Justia Immigration Law Opinion Summaries

Petitioner timely petitioned for review of the BIA's decision affirming the IJ's holding that defendant was ineligible for cancellation of removal because his domestic violence conviction constituted an "aggravated felony" under 8 U.S.C. 1101(a)(43)(F). Defendant argued that because an aggravated felony was defined as a crime of violence for which a term of imprisonment was at least one year, and because his 365-day sentence was completed during a leap year, which was 366 days long, his California conviction did not qualify as an aggravated felony. The court held that the BIA was correct to conclude that, for purposes of section 1101(a)(43)(F), a sentence of 365 days qualified as a term of imprisonment of at least one year," even when the sentence was served in whole or in part during a leap year. The court concluded that all of petitioner's arguments for cancellation of removal have been addressed by the court's precedents and none have been resolved in his favor. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's order affirming the IJ's decision that petitioner did not suffer from ineffective assistance of counsel and declining to address the remainder of the issues raised in petitioner's brief. At issue was whether an alien in removal proceedings could withdraw his former attorney's admission of the government's factual allegations when the propriety of the admission had been severely undercut by subsequent legal developments that could, in fact, mean that the admission was false. The court granted the petition for review and remanded to the BIA for it to consider the IJ's alternative holding that petitioner's testimony established that he "knowingly encouraged, induced, assisted, or aided" his brother to enter the United States illegally. If the agency ultimately concluded that the government had not carried its burden of proving that petitioner was removable for smuggling his brother, petitioner must be given the opportunity to seek a waiver for the ground of removeability that he did not contest, the smuggling of his wife.

Petitioner, a citizen of Pakistan, petitioned the court for review of the BIA's decision dismissing his appeal of an IJ's decision ordering him removed from the United States. Petitioner maintained that he was eligible to adjust status under the new second-preference petition his mother had filed for him because he could retain the January 1996 priority date of the original fourth-preference petition filed by his aunt. Using that priority date, a visa was immediately available. The court held that, contrary to the BIA's interpretation in Matter of Wang, the benefits of 8 U.S.C. 1153(h)(3) unambiguously applied to all petitions described in 1153(h)(2), including the fourth-preference visa petition of which petitioner was a derivative beneficiary. Therefore, the court granted the petition for review and remanded for further proceedings.

Petitioner, a citizen and national of India, petitioned for review of the BIA's decisions. At issue was whether petitioner established changed or extraordinary circumstances that would excuse his untimely application for asylum. The court held that the BIA applied incorrect legal standards when it determined that petitioner had not established changed or extraordinary circumstances, excusing his untimely application, because the relevant inquiry should have been why petitioner delayed his application, not that the arrest of his wife triggered his application. The court also held that the BIA's determination that petitioner failed to file his application within a reasonable period of time after his lawful non-immigrant status expired was not supported by substantial evidence. Accordingly, the court granted the petition and remanded the matter to the BIA so that it could apply the correct legal standard in the first instance.

Petitioner, admitted in 1998 as a refugee from Belarus, where he had been threatened by anti-Semitism, became a lawful permanent resident in 2001. In 2007, he returned from a trip and found that he was subject to a warrant arising out of a wire fraud scheme. The government released him, but did not formally "admit" him; DHS purported to "parole" him into the country, pursuant to 8 U.S.C. 1182(d)(5)(A), for the purpose of prosecuting him. He pled guilty to aiding and abetting wire fraud (18 U.S.C. 2 and 1343). The stipulation stated that the loss amount attributable to defendant was more than $120,000, but less than $200,000. DHS initiated removal on the ground that conviction of a crime involving moral turpitude precludes admission, 8 U.S.C. 1182(a)(2)(A)(i)(I). The immigration judge ruled that the crime was not an aggravated felony, but that petitioner was an arriving alien and was removable on account of his conviction. The court cancelled removal after concluding that the balance of various factors weighed in his favor. The Board of Immigration Appeals reversed, holding that removal could not be cancelled under sect. 1229b and that petitioner was not eligible for asylum. The Third Circuit affirmed the BIA decision in all respects except with regard to Convention Against Torture claims and remanded.

A citizen of Canada, admitted in 1963 as a lawful permanent resident, has held academic positions at universities. In 1983, he was convicted of larceny and of taking money under false pretenses. In 1984, he was convicted of mail and wire fraud. He was imprisoned from 1992 to 1995, for violating parole. In 1990, the INS charged deportability under 8 U.S.C. 1227(a)(2)(A)(ii) based on conviction of two crimes involving moral turpitude not arising out of a single scheme. In 1997 INS added grounds under 8 U.S.C. 1227(a)(2)(A)(iii): conviction of an aggravated-felony theft offense, and an aggravated-felony fraud offense involving losses exceeding $10,000. The IJ, found petitioner deportable. The BIA affirmed, but remanded because the INS had granted the Attorney General discretion to waive deportation of lawful permanent residents, otherwise deportable for having committed crimes. DHS added another ground, charging that his 1984 conviction qualified as an aggravated felony because it constituted an attempt or conspiracy to commit fraud or deceit involving over $10,000 in losses. In 2007 the IJ denied all claims. The BIA agreed. The Sixth Circuit denied a petition for review, rejecting procedural claims and his claim that removal proceedings should be terminated based on his prima facie eligibility for naturalization under 8 C.F.R. 1239.2(f).

Petitioner fled Colombia after the Revolutionary Armed Forces of Colombia pursued him relentlessly, subjecting him to multiple hijackings at gunpoint, directing death threats at him and his family, and burning his trucks. He applied for asylum, asserting that the government sat by and allowed FARC to persecute him because of his affiliation with the Liberal Party and his status as a pro-government trucker who refused to cooperate with FARC. The Immigration Judge found him credible and determined that he was eligible for asylum.The Board of Immigration Appeals rejected the IJ’s decision and ordered removal. The Seventh Circuit granted review and remanded, stating that the Board failed to take account of all the evidence in the record.

Minta del Carmen Rivera Barrientos suffered an attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and sought asylum. She contended she was eligible for asylum under 8 U.S.C. 1158 because she faced past persecution on account of her political opinion (opposition to gangs) and her membership in a particular social group (young females) who have resisted gang recruitment. The BIA argued that the attack was not on account of her political opinion and that she was not a member of a cognizable social group. Because the Tenth Circuit concluded the BIA’s interpretation of the applicable statute was not unreasonable, the Court concluded the agency did not abuse its discretion in finding that Rivera-Barrientos was ineligible for asylum.

Defendant, a native and citizen of Mexico, challenged his conviction for illegal reentry after removal on the ground that the removal order on which the conviction was based was invalid. The court held that in light of the "unique circumstances" of defendant's case, it was not plausible that the IJ would have granted him permission to withdraw his application for admission. Therefore, defendant could not show that he was prejudiced by the IJ's alleged error and could not show that the entry of the February 27, 2006 removal order was "fundamentally unfair" as required by 8 U.S.C. 1326(d)(3). Accordingly, defendant's collateral attack on the removal order failed and the court upheld the district court's ruling.

This case involved the family-sponsored immigration process where appellants were legal permanent residents of the United States and their children were no longer under the age of 21. At issue was whether appellants' children were entitled to any relief under the Child Status Protection Act (CSPA), 8 U.S.C. 1153(h), which was enacted to help keep families together by expediting the immigration process for certain aged-out aliens. The court held that because it agreed that the BIA's interpretation of section 1153(h) warranted deference, the court affirmed the district court's grant of summary judgment in favor of appellees. Therefore, the court held that appellants' children were not among the aged-out aliens entitled to relief under section 1153(h).