Justia Immigration Law Opinion Summaries

Sanchez immigrated from Honduras in 1994 and became a lawful permanent resident when he married a U.S. citizen. In 1999, Sanchez pleaded guilty to sexual battery in Ohio. He was ordered removed because sexual battery is a crime involving moral turpitude, 8 U.S.C. 1227(a)(2)(A)(i). The BIA noted that Sanchez implied that he pled guilty in reliance on his attorney's assurance that a conviction would not result in immigration consequences but concluded that it had no authority to look behind his conviction. Immigration authorities encountered Sanchez in the U.S. again in 2012 and 2018, twice reinstated the removal order, and removed him.Following his 2018 detention, Sanchez's counsel realized that his guilty plea was legally infirm. Ohio law requires that a judge advise defendants such as Sanchez that a guilty plea might result in deportation but the judge in Sanchez’s case failed to give that advisement. The court vacated the sexual battery conviction. Sanchez entered a new plea for simple assault—which is not a crime involving moral turpitude.Sanchez moved the BIA to reopen his 2008 removal order, citing ineffective assistance by former counsels. The BIA denied the motion, determining that it lacked jurisdiction because 8 U.S.C. 1231(a)(5), “prohibits reopening of removal proceedings if those proceedings are subject to reinstatement.” The Sixth Circuit denied relief. Nothing in section 1231(a)(5) implies exceptions for exceptional circumstances. Sanchez’s original removal order “is not subject to being reopened” because he illegally reentered the country. View "Sanchez-Gonzalez v. Garland" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's order determining that petitioner was removable because his prior conviction for enticing a minor under Iowa law was a "crime of child abuse." Applying the categorical approach, the court concluded that the Board's decision cannot be upheld on the rationale advanced by the government because it conflates two separate elements in the Iowa statute. Looking only at the plain text of the Iowa statute, the court cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. Furthermore, the Board's decision is not clear about how it understood the "realistic probability" requirement. Accordingly, the court vacated the Board's decision and remanded for further proceedings. View "Pah Peh v. Garland" on Justia Law

Valarezo-Tirado, an Ecuadorian citizen, entered the U.S. illegally in 2017. In 2020, DHS reinstated a 2015 removal order and conducted a reasonable fear interview. Valarezo-Tirado was twice informed of his right to postpone the interview to procure an attorney and was provided with a list of pro bono attorneys. He proceeded without an attorney. Valarezo-Tirado described his interactions with police concerning a conflict with a neighbor who was involved in drug trafficking and his fear for his family’s safety, The asylum officer found that Valarezo-Tirado was “credible,” but that he did not establish a reasonable fear of persecution or torture if removed to Ecuador, stating that the verbal threats of unspecified harm did not rise to the level of severe physical or mental pain. Valarezo-Tirado failed to provide specific and persuasive evidence to establish a reasonable possibility that a public official would acquiesce to his future harm. On appeal, he again declined to seek legal representation. The IJ found that the situation amounted to “a personal matter.”The Third Circuit remanded. The IJ did not adequately explain the reasons for her decision. On remand, if the IJ concludes Valarezo-Tirado must come forth with corroborating evidence, she must reopen the proceedings, inform Valarezo-Tirado of the evidence that requires corroboration, and must give Valarezo-Tirado an opportunity to furnish such information or provide an explanation for its absence. The court rejected Valarezo-Tirado’s argument that he was denied his right to counsel. View "Valarezo-Tirado v. Attorney General United States" on Justia Law

The Eighth Circuit reversed the district court's grant of summary judgment to plaintiff in an action brought against several officials under the Administrative Procedure Act. The district court concluded that the doctrine of issue preclusion barred the government's rationale for denying plaintiff's application for adjustment of status.The court concluded that the disputed issue of whether plaintiff solicited funds for a terrorist organization was not actually litigated in an earlier proceeding, and thus issue preclusion does not apply. In this case, the record shows that whether plaintiff was inadmissible because he solicited funds for a terrorist organization was not raised, contested, and submitted for determination in the 2001 asylum proceeding. The court remanded for further proceedings. View "Fofana v. Mayorkas" on Justia Law

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