Justia Immigration Law Opinion Summaries

Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. Section 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad.   Denying in part and granting in part Petitioner’s petition for review of a decision of the BIA, the court held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Applying the categorical approach, the court first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), and expressly recognized that Cisneros had been overruled.   As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The court explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. Because the BIA committed an error of law in failing to apply the correct legal standards, the court remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards. View "DIEGO MENDOZA-GARCIA V. MERRICK GARLAND" on Justia Law

Petitioner was convicted in Texas state court of the felony offense of injury to a child, in violation of Texas Penal Code Section 22.04(a)(3). The Department of Homeland Security (DHS) served Petitioner with a Notice to Appear (NTA), charging him with removability under 8 U.S.C. Section 1227(a)(2)(E)(i), as an alien who, at any time after admission, was convicted of a crime of child abuse. After a hearing, the IJ denied Petitioner’s request for cancellation of removal, ordered him removed, and denied his request for voluntary departure. The BIA dismissed Petitioner’s appeal, denied his requests for cancellation of removal or voluntary departure, and ordered his removal. Petitioner then submitted a petition for review to the Fifth Circuit.   The Fifth Circuit denied in part Petitioner’s petition. Petitioner’s motion to terminate “squarely presented” the issue of the statute’s divisibility. Thus, the court held that the BIA did not err in rejecting Petitioner’s claim that the IJ impermissibly ruled on the divisibility issue. Further, based on Section 22.04(a)’s text, relevant state court cases, Texas’ pattern jury instructions, and the record of prior conviction itself, the court held that Section 22.04(a) is divisible as to victim class. Because the statute is divisible, the court applied the modified categorical approach to see which offense, under Section 22.04(a), is the crime of conviction. In so doing, the court looked to Petitioner’s indictment and the judicial confession entered on his guilty plea. Reviewing those documents, it is apparent that Petitioner was charged with, and pleaded guilty to, causing bodily injury to a child. View "Monsonyem v. Garland" on Justia Law

Petitioner was convicted of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. Section 1349. He was sentenced to one year and one day of imprisonment and ordered to pay $229,717.30 in restitution.   The government served Petitioner with a notice to appear, charging him with removability pursuant to 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Specifically, the government invoked Section 1101(a)(43)(M) & (U), alleging that Petitioner was convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and “an attempt or conspiracy to commit an offense described in section 101(a)(43)(M) of the Act.” Petitioner applied for withholding of removal and protection under the Convention Against Torture (CAT).   Petitioner appealed to the Board of Immigration Appeals (BIA). The BIA found no error in the IJ’s decision and dismissed the appeal. The Fifth Circuit denied Petitioner’s petition in part and dismissed in part.   The court explained Pursuant to Section 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Section 1101(a)(43)(M) defines an “aggravated felony” as “an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and § 1101(a)(43)(U) extends the definition of “aggravated felony” to “an attempt or conspiracy to commit an offense described in this paragraph.” Here, Petitioner’s order of restitution for $229,717.30—which reflects the amount owed within the judgment for his fraud conspiracy conviction— provides clear and convincing evidence of the losses to his victims. View "Osei Fosu v. Garland" on Justia Law

After being stopped for driving without a license, removal proceedings were initiated against Petitioner. In response, Petitioner applied for cancellation of removal under 8 U.S.C. Section 1229b which the Immigration Judge denied. Petitioner appealed to the Board of Immigration Appeals (“BIA”), which “affirm[ed] the Immigration Judge’s decision on the ground that the respondent ha[d] not established that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives.”   Petitioner appealed on two separate but interrelated grounds: 1) that the BIA committed legal error in applying the exceptional and extremely unusual hardship standard and 2) that the BIA failed to render a reasoned decision. The Eleventh Circuit dismissed Petitioner’s petition seeking cancellation of removal under 8 U.S.C. Section 1229b. The court held there was no legal or constitutional error in the decision of the BIA.   The court explained that because it cannot disturb factual findings, it is left to see if Petitioner identified any legal error with respect to the application of the law to those facts established in the BIA’s decision. The court found that Petitioner has not identified one. Turning to the second argument after reviewing the BIA’s opinion and Petitioner’s argument, the court did not see a legal argument for which it would have jurisdiction to review. As long as the BIA cites and proceeds to apply the proper legal standard, as it did in this case, the court cannot make legal error out of an inherently subjective determination of whether an applicant’s relatives will experience exceptional and extremely unusual hardship. View "Esteban Flores-Alonso v. U.S. Attorney General" on Justia Law

Petitioner was convicted of forgery under Section 472 for possession of a counterfeit government seal. The Board of Immigration Appeals concluded that this conviction was a crime involving moral turpitude that made him ineligible for cancellation of removal. Petitioner argued that intent to defraud is not a required element under Section 472, and therefore, his forgery conviction was not a categorical crime involving moral turpitude.   The Ninth Circuit denied in part and dismissed in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals, the court held that a forgery under California Penal Code Section 472 is a crime involving moral turpitude.   The court considered the elements of Section 472 and concluded that California law does not support Petitioner’s reading of the statute. The court explained that it is reasonable to read the statutory text as requiring that all the prohibited acts be done “with the intent to defraud another,” and that no California court has held that Section 472 has separate clauses or that the intent-to-defraud element is limited to specific clauses or actions. The court also explained that California caselaw establishes that forgery requires intent to defraud and that California’s pattern jury instructions confirm that conclusion.   Finally, Petitioner contended that his argument to the BIA that his conviction did not render him inadmissible was sufficient to alert the BIA to the relevance of the petty offense exception. The court concluded that the record belied that assertion, noting that the BIA did not read Petitioner’s brief as raising that assertion. View "PEDRO VASQUEZ-BORJAS V. MERRICK GARLAND" on Justia Law

Petitioner, a native and citizen of Haiti, experienced targeted violence while in Haiti. He fled to the United States, where he was detained and transferred to a detention center in Texas. He sought asylum, withholding of removal, and for protection under the Convention Against Torture (CAT). The Immigration Judge denied relief. The Board of Immigration Appeals (BIA) affirmed and dismissed Petitioner's appeal.Petitioner then sought relief in the Fifth Circuit but failed to address the denial of his CAT claim and withholding of removal claim. Thus, the court only considered the BIA's finding that Petitioner failed to show that the Haitian government was unable or unwilling to protect him.The Fifth Circuit denied Petitioner's petition, citing the efforts of the Haitian government following the attacks against Petitioner. Based on the government's response, Petitioner could not show that the Haitian government was unable or unwilling to protect him. View "Bertrand v. Garland" on Justia Law

This appeal arose from a class action filed under the Victims of Trafficking and Violence Protection Act of 2000 by individuals who were incarcerated in private immigration detention facilities owned and operated by a for-profit corporation, CoreCivic, Inc. These individuals were detained solely due to their immigration status alleged that the overseers of their private detention facilities forced them to perform labor against their will and without compensation. The inquiry on appeal concerns only whether the district court properly certified three classes of detainees.   The Ninth Circuit affirmed the district court’s order certifying three classes in an action. The court held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class. The court held that, as to the California Forced Labor Class, Plaintiffs submitted sufficient proof of a class-wide policy of forced labor to establish commonality. Plaintiff established predominance because the claims of the class members all depended on common questions of law and fact. The court agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage.   The court held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that Plaintiffs presented significant proof of a class-wide policy of forced labor. As to the California Labor Law Class, the court held that Plaintiffs established that damages were capable of measurement on a class-wide basis. View "SYLVESTER OWINO V. CORECIVIC, INC." on Justia Law

A certificate of appealability to the Fifth Circuit was granted on two issues: 1.) Was Defendant’s sentence enhanced under the unconstitutional residual clause found in 18 U.S.C. Section 16(b)? and 2.) Is Defendant entitled to collateral relief under 28 U.S.C. Section 2255? The Fifth Circuit held that Defendant’s Section 2255 motion is not barred by AEDPA’s res judicata provision and the motion was properly authorized under Section  2255(h)(2). The court reasoned that the court denied Defendant’s request for authorization to file his motion. That means he never actually filed the underlying motion. And it also means that AEDPA’s absolute bar on previously presented claims is inapplicable. Further, the court held that Section  2255(h)(2) requires the court to conclude that Defendant’s underlying claim relies on “[1] a new rule of constitutional law, [2] made retroactive to cases on collateral review by the Supreme Court, that [3] was previously unavailable.” Turning to the merits question, the court held that Defendant’s Section 2255 motion is timely. The court next found that Defendant procedurally defaulted his void-for-vagueness claim. And he cannot excuse that default because he cannot show either (A) cause and prejudice or (B) actual innocence. Thus, the court found no reversible error in the district court's judgment because Defendant failed to preserve his void-for-vagueness claim. And there’s no persuasive reason to excuse that default. View "USA v. Vargas-Soto" on Justia Law

An asylum Petitioner argued that the Board of Immigration Appeals erred in denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Her application was based on membership in a particular social group and CAT. She defined the particular social group as “Salvadoran women in a domestic relationships who are unable to leave.” She stated that her ex-partner was physically, emotionally, and sexually abusive. The Immigration Judge (“IJ”) denied her application finding that she did not establish the requisite nexus between her harm and her particular social group and the BIA denied her motion to extend the briefing deadline.   The Fifth Circuit denied her petition. The court explained that under 8 U.S.C. Section 1101(a)(42)(A) an applicant seeking asylum must demonstrate that she “is unable or unwilling to avail . . . herself of the protection of [her] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Further, an applicant seeking asylum or withholding of removal based on membership in a particular social group must make three showings. The court explained that while the IJ intimated that Petitioner’s proffered social groups were cognizable. The court has disagreed, holding that circularly defined social groups are not cognizable. Thus, because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Petitioner’s social groups were not cognizable, thus ending the analysis. View "Lopez-Perez v. Garland" on Justia Law

Petitioner was ordered removed to China after he was convicted of aiding and abetting marriage fraud in order to evade immigration laws and procure his admission to the United States, see 8 U.S.C. Sections 1227(a)(1)(G)(ii), 1325(c), and an immigration judge (IJ) denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).   The Board of Immigration Appeals (BIA) concluded Petitioner’s motion was untimely and numerically barred, and he was not excused from these bars because he failed to show a material change in country conditions. The BIA also concluded Petitioner failed to show prima facie eligibility for relief. Finally, it declined to exercise its discretion to grant reopening sua sponte.   The Eighth Circuit denied the petition and vacated Petitioner’s stay of removal. The court concluded that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen based on his failure to demonstrate prima facie eligibility for relief. Although Petitioner argued he was not attempting to reassert or relitigate his prior claim, he specifically included the alleged 2005 detention in both his new application and personal statement, and he continued to assert entitlement to relief based on underground Christian churches. The IJ therefore rationally concluded Petitioner’s new claim lacked factual independence. Further, Petitioner proffered no evidence—new or otherwise—to corroborate the alleged 2005 detention, interrogation, and beating. View "Caimin Li v. Merrick B. Garland" on Justia Law