his shooting at her house; mentioned her failure to describe, until the hearing, the gang ambush; cited her failure to indicate, until the hearing, that he was a member of a gang; noted that her mother's letter of support mentioned only one pregnancy and did not mention any threat from the boyfriend; detailed discrepancies between petitioner's statement and the medical records she submitted; and determined that she was nonresponsive to the question asked of her during the hearing. View "Coto-Albarenga v. Garland" on Justia Law

Petitioner and her minor daughter petitioned for review of the BIA's final order affirming the denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). At issue on appeal is whether the IJ and the BIA erred in concluding that petitioner failed to demonstrate that she was persecuted on account of her membership in her proposed particular social group, namely her nuclear family.Under well-established precedent in this circuit, and based on the unrebutted, substantial evidence in the record, the Fourth Circuit held that any reasonable adjudicator would be compelled to conclude that petitioner's membership in her nuclear family was at least one central reason for her persecution. Petitioner has established a nexus between her membership in her proposed particular social group and the persecution she suffered. In this case, the court agreed with petitioner's contention that she has established that she was persecuted in Honduras on account of her membership in her proposed social group where gang members extorted money from her each month because her husband worked in the United States. Furthermore, the IJ and the BIA erred by applying a legally incorrect and "excessively narrow" approach to analyzing whether petitioner satisfied the statutory nexus requirement. Accordingly, the court reversed the agency's determination as to nexus, vacated the final order of removal and the denial of petitioner's application for asylum and withholding, and remanded for further proceedings. Finally, the court concluded that it lacked jurisdiction to consider petitioner's CAT claim because she failed to exhaust all available administrative remedies. View "Perez Vasquez v. Garland" on Justia Law