Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Venezuela, petitioned for review of a BIA decision affirming an IJ's denial of her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner also sought review of the BIA's denial of her petition to reopen her case based on additional evidence. The court held that the record supported the BIA's determination that petitioner was not specifically targeted by snipers on the basis of a statutorily protected ground; petitioner was not singled out at vehicle checkpoints; and the police officer's verbal harassment in the park did not rise to the level of persecution that would qualify her for asylum. The court also held that petitioner did not meet her burden of proving a reasonable fear of future persecution. The court further held that petitioner consistently indicated in her applications that she did not fear being tortured in Venezuela and for the same reasons that she failed to prove the likelihood of persecution for purposes of asylum, her petition for relief under the CAT also failed. The court finally held that the BIA was within its discretion in determining that the new evidence of changed circumstances did not warrant reopening petitioner's case where the general report of alleged violence based on sexual orientation that petitioner submitted did not demonstrate that she was singled out and persecuted. Accordingly, the judgment was affirmed.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT) but remanding the case to the IJ for voluntary departure proceedings. At issue was whether the BIA's decision was a final order and whether the Supreme Court's decision in Dada v. Mukasey, or the promulgation of a new voluntary departure regulation that became effective on January 20, 2009, deprived the court of jurisdiction. The court held that its precedent compelled the conclusion that the BIA's decision was a final order of removal. The court also held that because neither Dada nor the new voluntary departure regulation undermined the court's precedent, the court had jurisdiction over the petition for review and could review the merits of the petition.

Defendant appealed his conviction for being a previously-removed alien found in the United States. Defendant argued that the district court erred in refusing to give a requested jury instruction, which would have permitted defendant to argue that the government had failed to establish that defendant was an alien who had not obtained derivative citizenship from his stepfather, a United States citizen listed on defendant's birth certificate as his father. The court held that because it found in a second trial, defendant could require the government to come forward with proof that defendant was an alien and did not have derivative citizenship, the court reversed defendant's conviction and remanded for a new trial.

Petitioner and her daughter illegally entered the U.S. in 2002, from Colombia. They applied for asylum in 2006 and sought withholding of removal and relief under the Convention Against Torture. An Immigration Judge denied the application for asylum as untimely and declined to withhold removal under CAT for lack of proof. The IJ found both petitioners removable under 8 U.S.C. 1182(a)(6)(A)(i), ordered that the be removed to any country other than Colombia. The Department of Homeland Security appealed and the BIA concluded that petitioners failed to establish a clear probability of future persecution in Colombia on account of political opinion and remanded to the IJ for the sole purpose of allowing petitioners to apply for voluntary departure. The Sixth Circuit first held that it had jurisdiction to review the BIA order denying withholding of removal, but declined to exercise that jurisdiction for prudential reasons.

Husband entered the U.S. in 2002, using a false Italian passport and wife entered on a temporary tourist visa that subsequently expired. Both are citizens of Albania. In 2003, husband applied for asylum and withholding of removal and listed wife as a derivative beneficiary. Later, wife applied for asylum. The the Immigration Judge denied both relief. The Board of Immigration appeals affirmed. The First Circuit vacated and remanded. The IJ and the Board did not give a persuasive explanation for rejecting the claim of past persecution.The threats and violence against husband were substantial and continued over almost a decade; they were arguably based on interrelated motives related to his political beliefs and his job at the Albanian Supreme Court. The persecution involved attacks on his children. Changed country conditions do not automatically trump specific evidence.

Petitioner appealed the BIA's decision affirming the IJ's conclusion that, due to fraud in obtaining her admission, petitioner was not a Legal Permanent Resident (LPR) and therefore, was not eligible for cancellation of removal. Petitioner contended that the INS inspectors, who interrogated her at the airport upon her arrival to the United States from the Philippines, violated the confidentiality provisions of the statute governing the Special Agricultural Workers program (SAW), 8 U.S.C. 1160. The court held that the confidentiality provisions were not contravened during the inspection at issue in this case because the agents did not access petitioner's SAW application. Therefore, the court denied the petition for review.

Petitioner Manuel Damaso-Mendoza sought review of a Board of Immigration Appeals' (BIA) decision that found he was removable despite being a lawful permanent resident of the United States. The BIA determined that Petitioner's Colorado felony conviction for menacing was a crime of violence as defined by federal law, and therefore made him removable. Upon review of the applicable legal authority and the BIA's record on appeal, the Tenth Circuit was "persuaded" by the BIA's reasoning that Petitioner's conviction in Colorado on menacing was a crime of violence. Petitioner therefore committed an aggravated felony and was removable from the United States. The Court denied Petitioner's petition for review and dismissed his appeal.

Petitioner Julio Pizano-Zeferino sought review of a Board of Immigration Appeals' order that he be removed from the United States. Petitioner was a Mexican native who entered the United States illegally without being admitted or paroled. Petitioner conceded his removability. Petitioner applied for cancellation of removal, citing exceptional and extremely unusual hardship to his American-citizen children if he were removed to Mexico. The Immigration Judge found that Petitioner did not establish that he had ten years of continuous physical presence in the United State and that he failed to show exceptional and extremely unusual hardship to the children. Instead of seeking review of the BIA's order by the Tenth Circuit, Petitioner obtained new counsel and filed a "motion to reconsider" with the BIA alleging changed circumstances since the IJ hearing. The BIA treated the motion as a motion to reopen its prior decision, and denied it because the evidence either was not previously unavailable or did not establish a prima facie eligibility for cancellation of removal. Upon review of the BIA record, the Tenth Circuit found that Petitioner failed to present any issues for the Court's review. The Court concluded that it did not have jurisdiction to review the matter further and dismissed his appeal.

Defendant was convicted of unlawfully transporting an illegal alien. Defendant appealed his conviction, specifically the district court's denial of his motion to suppress evidence resulting from a temporary investigative stop by Border Patrol agents on Interstate 35 near Cotulla, Texas. The court held that the circumstances known and the conduct observed by the agents were sufficient to warrant reasonable suspicion justifying the stop. Therefore, the court affirmed the district court's denial of defendant's motion to suppress and affirmed the conviction.

Defendant appealed her conviction of immigration offenses after the district court denied her motion to suppress testimony from the officer who questioned her without Miranda warnings on her arrival at John F. Kennedy International Airport. At issue was whether the district court correctly ruled that the officer's questioning failed to rise to the level of a "custodial interrogation" under Miranda and thus, whether that court properly admitted into evidence defendant's statements to the officer. The court held that, in light of the totality of the circumstances, a reasonable person in defendant's position would not have considered what occurred to be the equivalent of a formal arrest. Therefore, it followed that defendant was not in "custody" and that, for this reason alone, Miranda warnings were not required. Accordingly, the district court correctly denied the motion to suppress the officer's testimony.