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The Fifth Circuit withdrew its prior opinion in order to eliminate reference to United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), given that decision's abrogation by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The court upheld Senate Bill 4 (SB4), a Texas law that forbids "sanctuary city" policies throughout the state, and held that SB4's provisions, with one exception, did not violate the Constitution. The court held that none of SB4's provisions conflict with federal law where the assistance-cooperation, the status-inquiry, and the information-sharing provisions were not conflict preempted. The court affirmed the district court's injunction against enforcement of Section 752.053(a)(1) only as it prohibits elected officials from "endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws." The court held that plaintiffs failed to establish that every seizure authorized by the ICE-detainer mandate violated the Fourth Amendment; the "materially limits" phrase had a clear core and was not void for vagueness; and plaintiffs' "commandeering" argument failed. Accordingly, the court vacated in large part the district court's preliminary injunction and remanded with instructions to dismiss the vacated provisions. View "City of El Cenizo v. Texas" on Justia Law

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The Ninth Circuit granted a petition for review of the BIA's holding that 8 U.S.C. 1231(a)(5) deprived the immigration court of jurisdiction to resolve petitioner's motion to reopen. 8 U.S.C. 1229a(b)(5) authorizes immigration judges to order non-citizens removed from the country in absentia. 8 U.S.C. 1231(a)(5) applies to non-citizens who (1) are ordered removed, (2) leave the United States while under the order of removal, and (3) reenter the country illegally. Determining that it had jurisdiction over the petition, the panel held that section 1231(a)(5) does not bar immigration judges from entertaining a motion to reopen an in absentia removal order under section 1229a(b)(5)(C)(ii). The panel also held that an individual placed in reinstatement proceedings under section 1231(a)(5) cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself, she retains the right, conferred by section 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered in absentia, based on lack of notice, by filing a motion to reopen "at any time." Therefore, the panel remanded so that the agency could decide petitioner's motion to reopen on the merits. View "Miller v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of cancellation of removal. The panel held that petitioner's complaints of poor memory, without evidence of an inability to understand the nature and object of the proceedings, were insufficient to show mental incompetency; the standard for mental incompetency as set by the BIA in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), and endorsed by this court in Calderon-Rodriguez v. Sessions, 878 F.3d 1179 (9th Cir. 2018), and Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017), was a stringent one; and, in this case, any memory loss petitioner may have experienced did not prejudice his immigration proceedings because his application, not his poor memory, was the basis for the IJ's denial of cancellation of removal. View "Salgado v. Sessions" on Justia Law

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The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

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The Second Circuit denied a petition for review of an order of removal based on petitioner's conviction for possession of a controlled substance in the fifth degree in violation of New York Penal Law. The court rejected petitioner's argument that 8 U.S.C. 1101(a)(43)(T) did not set forth the elements of the generic federal crime for failure to appear, because the agency's interpretation, which was contrary to petitioner's interpretation, was entitled to deference; petitioner's related mens rea argument was also without merit; a conviction for failure to appear was an aggravated felony; and thus the BIA did not err in finding that petitioner was ineligible for cancellation of removal. View "Perez Henriquez v. Sessions" on Justia Law

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The Fifth Circuit denied in part and granted in part a petition for review of the BIA's dismissal of an appeal of the IJ's denial of relief. The court held that the BIA erred in requiring petitioner to prove past persecution to establish a claim based on a well-founded fear of future persecution and in recharacterizing petitioner's claimed social group as those who might defy gangs, rather than as female activists or human rights defenders from Honduras who actively protest the Maras. The court affirmed in all other respects, remanding for further proceedings. View "Cabrera v. Sessions" on Justia Law

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Yahya entered the U.S. on a six-month tourist visa in either 2000 or 2001 and overstayed. According to Yahya, in 2003, he voluntarily appeared to register in the National Security Entry-Exit Registration System and was placed in removal proceeding (8 U.S.C. 1227(a)(1)(B)). He accepted an order of voluntary departure but did not depart. He claims he did not want to put his eight-month-old, American-born son on a 24-hour flight to Indonesia. More than 12 years later, Yahya moved to reopen his removal proceedings. Because the 90-day deadline had passed, he cited an exception, raising a claim for asylum “based on changed country conditions arising in the country of nationality,” 8 U.S.C. 1229a(c)(7)(C)(i), (ii), claiming that he feared that his “moderate” Islamic faith would make him a target for “radical fundamentalist Islamic groups” in Indonesia. The BIA upheld the IJ’s denial of the motion. The Seventh Circuit denied a petition for review. The BIA properly compared objective evidence of religious violence in Indonesia from 2003, the time of Yahya’s original proceedings, to the evidence he presented now. He has evidence of only one attack against moderate Muslims between 2003 and 2016, which is not sufficient to show a material change in country conditions. View "Yahya v. Sessions" on Justia Law

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Perez grew up in Honduras. When Perez was 14, a street gang told him to join or “suffer the consequences.” Perez moved. Later that year, the gang confronted Perez again. Perez ran away and dropped out of school. Later, Perez witnessed the murder of a friend whose brother belonged to a rival gang. Perez was beaten and an unidentified person fired shots in the direction of Perez and his friends. Perez reported these events to the police, who did nothing. In 2008 Perez was admitted to the U.S. as a lawful permanent resident. He returned to Honduras in 2010 for a vacation. He attended a neighborhood festival and was recognized by gang members. Perez ran and cut short his vacation. Three years later, in Indiana, Perez pleaded guilty to engaging in sexual misconduct with a minor. An IJ found Perez removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(A), and noted that Perez was ineligible for asylum and withholding of removal because his conviction was a “particularly serious crime.” He sought deferral of removal under the Convention Against Torture. Family members testified about their fear that Perez would be killed if he were removed to Honduras. The BIA affirmed the denial of relief. The Seventh Circuit remanded. The BIA erred by truncating the crucial factual inquiry about Perez’s risk of torture if he is returned to Honduras and by asking the wrong question with respect to internal relocation. View "Perez v. Sessions" on Justia Law

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The Eleventh Circuit denied a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for asylum. In Mejia v. Sessions, 866 F.3d 573, 584 (4th Cir. 2017), the court recently held that an alien subject to a reinstated order of removal may not apply for asylum. Mejia's fact pattern was substantially similar to petitioner's where the alien had grounds to apply for asylum prior to her initial removal. The court held that petitioner's arguments were inconsistent with the plain terms of 8 U.S.C. 1158(a)(2)(D) and were contrary to Mejia's holding that section 1231(a)(5) attached a categorical prohibition against applying for asylum to aliens subject to reinstated orders of removal. View "Lara-Aguilar v. Sessions" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's determination that petitioner was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). When petitioner applied for NACARA special rule cancellation, the BIA interpreted the physical presence requirement as running from petitioner's most recent disqualifying conviction, rather than his earliest, and so held him ineligible for NACARA cancellation of removal. The panel held that the BIA's determination of NACARA was reasonable and was therefore entitled to deference. View "Campos-Hernandez v. Sessions" on Justia Law