Justia Immigration Law Opinion Summaries

Petitioners, citizens of Columbia,entered the United States in September 2001, as nonimmigrant visitors. On May 7, 2002, they filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge denied the application. The Board of Immigration Appeals (BIA) affirmed. The Second Circuit vacated and remanded. The BIA again ruled against the petitioners.The Second Circuit again vacated and remanded. The petitioners sought $9,690.00 in attorneyâs fees and $751.04 in costs incurred in connection with the petitions for review After holding that he Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A). applies to petitions for review from the BIA, the Second Circuit granted the award. The BIA position was without substantial justification; the BIA committed significant errors of law and fact that prejudiced the case by grounding its disposition of the claims on a material misquotation of death threat and inadequate consideration under the CAT.

The New York State Department of Education and related defendants appealed from an order of the district court denying their motion to vacate an award of attorney's fees to plaintiff where the district court had awarded plaintiff attorney's fees pursuant to 42 U.S.C. 1988(b) after he successfully challenged on equal protection grounds New York State Education Law 6704(6), which restricted professional veterinarian licenses to United States citizens and aliens who were lawful permanent residents of the United States. The Department appealed the district court's ruling and while the appeal was pending, the United States granted plaintiff permanent legal resident status, which meant that section 6704(6) no longer precluded him from obtaining the license. Accordingly, a panel of the court dismissed the appeal as moot and vacated the judgment. The Department then moved to vacate the fee award. The court agreed with the district court that because the judgment in plaintiff's favor, though later vacated, had brought a judicially-sanctioned, material alteration of the parties' legal relationship that had not been reversed on the merits, plaintiff was a prevailing party entitled to attorney's fees under 42 U.S.C. 1988(b).

Petitioner, a native of Nigeria, entered the U.S. illegally in 1992 and married a citizen in 1995. After a child was born in 1996, he applied for adjustment of status. In 1997 he attempted to enter Canada under a false identity and immigration officials determined that he had previously committed thefts under a false identity. Petitioner was charged as removeable. Immigration judges denied various motions and, in 2003, was found to be removeable. Withholding of removal was denied. The BIA upheld the decision. The Sixth Circuit denied a petition for review, holding that it had jurisdiction to review a denial of change of venue motion. The IJ was within his discretion in denying transfer of venue; petitioner suffered no prejudice. The motion for remand was futile because petitioner is not admissible for permanent residence and had no basis to adjust his status (8 U.S.C. 1255(a)). Noting petitioner's contradictions and refusals to answer questions, the court held that substantial evidence supported finding that petitioner failed to establish the likelihood that he or his daughter would be persecuted or tortured if they return to Nigeria.

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision to affirm the IJ's order of removal pursuant to 8 U.S.C. 1227(a)(2)(A)(ii) where petitioner was an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for passing a bad check with intent to defraud and his 2004 conviction for possession of 15 or more access devices with intent to defraud. The court held that it lacked jurisdiction over the petition for review where petitioner was convicted of two crimes involving moral turpitude, for which each sentence of a year or more could be imposed, and which did not arise out of a common criminal scheme; and where the IJ's denial of the cancellation request was a discretionary decision as to which petitioner had not raised a colorable legal or constitutional claim. Accordingly, the court denied the petition for review.

Defendant was convicted of illegal reentry by an alien who was previously deported and sentenced to 70 months imprisonment. Defendant appealed the district court's refusal to allow him to present a defense of necessity and the district court's denial of his purported request for a continuance. The court held that the district court was correct to rule as a matter of law that defendant was not entitled to present a necessity defense where defendant failed to make a prima facie showing of an imminent threat of harm and that he lacked a reasonable, legal alternative to illegally reentering the United States. The court also held that the district court's conduct was not egregious or fundamentally unfair where defendant did not expressly request a continuance and relied on his comment on the morning of trial to suggest that the district court was negligent in not allowing him time to prepare the witnesses. Accordingly, the judgment of the district court was affirmed.

Petitioner, a citizen of Mexico, petitioned the court for review of the BIA's decision to deny his petition for cancellation of removal and his motion to reopen removal proceedings so that he could pursue cancellation of removal after an adjustment of status for which he had an application pending. The court held that, because petitioner raised no constitutional claims or questions of law, the court lacked jurisdiction to review the discretionary denial of cancellation of removal. The court also held that, because the BIA based its denial of petitioner's motion to reopen on a determination that he did not merit the discretionary relief of cancellation of removal, the court also lacked jurisdiction to review the denial of the motion. Accordingly, the appeal was dismissed.

Appellant, a citizen of El Salvador, pleaded guilty to violating 8 U.S.C. 1326(a), and 1326(b)(2), which together prohibited the illegal reentry of an alien who had been deported following an aggravated felony conviction. The district court twice sentenced appellant. The court reversed both times, remanding each time for resentencing - first, because the district court did not consider appellant's Guidelines range under United States v. Booker, and second, because the district court incorrectly calculated appellant's Guidelines range when it did consider it. Appellant appealed his third sentence which resulted in an 84 month prison sentence because the court varied upward from appellant's calculated Guidelines range on the basis of the factors articulated in section 3553(a). The court held that the district court correctly calculated the Guidelines range and its subsequent findings of fact about appellant's Virginia abduction offense were not clearly erroneous. The court also held that the district court's judgment presented a "reasoned and reasonable decision that the section 3553(a) factors, on the whole justified the sentence." Accordingly, the court affirmed the sentence because the district court adequately explained its sentencing decision.

Petitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the BIA's denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.

Petitioner, a citizen of Ecuador, entered the U.S. illegally in 1991; she was granted voluntary departure in 1995, but did not depart until 1999. She illegally re-entered in 2000 and married a citizen. Using a different alien registration number, she applied for adjustment of status. She also sought to re-apply for admission under her original number. The Department began removal proceedings. The immigration found that her inadmissibility under 8 U.S.C. 1182(a)(9)(C)(i)(II) rendered her statutorily ineligible for adjustment of status and ordered removal to Ecuador. The BIA dismissed an appeal. The Third Circuit denied a petition for review. the BIA correctly concluded petitioner was inadmissible and removeable and that the immigration judge lacked jurisdiction to consider her "nunc pro tunc" request for consent to reapply for admission pursuant to sect. 1182.

Plaintiffs appealed the judgment of the district court dismissing their complaint for failure to state a claim. Plaintiffs argued that the Child Status Protection Act (CSPA), and in particular 8 U.S.C. 1153(h)(3), entitled Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative beneficiary to his grandfather's 1994 priority date for his mother's 2008 family-sponsored petition for Duo Cen. The court held that section 1153(h)(3) did not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition could not be "converted to [an] appropriate category." Therefore, because plaintiffs have specified no "appropriate category" to which Duo Cen's grandfather's petition could be converted, section 1153(h)(3) did not entitle him to retain the 1994 priority date from his grandfather's petition. Accordingly, the judgment of the district court was affirmed.