Justia Immigration Law Opinion Summaries

Mejia, a citizen of Mexico, entered the U.S. without inspection in 2005. His children are U.S. citizens. In 2011, he was placed in removal proceedings. His notice to appear did not include the date and time of the initial immigration hearing, required by 8 U.S.C. 1229(a)(1)(G)(i). A follow-up notice provided that information. Mejia appeared for all of his hearings. An IJ granted Mejia voluntary departure. Mejia did not depart. ICE placed him under an order of supervision. Mejia has complied with that order and has remained in the U.S.In 2018, the Supreme Court held (Pereira) that a notice to appear which fails to specify the time and place of a removal proceeding is insufficient to trigger the “stop-time” rule ending a non-citizen’s period of continuous presence in the United States. An undocumented person like Mejia must have 10 years of continuous presence in this country to become eligible for cancellation of removal. Mejia immediately sought to reopen the removal proceeding, reasoning that because the defective notice to appear did not trigger the stop-time rule, he had now accrued 10 years of continuous presence.The IJ and BIA denied Mejia’s motions. The Seventh Circuit denied a petition for review. Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the removal proceeding and has not shown cause for forfeiture nor prejudice resulting from the defect in the notice. View "Mejia-Padilla v. Garland" on Justia Law

On rehearing en banc, the court granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and order of removal.The court concluded that the BIA erred at every step of the asylum analysis. The court explained that both the IJ and BIA legally erred in relying solely on the notion that petitioner's injuries did not require medical attention as grounds to reject petitioner's persecution argument. On remand, the court instructed that the BIA should bear in mind that the harm need not be physical. Where physical harm has occurred, as here, the main question is whether petitioner's mistreatment was of "sufficient severity," keeping in mind that a key difference between persecution and less-severe mistreatment is that the former is systematic while the latter consists of isolated incidents. Furthermore, the agency should also recognize that death threats need not be made directly to the petitioner. The court recognized the commonsense rule and instructed the BIA to apply on remand: Where a petitioner is a child at the time of the alleged persecution, the immigration court must take the child’s age into account in analyzing past persecution and fear of future persecution for purposes of asylum. Therefore, even if petitioner's beatings and the threats made against him would not rise to the level of past persecution for an adult, they may satisfy past persecution for a child. In determining whether petitioner had a well-founded fear of future persecution, the court concluded that the district court erred by conflating the persecution analysis with the nexus analysis. The court further concluded that there is no support whatsoever for the IJ or BIA's conclusion that petitioner has not sufficiently alleged a cognizable protected social group. Reviewing this claim under a substantial evidence standard, the court concluded that a reasonable adjudicator would be compelled to conclude that petitioner's membership in his nuclear family was at least one central reason for the alleged persecution committed on behalf of the gang. Finally, the court concluded that petitioner sufficiently exhausted his governmental control challenge. On the merits, the court concluded that the BIA's cursory analysis was erroneous for two reasons: (1) the agency essentially imposed a per se reporting requirement; and (2) it ignored vital evidence favorable to petitioner.Because the BIA rested its conclusion as to withholding of removal on its flawed asylum determination, the court vacated the BIA's withholding conclusion as well. Likewise, the IJ and BIA's CAT analyses did not adequately address petitioner's evidence regarding police consent and/or acquiescence. The court vacated the immigration court decisions and remanded for further proceedings. View "Portillo-Flores v. Garland" on Justia Law

The Department of Homeland Security (DHS) reinstated the prior removal orders of aliens who were removed from the U.S. and reentered without authorization. Each alien sought to prevent DHS's execution of those orders based on fear of returning to their home country. While their withholding-only proceedings were pending, DHS detained the aliens, who sought release on bond. DHS argued that because the aliens were detained under 8 U.S.C. 1231, which mandates detention when a removal order is administratively final, not section 1226, which governs detention pending a decision on whether the alien "is to be removed," they were not entitled to bond hearings. The Fourth Circuit ruled in favor of the aliens.The Supreme Court reversed. Section 1231, not 1226, governs the detention of aliens subject to reinstated orders of removal. Here, each alien was “ordered removed” by a valid removal order that was reinstated from the original date under section 1231(a)(5) and was “administratively final.” The possibility of a determination that DHS cannot remove an alien to the specific country designated in the removal order does not render the question of whether the alien is to be removed “pending.” If an immigration judge grants withholding of removal, that order remains in full force; DHS retains the authority to remove the alien to any other authorized country.The inclusion of the withholding provision in section 1231 illustrates how withholding-only relief fits within the removal process. Section 1226 applies before an alien goes through the removal proceedings and obtains a decision; 1231 applies after. Aliens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible, while aliens who have already been ordered removed are generally inadmissible and have already demonstrated a willingness to violate the terms of a removal order. View "Johnson v. Guzman-Chavez" on Justia Law

Parzych, a 58-year-old Polish citizen, was admitted to the U.S. as a lawful permanent resident in 1967. He was convicted of burglary in Illinois in 2011 and again in 2015 for knowingly and without authority remaining in buildings (storage lockers) with intent to commit theft. He was charged as removable for committing aggravated felonies of burglary and crimes involving moral turpitude, 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(ii)–(iii), and for committing aggravated felonies of attempted theft, sections 1101(a)(43)(G), (U), 1227(a)(2)(A)(ii)–(iii).The “categorical approach” to determine whether a state-law conviction qualifies as a removable offense compares the elements listed in the statute of conviction with the generic elements of the crime. When a statute of conviction proscribes some types of conduct that would constitute removable offenses and some that would not and is divisible, the “modified categorical approach” applies; a court may consult a limited class of documents to determine which alternative formed the basis of the conviction and compare it to the generic offense.An IJ applied the categorical approach and found that the location and intent elements of the Illinois statute were broader than the removable offenses of burglary and attempted theft. The Board reversed, finding the statute divisible. On remand, the IJ found Parzych removable. The Board affirmed that Parzych was removable for committing aggravated felonies of attempted theft and crimes of moral turpitude under the modified categorical approach. The Seventh Circuit vacated and remanded. The Illinois burglary statute is not divisible and the modified categorical approach does not apply. View "Parzych v. Garland" on Justia Law

The First Circuit denied one of Petitioner's petitions for review of two decisions by the Board of Immigration Appeals (BIA) but granted the other petition, holding that the government failed to prove that the BIA, in overturning an immigration judge's (IJ) ruling granting Petitioner adjustment of status, considered hardship as it was required to do.The two decisions at issue were: (1) the BIA's 2011 ruling affirming the denial of Petitioner's application for asylum, withholding or removal, and protection under the Convention Against Torture (CAT); and (2) the BIA's 2017 ruling reversing the grant of Petitioner's application for adjustment of status. The First Circuit denied Petitioner's 2011 petition and granted his 2017 petition, holding (1) there was no merit to any of Petitioner's challenges to the BIA's affirmance of the IJ's denial of his asylum, withholding of removal, and CAT claims; and (2) the BIA erred in denying Petitioner's application for adjustment of status because it ignored altogether a particularly salient aspect of the hardship showing that Petitioner was trying to make. View "Perez-Trujillo v. Garland" on Justia Law

The Ninth Circuit concluded that the IJ failed to evaluate the factors weighing in favor of granting petitioner voluntary departure. In this case, the IJ did not consider any positive factors weighing in support of voluntary departure, such as petitioner's arrival in the United States at a young age and his long-term residency without departure, even though the IJ mentioned these factors elsewhere in its opinion. Nor did the IJ mention petitioner's claims regarding mitigating circumstances with respect to his criminal convictions. Accordingly, the panel granted the petition for review and remanded for further proceedings.The panel concluded that, given the fear of starting a new life in a new country was petitioner's only stated fear, petitioner did not raise a reasonable possibility that he may be eligible for asylum or withholding of removal that would trigger the IJ's duty to inform petitioner of his apparent eligibility to apply for such forms of relief; the IJ did not err under 8 C.F.R. 1240.11(a)(2) by failing to advise him of his apparent eligibility for adjustment of status through U nonimmigrant status because U nonimmigrant status is not a Chapter V benefit; the IJ's failure to address the U nonimmigrant form of relief did not violate section 1240.11(a)(2); and petitioner failed to exhaust his claim regarding the IJ's duty to advise him of Deferred Action for Childhood Arrivals (DACA) relief and the panel lacked jurisdiction to consider the procedural challenge. In regard to petitioner's statutory and constitutional claims, the panel held that the IJ did not violate his duty to sufficiently explore for all facts relevant to asylum, withholding of removal, and U nonimmigrant status, and to inform petitioner of what evidence he needed to establish these claims. The panel rejected petitioner's remaining arguments that the agency erred in failing to develop other bases for relief. View "Angeles Zamorano v. Garland" on Justia Law

After the Department of Labor determined that Overdevest had violated regulations governing the H-2A temporary visa program, the plant nursery challenged the regulations in district court. The Department concluded that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. Overdevest argued that the regulations were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest.The DC Circuit affirmed the district court's grant of summary judgment in favor of the Department, concluding that 8 U.S.C. 1188(a)(1) is not unambiguous and the Department's definition of "corresponding employment" was reasonable. The court explained that the regulation advances the statute's purpose by ensuring that when H-2A workers are performing duties that do not implicate their qualifications, non-H-2A workers will not be placed at a disadvantage. The court rejected Overdevest's argument that the Department arbitrarily and capriciously promulgated the definition of corresponding employment. Finally, the court concluded that the Secretary's enforcement of the 2010 rule against Overdevest was not arbitrary and capricious. View "Overdevest Nurseries, LP v. Walsh" on Justia Law

Avila, a Mexican citizen, has lived continuously in the U.S. since he entered as a minor in 2008. He committed an infraction that led to a disorderly conduct charge in 2019. Days after he pleaded guilty to that charge, he was placed in removal proceedings. A Notice to Appear at a removal hearing must include “[t]he time and place at which the proceedings will be held,” 8 U.S.C. 1229(a)(1)(G)(i). The Notice that Avila received did not comply with that requirement. He later received a “Notice of Hearing” with those details.Avila moved to terminate his proceedings on the ground that the Notice he received was defective. The IJ denied that motion and ordered Avila removed. Although the BIA acknowledged that the Notice was noncompliant, it reasoned that Avila was not entitled to relief because he had not shown that the defects in the Notice prejudiced him in any way. The Seventh Circuit remanded. While the requirements are not jurisdictional but are mandatory claims-processing rules, entitlement to relief does not depend on a showing of prejudice. View "Avila de la Rosa v. Garland" on Justia Law

Bashir Bare Abdi appealed a district court order denying his application for post-conviction relief, seeking to withdraw his guilty plea. Abdi was charged with luring minors in violation of N.D.C.C. 12.1-20- 05.1, a class B felony, on January 30, 2019. This charge resulted from Abdi’s alleged communications with a person he believed to be a fourteen year-old girl, but was in fact an undercover agent, after Abdi arranged to engage in sexual activity with her in exchange for a candy bar. On appeal, Abdi argued the court erred because he received ineffective assistance of counsel, and as a result his plea was not knowingly, intelligently, and voluntarily made. Specifically, Abdi argued he would not have entered a plea of guilty had he been properly advised on the virtual certainty of deportation. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Abdi v. North Dakota" on Justia Law

Moreno-Osorio arrived in the U.S. in 2009 and in 2016 returned to Honduras pursuant to a grant of voluntary departure. Upon arriving in Honduras, Moreno-Osorio and his cousins were confronted by street gang members, some of whom were armed, who told Moreno-Osorio that “people who come back from the United States come back with money,” and ordered that he give them money or join their gang: “They told me my life was on the line.” Moreno-Osorio decided to immediately return to the U.S. without filing a police report; “the police do nothing in these cases.”In January 2017, he was apprehended and was charged with inadmissibility under 8 U.S.C. 1182(a)(7)(A)(i)(I). He received a credible finding of fear during his asylum interview. According to the Department of State Overseas Security Advisory Council’s Honduras 2018 Crime and Safety Report, the Honduran Government “lacks resources to investigate and prosecute cases … criminals operate with a high degree of impunity.” Other evidence indicated that the Honduran Government has undertaken efforts to root out public corruption and gang violence. After being released on bond from DHS custody, Moreno-Osorio was arrested and pled guilty to unlawful wounding in violation of Virginia law.The Fourth Circuit affirmed that Moreno-Osorio was ineligible for asylum based upon his conviction of a crime of violence; that he was ineligible for withholding of removal; and that he did not qualify for protection from removal under the Convention Against Torture. View "Moreno-Osorio v. Garland" on Justia Law