Justia Immigration Law Opinion Summaries

Petitioner pled guilty to attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), and was found removable as an alien convicted of a violation of state law relating to a controlled substance. The court concluded that it was jurisdictionally barred from reaching the merits of petitioner's claim that the Arizona definition of attempt is categorically broader than the federal generic definition because he failed to exhaust this argument before the BIA. The court rejected petitioner's argument that the controlled substance at issue in his Arizona conviction cannot be established by applying the modified categorical approach. The court was confident based on circumstantial evidence that, although it could not consider the indictment because the original count as originally charged was dismissed and he had pled to a lesser charge in a modified count, a page describing the substance of methamphetamine was specifically incorporated into the plea agreement as the factual basis for petitioner's guilty plea. Accordingly, the court denied in part and dismissed in part.View "Alvarado v. Holder, Jr." on Justia Law

The Child Status Protection Act, 8 U.S.C. 1153(h), allows adult children of lawful permanent residents to maintain child status if their parent filed a visa petition on their behalf while they were under 21 and prevents such children from aging out of visa priority while their petition is under review. But an immigrant may take advantage of this provision only if he “sought to acquire the status of an alien lawfully admitted for permanent residence within one year” of a visa number becoming available. Velásquez is the adult child of a lawful permanent resident. In 2005, when Velásquez was 17, his father filed a visa petition on his behalf. Velásquez’s visa number became available in March 2011. Velásquez took steps to acquire permanent-resident status within one year, but did not file a formal application for permanent status until 14 months after his visa number became available. Later, the Board of Immigration Appeals adopted a new rule that required an immigrant to file or attempt to file a substantially complete application for permanent status within one year to satisfy the “sought to acquire” prerequisite. Because Velásquez had not done so, the Board ordered him removed. The Seventh Circuit remanded, finding the new interpretation of the Act’s ambiguous language to be reasonable, but holding that retroactive application works a manifest injustice in Velásquez’s case,View "Velasquez-Garcia v. Holder" on Justia Law

The issue this case presented for the Supreme Court's review centered on the proper allocation of the burden of proof between an employer and a workers' compensation claimant regarding the injured employee's legal eligibility under federal immigration law to obtain suitable employment whenever the employer seeks to suspend workers' compensation disability benefits. The Court held that in this case, the Commonwealth Court correctly determined that Appellant, Kennett Square Specialties bore the burden to prove that the loss of earning power of its employee, David Cruz, was due to his lack of United States citizenship or other legal work authorization in order to obtain a suspension of his workers' compensation disability benefits. Furthermore, the Court held that Claimant's invocation of his Fifth Amendment right against self-incrimination when questioned at the hearing before the Workers' Compensation Judge did not constitute substantial evidence of his alleged lack of legal authorization to be employed in the United States, and thus could not, standing alone, furnish sufficient evidence for the WCJ to suspend Claimant's benefits. View "Cruz v. Workers' Compensation Appeal Board" on Justia Law

Petitioner, a native and citizen of El Salvador, sought review of the BIA's order affirming the IJ's denial of asylum and withholding of removal because petitioner was not a member of a cognizable social group and, alternatively, because petitioner failed to establish a nexus between a social group and the death threats he received from MS-13. The court granted the petition for review and remanded for further proceedings, concluding that petitioner demonstrated a cognizable family-based social group because of his kinship ties to his cousin and uncle, both of whom MS-13 murdered on account of their membership in a rival gang. Further, the BIA's nexus analysis failed to build a rational bridge between the record and the agency's legal conclusion. View "Cordova v. Holder" on Justia Law

Baptist is a native of Belize who entered the U.S.as a lawful permanent resident in 1988.In 1992, Baptist pleaded guilty to possession of a controlled substance and was sentenced to probation. In 1995, Baptist was convicted of possession of a controlled substance and was again sentenced to probation. In 1996, Baptist was again convicted of possession of a controlled substance and was sentenced to five years’ imprisonment. At the time, the offense was considered an aggravated felony and he was placed in removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) and 8 U.S.C. 1227(a)(2)(B)(i). Baptist signed a stipulated removal order in 1998. Afterwards, he illegally reentered the U.S. several times; each time he was discovered, he was again removed to Belize. In 2005, Baptist illegally entered once more and avoided detection until he was arrested in 2010. Charged with being illegally present in the U.S. after having been previously removed, 8 U.S.C. 1326(a). Baptist moved to dismiss the indictment, collaterally attacking his 1998 removal as violating his due process rights. The district court denied Baptist’s motion. The Seventh Circuit affirmed, stating that Baptist failed to establish that his removal proceedings were “fundamentally unfair.”View "United States v. Baptist" on Justia Law

Wang, a citizen of China was smuggled into the U.S. Virgin Islands in 1999, then age 21. Within two days, authorities discovered him and took him into custody. He was personally served with a notice to appear in the New Orleans immigration court at a “[t]ime and date to be set later.” There is no immigration court in the U.S. Virgin Islands. From a New Orleans detention facility, Wang was released on $15,000 bond, providing a North Carolina address. The immigration court twice attempted to inform Wang of the date of his hearing. Although Wang received the first notice, apparently neither was properly served. Wang did not appear and, in November 1999, the immigration judge closed the case. Wang remained in the U.S., married a Chinese citizen, and had children with her. In 2009 he voluntarily returned to immigration court and moved to recalendar his proceedings. He stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. A U Visa is available to certain noncitizen crime victims who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” Wang believed that he was eligible as a victim of human trafficking. An immigration judge continued the case for 20 months. At the next hearing in 2012, the IJ learned that Wang had not obtained a U Visa and denied cancellation of removal on the ground that Wang lacked the required 10 years of continuous presence; his qualifying time ended when he was served with Notice to Appear two days after his arrival. The BIA and Seventh Circuit dismissed appeals. A notice that does not specify a particular time and date for the initial hearing suffices for purposes of the “stop-time” rule. View "Wang v. Holder" on Justia Law

Petitioner filed an application for adjustment of immigration status. An Immigration Judge (IJ) denied Petitioner’s application on the basis of numerous child abuse/neglect reports, as well as a criminal charge, and ordered Petitioner removed to the Dominican Republic. The Board of Immigration Appeals (BIA) denied Petitioner’s appeal, finding that the IJ’s decision was supported in the record and that the IJ had fully considered any offsetting favorable factors. Petitioner appealed to the First Circuit. The First Circuit dismissed the petition for review for lack of jurisdiction because Petitioner did not raise colorable claims premised on constitutional claims or questions of law.View "Jaquez v. Holder" on Justia Law

Petitioner, a native of Germany, lawfully entered the United States in 1959. In 2004, Petitioner pleaded guilty to possession of child pornography under Connecticut law. The Board of Immigration Appeals (BIA) later concluded that Petitioner was removable for having been convicted of an aggravated felony of child pornography under 8 U.S.C. 1101(a)(43)(I) and 1227(a)(2)(A)(iii). Petitioner petitioned for review, contending the government did not meet its burden of showing that the state conviction fell under the federal statute because the relevant state law of conviction encompassed other conduct. The First Circuit denied Petitioner’s petition for review, holding that Petitioner’s admission in the state proceeding to having images of children “having sex” was sufficient to bring him within the federal statute’s definition of an aggravated felony of child pornography. View "Kaufmann v. Holder" on Justia Law

Petitioner, a citizen of China then still in China, married an American citizen. Two years later, Petitioner entered the United States and was granted conditional permanent resident status on the basis of her marriage. Petitioner and her husband had filed a joint petition to remove the conditions on Petitioner’s residency, but the joint petition was denied after the couple’s divorce. Petitioner subsequently sought a waiver of the joint petition requirement, arguing that she had entered into the marriage in good faith. The waiver was denied. Petitioner later conceded removability but sought review of the waiver denial. An immigration judge (IJ) denied Petitioner’s request for relief and granted voluntary departure, finding that Petitioner failed to meet her burden to demonstrate she entered into her marriage in good faith. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision. The First Circuit denied Petitioner’s petition for review, holding that the decisions by the BIA and IJ were supported by substantial evidence.View "Lin v. Holder" on Justia Law

Petitioner, a native and citizen of Brazil, was charged with being unlawfully present in the United States. Petitioner conceded removability and applied for withholding of removal and other forms of relief, claiming that his family had suffered past persecution and feared future persecution because of threats made by his daughter’s former boyfriend. An immigration judge (IJ) denied relief. The Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal, concluding that Petitioner failed to establish that he was entitled to avoid removal. The First Circuit denied Petitioner’s petition for review, holding that a lack of nexus between the former boyfriend’s conduct and a protected ground was fatal to Petitioner’s withholding of removal claim. View "Moura v. Holder" on Justia Law