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

Defendant pleaded guilty to unlawfully re-entering the United States following removal. The district court sentenced him to 51 months in prison. On appeal, Defendant argued that the district court miscalculated his advisory Guidelines range by deferring to the U.S. Sentencing Guidelines’ commentary rather than applying the Guidelines themselves.   Defendant argued that (A) after Kisor, courts should not defer to the Guidelines’ commentary unless the Guidelines themselves are ambiguous. He then argued that (B) Application Note 3 to Section 2L1.2 conflicts with the unambiguous Guidelines by requiring courts to “double-count” certain prior convictions when calculating the guidelines range. The Fifth Circuit affirmed the Defendant’s conviction for illegal reentry. The court held that the district court properly calculated Defendant’s guidelines range, and his double-counting objection lacks merit.   The court reasoned that Application Note 3 to Section 2L1.2 is not in tension with the Guidelines. Rather, application Note 3 merely describes what the Guidelines’ text and structure would unambiguously require even in its absence. Further, Defendant cites no precedent supporting his argument that “double-counting” is per se incompatible with the Guidelines and the Guidelines’ text and structure do not support Defendant’s argument. View "USA v. Cordova-Lopez" on Justia Law

Petitioner a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”) denied Petitioner’s application for relief from removal and ordered him removed to Cameroon after determining that Petitioner was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Petitioner was removed to Cameroon.   The Fifth Circuit granted Petitioner’s petition for review of the BIA’s dismissal of his appeal on the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) and remanded the case to the BIA.   The court reasoned that under BIA precedent, an adverse credibility determination should not be based on inconsistencies that take one by surprise. Relatedly, the court has approved, but not required, that petitioners should be given the opportunity to explain any non-obvious discrepancies that may bear on their credibility. Here, at no point during the hearing before the IJ was Petitioner provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross-examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence.  Further, the court noted that there is no evidence—beyond the statement of the BIA majority—that Petitioner’s counsel failed to preserve this issue on appeal. View "Nkenglefac v. Garland" on Justia Law

A mother and daughter from El Salvador were ordered removed. The Board of Immigration Appeals affirmed. Mother and daughter retained counsel and filed a petition for review in the Fifth Circuit. As a result of personal issues and the challenges presented by the COVID-19 pandemic, counsel requested three extensions to file an opening brief. Upon the final due date, instead of filing an opening brief, counsel filed a motion asking the court to dismiss the petition for the mother, but remand it for the daughter. Evidently, the mother had died and the daughter was now proceeding as a minor orphan.The Fifth Circuit denied the petition. First, counsel provided no legal arguments for the relief he sought on behalf of his clients. Second, the court was not provided with the relevant standard to apply to the voluntary withdrawal of a petition for review. Finally, the court noted that counsel provided no explanation as to why giving up on daughter's petition for review was in her best interest and that, in the court's assessment, doing so would be manifestly unjust. View "Vasquez-De Martinez v. Garland" on Justia Law

In 2004, Petitioner was ordered removed in absentia; however, he continued to reside in the United States. In 2019, Petitioner filed a motion to reopen under 8 U.S.C. Sec. 1229a(c)(7)(C)(iv)(III), which extends the amount of time a Petitioner who is a "battered spouse" can file a motion to reopen. The Board of Immigration Appeals ("BIA") denied Petitioner's motion to reopen, refusing to waive the one-year filing deadline that applied to battered spouses. The BIA determined that the abuse Petitioner suffered did not qualify as an "extraordinary circumstance" and that the hardship Petitioner or his children would not suffer "extreme hardship" if removed.The Fifth Circuit denied Petitioner's petition for review, finding that the BIA did not abuse its discretion. Extraordinary circumstances or extreme hardship requires proof of something beyond ordinary circumstances or mere hardship, and something more than the typical challenges associated with relocation. View "Pena-Lopez v. Garland" on Justia Law

Petitioner, a native and citizen of Honduras, sought asylum in the United States after the Department of Homeland Security charged that she, her husband, and her minor son were removable as aliens present in the United States without being admitted or paroled. The immigration judge (“IJ”) and Board of Immigration Appeals (“BIA”) rejected her application.Petitioner contended that she had been sexually abused throughout her childhood by various males in her life. Further, she alleged that the MS-13 gang threatened her. Despite the police claiming they would investigate the allegations within a few weeks, petitioner fled to the United States.To obtain asylum, petitioner must demonstrate that she is a “refugee” by showing that she has suffered past persecution or has a well-founded fear of future persecution on account of a protected ground. 8 U.S.C. Sec. 1101(a)(42)(A). Here, petitioner's persecutors were nongovernment actors. Thus, she must also establish that the authorities were “unable or unwilling to control” them. Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006). The court found that substantial evidence supports the BIA’s finding that petitioner did not establish that the government is unable or unwilling to control the persecutors. The fact that police could not complete their investigation to petitioner's satisfaction within a single week does not compel the conclusion that they were unable or unwilling to help her. That alone defeats petitioner's asylum application; the court declined to reach the alternate bases for the BIA’s denial.. View "Sanchez-Amador v. Garland" on Justia Law

In November 2005, Petitioner, a citizen of Guatemala, was charged with being a removable alien. Petitioner failed to appear at his removal hearing, and he was ordered removed. Petitioner remained in the United States and, in 2013, married a United States citizen. Petitioner’s wife then sought and obtained a visa for Petitioner in 2016.Subsequently, Petitioner and the Department of Homeland Security jointly sought to reopen and dismiss Petitioner’s removal proceedings so he could apply for an immigrant visa. The immigration judge denied relief. Petitioner did not appeal, but filed a second motion to reopen, which the immigration judge denied. Petitioner appealed to the Board of Immigration Appeals (“BIA”), claiming that his attorney’s ineffectiveness was the cause of his untimeliness. The BIA affirmed the immigration judge’s decision.The Fifth Circuit reversed, holding that the BIA has jurisdiction to hear Petitioner’s case if he establishes equitable tolling applied. The court vacated the BIA’s opinion, remanding the case for the court to consider whether Petitioner can establish his claim was subject to equitable tolling. View "Boch-Saban v. Garland" on Justia Law

The Fifth Circuit denied petitions for review challenging the BIA's orders denying petitioner's motion to reopen. The court concluded that petitioner's arguments regarding the deficiency of his notice to appear are foreclosed by precedent. The court also concluded that petitioner failed to show that the BIA abused its discretion in denying his motion to reopen where the evidence petitioner submitted failed to demonstrate the kind of materially changed country conditions that would warrant an exception to the time limit for motions to reopen. In this case, although petitioner submitted numerous articles and reports, he did not show how any of them, alone or taken together, draw a meaningful comparison between the conditions in Mexico for his asserted social groups at the time of his motion to reopen and those at the time of his removal hearing. Furthermore, a change in personal conditions, petitioner's HIV diagnosis here, cannot alone, without further support from other changed conditions, qualify as changed country conditions. Accordingly, the court did not reach petitioner's claims concerning his eligibility for asylum and withholding of removal. View "Garcia v. Garland" on Justia Law

The Fifth Circuit denied in part and dismissed in part a petition challenging petitioner's removability based on an aggravated felony conviction under 8 U.S.C. 1227(a)(2)(A)(iii) for attempting to launder money in violation of Tennessee law. The court concluded that only two of petitioner's five claims in his petition for review have been exhausted. The court also concluded that Tennessee Code section 39- 14- 903(b)(1) was divisible by subsection in light of Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). Finally, the court concluded that the BIA did not err in concluding that Subsection (b) was a categorical match with the generic crime of money laundering. View "Fakhuri v. Garland" on Justia Law

Petitioner seeks review of an order of the BIA dismissing appeal from an order of the IJ denying applications for asylum and withholding of removal and denying an alternative motion to remand for consideration of voluntary departure. Petitioner argues that she suffered persecution and that she has a well-founded fear of future persecution based on her anti-police corruption political opinion and her membership in various particular social groups.The Fifth Circuit concluded that petitioner failed to show that the harm she suffered in Guatemala rises to the level of persecution or that she has a well-founded fear of future persecution on account of a protected ground. However, petitioner's notice to appear did not contain all of the relevant information and the Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Therefore, the court granted the petition as to the stop-time issue, and remanded to the BIA for consideration under Niz-Chavez and other relevant precedents. The court affirmed in all other respects. View "Gregorio-Osorio v. Garland" on Justia Law

The Fifth Circuit denied a petition for review challenging the denial of immigration relief to petitioner, concluding that petitioner's appeal amounts to a challenge alleging that the IJ's decision was not supported by substantial evidence and the court cannot say that the evidence in this case compels a contrary result. While petitioner's family will undoubtedly be distraught at his removal and their familial ties will be strained, the court concluded that the evidence in this case does not establish that this family would suffer hardship above and beyond that regularly faced by families who are separated. View "Morales v. Garland" on Justia Law