Justia Immigration Law Opinion Summaries

The United States sued the State of Arizona in federal district court alleging that S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration-enforcement authority of Arizona's state and local law enforcement officers, violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act ("INA") and that it violated the Commerce Clause. At issue was whether the district court's grant of the United State's motion for a preliminary injunction in part, enjoining S.B. 1070 sections 2(B), 3, 5(C), and 6, was an abuse of discretion. The court held that the United States had met its burden of showing that there was likely no set of circumstances under which S.B. 1070 sections 2(B), 3, 5(C), and 6 would be valid and that they were likely to succeed on the merits of their challenge. The court also held that the district court did not abuse its discretion by enjoining S.B. 1070 sections 2(B), 3, 5(C), and 6 where the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest.

Petitioner appealed a final removal order issued by the Board of Immigration Appeals ("BIA") which determined that petitioner was ineligible for adjustment of status under 8 U.S.C. 1255(i). At issue was whether the interpretation of section 1182(a)(9)(C)(i)(I) and 8 U.S.C. 1255(i) in Acosta v. Gonzales had precedence over the BIA's subsequent and contrary reading in Matter of Briones. Also at issue was whether the BIA, if Briones was controlling, impermissibly applied it to petitioner. Further at issue was whether the Attorney General exceeded his authority by promulgating 8 C.F.R. 1240.26(i), which terminated a grant of voluntary departure upon the filing of a petition for review of a final removal order. The court held that the BIA's decision in Briones addressed a statutory ambiguity and was entitled to Chevron deference and that petitioner was inadmissible under 8 U.S.C. 1182(9)(C)(i)(I), was not subject to the exception in section 1182(a)(9)(C)(ii), and not eligible for adjustment under section 8 U.S.C. 1255(i). The court also held that the BIA properly applied its decision in Briones to petitioner where, under Chevron and Brand X, the BIA had authority to offer authoritative constructions of immigration provisions. The court further held that 8 C.F.R. 1240.26(i) was a proper exercise of the Attorney General's authority and there was no need to inquire further into the reasonableness of the regulation.

Petitioner, a native and citizen of Mexico, petitioned for a review of the decision by the Board of Immigration Appeals affirming a final order of removal, denying her claims for asylum and withholding of removal where her asylum application was time-barred when it was filed more than six years after she entered the United States. At issue was whether applying the one year filing deadline to petitioner's asylum application was a violation of the Equal Protection Clause. Also at issue was whether domestic abuse that occurred in the United States constituted past persecution. The court held that the government's treatment of petitioner was rationally related to a legitimate government purpose and therefore not in violation of the Equal Protection Clause where the time bar applied to late applications, like petitioner's, would still need to be filed during the first year and where the time bar helped identify legitimate claims, provided a fixed cut-off date for filings, served as a limitation on the number of applicants, and reduced abuse of the system. The court also held that domestic violence that occurred in the United States did not constitute past persecution where it was not "in the proposed country of removal" under 8 C.F.R. 1208.16(b)(1)(i).

Defendant appealed his conviction for attempted entry after deportation on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy. At issue was whether the district court erred in failing to advise defendant of the immigration consequences of his plea in light of United States v. Amador-Leal. The court held that petitioner had not demonstrated the probability of a different result and thus could not show that the district court's action affected his substantial rights where he failed to assert on appeal that he would not have entered the plea but for the district court's alleged error.

Petitioner appealed the Board of Immigration Appeals ("BIA") decision affirming a finding that his alien transportation conviction in 1984 constituted an aggravated felony and he was therefore ineligible for relief in the form of cancellation of removal. Petitioner also appealed the BIA's dismissal of his motion to reopen and reconsider his guilty plea to the controlled substance charge that resulted in his conviction where he was not adequately informed of the immigration consequences of his plea. At issue was whether petitioner was properly found removable due to his 1984 conviction and therefore ineligible for cancellation of removal. Also at issue was whether the BIA had jurisdiction to review a motion to reconsider and reopen filed after a petitioner had been involuntarily removed from the United States. The court remanded and held that until the BIA determined that petitioner's conviction was not vacated on the merits, petitioner was not properly found removable under the Immigration and Nationality Act on a ground separate and distinct from a pre-1998 aggravated felony conviction. The court also held that the physical removal of petitioner from the United Stated did not preclude him from pursuing a motion to reopen where Congress made clear in passing the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that Congress anticipated that petitioners would be able to pursue relief after departing from the United States.

The petitioner re-entered the United States illegally after being removed in 1997 following convictions related to a hit-and-run. He was caught in 2010. The Department of Homeland Security rejected his petition to stay removal and rescind the 1997 order based on post-1997 decisions under which the underlying convictions would not be characterized as felonies. The Seventh Circuit affirmed, holding that the petition was untimely based on the date on which the petitioner had knowledge of the 2010 removal order. The court declined to characterize the proceedings as denial of a motion to reopen the 1997 order, which would have also been untimely.

The government petitioned for rehearing where petitioner was removed in absentia when he did not know about his removal proceeding hearing because he had moved from his previous address and failed to advise his new lawyer and the immigration court of his whereabouts. At issue was whether the court's original opinion constituted a departure from Ninth Circuit precedent and interpreted too broadly the "exceptional circumstances" safe harbor for aliens removed in absentia. The court granted the petition for rehearing and dismissed the petition for review where petitioner did not demonstrate the diligence necessary for a finding of exceptional circumstances and where there did not exist in the record any likelihood of relief.

In 2007 the Board of Immigration Appeals denied a petition for asylum and to withhold removal brought by an Albanian citizen who had entered the United States illegally. In 2009 the BIA declined to reopen the case to consider a claim for asylum based on health care concerns. The Third Circuit remanded for clarification. The BIA acted within its discretion in finding the motion untimely. There is no time limit on a motion to reopen if conditions in the home country have changed, but there was insufficient proof of such a change in this case. The BIA retained discretion to reopen the case sua sponte. While noting that the BIA's discretion on a sua sponte motion is "essentially complete," the court stated that it may point out a possible misperception of the law. Economic disadvantage is not a "serious harm" that would justify reopening the case, but unavailability of needed health care could qualify in some circumstances.

Petitioner, a native and citizen of India, petitioned for a review of the Board of Immigration Appeals ("BIA") dismissal of his appeal of the Immigration Judge's denial of his application for asylum. At issue was whether petitioner demonstrated "changed circumstances" that justified the untimely filing of his asylum application. The court granted the petition and held that the significance of the changes in conditions in India while petitioner was in the United States demonstrated "changed circumstances" and that the time period of two months, from the time petitioner learned of the changed circumstances and the time he filed for asylum, was reasonable.

Petitioner, a Mexican citizen, petitioned for review of the Board of Immigration Appeal's ("BIA")order of removal where he was convicted of illegally transporting aliens. At issue was whether petitioner's decision to take administrative voluntary departure in lieu of deportation, subsequent to his prior conviction in 1982 for illegal entry into the United States, was under threat of deportation and whether voluntary departure under threat of deportation established a break in continuous residence. The court held that it had no jurisdiction to review petitioner's voluntary departure which required a factual determination and that petitioner's voluntary departure in lieu of deportation interrupted his alleged continuous residence. The court also held that there was therefore no compelling indication that the BIA incorrectly concluded that petitioner was ineligible for lawful permanent resident ("LPR") status based on his 1982 voluntary departure and thus he was ineligible for LPR cancellation of removal.