Justia Immigration Law Opinion Summaries

Petitioner, a citizen of Mexico, petitioned for review of the BIA's finding that petitioner did not qualify for cancellation of removal. Petitioner argued that the BIA committed an error of law when it "failed to follow its own precedent" in deciding the hardship issue, and violated his right to due process by failing to adequately examine all the hardship factors he presented. The court concluded that it lacked jurisdiction to consider the first contention where petitioner attempted to create jurisdiction by cloaking an abuse of discretion argument in constitutional legal garb, and the second contention was without merit. Accordingly, the court denied the petition for review. View "Hernandez-Garcia v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court concluded that petitioner failed to establish he belonged to a particular social group because gangs specifically targeted his family; petitioner failed to show that his family is different from any other Salvadoran family that has experienced gang violence; petitioner's political-opinion argument was waived because he raised it for the first time on administrative appeal; and, in regards to relief under the CAT, the IJ and BIA found no evidence that the police in El Salvador condone or participate in criminal activities and petitioner acknowledged that the police try to help. Accordingly, the court denied the petition. View "Antonio-Fuentes v. Holder, Jr." on Justia Law

Petitioner, a citizen of the Democratic Republic of Congo (DRC), petitioned for review of the BIA's order of removal. An IJ found petitioner's application frivolous and denied all forms of relief. The BIA affirmed. The court vacated and remanded for further proceedings on the issue of frivolousness because the BIA failed to pinpoint a material element that petitioner deliberately fabricated. Neither the BIA nor the IJ adequately explained or supported the frivolousness determination in this case. Accordingly, the court granted the petition for review. View "Limbeya v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision that his conviction under California Penal Code section 459 was an aggravated felony that rendered him ineligible for cancellation of removal. The BIA applied the modified categorical approach to determine that petitioner's conviction under section 459 was an attempted theft offense, which is an aggravated felony under 8 U.S.C. 1101(a)(43)(U) and 8 U.S.C. 1101(a)(43)(G). The court's precedent held that section 459 punishes a broader range of conduct than the generic crime for an attempted theft offense because section 459 may be violated by an attempt to commit a crime other than theft. In light of Descamps v. United States, the court could not apply the categorical approach because the statute was indivisible. The court determined whether a disjunctively worded statute is divisible or not by looking to whether the state treats the parts of the statute on opposite sides of the "or" as alternative elements or alternative means. Here, California law is clear: the jury need not be unanimous regarding the particular offense the defendant intended to commit in order to convict under section 459. Therefore, the court held that petitioner's conviction under section 459 cannot qualify as an attempted theft offense under section 1101(a)(43)(U) and does not render petitioner ineligible for cancellation of removal on that basis. The court granted the petition for review, reversed the decision of the BIA, and remanded for further proceedings. View "Rendon v. Holder, Jr." on Justia Law

Ramirez, a citizen of Guatemala, was admitted to the U.S. as a permanent resident in 1977, then seven years old. He has remained in the U.S. After three years of high school, he joined the Marine Corps. He later obtained his GED, attended community college, and received certification to become an optical technician. He has been consistently employed as an adult. He lives with his fiancé, who suffers from lupus and Sjögren’s syndrome and is unable to work, and their son, born in 2003. Ramirez’s mother, siblings, grandmother, and uncles live in the U.S. In 1990 he: was convicted of inflicting corporal injury upon a spouse or cohabitant and sentenced to 79 days in jail; received a bad conduct discharge from the military for writing bad checks and was sentenced to 90 days’ incarceration; and pled guilty to committing a lewd and lascivious act with a child under the age of 14, received a sentence of six years’ imprisonment and relinquished parental rights to his daughter, the victim’s half-sister. Ramirez was last convicted in 1990. He has, however, been questioned or arrested multiple times since then. An immigration judge found Ramirez “credible” at a hearing requesting discretionary relief from removal, but relied on uncorroborated arrest reports to find that Ramirez failed to show “rehabilitation.” The BIA affirmed. The Seventh Circuit granted a petition for review, stating that the BIA erred by failing to follow its own binding precedent.View "Avila-Ramirez v. Holder" on Justia Law

Dr. Kutty ran Tennessee and Florida medical clinics under several corporate entities. Physicians employed by the clinics entered the U.S. on J-1 nonimmigrant visas, 8 U.S.C. 1182(j)(1) that allow physicians to remain in the U.S. for graduate and medical training, but require them to return to their home country for two years following the J-1 visa’s expiration upon completion of their studies. A government agency may request a J-1 waiver of the two-year requirement on the physicians’ behalf if the physician has a contract to practice medicine for at least three years in an area designated as having a shortage of health-care professionals. Each of the 17 physicians Kutty employed obtained a J-1 waiver. Kutty signed Labor Condition Applications, certifying that they would be paid the greater of the actual wage level the employer paid to other individuals with similar experience for the type of employment at issue or the prevailing wage level for the occupational classification in the area of employment. Applicable rates ranged from $52,291 to $115,357. When an administrator told Kutty that physicians were absent or arriving late, Kutty withheld salaries, which he released when they began seeing more patients. The doctors complained to the Department of Labor claiming. The Administrator of the Wage and Hour Division found multiple violations. An Administrative Law Judge affirmed, found the clinics liable for back wages and the costs of obtaining J-1 waivers and H-1B visas, held Kutty personally liable, and assessed a civil penalty. The Administrative Review Board affirmed; the district court dismissed Kutty’s petition for review. The Sixth Circuit affirmed.View "Kutty v. U.S. Dep't of Labor" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, was convicted of attempted arson in the third degree in violation of New York Penal Law sections 110 and 150.10. Petitioner claimed that his conviction is not an aggravated felony rendering him statutorily ineligible for cancellation of removal. Applying Chevron deference, the court deferred to the BIA's reasonable determination that a state "offense described in" 18 U.S.C. 844(i) need not contain a federal jurisdictional element. Accordingly, the court denied the petition. View "Torres v. Holder" on Justia Law

Petitioner, a native of the Congo, appealed the BIA's dismissal of her appeal from the IJ's denial of her application for withholding of removal or protection under the Convention Against Torture (CAT). At issue was whether an alien must contest her status as an aggravated felon in an expedited removal proceeding before raising that argument before a federal court of appeals. The court concluded that it lacked jurisdiction to consider petitioner's argument that her conviction for simple battery does not qualify as an aggravated felony because she failed to contest the only ground for her removal before the department; the court explained that it will not review alleged errors by the immigration judge that the BIA did not expressly adopt; the REAL ID Act, Pub.L. 109-13, 119 Stat. 302, barred the court from considering issues of fact raised by petitioner, a criminal alien; the BIA committed no legal error when it rejected petitioner's application for withholding of removal; and the BIA committed no legal error when it rejected petitioner's application for protection under the CAT. Accordingly, the court denied the petition for review. View "Malu v. U.S. Attorney General" on Justia Law

Husband and wife Alberto Martinez Molina and Cristina Ramirez Rivera were Mexican citizens subject to final orders of removal from the United States. After an immigration judge declined to cancel their removal orders, the couple filed a motion to reopen based on ineffective representation of counsel. With the motion, they submitted evidence that they had resided in the United States since 1998. The Board of Immigration Appeals denied the motion, reasoning that the couple had not shown prejudice because the evidence that they submitted: (1) could not overcome discrepancies in their testimony, and (2) was the same or substantially similar to the evidence considered by the immigration judge. The spouses then filed a petition for review, arguing that: (1) the Board abused its discretion in rejecting their claim for ineffective representation, and (2) the immigration judge failed to consider the entire record. As to Ms. Ramirez, the Tenth Circuit affirmed: the Board acted within its discretion in rejecting her ineffective-representation claim, and Ms. Ramirez did not exhaust her claim involving failure of the immigration judge to consider the entire record. As to Mr. Martinez, the Court remanded to the Board: Mr. Martinez did not exhaust his claim involving failure to consider the entire record, but he did exhaust his ineffective-representation claim, and the Board abused its discretion when it mistakenly concluded that the newly submitted evidence was the same or substantially similar to the evidence considered by the immigration judge. View "Molina v. Holder" on Justia Law

Petitioner, a native and citizen of China, appealed the BIA's affirmance of the IJ's declaration that his petition was untimely. At issue was whether political activity first undertaken in the United States amounts to "changed circumstances" for purposes of the asylum provision of the Immigration and Nationality Act (INA), 8 U.S.C. 1158. Petitioner argued that his new China Democratic Party World Union (CDPWU) membership and his criticism of the Chinese Communist Party, made on the CDPWU website and in public spaces, had produced such changed circumstances because officials in China can see his public words and affiliation, and they may persecute him for them. The court concluded that the IJ and BIA have committed an error of law on the changed circumstances issue where their conclusion is in tension with a controlling DOJ regulatory interpretation of the asylum provision and their decision constitutes an unexplained, and therefore impermissible, departure from prior agency precedent. Accordingly, the court granted the petition for review and remanded for further proceedings. View "Lin v. Holder" on Justia Law