Justia Immigration Law Opinion Summaries

Petitioner, a native of Guatemala, appealed from a final order of removal by the Board of Immigration Appeals ("BIA") seeking review of the BIA's decision to reverse itself by granting the government's motion for reconsideration and vacating the Board's prior decision that had allowed petitioner to reopen his case. At issue was the BIA's decision to rescind its sua sponte grant of petitioner's untimely motion to reopen on the basis of the departure bar. The court remanded and held that the BIA should determine whether petitioner's motion to reopen was timely filed pursuant to 8 U.S.C. 1229(c)(7)(C) under the doctrine of equitable tolling, given his claim of ineffective assistance of counsel, and if so, rule on the motion, whether on the basis of the departure or other grounds.

Petitioner and her son are Estonian citizens who are ethnically Russian; her husband is a Russian citizen. All three came to the United States legally and sought asylum and withholding of removal, claiming past persecution on account of their Russian ethnicity and fear of future persecution. They claim that petitioner's Estonian citizenship was revoked after Estonia regained independence from the USSR; Estonia invalidated Russian medical degrees, limiting job opportunities for petitioner; petitioner's son received a delayed diagnosis of a genetic defect, PKU, and inferior health care on account of his ethnicity; and that an older son, residing in Estonia, has been subjected to mistreatment based on ethnicity. The immigration judge denied asylum and withholding of removal. The Board of Immigration Appeals affirmed. The Sixth Circuit vacated, finding that the BIA did not consider whether revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked substantial evidence to support its conclusion that petitionerâs job limitations were neither persecution nor on account of ethnicity.

Petitioner was removed from the United States in 1987, returned and served four years in the Oregon penitentiary for rape, and was deported again in 1994. He returned and used various aliases until, in 2001, after pleading guilty to a felony in Michigan, an immigration judge entered an order of voluntary departure. He failed to depart and was apprehended in 2008. After stating that he would review the presentence report before deciding whether to accept the unconditional guilty plea to illegal reentry after previous deportation following an aggravated felony conviction, in violation of 8 U.S.C. 1326 (a), the district judge denied a motion to withdraw the unaccepted plea and to dismiss the indictment as barred by the statute of limitations. The Sixth Circuit vacated and remanded. Under Federal Rule 11 (d) the reason or motive for the motion to withdraw could not be questioned; the court lacked discretion to deny the motion. The motion to withdraw the plea was not conditioned on the outcome of the motion to dismiss.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. At issue was whether substantial evidence supported the BIA's determination that petitioner failed to show that he was persecuted on account of his membership in a particular social group. The court held that substantial evidence supported the BIA's determination where, although petitioner was not precluded from demonstrating membership in a particular social group as a former military officer, he failed to establish that any persecution was or will be on account of his membership in such a group.

Husband and wife, citizens of Ukraine, entered the United States in 1994. When their visas expired they conceded removability and applied for asylum. While proceedings were pending, husband's employer filed an I-140 petition for alien workers; the notice of approval indicated that husband was not eligible for adjustment of status. An immigration judge denied asylum. The BIA dismissed an appeal, subsequently denied adjustment of status, and refused to reopen removal proceedings. The Sixth Circuit denied petitions for review. The petitioners failed to establish that they maintained lawful status under either INA 245(c)(2) or (k) as required for an application for adjustment under INA 245(a).

Petitioner, a native and citizen of Vietnam, petitioned for review of the Board of Immigration Appeals' ("BIA") decision affirming an Immigration Judge's order of removal. At issue was whether petitioner's state misdemeanor conviction for rendering criminal assistance was a crime related to obstruction of justice and thus constituted an aggravated felony under the Immigration and Nationality Act ("INA"), 8 U.S.C. 101(a)(43)(S). The court granted the petition for review and held that petitioner's conviction lacked the necessary actus reus and was not categorically an obstruction of justice according to the definition provided in In Re Espinoza-Gonzalez. The court also held that nothing in the record of petitioner's conviction established that he provided assistance to an individual who was subject to a pending judicial proceeding or ongoing police investigation and therefore, his conviction did not qualify as obstruction of justice under the modified categorical approach.

Petitioner filed a pro se petition for writ of habeas corpus in federal district court alleging that his prolonged detention was unlawful. At issue was whether petitioner's bond hearing, provided under Casas-Castrillon v. Department of Homeland Security, violated due process. The court clarified that once an alien received a Casas bond hearing before an immigration judge ("IJ"), he could appeal the IJ's decision to the Board of Immigration Appeals ("BIA"). If the alien was dissatisfied with the BIA's decision, he could then file a habeas petition in the district court challenging his continued detention. The district court's decision on the habeas petition could then be appealed to this court. Therefore, the court remanded to the district court with instructions to dismiss petitioner's petition without prejudice where he did not exhaust administrative remedies before pursuing habeas relief.

Petitioners, husband and wife citizens of Guatemala, were eligible for suspension of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997, 111 Stat. 2160, but their lawyer never cited NACARA during removal proceedings before the immigration judge or the Board of Immigration Appeals and failed to notify the couple of the decisions. After the husband was taken into custody they learned of their eligibility and moved to reopen their case. The Board denied the motion. The Sixth Circuit vacated and remanded. The Board retains jurisdiction, although the husband has been deported, and the doctrine of equitable tolling applies to the wife's petition. The couple was diligent in pursuing their rights after learning of their lawyer's ineffective assistance; the Board can explore the issue of their diligence prior to revocation of their work permits.

In 2000, the petitioner attempted to enter the United States on a false passport, refused to reveal her true identity, and stated that she had no fear of returning to Cambodia. In 2002 she entered on a six-month visitor visa. In 2003 she filed a petition for asylum; in 2004 a notice of removability issued. An immigration judge denied the petition. The Board of Immigration Appeals and the First Circuit rejected appeals. The petitioner did not corroborate her testimony; there was no evidence that family members remaining in Cambodia suffered persecution. Even accepting testimony that she was raped by police officers, there was no evidence that the rapes were politically motivated or amounted to persecution.

Defendant was arrested and charged with illegal entry into the United States and appeared at a group plea hearing in the United States District Court for the District of Arizona as part of the district's "Operation Streamline." At issue was whether the taking of guilty pleas at a large group plea hearing violated a criminal defendant's rights protected by Federal Rule of Criminal Procedure 11 and the Fifth and Sixth Amendments. The court held that any Rule 11(b)(1) error was harmless where defendant would not have changed her plea of guilty if the magistrate judge had conducted sixty-seven separate advisements of rights and that, although the district court failed to comply strictly with Rule 11(b)(2), such failure was not plain error where the record reflected that defendant's plea was fully informed and the record did not demonstrate that such a plea would have changed if the magistrate had expressly inquired into the voluntariness of her decision. The court also held that the record did not suggest that defendant misunderstood her rights or involuntarily entered her plea and there was no question that this procedure complied with due process. The court further held that the plea hearing did not deprive defendant of her right to counsel where she was provided with adequate, even superior, representation by counsel and failed to demonstrate a reasonable probability that the result of the proceeding would have been different if counsel had not been temporarily separated from her during the group advisement. Accordingly, the court confirmed defendant's conviction and sentence.