Justia Immigration Law Opinion Summaries

On rehearing en banc, the Fourth Circuit reversed the judgment and remanded with instructions to grant plaintiff's motion to set aside the agency's final action denying plaintiff special immigrant juvenile (SIJ) status. In this case, USCIS interpreted 8 U.S.C. 1101(a)(27)(J) (i) to require a permanent custody order and thus denied plaintiff's SIJ application, dismissing his administrative appeal.The court held that the agency's rejection of plaintiff's SIJ provision -- that clause (i) requires a permanent custody order -- is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Because the agency's interpretation of clause (i) was not in accordance with law, the court remanded to the agency to take another look at plaintiff's SIJ application. View "Perez v. Cuccinelli" on Justia Law

Ragbir, a green card holder from Trinidad and Tobago, was convicted of mortgage fraud in 2000. On his attorney’s advice, Ragbir agreed that the actual loss was $350,000-$500,000, believing that his convictions alone made him deportable. The Third Circuit affirmed Ragbir’s convictions and sentence. Ragbir never sought post-conviction relief. DHS commenced removal proceedings. Ragbir then learned that his stipulation to a loss of more than $10,000 made him deportable. Ragbir’s immigration counsel represented that an attorney would be hired to attempt to vacate the underlying convictions. Ragbir still did not pursue a collateral attack. The IJ ordered him removed; the BIA and Second Circuit upheld the decision. In the meantime, Ragbir married an American citizen and obtained an immigrant visa. The BIA denied a motion to reopen. DHS eventually elected not to renew its discretionary stay of removal. Ragbir then challenged his detention, asserting that his conviction should be overturned because jury instructions given at his trial were erroneous in light of later Supreme Court rulings and asserting ineffective assistance of counsel. The Third Circuit affirmed the denial of the petition. Ragbir had the ability to bring all his claims at least six years before his 2012 petition for coram nobis. He provides no sound reason for his delay. View "Ragbir v. United States" on Justia Law

Alfredo Juarez appealed the denial of his motion for postconviction relief. In 2012, Juarez pleaded guilty to one class 1 misdemeanor count of possessing a schedule V controlled substance, in exchange for the dismissal of a charge of felony possession. As stipulated in the plea agreement, he received a sentence to two years of drug court probation. At the time of his offense and plea, the defendant was a citizen of Mexico and a lawful permanent resident of the United States. A month after his sentencing, the defendant violated the conditions of his probation, received a suspended two-day jail sentence, and two weeks later, after violating the conditions of that suspension, served those two days in jail. After he received an additional three-day jail sentence for again violating his probation, federal Immigration Customs and Enforcement (“ICE”) officers began removal proceedings. Defendant was eventually deported to Mexico. In October 2012 and January 2013, defendant filed motions for postconviction relief, challenging the effectiveness of his plea counsel’s representation and, as a result, the constitutional validity of his guilty plea. Over a period of three days, the district court heard these motions, including the testimony of defendant, taken by video over the internet; the testimony of his plea counsel; and the testimony of an immigration attorney retained by him in 2011, prior to his acceptance of the plea agreement. With regard to his challenge to the effectiveness of his counsel, the district court found both that defense counsel adequately advised his client concerning the immigration consequences of his plea of guilty to misdemeanor drug possession and that, in any event, there was no reasonable probability Juarez would not have taken the plea. The intermediate appellate court similarly found that counsel’s advice fell within the range of competence demanded of attorneys in criminal cases, but as a result of that finding, the appellate court considered it unnecessary to address the question whether counsel’s performance prejudiced Juarez. The Colorado Supreme Court thus concluded that because Juarez conceded he was advised and understood that the misdemeanor offense to which he pleaded guilty would make him “deportable,” defense counsel’s advice concerning the immigration consequences of his plea correctly informed him of the controlling law and therefore did not fall below the objective standard of reasonableness required for effective assistance concerning immigration advice. The judgment of the court of appeals was therefore affirmed. View "Juarez v. Colorado" on Justia Law

Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenged his conviction for unlawfully re-entering the United States after a prior removal. That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process required that, before the United States can use a defendant’s prior removal to prove a 8 U.S.C. 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. In light of that, Congress provided a mechanism in section 1326(d), for a defendant charged with a section 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C. 1225(b)(1)(D), the section 1326(d) mechanism applied only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. "Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined - generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed." Applying the Supreme Court’s reasoning in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Tenth Circuit concluded section 1225(b)(1)(D) was unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process. Without section 1225(b)(1)(D), the Court reviewed Gonzalez-Fierro's 2009 expedited removal order, and concluded he failed to establish that removal was fundamentally unfair. On that basis, the Court affirmed Gonzalez-Fierro's section 1326(a) conviction. View "United States v. Gonzalez-Fierro" on Justia Law

Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal.The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one. View "Rosa v. Attorney General United States" on Justia Law

The First Circuit dismissed Petitioner's petition for review of a decision of the Bureau of Immigration Appeals (BIA) rejecting reopening and reconsideration of denial of relief from removal, holding that the limitations in 8 U.S.C. 1252(a)(2)(C)-(D) divest this Court of jurisdiction over the petition.Petitioner, a native and citizen of Sudan, was removed from the United States after his robbery conviction. Petitioner later filed a motion to reopen removal proceedings as to his requests for relief based on purported changed country conditions in Sudan. The motion was filed outside the ninety-day deadline for motions to reopen and the thirty-day deadline for motions to reconsider. The immigration judge denied the motion. The BIA dismissed Petitioner's appeal, concluding that 8 C.F.R. 1003.23(b)(1) prevented Petitioner from filing his motion to reopen and, alternatively, that the motion was denied in the exercise of the BIA's discretion. The First Circuit dismissed Petitioner's petition for review, holding that because no questions of law or constitutional claims were presented by Petitioner's challenge to the BIA's alternative discretionary holding, the jurisdictional bar set forth under 8 U.S.C. 1252(a)(2)(C)-(D) applied. View "Daoud v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner removable based on his robbery conviction under Oregon Revised Statutes section 164.395.The panel held that section 164.395 is not a categorical theft offense and therefore not an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act. The panel agreed with petitioner that section 164.395 exceeds the generic definition of a theft offense because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. Because the panel held that the statute was overbroad, the panel moved to the next step of the analysis: determining whether the statute is divisible, such that application of the modified categorical approach is appropriate. The panel held that Oregon's third-degree robbery statute is indivisible. View "Lopez-Aquilar v. Barr" on Justia Law

In 1992, Dohou came from Benin to the U.S. on a visitor’s visa. He became a lawful permanent resident. More than a decade later, he was convicted of conspiring to traffic marijuana, an aggravated felony. DHS served him with a notice to appear at a date and time to be set later. After a hearing, the IJ ordered Dohou removed. He never appealed to the BIA or sought review. Agents repeatedly tried to take Dohou to the airport for removal. He resisted. Dohou unsuccessfully moved to dismiss his indictment for hindering his removal, 8 U.S.C. 1253(a)(1)(A)–(C), asserting that the absence of a date and time on the notice to appear deprived the IJ of authority to order removal and ineffective assistance of counsel. The court reasoned that Dohou had been convicted of an aggravated felony, 8 U.S.C. 1252(a)(2)(C), which stripped it of jurisdiction over his collateral attack on the removal order.The Third Circuit vacated. A removal order that was never reviewed by an Article III judge remains subject to collateral attack in a hindering-removal prosecution based on that order; the original removal order was not “judicially decided,” 8 U.S.C. 1252(b)(7)(A). It is not enough that Dohou could have sought judicial review; section 1252(a)(2)(C), which sometimes strips jurisdiction over direct review of removal orders, does not apply to collateral attacks. Dohou’s ineffective-assistance claim requires fact-finding and the district court must decide whether a statutory- or prudential-exhaustion doctrine bars relief. View "United States v. Dohou" on Justia Law

The Fourth Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of his application for asylum. The court held that the BIA's ruling, that petitioner's proposed social group -- merchants in the formal Honduran economy -- did not constitute a particular social group under the Immigration and Nationality Act, was not manifestly contrary to the law nor an abuse of discretion. View "Canales-Rivera v. Barr" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's rulings determining that petitioner's testimony was not credible. The court held that the Baltimore IJ failed to give petitioner an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record. The court declined to address whether the adverse credibility determination and denials of petitioner's applications for withholding of removal and relief under the Convention Against Torture were erroneous. Accordingly, the court vacated the BIA's summary affirmance of the IJ's rulings and remanded for reconsideration of petitioner's asylum claim, which included affording her an opportunity to testify and appropriate consideration of that testimony as well as any factual determinations. View "Atemnkeng v. Barr" on Justia Law