Justia Immigration Law Opinion Summaries

The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's denial of petitioner's motion to reopen proceedings based on changed country conditions. The court did not find that "any reasonable adjudicator would be compelled to conclude" that al-Shabaab's presence in Somalia is materially different than existed in 2011 based on petitioner's evidence. Furthermore, the IJ did account for the emergence and growth of ISIS-Somalia in its determination, but ultimately determined that the "isolated references" in the record were insufficient to establish petitioner's claims. Finally, the IJ did consider petitioner's personal circumstances when determining whether the alleged changed country conditions were material. In this case, the IJ concluded that Westernized Somalis face no greater threat of harm than existed at the time of petitioner's prior proceedings in 2011, and petitioner failed to sufficiently show how his presence on the 2017 repatriation flight thrust him into "particular notoriety" thereby creating a greater risk of persecution. View "Mohamed v. Barr" on Justia Law

Silvestre-Gregorio, then age 16, entered the U.S. illegally in 2001. He was detained within weeks. At his removal hearing, he did not have an attorney but was assisted by an interpreter and a social worker. The interpreter spoke Spanish; Silvestre-Gregorio spoke little English and some Spanish; his native tongue was a regional dialect of Guatemala. He answered open-ended questions in Spanish, including where he was born and how he crossed the border. The IJ had to repeat some questions and explained to Silvestre-Gregorio his ability to appeal and his right to be represented by retained counsel. The IJ asked several times whether he would like time to find an attorney. Silvestre-Gregorio declined, saying that he wanted to finish his case that day. Silvestre-Gregorio was removed from the U.S. in June 2001. Silvestre-Gregorio returned to the U.S. in 2002. He accumulated convictions for domestic assault, public intoxication, theft, DUI, and driving without a license.In 2018, he was charged with unlawful reentry of a removed alien, 8 U.S.C. 1326(a). Silvestre-Gregorio argued that his 2001 removal violated his right to due process and could not be the basis for a section 1326 conviction. The Sixth Circuit affirmed the denial of the motion. Silvestre-Gregorio could understand the interpreter during his removal hearing and did not have a constitutional right to government-provided counsel or to be notified of discretionary relief (voluntary removal). View "United States v. Silvestre-Gregorio" on Justia Law

The Okeres, U.S. citizens, are trying to get their eight-year-old son from Nigeria to the United States. They applied for a “certificate of identity,” which validates the identity of a person living abroad who purports to be a U.S. citizen but has not presented enough evidence of citizenship to obtain a passport, 8 U.S.C. 1503(b). They sued, asserting that, after their son finally received a travel document from the State Department, he has been prevented from boarding a flight to the U.S. because the Consulate General refused to verify the certificate’s authenticity with the airlines with which they had booked flights for their son.The district court dismissed the Okeres’ complaint for lack of subject matter jurisdiction. The Seventh Circuit affirmed. The Okeres identified no legal authority compelling the Consulate General to verify the authenticity of the certificate to the airlines. None of the federal statutes the Okeres invoked confers jurisdiction. Nor do any of the provisions identified in the State Department’s Foreign Affairs Manual create individual rights or impose enforceable duties on a Consulate General when issuing a certificate of identity. The court stated that its decision was “most unsatisfying, for it is impossible to read the parties’ briefs without concluding that something else is going on here.” View "Okere v. United States" on Justia Law

The First Circuit denied Petitioner's challenge to an order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), holding that Petitioner was not entitled to relief on her claims.Specifically, the First Circuit held (1) the evidence in the record did not compel a finding that Petitioner was or will be persecuted because she was a Guatemalan woman, and therefore, Petitioner failed to establish that she was eligible for asylum; and (2) because Petitioner failed to establish her eligibility for asylum, her claims for withholding of removal and protection under the ACT necessarily failed to meet the more stringent standards. View "Pojoy-De Leon v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal. The panel held that petitioner waived review of the Board's discretionary denial of asylum relief by failing to contest this aspect of the Board's decision in his opening brief. The panel also held that the Board properly concluded that petitioner's proposed social group of "known drug users" was not legally cognizable based on lack of particularity under the standards set forth in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Even if the panel were to ignore the ambiguity of the term "known," "drug" and "user" are broad terms that cause the proposed group to lack definable boundaries and to be amorphous, overbroad, diffuse, or subjective. View "Minh P. Nguyen v. Barr" on Justia Law

In 2012, Rad and others were charged with acquiring penny stocks, “pumping” the prices of those stocks by bombarding investors with misleading spam emails, and then “dumping” their shares at a profit. Rad was convicted of conspiring to commit false header spamming and false domain name spamming under the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), 15 U.S.C. 7701(a)(2), which addresses unsolicited commercial email. The PSR recommended raising Rad’s offense level to reflect the losses inflicted on investors, estimating that Rad realized about $2.9 million in “illicit gains” while acknowledging that because “countless victims” purchased stocks, the losses stemming from Rad’s conduct could not “reasonabl[y] be determined.” Rad emphasized the absence of evidence that any person lost anything. Rad was sentenced to 71 months’ imprisonment. The record is silent as to how the court analyzed the victim loss issue. The Third Circuit affirmed. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), which renders an alien removable for any crime that “involves fraud or deceit” “in which the loss to the victim or victims exceeds $10,000.” The IJ and the BIA found Rad removable.The Third Circuit remanded. Rad’s convictions for CAN-SPAM conspiracy necessarily entail deceit under 8 U.S.C. 1101(a)(43)(M)(i). The second element, requiring victim losses over $10,000, however, was not adequately addressed. The court noted that intended losses, not just actual ones, may meet the requirement. View "Rad v. Attorney General United States" on Justia Law

In 2008, Homeland Security passed rules requiring that employers receive a favorable labor certification from Labor before obtaining a visa. Homeland Security and Labor jointly issued a new series of rules in 2015. Plaintiffs, a group of employers and associations whose members rely on H-2B visas, filed suit challenging Homeland Security's 2008 Rules and the joint 2015 Rules as exceeding the agencies' statutory authority.The Fourth Circuit held that there is standing to challenge the 2008 Rules but the challenge is time-barred; there is standing to challenge the 2015 Program and Wage Rules; and the 2015 Program and Wage Rules are valid exercises of Labor's implied delegation to rulemake as part of its duty as Homeland Security's chosen consulting agency. The court explained that this implied delegation is evident from the statutory circumstances in the Immigration and Nationality Act, including the requirement that Homeland Security engage in "consultation with appropriate agencies," the definition of H-2B, and Labor's rulemaking powers for similar visas. The court concluded that, while there are limits on which agencies Homeland Security can choose and on those agencies' ability to rulemake, Labor's 2015 Program and Wage Rules fall within both boundaries. View "Outdoor Amusement Business Association, Inc. v. Department of Homeland Security" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's determination that petitioner should be removed from the United States because he has been convicted of two or more crimes of moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii).The court held that petitioner's conviction for vehicular homicide in Florida contains the necessary mens rea to constitute a crime of moral turpitude. When a person deviates from the standard of care by operating a motor vehicle so recklessly that it is likely to cause death or great bodily harm, and, in fact, results in the killing of a human being, the court has little difficulty finding that he has exhibited the baseness in the duties owed to society that constitutes moral turpitude. Therefore, petitioner's conviction in Florida of vehicular homicide is categorically a crime involving moral turpitude, and he is removable under the controlling statute. View "Smith v. U.S. Attorney General" on Justia Law

The First Circuit denied Petitioner's petition for review of the decision of the Board of Immigration Appeals (BIA) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), holding that Petitioner was not entitled to relief.After the Department of Homeland Security initiated removal proceedings against him Petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under CAT. The immigration judge denied the petition, determining, as relevant to this appeal, that Petitioner suffered no persecution and that any alleged persecution was not caused by his membership in a particular social group. The BIA affirmed. The First Circuit affirmed, holding that Petitioner's claim failed because he did not prove a nexus between the alleged persecution and a statutorily protected ground. View "Marquez-Paz v. Barr" on Justia Law

Every 10 years, the U.S. undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” The Secretary of Commerce must “take a decennial census of population . . . in such form and content as he may determine,” 13 U.S.C. 141(a), and report to the President, who must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census, 2 U.S.C. 2a(a), applying the “method of equal proportions” formula to the population counts to calculate the number of House seats for each state.In July 2020, the President issued a memorandum to the Secretary, announcing a policy of excluding from the apportionment base aliens who are not in lawful immigration status. The President ordered the Secretary “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.”The Supreme Court vacated an injunction, prohibiting the Secretary from including the information needed to implement the President’s memorandum and directed dismissal of the lawsuits for lack of jurisdiction. The threatened impact of an unlawful apportionment on congressional representation and federal funding does not establish a “legally cognizable injury.” Any chilling effect from the memorandum dissipated upon the conclusion of the census. The Secretary has not altered census operations in a concrete manner that will predictably change the count. Any prediction of how the Executive Branch might eventually implement the general statement of policy is conjecture. It is unclear how many aliens have administrative records that would allow the Secretary to avoid impermissible estimation; whether the Census Bureau can timely match its records to census data; and to what extent the President might direct the Secretary to “reform the census” to implement his general policy. The plaintiffs suffer no concrete harm from the challenged policy, which does not require them “to do anything or to refrain from doing anything.” View "Trump v. New York" on Justia Law