Justia Immigration Law Opinion Summaries

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The Ninth Circuit granted the petition for review of the BIA's denial of two motions to reopen petitioner's removal proceedings. Petitioner sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing. The panel held that it had jurisdiction over petitioner's case because, absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA. On the merits, the panel held that the BIA abused its discretion in denying the appeal of a motion to reopen, where the IJ in the underlying removal proceeding ordered petitioner removable in absentia on the basis of an amended notice to appear. In this case, the in absentia removal order was not supported by substantial evidence because the record provided no evidence of proper service of the amended notice to appear, as required by due process, and the IJ ordered petitioner removed based on admissions to the charges for which she did not receive notice. View "Diaz Martinez v. Barr" on Justia Law

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Defendant was charged with driving under the influence of alcohol and obtained a $35,000 bond for his release from custody. The surety promised to assure Defendant’s appearance for arraignment. The contract stated that, if Defendant left the jurisdiction, he would “voluntarily return” and “waive extradition.” On the day of the arraignment, Defendant's indemnitor informed the surety Defendant told her he was in Mexico. The court forfeited the bail bond. Under Penal Code 1305(c), the court was required to vacate the forfeiture if Defendant appeared in court, either voluntarily or in custody, within 180 days. The court extended the appearance period by six months. The surety then moved to vacate the forfeiture and exonerate the bond or to toll or extend time, arguing that Defendant was located in Mexico and “subject to “constructive custody,” having obtained a Mexican passport and applied for a U.S. visa. The surety contended the People were imposing improper conditions, including a requirement that the surety pay for extradition ($50,000). The surety argued Defendant was in effect detained as a result of immigration laws that precluded his reentry. The People argued they could not extradite Defendant on a misdemeanor charge and that he was not detained but left the country voluntarily. The court of appeal affirmed summary judgment against the surety, rejecting an argument that Defendant suffered from a “temporary disability” under Penal Code 1305(e), View "People v. The North River Insurance Co." on Justia Law

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The Ninth Circuit denied petitions for review of the BIA's orders dismissing petitioner's appeal of the IJ's denial of his application for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA) and denial of petitioner's requests to reopen his removal proceedings so that he could seek a waiver of inadmissibility to obtain a U visa. The panel noted that petitioner acknowledged that his petition with respect to adjustment of status is controlled by Roman-Suaste v. Holder, which held that convictions under California Health and Safety Code section 11359 categorically constitute drug trafficking aggravated felonies under the INA. Therefore, petitioner was not statutorily eligible for adjustment of status. In removal proceedings commenced against a non-citizen after the non-citizen has already entered the country, the panel held, in light of Matter of Khan, that an IJ does not have the authority to grant the non-citizen a U visa waiver of inadmissibility under 8 U.S.C. 1182(d)(3)(A)(ii). The panel agreed with the district court that immigration judges lack the authority to consider a request by a petitioner for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of the Act. The panel explained that Matter of Khan was entitled to deference where, as here, the relevant statutory provisions were ambiguous and the holding was reasonable. View "Man v. Barr" on Justia Law

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Petitioner Santos Raul Escobar-Hernandez has filed a petition for review of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). The petition’s underlying facts rest on Petitioner’s testimony, which the immigration judge found to be credible. Petitioner is a native and citizen of El Salvador and entered the United States without a valid entry document. He fled El Salvador after he was assaulted by two men, resulting in injuries requiring medical treatment. The assault occurred when the men, one named "Nelson," noticed some graffiti critical of a political party on a fence near Petitioner’s home. Although Petitioner was not politically active and told the men he did not paint the graffiti, Nelson said Petitioner was responsible for it because it was on his house and demanded he remove it. When Petitioner responded that he could not pay for removal, the men hit him and threatened to kill him. Petitioner was unsure if the men assaulted him because of the political graffiti or if they used it as an excuse to assault him merely because he was a vulnerable youth. Petitioner later removed the graffiti, but Nelson attacked him twice more and continued to threaten him. Reports to local police went ignored; Petitioner averred he feared returning to his home town because of the threats, and he feared relocating elsewhere in El Salvador because other people could hurt him. In his petition for review, Petitioner contends the BIA should have granted him asylum and withheld his removal because he suffered past persecution and has a well- founded fear of suffering future persecution based on political opinions Nelson imputed to him. Petitioner also argues the BIA should have granted him protection under CAT because, if he returns to El Salvador, Nelson will likely torture him with the acquiescence of law enforcement. On the record before it, the Tenth Circuit could not say any reasonable adjudicator would be compelled to reach conclusions contrary to those reached by BIA. The Court therefore affirmed denial of asylum and protection under CAT. View "Escobar-Hernandez v. Barr" on Justia Law

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The Supreme Court affirmed Defendant's conviction of a class C felony drug offense and prison sentence, holding that immigration status per se is not an appropriate sentencing consideration but that immigration status may be taken into account to the extent it affects an otherwise relevant sentencing factor. Defendant, a Mexican national, pled guilty to a felony drug offense and was placed on immigration hold for likely deportation. Defendant sought probation, but the district court imposed a prison sentence, expressing the view that it would not be feasible to order probation for a defendant who was going to be deported to Mexico. The Supreme Court affirmed, holding (1) a defendant's immigration status may not be the basis for a sentence, but to the extent it affects an otherwise relevant sentencing factor it may be taken into account; and (2) on the record, the district court properly determined that probation would not be appropriate for someone whose probation would need to be supervised in Mexico. View "State v. Valdez" on Justia Law

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Malukas, a citizen of Lithuania, entered the U.S. in 1992 on a tourist visa and did not leave when it expired. In 1995 he was convicted of weapons-related felonies. Malukas applied for discretionary relief from removal as the spouse of a U.S. citizen. The Board of Immigration Appeals denied relief. His motion for reconsideration was denied in 2003. Malukas did not seek judicial review but remained in the U.S. His Lithuanian passport had expired; Lithuania would not issue new documents. In 2018 Malukas filed a second motion to reconsider and a motion to reopen, contending that the removal order is invalid because the proceeding began with a “Notice to Appear” that did not include a hearing date and time. The date and time were furnished in a later document. He also contended that he had been rehabilitated and that Lithuania’s failure to accept his return justified discretionary relief. The Board denied this motion. Malukas asked the Board to reopen sua sponte because time-and-number limits do not restrict the Board’s authority to act independently. The Seventh Circuit denied relief, noting that reopening would not be sua sponte but would be a response to the motion, subject to the time-and-number limits and that the Board’s discretionary authority is not subject to judicial review. The rehabilitation and passport arguments are substantive and the Board adequately stated its reasons. View "Malukas v. Barr" on Justia Law

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The Fourth Circuit affirmed the district court's grant of summary judgment in favor of petitioners, a class of noncitizens subject to reinstated removal orders, holding that they were detained under 8 U.S.C. 1226 because a decision on removal remains "pending" until their withholding-only proceedings are complete. The court read the plain text of the provisions at issue to ensure that they fit together to form a workable statutory framework, holding that section 1226 applies when there is still "pending" a legal determination that must be made before a noncitizen may be removed; and once there are no remaining legal impediments to removal, section 1231's 90-day removal period begins. The court explained that the government lacks the authority to actually execute orders of removal while withholding-only proceedings are ongoing and thus petitioners were detained under section 1226. Therefore, the court agreed with the district court that the relevant provisions of section 1226, rather than section 1231, govern petitioners' detention, entitling petitioners to individualized bond hearings. View "Guzman Chavez v. Hott" on Justia Law

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Defendant's prior conviction in Washington for delivery of cocaine is an aggravated felony under 8 U.S.C. 1101(a)(43), which bars him from establishing the "good moral character" necessary for naturalization. The Eleventh Circuit affirmed the district court's dismissal of plaintiff's complaint, challenging DHS's denial of his application for naturalization. The court held that accomplice liability under the Washington statute is no broader than under the federal Immigration and Nationality Act, and the Washington statute is no broader than the federal Act regarding "administering" a controlled substance. View "Bourtzakis v. U.S. Attorney General" on Justia Law

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In 1996, Rizk a citizen of Lebanon, received deferred admission to the U.S. as the fiancée of a U.S. citizen, Derbass. They married in 1998. Rizk obtained conditional permanent resident status. They divorced in 2001. Rizk requested a waiver of the requirement to file a joint petition to remove the conditions on residence. An immigration officer interviewed Rizk, giving her the opportunity to submit evidence. Rizk’s statements concerning the fatherhood of her children and the whereabouts of her alleged first ex-husband, conflicted with statements made in connection with her divorce. Rizk provided no evidence to establish a shared residence with Derbass and no evidence relating to their combination of financial assets and liabilities. The United States Citizenship and Immigration Services determined that theirs “was a sham marriage entered into for the primary purpose of enabling [Rizk] to evade immigration laws and to obtain immigration benefits fraudulently.” Rizk returned to Lebanon and attempted to obtain a visa. USCIS denied those petitions under 8 U.S.C. 1154(c). Rizk’s daughter (a U.S. citizen), filed a new I-130 petition (8 U.S.C. 1151(b)) on Rizk’s behalf. USCIS approved that petition without conducting interviews; the previous finding of fraud was not taken into consideration. USCIS soon discovered its mistake and revoked the approval. The Board of Immigration Appeals held that Rizk was ineligible for a visa under section 1154(c). The Sixth Circuit affirmed the dismissal of her complaint. The revocation decision was not arbitrary. View "Jomaa v. United States" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's order denying cancellation of removal and ordering petitioner removed, and subsequently denying his timely motion to reopen proceedings. The court held that petitioner was challenging the discretionary conclusion of the BIA against him and thus the court did not have jurisdiction. The court also held that the BIA did not abuse its discretion in denying the motion to reopen, because the BIA had the final authority to decide whether to grant discretionary cancellation-of-removal relief. View "Urrutia Robles v. Barr" on Justia Law