Justia Immigration Law Opinion Summaries

Plaintiff, a native of Afghanistan, filed suit seeking to compel officials to decide immediately his pending application for adjustment of status. The court affirmed the district court's grant of summary judgment in favor of the officials where the officials' delay in adjudicating plaintiff's adjustment-of-status application was not unreasonable. View "Irshad v. Johnson, et al." on Justia Law

Petitioner was denied special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 203(a)(1), 111 Stat. 2160, 2196, because the BIA considered his 1992 Virginia conviction for "carnal knowledge of a child between thirteen and fifteen years of age" an aggravated felony as defined by the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(A). The court concluded that petitioner's conviction under the Virginia statute necessarily means that he also has been convicted of the generic offense of sexual abuse of a minor, an aggravated felony within the INA. Accordingly, the court denied the petition for review. View "Contreras v. Holder, Jr." on Justia Law

Qualifying U.S. citizens and lawful permanent residents (LPRs) may petition for family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on relationship to the petitioner, 8 U.S.C. 1153(a)(1)–(4). The principal beneficiary’s spouse and minor children qualify as derivative beneficiaries, entitled to the same status and order of consideration as the principal. Beneficiaries become eligible to apply for visas in order of priority date, the date a petition was filed. Because the process often takes years, a child may age out and lose status before she obtains a visa. The Child Status Protection Act (CSPA) provides that if the age of an alien is determined to be 21 years or older, notwithstanding allowances for bureaucratic delay, the petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” In this case, principal beneficiaries who became LPRs, filed petitions for their aged-out children (who did not have a qualifying relationship with the original sponsor), asserting that the newly filed petitions should receive the same priority date as their original petitions. U. S. Citizenship and Immigration Services (USCIS) disagreed. The district court granted the government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination under section 1153(h)(3). The Ninth Circuit reversed, holding that the provision entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed, reasoning that each immigrant must have a qualified and willing sponsor. If an original sponsor does not have a legally recognized relationship with the aged-out children, another sponsor must be identified for the alien to qualify for a new family preference category. Immigration officials do not know whether a valid sponsor exists unless the aged-out beneficiary files and USCIS approves a new petition. Section 1153(h)(3) does not require a new petition for derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, the nieces, nephews, and grandchildren of the initial sponsors cannot qualify for “automatic conversion.” The BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule. View "Scialabba v. de Osorio" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA dismissing his appeal from the IJ's order of removal. Petitioner admitted that the tampering with evidence conviction justified his removal. However, he argued that res judicata barred DHS from bringing the removal proceedings against him because the tampering with evidence conviction arose from the same nucleus of operative fact as the manslaughter conviction. The court concluded that petitioner's manslaughter and tampering with evidence convictions are two different causes of action that arose out of different facts, required different proof, and redressed different wrongs. Therefore, assuming without deciding that res judica principles applied to immigration proceedings, the requisite elements are not present and the removal proceedings are not barred. Accordingly, the court denied the petition for review. View "Cabrera v. Holder, Jr." on Justia Law

Petitioner, a Kenyan citizen, sought review of the BIA's order upholding the IJ's denial of her motion for a continuance and her request for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner asserted that she feared she would be subjected to female genital mutilation (FGM) if she returned to Kenya. Assuming, without deciding, that the IJ violated petitioner's statutory right to counsel by not at least calling her counsel to see that her statutory right to counsel was honored, petitioner cannot prove prejudice. Here, neither petitioner nor her counsel has set forth evidence affirmatively proving that petitioner was entitled to the relief that she seeks. Accordingly, the court denied the petition for review. View "Njoroge v. Holder, Jr." on Justia Law

Petitioner Enrique Garcia-Mendoza petitioned the Tenth Circuit for review of the Board of Immigration Appeals’ (BIA) decision upholding an Immigration Judge’s (IJ) denial of his request for cancellation of removal. The agency determined that he was ineligible for such relief because he could not establish that he "ha[d] been a person of good moral character" due to his confinement in a penal institution for more than 180 days. In 2010, he was arrested and charged with driving under the influence and leaving the scene of an accident. He could not afford bond and remained confined during his pretrial criminal proceedings. He was released after he had been confined for a total of 197 days when the Department of Homeland Security (DHS) took him into custody and initiated removal proceedings. Petitioner conceded that he was removable for remaining in the United States beyond his authorized period of stay and applied for cancellation of removal. The IJ denied his request because petitioner had been confined for more than 180 days for his 2010 conviction and therefore he could not establish the requisite good moral character. While petitioner’s appeal of that decision was pending with the BIA, he filed a motion with the state trial court seeking to amend his sentence. In the motion, he alleged that his counsel failed to advise him of the immigration consequences of his sentence before he entered his guilty plea. He asked the court to resentence him to 166 days with no credit for time served. The state court granted the motion and issued a modified mittimus nunc pro tunc to the original sentencing date. Petitioner then filed a motion for remand with the BIA based on the new evidence that his sentence was modified to 166 days. The BIA granted the motion and remanded to the IJ. On remand, the IJ again denied cancellation of removal, noting that the nunc pro tunc order modifying the sentence did not change the fact that petitioner had already been confined for more than 180 days as a result of his conviction. The BIA upheld the IJ’s decision. Petitioner then petitioned the Tenth Circuit. Seeing no reversible error, the Tenth Circuit Court of Appeals denied review. View "Garcia-Mendoza v. Holder" on Justia Law

Petitioner, a native and citizen of Tanzania, sought review of several of the BIA's orders. The court concluded that the court's jurisdiction was limited to reviewing the BIA's denial of petitioner's motion to reopen and reconsider (May 6 order). Because the BIA did not abuse its discretion by denying petitioner's motion, the court denied the petition for review. The court granted, however, petitioner's motion for leave to file a reply brief out of time. View "Mshihiri v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of India, petitioned for review of the BIA's order concluding that he is ineligible for withholding of removal. The court concluded that substantial evidence supported the BIA's determination that the government showed that there has been a fundamental change in circumstances on the treatment of Sikhs in India to overcome the presumption that he would be persecuted if he were removed. The evidence introduced by the government was sufficiently individualized to address petitioner's claim that he would be persecuted because of his past involvement with the Akali Dal (Mann) party. The general principle requiring the factfinder and a court of appeals to accept a petitioner's factual contentions as true in the absence of an adverse credibility finding does not prevent the court from considering the relative probative value of hearsay and nonhearsay testimony. The agency properly performed its core functions of weighing conflicting evidence, bringing its expertise to bear, and articulating the rationale underlying its decision. Accordingly, the court denied the petition for review. View "Singh v. Holder, Jr." on Justia Law

Petitioner pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute 53a-73a(a)(2), which criminalizes subjecting "another person to sexual contact without such other person's consent." The United States then commenced removal proceedings against petitioner under 8 U.S.C. 1227(a)(2)(A)(ii). Under federal immigration law, petitioner's removal turns on whether the crime he was convicted of is a crime involving moral turpitude. Because the court is unable to predict what level of mens rea the Connecticut courts would require, and because the issue involves the weighing of important policy considerations, the court certified questions to the Connecticut Supreme Court. View "Efstathiadis v. Holder" on Justia Law

Defendant pled guilty to using a fraudulent visa as proof of permission to enter the United States. On appeal, defendant challenged the district court's application of a two level enhancement for previous deportation under U.S.S.G. 2L2.2(b)(1). The court affirmed the sentence, rejecting defendant's contention that because he voluntarily departed he had not "been deported" for the purposes of U.S.S.G. 2L2.2(b)(1). View "United States v. Murillo-Acosta" on Justia Law