Articles Posted in Immigration Law

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After the IJ denied petitioner's motion to reopen her removal proceedings as untimely, the BIA dismissed her appeal. The Fifth Circuit denied her petition for review, holding that she has failed to meet her burden of demonstrating she was entitled to equitable tolling. The court explained that it could not consider the BIA's or the IJ's refusal to reopen sua sponte, and the court rejected petitioner's claim that her removal proceeding was a gross miscarriage of justice. View "Gonzalez-Cantu v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fifth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging him with possession of a firearm and ammunition while unlawfully present in the United States, in violation of 18 U.S.C. 922(g)(5)(A). The court rejected defendant's contention that his receipt of relief pursuant to the Deferred Action for Childhood Arrivals (DACA) program and associated benefits consisting of work authorization, permission to hold a social security card and/or driver's license, and two-year protection from removal render him legally and lawfully present in the United States. In this case, defendant lacked lawful immigration status and he has failed to show entitlement of relief. Because the district court's written judgment incorrectly states that the statute of conviction is Section 922(g)(1), rather than Section 922(g)(5)(A), as alleged in Count One of the superseding indictment, the court affirmed the judgment but reformed it to reflect the conviction under Section 922(g)(5)(A). View "United States v. Arrieta" on Justia Law

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Petitioner, a ten year old native and citizen of El Salvador, petitioned for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Fifth Circuit denied the petition for review, holding that the alleged past-persecution of petitioner's mother cannot be imputed to petitioner; petitioner suffered from an isolated, verbal threat of future violence; and petitioner's omissions justified the BIA's refusal to overturn the IJ's adverse credibility determination. Therefore, the BIA correctly held that petitioner did not suffer from a well-found fear of persecution. The court affirmed the denial of relief. View "Herrera Morales v. Sessions" on Justia Law

Posted in: Immigration Law

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House Bill 11 added a new basis of liability while limiting a Texas statute's, Tex. Penal Code 20.05, reach to those who smuggle persons with "the intent to obtain a pecuniary benefit." Two of the plaintiffs in this case rent residential property to persons regardless of immigration status. Two other plaintiffs provide social services to low-income individuals. Plaintiffs filed suit claiming that provisions of House Bill 11 are preempted by federal immigration law and violate the Fourteenth Amendment's Due Process and Equal Protection Clauses. The district court dismissed the Fourteenth Amendment claims but granted a preliminary injunction on the ground that plaintiffs' preemption arguments were likely to succeed on the merits. The court concluded that plaintiffs lack Article III standing because they cannot demonstrate a credible threat of prosecution where they have not hampered authorities from finding any of the illegal aliens they rent to or serve, nor have they taken steps to help the aliens evade "detection" by the authorities. Therefore, the court reversed the injunction and rendered a judgment of dismissal for want of jurisdiction, because there was no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes harboring that person from detection. View "Cruz v. Abbott" on Justia Law

Posted in: Immigration Law

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USCIS denied plaintiff's application for naturalization based on her conviction of conspiracy to commit false or altered lottery tickets. USCIS reasoned that plaintiff's conviction, an aggravated felony, permanently prevented her from demonstrating good moral character and thus from being naturalized. Plaintiff argues that the Louisiana statute implementing the first-offender pardon demonstrates that this is a full pardon such that it falls within the regulation. Given that Louisiana does not consider the automatic first-offender pardon to restore "a status of innocence," as does a gubernatorial pardon, the court concluded that USCIS's interpretation that an automatic first-offender pardon is not a "full and unconditional executive pardon" is permissible. Accordingly, the court affirmed the district court's grant of summary judgment. View "Nguyen v. USCIS" on Justia Law

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Defendant appealed his conviction and sentence for illegal reentry after deportation, arguing that the district court erred in determining that his prior New Jersey conviction for endangering the welfare of a child is a crime of violence (COV). The court concluded that even if his conviction was not for sexual abuse of a minor and does not qualify as an aggravated felony, he has also been convicted of illegal reentry and that conviction qualifies as an aggravated felony. Accordingly, the court affirmed the judgment. View "United States v. Solano-Hernandez" on Justia Law

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Petitioner, a Mexican national, seeks review of the BIA's affirmance of the IJ's denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). The court concluded that it lacked jurisdiction to review the BIA's credibility determinations, but has jurisdiction to review his argument that his is more likely than not to be persecuted on account of his membership in a particular social group. However, because the BIA failed to apply the appropriate legal standards, the court need not resolve these issues on the merits. In this case, the BIA specifically refused to consider an alternative argument that had been raised before the IJ—namely that the evidence external to petitioner's testimony established that removal to Mexico would put his life in jeopardy. Therefore, it would be a violation of well-established principles of administrative law for the court to reach this issue. Likewise, the court declined to consider whether petitioner is eligible for relief under the CAT because the BIA failed to apply the appropriate legal standard. The court vacated and remanded for consideration under the appropriate legal standard. View "Iruegas-Valdez v. Yates" on Justia Law

Posted in: Immigration Law

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Petitioner, a native and citizen of Mexico, seeks review of the BIA's decision dismissing his appeal from the order denying his application for withholding removal and requiring his return to Mexico. Petitioner maintains he will likely face persecution in Mexico because the family of a man murdered by his father more than two decades ago allegedly targets him for revenge. The court agreed with the BIA that petitioner's claim that he would be persecuted if returned to Mexico is speculative. Petitioner also maintains he will likely face persecution in Mexico because he will be perceived to have wealth for having lived in the United States. The court concluded that persons believed to be wealthy because they are returning to their home country from the United States do not constitute a sufficiently particular social group to support an application for withholding of removal. Accordingly, the court denied the petition. View "Gonzalez-Soto v. Lynch" on Justia Law

Posted in: Immigration Law

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Petitioner, a native and citizen of Mexico, seeks review of the BIA's decision affirming the IJ's determination that petitioner is removable under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. 1227(a)(2)(A)(iii). Petitioner had pleaded guilty to possession with the intent to deliver over ten pounds of marijuana in violation of Ark. Code Ann. 5-64-401(a). Section 5-64-401(a) renders it unlawful for any person to purposely, knowingly, or recklessly manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. At issue is whether petitioner's conviction constitutes “illicit trafficking in a controlled substance,” a phrase that the INA has left undefined. The Supreme Court has instructed that in determining what constitutes a “small” amount of marijuana, courts are to utilize their common sense. In this case, the court explained that common sense dictates that ten pounds of marijuana is no “small amount,” particularly in light of the 1.3 grams of marijuana that the Supreme Court declared “small” in Moncrieffe v. Holder. Therefore, the court held that petitioner was convicted of a state felony that constitutes “illicit trafficking in a controlled substance” such that he is an aggravated felon and is ineligible for relief from removal. The court denied the petition. View "Flores-Larrazola v. Lynch" on Justia Law

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Petitioner, a native and citizen of India, seeks review of the BIA's decision denying his motion to reopen. Petitioner, charged with entering the United States without inspection, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his membership in a rival political party in India, the Akali Dal (Badal) party. The court concluded that the BIA's findings are supported by the record. In this case, the State Department’s 2012 Country Report for India did not describe a change in country conditions that are materially different than when petitioner was ordered removed, and the Report does not indicate whether conditions have substantially deteriorated since petitioner's order of removal. Accordingly, the court denied the petition for review. View "Singh v. Lynch" on Justia Law

Posted in: Immigration Law