Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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The Fifth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal challenging the IJ's denial of his motion to reopen removal proceedings and rescinding his in absentia removal order. The court concluded that the BIA based its decision on a legally erroneous interpretation of 8 U.S.C. 1229(a). In this case, the initial notice to appear did not contain the time and date of petitioner's hearing, and the BIA found that the notice combined with the subsequent notice of hearing containing the time and place of petitioner's hearing satisfied the written notice requirement of section 1229(a). However, the court concluded that this was directly contrary to the Supreme Court's interpretation of section 1229(a) in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), which made clear that subsequent notices may not cure defects in an initial notice to appear. View "Rodriguez v. Garland" on Justia Law

Posted in: Immigration Law
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Abushagif, a Libyan national admitted to the U.S. as a non-immigrant student, was placed in removal proceedings in 2010. Libya became engulfed in a civil war, with Muammar Qadhafi leading the country. Abushagif applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming that his brother had been jailed for declining to join Qadhafi’s forces in killing civilians. Abushagif stated that he did not want to participate in the civil war. Nothing suggested that Abushagif’s father had ever worked for the Qadhafi regime. After Qadhafi’s administration collapsed, Abushagif withdrew his application and agreed to pre-conclusion voluntary departure but did not leave. In 2019, he moved to reopen, arguing that the country conditions in Libya had materially changed and that he would be a target for persecution if he returned. Abushagif declared that his father had been kidnapped and tortured by militias because of his work for the Qadhafi administration and that they planned to kidnap him once he landed in Libya. Abushagif also stated that he had converted to Christianity, had come out as bisexual, and that he had served in the Qadhafi regime’s national guard.The I.J. denied the motion. The Fifth Circuit remanded for a limited purpose; the BIA abused its discretion by entirely failing to address the CAT claim. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention. View "Abushagif v. Garland" on Justia Law

Posted in: Immigration Law
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The Fifth Circuit granted in part and denied in part the United States' motion for a stay pending appeal of the district court's nationwide preliminary injunction preventing the United States from relying on immigration enforcement priorities outlined in memos from DHS and ICE. On Inauguration Day, January 20, 2021, the Acting Secretary of DHS issued a memo announcing that the Department would undergo a comprehensive review of enforcement policies, announcing DHS's interim enforcement priorities, and directing an immediate 100-day pause on removals. ICE issued a memo on February 18, 2021 that incorporates the same three interim priorities.The court did not see a strong justification for concluding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. Therefore, the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos' enforcement priorities for nondetention decisions. The court also concluded that the remaining factors also support a partial stay.The court stated that the injunction will go into effect to the extent it prevents DHS and ICE officials from relying on the memos to refuse to detain aliens described in 8 U.S.C. 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed. The court stayed the injunction pending appeal in all other respects including the reporting requirements. View "Texas v. United States" on Justia Law

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Gutierrez was born and raised amid violence in Honduras. He resisted MS-13’s attempts to coerce him to join the gang or pay a “war tax” and the gang repeatedly brutalized him and his wife and threatened to kill them. The record contains gruesome photos of his wounds. Gutierrez entered the U.S. illegally and sought relief under the Convention Against Torture (CAT). The immigration judge, finding Gutierrez credible and his account “detailed, plausible, and coherent,” found that “MS-13 is more likely than not to torture or kill him upon his return” but denied CAT relief and ordered Gutierrez removed, finding that any such torture would not occur with the “consent or acquiescence” of Honduran officials. The BIA dismissed Gutierrez’s appeal.The Fifth Circuit denied his petition for review. Gutierrez made a compelling humanitarian case for why removing him to Honduras will effectively abandon him to torture and death at the hands of MS-13 thugs but to make out a CAT claim, the law demands that this violence will likely occur “with the consent or acquiescence” of Honduran officials, 8 C.F.R. 1208.18(a)(1). The IJ and BIA found that Gutierrez had not established “consent or acquiescence.” The evidence does not compel a contrary conclusion. View "Gutierrez v. Garland" on Justia Law

Posted in: Immigration Law
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In an action concerning the Migrant Protection Protocols (MPP) created by the Secretary of DHS on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021, the district court concluded that DHS's purported rescission of MPP violated, inter alia, the Administrative Procedure Act (APA).After determining that the States' claims are justiciable, the Fifth Circuit denied the Government's motion for an emergency stay pending appeal of the district court's permanent injunction enjoining and restraining DHS from implementing or enforcing the June 1 Memorandum and ordering DHS to enforce and implement MPP in good faith. The court held that DHS failed to satisfy the four Nken stay factors. The court concluded that the Government is not likely to succeed on either its APA arguments or its 8 U.S.C. 1225 arguments, let alone that the Government is likely to succeed on both. Therefore, the Government has not come close to a strong showing that it is likely to succeed on the merits. In this case, the Secretary failed to consider several relevant factors and important aspects of the problem, including the States' legitimate interests, MPP's benefits, potential alternatives to MPP, and section 1225's implications. Furthermore, the Government's counterarguments are unpersuasive.The court also concluded that the Government has not shown that it will be irreparably injured absent a stay pending appeal; the States have suffered, and will continue to suffer, harms as a result of the termination of MPP; and the Government is also wrong to say that a stay would promote the public interest by preserving the separation of powers. Finally, the court rejected the Government's contention that a stay is warranted because the district court should have remanded without vacating the June 1 Memorandum or issuing an injunction. View "Texas v. Biden" on Justia Law

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Gonzalez-Hernandez, a citizen of El Salvador, arrived in the U.S. at age six. In 1992, he became a lawful permanent resident. In 2001, Gonzalez-Hernandez pled guilty under Texas law to “Deadly Conduct,” knowingly discharging a firearm at or in the direction of one or more individuals or a habitation, building, or vehicle while being reckless as to whether that habitation, building, or vehicle is occupied. A Notice to Appear (NTA) charged Gonzalez Hernandez as removable under 8 U.S.C. 1227(a)(2)(A)(iii) as an alien who committed an aggravated felony defined by 8 U.S.C. 1101(a)(43)(F) as a crime of violence. Gonzalez-Hernandez unsuccessfully sought withholding of removal. Gonzalez-Hernandez was removed to El Salvador, where he remains. In 2018, the Supreme Court held (Dimaya) that 18 U.S.C. 16(b) (defining “crime of violence”) as incorporated into 8 U.S.C. 1101(a)(43)(F) is unconstitutionally vague.An IJ denied a “Motion to Reconsider and Terminate in Light of Sessions v. Dimaya” as untimely because it was not filed within 30 days of the final administrative order of removal nor within 30 days of the date Gonzalez-Hernandez learned of the change in the law. The BIA dismissed an appeal. The Fifth Circuit denied a petition for review, noting the differences between a motion to reopen and a motion to reconsider and upholding the BIA decision not to consider the motion as one to reopen, although, taking tolling into account, it was timely filed before the 90-day statutory deadline. View "Gonzalez-Hernandez v. Garland" on Justia Law

Posted in: Immigration Law
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Parada-Orellana, a citizen of El Salvador, entered the U.S. in 2005 and was detained. She was served while in detention with a notice, ordering her to appear at a date and time to be set. ICE agents advised Parada-Orellana that she would need to update her address with the immigration court. Parada-Orellana claims she gave her “immigration papers” to her uncle’s wife, who misplaced them. Parada-Orellana relocated to Maryland without updating her address. An IJ ordered Parada-Orellana to be removed in absentia, reasoning that because she failed to provide her address, the court was not required to provide her with written notice of her hearing.In 2010, ICE detained Parada-Orellana. After her release, she consulted lawyers but did not address the deportation order. In 2015, Parada-Orellana married Ferman, a U.S. citizen. Parada-Orellana claims she helps Ferman run his business and manage his medical conditions. They do not have children together. Ferman filed an I-130 petition for alien relative, which was approved. Parada-Orellana then moved to reopen her removal proceedings to rescind her removal order or to allow her to apply for cancellation of removal because her husband would suffer exceptional and unusual hardship without her support.An IJ determined that Parada-Orellana was entitled to equitable tolling of the deadline for her motion, considering the Supreme Court’s Pereira decision, but denied the motion on the merits. The BIA dismissed an appeal. The Fifth Circuit denied a petition for review. While Parada-Orellana did not have a “full merits” hearing on her application for cancellation, the BIA’s conclusion that she failed to establish a prima facie case for the underlying relief is a discretionary decision barred from review by 8 U.S.C. 1252(a)(2)(B)(i). View "Parada-Orellana v. Garland" on Justia Law

Posted in: Immigration Law
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The Fifth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's denial of her application for asylum and withholding of removal. The IJ and the BIA determined that petitioner failed to establish a nexus between either the harm she suffered or her fears of future persecution and her particular social group. The court concluded that petitioner fails to demonstrate that substantial evidence compels a different conclusion. Rather, the BIA and the IJ both correctly concluded that familial ties did not sufficiently motivate the Zetas, a Mexican drug cartel, to target petitioner and thus she has not established that she is eligible for asylum relief. Furthermore, petitioner fails to establish that she is eligible for withholding of removal. View "Vazquez-Guerra v. Garland" on Justia Law

Posted in: Immigration Law
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The Fifth Circuit denied the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal because petitioner's prior Texas conviction for delivering cocaine, in violation of Texas Health and Safety Code 481.112, is included in the Controlled Substances Act (CSA).The court concluded that the rule of orderliness does not apply to the court's previous reliance on the government's concession that an offer to sell falls outside the CSA. Because there is no binding precedent, the court held that section 481.112's offer-to-sell theory falls within the CSA, which makes it unlawful for any person knowingly or intentionally to distribute a controlled substance. The court explained that section 481.112's offer-to-sell theory requires (1) the requisite culpability and (2) a substantial step. Therefore, it falls within the CSA's definition of an attempted transfer. View "Ochoa-Salgado v. Garland" on Justia Law

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The Fifth Circuit granted petitioner a stay pending review of his petition for immigration relief based on his fear of persecution in India on account of his membership in the Akali Dal Amritsar ("Mann Party"), a Sikh-dominated political party.The court concluded that petitioner has made the requisite showing that he is likely to succeed on the merits of his claim that the IJ's near total denial rate for asylum applications reflected a bias and violated petitioner's due process rights. The court also concluded that petitioner is likely to succeed on the merits of his challenge to the BIA's conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. The court explained that the appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ's adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. In this case, the incredibly high denial rate, when coupled with the IJ's noncompliance with Matter of R-K-K-, presents a substantial likelihood that petitioner will be entitled to relief upon full consideration by a merits panel. The court further concluded that petitioner has demonstrated sufficient probability of irreparable injury. Finally, the balance of the equities, as well as public interest, weigh in favor of a stay of removal. View "Singh v. Garland" on Justia Law

Posted in: Immigration Law