Justia Immigration Law Opinion Summaries

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

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