Justia Immigration Law Opinion Summaries

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Petitioners Ana Orellana-Recinos and her son, Kevin Rosales-Orellana, natives and citizens of El Salvador, sought review of a Board of Immigration Appeals (BIA) order dismissing their appeal of an immigration judge's (IJ) dismissal of their applications for asylum. They contended they were persecuted because of their membership in a particular social group: namely, Kevin’s immediate family. Even assuming that Kevin’s immediate family qualified as a particular social group under the Immigration and Nationality Act, the Tenth Circuit Court of Appeals concluded the BIA properly found that Petitioners were not persecuted “on account of” their membership in that group. In addition, the Court rejected the government’s argument that the Court lacked jurisdiction to review Petitioners’ challenge to the BIA’s decision. View "Orellana-Recinos v. Barr" on Justia Law

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The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of asylum and withholding of removal to petitioner. The panel held that it was compelled to conclude that petitioner established a nexus between her mistreatment and her feminist political opinion and the BIA necessarily concluded that she carried her burden to prove the other elements of her claims for asylum and withholding of removal.The panel denied the government's motion to remand so that the BIA can consider Matter of A-B- II's effect on nexus, concluding that Matter of A-B- II did not change the standard for establishing nexus, at least in this circuit. The panel has repeatedly held that political opinions encompass more than electoral politics or formal political ideology or action. Like the Third Circuit, the panel had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. In this case, substantial evidence does not support the BIA's conclusion that the record lacks evidence of a nexus between petitioner's persecution and her feminist political opinion. Rather, the panel concluded that petitioner had an actual or imputed political opinion and she was persecuted because of that political opinion. Finally, the petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel remanded for the Attorney General to exercise his discretion in determining whether to grant petitioner asylum. If he does not grant asylum, petitioner shall receive withholding of removal. View "Rodriguez Tornes v. Garland" on Justia Law

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Petitioner, a legal permanent resident, was twice charged as removable by the federal government, once in 2012 and once in 2016. Petitioner challenged the second removability charge as barred by res judicata. The Fifth Circuit agreed with the BIA's determination that res judicata did not bar the second removability charge because it was based on a different statutory provision and was unavailable to the Government when the first charge was brought. Petitioner also argued that the Government failed to meet 8 U.S.C. 1227(a)(2)(A)(iii)'s statutory requirements and that the BIA denied him due process of law. The court concluded that these two issues have not been addressed by the BIA in the first instance and thus they are not ripe for disposition. Accordingly, the court dismissed in part and denied the petition in part. View "Rodriguez v. Garland" on Justia Law

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In a published order, the Ninth Circuit denied a motion for attorneys' fees under the Equal Access to Justice Act (EAJA) in a case in which the panel had previously remanded petitioner's application for relief from removal to the BIA for reconsideration in light of the en banc court's intervening decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).The panel concluded that petitioner was not entitled to attorney's fees because the government's position was substantially justified. In this case, the government seeks a voluntary remand and the panel has already recognized that the en banc decision in Bringas-Rodriguez acted as intervening case law. The panel rejected petitioner's contentions to the contrary. Therefore, because the government's position was substantially justified, EAJA fees are not appropriate, and the panel need not decide whether petitioner was a prevailing party, or whether there are special circumstances rendering an award unjust. View "Meza-Vazquez v. Garland" on Justia Law

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The Eleventh Circuit granted a petition for review of the BIA's order of removal of petitioner as an alien convicted of aggravated felonies after his admission to the United States. In this case, petitioner was a citizen when he was convicted. At issue is whether a denaturalized alien is removable as an aggravated felon based on convictions entered while he was an American citizen.The court explained that, by its plain terms, 8 U.S.C. 1227(a)(2)(A)(iii) does not apply to aliens who were citizens when convicted. Therefore, the court held that the plain meaning of section 1227(a)(2)(A)(iii) forecloses the BIA's interpretation. Furthermore, binding precedent, Costello v. Immigr. & Naturalization Serv., 376 U.S. 120 (1964), forecloses treating petitioner's denaturalization as retroactive for removal purposes. Accordingly, the court vacated the BIA's decision and remanded for further proceedings. View "Hylton v. U.S. Attorney General" on Justia Law

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The Ninth Circuit filed: 1) an order withdrawing the opinion and concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020), denying the petition for rehearing en banc as moot, and providing that the parties may file petitions for rehearing and hearing en banc in response to the new opinion; 2) a new opinion denying the petitions for review of the BIA's decisions; and 3) a new concurring opinion.The panel held, based on its binding precedent, that the BIA did not err in concluding that petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude, and that the BIA did not abuse its discretion in denying petitioner's motion to reopen to seek asylum and related relief based on changed country conditions in the Philippines. The panel explained that it need not address the question whether Matter of Diaz-Lizarraga is retroactively applicable in this case and need not apply the Montgomery Ward test to answer that question. View "Silva v. Garland" on Justia Law

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Defendant-Appellant Abiel Perez-Perez pled guilty to being an alien in possession of a firearm. On appeal, he challenged the district court’s failure to advise him of two elements of that offense: (1) the alien was illegally or unlawfully present in the United States; and (2) the alien knew that he was illegally or unlawfully present. The government conceded that the omission of these elements constituted error that was now plain on appeal. The only dispute was whether Perez satisfied the third and fourth prongs of plain-error review. The Tenth Circuit concluded Perez could not satisfy the third prong because he could not show that the error affected his substantial rights. "Although Perez has a credible claim that, at the time of the offense, he did not know he was unlawfully present in the United States, he has failed to show a reasonable probability that he would not have pled guilty but for the district court’s error. This is because the context of Perez’s guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences attached to charges the government dismissed in exchange for the guilty plea. Perez fails to show how the district court’s error impacted that choice, and he thus fails to satisfy the third plain-error prong." View "United States v. Perez-Perez" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's request for asylum. Petitioner feared religious persecution by gangs if she returned to her home country of El Salvador. Because petitioner has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, the court explained that she bears the burden to show that relocation would not be reasonable. The court concluded that substantial evidence supports the BIA's determination that petitioner could relocate to another part of El Salvador if forced to return. In this case, petitioner worked for months in San Salvador without trouble from gangs. View "Guatemala-Pineda v. Wilkinson" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's decision denying petitioner's motion for reconsideration. Petitioner primarily argues that the Board did not adequately consider two declarations indicating that his counsel did not receive certain documents related to the proceedings. The court concluded that these declarations do not sufficiently rebut the presumption that his counsel received the documents the Board sent. Therefore, petitioner's argument that the Board should have reconsidered its decision in light of the declarations fails. Furthermore, petitioner's remaining arguments, which all stem from the alleged nonreceipt of documents and his alleged inability to file a responsive brief, also fail. View "Njilefac v. Garland" on Justia Law

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The Ninth Circuit granted in part and denied in part a petition for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petition is based on petitioner's fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability.The panel concluded that the agency misunderstood petitioner's proposed social group, and thus granted the petition for review with respect to the claims for asylum and withholding of removal. The panel explained that the BIA and IJ treated the term "intellectual disability" as if it were applied to a layperson. However, that term as used in petitioner's application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the panel reasoned that the clinical term "intellectual disability" may satisfy the "particularity" and "social distinction" requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, the panel must remand to the agency for fact-finding on an open record to determine if the group is cognizable. Finally, the panel concluded that denial of CAT relief by the agency was supported by substantial evidence. View "Acevedo Granados v. Garland" on Justia Law