Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of China, petitioned for review of the BIA's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that the IJ's adverse credibility determination was impermissibly based on mischaracterizations of petitioner's testimony as well as inconsistencies that, considering the totality of the circumstances, were trivial. The court held, however, that petitioner was given the proper notice and opportunity to respond to the IJ's request for corroborative evidence. Because petitioner failed to provide that evidence and did not provide any explanation for his failure to do so, and because the IJ was not compelled to conclude that petitioner met his burden of proof without that evidence, the court denied the petition.

Petitioner Budiyanto Juned, a native and citizen of Indonesia, appealed a Board of Immigration Appeals' (BIA) decision that denied his applications for asylum and restriction on removal under the Convention Against Torture (CAT). Petitioner came to the United States on a visitor's visa in 1994 and remained after the visa expired. Petitioner petitioned for asylum and restriction on removal on the basis of his political opinion. The BIA affirmed an immigration judge's (IJ) determination that Petitioner was not eligible for asylum because his application was not timely filed and that he did not demonstrate changed or extraordinary circumstances to except himself from the filing deadline. Furthermore, the BIA determined that Petitioner's proffered incidents of mistreatment in his home country did not amount to persecution, nor the likelihood he would be persecuted in the future. Upon review of the BIA record, the Tenth Circuit dismissed Petitioner's asylum claim due to the court's lack of jurisdiction. The Court affirmed the BIA's determination as to all other aspects of Petitioner's claim.

Petitioner, a citizen of Guyana, entered the U.S. in 1994 on a six-month tourist visa and remained after that period. He obtained approved I-130 immediate relative and I-140 work petitions and applied for adjustment of status, but no visa numbers were available. After several continuances, the immigration judge refused any further continuance pending availability of a visa number and ordered deportation. The BIA dismissed an appeal, stating that the future availability of a visa number is speculative and insufficient to establish cause for a continuance). The Third Circuit vacated and remanded for consideration of factors established in a 2009 BIA decision (Hashmi) for use in evaluating whether to continue removal proceedings pending an adjustment of status application: DHS response to the motion; whether the underlying visa petition is prima facie approvable; respondent's statutory eligibility for adjustment of status; whether respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. Factors relevant to determining the fourth criteria include, but are not limited to, the existence of family ties and length of residence in the United States, the hardship of traveling abroad, and respondent's immigration history.

Petitioner was born in Cape Verde in 1979 and admitted into the U.S. as a legal permanent resident in 1985, when his mother immigrated; she became a citizen in 1996. The Department of Homeland Security instituted removal proceedings in 2008 for an aggravated felony conviction. He sought to terminate proceedings pursuant to the Immigration and Nationality Act (8 U.S.C. 1432(a)(3)), contending that he derived citizenship through his mother, who was unwed when he was born and naturalized prior to his eighteenth birthday. The immigration judge ordered removal, reasoning that Congress repealed section 1432(a) by enacting the Child Citizenship Act of 2000, 114 Stat. 1631, effective prior to all relevant events. The Board of Immigration Appeals affirmed. The Third Circuit denied review. Petitioner was legitimated by a Cape Verde statute, making him ineligible for derivative citizenship pursuant to 8 U.S.C. 1432(a)(3).

Petitioner, a native and citizen of Venezuela, petitioned for review of a BIA decision affirming an IJ's denial of her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner also sought review of the BIA's denial of her petition to reopen her case based on additional evidence. The court held that the record supported the BIA's determination that petitioner was not specifically targeted by snipers on the basis of a statutorily protected ground; petitioner was not singled out at vehicle checkpoints; and the police officer's verbal harassment in the park did not rise to the level of persecution that would qualify her for asylum. The court also held that petitioner did not meet her burden of proving a reasonable fear of future persecution. The court further held that petitioner consistently indicated in her applications that she did not fear being tortured in Venezuela and for the same reasons that she failed to prove the likelihood of persecution for purposes of asylum, her petition for relief under the CAT also failed. The court finally held that the BIA was within its discretion in determining that the new evidence of changed circumstances did not warrant reopening petitioner's case where the general report of alleged violence based on sexual orientation that petitioner submitted did not demonstrate that she was singled out and persecuted. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT) but remanding the case to the IJ for voluntary departure proceedings. At issue was whether the BIA's decision was a final order and whether the Supreme Court's decision in Dada v. Mukasey, or the promulgation of a new voluntary departure regulation that became effective on January 20, 2009, deprived the court of jurisdiction. The court held that its precedent compelled the conclusion that the BIA's decision was a final order of removal. The court also held that because neither Dada nor the new voluntary departure regulation undermined the court's precedent, the court had jurisdiction over the petition for review and could review the merits of the petition.

Defendant appealed his conviction for being a previously-removed alien found in the United States. Defendant argued that the district court erred in refusing to give a requested jury instruction, which would have permitted defendant to argue that the government had failed to establish that defendant was an alien who had not obtained derivative citizenship from his stepfather, a United States citizen listed on defendant's birth certificate as his father. The court held that because it found in a second trial, defendant could require the government to come forward with proof that defendant was an alien and did not have derivative citizenship, the court reversed defendant's conviction and remanded for a new trial.

Petitioner and her daughter illegally entered the U.S. in 2002, from Colombia. They applied for asylum in 2006 and sought withholding of removal and relief under the Convention Against Torture. An Immigration Judge denied the application for asylum as untimely and declined to withhold removal under CAT for lack of proof. The IJ found both petitioners removable under 8 U.S.C. 1182(a)(6)(A)(i), ordered that the be removed to any country other than Colombia. The Department of Homeland Security appealed and the BIA concluded that petitioners failed to establish a clear probability of future persecution in Colombia on account of political opinion and remanded to the IJ for the sole purpose of allowing petitioners to apply for voluntary departure. The Sixth Circuit first held that it had jurisdiction to review the BIA order denying withholding of removal, but declined to exercise that jurisdiction for prudential reasons.

Husband entered the U.S. in 2002, using a false Italian passport and wife entered on a temporary tourist visa that subsequently expired. Both are citizens of Albania. In 2003, husband applied for asylum and withholding of removal and listed wife as a derivative beneficiary. Later, wife applied for asylum. The the Immigration Judge denied both relief. The Board of Immigration appeals affirmed. The First Circuit vacated and remanded. The IJ and the Board did not give a persuasive explanation for rejecting the claim of past persecution.The threats and violence against husband were substantial and continued over almost a decade; they were arguably based on interrelated motives related to his political beliefs and his job at the Albanian Supreme Court. The persecution involved attacks on his children. Changed country conditions do not automatically trump specific evidence.

Petitioner appealed the BIA's decision affirming the IJ's conclusion that, due to fraud in obtaining her admission, petitioner was not a Legal Permanent Resident (LPR) and therefore, was not eligible for cancellation of removal. Petitioner contended that the INS inspectors, who interrogated her at the airport upon her arrival to the United States from the Philippines, violated the confidentiality provisions of the statute governing the Special Agricultural Workers program (SAW), 8 U.S.C. 1160. The court held that the confidentiality provisions were not contravened during the inspection at issue in this case because the agents did not access petitioner's SAW application. Therefore, the court denied the petition for review.