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Najera-Rodriguez, a 30-year-old lawful permanent resident, moved from Mexico to the U.S. when he was 10 years old. In 2016, based on possession of Xanax pills without a prescription, he pleaded guilty to unlawful possession of a controlled substance and was sentenced to two years of probation, community service, alcohol and drug treatment, educational requirements, and court fines. In removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i), Najera-Rodriguez argued that his Illinois conviction under 720 ILCS 570/402(c) did not qualify as a conviction under a law “relating to a controlled substance” as defined in under 21 U.S.C. 802. Both the immigration judge and the BIA ruled against him and ordered him removed. The Seventh Circuit vacated the removal order. The Illinois law covers many different substances, some of which are not included in the federal law, and many types of conduct; it is not “divisible” for purposes of applying the “modified categorical approach,” so Najera-Rodriguez’s conviction does not render him removable. View "Najera-Rodriguez v. Barr" on Justia Law

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The First Circuit dismissed Petitioner's petition for judicial review of a Board of Immigration Appeals' (BIA) decision adopting and affirming an immigration judge's (IJ) denial of Petitioner's request for withholding of removal under the Immigration and Nationality Act, 8 U.S.C. 1231(b)(3), holding that the Court lacked jurisdiction to consider Petitioner's challenge to the denial of withholding of removal. Specifically, the Court held that it lacked jurisdiction over Petitioner's arguments because (1) Petitioner's first argument was nothing more than a challenge to the BIA's determination that he did not present sufficient evidence to meet his burden for withholding of removal, which the Court lacked jurisdiction to review; and (2) Petitioner failed to exhaust his particular social group argument. View "Fabian-Soriano v. Barr" on Justia Law

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Defendant-appellant and Jordanian citizen Kamal Abdul Fryhaat had been living in the United States for over 30 years. In 2001, he pleaded guilty to various drug-related offenses and admitted to having suffered a prior prison term. In exchange, defendant was released on his own recognizance on various terms and conditions. Defendant subsequently violated his release terms and was sentenced to six years eight months in state prison. Approximately 17 years later, in 2018, as he was facing deportation proceedings, defendant filed a motion to vacate his guilty plea pursuant to Penal Code section 1473.7, arguing his conviction was legally invalid and not knowingly and intelligently made because neither his trial counsel nor the court advised him about the immigration consequences of his guilty plea. The trial court summarily denied defendant’s motion, and defendant appealed. On appeal, he argued the trial court erred in denying his motion to vacate his conviction because the court summarily denied his motion without a hearing, without his presence, and without appointed counsel in violation of section 1473.7. He therefore requested the matter be remanded for a hearing consistent with the provisions of section 1473.7. The State conceded defendant was partially correct, and that the matter must be remanded. Specifically, the State asserted defendant was entitled to a hearing, but as recent amendments to section 1473.7 made clear, defendant did not have a right to appointed counsel and his presence could adequately be protected by use of telephonic or videoconference services. After review, the Court of Appeal reversed the order denying defendant’s motion to vacate his conviction and remanded with instructions to the trial court to conduct a hearing pursuant to section 1473.7, evaluate defendant’s request for appointed counsel, and to consider the motion on its merits. View "California v. Fryhaat" on Justia Law

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Petitioner sought review of the BIA's decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The panel denied the petition as to petitioner's claims for asylum and withholding of removal, holding that substantial evidence supported the agency's determination that petitioner committed a serious nonpolitical offense and was therefore statutorily ineligible for asylum and withholding of removal. However, the panel granted the petition in regard to plaintiff's claim for relief under CAT, holding that the IJ failed to consider evidence from petitioner's church that he is a practicing Christian and evidence from the country reports that Christians are persecuted and tortured in China. View "Jiang Guan v. Barr" on Justia Law

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The Ninth Circuit joined its sister circuits and held that the BIA does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained. The panel held that the rationales supporting the practice of waiver and forfeiture hold in the context of removal proceedings in the Executive Office of Immigration review. The panel explained that the BIA is an appellate body whose function is to review, not create, a record, and it would be inappropriate to force it to consider new issues on appeal by judicial fiat. In this case, the BIA did not err by declining to consider petitioner's proposed particular social groups that were raised for the first time on appeal. Accordingly, the panel denied his petition for review. View "Honcharov v. Barr" on Justia Law

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In 2006, Sambare, a citizen of Burkina Faso, was admitted to the U.S. as a lawful permanent resident. Sambare was subsequently convicted of credit card theft and forgery. In 2013, when Sambare returned from visiting his mother in Ghana, ICE asserted that Sambare was inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), having been convicted of “crime[s] involving moral turpitude.” Sambare obtained a waiver of inadmissibility, 8 U.S.C. 1182(h), which restored his status as a lawful permanent resident. In 2015, Pennsylvania police stopped Sambare in his vehicle after he allegedly made an illegal U-turn. Sambare, who initially provided a false name, admitted that he had smoked marijuana before driving. Sambare tested positive for marijuana in his system and pleaded guilty to driving under the influence of a Schedule I controlled substance. The Immigration Court found that Sambare was removable because his conviction was for a “violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. 1227(a)(2)(B)(i). The Third Circuit dismissed Sambare’s petition for review, agreeing that Sambare’s conviction “is associated with the prohibition of driving, operating, or actual physical control of the movement of a vehicle . . . while there is a controlled substance in the individual’s blood,” which “is more serious than simple possession. View "Sambare v. Attorney General United States" on Justia Law

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The Fifth Circuit denied a petition for review of petitioner's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged membership in three possible groups stemming from his work as a law enforcement official. The court held that substantial evidence supported the BIA's conclusion that petitioner did not show the alleged persecution was on account of a protected ground and he was therefore not entitled to asylum or withholding of removal. In this case, even if petitioner's social groups were cognizable, he failed to show a nexus between the alleged persecution and his membership in the groups. Furthermore, the record evidence did not compel the conclusion that petitioner was eligible for CAT relief. View "Martinez Manzanares v. Barr" on Justia Law

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Plaintiffs, formerly civil immigration detainees treated for serious mental illnesses, filed a 42 U.S.C. 1983 action against the county and others, alleging that the failure to engage in discharge planning or to provide them with discharge plans upon release violated their substantive due process rights under the Fourteenth Amendment. The Second Circuit vacated the district court's grant of defendants' motion to dismiss. The court held that plaintiffs have adequately stated a Fourteenth Amendment substantive due process claim, because they plausibly alleged that they had serious medical needs requiring discharge planning and that defendants' failure to provide discharge planning to plaintiffs constituted deliberate indifference. Accordingly, the court remanded for further fact finding and further proceedings. View "Charles v. Orange County" on Justia Law

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The Eleventh Circuit granted a petition for review of the BIA's final order denying her all relief from deportation. The BIA upheld the IJ's finding that petitioner, although persecuted because of her membership in a particular social group, had failed to establish that the Salvadoran government was unwilling or unable to protect her from this persecution. The court held, however, that the BIA disregarded and distorted significant portions of the record in reaching this conclusion. In this case, the agency adjudicators repeatedly failed to offer specific, cogent reasons for disregarding the concededly credible, significant, and unrebutted evidence that petitioner provided. Furthermore, the government's reasons were unpersuasive. View "Orellana v. Barr" on Justia Law

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The First Circuit denied Petitioner's petition for review of an administrative order of removal, holding that Petitioner's arguments challenges to the removal order were unavailing. Petitioner was an Irish citizen who entered the United States as a child and had been living here for more than seven years when he was apprehended by immigration officials. The government charged him with having been admitted to the United States via the Visa Waiver Program (VWP) and having stayed here beyond the ninety-day period permitted by the visa that he secured through the VWP. The government then issued a final order of removal. The First Circuit denied Petitioner's petition for review, holding (1) the government presented sufficient evidence of Petitioner's removability; and (2) Petitioner's procedural due process challenge to the removal order failed. View "O'Riordan v. Barr" on Justia Law