Justia Immigration Law Opinion Summaries

The Second Circuit granted a petition for review of the BIA's order affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture, based on adverse credibility grounds. In this case, petitioner sought relief from political persecution in his home country.The court concluded that the IJ and the BIA erred in treating three of the four instances of perceived inconsistencies as casting doubt on petitioner's credibility. The court explained that they did not involve inconsistency, at least not of the sort that can reasonably support doubt about the speaker's credibility. Although the fourth instance, unlike the first three, did indeed involve inconsistency, the court concluded that the inconsistency related to a trivial detail. Therefore, this trivial inconsistency by itself, without more, could not reasonably justify finding that petitioner is not credible. View "Singh v. Garland" on Justia Law

Galvan, a citizen of Mexico, entered the U.S. in 2003 on a six-month nonimmigrant visa but remained in this country with his wife, a citizen of Mexico without legal immigration status, and their four U.S.-citizen children. Galvan, twice convicted of DUI, applied for cancellation of removal, 8 U.S.C. 1229b, arguing that his removal would result in “exceptional and extremely unusual hardship” for his children. His wife testified that Galvan had been the family’s main source of income, his absence during his detention had required her to work longer hours, which had impacted her ability to take care of the children. One child had been diagnosed with ADHD and suffers from anxiety; his wife was concerned that the children would not be able to participate in their established activities.While the IJ found all the witnesses credible, he denied Galvan’s application; Galvan met the temporal and good moral character criteria for cancellation and had not been convicted of any disqualifying offenses but failed as a matter of law to prove that his removal would cause “exceptional and extremely unusual hardship.” The BIA affirmed. The Fourth Circuit denied a petition for review. While the statutory standard of “exceptional and extremely unusual hardship” presents a mixed question of law and fact, giving the court jurisdiction, the IJ did not err in determining that Galvan failed to prove eligibility for cancellation of removal. View "Galvan v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying cancellation of removal to petitioner.The panel incorporated by reference the factual and procedural background of Marinelarena I that conspiracy under California Penal Code 182(a)(1) is overbroad but divisible as to the target crime, and that sale and transport of a controlled substance under California Health and Safety Code 11352, is overbroad and divisible as to controlled substance. The panel concluded that Pereida v. Wilkinson, 141 S. Ct. 754 (2021), is consistent with Marinelarena I, and that Petitioner failed to establish that her conviction did not involve a federally controlled substance. In regard to divisibility, the panel noted that no developments in the California Supreme Court since Marinelarena I undermined the panel's earlier divisibility analysis, and that the jury instructions relating to the conspiracy offense, as well as petitioner's underlying statute of conviction, support divisibility. In regard to the burden of proof, the panel explained that Marinelarena I is consistent with the Supreme Court's decision in Pereida and that petitioner failed to establish that her conviction did not involve a federally controlled substance. The panel declined petitioner's invitation to remand to present additional evidence. Finally, the panel reaffirmed its conclusion that a conviction expunged under CPC 1203.4 remains a "conviction" for federal immigration purposes. View "Marinelarena v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision upholding the IJ's decision denying petitioner's request for cancellation of removal. The court concluded that the substitution of an immigration judge did not violate petitioner's due process rights. In this case, the second immigration judge not only stated that she had familiarized herself with the record but also elaborated on pertinent facts in that record. The court also concluded that it lacked jurisdiction to review petitioner's challenge to the BIA's discretionary decision to deny his request for cancellation of removal. View "Avendano-Elvira v. Garland" on Justia Law

Meza, a citizen of Mexico, entered the U.S. without being formally admitted or paroled in 1996, when he was nine years old. He has remained in this country ever since. He is married to another Mexican native, with whom he has five U.S.-citizen children. Meza’s parents also reside in the U.S. and have lawful permanent resident status. Around 2012, DHS initiated removal proceedings against him under 8 U.S.C. 1182(a)(6)(A)(i). Meza applied for discretionary cancellation of removal under section 1229b(b), arguing that his removal would create exceptional and extremely unusual hardship to his parents and his U.S.- citizen children.While his removal proceedings were pending, Meza was convicted of DUI. He collided with another vehicle. No one was injured, but the incident caused $5,000 in damage to the other car. Meza later pleaded guilty to operating a vehicle without a license and to operating a motor vehicle without insurance. He later pleaded guilty to failing to install an ignition interlock on his vehicle. Meza admitted that he used a fabricated social security number to obtain employment, 2003-2015. The BIA and Seventh Circuit upheld an IJ’s determination that Meza was ineligible for cancellation because he had failed to establish that he was a person of “good moral character.” View "Meza v. Garland" on Justia Law

The Ninth Circuit withdrew its prior opinion and filed a new opinion concurrently with this order. The panel denied defendant's petition for rehearing en banc as moot.The panel reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing.The panel concluded that defendant's argument is foreclosed by United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021). Therefore, the panel held that defendant has failed to show that he can satisfy the section 1326(d) requirements based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section 1326(d). Accordingly, the panel remanded for further proceedings. View "United States v. Gonzalez-Valencia" on Justia Law

iTech filed an I-140 (petition for alien worker) immigrant visa petition on behalf of Reddy. USCIS approved the petition two months later. In its application, iTech produced evidence of its ability to pay the proffered wage and evidence that Reddy had obtained a bachelor’s degree, “in the form of a degree certificate from the University of Madras along with transcripts.” About 18 months later, USCIS issued a notice of intent to revoke the approval based on “inconsistencies in the record calling into question whether the beneficiary meets the educational requirements of the labor certification” and whether iTech “continues to demonstrate the ability to pay the proffered wage.”iTech provided additional documentation but USCIS revoked its approval on the basis that iTech misrepresented Reddy’s degree-conferring institution and employment qualifications, and did not establish its ability to pay the proffered wage. iTech brought suit, alleging that USCIS’s decision to revoke its I-140 petition was arbitrary and capricious because the agency failed to engage in rational decision-making based on the record. The D.C. Circuit affirmed the dismissal of the suit. The statute preserves the Secretary’s ability to revoke an I-140 petition at any time and for any reason and renders USCIS’s revocation decision discretionary under 8 U.S.C. 1155; section 1252(a)(2)(B)(ii) deprives the courts of jurisdiction to review the decision. View "iTech U.S., Inc v. Renaud" on Justia Law

The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border. View "Whitewater Draw Natural Resource Conservation District v. Mayorkas" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's application for cancellation of removal. The court concluded that the substitution of immigration judges between the removal hearing and the decision did not violate the text of 8 U.S.C. 1229a(a)(1) nor petitioner's due process rights. The court explained that the phrase "the immigration judge" used in subsequent clauses simply refers to whichever immigration judge is conducting that part of the removal proceedings; the phrase does not require that the first immigration judge oversee the case from initiation to completion. Furthermore, the judge who wrote the decision fully complied with the governing regulations. Finally, petitioner failed to establish a due process right. View "Orpinel-Robledo v. Garland" on Justia Law

The Fifth Circuit denied the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal because petitioner's prior Texas conviction for delivering cocaine, in violation of Texas Health and Safety Code 481.112, is included in the Controlled Substances Act (CSA).The court concluded that the rule of orderliness does not apply to the court's previous reliance on the government's concession that an offer to sell falls outside the CSA. Because there is no binding precedent, the court held that section 481.112's offer-to-sell theory falls within the CSA, which makes it unlawful for any person knowingly or intentionally to distribute a controlled substance. The court explained that section 481.112's offer-to-sell theory requires (1) the requisite culpability and (2) a substantial step. Therefore, it falls within the CSA's definition of an attempted transfer. View "Ochoa-Salgado v. Garland" on Justia Law