Justia Immigration Law Opinion Summaries

Plaintiffs, who were each over the age of 18, had filed Suits Affecting Parent-Child Relationship (SAPCR). In the SAPCR suits, the state courts awarded child support and made certain findings. After plaintiffs received the state court SAPCR orders, they filed Special Immigrant Juvenile (SIJ) status petitions with USCIS, which were subsequently denied. Plaintiffs then filed suit in district court seeking declaratory relief regarding the definition of "child" under Texas state law and the proper interpretation and application of the terms "juvenile court" and "dependent," as those terms were defined by federal law. The district court granted defendants' motion to dismiss, concluding that the SAPCR orders were not proper ones to support SIJ status.The Fifth Circuit affirmed and held that USCIS properly determined that the state court orders for child support were not the equivalent of the necessary "care and custody" rulings required for SIJ status; the court rejected plaintiffs' claim that the district court relied on reasoning not employed by the agency when upholding the USCIS decision; and USCIS's denials were not arbitrary and capricious. The court denied plaintiffs' motion to supplement and rejected plaintiffs' claim that the district court failed to consider the entire administrative record. View "Budhathoki v. Nielsen" on Justia Law

Wang, a citizen of China, obtained lawful U.S. permanent resident status in 2010 and worked in a financial services firm. In 2011, without authorization, he purchased oil futures contracts using the firm’s trading account and transferred those contracts between firm accounts. In company records, Wang marked these contracts as closed (sold) when they were, in fact, still open. After the firm discovered the transactions, the FBI arrested Wang. The indictment alleged that, upon discovery of a loss of $2.2 million, the firm sold the contracts. Wang pleaded guilty to violating the Commodity Exchange Act by making a false report in connection with a commodities transaction, 7 U.S.C. 6b(a)(1)(B) and 13(a)(2) and was sentenced to three months in prison and ordered to pay $2.2 million in restitution. Wang was ordered removed. The BIA affirmed. The Sixth Circuit granted a petition for review and remanded, first holding that it had authority to consider de novo whether Wang’s conviction qualifies as an aggravated felony because it is “a purely legal question.” Wang is not properly categorized as an aggravated felon under 8 U.S.C. 1101(a)(43)(M)(i) because crimes “involv[ing] fraud or deceit” require materiality as an element of proof and Section 6b(a)(1)(B) lacks this element. View "Wang v. Attorney General United States" on Justia Law

Galindo, a lawful permanent U.S. resident, had Kentucky convictions for possession of drug paraphernalia and was charged with removability under 8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach, under which an alien’s state conviction renders him removable if it “necessarily establishe[s]” a violation of federal law and the modified categorical approach, which applies if a divisible statute proscribes multiple types of conduct, some of which would constitute a removable offense. If a statute is divisible, a court may consult a limited class of documents to determine which alternative formed the basis of the conviction. The IJ determined that Galindo was not removable under the categorical approach because the Kentucky statute criminalizes paraphernalia for drugs that are not proscribed by federal law and that the modified categorical approach does not apply because the paraphernalia statute is not divisible, then terminated the removal proceedings. The BIA reversed, finding no “realistic probability” that Galindo’s conviction involved those drugs, and purported to enter a removal order. The Seventh Circuit vacated. While courts lack jurisdiction to review the BIA determination that the drug-paraphernalia convictions qualify as controlled-substance offenses and may review only a “final order of removal,” 8 U.S.C. 1252, they may vacate based on clear legal error. In this case, the IJ never made the requisite finding of removability; the Board lacked the authority to issue a removal order. View "Galindo v. Sessions" on Justia Law

Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his non-immigrant visa. Two years later, after he unsuccessfully sought asylum, Sembhi was charged as removable. Sembhi expected to obtain an I-130 visa based on his marriage to a U.S. citizen but when Sembhi appeared for a hearing in 2001, his counsel reported that his wife had obtained a default divorce. Sembhi’s counsel, Burton, indicated that Sembhi intended to explore vacating the divorce or cancellation of removal as an allegedly battered spouse or voluntary departure. The judge continued the matter. At the continued hearing Burton was present but Sembhi was not. Burton stated that he had not communicated with Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi had received notice, the judge ordered Sembhi removed. More than 10 years later, Sembhi, represented by attorney Carbide, moved to reopen, blaming Burton for his failure to appear--an “exceptional circumstance.” The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then acknowledged that his attorney had informed him orally of the hearing date but stated that he misunderstood the date. Before he filed this second motion, Sembhi had been married to another U.S. citizen for more than 10 years; his I-130 visa petition had been approved. After five adverse BIA decisions, Sembhi’s petition for review was denied by the Seventh Circuit. His fifth motion was late and numerically barred, 8 U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of those limitations. View "Sembhi v. Sessions" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision upholding the IJ's denial of petitioner's applications for asylum and withholding of removal. The court held that the IJ and BIA applied the correct legal standard in requiring petitioner to show his social group or political opinion was the predominant reason for the persecution. The court held that petitioner's asylum claim failed because the evidence did not compel a finding that petitioner was persecuted on account of his social group or political opinion. Likewise, petitioner's application for withholding of removal also failed. In this case, a reasonable factfinder could conclude that gangs were targeting petitioner for general recruitment purposes and his relationship to his father, a former policeman, was merely "incidental or tangential" to that goal. View "Gomez-Rivera v. Sessions" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal. The panel held that the Chinese police prevented petitioner from practicing his faith and did so through coercive means. In this case, petitioner suffered physical mistreatment that caused him to seek medical attention and the police effectively prevented him from practicing his religion and living a Christian life. Therefore, petitioner suffered ongoing harm which, under circuit precedent, compelled a finding of past persecution. The panel remanded for the BIA to apply the rebuttable presumption that petitioner will experience further persecution if returned to China. However, the panel held that petitioner failed to establish a clear probability of torture. View "Zhihui Guo v. Sessions" on Justia Law

Ricketts petitioned the Third Circuit to review the BIA's denial of his motions to reopen his removal proceedings, arguing that he is actually a U.S. citizen. Finding that there were genuine issues of material fact as to his nationality, the court granted a joint motion and transferred the nationality dispute to the Eastern District of New York, where Ricketts resided at the relevant time (8 U.S.C. 1252(b)(5)(B)). After an evidentiary hearing, that court decided that the evidence overwhelmingly established that Ricketts is a Jamaican national who appropriated the identity of a U.S. citizen. Ricketts sought review by the Second Circuit. The district court transmitted the appeal to the Third Circuit. The government sought transfer the to the Second Circuit, requesting that the Third Circuit retain jurisdiction over Ricketts’s other consolidated petitions for review. The Third Circuit held that an appeal from a nationality determination following a transfer must be taken to the appellate court that typically hears appeals from the district court making the determination rather than to the appellate court that transferred the case to the district court in the first place. The statute indicates that Congress intended that hearings under section 1252(b)(5)(B) be treated as new proceedings separate from the underlying petitions for review. The Third Circuit held it lacked jurisdiction to entertain an appeal from a nationality determination made by the Eastern District of New York. View "Ricketts v. Attorney General United States" on Justia Law

Petitioner's parents, Sunni Muslims, fled Syria before he was born to escape the al-Assad regime. Petitioner was born in Iraq and lived in Yemen. Petitioner obtained a bachelor’s degree in engineering. In 2011, Petitioner entered Turkey using a Syrian passport, obtained by his father. Petitioner's cousin, Alhaider, a U.S.-born teacher, traveled to Turkey. They became engaged. Petitioner obtained a new passport through his father, who would not divulge how he obtained it. The passport was actually a stolen blank Syrian passport, to which Petitioner’s information was added. Petitioner obtained a fiancé visa, 8 U.S.C. 1184(d), and traveled the U.S. He and Alhaider were married. Petitioner became a conditional permanent resident. DHS learned that Petitioner might have entered the U.S. using a stolen blank passport. Petitioner was charged as removable under 8 U.S.C. 1227(a)(1)(A), An IJ granted Petitioner a waiver of removal under 8 U.S.C. 1227(a)(1)(H), asylum, and withholding of removal. The BIA affirmed the grant of withholding but concluded that Petitioner was not entitled to asylum or to the waiver. The Sixth Circuit held that the Board unreasonably applied its own binding precedent, which dictates that asylum may not be denied solely due to violations of proper immigration procedures; the danger of persecution should outweigh all but the most egregious countervailing factors. Courts generally lack jurisdiction to review discretionary determinations such as the denial of a waiver but the BIA engaged in de novo review of the IJ’s factual findings, in violation of its regulatory obligation to review those findings only for clear error. View "Hussam F. v. Sessions" on Justia Law

The Supreme Court held that the county court erred when it declined to make special factual findings for Juvenile to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. 1101(a)(27)(J) on the grounds that it was not a “juvenile court” for purposes of the statute.Juvenile’s grandfather (Grandfather) sought to be appointed as Juvenile’s guardian and requested that the county court make special findings of fact contemplated in section 1101(a)(27)(J) to potentially become eligible for SIJ status. The county court appointed Grandfather as Juvenile’s legal guardian but declined to make the requested special findings of fact that Juvenile could use in his immigration petition based on its conclusion that it did not constitute a “juvenile court” for SIJ findings purposes. The Supreme Court reversed, holding (1) a county court with a jurisdictional basis under Neb. Rev. Stat. 43-1238(a) and which has made a child custody determination, such as appointing a guardian, has authority to make factual findings consistent with 8 U.S.C. 1101(a)(27)(J)(i) and (ii); and (2) the county court erred when it made a custody determination under section 43-1238(a) but then refused to make special findings under 8 U.S.C. 1101(a)(27)(J)(i). View "In re Guardianship of Luis J." on Justia Law

The Supreme Court held that the county court erred when it concluded that the appointed guardian (Guardian) of her juvenile nephew (Juvenile) had not satisfied 8 U.S.C. 1101(a)(27)(J) and therefore denied Guardian’s motion to make special factual findings that are necessary to apply for SIJ status under the statute.In denying Guardian’s request to make special findings to be used in immigration proceedings, the county court stated that Juvenile was “not dependent on this court” and that Guardian had not satisfied the dependency or custody component of section 1101(a)(27)(J). During the pendency of this appeal, the Nebraska Legislature amended Neb. Rev. Stat. 43-1238(b) to clarify that courts with jurisdiction over initial child custody determinations under section 43-1238(a) also have jurisdiction and authority to make special findings of fact similar to the findings of fact contemplated by section 1101(a)(27)(J). The Supreme Court reversed and remanded the case, holding that because the county court made a custody determination under section 43-1238(a), it erred when it concluded that it had not made a custody determination for purposes of section 1101(a)(27)(J)(i). View "In re Guardianship of Carlos D." on Justia Law