Justia Immigration Law Opinion Summaries

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Dijamco’s mother, a U.S. green card holder, filed a visa petition on Dijamco’s behalf in 1992. Though the petition received approval, Congress restricts the number issued each year. After four years of waiting in the Philippines, Dijamco had not received a visa; she used fraudulent papers to enter the U.S. In 2005, a visa became available, allowing Dijamco to seek a green card. USCIS denied Dijamco’s application. While her administrative appeal was pending, Dijamco’s mother died, which automatically revoked Dijamco’s visa petition. USCIS dismissed her appeal based on changed circumstances. Dijamco attempted to revive her visa petition. The day after USCIS denied her request for humanitarian reinstatement, Congress enacted an amendment, providing that the death of the petitioning family member did not automatically preclude a beneficiary from receiving a visa, 8 U.S.C. 1154. The agency determined that the amendment did not apply and stated that it would not exercise its equitable discretion to reopen Dijamco's adjustment-of-status application because she entered the country fraudulently. DHS has not taken action to compel her removal, which would have provided a pathway for judicial review. The Seventh Circuit concluded that the district court lacked subject matter jurisdiction to consider any of Dijamco’s claims. The Administrative Procedure Act’s general provision authorizing judicial review of final agency actions yields to immigration-specific limitations. USCIS exercised unreviewable discretion in revoking Dijamco’s petition and refusing to reinstate it. View "Dijamco v. Wolf" on Justia Law

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The Eighth Circuit affirmed defendant's conviction for illegal reentry after removal. Defendant makes a collateral attack on his 2008 removal, arguing that failure to provide him a Spanish interpretation of his Notice of Intent deprived him of the ability to challenge the government's decision to classify him as an aggravated felon, and thus depriving him of the opportunity to seek voluntary departure. The court held that, assuming that defendant was not an aggravated felon, he was not reasonably likely to have received preconclusion voluntary departure at the time of his removal in 2008. Therefore, defendant cannot show prejudice as required by 8 U.S.C. 1326(d)(3), and the district court properly denied his motion to dismiss the indictment. In this case, defendant failed to present compelling positive equities, like close relatives who are United States citizens or legal permanent residents, and defendant failed to reference a single case where an alien convicted of a felony sexual offense has received pre-conclusion voluntary departure. In light of defendant's serious and recent felony convictions and the lack of a sufficiently compelling counter-balancing factor at the time of his removal, the court concluded that it is not reasonably likely that he would have received pre-conclusion voluntary departure. View "United States v. Ramirez" on Justia Law

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The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the U.S., 8 U.S.C. 1225(a)(1). An applicant may avoid expedited removal by demonstrating a “credible fear of persecution,” meaning “a significant possibility . . . that the alien could establish eligibility for asylum.” An applicant who makes this showing is entitled to a standard removal hearing. An asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may then be appealed to an immigration judge. IIRIRA limits habeas corpus review; courts may not review “the determination” that an applicant lacks a credible fear of persecution. Thuraissigiam, a Sri Lankan national, was stopped immediately after crossing the southern border without inspection or an entry document. He was detained for expedited removal. An asylum officer's rejection of his credible-fear claim was affirmed. Thuraissigiam filed a federal habeas petition, requesting a new opportunity to apply for asylum. The Supreme Court reversed the Ninth Circuit’s ruling in Thuraissigiam’s favor. As applied here, Section 1252(e)(2) does not violate the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, section 9, cl. 2. At a minimum, the Clause “protects the writ as it existed in 1789.” Habeas has traditionally provided a means to seek release from unlawful detention. Thuraissigiam does not seek release from custody, but an additional opportunity to obtain asylum. His claims fall outside the scope of the writ as it existed when the Constitution was adopted. As applied here, Section 1252(e)(2) does not violate the Due Process Clause. For aliens seeking initial entry, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” An alien in Thuraissigiam’s position has only those rights regarding admission that are provided by statute. View "Department of Homeland Security v. Thuraissigiam" on Justia Law

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The Eighth Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner is removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having been convicted of a crime involving moral turpitude. The court held that petitioner's conviction for obstruction of legal process in violation of Minn. Stat. Ann. 609.50, subdiv. 2(2) does not categorically constitute a crime involving moral turpitude. The court stated that there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude. Furthermore, the level of harm required to complete the offense is also insufficient to constitute a crime involving moral turpitude. Therefore, the BIA erred in finding otherwise and the court vacated the order of removal. View "Ortiz v. Barr" on Justia Law

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Associations filed suit contending that the Secretary's decision to expand the reach of the expedited removal process to its statutory limit, sweeping in all individuals without documentation who have resided in the United States for less than two years, violated the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the Suspension Clause. The district court granted a preliminary injunction against the expansion based only on the APA claims, but did not address the INA and constitutional claims. The DC Circuit held that the district court properly exercised jurisdiction under 8 U.S.C. 1252(e) over the Associations' case. However, because Congress committed the judgment whether to expand expedited removal to the Secretary's "sole and unreviewable discretion," 8 U.S.C. 1225(b)(1)(A)(iii)(I), the Secretary's decision is not subject to review under the APA's standards for agency decisionmaking. Furthermore, the Secretary's decision is not subject to the APA's notice-and-comment rulemaking requirements. Accordingly, the court reversed the district court's grant of a preliminary injunction and remanded for further proceedings. View "Make The Road New York v. Wolf" on Justia Law

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The Second Circuit granted a petition for review of the BIA's denial of petitioners' third motion to reopen. Petitioners argued that the BIA abused its discretion in denying their motion to reopen because it failed to address their primary evidence of changed country conditions for Christians in Indonesia and incorrectly concluded that their failure to submit a new asylum application with their motion made the motion procedurally deficient under 8 C.F.R. 1003.2(c)(1). The court held that the BIA's one-and-a-half page order failed to account for relevant evidence of changed country conditions. The court also held that section 1003.2(c)(1) does not require the submission of a new asylum application for motions such as this one. Accordingly, the court vacated the BIA's decision and remanded for explicit consideration of the changed country conditions evidence. View "Tanusantoso v. Barr" on Justia Law

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Both the State and respondent-defendant Eswin Figueroa-Lemus petitioned for review of the court of appeals’ judgment affirming the denial of the defendant’s motion to withdraw his guilty plea. Defendant, a lawful permanent resident of the United States, was arrested in 2012, and charged with one count each of possession of a controlled substance (cocaine), possession of drug paraphernalia, and driving under the influence. In 2013, he pled guilty to the controlled substance count pursuant to a statutorily sanctioned stipulation with the district attorney for the deferral of judgment for a period of two years, pending satisfaction of the conditions of his deferral. At the providency hearing at which his plea was taken, the defendant acknowledged his awareness that his plea could make him deportable, and defense counsel affirmatively stated on the record that he and the defendant had a lengthy conversation about immigration consequences, after which the defendant understood that this drug offense would render him deportable. When expressly asked by the trial court whether plea counsel’s statement was true, the defendant responded affirmatively. Weeks thereafter, the State moved to revoke the deferred judgment, alleging that defendant had been arrested by federal Immigration and Customs Enforcement (“ICE”) officers and therefore could no longer comply with the requirements of his deferred judgment. Defendant then moved to withdraw his guilty plea. The State challenged the appellate court’s jurisdiction on the grounds that until defendant was actually sentenced and judgment of conviction enters, there could be no final judgment from which an appeal would lie. Defendant challenged the appellate court’s ultimate conclusion on the merits that he was not entitled to an advisement by his counsel to the effect that he would be detained without bond during the pendency of any deportation proceedings initiated against him by the federal government. The Colorado Supreme Court found that because a guilty plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and sentence does not become a final, appealable judgment unless and until the deferral is revoked, sentence is actually imposed, and judgment of conviction enters, defendant was without any immediate right to appeal the denial of his motion, and the court of appeals was therefore not authorized to entertain the defendant’s claim. Choosing, nevertheless, to exercise its original jurisdiction in this case, the Supreme Court found the district court did not abuse its discretion in denying the defendant’s motion. The court of appeals' judgment was vacated. View "Colorado v. Figueroa-Lemus" on Justia Law

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In 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program, which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal to become eligible for work authorization and various federal benefits. Two years later, a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), proposed to make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance, work eligibility, and other benefits. States obtained a nationwide preliminary injunction barring implementation of both. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act, which defines eligibility for benefits. The Supreme Court affirmed. In 2017, DHS rescinded the DAPA Memorandum. Acting Secretary of Homeland Security Duke then rescinded DACA. Following decisions by the Second, Ninth, and D.C. Circuits, the Supreme Court held that DHS’s rescission decision was arbitrary and capricious. As a preliminary matter, the Court held that the decision is reviewable under the APA, rejecting an argument that DACA is a general non-enforcement policy. The DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. The parties did not challenge any removal proceedings so that judicial review would be barred by 8 U.S.C. 1252. The Court declined to consider additional justifications for the decision that were offered nine months later. Judicial review of agency action is limited to the grounds that the agency invoked when it took the action. The later justifications bore little relationship to those offered originally and constitute “post hoc rationalization.” Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the issue, such as eliminating benefits eligibility while continuing forbearance. In failing to consider that option, Duke failed to supply the “reasoned analysis” required by the APA. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. DHS has flexibility in addressing reliance interests and could have considered various accommodations. View "Department of Homeland Security v. Regents of University of California" on Justia Law

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In 2001, Ferreyra, 13 years old, entered the U.S. under the Visa Waiver Program, 8 U.S.C. 1187, which allows visitors to come to enter for 90 days. Ferreyra's mandatory waiver of the right to contest removal, except based on asylum, was signed by his parents. Ferreyra did not leave. In 2018, he was charged as removable for having overstayed. He declared that he wished to apply for asylum, withholding of removal and relief under the Convention Against Torture. Ferreyra claimed that, if removed to Argentina, he would face persecution based on his membership in a particular social group—his family. Ferreyra related that, when he was a child in Argentina, his uncle had sexually assaulted him, that his uncle still lived there, and that his uncle had warned that he would kill him if he told anyone about the assault. The IJ denied relief, finding that Ferreyra failed to show that his uncle had targeted him based on his family membership or that the government was unable or unwilling to protect him. The IJ denied Ferreyra’s request for cancellation of removal based on family hardship as unavailable in the asylum-only proceedings. The BIA ordered his removal. The Seventh Circuit denied a petition for review. Ferreyra did not present a case warranting relief because of a credible fear of persecution or torture. The waiver is valid; Ferreyra, therefore, cannot present a claim for cancellation of removal based on family hardship. View "Ferreyra v. Barr" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum and withholding of removal. The panel held that "wealthy landowners" in Colombia do not constitute a cognizable particular social group for purposes of asylum and withholding of removal because the group lacks particularity and social distinction. Applying the particular social group analysis, the panel held that the agency correctly concluded that petitioner's arguments, and the majority of the evidence he submitted, pertain to the Revolutionary Armed Forces of Colombia's perception of wealthy landowners rather than to Colombian society's perception of the purported group. View "Cordoba v. Barr" on Justia Law