Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of the Republic of China, petitioned for review of an order of the BIA, which upheld the denial of petitioner's application for adjustment of status and dismissed her appeal from the IJ's decision, finding that the IJ failed to provide petitioner "with the required advisals." The BIA remanded petitioner's case to the IJ in order for the IJ to grant a new period of voluntary departure and to provide the required advisals. Petitioner timely appealed. The government urged the court to dismiss for lack of jurisdiction. The court concluded that it had jurisdiction, but nonetheless declined to exercise that jurisdiction for prudential reasons, following the approach employed by the First and Sixth Circuits in similar circumstances. Accordingly, the court dismissed the petition without prejudice to petitioner's right to seek review at a later time.

Plaintiff sued the Louisiana State Board of Practical Nurse Examiners, claiming its status requirement violated the Constitution when the Board denied her a license solely on account of her immigration status. Plaintiff was an alien who had applied for permanent residence. The district court granted the Board summary judgment on all grounds. The court held that because applicants for permanent resident status did not constitute a suspect class under the Equal Protection Clause, and a rational basis supported the immigration-status requirement, the judgment was affirmed.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA determining that petitioner was ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1255(i), because she was inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i), and was not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. 1182(a)(9)(C)(ii). The court denied the petition and held that the BIA correctly concluded that petitioner returned to the United States after being "ordered removed under...any...provision of law, and...enter[ed] or attempt[ed] to reenter the United States without being admitted," which rendered her inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(II). The BIA also correctly concluded that petitioner did not satisfy the requirements of 8 U.S.C. 1182(a)(9)(C)(ii)'s exception to inadmissibility. The court held that in order to be eligible under 8 U.S.C. 1182(a)(9)(C)(ii), an alien must register outside the United States for more than ten years before returning to the United States.

Petitioners, three siblings and citizens of Guatemala, petitioned for review of the BIA's dismissal of petitioners' administrative appeal on the merits based on an IJ's denial of their applications for asylum and withholding of removal, as well as the BIA's denial of petitioners' motion to reconsider its prior decision and to reopen the proceedings based on ineffective assistance of counsel. The court held that petitioners did not satisfy the asylum requirement where the refusal to join criminal gangs did not meet the requirements of 8 U.S.C. 1101(a)(42)(A). The court also held that petitioners failed to meet their burden of establishing ineffective assistance of counsel. Accordingly, the BIA did not err in denying asylum and withholding of removal relief and acted well within its discretion in denying the motion to reopen.

Petitioner, a citizen of Peru, entered the U.S., undocumented, in 2005. In 2007, he was arrested for driving while intoxicated; he was unlicensed. In removal proceedings, petitioner conceded removablity and, after being transferred from New Jersey to Louisiana, obtained a change of venue, retained new counsel and filed a motion to withdraw pleadings and a motion for an evidentiary hearing. The IJ found that petitioner's admission waived issues raised in his motions and ordered removal. The BIA dismissed, finding that: petitioner failed to establish that his concession to removability should be suppressed; his rights were not violated when he was transferred; and that evidence of his alienage was not suppressible under the Fourth Amendment. The Third Circuit denied review, first rejecting an ineffective assistance of counsel claim. An alien does not have the right to be detained where he believes his ability to obtain representation and present evidence would be most effective. Even if the police violated a directive from the state attorney general by contacting ICE, petitioner's rights were not prejudiced.

The Qureshis were originally granted asylum from Pakistan because of Mr. Qureshi's support for the Jammu Kashmir Liberation Front (JKLF), but the USCIS later decided to terminate the Qureshis' asylum based on that same support, applying the "persecutor bar" to Mr. Qureshi. The Qureshis sued USCIS to challenge its application of the bar and the district court granted USCIS's motion to dismiss for lack of subject matter jurisdiction on the ground that the termination was not a final agency action. The court affirmed because it agreed that termination of asylum did not consummate agency action and thus was not final.

Petitioner, a native and citizen of Nicaragua, petitioned for review of an order of the BIA dismissing his appeal of an IJ's order of removal. The IJ determined that, under 8 C.F.R. 245.13(k)(1), petitioner had abandoned his pending application for adjustment of status under Section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 8 U.S.C. 1255, as of the moment he drove from the United States into Mexico, even if his unplanned departure was not desired and he immediately turned around and attempted to return. The court concluded that deeming petitioner's NACARA application abandoned was contrary to the regulation where petitioner's departure was not "desired," and ordering removal conflicted with NACARA itself. Therefore, the court granted the petition and remanded for further proceedings.

Defendant, a citizen of Mexico and an alien, pleaded guilty pursuant to a plea agreement to violating 8 U.S.C. 1326(a) and 1326(b)(2) because he was found in the United States after having been removed or deported from the United States and without permission to reapply for admission following removal or deportation. Defendant timely appealed his sentence of 21 months' imprisonment where the district court held that a citation for a traffic violation was the same as an arrest under U.S.S.G. 4A1.2(a)(2). The court concluded that nothing in the record suggested that defendant was ever formally arrested for driving with a suspended license. Defendant was not told he was "under arrest," he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that defendant had been "arrested" for purposes of the Sentencing Guidelines. Therefore, defendant's sentence was vacated and the case remanded for resentencing.

In 2000, petitioner, a citizen of Honduras, was admitted to the U.S. as a lawful permanent resident. Four years later, in a Pennsylvania state court, he was found guilty of sexual assault, a second degree felony, and indecent assault, a second degree misdemeanor, and was sentenced to imprisonment of 46 months to eight years. He was found not guilty of rape. DHS charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii), because he had been convicted of a crime of violence under 18 U.S.C. 16(b), which is an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F). The BIA ordered removal. The Third Circuit denied an appeal. rejecting an argument that the crime was not a "crime of violence" because the mens rea necessary for conviction is recklessness. Sexual assault, as defined by the statute, raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, and, therefore, constitutes a crime of violence under 16(b).

In 2005, petitioner, then a teenager, left Honduras and entered the U.S. illegally. When he was caught and DHS began removal proceedings, he filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had suffered persecution at the hands of a street gang on account of his evangelical Christian religious beliefs and his church youth group membership. The Immigration Judge and the Board of Immigration Appeals denied the application because petitioner failed to establish that the gang's actions were on account of his religion or social group membership. The Seventh Circuit denied an appeal, finding the denial supported by substantial evidence.