Articles Posted in Immigration Law

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The Fifth Circuit granted a petition for review of the BIA's decision affirming the IJ's deportation order. The court held that the BIA erred in construing 8 U.S.C. 1227(a)(2)(A)(iii) to apply to an individual who was a naturalized citizen at the time of conviction. In this case, petitioner was not rendered an "alien" at the time of conviction by nature of his subsequent ab initio denaturalization. Therefore, petitioner was not subject to deportation under section 1227(a)(2)(A)(iii) because he was a naturalized citizen at the time he was convicted. View "Okpala v. Whitaker" on Justia Law

Posted in: Immigration Law

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The Fifth Circuit denied a petition for review of a final order of removal issued by the BIA. Petitioner claimed that he never received notice of his removal hearing. The court held that petitioner failed to provide the immigration court with his correct mailing address, and failed to rebut the weak presumption of delivery of his notice of hearing. View "Mauricio-Benitez v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fifth Circuit held that, because 8 U.S.C. 1182(a)(2)(A)(i)(II) does not overcome the presumption against retroactivity, applying it to petitioner was impermissibly retroactive. The court granted the petition for review of the BIA's order finding petitioner inadmissible based on his conviction for possessing AB-CHMINACA in violation of Louisiana Revised Statutes 40.966(C). After petitioner's arrest, but before his conviction, AB-CHMINACA was added to the federal schedules of controlled substances. The court reasoned that, for purposes of retroactivity analysis, it is the timing of the defendant's conduct, not of his conviction, that controls. In this case, when petitioner possessed AB-CHMINACA, he had no notice that such a crime carried the consequence of inadmissibility. View "Lopez Ventura v. Sessions" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's denial of petitioner's motion to reopen. In this case, petitioner's application for cancellation of removal was denied for reasons that have since become legally infirm. However, petitioner reentered the country illegally rather than challenge his removal from abroad. Petitioner was re-apprehended by immigration authorities more than a decade later. The court held that his original order of removal was not subject to being reopened because he conceded that he had reentered the United States illegally after having been removed. View "Rodriguez-Saragosa v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fifth Circuit affirmed the district court's dismissal of an action, based on lack of subject matter jurisdiction, brought by children to halt the deportation of their father. The children argued that their father's deportation was arbitrary and violated their rights to familial association under the First and Fifth Amendments, and that his selective removal was because of his Hispanic origin and violated the equal-protection aspect of the Fifth Amendment. The court held that the children's familial-association claim raised a legal question squarely within 8 U.S.C. 1252(b)(9), which operated as an unmistakable zipper clause designed to consolidate and channel review of all legal and factual questions that arose from the removal of an alien through the preordained administrative process. Consequently, because the familial-association question reached the courts outside the prescribed administrative process, this court had no jurisdiction to consider it. The court also held that the children's selective-enforcement claim concerned how the Government chose to enforce already-issued removal orders. Therefore, these claims arose from a decision to execute removal orders and 8 U.S.C. 1252(g) generally barred judicial review of such claims. View "Vega Duron v. Johnson" on Justia Law

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The Fifth Circuit granted a petition for review of the BIA's order affirming the IJ's decision denying petitioner's application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT). The court held that DHS failed to produce substantial evidence to show that petitioner, a 21 year old Sikh belonging to the Mann Party, was safely able to relocate within India to avoid further persecution and that it was reasonable for him to do so. Therefore, substantial evidence did not support the IJ's conclusion that DHS rebutted the regulatory presumption and thus the court remanded to the agency to exercise its discretion with regards to petitioner's asylum claim. View "Singh v. Sessions" on Justia Law

Posted in: Immigration Law

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Plaintiffs, who were each over the age of 18, had filed Suits Affecting Parent-Child Relationship (SAPCR). In the SAPCR suits, the state courts awarded child support and made certain findings. After plaintiffs received the state court SAPCR orders, they filed Special Immigrant Juvenile (SIJ) status petitions with USCIS, which were subsequently denied. Plaintiffs then filed suit in district court seeking declaratory relief regarding the definition of "child" under Texas state law and the proper interpretation and application of the terms "juvenile court" and "dependent," as those terms were defined by federal law. The district court granted defendants' motion to dismiss, concluding that the SAPCR orders were not proper ones to support SIJ status. The Fifth Circuit affirmed and held that USCIS properly determined that the state court orders for child support were not the equivalent of the necessary "care and custody" rulings required for SIJ status; the court rejected plaintiffs' claim that the district court relied on reasoning not employed by the agency when upholding the USCIS decision; and USCIS's denials were not arbitrary and capricious. The court denied plaintiffs' motion to supplement and rejected plaintiffs' claim that the district court failed to consider the entire administrative record. View "Budhathoki v. Nielsen" on Justia Law

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The Fifth Circuit dismissed in part and denied in part a petition for review of the BIA's decision upholding the IJ's denial of his application for withholding of removal under the Immigration and Nationality Act, 8 U.S.C. 1231(b)(3). The court held that it did not have jurisdiction over petitioner's challenges to the IJ's determination that his mistreatment was not torture under the Convention Against Torture (CAT), and petitioner's request to remand to the BIA so that the BIA could consider a derivative asylum claim based on his wife's recent grant of asylum. Therefore, the court dismissed as to these claims. The court agreed with the IJ's finding that petitioner had not proven that he was harmed because of his political opinion or one imputed to him. Furthermore, to the extent petitioner's claimed social group was family members of Roma, the record was devoid of evidence that the persecution suffered by his wife was directed at him. Accordingly, the court denied the petition in all other respects. View "Revencu v. Sessions" on Justia Law

Posted in: Immigration Law

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After defendant pleaded guilty to violating 18 U.S.C. 1425(a), which prohibits knowingly procuring citizenship contrary to law, the district court revoked his citizenship as part of his sentence. While defendant's appeal was pending the Supreme Court issued Maslenjak v. United States, 582 U.S. —, 137 S. Ct. 1918 (2017), in which it (1) clarified the Government's burden of proof in a Section 1425(a) prosecution and (2) held that qualification for citizenship, notwithstanding any materially false statement, is a complete defense to prosecution. The Fifth Circuit affirmed the judgment, holding that, even post-Maslenjak, the indictment and factual resume provided a sufficient factual basis for defendant's plea and for all statutory elements of Section 1425(a), the offense of conviction. In the alternative, even if the court assumed that the district court's acceptance of the plea was plain error, defendant failed to show that the error affected his substantial rights. View "United States v. Nepal" on Justia Law

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Sanchez-Arvizu pleaded guilty to illegal reentry, 8 U.S.C. 1326(a) and (b)(2). Applying the 2015 Sentencing Guidelines, the probation officer assessed a 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), finding that Sanchez-Arvizu was deported after a conviction for a “crime of violence,” his Texas conviction for indecency with a child by sexual contact, and calculating an advisory Guidelines range of 41-51 months of imprisonment. Under the November 2016 Guidelines, Sanchez-Arvizu’s sentencing range would be 15-21 months. The probation officer arrived at a range of 1-7 months under those Guidelines. The district court stated that “a sentence of 51 months would be entirely appropriate,” but sentenced Sanchez-Arvizu at the low end of the Guidelines range because this was his first conviction for illegal reentry. The court stated that it had considered all of the 18 U.S.C. 3553(a) factors and sentenced Sanchez-Arvizu to 42 months in prison. The Fifth Circuit vacated and remanded because, while this appeal was pending, the Supreme Court held that for "statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ . . . requires the age of the victim to be less than 16.” The statute under which Sanchez-Arvizu was convicted is categorically broader than the generic federal definition, so the court erred by deeming Sanchez-Arvizu’s conviction a crime of violence under Guidelines section 2L1.2. View "United States v. Sanchez-Arvizu" on Justia Law