Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

A limited number of visas are available to foreign investors who create jobs in the United States; investors’ spouses and children have the “same status” and “same order of consideration” for those visas as the investors, 8 U.S.C. 1153(d). When the Department of State calculates how many visas it may issue for foreign investors, it includes an investor’s spouse and children in the total count. The Plaintiffs challenged that counting practice, arguing that the Department should have stopped counting family members against the total number of investor visas after Congress relocated the controlling text within the Act in 1990.The D.C. Circuit affirmed the dismissal of the challenge. The statute required the Department’s approach before 1990, and it still does. Congress did nothing in 1990 to change the text’s meaning. Because spouses and children receive “the same order of consideration provided in the” employment-based visas subsection, which specifically caps employment-based visas, spouses and children are also subject to the 140,000- person cap on employment-based visas. View "Wang v. Blinken" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision denying petitioner's application for statutory withholding of removal and protection under the Convention Against Torture (CAT). The court concluded that any failure by the IJ to make an explicit credibility finding requires no remand because the BIA explicitly assumed petitioner's credibility in upholding the IJ's decision, consistent with 8 U.S.C. 1158(b)(1)(B)(iii) & 1231(b)(3)(C). The court also concluded that the IJ, sua sponte, effectively considered the social groups identified by petitioner in this court, and the record evidence considered in light of controlling precedent does not support, much less compel, the conclusion that these social groups bear the particularity or social distinction required for withholding of removal. Finally, the court concluded that the record evidence also does not compel the conclusion that petitioner faces likely torture either directly by or indirectly with the acquiescence of Salvadoran police, as required for CAT relief. View "Quintanilla v. Garland" on Justia Law

In 1980, Posos crossed the U.S. border without inspection. The 1986 Immigration Reform and Control Act, 8 U.S.C. 1255a, provided a path to permanent resident status for noncitizens who had resided unlawfully and been physically present in the U.S. since January 1982. In 1988, Posos obtained a temporary resident card that expired in November 1990. In September 1990, Border Patrol agents stopped Posos at a San Clemente border patrol checkpoint, examined his immigration papers, and let him proceed. In 1993, Posos was notified that his application for temporary resident status was denied. Posos was removed in 2010. Posos tried to reenter but was detained. His notice of removal proceedings failed to state the date and time of Posos’s hearings. Subsequent notices supplied that missing information. Posos sought adjustment of status under 8 U.S.C. 1255(a), cancellation of removal under 1229b, and voluntary departure under 1229c, arguing that immigration officials had “admitted” him to the U.S. in 1990The Ninth Circuit remanded. Posos is removable and ineligible to adjust his status. Unless an immigration official has inspected a noncitizen at a port of entry and then granted that noncitizen permission to enter the U.S., that noncitizen has not been “admitted.” The 1990 incident did not occur at a port of entry. Because of the missing date-and-time information, his removal did not stop the clock for purposes of computing the time during which he was physically present under section. 1229c(b)(1)(A). Posos accrued five years of physical presence and was eligible for voluntary departure if he satisfies the other statutory conditions. View "Posos-Sanchez v. Garland" on Justia Law

After USCIS denied plaintiff's I-485 application for adjustment of status to lawful permanent resident under 8 U.S.C. 1255(m), plaintiff filed suit in the District of Minnesota and filed a motion for a preliminary injunction setting aside the effective date of the denial. Plaintiff had previously submitted a U-nonimmigrant status (I-918) application and an application for waiver of inadmissibility (I-192). The district court denied the motion, concluding that 8 U.S.C. 1252(a)(2)(B)(i) deprived the court of subject matter jurisdiction to review the agency’s denial of discretionary adjustment of status relief.The Eighth Circuit affirmed, concluding that the district court correctly determined that it lacked jurisdiction to grant the requested preliminary injunction. The court agreed with the district court that, based on the plain language of section 1252(a)(2)(B)(i), the court has no jurisdiction to review the underlying denial of plaintiff's adjustment of status under section 1255(m). In this case, the statutory substantive ground on which USCIS based its denial of plaintiff's I-485 application -- his failure to establish that adjustment of status is warranted on humanitarian grounds, to ensure family unity, or is otherwise in the public interest -- is a discretionary determination governed by section 1252(a)(2)(B)(i), like determinations to deny cancellation of removal under section 1229b(b) because removal would not cause exceptional and extremely unusual hardship to a U.S. citizen family member. Finally, the court rejected plaintiff's remaining unconstitutional deprivation claim because there is no constitutionally protected liberty interest in discretionary relief under the Immigration and Nationality Act. View "J.M.O. v. United States" on Justia Law

The Eighth Circuit denied petitions for review challenging the BIA's decision denying petitioner's applications for withholding of removal and relief under the Convention Against Torture. The court concluded that the district court did not err in denying petitioner's claim for withholding of removal based on petitioner's membership in "tattooed Guatemalan youths" and "people who promised to remove their tattoos years ago but did not," because petitioner failed to establish a nexus between his claimed fear and his social group. In this case, petitioner was no longer a member of the first proposed social group and his second social group lacks social distinction. The court also concluded that the Board did not err by adopting the IJ's conclusion that it was reasonable to expect petitioner to relocate within Guatemala to avoid a vigilante group. The court further concluded that the Board did not err in rejecting petitioner's CAT claim where petitioner could relocate to avoid the group and there was no evidence that Guatemala acquiesced in any torture performed by the group. View "Bautista-Bautista v. Garland" on Justia Law

After an IJ found that petitioner was a removable alien, petitioner sought to have his removal cancelled. The IJ denied the petition, determining that petitioner could not be considered for discretionary relief because he had not shown his removal would result in "exceptional and extremely unusual hardship" to his U.S.-citizen children. The BIA affirmed the IJ's assessment.The Fifth Circuit concluded that it has jurisdiction to review the IJ and BIA's determination. The court explained that, although 8 U.S.C. 1252(a)(2)(B) deprives it of jurisdiction to review the discretionary decision of whether to actually grant cancellation of removal, recent Supreme Court precedent makes clear that applying a legal standard to established facts in order to determine whether an alien is eligible for discretionary relief is a question of law, not a discretionary decision. Therefore, the court may review the IJ's determination that the events that would befall petitioner's children if he were removed would not amount to "exceptional and extremely unusual hardship" as Congress intended the phrase. On the merits, the court concluded that petitioner has not shown that the events that the agency found would befall his children if he were removed amount to suffering substantially beyond the hardship usually associated with a parent's removal. In this case, the children's mothers care for them, petitioner's brother lives with the youngest two, the children will not move to Mexico with petitioner, and petitioner has family in Mexico in any event. Accordingly, the court denied the petition for review. View "Guerrero Trejo v. Garland" on Justia Law

The Fifth Circuit denied a petition for review an order of removal based on defendant's conviction of online solicitation of a minor. In this case, an IJ terminated petitioner's removal proceedings, but the BIA partially vacated the IJ's decision and remanded for further proceedings. On remand, the IJ ordered petitioner removed.After determining that the court has jurisdiction to consider the petition for review, the court concluded that the BIA did not err in finding petitioner removable under 8 U.S.C. 1227(a)(2)(E)(i) for a crime of child abuse. The court explained that Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020), foreclosed petitioner's argument that the court should not give deference to the BIA's broad interpretation of a "crime of child abuse" under section 1227(a)(2)(E)(i). The court agreed with the BIA that petitioner's conviction for online solicitation of a minor in violation of section 33.021(c) of the Texas Penal Code falls within the BIA's definition of a crime of child abuse. View "Adeeko v. Garland" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal based on petitioner's failure to offer sufficient evidence that his criminal conviction—filed after the initial period for filing a direct appeal expired—goes to the merits of his conviction. The court concluded that the BIA's decision was premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).The court held that the IIRIRA's definition of "conviction" is ambiguous and that the BIA reasonably determined that the finality requirement persists. However, the court need not determine whether the BIA may put limits on the finality requirement because, even assuming it may, the court held that the limitations the BIA imposed in Matter of J.M. Acosta, 27 I. & N. Dec. 420 (BIA 2018), are unreasonable. Therefore, the BIA's burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA. The court remanded for further proceedings. View "Brathwaite v. Garland" on Justia Law

This action involves the 1997 settlement agreement (the Flores Agreement) between the United States and a class of minors subject to detention by U.S. immigration authorities. The district court issued two orders enforcing the consent decree incorporating the Flores Agreement. The orders enjoined DHS from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States due to the COVID-19 pandemic (Title 42 Order).As a preliminary matter, the panel concluded that this appeal was not moot. The panel also concluded that the district court's second order (the September 21, 2020 Order) was a final decision for purposes of 28 U.S.C. 1291, and thus the panel has jurisdiction to review it.On the merits, the panel rejected the government's contention that the district court erred in concluding that the Agreement applies to minors held in custody pending their expulsion under the Title 42 Order. The panel concluded that it is clear that DHS, rather than the CDC, both maintains physical control and exercises decision-making authority over the minors held in hotels under Title 42. Therefore, the district court did not modify the Agreement in concluding that minors held under Title 42 are in DHS's custody for purposes of the Agreement or thus by applying the Agreement to those minors. The panel also concluded that nothing in the record establishes that the COVID-19 pandemic impedes or prevents the government from placing minors in licensed programs within three days. The panel need not decide whether the district court correctly applied the Agreement's "safe and sanitary" requirement because the September 21 Order eliminates the practical import of the district court's finding on that issue. Finally, the panel rejected the government's contention that the risk of harm to the United States and the public necessitates reversing the district court's orders. The panel explained that it has already held that the government has not demonstrated that complying with the district court's orders will cause irreparable harm. Accordingly, the panel affirmed the September 21, 2020 Order. View "Flores v. Garland" on Justia Law