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

Articles Posted in Immigration Law
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The Fifth Circuit dismissed a petition for review of the BIA's decision finding petitioner subject to removal because he committed two crimes involving moral turpitude (CIMTs) under 8 U.S.C. 1227(a)(2)(A)(ii). After determining that res judicata does not bar the proceedings, the court concluded that petitioner's conviction for deadly conduct qualified as a CIMT because reckless offenses may constitute CIMTs and deadly conduct, which requires an offender to take actions creating imminent danger or serious physical injury, is categorically a CIMT. The court also concluded that petitioner's 2005 adjustment to lawful permanent resident status constitutes the operative admission for purposes of this removal proceeding under section 1227(a)(2)(A)(ii). Therefore, because petitioner's convictions for deadly conduct and evading arrest occurred after he adjusted his status, he has been convicted of two CIMTs after admission to the United States. View "Diaz Esparza v. Garland" on Justia Law

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The Fifth Circuit denied in part and dismissed in part petitions for review of the BIA's decision denying petitioner's application for withholding of removal and for relief under the Convention Against Torture (CAT). The court concluded that because petitioner presented her argument that the BIA engaged in impermissible factfinding before the BIA in a motion for reconsideration, it is unexhausted and the court lacked jurisdiction to consider it.The court also concluded that because petitioner agreed that there was probably a place where she could safely relocate within Guatemala, the BIA's determination that the government rebutted the presumption of future persecution is supported by substantial evidence for both of her particular social groups. In this case, the BIA reasonably interpreted her statement to mean that she did in fact know of a city or cities in Guatemala where it was probably safe for gay and transgender people to live. Finally, petitioner's CAT claim was adequately analyzed and the evidence does not compel a finding that she will be tortured with the consent or acquiescence of a public official in Guatemala. View "Santos-Zacaria v. Garland" on Justia Law

Posted in: Immigration Law
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Fuentes-Rodriguez pleaded guilty to illegally reentering the U.S. after having been previously convicted of an aggravated felony (8 U.S.C. 1326(b)(2)) and was sentenced to 30 months’ imprisonment. The Fifth Circuit affirmed that his underlying felony conviction for family-violence assault under Texas Penal. Code 22.01(a)(1) constituted an aggravated felony. While his certiorari petition was pending, the U.S. Supreme Court decided in "Borden" (2021) that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(i) of the Armed Career Criminal Act (ACCA). Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a),2 which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision. On remand, the Fifth Circuit vacated. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly but his conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding for entry of an amended judgment by the district court will reduce the risk of future confusion. A reformed judgment should reflect that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony.” View "United States v. Fuentes-Rodriguez" on Justia Law

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The Fifth Circuit denied the petition for review challenging the BIA's determination that petitioner is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err by holding that the 2019 IJ could reexamine whether petitioner's felony assault conviction was a particularly serious crime. After determining that the court had jurisdiction to review petitioner's alternative argument, the court concluded that the BIA did not err in determining on the merits that petitioner was ineligible for withholding of removal because his felony assault conviction was a particularly serious crime. Finally, the court concluded that a foreign government's "failure to apprehend the persons threatening the alien" or "the lack of financial resources to eradicate the threat or risk of torture" do not constitute sufficient state action for petitioner to be entitled to protection under the CAT. View "Aviles-Tavera v. Garland" on Justia Law

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The Fifth Circuit denied the petition for panel rehearing, withdrew its prior opinion, and substituted the following opinion. As an initial matter, petitioner conceded that her argument regarding recission of her in absentia removal order and Pereira v. Sessions, 138 S. Ct. 2105 (2018), was foreclosed by precedent. The court denied the petition for review, finding no indication that the BIA abused its discretion by applying an incorrect legal standard when it denied petitioner's motion to reopen. The court also concluded that the BIA did not abuse its discretion in determining that petitioner did not make a prima facie showing for cancellation of removal. View "Parada-Orellana v. Garland" on Justia Law

Posted in: Immigration Law
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The Fifth Circuit denied a petition for review challenging the BIA's decision affirming the denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). While the court has misgivings about the IJ's reliance on inter-proceeding evidence under Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015), the court concluded that the judge's credibility findings were otherwise supported by substantial evidence and that petitioner's due process claims based on the IJ's alleged bias lacked merit. The court further concluded that the BIA did not abuse its discretion by denying petitioner's motion to remand to consider new evidence. View "Singh v. Garland" on Justia Law

Posted in: Immigration Law
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The Migrant Protection Protocols (MPP) was created by the Secretary of DHS on December 20, 2018. On June 1, 2021, DHS permanently terminated MPP. The district court subsequently vacated the Termination Decision and ordered DHS to implement the Protocols in good faith or to take a new agency action that complied with the law. DHS chose not to take a new agency action, and instead chose to notice an appeal and defended its Termination Decision, seeking a stay of the district court's injunction while the appeal was pending. The Fifth Circuit denied the motion and the Supreme Court affirmed. On October 29, 2021, DHS issued two additional memoranda to explain the Termination Decision, purporting to "re-terminate" MPP. The Government then informed the Fifth Circuit that, in its view, the October 29 Memoranda had mooted this case.Under Supreme Court and Fifth Circuit precedent, the court concluded that this case is nowhere near moot. In any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The court stated that the Government's litigation tactics disqualify it from such equitable relief. The court addressed and rejected each of the Government's reviewability arguments and determined that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum.On the merits, the court concluded that the Termination Decision was arbitrary and capricious under the APA. The court also concluded that the Termination Decision is independently unlawful because it violates 8 U.S.C. 1225, which requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. Finally, in regard to the Government's contention that section 1182 allows DHS to parole aliens into the United States on a case-by-case basis, the court concluded that deciding to parole aliens en masse is the opposite of case-by-case decisionmaking. The court denied the Government's motion to vacate the judgment and affirmed the district court's judgment. View "Texas v. Biden" on Justia Law

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The Fifth Circuit denied a petition for review of the BIA's decision ordering petitioner removed to Egypt based on his prior guilty plea to violating Section 14:81 of the Louisiana Revised Statutes, which proscribes indecent behavior with juveniles. Addressing the merits of petitioner's exhausted claims, the court concluded that any errors in finding that petitioner violated Section 14:81 were harmless. The court explained that, even in the absence of his testimony and his attorney's statements, the BIA could have taken administrative notice of the relevant facts contained in the criminal-court minutes, which unequivocally show that petitioner pleaded guilty of indecent behavior with a juvenile under Section 14:81. The court also concluded that any errors the BIA made in concluding that petitioner was removable for committing a crime of child abuse were harmless. View "Ibrahim 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 affirming the IJ's denial of petitioner's motion for immigration relief. Almost eighteen years after plaintiff was ordered removed in absentia, he sought a motion to reopen the removal proceedings and to rescind the removal order on the basis that he never received notice of the proceedings.The court concluded that petitioner forfeited his right to notice by failing to provide a viable address and his claims to the contrary are unpersuasive. The court explained that substantial evidence supported the IJ's rejection of petitioner's affidavit testimony as untrustworthy and finding that petitioner provided immigration officials with a deficient address. Furthermore, the IJ and the BIA did not abuse their discretion by failing to adequately consider petitioner's affidavit testimony. Finally, petitioner failed to analyze the cancellation of removal theory in a meaningful way in his opening brief, and thus his argument is forfeited. View "Spagnol-Bastos v. Garland" on Justia Law

Posted in: Immigration Law
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The Fifth Circuit affirmed the BIA's decision denying petitioner's second motion to reopen his immigration proceedings. Petitioner, a native and citizen of India, was ordered to be deported in absentia in 1996 by an IJ, but was not actually deported. The court concluded that petitioner failed to demonstrate that he lacked notice, and the BIA did not err in concluding that his second motion to reopen for lack of notice was time and number barred. In this case, petitioner does not contest the IJ's legal determination or factual findings that it was his burden to inform the immigration court of his correct address and he failed to do so. The court also concluded that Pereira v. Sessions, 138 S. Ct. 2105 (2018), is inapplicable to petitioner's case because it deals with a materially different statute. Therefore, the BIA did not abuse its discretion in concluding that Pereira did not warrant reopening of petitioner's deportation proceedings. View "Maradia v. Garland" on Justia Law

Posted in: Immigration Law