Justia Immigration Law Opinion Summaries

Petitioner, a native of El Salvador who had been granted LPR status, petitioned for review of the BIA's decision to dismiss his appeal from an IJ's decision classifying him as an alien subject to removal under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(A)(i). The order of removal was based upon the IJ's determination that petitioner previously had been convicted of a crime involving moral turpitude. Because the court concluded that the moral turpitude provision of the INA was not ambiguous and did not contain any gap requiring agency clarification, the court held that the procedural framework established in Matter of Silva-Trevino was not an authorized exercise of the Attorney General's authority. Accordingly, the court granted the petition and vacated the BIA's decision and the order providing for petitioner's removal.

Petitioner, a Guatemalan citizen, appealed his conviction and sentence for illegal reentry into the United States after removal. Petitioner challenged the validation of his underlying removal, contending that he automatically derived U.S. citizenship upon his father's naturalization when he was 14 years old. At the time, the controlling statute, 8 U.S.C. 1432(a), granted automatic derivative citizenship to foreign-born children of married parents only when both parents naturalized before the foreign-born child's 18th birthday. Petitioner's mother did not naturalize until he was 21 years old. Therefore, the district court correctly ruled that petitioner was not a citizen. The court also held that, under Barthelemy v. Ashcroft, the distinction between married and legally separated parents had a rational basis in protecting the parental rights of a non-citizen, custodial parent. The court also held that the sentence in this case was neither substantively nor procedurally unreasonable.

Petitioner, a native of Australia, appealed the BIA's order of removal as an alien convicted of a controlled substance, arguing that the BIA erred when it decided that she was not eligible to seek section 212(c) discretionary relief from removal pursuant to the former Immigration and Nationality Act (INA), 8 U.S.C. 1182(c), which was repealed in 1996 as to aliens with certain criminal convictions. The court concluded that the repeal of section 212(c) imposed an impermissible retroactive effect on aliens like petitioner, who in reliance on the possibility of discretionary relief, agreed to a stipulated facts trial. The record demonstrated that petitioner reasonably relied on the law that existed when she faced criminal proceedings in 1980; therefore, the repeal of section 212(c) could not be applied retroactively to her conviction. The court reversed the BIA's decision and remanded with instructions to consider the merits of her section 212(c) application.

Petitioner, a citizen of Nigeria, petitioned for review of a decision by the BIA affirming the IJ, who made an adverse credibility determination and denied petitioner's requests for withholding of removal and relief pursuant to the CAT. The court held that the BIA sufficiently complied with the court's mandate because it considered the REAL ID Act's, Pub. L. 109-13, 119 Stat. 302, impact on the IJ's finding that petitioner's claims were not sufficiently corroborated. Even assuming that the REAL ID Act mandated notice that corroborating evidence was required, such notice was provided in this case. Therefore, the IJ's adverse credibility determination was supported by substantial evidence and petitioner's due process rights were not violated.

Defendant was convicted of conspiracy to unlawfully transport illegal aliens, conspiracy to conceal or harbor illegal aliens, and two counts of harboring or concealing illegal aliens, 8 U.S.C. 1324(a)(1)(A)(ii), (iii), (v)(I), and (a)(1)(B)(I). The Fifth Circuit affirmed, upholding the district court's admission of expert testimony by federal law enforcement agents regarding usual locations of passengers in the vehicles used to transport illegal aliens; use of multiple bailouts in illegal alien trafficking; the role of guides; and relationships among drivers, guides, and recruiters. An agent's statement identifying a particular phone number as belonging to unindicted co-conspirator was hearsay, but not prejudicial.

Ghana-born Petitioner James Turkson asked an immigration judge (IJ) to defer his removal from the United States because he believed that he would be tortured if returned to his native Ghana. The IJ ruled that Petitioner would likely face torture in Ghana, and therefore deferred his removal. The Department of Homeland Security (DHS) appealed the IJ's ruling. On appeal, the Board of Immigration Appeals reviewed all aspects of the IJ's decision, but erred in its review of the IJ's factual findings: the BIA reviewed the case under the de novo standard of review instead of under the "clearly erroneous standard" prescribed by its governing regulations. The Fourth Circuit therefore granted Petitioner's petition for review, vacated the BIA's decision and remanded the case for further proceedings.

Petitioner, a Brazilian national, entered the U.S. illegally in 2006 and was apprehended by DHS, which initiated removal proceedings, 8 U.S.C. 1182(a)(7)(A)(i)(I). Sh conceded removability and sought asylum and other relief, alleging that she had seen two men fleeing from the scene of a neighbor's murder and was subsequently threatened. She indicated that the police in Brazil are corrupt and often allow criminals to kill witnesses. The IJ deemed the evidence insufficient, finding that her fear was unconnected to any statutorily protected ground and that she did not establish that the Brazilian government was either unable or unwilling to protect her. The BIA agreed. The First Circuit denied review. Petitioner chose to premise both her claim of past persecution and her claim of fear of future persecution on her membership in a group that lacks the requisite social visibility.

Defendant, a Mexican citizen, was removed from the U.S. in 1989, following convictions for grand theft auto, second degree burglary, amd receiving stolen property. About one month later, he illegally reentered. In 1990, he was convicted in Missouri of rape and armed criminal action and was sentenced to 18 years in prison. The Border Patrol was not notified of his 2008 release, and no removal order issued. In 2009 he was taken into custody and pleaded guilty to one count of illegal reentry, 8 U.S.C. 1326(a), (b)(2). The presentence report recommended enhancing his offense level by 16 levels based on his 1990 conviction. The district court found that, after serving his sentence, defendant unlawfully remained in the U.S., applied the 16-level enhancement and calculated a guidelines imprisonment range of 77 to 96 months, then sentenced him to 90 months. The Fifth Circuit vacated and remanded, holding that a defendant alleged to have unlawfully remained in the U.S. following a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A) is subject to the 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction.

Petitioner, born in El Salvador, entered the U.S. illegally in 2006. The Department of Homeland Security brought removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i). He conceded removability and filed an application for withholding of removal and Convention Against Torture protection, claiming that he would be harmed by criminal gangs, prevalent in El Salvador, whose attempts to recruit him he had resisted and that the gangs would perceive him as wealthy because of his time in the U.S. and therefore subject him to further threats and violence. The IJ held that his fear was genuine, but that there was neither a sufficient likelihood of harm nor was the feared harm directed at a statutorily protected social group. The Board affirmed. The First Circuit denied review.

During 1998, while living in Tashkent, petitioner graduated from medical school, married, and had a son. He is of the Dungan ethnicity, a group he says is readily distinguishable from ethnic Uzbekis. He claims that they faced substantial persecution due to their ethnicity. He was arrested at least once and held for three days, during which he was beaten with batons. He claims that his wife died as the result of a police beating. He entered the U.S. on a nonimmigrant visa in 2001. His petition for asylum, withholding of removal, and relief under the Convention Against Torture, was denied, based on an adverse credibility determination and a lack of corroborating evidence. The Sixth Circuit denied review, while acknowledging that the agency decision suffers from a number of errors regarding its findings on credibility and corroborating evidence. The court found that one critical credibility finding was supported by substantial evidence.