Justia Immigration Law Opinion Summaries

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of sua sponte reopening petitioner's immigration proceedings based on the departure bar provision in 8 C.F.R. 1003.23(b)(1). Petitioner argued that an IJ should not be prevented from reopening a noncitizen's case on the IJ's own motion based solely on the noncitizen's departure during or after prior proceedings.The panel joined the Tenth Circuit and held that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ's discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, the BIA erred in determining that the departure bar prevented the IJ from reopening petitioner's immigration proceedings sua sponte. The panel remanded to the BIA to consider whether the alternative bases the IJ offered for denying sua sponte reopening were permissible. View "Balerio Rubalcaba v. Garland" on Justia Law

Ademiju immigrated to the U.S. in 2001 and had a green card. In 2011, he became involved in a scheme to defraud Medicare. He pled guilty to healthcare fraud, 18 U.S.C. 1347, and stipulated to a $1.5 million loss amount, acknowledging that “pleading guilty may have consequences with respect to his immigration status” and that he “affirms that he wants to plead guilty … even if the consequence is his automatic removal.” At sentencing, Ademiju personally acknowledged that his ability to stay in this country was not assured. His counsel told the court, “I’m not an immigration specialist … But it’s my understanding that … any sentence of less than one year … he would be at least eligible for a waiver.” Apparently, no one knew that statement was incorrect. The district court sentenced Ademiju to 11 months’ imprisonment plus $1.5 million in restitution.Ademiju was released from federal prison and transferred into ICE custody; he retained an immigration attorney who informed him that his offense of conviction and the stipulated loss amount subjected him to mandatory deportation. Ademiju filed a 28 U.S.C. 2255 motion to vacate his conviction because his attorney provided ineffective assistance of counsel, arguing that the statute of limitations should be tolled because he received incorrect advice from an attorney about his options for recourse within the limitations period and could not have discovered the problem himself due to the inadequacy of his prison’s law library. The Seventh Circuit affirmed the dismissal of his motion; Ademiju has not met the high standard for equitable tolling. View "Ademiju v. United States" on Justia Law

The Eighth Circuit denied the petition for review challenging the BIA's decision affirming the IJ's denial of petitioner's application for asylum and withholding of removal. The court concluded that the BIA's decision to review the factual issue for clear error was correct.The court also concluded that, even if the court assumed that petitioner suffered harm that amounted to past persecution, the court would still conclude that it was not motivated by her membership in a particular social group. In this case, the record shows that petitioner was targeted because the individual that threatened her father assumed that she owned the land that once belonged to her father—not because she was related to him. Finally, petitioner failed to establish a well-founded fear of future persecution because she failed to carry her burden of demonstrating that she could not relocate in Honduras. View "Padilla-Franco v. Garland" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that substantial evidence supported the BIA's finding that petitioner failed to establish a nexus between the identity of her nuclear family and her asserted persecution. The court explained that petitioner is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. Furthermore, petitioner is ineligible for CAT relief because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. View "Sanchez-Castro v. U.S. Attorney General" on Justia Law

Alcaraz-Enriquez and Dai each appeared before an immigration judge (IJ), requesting that he not be returned to his country of origin. For Alcaraz-Enriquez, the IJ had to determine whether Alcaraz-Enriquez had committed a disqualifying “particularly serious crime” based on a California conviction. The IJ considered his probation report, which detailed a serious domestic violence incident, and Alcaraz-Enriquez’s own testimony, admitting that he hit his girlfriend, allegedly in defense of his daughter. The IJ found Alcaraz-Enriquez ineligible for relief. The BIA affirmed. Dai testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return. Dai initially failed to disclose that his wife and daughter had returned voluntarily to China since accompanying him to the U.S. When confronted, Dai told the “real story.” The IJ denied relief. The BIA affirmed. In both cases the Ninth Circuit granted relief, noting that neither the IJ nor the BIA made an explicit “adverse credibility determination” under 8 U.S.C. 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C). The Supreme Court vacated. A reviewing court must accept administrative findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” In neither case did the Ninth Circuit consider the possibility that the BIA implicitly found the presumption of credibility rebutted. The BIA expressly adopted the IJ’s decision, which noted that Alcaraz-Enriquez’s story had changed, a factor the statute specifically identifies as relevant to credibility. In Dai’s case, the BIA also adopted the IJ’s decision, which discussed specific problems with Dai’s demeanor, candor, and internal inconsistency. The statute requires the noncitizen to satisfy the trier of fact on credibility, persuasiveness, and the burden of proof. Even if the BIA treats a noncitizen’s testimony as credible, the agency need not find such evidence persuasive or sufficient to meet the burden of proof. View "Garland v. Dai" on Justia Law

After petitioner prevailed on an application for a writ of habeas corpus seeking release from federal immigration detention, he sought to recover attorney's fees under the Equal Access to Justice Act. The Fourth Circuit has previously held, pursuant to O'Brien v. Moore, 395 F.3d 499, 508 (4th Cir. 2005), that the Act does not apply to a habeas proceeding seeking release from criminal detention. The court held that the same is true for habeas proceedings seeking release from civil detention. Therefore, the court affirmed the district court's denial of attorney's fees because the Act does not provide a basis for petitioner to recover attorney's fees. View "Obando-Segura v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's final order of removal. At issue is whether the government must carry its burden of proving that a returning LPR meets one of the six exceptions under 8 U.S.C. 1101(a)(13)(C) before it paroles that LPR into the United States under section 1182(d)(5).The panel deferred to a precedential opinion issued by the BIA, Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012), and held that the government may exercise its discretion to parole a returning LPR into the United States for prosecution without carrying its burden of proving that the LPR falls within one of the six exceptions. The government must, however, carry its burden of proof in subsequent removal proceedings if any ensue. In this case, when petitioner arrived at LAX, the CBP exercised its discretion to parole him into the United States for prosecution; the panel explained that it does not second-guess the CBP's decision to do so; petitioner then pleaded guilty to a crime involving moral turpitude; and, at subsequent removal proceedings, the government properly relied on petitioner's conviction to carry its burden of proving by clear and convincing evidence that he could be regarded as an alien seeking an admission into the United States under section 1101(a)(13)(C)(v). Therefore, petitioner was properly subjected to a charge of inadmissibility. View "Vazquez Romero v. Garland" on Justia Law

The Eighth Circuit dismissed the petition for review of the BIA's order finding petitioner inadmissible under 8 U.S.C. 1182(a)(2)(C) based on lack of jurisdiction. Under section 1182(a)(2)(C)(i), a non citizen is inadmissible to the United States if "the Attorney General knows or has reason to believe" that the noncitizen is or has been either "an illicit trafficker in any controlled substance," or "a knowing aider, abettor, assister, conspirator, or colluder with others" in such trafficking.The court agreed with the BIA that section 1182(a)(2)(C)'s "reason to believe" language requires a finding of probable cause. In this case, the court concluded that there is substantial evidence in the record to support the BIA's conclusion that there was probable cause to believe petitioner was involved in illicit drug trafficking. Therefore, petitioner is inadmissible under section 1182(a)(2)(C) and thus the court lacked jurisdiction over the petition for review. View "Rojas v. Garland" on Justia Law

The Fourth Circuit granted the petition for review of the BIA's final order affirming the denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner alleged that the IJ and the BIA made several legal errors in their consideration of his claims for withholding of removal and for relief under the Convention Against Torture (CAT).The court held that IJs have a legal duty to develop the record, which takes on particular importance in pro se cases, and that the IJ in this case erred in failing to discharge that duty. The court also concluded that the BIA erred in refusing to consider petitioner's particular social groups based on Matter of W-Y-C- and in mischaracterizing his claim. In regard to the CAT claim, and pursuant to Rodriguez-Arias v. Whitaker, 915 F.3d 968 (4th Cir. 2019), the court agreed with petitioner that the BIA erred in failing to consider and aggregate the risk of torture from different sources. Furthermore, neither the IJ nor the BIA duly considered all of the record evidence relevant to whether the Salvadoran government would consent to or acquiescence in torture. Accordingly, the court vacated petitioner's final order of removal and remanded to the BIA with instructions to remand the case to the IJ for further fact-finding and reconsideration. View "Arevalo Quintero v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the denial of deferral of removal under the Convention Against Torture (CAT). Petitioner's CAT claim was based on the physical abuse she experienced by her former domestic partner in Jamaica.The panel held that the record does not compel a finding that it is more likely than not that petitioner will suffer future torture if returned to Jamaica. In this case, a Jamaican court issued a protective order and the former partner has left her household. The panel also held that the IJ appropriately considered all of petitioner's evidence, including her country reports and whether she could safely relocate if returned to Jamaica. The panel explained that the circumstances of Jamaican women in general do not vitiate the agency's specific findings as to petitioner's situation with her former partner. While country conditions include generalized domestic violence against women, the panel stated that this does not compel a conclusion that petitioner will more likely than not be subjected to violence from her former partner or his associates. View "Dawson v. Garland" on Justia Law