Justia Immigration Law Opinion Summaries

Petitioner sought cancellation of removal but the IJ found that he was not statutorily eligible for the discretionary relief because of the "stop-time rule" in 8 U.S.C. 1229b(d)(1). The court concluded that the plain reading of the provision supported the IJ's application of the stop-time rule where petitioner's conviction of aggravated assault of a family member triggered the rule and denied him eligibility for cancellation of removal. Accordingly, the court denied his petition for review. View "Miresles-Zuniga v. Holder, Jr." on Justia Law

Petitioners, a married couple from Guatemala, entered the United States illegally in the mid-1990s. In 2008, Petitioners applied for asylum. Their application was denied, and removal proceedings subsequently began. Petitioners conceded removability but sought cancellation of removal, asserting that their departure would cause hardship to their twelve-year-old son, Brian, who was born in the United States and would, Petitioners claimed, face several formidable obstacles in Guatemala. An immigration judge (IJ) denied Petitioners’ application and ordered them removed to Guatemala, finding that Petitioners failed to meet the hardship eligibility requirement for cancellation of removal. The Board of Immigration Appeals upheld the IJ’s judgment. The First Circuit Court of Appeals denied in part and otherwise dismissed Petitioners’ petition for review, holding that the IJ correctly found that the evidence presented by Petitioners was not capable of supporting an “exceptional and extremely unusual hardship” finding. View "Alvarado v. Holder" on Justia Law

Petitioner sought review of the BIA's order affirming the IJ's determination that he was not eligible for cancellation of removal because he committed an aggravated felony. In 2005, defendant pleaded guilty to delivering cocaine in violation of Florida Statute 893.13(1)(a)(1). Defendant's conviction under the Florida statue did not require that he knew that the substance at issue was a controlled substance whereas a conviction under the federal statute did. Therefore, the state offense was not analogous to the federal offense. Accordingly, the court held that the Florida offense was not categorically an aggravated felony and granted the petition for review, vacating the order and remanding for further proceedings. View "Sarmientos v. Holder, Jr." on Justia Law

Petitioner sought review of the BIA's affirmance of the IJ's order of removal. Petitioner was granted asylum and was subsequently ordered removed on account of his criminal convictions. Because the court held that the plain language of Section 209(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1159(b), did not require an alien to maintain asylum status to be eligible for an adjustment of status, the court granted the petition for review on that issue and vacated the order of removal. The court did not review petitioner's request for relief under the Convention Against Torture because the court was bound by its precedent holding that the REAL ID Act, 8 U.S.C. 1252, divested the court of subject matter jurisdiction to do so. View "Siwe v. Holder, Jr." on Justia Law

Petitioners, natives of China who have two children born in the United States, sought asylum and withholding of removal on the basis that one or both of them would be persecuted for having violated China's one-child policy, and for their Christian faith. The BIA and the IJ, relying on a 2007 State Department report, concluded that neither petitioner established a well-founded fear of persecution. The court granted the petition for review to the extent petitioners sought relief based on China's one-child policy where petitioners offered powerful contradictory evidence that required the agency to account for it in a meaningful way. The court remanded the claim to the BIA for further consideration. The court denied the petition for review to the extent it was grounded on the religious faith of petitioners. View "Chen v. Holder, Jr." on Justia Law

In 2011, the Department of Labor (DOL) issued a new regulation governing calculation of the minimum wage an employer must offer (prevailing wage) under the H-2B visa program, which permits U.S. employers to recruit foreign workers to fill unskilled, non-agricultural positions that no qualified U.S. worker will accept, 8 U.S.C. 1101(a)(15)(H)(ii)(b). Associations representing employers in non-agricultural industries that recruit H-2B workers, concerned about higher labor costs as a result of the 2011 Wage Rule, challenged its validity. The district court and the Third Circuit upheld the regulation, rejecting arguments that DOL lacked authority to promulgate legislative rules concerning the H-2B program and that, even if the DOL has such rulemaking authority, its violation of certain procedural requirements invalidated the Rule.View "LA Forestry Ass'n, Inc. v. Sec'y U.S. Dep't of Labor" on Justia Law

Plaintiffs, detainees, filed Bivens claims against defendant, a border officer, for violations of their Fourth Amendment right to be free of unreasonable searches and seizures. The district court granted defendant's motion to dismiss based on qualified immunity and plaintiffs appealed. The court concluded that plaintiffs were detained as excluded aliens for varying amounts of time and neither of the claims involved physical abuse. Therefore, the claims fell within the confines of entry fiction, and the Fourth Amendment was inapplicable; the detention did not violate constitutional rights; and the district court properly dismissed these claims under Rule 12(b)(6). Even if plaintiffs were in fact U.S. citizens, dismissal was proper because defendant enjoyed qualified immunity where plaintiffs pointed to no authority clearly establishing that defendant's actions in detaining, even for as long as ten hours, individuals who presented facially valid documentation, plus the use of unspecified threats and insults during interrogation, violated the Constitution. Accordingly, the court affirmed the judgment of the district court. View "Castro, et al. v. Cabrera" on Justia Law

Petitioner sought review of the BIA's dismissal of his appeal from an IJ's final order of removal. As a preliminary matter, the court could not consider petitioner's affidavit and the response of his former counsel to petitioner's complaint because that evidence was not presented to the BIA. The court held that, through counsel, petitioner clearly waived his right to appeal at the conclusion of the proceedings before the IJ. Although petitioner contended that his waiver was involuntary based upon the ineffectiveness of counsel, petitioner failed to show that he met the procedural requirements of Matter of Lozada. Accordingly, the court affirmed the BIA's dismissal of the appeal based on lack of jurisdiction. View "Hernandez-Ortez v. Holder, Jr." on Justia Law

Petitioner challenged a new method the Attorney General and the Board used to determine that he had been convicted of a crime involving moral turpitude for the purposes of admissibility under section 212 of the Immigration and Naturalization Act (INA), 8 U.S.C. 1100 et seq. The court agreed with four of its sister circuits and concluded that the "convicted of" clause of section 212(a)(2)(A)(i) was not ambiguous. The court rejected the Attorney General's argument that "convicted of a crime involving moral turpitude" was ambiguous and concluded that Congress had spoken directly to the issue. Consequently, the court found no analogous permission to abandon the categorical approach and look beyond the conviction record. In this instance, the court found that the BIA looked beyond the conviction record to conclude that petitioner had been convicted of a crime involving moral turpitude. Because the court's precedent did not permit such an inquiry, the court vacated and remanded for further proceedings. View "Silva-Trevino v. Holder, Jr." on Justia Law

Slyusar worked as a social worker in Ukraine. She joined a private organization and agreed to record unlawful non-cash pensions distributed by her office. She reported pension fraud, identifying officials by name. Slyusar took the report to a radio station. After it broadcasted the report, Slyusar received threats to her life and her children’s lives. She claimed that at one point, she was taken to a police station, where people screamed at her and ordered her to sign papers confessing to slander, then disrobed and beat her. They allegedly placed Slyusar in a cell, where she was raped by three men. She claims she was poisoned during her week in prison. Slyusar’s husband was living in the U.S., caring for his grandmother. Although she claims to have been in hiding, she divorced her husband after her release. She claims a second detention and beating, after which she was hospitalized. She fled to the U.S., using a Russian passport as Julia Pusharova. She married a citizen and applied for adjustment of status; DHS initiated removal. An IJ denied asylum and withholding of removal under the Convention Against Torture, finding discrepancies between her testimony and the evidence. Slyusar’s asylum application was not timely filed and she failed to demonstrate extraordinary circumstances. The BIA dismissed an appeal. The Sixth Circuit denied review. View "Slyusar v. Holder" on Justia Law