Justia Immigration Law Opinion Summaries

Petitioner sought review of the BIA's decision to vacate the withholding of removal relief granted to him by the IJ. The BIA concluded that petitioner was not eligible for withholding of removal because his conviction for transportation of methamphetamine constituted a particularly serious crime. The court concluded that it had jurisdiction over the petition for review because petitioner raised a legal challenge to the BIA's ruling - whether the BIA engaged in impermissible factfinding. Here, the BIA completely accepted the factual findings made by the IJ and petitioner did not point to any fact found by the IJ that was ignored by the BIA or any fact found by the BIA that was not found by the IJ. The BIA specifically and explicitly stated that it applied the clear error standard and applied the Matter of Frentescu factors to the facts found by the IJ. Accordingly, the court concluded that the BIA did not engage in impermissible factfinding. View "Perez-Palafox v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, sought review from the BIA's dismissal of his appeal from a removal order. At issue was whether petitioner's conviction for aiding or abetting improper entry under 8 U.S.C. 1325(a) rendered him removable under 8 U.S.C. 1227(a)(1)(E)(i). The court concluded that the BIA's finding that the conviction documents associated with petitioner's section 1325(a) conviction established his removability under section 1227(a)(1)(E) was supported by substantial evidence. Accordingly, the court affirmed the judgment of the district court and denied the petition for review. View "Santos-Sanchez v. Holder, Jr." on Justia Law

Chen, a citizen of China, entered the U.S. in 2004 as a nonimmigrant. He overstayed and sought asylum, withholding of removal, and protection under the Convention Against Torture. He admitted removability, 8 U.S.C. 1227(a)(1)(B). Chen testified that he left China because he was persecuted because he participated in the demonstration against the government using violence to force people to demolish housing and to move. He said that he was detained, beaten, harassed, threatened, and arrested by the police. Chen was released after three days, but was required to report to the police station, first weekly and then on a monthly basis. Chen has not participated in any other antigovernment demonstration and was not a member of any political organization. The IJ rejected his claims, finding that Chen did not apply for asylum until more than three years after his arrival, so that his asylum application was untimely. His inability to speak English, to understand the law, and not having money to hire an attorney did not amount to extraordinary circumstances to excuse untimely filing. Regarding withholding of removal, the IJ found that Chen’s situation was a personal dispute rather than an expression of his political opinion. The Seventh Circuit dismissed a petition for review. View "Chen v. Holder" on Justia Law

Petitioner sought review of the BIA's denial of his motion to reopen under the Convention Against Torture (CAT). The court rejected petitioner's principal argument that the regulations governing motions to reopen at 8 C.F.R. 1003.2(c) did not apply to motions that arise under the CAT, insofar as the language of these regulations makes no reference to either the CAT or to deferral or removal. Accordingly, the court held that the procedural requirements specified in 8 C.F.R. 1003.2(c) applied to CAT claims. The BIA did not abuse its discretion in concluding that the evidence of "mistreatment and abuse" presented by petitioner did not constitute evidence of "worsening" country conditions, which meant that this evidence was insufficient to show that the "changed circumstances" exception to the bar on untimely motions to reopen applied to this case. The court lacked jurisdiction to review the BIA's decision not to invoke its sua sponte authority to reopen proceedings. Accordingly, the court denied in part and dismissed in part. View "Go v. Holder" on Justia Law

While on the waiting list but after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1231(a)(5), DHS issued a reinstatement of petitioner's removal order. Petitioner sought review of this reinstatement, arguing that the application of the reinstatement statute in the Act was impermissibly retroactive with respect to her, as her Form I-130 was filed prior to the Act's effective date. The court agreed with the Fifth and Seventh Circuits and held that the mere filing and approval of a Form I-130 created no vested right to apply for adjustment of status. In this case, petitioner's brother filed an I-130 on her behalf and the government placed her on the waiting list. She did not apply for adjustment of status. She took no pre-enactment action sufficient to create a vested right to apply for adjustment, and therefore the reinstatement provisions of the Act could be permissibly applied to her. Accordingly, the court denied the petition for review. View "Montoya v. Holder" on Justia Law

Petitioner, a citizen and national of Nigeria, petitioned for review of the the BIA's order affirming the denial of her application for cancellation of removal. Determining that it had jurisdiction to review constitutional claims or questions of law, the court concluded that the IJ did not commit procedural error in excluding the testimony of petitioner's son and daughter where the testimony was cumulative and unnecessary. The court also concluded that the court need not consider whether the IJ erred in not qualifying more of petitioner's expert's testimony because petitioner was unable to show prejudice. Finally, the court concluded that it lacked jurisdiction to review the BIA's discretionary decision to deny petitioner relief based on her prior sham marriage. Accordingly, the court denied the petition for review. View "Zeah v. Holder, Jr." on Justia Law

Galarza, a U.S. citizen, was working at a construction site. The contractor sold cocaine to an undercover detective, Correa, who arrested the contractor, Galarza, and other employees for conspiracy to deliver cocaine. Galarza had a wallet, containing his Pennsylvania driver’s license, his Social Security Card, a debit card, and his health insurance card. The complaint listed Galarza’s place of birth as Perth, N.J. and contained his Social Security Number and date of birth. Correa called ICE and provided Galarza’s information. Galarza claims that, by making the call, Correa indicated that she suspected Galarza had given false identification information. Galarza was detained and went through booking; officials took his wallet and its contents. ICE Agent Szalczyk, acting on information relayed by Correa, filed an immigration detainer that described Galarza as a suspected “alien” and citizen of the Dominican Republic. The detainer was not accompanied by a warrant, an affidavit of probable cause, or a removal order. A surety company posted bail, but Galarza was told that he would not be released. Galarza had not been interviewed by ICE nor provided with a copy of the detainer. Three days after his arrest, a counselor told Galarza about the detainer. Galarza protested and urged the counselor to retrieve his wallet. The counselor refused. Galarza later met with ICE officers. The detainer was removed and Galarza was released about three days after his arrest. Galarza was acquitted and filed complaints under 42 U.S.C. 1983 and the Federal Tort Claims Act, 28 U.S.C. 346(b). The district court dismissed the complaint against Lehigh County, holding that it could not be held responsible for Galarza’s detention because it was compelled to follow the detainer. The Third Circuit vacated. Immigration detainers do not compel a state or local law enforcement agency to detain suspected aliens subject to removal.View "Galarza v. Szalczyk" on Justia Law

Zhu, from Fujian Province, China, entered the U.S. in 1999 without proper documentation. In an INS interview, she stated that she feared persecution under China’s population control policies. She was paroled into the U.S. for a hearing. In 2000, Zhu applied for asylum, withholding of removal, and protection under the Convention Against Torture. Zhu testified that birth control officials tried to force her to wear an IUD. The IJ found Zhu’s testimony lacked credibility and ordered her removed. The BIA affirmed. In 2002, Zhu moved to reopen, alleging that she had married and given birth to a son and would be forcibly sterilized if she returned to China. The BIA denied the motion, noting that Zhu was not in violation of Chinese population control policies and had not shown that a Chinese national becomes automatically subject to punitive birth control measures if she returns with a child born outside China. In 2008, Zhu again moved to reopen, alleging that she had given birth to two more children and that the Chinese government now counted children born overseas when considering violations of population control policies. She submitted a notice indicating that Zhu must submit to sterilization upon her return to China, and a letter from her mother, noting that the officials had learned about her children. The BIA denied the motion. In 2013, Zhu filed a third motion, with voluminous documentation. The BIA denied Zhu’s motion to reopen. The Third Circuit vacated, stating that the BIA’s opinion did not reflect meaningful consideration of much of the evidence. View "Zhu v. Att'y Gen. of United States" on Justia Law

After guerillas from the Revolutionary Armed Forces of Colombia (FARC) kidnapped her father and killed her uncle, petitioner fled Colombia. After entering the U.S. legally on a tourist visa, she and her family overstayed their visa and applied for asylum within one year, claiming that they were victims of persecution by the FARC and were in danger of future persecution should they return to Colombia. Petitioner’s husband and daughter filed derivative claims. The immigration judge concluded that petitioner failed to meet her burden of proof that she has suffered past persecution or would suffer from future persecution on the basis of her membership in a social group of land owners or because of her political opinion. The Board of Immigration Appeals affirmed. The Seventh Circuit granted a petition for review and remanded, stating that the evidence compels a contrary conclusion. The question of who is persecuted by FARC threats and whether the government is unable or unwilling to contain them is unresolved. View "N.L.A. v. Holder" on Justia Law

Bautista, a legal permanent resident, was ordered removed from the U.S. as an alien convicted of a crime involving moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I). The IJ found him ineligible for cancellation of removal because his New York conviction for attempted arson constituted an aggravated felony, 8 U.S.C. 1229b(a). The Board of Immigration Appeals dismissed his appeal, finding that the arson conviction fell within the definition of an aggravated felony under 8 U.S.C. 1101(a)(43). The Third Circuit granted a petition for review. The attempted arson conviction is not an aggravated felony with respect to collateral immigration consequences. Applying the categorical approach, the New York statute under which Bautista was convicted does not match the elements of 18 U.S.C. 844(i), the corresponding federal statute, which requires a connection to interstate commerce. View "Bautista v. Att'y Gen. of the U.S." on Justia Law