Justia Immigration Law Opinion Summaries

Nepalese native and citizen petitioner Narendra Raj Karki petitioned the Tenth Circuit to review a Board of Immigration Appeals (BIA) decision affirming an order of an immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT). Petitioner entered the United States in 2007 in order to present a paper at a forestry conference in Oregon. His visitor's visa authorized him to remain in the country for approximately one month. A few days after the visa expired, Petitioner filed an asylum application, which was denied by an asylum officer and referred to an immigration judge. Removal proceedings were initiated against him in early 2008. At the removal proceedings, Petitioner renewed his application for asylum and sought restriction on removal under the INA and protection under the CAT, claiming that he had suffered past persecution and feared future persecution based on his political opinion and membership in a particular social group. The IJ concluded that Petitioner had failed to establish a nexus between his alleged fear of persecution and a statutorily protected ground. On appeal, the BIA affirmed the IJ's conclusion that the incidents described by Petitioner did not rise to the level of past persecution thus concluding that Petitioner was not eligible for asylum or restriction on removal because he had not shown past persecution or a fear of future persecution based on his political opinion. Furthermore, the BIA concluded that Petitioner was not eligible for relief under the CAT because he had not shown that the government of Nepal was likely to torture him or acquiesce in his torture if he returned. Upon review, the Tenth Circuit concluded that the record as a whole did not support the BIA's conclusion that Petitioner failed to show that public officials in Nepal would likely acquiesce in his torture by Maoists if he returned to Nepal. Accordingly, the Court granted the petition for review as to Petitioner's CAT claim. The Court noted that there was no agency factfinding on the likelihood that Petitioner will be tortured if he returned to Nepal, and on remand the agency could consider whether Petitioner had shown a sufficient likelihood of torture to be entitled to CAT relief. The case was remanded for further proceedings. View "Karki v. Holder" on Justia Law

Plaintiff filed an action under 8 U.S.C. 1503(a) seeking a declaratory judgment that he is a citizen of the United States. Plaintiff was born in the Philippine Islands and his father was a U.S. citizen who had lived his entire life in the Philippines. Plaintiff argued that, as a child born out of wedlock, he was covered by a special provision of the Nationality Act of 1940, Pub. L. No. 76-853, section 201(e), that made section 201(e) applicable retroactively to children born out of wedlock before the Act's effective date. The court concluded that the 1940 Act was not the law in effect at the time of plaintiff's birth in 1931, so he must establish that the Act applied retroactively to individuals before its effective date. The court did not think that the provisions of the Act on which defendant relied reflected a legislative intention that they should apply retroactively. Further, plaintiff conceded that he could not meet the condition precedent to acquiring citizenship, that his paternity have been established by legitimation or adjudication during minority. Accordingly, the court affirmed the district court's summary judgment dismissal of his action. View "Friend v. Holder" on Justia Law

Petitioner, a native of Trinidad and Tobago, petitioned for review of a decision by the BIA finding him inadmissible because he made a false claim of United States citizenship in order to avoid being placed in removal proceedings. The BIA concluded that the false claim triggered the inadmissibility provision of the Immigration and Nationality Act, 8 U.S.C. 212(a)(6)(C)(ii)(l). The court concluded that neither the BIA nor the court had previously issued a precedential opinion defining what counted as a "purpose or benefit" under federal or state law. Therefore, the court vacated the BIA's decision and remanded so that the BIA could determine in the first instance the scope of conduct encompassed by section 212(a)(6)(C)(ii)(l). View "Richmond v. Holder" on Justia Law

Defendant, a Mexican native, first entered the U.S. illegally before June 1988. He was convicted of receiving stolen property, auto theft, attempting to pass a fraudulent check, selling cocaine, and forgeries, and was deported in 1992. In 1994, he burglarized Nebraska construction companies. He was deported again in 1999. By 2005, defendant had returned and was convicted of burglarizing companies, stealing payroll checks, and fraudulently cashing checks. He was deported for the third time in 2008. In 2010 defendant stole blank checks from Illinois and Iowa businesses. Three banks cashed checks, losing more than $42,000. Defendant was charged with unlawful reentry, 8 U.S.C. 1326(a) and 1326(b)(2); bank fraud, 18 U.S.C. 1344; conspiracy to utter forged securities, 18 U.S.C. 371; and uttering forged securities, 18 U.S.C. 513(a). Defendant pleaded guilty unlawful reentry and to three bank fraud counts,. The district court sentenced him to a total of 84 months’ imprisonment, followed by 36 months of supervised release. The Seventh Circuit vacated the sentence. Neither party objected to the sentencing reports at the time, but both agree that the sentence was based on an improper U.S. Sentencing Guidelines range and that the error affected defendant’s substantial rights. View "United States v. Tovar-Pina" on Justia Law

Ni came to the U.S. in 2001 from Fujian Province, China. An Immigration Judge ordered him removed in 2003, but he has remained in the U.S., and has started a family. In 2011, following the birth of his second child, Ni moved to reopen his removal proceedings, arguing that he will personally face forced sterilization under China’s “one-child policy” if he returns to Fujian Province, a form of persecution based on “political opinion” for which asylum may be granted, 8 U.S.C. 1101(a)(42)(B). The Board of Immigration Appeals denied Ni’s motion, holding that his evidence was not sufficient to establish a change in circumstances or country conditions, as generally required when an applicant moves to reopen more than 90 days after entry of a final administrative order. The Seventh Circuit granted review, noting that courts of appeals have received scores of similar petitions involving Fujian Province in recent years, and have regularly upheld the BIA’s refusal to grant relief. “Routine can be numbing, however, and it can lead to errors. Here, the BIA failed meaningfully to address documents bolstering Ni’s assertion that family planning officials in and around his hometown recently launched a crackdown on those who flout the “one-child policy.” View "Ni v. Holder" on Justia Law

Petitioner challenged the district court's ruling that he was not a United States citizen pursuant to 8 U.S.C. 1252(b)(5). The court held that Lim v. Mitchell, which required de novo review, was no longer good law, and the court must review the district court's finding of fact for clear error. The court concluded that the district court did not err in placing the burden on petitioner to prove his citizenship by a preponderance of the evidence and then shifting the burden of proof to the government, nor did it err in selecting the "clear and convincing" formulation when assigning the level of proof that the government had to meet. In view of the many undisputed facts and the additional non-erroneous subordinate findings, the court held that the district court's key finding, that petitioner is Salvador Mondaca-Vega, was not clearly erroneous under the "clear and convincing" standard of proof. Accordingly, the court denied the petition. View "Mondaca-Vega v. Holder" on Justia Law

Petitioner, a citizen of Peru, petitioned for review of the BIA's reversal of the IJ's grant of his application for withholding of removal. Petitioner contended that the BIA applied the wrong standard when evaluating whether government officials would acquiesce to his torture and that its conclusions were not supported by substantial evidence. The court concluded that the BIA's decision conformed to the willful blindness standard and the court need not remand the case to allow the BIA to correct its analysis. In light of petitioner's waiver of his relocation argument and the court's determination that the State Department's country report and the circumstances of petitioner's past torture supported the BIA's findings, the court held that substantial evidence supported the BIA's conclusion that it was not more likely than not that the government would acquiesce to petitioner's torture upon his return to Peru. Accordingly, the court denied the petition for review. View "Suarez-Valenzuela v. Holder, Jr." on Justia Law

Pro se petitioner Lucio Salgado-Toribio sought review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. Petitioner had been using the federal courts' procedures to put off removal for more than three years since an immigration judge found him removable. This appeal was his third time seeking the Tenth Circuit's review of an administrative decision over which the Court found it had no jurisdiction. "Enough is enough. We deny Petitioner's motion to proceed in forma pauperis, dismiss the petition for review, and recommend that the Department of Homeland Security enforce the order of removal immediately." View "Salgado-Toribio v. Holder" on Justia Law

Petitioners Ortiz and Malpica petitioned for review of the BIA's order affirming the IJ's order of removal, pursuant to 8 U.S.C. 1227(a)(1)(A), on the grounds that they were inadmissible at the time of their adjustment of status. The court found that the IJ erred as a matter of law in finding petitioners inadmissible pursuant to 8 U.S.C. 1182(a)(7)(A)(i)(I) because that section only applied to applicants for admission and not to immigrants like petitioners who sought post-entry adjustment of status while already in the United States. Because willful misrepresentation was an essential element of both fraud and willful misrepresentation and because the IJ found that Ortiz did not make any willful misrepresentation, Ortiz was not inadmissible under 8 U.S.C. 1182(a)(6)(C)(i). Under Matter of Arrabally, Malpica's exit pursuant to a grant of advance parole did not qualify as a "departure" within the meaning of 8 U.S.C. 1182(a)(9)(B)(i)(II) and Malpica was, thus, not inadmissible under this section. Accordingly, the court granted the petition for review. View "Ortiz-Bouchet, et al v. U.S. Attorney General" on Justia Law

Moncrieffe, a Jamaican citizen legally in the U.S., was found with 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. Under the Immigration and Nationality Act, a noncitizen convicted of an “aggravated felony” is deportable, 8 U.S.C. 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony (by more than one year’s imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. 841(a), punishable by up to five years’ imprisonment. An Immigration Judge ordered Moncrieffe removed. The Board of Immigration Appeals affirmed. The Fifth Circuit denied a petition for review, rejecting reliance on section 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration. The Supreme Court reversed and remanded. If a noncitizen’s conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. The Court employed the “categorical approach,” examining what the state conviction necessarily involved and not the facts underlying the case, and presuming that the conviction involved the least of the acts criminalized. Conviction under Georgia’s statute, alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court rejected an argument that section 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The government’s proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration is inconsistent with the INA’s text and the categorical approach and would burden immigration courts and the noncitizens involved. Escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal. View "Moncrieffe v. Holder" on Justia Law