Justia Immigration Law Opinion Summaries

Petitioner, his wife, and son, petitioned for review of the BIA's order affirming the IJ's denial of their application for adjustment of status and order of removal to Ecuador. Petitioner claimed that the BIA erred in finding him ineligible for adjustment of status based on an earlier 1997 order of removal because that order was entered in violation of due process. The court dismissed the petitions for review, concluding that section 242(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. 1252(a)(2)(A), deprived the court of jurisdiction to hear these petitions. View "Shunaula v. Holder" on Justia Law

Soto entered the U.S. in 1978 as an infant and became a lawful permanent resident in 1991 at age 13. She was convicted of theft in 2002, of passing a worthless check in 2003, and of possessing methamphetamine in 2005, a felony under Kansas law. In 2005, immigration authorities initiated removal on grounds of commission of an aggravated felony, of two crimes involving moral turpitude, and of a controlled substance offense, 8 U.S.C. 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i). At the time, the circuits were split on whether a drug possession conviction that was a state law felony but that would be a federal misdemeanor should be considered an aggravated felony for purposes of immigration. In 2006 the Seventh Circuit held that such convictions were not aggravated felonies for immigration purposes. Soto claims that an immigration officer and a legal aid organization stated that she had no chance of avoiding removal, so she signed a stipulation with an admission of the factual allegations, waiver of any right to seek relief from removal, and an acknowledgment that she signed voluntarily, knowingly, and intelligently. Three weeks after removal, Soto returned to the U.S. illegally to live with her four U.S.‐born children and their U.S.‐citizen father, whom she married in 2009. In 2010 authorities discovered Soto and reinstated the 2005 order of removal using an expedited process. The Board of Immigration Appeals dismissed her appeal, filed from Mexico. The Tenth Circuit ruled that it lacked jurisdiction to review the 2005 order. Soto moved to reopen the 2005 removal order, arguing that the 90‐day deadline did not apply or was equitably tolled. The IJ and BIA rejected her arguments. The Seventh Circuit held that that her illegal reentry after her 2005 removal permanently bars reopening that earlier removal order.View "Cordova-Soto v. Holder" on Justia Law

Patel, a citizen of India, entered the U.S. on a one-year visitor’s visa in 1999. He overstayed and began looking for a job. Citizenship and Immigration Services denied his first petition for an employment visa in 2006 because the employer (Deluxe) was unable to pay the proffered wage, 8 C.F.R. 204.5(g)(2). In 2010 Peshtal offered him a job as Lodging Manager at an Indiana hotel. Peshtal did not apply for its own labor certification from the U.S. Department of Labor, 8 U.S.C. 1153(b)(3)(C), that there are no qualified U.S. workers available for the job and the alien’s employment “will not adversely affect the wages and working conditions” of other workers. Instead Peshtal sought an employment visa on Patel’s behalf, attaching the labor certification that Deluxe had received for the 2006 Michigan Lodging Manager position. CIS denied the petition. The district court dismissed an appeal for lack of prudential standing. The Sixth Circuit affirmed, stating that disembodied notions of statutory purpose cannot override what the statute actually says. The alien is the one who is entitled to the employment visa. The alien’s interest is within the zone of interests protected by the statute. Patel suffered an injury that is fairly traceable to CIS and that is redressable in this lawsuit. View "Patel v. U.S. Citizenship & Immigrations Servs." on Justia Law

Arizona’s 2010 Senate Bill 1070 includes various immigration-related provisions, passed in response to the growing presence of unauthorized aliens in Arizona. The stated purpose of S.B. 1070 is “to make attrition through enforcement the public policy of all state and government agencies in Arizona” by creating “a variety of immigration-related state offenses and defin[ing] the immigration-enforcement authority of Arizona’s state and local law enforcement officers.” Section 13-2929 of the Bill attempts to criminalize transporting, concealing, harboring, or attempting to transport, conceal, or harbor an unauthorized alien under certain circumstances and to criminalize inducing or encouraging an unauthorized alien to come to or reside in Arizona. The district court entered a preliminary injunction with respect to 13-2929 on the basis that it is preempted by federal law. The Ninth Circuit affirmed, holding that the statute, as written, is void for vagueness under the Due Process Clause because one of its key elements—being “in violation of a criminal offense”—is unintelligible. The provision is also preempted by federal law and invalid under the Supremacy Clause. View "Valle del Sol, Inc. v. State of Arizona" on Justia Law

Petitioner sought review of the BIA's decision upholding the denial of her application for an adjustment of status to that of a lawful permanent resident. Because petitioner entered the United States on a K-1 visa, she was required to marry the person who petitioned for her visa or depart the country within 90 days. Petitioner did neither, but instead, remained in the United States and subjected herself to removal and the bar to adjustment for status found in 8 U.S.C. 1255(d). Sections 1255(a) and 1255(d) announced no special rules for Violence Against Women Act, 8 U.S.C. 1154(a)(1)(A)(iii)(I), self-petitioners that created an exception to the section 1255(d) bar. Accordingly, the court denied the petition for review. View "Le v. Holder, Jr." on Justia Law

Petitioner, a Brazilian citizen, entered the United States illegally. Petitioner then began working with Immigration and Customs Enforcement (ICE) agents to identify sellers of fraudulent immigration documents. Due to her work as an informant, Petitioner faced harassment and threats from people in the United States and in Brazil. Eventually, Petitioner stopped assisting the ICE because of the harassment, after which the government reinstated a prior removal order against her. Petitioner sought withholding of removal and relief under the United Nations Convention Against Torture, claiming that she feared returning to Brazil due to threats she had received for her work with the ICE. The immigration judge denied Petitioner's applications. The Board of Immigration Appeals affirmed, holding that the persecution Petitioner faced was "on account of a personal vendetta and not on account of her membership in a particular social group." The First Circuit Court of Appeals denied Petitioner's petition for review, holding that it could not overturn the determination that the risk Petitioner faced was personal and not due to her membership in a social group. View "Costa v. Holder" on Justia Law

Taveras, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident in 1978, at age one year. He has left the country only at age five and at age 13. In 2009, he married a U.S. citizen. He is the father of two U.S. citizens. Several other relatives are U.S. citizens. The Department of Homeland Security (DHS) initiated removal in 2003 based upon his 1999 New York conviction for possession of crack cocaine, 8 U.S.C. 1227(a)(2)(B)(i). Taveras sought cancellation of removal under 8 U.S.C. 1229b(a), applicable to certain permanent residents who can demonstrate lengthy physical presence and substantial ties in the U.S., and have not committed an aggravated felony. The Immigration Judge terminated the proceedings. In 2010, DHS instituted a second removal proceeding, based on 2006 and 2008 convictions for petit larceny, under 8 U.S.C. 1227(a)(2)(A)(ii) (commission of two or more crimes involving moral turpitude). Taveras sought adjustment of status under 8 U.S.C. 1255(a), and waiver of inadmissibility under 8 U.S.C. 1182(h). The IJ granted the applications, reasoning that Taveras had received a “waiver” of the 1999 drug conviction such that he could no longer be found inadmissible for that offense or ineligible for waiver. The BIA found Taveras ineligible to adjust his status and receive a waiver, stating that waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability. The Third Circuit denied Taveras’s petition, upholding the order of removal. View "Fernandez v. Att'y Gen. of the U.S." on Justia Law

Petitioner, a native of the Dominican Republic, pled guilty in state court to possession of a controlled substance with intent to distribute. The Department of Homeland Security later ordered Petitioner's removal. Thereafter, Petitioner successfully sought vacatur of his criminal conviction. After Petitioner had been removed to the Dominican Republic, he filed a motion to reopen his removal proceedings. The Board of Immigration Appeals (BIA) denied the motion, invoking a regulation known as the "post-departure bar," which precludes a noncitizen from filing a motion to reopen after his departure from the United States. The First Circuit Court of Appeals granted Petitioner's petition for review, holding that the post-departure bar cannot prevent a noncitzen from invoking his statutory right to file a motion to reopen. View "Perez Santana v. Holder" on Justia Law

Respondent was involved in lengthy removal proceedings that culminated in her filing of a motion to reopen with the immigration judge that raised ineffective assistance of counsel and due process claims. The Board of Immigration Appeals dismissed Respondent's appeals, concluding that, pursuant to a set of regulations known as the "post-departure bar," the agency lacked jurisdiction to entertain Respondent's motion. The First Circuit Court of Appeals granted Respondent's petition for review, holding (1) as found in Perez Santana v. Holder, the post-departure bar conflicts with the unambiguous language of the motion to reopen statute; and (2) consequently, the regulation, in the circumstances applicable to this petition for review, cannot preclude Respondent from vindicating her right to seek reopening of her removal proceedings. View "Boliero v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the DHS's Final Administrative Removal Order issued under the Immigration and Nationality Act (INA) section 238(b), 8 U.S.C. 1228(b). The court concluded that petitioner did not fail to exhaust his administrative remedies, and even without the bar of exhaustion, there was still the impediment that no court shall have jurisdiction to review any final order of removal against an alien who was removable by reason of having committed an aggravated felony. The court denied the petition because petitioner was an alien convicted of an aggravated felony and, therefore, he was properly subjected to the expedited administrative removal process. View "Valdiviez-Hernandez v. Holder, Jr." on Justia Law