Justia Immigration Law Opinion Summaries

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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

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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

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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

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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

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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

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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

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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

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Petitioner, a citizen of Guatemala, sought review of the BIA's denial of withholding of removal based on the agency's conclusion that the record does not establish that Guatemalan society recognizes "people who report the criminal activity of gangs to police" as a distinct social group. The Ninth Circuit held that it lacked jurisdiction to review petitioner's renewed argument concerning relief under the Convention Against Torture, because the panel expressly disposed of the issue in a prior petition for review and the issue was not currently under consideration. The panel also held that substantial evidence supported the BIA's conclusion that the record was devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who report the criminal activity of gangs to the police are perceived or recognized as a group by society in Guatemala. The panel explained that, although the record contained two State Department Human Rights Reports and a Congressional Research Service report, none of those documents discussed reporting gang violence to police, or any risks or barriers associated with doing so. Furthermore, the documents did not assert that Guatemalan society recognizes those who, without more, report gang violence as a distinct group. Furthermore, the testimony failed to support a finding of social recognition. Accordingly, the panel dismissed in part and denied in part. View "Conde Quevedo v. Barr" on Justia Law

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Da Silva, a two-year-old native of Brazil, was admitted to the U.S. in 1994 with a B-2 visa. She has never left the U.S. Da Silva married a U.S. citizen, Leach, a member of the armed services, who subjected Da Silva to abuse and engaged in extramarital affairs, including with L.N. During a confrontation, Da Silva punched L.N. in the nose twice. Da Silva pleaded guilty to assault, 18 U.S.C. 113(a)(4) and was sentenced to 18 months’ imprisonment. In removal hearings, the IJ recognized that Da Silva had “been provoked.” She unsuccessfully sought cancellation of removal for battered spouses under the Violence Against Women Act, 8 U.S.C. 1229b(b)(2)(A). Da Silva could not satisfy the “good moral character” requirement because of her imprisonment for her assault conviction. She argued that she qualifies for the exception because the “act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty.” The IJ found that Leach had threatened to take away Silva’s children due to her undocumented status, was consistently unfaithful, verbally and physically abused her and her daughter, and refused to allow her to seek immigration status, and found that her removal would result in extreme hardship but that the assault convictions were not “connected to” the cruelty. The Third Circuit vacated; “connected to” is unambiguous and means “having a causal or logical relationship.” Da Silva’s convictions are connected to Leach's extreme cruelty. View "Da Silva v. Attorney General United States" on Justia Law

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Baez-Sanchez, a citizen of Mexico, is removable. His conviction for aggravated ba]ery of a police officer renders him inadmissible, 8 U.S.C. 1182(a)(2)(A)(i)(I). He applied for a U visa, which is available to some admissible aliens who have been victims of crime in this country. An IJ granted a waiver of inadmissibility, 8 U.S.C. 1182(d)(3)(A)(ii). The BIA remanded with instructions to consider an additional issue. The IJ did so and reaffirmed. The BIA then concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges. The Seventh Circuit held that 8 C.F.R. 1003.10(a) permits IJs to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. The BIA concluded that the court's decision was incorrect and did not consider the issues remanded by the court. Baez-Sanchez filed another petition for review. The Seventh Circuit vacated, stating that it had “never before encountered defiance of a remand order.” Article III judicial power is not subject to disapproval or revision by another branch of government. The Attorney General, the Secretary, and the BIA are free to maintain, in another case, that the decision was mistaken but they are not free to disregard a mandate in the very case making the decision. An immigration judge has ruled in favor of Baez-Sanchez; all issues have been resolved. Baez-Sanchez may seek a U visa. View "Baez-Sanchez v. Barr" on Justia Law