Justia Immigration Law Opinion Summaries

The Fifth Circuit granted a petition for review of the BIA's decision upholding the IJ's conclusion that one of petitioner's three convictions rendered petitioner removeable. At issue is petitioner's 2018 conviction for knowingly possessing a controlled substance listed in Penalty Group 2-A, in violation of Texas Health & Safety Code 481.1161(a). In this case petitioner possessed MMB-Fubinaca, which, he agrees, is a federally controlled substance. However, Penalty Group 2-A also includes at least one substance that is not federally controlled.The court concluded that petitioner's 2018 conviction did not render him removeable under 8 U.S.C. 1227(a)(2)(B)(i). The court explained that the government failed to show that Penalty Group 2-A is divisible. Applying the categorical approach, the court concluded that Penalty Group 2-A is broader than the federal statute, and "there is no categorical match" between Penalty Group 2-A and its federal counterpart. Here, the parties agree that Penalty Group 2-A criminalizes possession of at least one substance—naphthoylindane—that the federal statute does not mention. The panel declined to terminate petitioner's removal proceedings. Instead, the court remanded for consideration of whether petitioner has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute. The panel also remanded for consideration of whether petitioner's 2009 and 2013 convictions render him removable, in the event that petitioner succeeds on the realistic-probability inquiry. View "Alejos-Perez v. Garland" on Justia Law

The Eighth Circuit granted a petition for review of the denial of petitioner's application for cancellation of removal. The court held that petitioner's 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. 1101(a)(43)(B), and thus the 2006 conviction for illegal reentry under 8 U.S.C. 1326 does not qualify as an aggravated felony under 8 U.S.C. 1101(a)(43)(O). Therefore, petitioner is not statutorily ineligible for cancellation of removal and the court remanded for further proceedings. View "Lopez-Chavez v. Garland" on Justia Law

The Eighth Circuit denied petitions for review of the reinstatement of a 1998 removal order by the DHS and the denial of a motion to reopen the 1998 removal proceedings by the BIA. The court rejected petitioner's contention that his reinstated 1998 removal order was obtained in violation of his constitutional rights, because his counsel was ineffective. The court concluded that petitioner's contention is untimely because it was not raised within thirty days of the underlying removal order, as required by 8 U.S.C. 1252(b)(1). The court also concluded that there is substantial evidence supporting the existence of a prior removal order, and petitioner's reentry was unlawful because he reentered within ten years of his removal without the Attorney General's permission to reapply for admission.The court concluded that the Board correctly determined that the immigration court lacked jurisdiction to reopen the 1998 proceedings. The court explained that an alien ordinarily has a right to file one motion to reopen within ninety days of a final removal order, but an alien forfeits that right by illegally reentering the country. Petitioner's motion also came well after the expiration of the ninety-day time limit for an alien’s motion. Finally, the court agreed with the Board that current law does not allow for a miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order. View "Gutierrez-Gutierrez v. Garland" on Justia Law

The First Circuit denied Petitioner's petition for relief from removal on the grounds of asylum, withholding of removal under the Immigration and Nationality Act, and protection under the United Nations Convention Against Torture (CAT), holding that the Board of Immigration Appeals (BIA) did not err in affirming the immigration judge's (IJ) decision to deny Petitioner's application.Specifically, the First Circuit held (1) the record did not indicate that Petitioner either faced or would face persecution on the basis of his nationality, his religion, or his political beliefs; and (2) therefore, Petitioner was not able to meet the higher threshold for his claim of withholding of removal and his CAT claim. View "Thile v. Garland" on Justia Law

Petitioner Daniel Awuku-Asare appealed a Board of Immigration Appeals (BIA) decision to affirmed his removal order. Awuku-Asare entered the country on a nonimmigrant F-1 visa and could lawfully remain in the United States so long as he complied with the conditions of his visa. Relevant here, maintaining an F-1 visa status requires maintaining a full course of study at an approved educational institution. But Awuku-Asare did not comply with this full-course-of-study requirement because he was incarcerated for approximately 13 months for a crime of which he was ultimately acquitted. In an issue of first impression for the Tenth Circuit, Awuku-Asare argued that “the failure to maintain status must be attributable to the nonimmigrant to render him [removable],” and that because of circumstances beyond his control caused the lapse in his status, he was not removable. The Tenth Circuit determined the plain meaning of the relevant statute did not support Awuku-Asare's interpretation, therefore his arguments were rejected and the BIA's decision affirmed. View "Awuku-Asare v. Garland" on Justia Law

The First Circuit vacated the judgment of the Board of Immigration Appeals (BIA) affirming the denial of Petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), holding that substantial evidence did not support the BIA's decision.The immigration judge (IJ) determined that Petitioner was not a credible witness and therefore found that he had failed to establish his burden of proof with respect to his application. The BIA dismissed Petitioner's appeal, thus declining to remand the case in light of new evidence submitted for the first time on appeal. The First Circuit vacated the BIA's decision, holding that the IJ's adverse credibility finding was not supportable. View "Cuesta-Rojas v. Garland" on Justia Law

Petitioner sought review of the BIA's denial of his motion to terminate or remand proceedings, and his application for withholding of removal and protection under the Convention Against Torture (CAT). The Ninth Circuit granted the petition for review on the basis of an evidentiary issue with respect to the CAT claim and otherwise denied the petition.The panel concluded that it lacked jurisdiction to consider petitioner's claim, argued for the first time before the panel, that because he never received his 2001 notice of hearing, jurisdiction never vested in the immigration court and his removal proceedings should thus be terminated. The panel explained that precedent squarely forecloses the termination argument that petitioner actually presented to the BIA. The panel also concluded that it lacked jurisdiction to consider the denial of petitioner's motion to seek cancellation of removal based on the alleged "exceptional and extremely unusual hardship" his removal would cause to his mother, a legal permanent resident. The panel explained that there is nothing in the record to indicate that there was relevant evidence that the BIA failed to consider in making its hardship decision. The panel concluded that petitioner failed to establish membership in a cognizable social group and is therefore ineligible for withholding of removal under 8 U.S.C.1231(b)(3). In regard to the CAT claim, the panel concluded that substantial evidence supports the BIA's determination that petitioner failed to establish that past torture occurred with the consent or acquiescence of a public official as required by 8 C.F.R. 1208.18(a)(1). The panel remanded the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report. View "Aquilar-Osorio v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen removal proceedings on the ground that petitioner did not demonstrate a relevant change in country conditions. Petitioner sought to reopen his 2003 removal proceedings based on a "hybrid change in personal circumstances and country conditions" since 2003, so that the agency could consider a new petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The panel concluded that petitioner did not present any evidence demonstrating that relevant conditions in Mexico changed since his 2003 removal order, and a change in personal circumstances alone is not sufficient to support a motion to reopen his removal proceedings. The panel further concluded that, even assuming petitioner's changed personal conditions could affect his anticipated experience upon return to his country of removal, by regulation the BIA is not required to grant a motion to reopen based on changed conditions absent a change in that country's conditions. Therefore, the BIA did not abuse its discretion in denying petitioner's motion to reopen. View "Alonso Rodriguez v. Garland" on Justia Law

Plaintiff's mother married a U.S. citizen in 1999 and divorced him in 2004 because of his violent behavior. Plaintiff had run away the year before, when she was 15, to escape the abuse. At issue is whether, after the divorce, plaintiff remained a "child" of her mother's ex-husband. Plaintiff's mother died shortly after the divorce and could not file a petition under the Violence Against Women Act (VAWA) on plaintiff's behalf. Plaintiff had to petition on her own behalf, and the agency rejected her application because a self-petition may be filed only by someone who "is the child" of an abusive U.S. citizen. Because, in the agency's view, plaintiff lost stepchild status in 2004, and only a person who "is" a child of an abusive parent may seek relief, the agency denied her application. However, the agency and the district court, relying on Matter of Mowrer, 17 I&N Dec. 613, 615 (1981), both concluded that even after divorce, a person remains a stepchild as long as "a family relationship has continued to exist as a matter of fact between the stepparent and stepchild."The Seventh Circuit held that, in the context of VAWA, "stepchild" status survives divorce. The court explained that someone who is a stepchild during a marriage remains one after divorce, when termination of "stepchild" status would defeat application of the substantive rule that abused stepchildren are entitled to an immigration benefit. The court clarified that Mowrer does not interpret VAWA. Accordingly, the court reversed and remanded. View "Arguijo v. United States Citizenship and Immigration Services" on Justia Law

Lopez, a citizen of Guatemala, entered the U.S. in the 1990s without admission or parole. In 2003, the government charged her with removability under 8 U.S.C. 1182(a)(6)(A)(i) and sent Lopez a Notice to Appear that contained a warning in English that if she failed to attend the hearing, the IJ could order her removal, and she might be arrested as a result. Lopez failed to appear at her removal hearing. The IJ ordered her removal in absentia. Immigration officials detained Lopez a few years later. In 2017, Lopez moved to reopen her removal proceedings, claiming that she was the derivative beneficiary of her husband’s pending application for protection under the Nicaraguan Adjustment and Central American Relief Act (NACARA).The IJ denied Lopez’s motion, finding Lopez’s NACARA-based claims untimely and that her motion failed to include required documents. The IJ also declined to exercise its discretionary authority to sua sponte reopen Lopez’s removal proceedings. The BIA affirmed, rejecting Lopez’s additional argument on appeal that the 2004 removal order should be rescinded because the Notice to Appear was delivered in English, not in her native language. The Seventh Circuit rejected a petition for review and dismissed, for lack of jurisdiction, Lopez’s challenge to the BIA’s decision not to sua sponte reopen her case under its discretionary authority, View "Lopez v. Garland" on Justia Law