Justia Immigration Law Opinion Summaries

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

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