Justia Immigration Law Opinion Summaries

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The Ninth Circuit filed an order granting the government's motion to amend, and an amended opinion granting a petition for review of the BIA's decision and remanding. The panel wrote that the withdrawal sanction in 8 U.S.C. 1003.4 is triggered by an alien's "departure," from this country and that the regulation does not distinguish between volitional and non-volitional departures. The panel noted that the BIA has recognized that an unlawful removal does not a constitute a section 1003.4 departure, but has not addressed whether a lawful removal would withdraw an appeal. In the amended opinion, the panel held that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, the panel held that section 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal. In this case, petitioner did not withdraw his appeal of the denial of his motions to reopen and reconsider when he was involuntarily removed from the United States. View "Lopez-Angel v. Barr" on Justia Law

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The Eighth Circuit denied petitions for review of the BIA's denial of petitioner's application for cancellation of removal (No. 18-1531) and denial of his motion to reopen and reconsider (No. 18-3164). The court affirmed the BIA's denial of petitioner's application for cancellation of removal, holding that the decision to grant cancellation of removal was a discretionary act by the Attorney General that this court may not review. Furthermore, petitioner had no right to due process in the purely discretionary remedy of cancellation of removal because no constitutionally cognizable liberty interest arose from it, and his claim that the actions of ICE violated his due process rights in his agency proceeding were unavailing. Finally, the court held that it lacked jurisdiction to consider petitioner's claim that the BIA erred in weighing the many factors regarding petitioner's moral character and the relevant hardships. The court also affirmed the BIA's denial of petitioner's motion to reopen and reconsider, holding that petitioner's claim failed because, if the BIA had reopened the case, the issue was whether petitioner was entitled to cancellation of removal–a form of discretionary relief that he has no constitutionally protected interest in receiving. Therefore, the BIA did not abuse its discretion when it declined to reopen and reconsider this case. View "Rodriguez v. Barr" on Justia Law

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Omorhienrhien came to the U.S. as a visitor from Nigeria in 2008 and began a relationship with Harris, a citizen. They married months later. Harris filed Form I-130 to give Omorhienrhien a path to residency based on their marriage. USCIS denied the petition upon discovering that Omorhienrhien had been legally married to another woman in Nigeria when he married Harris, though the Nigerian marriage had since ended. Omorhienrhien and Harris remarried and submitted a new petition. Omorhienrhien received a two-year conditional permanent residency in 2011, 8 U.S.C. 1186a(a)(1). Omorhienrhien and Harris divorced about six months after he obtained that status. Because Harris did not join him in a petition to remove the conditions, Omorhienrhien unsuccessfully sought a hardship waiver. In removal proceedings, an IJ rejected his claim that the marriage was in good faith. The divorce decree stated that the parties were married in December 2008 and had been separated since July 2009; there was a lease indicating that the two lived separately. The IJ noted the lack of any objective evidence that the couple married with the intent to share a life together. The BIA dismissed his appeal. The Seventh Circuit denied a petition for review, finding no legal errors. The IJ applied the correct standard of proof. View "Omorhienrhien v. Barr" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's final order of removal following her appeal of the IJ's removal order denying her applications for asylum and withholding of removal. The court held that petitioner's Minnesota drug convictions constituted grounds for removal and rejected petitioner's claim that the statute was overbroad and indivisible. The court lacked jurisdiction to review petitioner's claim that she was not subject to removal under 8 U.S.C. 1182(a)(6)(A)(i). The court also held that the criminal alien bar precluded the court's review of the BIA's decision on petitioner's applications for asylum and withholding of removal. In this case, petitioner did not qualify for the extraordinary circumstances exception to the one-year deadline for filing an asylum application, and the court lacked jurisdiction to review petitioner's claim that she suffered persecution as a member of a protected group. The court also held that the BIA did not abuse its discretion in declining to terminate the removal proceedings, and petitioner's remaining claims were rejected. View "Villegas Rendon v. Barr" on Justia Law

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After the United States simultaneously prosecuted and removed defendant, he sought to dismiss the indictment. Defendant argued that the Executive Branch violated his rights under the Bail Reform Act (BRA) and the Constitution by simultaneously proceeding with prosecution and removal. The Eighth Circuit held that the BRA and the Immigration and Nationality Act (INA) co-exist, and that Subsection 3142(d) of the BRA does not conflict with removal under the INA. The court explained that the subsection regulates a "judicial officer," not an Executive Branch official, like an ICE agent; it requires the judicial officer to provide notice and ten-day detention, so immigration officials may detain a non-citizen defendant who poses a risk of flight or danger, but does not mandate that immigration officials detain then and only then; and, if immigration officials do detain then, the subsection does not state that the judicial officer or prosecution must dismiss criminal charges. Furthermore, if the immigration official does not detain within ten days, the non-citizen defendant shall be treated in accordance with the other provisions. The other provisions of the BRA do no preclude removal under the INA. The court rejected defendant's remaining arguments to the contrary. View "United States v. Pacheco-Poo" on Justia Law

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The First Circuit denied Petitioner's petition for review of the order of the Board of Immigration Appeals (BIA) denying Petitioner's motion to reopen his immigration case, holding that the BIA did not abuse its discretion in denying Petitioner's motion to reopen on the grounds that Petitioner did not establish changed country conditions. Petitioner, a native and citizen of Guatemala who illegally entered the United States and was later placed in removal proceedings, applied for asylum and withholding of removal on the grounds that he feared gang violence upon his return to Guatemala. The immigration judge (IJ) denied Petitioner's applications. The BIA dismissed Petitioner's appeal, agreeing with the conclusion of the IJ that Petitioner had not shown that he would more likely than not suffer persecution upon his return to Guatemala. Petitioner later moved the BIA to reopen his case, alleging ineffective assistance of counsel and that country conditions in Guatemala had substantially changed. The BIA denied Petitioner's motion to reopen. The First Circuit affirmed, holding that the BIA did not err in declining to equitably toll the ninety-day statutory filing deadline and in concluding that Petitioner had not demonstrated that country conditions in Guatemala had substantially changed since his hearing. View "Molina v. Barr" on Justia Law

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The Eighth Circuit denied a petition for review of the BIA's denial of petitioner's application for asylum based on his claim that he belonged to a particular social group of "individuals with schizophrenia who exhibit erratic behavior." The BIA found that there was no connection between the alleged persecution and the social group. The court held that the BIA did not err in concluding that petitioner failed to establish that he would be subjected to persecution on account of his membership in the alleged social group. In this case, the record was not so substantial that a reasonable factfinder would have to conclude that Mexico's government targets individuals on account of group membership. Rather, the BIA noted that economic considerations, as well as political considerations, contributed substantially to the regrettable institutional conditions. View "Perez-Rodriguez v. Barr" on Justia Law

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Jose Lira-Ramirez was indicted on a charge of illegally reentering the United States, an element of which was the existence of a prior removal order. Though Lira-Ramirez had been removed in earlier proceedings, he moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction over the earlier proceedings because the notice to appear was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The district court denied the motion to dismiss the indictment, and Lira-Ramirez appealed. After review, the Tenth Circuit affirmed, concluding that precedents foreclosed Lira-Ramirez’s jurisdictional challenge: “[T]wo precedential opinions that [the time and date] omission does not create a jurisdictional defect.” The Court thus affirmed denial of Lira-Ramirez’s motion. View "United States v. Lira-Ramirez" on Justia Law

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Alvarez-Espino, born in Mexico in 1970, entered the U.S. in 1996 without permission. Since then he and his wife have had four children, and he supports his family by running an upholstery business. In 2002, two men robbed him at gunpoint at a Chicago gas station. Five years later, he was arrested for drunk driving and, following a probation violation, ended up with a one-year prison term. In removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i), his lawyer failed to realize that Alvarez-Espino had a chance at receiving a U visa for his assistance in solving the 2002 robbery. Alvarez-Espino changed lawyers, but after protracted proceedings, the Board of Immigration Appeals denied multiple requests for relief, leaving Alvarez-Espino at risk of removal and having to await a decision on his U visa application from Mexico. The Seventh Circuit denied his petition for review. In denying relief, the Board held Alvarez-Espino to an unduly demanding burden on his allegation of ineffective assistance of counsel but the law is equally clear that Alvarez-Espino’s ability to continue pursuing a U visa means that he cannot show prejudice from his attorney’s performance. View "Alvarez-Espino v. Barr" on Justia Law

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The Eighth Circuit denied a petition for review challenging the BIA's decision reversing the IJ's ruling that petitioner merited asylum because he had a well-founded fear of future persecution in Nigeria for his political opinions. The court held that, despite the harmless error of substituting its own findings about communicating his political opinions, substantial evidence supported the BIA's determination that petitioner was ineligible for asylum, because he failed to show that he faced a particularized threat of persecution. Furthermore, the BIA did not exceed its authority by requiring corroborating evidence for petitioner to meet his burden of proof. The court also held that petitioner could not show that the outcome of proceedings would have differed with notice and opportunity, and thus he failed to demonstrate prejudice from any procedural error. View "Uzodinma v. Barr" on Justia Law