Justia Immigration Law Opinion Summaries

Hosseini fled Iran and obtained asylum in the U.S. in 1999. He later unsuccessfully applied to adjust his legal status to become a lawful permanent resident. The government concluded that Hosseini provided material support to Iranian terrorist organizations, rendering him inadmissible under 8 U.S.C. 1182(a)(3)(B)(iv)(VI)(dd), by copying and distribution of flyers from organizations, including Mujahadin-e Khalq (MeK) and Fadain-e Khalq (FeK). Hosseini insists that the flyers alerted Iranians to the new regime’s human rights abuses, including its crackdown on women, students, workers, and civil dissidents. The Sixth Circuit affirmed that determination. Hosseini did not demonstrate by clear and convincing evidence that he “did not know, and should not reasonably have known, that the organization was a terrorist organization.” The government described a 1981 terrorist attack, during which MeK detonated bombs in the Islamic Republic party’s head office that killed “some seventy high-ranking Iranian officials. Given Hosseini’s acknowledgment that he “eagerly sought out information about various political viewpoints” after the 1979 revolution, it seems implausible that he was unaware of this attack and the organization that perpetrated it. While Hosseini left MeK voluntarily and did not engage in violent terrorism, Hosseini was not a minor during his six-year involvement with the groups; he admitted hearing rumors that MeK was engaged in terrorist activity. His support was relevant in introducing Iranians to the organizations and significant: the nonviolent flyers gave legitimacy to MeK and FeK although they were engaged in terrorism. View "Hosseini v. Nielsen" on Justia Law

Retroactivity analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner removable because he committed two crimes involving moral turpitude (CIMT) when he was convicted of felony endangerment under Arizona Revised Statutes 13-1201 and facilitation to commit unlawful possession of marijuana for sale.Applying Montgomery Ward to this case, the panel held that there was no change in law raising retroactivity concerns. Therefore, the BIA did not err by applying Leal I, In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), to conclude that Arizona endangerment is a CIMT. Finally, the panel rejected petitioner's claim regarding Leal II, claims under In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008), preclusion claims, and an 8 U.S.C. 1227(a)(2)(A)(ii) claim. View "Olivas-Motta v. Whitaker" on Justia Law

In 2003, Jasso obtained lawful U.S. permanent resident status. More than a decade later, he pled guilty to first-degree home invasion in Michigan. DHS began removal proceedings, arguing that Jasso’s home-invasion conviction was a “crime of violence” under 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii), which then defined a “crime of violence” with both an elements clause and a residual clause, 18 U.S.C. 16. The IJ found that Jasso’s home-invasion conviction was a crime of violence under the residual clause. Before the Board of Immigration Appeals acted, the Sixth Circuit found the residual clause unconstitutionally vague. The BIA remanded for a new removability determination. The IJ terminated the proceeding, warning Jasso that DHS could “recharge under a different theory.” Two days later DHS initiated a second removal proceeding, arguing that Jasso’s home-invasion conviction was a “burglary offense” rather than a “crime of violence,” 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii). The IJ agreed and rejected Jasso’s argument that res judicata barred the second proceeding. The BIA affirmed, concluding that res judicata does not apply in removal proceedings involving aggravated felons. The Sixth Circuit vacated and remanded for determination of whether claim preclusion applies, which depends on whether the first removal proceeding was dismissed with or without prejudice—an issue never addressed by the Board. View "Jasso-Arangure v. Whitaker" on Justia Law

Gafurova, a citizen of Uzbekistan, entered the U.S. in June 2003, as a visitor. She remained in the U.S. without authorization and applied for Asylum in June 2004. An IJ ordered her removal, characterizing Gafurova’s asylum application as frivolous. The BIA denied Gafurova’s appeal but reversed the frivolity determination. The Second Circuit denied her petition for review. Gafurova moved to reopen because of a pending visa petition filed on her behalf by her husband. On remand, the IJ denied Gafurova’s application for adjustment of status because she had previously filed a frivolous asylum application. The BIA again remanded. DHS then submitted evidence that Gafurova’s 2011 visa petition was revoked; she was not eligible to seek adjustment of status. Gafurova moved to change venue to New York for a second asylum application, arguing that she converted to Christianity and that she would be viewed as a traitor in Uzbekistan because information is publicly available that she sought asylum. An IJ denied Gafurova’s motion, found her barred from filing a second application, and ordered her removal. The BIA dismissed her appeal. While Gafurova’s Sixth Circuit petition was pending, she again moved to reopen, citing “changed circumstances” in Uzbekistan and new Sixth CIrcuit law pertaining to asylum applications based solely upon well-founded fear of future persecution. The BIA denied her motion, stating that the public disclosure of the Second Circuit decision did not violate asylum confidentiality. The Sixth Circuit denied her petition for review, finding that the BIA applied the correct standards and that its decision was supported by substantial evidence. View "Gafurova v. Whitaker" on Justia Law

Petitioner, a citizen of the United Kingdom and a lawful U.S. permanent resident, was convicted of two counts of rape in 2011 under Ohio law. He was charged as removable for being convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), which lists rape as an aggravated felony, but it does not define the term. An IJ found held that Petitioner was removable without eligibility for relief. Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated felony because Ohio’s definition of rape includes digital penetration, whereas the federal law does not. The BIA disagreed. The Sixth Circuit reversed, noting that the Fifth Circuit and the BIA previously considered this question. The BIA reversed course in Petitioner’s case. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the Immigration and Nationality Act cannot; the Ohio conviction does not categorically fit within the federal definition, and Petitioner’s conviction is not an aggravated felony. View "Keeley v. Whitaker" on Justia Law

Petitioner sought review of the BIA's decision affirming his order of removal and an IJ's denial of waiver of the joint filing requirement to remove the conditions on his permanent resident status on the grounds that his marriage had not been entered in good faith. The Second Circuit held that, although the underlying factual findings were subject to clear error review, whether the evidence satisfied a petitioner's burden to prove entitlement to a good faith marriage waiver was a mixed question of law and fact subject to de novo review. Therefore, the court remanded in part because the BIA applied only clear error review.Petitioner also sought review of the denial of his motion to reopen and reconsider. The court held that petitioner's argument was abandoned because he failed to assert a meaningful challenge to the BIA's denial of reopening and reconsideration. Therefore, the court denied in part. View "Alom v. Whitaker" on Justia Law

Hernandez-Perez, a Mexican citizen, has lived in the U.S. since 2000. His daughter, L., is a 17-year-old U.S. citizen. Hernandez-Perez has some criminal history, mostly “misdemeanor traffic offenses” but has maintained steady employment despite a handicap. In 2011, Hernandez-Perez was placed in removal proceedings and sought cancellation of removal under 8 U.S.C. 1229b(b)(1)(D), arguing that, if he were removed, L. would face “permanent family separation.” After that application was denied, Hernandez-Perez, alleged his family circumstances changed because he learned that an eight-year-old U.S. citizen, A.W., whose mother is not his wife, might be his son. A.W.’s mother was incarcerated and his grandfather, who had custody, was seriously ill. Hernandez-Perez had a DNA test performed, which confirmed the relationship. He filed a motion to reopen based on hardship to A.W. The BIA denied the motion because Hernandez-Perez had not established that the new evidence was previously unavailable, and the evidence did not establish prima facie eligibility for cancellation of removal. The Sixth Circuit granted a petition for review and remanded, first holding that it had jurisdiction because the motion “raised a new hardship ground not decided in the original decision.” Because the BIA must accept as true Hernandez-Perez’s allegations, there is no reasonable basis to conclude that the genetic evidence could have been obtained in 2015. The BIA erred in determining that the newly submitted evidence was previously available and did not consider all of the facts. View "Hernandez-Perez v. Whitaker" on Justia Law

The Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. 1003.1(c) is committed to agency discretion. Petitioner, a Pakistani national, sought review of the BIA's decision declining to certify, pursuant to 8 C.F.R. 1003.1(c), his claim for ineffective assistance of counsel. The panel dismissed the appeal of the failure to certify petitioner's claim and held that it did not have jurisdiction to review the IJ and BIA's decision not to certify. The panel denied petitioner's due process claim challenging the same lack of certification, holding that abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims. View "Idrees v. Whitaker" on Justia Law

The Fifth Circuit affirmed the dismissal of an action brought by the State of Texas, seeking a declaratory judgment under 28 U.S.C. 2201 that SB 4 -- which curbs sanctuary city policies by requiring law enforcement agencies to comply with, honor, and fulfill federal immigration detainer requests -- does not violate the Fourth or Fourteenth Amendments and is not preempted by federal law.Although the district court held that Texas lacked Article III standing to seek declaratory judgment, the court held that the district court lacked federal question jurisdiction under 28 U.S.C. 1331 in light of Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983). In Franchise Tax Board, the Supreme Court held that section 1331's grant of federal question jurisdiction does not encompass suits by the States to declare the validity of their regulation despite possibly conflicting federal law. The court explained that Franchise Tax Board reinforces comity among federal and state courts and mandates that the court dismiss Texas's declaratory relief action. View "Texas v. Travis County" on Justia Law

The First Circuit denied Petitioner’s appeal of an order of the Board of Immigration Appeals (BIA) denying her request for deferral of removal under the United Nations Convention Against Torture (CAT), holding holding that the BIA’s factual determinations were supported by reasonable, substantial and probative evidence on the record.Petitioner, a native and citizen of the Dominican Republic, sought deferral of removal under the CAT, basing her claim on domestic abuse that she suffered at the hands of her partner of fifteen years. An immigration judge (IJ) found Petitioner to be credible in describing her abuse and granted deferral of removal. The BIA reversed the IJ’s determination, noting that the IJ applied an incorrect legal standard. The BIA then concluded that Petitioner did not meet her burden of establishing that the government had acquiesced in her harm or would be more likely than not to do so if she were to return. The First Circuit affirmed, holding that the BIA did not err in finding that Petitioner had not established that the government would acquiesce in her harm upon removal. View "Ruiz-Guerrero v. Whitaker" on Justia Law