Justia Immigration Law Opinion Summaries

Caspeta, a Mexican citizen born in 1973, attempted to enter the U.S. in 1999, using a border pass issued to another individual, and was sentenced to 90 days of custody and 2 years of supervised release for violating 8 U.S.C. 1325(a)(3). The sentence was suspended. He was escorted across a bridge back to Mexico and was given an Order instructing him that he was prohibited from re-entering the U.S. for five years and that if he wished to re-enter the U.S. he would first need to obtain the permission of the Attorney General. The Notice included a warning that violation would be subject to prosecution for a felony. In 2012, Caspeta was convicted of a traffic offense in Detroit and was charged with unlawful reentry under 8 U.S.C. 1326(a). He argued that once more than five years had elapsed since his removal, so that the statute did not require him to obtain consent prior to reentry. He was found guilty. The Sixth Circuit affirmed, finding that the statutory scheme does not eliminate the need for consent after five years, but only makes consent possible after five years. View "United States v. Romero-Caspeta" on Justia Law

Foythong, a Thai citizen, came to the U.S. in 2001 as a non-immigrant visitor and did not leave when his visa expired. In 2004, Foythong, still married to his Thai wife, married a U.S. citizen, Langevin, who sought to adjust Foythong’s status to lawful permanent resident based on the marriage. After investigating, DHS issued notice of intent to deny the petition on the ground that the marriage was a sham, based on significant discrepancies in testimony. Langevin withdrew the petition; the marriage ended. In 2010, Foythong married again, 12 days before a scheduled removal hearing. His third wife, Clark, a U.S. citizen, requested a marriage-based visa on his behalf. DHS denied the petition. Michigan does not recognize consular divorces, rendering ineffective Foythong’s effort to divorce his Thai wife through a consulate in Chicago. DHS stated that the fraudulent marriage to Langevin precluded Foythong from any future adjustment of status based on marriage. The immigration judge ordered removal. The Board of Immigration Appeals affirmed. In 2013, Foythong asked the Board to reopen his case, stating that he had legally divorced his first wife and married Clark. The Board denied the motion. The Sixth Circuit denied review, citing 8 U.S.C. 1154(c), which imposes a one-strike rule, so that, after one prior finding of a sham marriage, immigration authorities must reject all future efforts at adjustment of status based on marriage. View "Foythong v. Holder" on Justia Law

On September 22, 2011, a grand jury returned a one-count indictment charging Appellant with conspiracy to defraud the United States. The indictment alleged that, from about March 29, 2005 until at least June 22, 2007, Appellant knowingly and willfully participated in a sham marriage to secure a change in immigration status for her spouse. Appellant filed a motion to dismiss the indictment as time-barred, alleging that she committed no overt act in furtherance of the conspiracy within the five-year period before the return of the indictment. Following a bench trial, Appellant was convicted of the charge. On appeal, Appellant revived her argument that the indictment should have been dismissed as time-barred because the conspiratorial object was achieved on October 7, 2005, when her spouse attained conditional lawful permanent resident status, and any subsequent acts could not have been in furtherance of an already-completed conspiracy. The First Circuit Court of Appeals affirmed, holding that the district court correctly found Appellant’s signing of Form I-751 on June 22, 2007 on her spouse’s behalf was an overt act committed in furtherance of the objects of the conspiracy as alleged in the indictment. View "United States v. Stewart" on Justia Law

While petitioner, a native of Iran and citizen of Armenia, was appealing the BIA's removal order, he married a United States citizen. The BIA then affirmed the removal order and petitioner filed a timely motion to reopen, which the BIA denied. The court concluded that the BIA abused its discretion by improperly relying on a de facto DHS veto as dispositive of petitioner's motion to reopen; petitioner's affidavit was sufficient to make the prima facie showing required when the BIA considered a motion to reopen; had the BIA addressed the issue on the merits, it would have been an abuse of discretion to deny the motion; and if the BIA had indeed meant to address those merits, it did not fulfill its obligation to provide a reasoned explanation for its actions. Accordingly, the court granted the petition for review and remanded to the BIA for further proceedings. View "Tadevosyan v. Holder" on Justia Law

Three children who are natives of Mexico appealed the district court's finding under the Hague Convention of the Civil Aspects of International Child Abduction, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, that they were being wrongfully retained in the United States and should be returned to their mother. While the appeal was pending, USCIS granted the children asylum. As a preliminary matter, the court concluded that the children, who are not parties, have standing to appeal where their well-being was at stake. On the merits, the court concluded that no jurisdictional defect arose from the fact that the director of child and family services was not the actual physical custodian of the children; the absence of ORR as a party was not a meaningful defect; and the Hague Convention was a proper mechanism for the recovery of the children. Accordingly, the district court did not lack jurisdiction to enter the order that the children be returned to their mother. Because the children's fundamental interests are at stake in the district court proceedings and no respondent is making an effort to represent those interests, the court remanded to the district court to appoint the children a guardian ad litem. The district court did not clearly err by failing to account for the mostly retrospective harm allegedly suffered by the children, or the conclusions of the psychologist, which were based on the children's belief that the same conditions would be present upon their return. Finally, the court concluded that an asylum grant did not remove from the district court authority to make controlling findings on the potential harm to the child. Accordingly, the court vacated and remanded. View "Sanchez v. R.G.L." on Justia Law

Petitioner, a native and citizen of the People's Republic of China, sought review of the BIA's order affirming the IJ's denial of her motion to reopen. Petitioner contended that her prior deportation proceedings were void ab initio because exclusion proceedings at the port of entry were the only appropriate procedure for determining whether she could enter into and remain in the United States. The court concluded, however, that petitioner conceded to the charge of deportability at her hearing before the IJ and did not attempt to terminate the proceedings until filing her motion to reopen over nine years after the deportation order became effective. The court rejected petitioner's remaining arguments, finding them to be without merit. Accordingly, the court denied the petition for review. View "Li v. Holder" on Justia Law

The government appealed the dismissal of defendant's indictment for unlawful reentry. Defendant had pleaded guilty to "conspiracy to commit the crime of burglary" in violation of Nev. Rev. Stat. 199.480.205.060(1) and was subsequently ordered removed as an undocumented alien convicted of an aggravated felony. Applying the methodology prescribed by the Supreme Court for defining generic offenses for categorical purposes, the generic federal definition of conspiracy, 8 U.S.C. 1101(a)(43)(U), conditioned conviction on performance of an overt act in pursuit of the conspiratorial objective. Because Nevada's conspiracy statute criminalized a broader range of conduct than the properly determined generic definition of conspiracy, defendant's conviction did not qualify as an aggravated felony. Accordingly, the court affirmed the district court's determination that defendant's prior removal order was constitutionally inadequate because she was denied her right to seek discretionary relief from removal. View "United States v. Garcia-Santana" on Justia Law

Petitioner, a Kurdish ethnic and citizen of Turkey, sought review of the BIA's order affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ concluded that on at least four or five occasions, petitioner gave food and, on at least one occasion, clothing, to individuals whom petitioner knew, or had reason to know, to be members of Kurdish terrorist groups. The BIA adopted the IJ's findings and legal conclusions. The court found no error in the agency's factual conclusion that petitioner provided material support to a terrorist organization. However, the court remanded in order to allow the BIA to address a precedential issue: whether the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(iv)(VI), should be construed to include a duress exception to the admissibility bar that the Act otherwise established for those who have provided material support to a terrorist organization. Accordingly, the court granted in part, denied in part, and remanded for further proceedings. View "Ay v. Holder" on Justia Law

Petitioner and his wife sought review of the BIA's order affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that it lacked jurisdiction to review the merits of petitioner's first argument on appeal regarding the BIA's failure to determine his nationality because it had been waived; the BIA's conclusion that petitioner failed to show a well-founded fear of future persecution based on his status as a Palestinian refugee, or in the alternative, his Palestinian nationality, was supported by substantial evidence; the court rejected petitioner's argument that he was entitled to asylum because, as a stateless person, no government would accept him; the plain language of 8 U.S.C. 1101(a)(42)(A) required a stateless person to show the same well-founded fear of persecution as an individual with a nationality; the decision to deny asylum was supported by substantial evidence and the evidence in the administrative record was not so compelling that no reasonable factfinder would be forced to conclude otherwise; because petitioner failed to establish eligibility for asylum, he necessarily could not meet the more rigorous standard for withholding of removal; and, because petitioner relied on the same evidence to support his claim of protection under the CAT, he failed to demonstrate that he would more likely than not be tortured in any of the countries designated for removal. The court rejected petitioner's due process arguments because they directly mirror his substantive issues. Accordingly, the court denied the petition for review. View "Agha, et al. v. Holder, Jr." on Justia Law

Petitioner, a citizen of Vietnam, sought review of an order of the BIA dismissing her appeal from a decision of the IJ, which ordered her removed and denied her petition to remove conditions placed upon her residency in the United States. The USCIS denied the petition after finding that petitioner was her husband's half-niece, concluding that the marriage was incestuous and therefore void. The court affirmed the IJ's factual determination that petitioner and her husband were related as half-blooded niece and uncle. The court certified to the New York Court of Appeals the issue of whether such relationships were void for incest under New York's Domestic Relations Law, N.Y. Dom. Rel. Law 5(2). View "Nguyen v. Holder" on Justia Law