Justia Immigration Law Opinion Summaries

After a jury convicted Jose Hernandez-Calvillo and Mauro Papalotzi (collectively, Appellees) of conspiring to encourage or induce a noncitizen to reside in the United States, they challenged the statute as overbroad under the First Amendment and successfully moved to dismiss the indictment on that basis. The government appealed. The Tenth Circuit Court of Appeals affirmed: 8 U.S.C. § 1324(a)(1)(A)(iv)'s plain language targets protected speech, and the government’s proposed limiting construction found support in the statute’s text or surrounding context. "And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression." The Court thus held the statute was substantially overbroad, and affirmed the district court's dismissal of the indictment. View "United States v. Hernandez-Calvillo" on Justia Law

The United States appealed from the district court’s dismissal of an indictment charging Defendant with illegal reentry after removal, in violation of 8 U.S.C. Section 1326. According to the district court, defects in the notice to appear (“NTA”)—which initiated the immigration proceedings against Defendant resulting in his eventual removal from the United States— deprived the immigration court of subject matter jurisdiction to effect the removal in the first place, rendering the entire immigration proceeding “void ab initio.”   The Ninth Circuit held, consistent with precedent and that of every other circuit to consider this issue, that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus the defendant’s removal was not “void ab initio,” as the district court determined.   The court explained that hat 8 C.F.R. Section 1003.14(a)—a regulation by which the Attorney General purported to condition the “jurisdiction” of immigration courts upon the filing of a charging document, including NTAs—is a claim-processing rule not implicating the court’s adjudicatory authority. The en banc court read Section 1003.14(a)’s reference to “jurisdiction” in a purely colloquial sense. The en banc court wrote that although the statutory definition of an NTA requires the date and time of the removal hearing, 8 U.S.C. Section 1229(a)(1)(G)(i), this provision chiefly concerns the notice the government must provide noncitizens regarding their removal proceedings, not the authority of immigration courts to conduct those proceedings. View "USA V. JUAN BASTIDE-HERNANDEZ" on Justia Law

Petitioner, a Guatemalan citizen, entered the United States through Texas on May 10, 2005. He was detained the next day, but subsequently released on his own recognizance. Petitioner then moved to Connecticut without notifying the court or providing a new address. The court proceeded in absentia and ultimately ordered Petitioner to be removed. Fourteen years later, Petitioner sought to reopen the proceedings and rescind the in absentia order, claiming he did not receive adequate notice of the removal proceedings.The Board of Immigration Appeals ("BIA") denied relief, and Petitioner filed a petition for review with the Fifth Circuit.The Fifth Circuit denied the Petitioner's petition for review. The court noted that Petitioner did not provide any address, so he may not reopen proceedings on the ground that the date and time of his removal proceeding were not included in his notice to appear. The court also held that the BIA did not err in failing to consider Petitioner's own affidavit because the BIA adequately considered all the evidence presented. View "Gudiel-Villatoro v. Garland" on Justia Law

Petitioner was deported in 1991 but illegally reentered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (“USCIS”) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed.Denying Petitioner’s petition for review, the Ninth Circuit held that: 1) the permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) applied retroactively to Petitioner such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated, and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (“CAT”).   Specifically, the court held that the permanent inadmissibility bar applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. First, the court explained that Petitioner did not have a vested right in adjustment relief. Second, IIRIRA imposed a new legal consequence on Petitioner not for his pre-IIRIRA illegal reentry but because of his illegal presence after IIRIRA. Lastly, given IIRIRA’s aims of toeing a harder line on immigration and limiting the availability of discretionary relief, it would be anomalous for Petitioner to obtain a perpetual right to seek relief at his own convenience. View "JORGE RIVERA VEGA V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief from removal under the Convention Against Torture (“CAT”) The BIA affirmed based upon the IJ’s adverse credibility determination.   The Ninth Circuit granted the petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record. The court remanded on an open record for the BIA to determine in the first instance whether the remaining inconsistency is sufficient to support the adverse credibility determination.   The court held that substantial evidence did not support the IJ’s reliance upon insufficient corroborating evidence as a basis for finding Petitioner not credible because the IJ categorically ignored documents that were consistent with Petitioner’s testimony. The court explained that by ignoring such evidence, the IJ did not consider “the totality of the circumstances” when making the adverse credibility determination.   The court held that the BIA further erred by misinterpreting the IJ’s holding regarding corroborating evidence as relying on 8 U.S.C. Section 1158(b)(1)(B)(ii), and by erroneously characterizing the IJ’s holding as concluding that Petitioner did not provide sufficient corroborating evidence to sustain his burden of proof independent of his own non-credible testimony when the IJ actually relied upon the lack of documentation as one factor supporting its adverse credibility determination under 8 U.S.C. Section 1158(b)(1)(B)(iii). The court did not reach the BIA’s holding concerning Petitioner’s eligibility for protection under CAT. View "HAYK BARSEGHYAN V. MERRICK GARLAND" on Justia Law

Brito unlawfully entered the U.S. in or before 2013. After DHS ordered him removed, Brito illegally reentered before 2019. DHS issued a second notice of removal, Brito applied for withholding of removal under the Immigration and Nationality Act and withholding or deferral of removal under the Convention Against Torture (CAT), claiming that he would be subject to persecution and torture if removed to Mexico. Brito testified that he had fled Mexico because cartel members confronted and abducted him at gunpoint. His home was ransacked by the cartel. Brito’s expert testified that the cartel would seek him out to exact revenge for his escape and noted the Mexican government’s history of acquiescing to or even colluding with the cartel.The IJ granted Brito deferral of removal under CAT. The BIA vacated that decision and ordered Brito removed to Mexico, finding no factual support for the finding that the cartel sought him out specifically or was even aware of his identity. The BIA characterized Brito’s evidence as largely describing “the general inadequacies and corruption in the Mexican government.” The Seventh Circuit denied a petition for review. The BIA applied the correct standard and was not prohibited from accepting an untimely brief from DHS. View "Brito v. Garland" on Justia Law

The Department of Homeland Security (“DHS”) requested to stay the district court’s vacatur of a new immigration rule that radically reduces the federal government’s detention of those who are statutorily required to be removed post-haste. The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious and that its promulgation was procedurally invalid.   The Fifth Circuit denied the motion for a stay, concluding that DHS failed to make a strong showing of the likelihood of success on appeal. The court distinguished the case-at-hand from a  recent decision by the Sixth Circuit, authorizing a stay pending appeal, based on differing precedent and the benefit of a complete trial record.   DHS contended that the States lack standing to challenge the Final Memo because any purported injury is speculative, unsupported by the evidence, not fairly traceable to the Final Memo, and not redressable in federal court. The court wrote that the data show that the Final Memo “increases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,” and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so. Further, while DHS that the guidance in no way binds enforcement agents and their superiors, but “simply ensures that discretion is exercised in an informed way.” The court explained that as the district court stated, the record plainly belies that assertion. View "State of Texas v. USA" on Justia Law

In 2014, Defendant was convicted of one count of injuring a cohabitant resulting in a traumatic condition under Penal Code section 273.5 after he entered a guilty plea to the offense. Shortly after his conviction, Defendant sought to revoke his plea on the ground that he wanted to secure an "immigration safe" plea, as he was fearful that a felony conviction would impact his status as a lawful permanent resident. The court denied Defendant's request.Subsequently, Defendant filed another motion to vacate under Penal Code section 1473.7, claiming that he would not have taken the plea had he known about the immigration consequences. Despite the prosecution agreeing to offer Defendant a misdemeanor in lieu of a felony, the court rejected Defendant's request. Defendant appealed.The Second Appellate District reversed. Section 1473.7 permits a court to grant a motion to vacate based on prejudicial error that doesn't necessarily rise to the level of ineffective assistance of counsel. The court held that Defendant demonstrated prejudicial error under Penal Code 1473.7 based on 1.) counsel's failure to advise him of the immigration consequences of his plea, 2.) counsel's failure to defend against deportation, and 3.) Defendant's subjective understanding of the consequences of his plea. Thus, the lower court erred in denying Defendant's motion to vacate. View "P. v. Manzanilla" on Justia Law

Immigration Petitioner petitioned for review of the Board of Immigration Appeals’ (“BIA”) decision that concluded that Petitioner was removable based on (1) his two state convictions for felony transporting into Virginia controlled substances with the intent to distribute and (2) his third state conviction for felony conspiracy to transport marijuana into Virginia.   On appeal to the BIA, Petitioner argued his Virginia offenses were not categorically CIMTs. The government did not cross-appeal to the BIA the IJ’s divisibility ruling, but it did “maintain” in a motion for summary affirmance that Va. Code Ann. Section 18.2- 248.01 was divisible and the modified categorical approach should apply. The BIA affirmed the IJ’s decision that Petitioner was removable on CIMT grounds under both INA Section 237(a)(2)(A)(i) and (ii), 8 U.S.C. Section 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that “participation in illicit drug trafficking is a CIMT,” the BIA agreed with the IJ that a violation of Va. Code Ann. Section 18.2-248.01 was categorically a CIMT.   The Eleventh Circuit denied the petition, holding that the BIA did not err in concluding that Petitioner was removable because his state drug trafficking convictions categorically constitute crimes involving moral turpitude (“CIMT”) within the meaning of Immigration and Nationality Act (“INA”) Section 237(a)(2)(A)(i)-(ii), 8 U.S.C. Section 1227(a)(2)(A)(i)-(ii). Further, the Supreme Court’s decision in Jordan v. De George forecloses Petitioner’s claim that the phrase “crime involving moral turpitude” in the INA is unconstitutionally vague. View "Everton Daye v. U.S. Attorney General" on Justia Law

The Secretary of Homeland Security’s 2021 Guidance notes that the Department lacks the resources to apprehend and remove all of the more than 11 million removable noncitizens in the country and prioritizes apprehension and removal of noncitizens who are threats to “national security, public safety, and border security.” Whether a noncitizen poses a threat to public safety "requires an assessment of the individual and the totality of the facts and circumstances.” The Guidance lists aggravating and mitigating factors that immigration officers should consider and does not “compel an action to be taken or not taken,” and “may not be relied upon to create any right or benefit.” In a suit by Arizona, Montana, and Ohio, the district court issued a “nationwide preliminary injunction,” blocking the Department from relying on the Guidance priorities and policies in making detention, arrest, and removal decisions. The Sixth Circuit granted a stay pending appeal and subsequently reversed the order. The court noted “many dubious justiciability questions” with respect to standing. The Guidance leaves considerable implementation discretion and does not create any legal rights for noncitizens, suggesting it is not reviewable. Even if the states cleared the justiciability hurdles, they are unlikely to succeed on the merits of their claim that the Guidance violates the Administrative Procedure Act, whether on the grounds that it is contrary to law, it is arbitrary or capricious, or it lacks a required notice and comment, 5 U.S.C. 706(2), 553. View "Arizona v. Biden" on Justia Law