Justia Immigration Law Opinion Summaries

Wambura, a citizen of Tanzania, was a lawful U.S. permanent resident. Wambura pled guilty to a conspiracy to fraudulently secure a mortgage and obtain federally subsidized rent using a stolen identity. He was sentenced to 60 months' imprisonment and ordered to pay $434,867.65 in restitution. Removal proceedings (8 U.S.C. 1227(a)(2)) asserted that Wambura had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct and had been convicted of an aggravated felony relating to an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000.Wambura applied for asylum and withholding of removal and for protection under Convention Against Torture. The IJ concluded that Wambura was removable based on his aggravated felony and moral turpitude convictions and, because of those convictions, was ineligible for cancellation of removal or asylum. Due to the length of his sentence, Wambura was ineligible for withholding of removal. Pursuing deferral of removal under CAT, Wambura testified about his involvement with an opposition political party and claimed that his father told him he is being followed by the secret police. The IJ asked for corroborating evidence. Wambura claimed he was unable to provide it because he was unable to access his email account. The BIA affirmed a denial of relief.The Fourth Circuit remanded. Once the requirements for removability are met, the government does not have the burden to prove that the amount of loss caused by the fraud conviction is $10,000 or more for purposes of asylum and withholding of removal. An IJ is not required to provide an alien with advance notice of the need to offer corroborating evidence but must make a finding as to whether such corroborating evidence was reasonably available if it was not provided. View "Wambura v. Barr" on Justia Law

Statewide filed three actions alleging that certain aspects of DHS's current administration of the immigration-bond system violate the Administrative Procedure Act (APA) and Statewide's right to due process under the United States Constitution. The district court dismissed Statewide I for failure to state a claim and lack of jurisdiction, Statewide II on DHS's motion for judgment on the pleadings, and Statewide III for failure to state a claim.In Statewide I, plaintiffs sued DHS to prevent its collection on breached immigration bonds before the resolution of Statewide's pending untimely appeals; in Statewide II, plaintiffs sued DHS to prevent collection on breached immigration bonds because DHS provided allegedly defective Notices to Appear and Notices to Produce Alien before issuing bond breach determinations; and in Statewide III, plaintiffs sued DHS for rejecting appeals of bond breach determinations that Statewide alleges were timely filed.The DC Circuit affirmed the district court's dismissal of the APA claims in Statewide I and III because the challenged DHS actions are consistent with the pertinent regulations. The court also affirmed the district court's dismissal of the due process claims in Statewide I, II, and III because the multiple means DHS provides to contest final bond breach determinations afford Statewide constitutionally sufficient process. View "Statewide Bonding, Inc. v. Department of Homeland Security" on Justia Law

The Fifth Circuit denied the petition for review of the BIA's adverse credibility determination, decision to deny withholding of removal relief, denial of petitioner's claim under the Convention Against Torture (CAT), and denial of petitioner's motion to remand for reconsideration.The court held that substantial evidence supported the agency's adverse credibility determination where the IJ identified numerous omissions and inconsistencies, several of which petitioner does not dispute occurred. In regard to withholding removal, at bottom, the court agreed with the Board's conclusion that petitioner's first proposed social group—Honduran women who have been targeted for and resisted gang recruitment after the murder of a gang-associated partner—is not cognizable. The court also agreed with the Board that petitioner failed to show her membership in her second proposed social group: Honduran women in domestic relationships who are unable to leave or are viewed as property by virtue of their position in a domestic relationship. In regard to petitioner's CAT claim, the court rejected petitioner's claim that the Board erred by failing to meaningfully consider all the evidence submitted and found the Board's conclusion that petitioner did not prove requisite state action is supported by substantial evidence. Finally, the Board did not engage in impermissible factfinding and the Board did not abuse its discretion in not remanding the case for consideration of new evidence. View "Suate-Orellana v. Barr" on Justia Law

Khan was admitted to the U.S. as a legal permanent resident in 2000. In 2006, he pleaded guilty to possession of less than one-half ounce of marijuana. He was not then subject to removal for “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. 1227(a)(2)(B)(i). In 2010, Khan was convicted for two counts of larceny in the third degree under Connecticut law, which subjected him to removal as “convict[ions] of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” 8 U.S.C. 1227(a)(2)(A)(ii).Khan sought cancellation of removal, which required that he resided in the U.S. continuously for seven years after having been admitted, 8 U.S.C. 1229b(a)(2). The “stop-time rule” stops the accrual of continuous residence when the noncitizen “has committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible.” Khan argued the rule did not apply because Connecticut later decriminalized the marijuana offense. His conviction had been vacated. The IJ disagreed, reasoning that the vacatur was due to a “post-conviction event,” rather than “on the basis of a procedural or substantive defect in the underlying proceeding.” The BIA affirmed. The Third Circuit denied a petition for review. The stop-time rule still applies if, post-conviction, the offense has been decriminalized and the conviction vacated; Khan did not satisfy the continuous-residence requirement for eligibility for cancellation of removal. View "Khan v. Attorney General United States" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed asylum and withholding of removal on the grounds that she suffered persecution as a member of a particular social group: "married El Salvadoran women in a controlling and abusive domestic relationship."The Fourth Circuit dismissed the petition in part because the court lacked jurisdiction over petitioner's numerous proposed social groups not presented to the agency. The court denied the petition for review on petitioner's asylum claim, holding that the Attorney General's ruling in Matter of A-B- is not arbitrary and capricious, and petitioner's social group runs afoul of the anti-circularity requirement. In this case, "married El Salvadoran women in a controlling and abusive domestic relationship" did not "exist independently of the harm asserted." Rather, the group was defined in terms of the very persecution alleged. Because petitioner's asylum claim fails, her claim for statutory withholding of removal must also fail under the heightened standard. Finally, petitioner's CAT claim failed because petitioner failed to establish that it is more likely than not that she would be tortured upon returning to El Salvador. View "Amaya-De Sicaran v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT. View "Medina-Rodriguez v. Barr" on Justia Law

Morales became a lawful U.S. permanent resident in 2001. In 2006 she traveled to Guadalajara and stayed for several months. She flew to Tijuana and called her cousin, Guadalupe, a U.S. citizen living in California. Guadalupe agreed to pick Morales up in Tijuana. Guadalupe arrived with her boyfriend, Ruiz, a U.S. citizen, and a Los Angeles police officer. Morales was with her cousin Alisa and Alisa’s sons. Jorge, age five, was to travel to Los Angeles. Alisa gave Morales an envelope with a birth certificate inside. Morales claims she never examined it. At the border, Customs Officers determined the identities and citizenship of the three adults. Guadalupe said the boy was her cousin and presented a birth certificate, which had been issued in California for Jonathan Clemente. Officer Banuelos testified later that Morales had “insist[ed] that the birth certificate belonged to the child” and that the four had traveled from Los Angeles and back together; “I couldn’t get a straight answer" concerning the parents. Jorge spoke no English and stated that his name was Jorge Navarro. Another officer completed an “I-213” form, indicating that Morales had admitted that she had obtained a fraudulent birth certificate and attempted to smuggle Jorge into the U.S.Morales was charged as ineligible for admission, having knowingly encouraged, induced, assisted, abetted, or aided an undocumented alien, to enter or try to enter the U.S, 8 U.S.C. 1182(a)(6)(E)(i). An IJ found that the officers’ testimony was credible, that Morales’s testimony was not, and that Morales was removable “by clear, unequivocal, and convincing evidence.” The BIA dismissed her appeal. The Sixth Circuit denied a petition for review, rejecting challenges to the sufficiency of the evidence. View "Bribiesca v. Barr" on Justia Law

Brito, in the U.S. illegally, was arrested in 2001, after delivering heroin to an undercover officer; he admitted that he had been selling heroin for more than a year. After his release from prison, he was removed to the Dominican Republic. Brito returned, illegally. In 2007, he was arrested for heroin crimes. Brito pleaded guilty to two state offenses, three federal drug crimes, and illegal reentry. After his imprisonment, Brito was again removed in 2013. His first child had been born around 2007; his wife stayed in New York to care for their kids, who apparently have learning disorders. Brito returned, illegally and was arrested.Brito pleaded guilty to illegal reentry. The Sentencing Guidelines recommended 70-87 months’ imprisonment. Brito claimed that he had committed no crimes since his children were born and that he had devised a plan to support them from the Dominican Republic. The court stated that it had “listened very carefully” and had read all of the written submissions. After reciting Brito’s criminal history, the judge asked: “Is there anything incorrect?” Brito’s counsel replied: “I wasn’t making a timeline ... if it tracks what’s in the Presentence Report, then, yes, it is.” After weighing the 18 U.S.C.3553(a) factors, the court sentenced Brito to 70 months. The Third Circuit vacated. In restating Brito’s criminal history, the judge erroneously implied that his criminal career continued after his daughter was born. That factual mistake undermined his argument for leniency. The error was plain. View "United States v. Brito" on Justia Law

The Ninth Circuit denied separate petitions for review filed by Velasquez-Rios and Desai, holding that an amendment to section 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. 1227(a)(2)(A)(i).The panel rejected petitioners' contention that the BIA erred by relying on McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina's state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California's reclassification of Diaz's two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. 841. Relying upon McNeill, the panel held that the statute called for a backward-looking inquiry to the initial date of conviction, rather than the current state of California law, and that the triggering event under section 841 was when the two felony drug offenses had "become final." The panel rejected petitioners' arguments and further explained that its approach aligns with the Supreme Court's admonishments that federal laws should be construed to achieve national uniformity, and explained that its decision avoids the "absurd" results described in McNeill that would follow from petitioners' approach, under which an alien's removability would depend on the timing of the immigration proceeding. Finally, the panel held that federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation. View "Velasquez-Rios v. Barr" on Justia Law

A noncitizen who enters this country without inspection or admission, but who later receives Temporary Protected Status (TPS), may adjust her status to Lawful Permanent Resident because a TPS recipient is deemed inspected and admitted for purposes of 8 U.S.C. 1255(a).The Eighth Circuit held that section 1254a(f)(4) provides that TPS recipients "shall be considered as being in, and maintaining, lawful status as a nonimmigrant" for purposes of adjusting their status under section 1255. The court explained that those in nonimmigrant status are necessarily inspected and admitted. By operation of section 1254a(f)(4), then, TPS recipients are considered "inspected and admitted" under section 1255(a), regardless of whether they entered the United States without inspection. Therefore, USCIS's contrary interpretation conflicts with the plain meaning of the INA and is therefore unlawful. View "Velasquez v. Barr" on Justia Law