Justia Immigration Law Opinion Summaries

The Eighth Circuit denied a petition for review of the BIA's decision affirming the IJ's decision sustaining DHS's charges that petitioner entered into a fraudulent marriage with the purpose of procuring adjustment of status. The court held that the testimony and documentary evidence submitted by DHS -- and not refuted by credible evidence that petitioner and his wife ever lived together -- was substantial evidence that supported the IJ's finding that the marriage was fraudulent under 8 U.S.C. 1182(a)(6)(C)(i) and therefore petitioner was removable under section 1227(a)(1)(A). View "Abuya v. Sessions" on Justia Law

After his conviction for a felony in Illinois, Rodriguez-Contreras, a lawful U.S. permanent resident, was found in possession of a weapon and was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration Appeals concluded that he was removable as an alien convicted of an “aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C. 922(g)(1), which bars anyone convicted of a felony from possessing a firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA did not address whether the substantive elements of the state offense match those of the federal law, which defines "firearm" as “any weapon … designed to … expel a projectile by the action of an explosive.” Compressed air is not an explosive, so pneumatic weapons are not “firearms.” Illinois law defines a firearm as “any device ... designed to expel a projectile ... by the action of an explosion, expansion of gas or escape of gas.” Illinois law is broader than the federal law. The court rejected an argument that the Illinois statute is “divisible” and permits judges to determine which statutory provision was involved. Illinois has a single crime of weapon possession by a felon, with multiple ways of committing that crime. A definitional clause does not create a separate crime. Federal law does not foreclose Rodriguez-Contreras’ obtaining discretionary relief from removal. In exercising discretion the BIA may consider that Rodriguez-Contreras possessed a weapon that is subject to both state and federal prohibitions. View "Rodriguez-Contreras v. Sessions" on Justia Law

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed and departed in 2005. Garcia claims that he was kidnapped and beaten upon his return to Honduras because of his opposition to deforestation. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. The BIA rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a), reasoning that it lacked authority to declare the controlling regulations in violation of the statute. The BIA noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit initially dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. On rehearing, the government and court agreed that Garcia has standing. On the merits, the Seventh Circuit held that 8 U.S.C. 1231(a)(5) plainly prohibits aliens subject to reinstatement of a removal order from applying for asylum. View "Garcia v. Sessions" on Justia Law

The Eleventh Circuit denied the petition for review and held that the BIA's interpretation of 8 U.S.C. 1182(h) was reasonable where the agency concluded that petitioner was not entitled to relief under the Special Rule based on his convictions for crimes of moral turpitude. Upon careful review of petitioner's arguments and the BIA's discussion in Matter of Y-N-P-, the court held that section 1182(h) was ambiguous and the BIA rationally and thoughtfully considered the unique legal question before it, reasonably concluding that section 1182(h) was unavailable to applicants under the Special Rule. View "Arevalo v. U.S. Attorney General" on Justia Law

In 2014, the Seventh Circuit held that the Attorney General has authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s inadmissibility and to halt removal temporarily while the alien requests a U visa. In Sanchez’s case, the Board of Immigration Appeals held that IJs lack authority to grant such requests. The Seventh Circuit vacated and remanded. Delegation from the Attorney General to immigration judges is a matter of regulation; 8 C.F.R. 1003.10(a) states that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Disagreeing with the Third Circuit and the Attorney General, the Seventh Circuit held that IJs may exercise the Attorney General’s powers over immigration. On remand, the Board may consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of Homeland Security all of the Attorney General’s discretionary powers under the immigration laws and may also address whether the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States. The Board must address and resolve those essential issues before the court can consider whether the disposition lies within the scope of the agency’s discretion. View "Baez-Sanchez v. Sessions" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's order denying a motion to reconsider petitioner's motion to reopen. Applying Chevron deference to the agency's decision, the court held that petitioner failed to brief her ineffective assistance of counsel claims and therefore waived those claims. View "Lowe v. Sessions" on Justia Law

The Ninth Circuit affirmed the district court's order granting a preliminary injunction for a class of non-citizens in removal proceedings who are detained under 8 U.S.C. 1226(a). In this case, the government has already determined that the class members were neither dangerous nor enough of a flight risk to require detention without bond. Nonetheless, the class members remain detained because they are unable to afford bond in the amount set by the immigration officials. The panel held that the district court did not abuse its discretion by granting plaintiffs' motion for a preliminary injunction because plaintiffs were likely to succeed on the merits of their due process claim. The panel reasoned that the government's current policies failed to provide adequate procedural protections to ensure that detention of the class members was reasonably related to a legitimate governmental interest. The panel concluded that due process likely requires immigration officials when considering bond determinations to consider financial circumstances and alternative conditions of release. Furthermore, plaintiffs were likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favored plaintiffs; and the public interest benefited from the injunction. View "Hernandez v. Sessions" on Justia Law

In the 1990s, as a young teenager, Alimbaev, a citizen of Uzbekistan, attended a few services led by Nazarov, an imam who was accused by the Uzbek government of preaching violence and plotting a government takeover. In 2001, Alimbaev came to the U.S. as a visitor, overstayed his visa, and became involved with other supporters of Nazarov. He is currently married, for the second time, to a U.S. citizen, with whom he has two children. He claims to fear persecution and torture if he is removed to Uzbekistan. His application to extend and change the status of his visa contained numerous misrepresentations. There was testimony that Alimbaev relished watching violent terroristic videos, while apparently harboring anti-American sympathies. After a remand, the Board of Immigration Appeals reversed an IJ’s determination and ordered Alimbaev removed. The Third Circuit again vacated the denial of his applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remanded. The BIA misapplied the clear error standard when reversing the IJ’s finding that Alimbaev’s testimony was credible View "Alimbaev v. Attorney General United States" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal on the ground that he waived his right to appeal by departing under an order of removal. The panel held that petitioner's departure alone did not constitute a "considered" and "intelligent" waiver of his right to appeal and therefore did not meet the constitutional requirements of a valid waiver. Furthermore, the IJ's failure to inform petitioner that his departure would constitute a waiver of his previously reserved right to appeal to the BIA rendered petitioner's purported waiver invalid. The panel remanded for further proceedings. View "Chavez-Garcia v. Sessions" on Justia Law

Cristian Aguilar, a Honduran national with temporary protected status, pleaded guilty to the state-jail felony of attempting to evade arrest in a motor vehicle and was sentenced to six months’ imprisonment. In his application for a writ of habeas corpus, Aguilar alleged that his plea counsel, who gave incorrect advice regarding the immigration consequences of the guilty plea, was ineffective and his plea was involuntary. The Court of Criminal Appeals found, after review, Aguilar had shown he would not have pleaded guilty if he had been correctly advised of the relevant immigration consequences. Therefore, the Court held ineffective assistance of counsel rendered his plea involuntary and vacated his plea. View "Ex parte Cristian Aguilar" on Justia Law