Justia Immigration Law Opinion Summaries

Defendant appealed his conviction under 8 U.S.C. 1326(b) for illegal reentry into the United States after being deported. On appeal, defendant challenged his conviction based on a collateral attack of the underlying removal order. The court held that a defect in defendant's 1997 immigration proceedings, that he was not meaningfully informed of his eligibility for voluntary departure, violated his due process rights. However, the district court did not consider fully whether defendant suffered prejudice. Therefore, the court remanded to the district court to consider this issue.

Petitioner, a native and citizen of Mexico, appealed the district court's dismissal for lack of subject matter jurisdiction of his 28 U.S.C. 2241 habeas petition challenging the removal order resulting in his deportation to Mexico. Petitioner argued that he was "in custody" within the meaning of section 2241 because he was being restrained from returning to the United States despite his wrongful removal. Because petitioner had failed to show that his deportation was the result of extreme circumstances or that he was subject to any restraints in Mexico not experienced by other non-citizens who lacked the documentation to enter the United States, he had not shown that he was "in custody" within the meaning of section 2241. Further, the district court did not have jurisdiction to review the final removal order pursuant to the provisions of the REAL ID Act, 8 U.S.C. 1252(a)(5). Accordingly, the district court did not err in dismissing the petition.

This case concerned the BIA's policy for deciding when resident aliens could apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration law. The Court held that the BIA's policy for applying section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), in deportation cases was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. 706(2)(A). The Court concluded that the BIA's comparable-grounds rule was unmoored from the purposes and concerns of the immigration laws. It allowed an irrelevant comparison between statutory provisions to govern a matter of the utmost importance -whether lawful resident aliens with longstanding ties to this country could stay here. And contrary to the Government's protestations, it was not supported by text or practice or cost considerations. Therefore, the BIA's approach could not pass muster under ordinary principles of administrative law.

Petitioner, a native and citizen of India, petitioned for review of the BIA's determination that the Citizenship and Immigration Service (CIS) properly terminated petitioner's lawful permanent resident status and dismissed his appeal. At issue was whether the CIS lost jurisdiction of a petition to remove conditions placed on residence if it did not adjudicate the petition within 90 days, as required by 8 U.S.C. 1186a(c)(3)(A). The court held that the BIA was correct to conclude that the 90 day deadline did not start "running after the first scheduled interview" because this interview "was not intended by CIS to be the final interview." The court also held that it lacked jurisdiction to consider petitioner's due process argument. Accordingly, the petition was denied in part and dismissed in part.

Petitioner petitioned for review of the BIA's decision that he be removed based on having committed an aggravated felony. Petitioner was charged and convicted of felonious sexual intercourse without consent. Petitioner did not "necessarily" commit the aggravated felony of rape, rather than a lesser crime. Because the court was not convinced that petitioner pled guilty to a crime that can be categorized as rape under 18 U.S.C. 1101(a)(43)(A), the court granted the petition for review and reversed the BIA's decision, remanding to the BIA.

Defendant appealed the district court's grant of the government's motion for summary judgment, concluding that the government provided clear, convincing, and unequivocal evidence that left no issue in doubt that defendant, a naturalized citizen, obtained his citizenship illegally. The court held that the district court improperly weighed the evidence in concluding that there were no genuine issues of material fact as to whether the government could strip defendant of his citizenship. The existence and nature of the cooperation agreement were the subjects of pending Freedom of Information Act (FOIA), 5 U.S.C. 552, requests, and further evidence should have been allowed. Because of the importance of citizenship, which in turn conferred significant rights and responsibilities, the government bore a heavy burden when it sought to take away an individual's citizenship. The court also vacated the district court's denial of defendant's motion to dismiss for improper venue, and remanded with instructions that the district court conduct the proper inquiry consistent with the Immigration and Naturalization Act, 8 U.S.C. 1101(a)(33).

Petitioner, a native of Liberia, was admitted as a visitor in 1980. In, 1983, he became a lawful permanent resident. In 1988, he pled guilty to criminal sexual conduct. In 1995, Minnesota enacted a predatory offender registration statute. Petitioner initially complied, but in 1998, pled guilty to failing to register. In 2009, DHS began removal proceedings under 8 U.S.C. 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude committed within five years after his date of admission and alleging that his 1998 conviction, coupled with his 1988 conviction, made him removable under 8 U.S.C. 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude not arising out of a single scheme. Several months later, petitioner asserted for the first time that he was admitted in 1980, not 1983, but did not support his assertion with any evidence. The IJ ordered him removed. The BIA dismissed. The Third Circuit vacated, reversing the treatment of petitioner's conviction under the predatory offender registration statute. The court remanded with instructions to allow him to supplement the record to show that he was legally admitted in 1980 and to enter an order that he is not removable.

Petitioner, age 13, entered from Pakistan on a visitor's visa in 1979. The 1986 Immigration Reform and Control Act, allowed aliens who entered before 1982 and have remained continuously present to apply for legalization (8 U.S.C. 1255a). His 1987 attempt to apply was rejected because of a brief trip to Pakistan. The practice, "front-desking," was challenged in court. While litigation was pending, petitioner applied for amnesty and obtained work authorization. In 1992, he was convicted for possession of a concealed hunting knife. Returning from Canada while driving his truck route in 1995, petitioner was found to have a voter's registration stating that he was a citizen, but was allowed to reenter. He filed application under the Legal Immigration Family Equity Act, applicable to members of front-desking actions who establish continuous residence from 1982 to 1988. INS commenced deportation, aware of the pending amnesty application. The BIA dismissed an appeal. The Sixth Circuit denied review. In 2005 petitioner voluntarily appeared and was detained for four years. USCIS denied the 1997 amnesty application and the LIFE application. The AAO dismissed appeals; BIA reissued its 2001 deportation decision. The Seventh Circuit vacated. AAO failed to make an individualized decision about continuous presence and was not entitled to rely on the 1991 conviction as a ground to deny legalization.

Petitioner, a native and citizen of Honduras, petitioned for review of the BIA's order affirming the denial of his claims for asylum, withholding of removal, and protection under the CAT. The court held that the BIA's conclusion that petitioner's proposed social group of young Honduran males who refuse to join MS-13 (Mara Salvatrucha gang), have notified the police of MS-13's harassment tactics, and have an identifiable tormentor within the gang did not qualify as a particular social group was not manifestly contrary to the law or an abuse of discretion. Accordingly, the court denied the petition for review with respect to the asylum and withholding of removal claims. However, the court granted the petition for review with respect to petitioner's CAT claim, vacating the BIA's final order, and remanding for further proceedings for additional investigation and explanation as the court had outlined.

Petitioner left Syria because of fears relating to indebtedness and was admitted to the U.S. as a nonimmigrant in 2000. He became acquainted with men involved in the September 11 attacks and later voluntarily provided the FBI with information. In October 2001 the INS issued a Notice to Appear charging petitioner as removable. He sought asylum and withholding of removal and relief under the Convention Against Torture and was transferred to FBI custody on a material witness warrant. The IJ granted the application for asylum (8 U.S.C. 1158), withholding of removal (8 U.S.C. 1231(b)(3)(A)), and withholding of removal pursuant to the CAT, finding that he belonged to the social group of "hopeless debtors," persecuted in Syria. Three years later, ICE indicated that his application might have been fraudulent and that petitioner might pose a threat to national security. The BIA reopened "sua sponte" and remanded. The district court dismissed, for lack of jurisdiction, a "Petition for Writ of Habeas Corpus and Stay of Removal Proceedings." The Third Circuit reversed concluding that, under these unusual circumstances, the district court has jurisdiction to review the BIA decision to reopen pursuant to 28 U.S.C. 1331 and the Administrative Procedure Act, 5 U.S.C. 701.