Justia Immigration Law Opinion Summaries

After petitioner was ordered removed by DHS because he violated the terms of his admission under the Visa Waiver Program, he filed a motion to reopen. An ICE Deputy Field Officer Director denied petitioner's motion and petitioner appealed.The Fifth Circuit dismissed the petition for lack of jurisdiction because it called for judicial review of a denial of a motion that petitioner was not entitled to file. The court held that, as a Visa Waiver Program participant, petitioner was limited to contesting his removal on the basis of an application for asylum and he has conceded that he was not seeking asylum. Therefore, the statute on its face barred petitioner from challenging his deprivation of a hearing by means of a motion to reopen. Furthermore, petitioner's reliance on the carve-out in 8 U.S.C. 1231(a)(5) was unavailing. View "Lavery v. Barr" on Justia Law

Plaintiff filed suit under the Administrative Procedure Act (APA), challenging the denial of his U visa petition. The district court dismissed plaintiff's action after determining that section 701(a)(2) of the APA precluded judicial review.The Ninth Circuit held that section 701(a)(2) -- which precludes judicial review of actions "committed to agency discretion by law," where there is no judicially manageable standard by which a court can judge how the agency should exercise its discretion -- does not bar judicial review of plaintiff's APA claims. The court explained that 8 U.S.C. 1101(a)(15)(U) and 8 U.S.C. 1184(p) provide meaningful standards by which to review USCIS's denial of plaintiff's U visa. Furthermore, after sua sponte consideration, the panel held that section 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which bars judicial review of certain immigration decisions or action, does not strip jurisdiction over plaintiff's action. View "Perez Perez v. Wolf" on Justia Law

Maslenjak, an ethnic Serb and native of Bosnia, came to the U.S. as a refugee, claiming she and her family feared persecution in Bosnia because her husband had evaded conscription into the Serbian army. In fact, Maslenjak’s husband was an officer in a unit implicated in war crimes. Maslenjak ultimately obtained naturalization. She was later convicted of knowingly procuring her naturalization contrary to law, 18 U.S.C. 1425(a) and of knowingly using an unlawfully issued certificate of naturalization, 18 U.S.C. 1423. The Sixth Circuit affirmed, rejecting arguments that the court improperly instructed the jury that her false statements need not be material in order to convict or erroneously instructed that the jury could also convict Maslenjak if it found that she lacked good moral character. The Supreme Court reversed, holding that lies told in the immigration process must be material and have “played some role in [the] acquisition of citizenship.” The Court instructed that the government could satisfy this materiality element by proving beyond a reasonable doubt that the facts the applicant misrepresented would themselves disqualify her from receiving citizenship or that the applicant’s false statements hid facts that, if known, would have triggered an investigation that likely would have led to the discovery of other disqualifying facts. The Sixth Circuit remanded to the district court. The government has not proven beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak; the instructional error was not harmless. View "United States v. Maslenjak" on Justia Law

The Second Circuit denied the petition for sua sponte reopening of petitioner's removal proceedings pending the outcome of his U-visa application, because petitioner's U-visa application has been denied.However, the court granted the petition for review of the BIA's denial of petitioner's motion to suppress evidence of petitioner's alleged alienage, finding that he made a prima facie showing of an egregious violation of his Fourth Amendment rights. In this case, petitioner established a prima facie case that his arrest was racially motivated and therefore constituted an egregious violation of his constitutional rights. Accordingly, the court remanded for further proceedings. View "Rodriguez v. Barr" on Justia Law

George Job appealed the denial of his motion to withdraw his 2008 guilty plea to the charge of aggravated assault. Job argued the district court abused its discretion by determining a manifest injustice did not result from a 2010 resentencing following the revocation of his probation. He contended the resentencing was illegal and transformed his original non-deportable offense into a deportable offense. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Job" on Justia Law

The Ninth Circuit granted a petition for review of an ICE order reinstating petitioner's prior removal order. Determining that it had jurisdiction, the panel held that petitioner timely challenged the order reinstating his prior removal order.Based on In Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), the panel held that petitioner has shown a gross miscarriage of justice. In this case, there was no valid legal basis for petitioner's removal order at the time of its execution in 2008 because the conviction on which it had been based had been expunged in 1999. Therefore, the panel held that a collateral attack on petitioner's prior removal order was appropriate in this case. The panel also held that there was no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice. The panel did not reach petitioner's due process and regulatory arguments. View "Vega-Anguiano 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 removeable. The panel held that petitioner's prior conviction for first degree unlawful imprisonment under Hawaii Revised Statutes 707-721(1) is categorically a crime involving moral turpitude (CIMT) that made him removable. Applying the categorical approach, the panel explained that the Hawaii statute requires proof that the defendant knew that his actions would expose another person to a risk of serious bodily injury, and the panel's decision accords with the decisions of its sister circuits. View "Fugow v. Barr" on Justia Law

8 U.S.C. 1231(a)(5) bars reopening a removal order that has been reinstated following an alien's unlawful reentry into the United States. Petitioner filed a motion to reopen his 2008 removal proceeding, which the IJ denied. The BIA then denied as moot petitioner's requests for equitable tolling and sua sponte reopening and dismissed his appeal.The Ninth Circuit held that, because petitioner's 2008 removal order has been reinstated, the BIA properly concluded that section 1231(a)(5) deprived it of jurisdiction to entertain his motion to reopen. The panel explained that Morales-Izquierdo v. Gonzales, which stated that reinstatement creates no new obstacles to attacking the validity of a prior removal order, and Miller v Sessions, which held that an individual placed in reinstatement proceedings retains the right conferred by section 1229a(b)(5)(C)(ii), to seek rescission of an in absentia order, were materially distinguishable from petitioner's case. Finally, the panel rejected petitioner's claim that incompetence raised questions similar to abstentia, and noted that even this harsher legal regime offered avenues of relief. Accordingly, the court denied the petition for review of the BIA's decision. View "Padilla Cuenca v. Barr" on Justia Law

Whether a conviction for a particular state offense qualifies as a basis for removability as an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii) is a question of law under de novo review. The Eighth Circuit denied a petition for review of the BIA's final order of removal. The BIA granted DHS's appeal of an IJ's order granting petitioner deferral of removal under the Convention Against Torture (CAT).The Eighth Circuit held that defendant's conviction for willful injury causing bodily harm was a crime of violence in satisfaction of 18 U.S.C. 16(a) and a valid basis for removal under 8 U.S.C. 1227(a)(2)(A)(iii) because it was impossible to cause bodily injury without applying the force necessary to cause the injury. The court held that the BIA conducted a logical, clear error analysis and reached a permissible conclusion. View "Jima v. Barr" on Justia Law

Lopez was born in Mexico in 1974, His mother, born in Mexico, acquired U.S. citizenship at birth through her mother. Mother entered the U.S. in 1978 and received a certificate of citizenship in 1990. Lopez was admitted to the U.S. as a lawful permanent resident in 1985. In 2009, he was convicted of drug crimes and was sentenced to 122 months’ imprisonment. In 2018, DHS began removal proceedings, alleging that Lopez was removable under 8 U.S.C. 1227(a)(2)(A)(iii); (a)(2)(B)(i). Lopez maintained that the law at the time of his birth (8 U.S.C. 1401; 1431–32) that prevented him from automatically deriving citizenship violated the Equal Protection Clause. The law denied automatic citizenship to children born abroad to one citizen non-resident parent and one noncitizen parent unless the citizen parent met a physical presence requirement. An IJ declined to consider the equal protection challenge and ruled that Lopez was removable. The BIA affirmed. The Seventh Circuit denied a petition for review, finding that the statute has a rational basis, so there is no equal protection violation. Lopez did not maintain that he is a member of a suspect or protected class or that his fundamental rights were at stake. The legislation was aimed at preventing the perpetuation of U.S. citizenship by citizens born abroad who remain there, or who may have been born in the U.S. but who go abroad as infants and do not return to this country. View "Ramos v. Barr" on Justia Law