Justia Immigration Law Opinion Summaries

Stanovsek, a citizen of Australia, was admitted on a nonimmigrant visitor visa in 1990 and later adjusted status to lawful permanent resident by virtue of his marriage to a U.S. citizen. In 2009, Stanovsek was convicted for the offense of aggravated theft and was sentenced to three years of imprisonment. Stanovsek’s crime constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(G). DHS charged Stanovsek with removability under 8 U.S.C. 1227(a)(2)(A)(iii), as a noncitizen convicted of an aggravated felony after his admission. Stanovsek conceded the charge of removability, but requested an adjustment of status and waiver from removal based on “extreme hardship” on the alien’s citizen spouse, parent, or child, 8 U.S.C. 1182(h). The IJ held that Stanovsek was ineligible for a 212(h) waiver and the BIA affirmed, based on language that: No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony. The Sixth Circuit remanded, distinguishing between an alien admitted as an immigrant and an alien admitted as a nonimmigrant who later adjusts to immigrant status. View "Stanovsek v. Holder" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, married a United States citizen and obtained permanent resident status on a conditional basis. After Petitioner and his wife divorced, Petitioner applied for a waiver of the joint petition requirement under section 216(c) of the Immigration and Nationality Act. The Immigration Judge (IJ) reviewed and denied the application, concluding that Petitioner’s marriage was not entered into in good faith, as required for the waiver. The IJ granted Petitioner thirty days for voluntary departure. The Board of Immigration Appeals (BIA) dismissed the appeal and extended the time within which Petitioner could voluntarily depart. Petitioner subsequently filed a motion to reopen based on a pending I-130 visa petition filed by his daughter, who was a United States citizen. The BIA denied the motion, finding that Petitioner was not eligible to adjust his status because he failed to voluntarily depart within the time frame established by the IJ and the BIA. The First Circuit denied Petitioner’s petition for review, holding (1) Petitioner was statutorily ineligible for the relief he sought in the motion to reopen; and (2) the BIA did not abuse its discretion in denying Petitioner’s ineffective assistance of counsel claim. View "Taveras-Duran v. Holder" on Justia Law

Plaintiffs, husband and wife, filed suit challenging the USCIS's revocation of I-140 visa petitions filed on the husband's behalf. On appeal, plaintiffs challenged the district court's dismissal of their complaint based on lack of subject matter jurisdiction. The court concluded that the district court erred in dismissing plaintiffs' complaint for lack of constitutional standing where the regulatory definition of "affected party" does not preclude the beneficiary from having standing in the district court, as it relates to who has the ability to challenge the administrative denial of a petition, and under the test for constitutional standing, plaintiffs suffered an injury in fact from the revocation of the visa petitions. In regards to prudential standing, the court concluded that the husband fell within the zone of interests and may challenge the visa petition revocation. The court also concluded that the district court erred in dismissing plaintiffs' complaint for lack of subject matter jurisdiction under 8 U.S.C. 1252(a)(2)(B)(ii) because the complaint raises a question of law. Accordingly, the court vacated and remanded for further proceedings. View "Kurapati, et al. v. USCIS, et al." on Justia Law

Petitioner sought review of the BIA's order of removal. The court concluded that, given the scope of the BIA's remand order, the IJ properly allowed the government to file new charges against petitioner. On the merits, the court concluded that petitioner's prior conviction under California Penal Code section 455 is divisible, and applying the modified categorical approach, his attempted arson conviction qualifies as an aggravated felony. The court also concluded that petitioner is not saved from removal by the fact that the state statute lacks jurisdictional elements included in the corresponding federal provisions. The court declined to follow the Third Circuit's contrary interpretation in Bautista v. Attorney General of the United States. View "Sandoval-Gomez v. Holder, Jr." on Justia Law

Defense counsel in this case advised petitioner that a guilty plea to a burglary charge "may" have had an impact on petitioner's immigration status. The consequences of the plea were clear: a conviction constituted an aggravated felony and would almost certainly lead to deportation proceedings under the Immigration and Nationality Act (INA). This case centered on the adequacy of an attorney’s immigration advice to a legal permanent resident who entered a guilty plea to a burglary charge. The habeas court denied petitioner's petition, finding that petitioner was advised "as accurately as possible regarding a negative impact on his immigration status, including, but not limited to, possible deportation." The court added: "[C]ounsel provided petitioner with consistent, accurate advice about the risk petitioner was facing. The advice and instruction provided to petitioner was neither 'mis-advice' nor insufficient or inadequate." Petitioner filed an application for a certificate of probable cause to appeal which the Supreme Court granted, posing the following question: "Did the habeas court properly analyze the claim presented?" The Supreme Court answered "no," reversed the habeas court, and remanded with directions. View "Encarnation v. Georgia" on Justia Law

Petitioner, a native of Sri Lanka, sought review of his recent order of removal and an earlier order of removal. The court held that it lacked jurisdiction to review the earlier order where the order was final and petitioner declined to pursue a timely petition for its review, as well as failed to exhaust his earlier arguments in his second appeal to the Board. In regards to the recent order, at issue was whether silence in a report of the Department of State about torture of asylum seekers on return to an alien's home country may rebut affirmative evidence of that torture presented by the alien. The court concluded that the silence of a State Department report cannot, without more, rebut the affirmative evidence petitioner presented. Accordingly, the court vacated the Board's order and remanded for further proceedings. View "Gaksakuman v. U.S. Attorney General" on Justia Law

Mahn, a citizen of Liberia, entered the U.S. in 2000 as a refugee. Five years later, he adjusted his status to lawful permanent resident. In 2007-2008, Mahn pled guilty in Pennsylvania to theft by deception and forgery and to recklessly endangering another person, based on losing control of his car and hitting a building. In 2011, DHS charged that he was removable under 8 U.S.C. 1227(a)(2)(A)(ii) for having “been convicted of two crimes involving moral turpitude not arising out of a single scheme.” Mahn unsuccessfully moved to terminate removal proceedings. The IJ ordered Mahn removed to Liberia. The Board of Immigration Appeals affirmed, reasoning that Mahn’s reckless endangerment conviction constituted a CIMT because “the statute under which [he] was convicted defines recklessness as a conscious disregard of a substantial risk of such a nature that it amounts to a gross deviation from the standard of care of a reasonable person” and is “coupled with the requirement that the conduct place another person in danger of death or serious bodily injury.” The Third Circuit vacated and remanded. Applying the categorical approach, the least culpable conduct punishable under Pennsylvania’s reckless endangerment statute does not implicate moral turpitude. View "Mahn v. Att'y Gen. of the United States" on Justia Law

Rais, born in Pakistan in 1975, entered the U.S. in 2002 to attend school, married a citizen, and applied for adjustment of status to lawful permanent residency. He was convicted of domestic violence against his wife, in 2002, and was granted advance parole, allowing him to leave the U.S. without abandoning his application for adjustment of status. He was paroled back into this country in 2003. In 2004, his application for adjustment of status was denied. Rais married another U.S. citizen in 2005, and again applied for adjustment of status. That application was denied in 2009 because of the domestic violence conviction. An IJ ordered his removal, determining that she lacked jurisdiction to grant adjustment of status under 8 U.S.C. 1255. The BIA affirmed. Rais twice moved to reopen removal proceedings, requesting that proceedings be suspended while the U.S. Citizenship and Immigration Services adjudicates his application for adjustment of status. The BIA denied the first motion on the merits and refused to exercise its sua sponte authority to grant the second, which was untimely and number-barred. Rais sought review of the second denial. The Sixth Circuit dismissed the petition for want of jurisdiction to review the BIA’s decision to refrain from exercising its authority. View "Rais v. Holder" on Justia Law

Jeudy entered the U.S. from Haiti in 1980 without inspection. He became a lawful permanent resident in 1989. In 2009, the government charged him as removable based on his 1995 guilty plea to attempted possession of crack cocaine, 8 U.S.C. 1251(a)(2)(B)(i). An alien found to be deportable at that time could be eligible for discretionary relief. Among other requirements, an alien had to accrue a certain period of continuous presence or residence in the U.S. While conviction rendered him deportable, he continued to accrue time toward a period of continuous residence. In 1996, he reached the required seven years under 8 U.S.C. 1182(c). In 1997, the Illegal Immigration Reform and Immigrant Responsibility Act added the “stop-time rule,” which cuts off the accrual of time toward those years of continuous residence upon service of notice to appear or commission of certain offenses, 8 U.S.C. 1229b(d)(1). Jeudy has no family in Haiti, and has three children who are American citizens. The immigration judge found that the stop-time rule applied retroactively to cut off Jeudy’s period of continuous residence in 1995. The Board of Immigration Appeals affirmed. The Seventh Circuit granted Jeudy’s petition for review. The stop-time rule does not convey a clear intent to govern retroactively, and the stop-time rule would have an impermissible retroactive effect if it were applied to Jeudy’s 1995 drug offense. View "Jeudy v. Holder" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, was physically removed from the United States to the Dominican Republic in 2002 after he received two state convictions with immigration consequences. In 2006, Petitioner entered the United States without inspection or admission. Petitioner subsequently filed an untimely motion with the Board of Immigration Appeals (BIA) to reopen his proceedings. The BIA denied the motion to reopen. In 2008, Petitioner filed an untimely motion to reconsider the BIA’s decision. The BIA decided to sua sponte reopen the proceedings in 2008 and remanded the record back to the Immigration Judge (IJ). The IJ denied relief and ordered Petitioner’s deportation. Petitioner appealed. In 2012, the BIA determined that its 2008 order sua sponte reopening proceedings was issued in error and ultimately denied Petitioner’s 2008 motion to reconsider. Petitioner petitioned for review of the BIA’s 1012 order effectively denying sua sponte reopening proceedings. The First Circuit dismissed the petition for judicial review, holding that it lacked jurisdiction to review the BIA’s decision to deny reopening removal proceedings sua sponte. View "Guerrero v. Holder" on Justia Law