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

Petitioner, a Guatemalan citizen, entered the United States through Texas on May 10, 2005. He was detained the next day, but subsequently released on his own recognizance. Petitioner then moved to Connecticut without notifying the court or providing a new address. The court proceeded in absentia and ultimately ordered Petitioner to be removed. Fourteen years later, Petitioner sought to reopen the proceedings and rescind the in absentia order, claiming he did not receive adequate notice of the removal proceedings.The Board of Immigration Appeals ("BIA") denied relief, and Petitioner filed a petition for review with the Fifth Circuit.The Fifth Circuit denied the Petitioner's petition for review. The court noted that Petitioner did not provide any address, so he may not reopen proceedings on the ground that the date and time of his removal proceeding were not included in his notice to appear. The court also held that the BIA did not err in failing to consider Petitioner's own affidavit because the BIA adequately considered all the evidence presented. View "Gudiel-Villatoro v. Garland" on Justia Law

The Department of Homeland Security (“DHS”) requested to stay the district court’s vacatur of a new immigration rule that radically reduces the federal government’s detention of those who are statutorily required to be removed post-haste. The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious and that its promulgation was procedurally invalid.   The Fifth Circuit denied the motion for a stay, concluding that DHS failed to make a strong showing of the likelihood of success on appeal. The court distinguished the case-at-hand from a  recent decision by the Sixth Circuit, authorizing a stay pending appeal, based on differing precedent and the benefit of a complete trial record.   DHS contended that the States lack standing to challenge the Final Memo because any purported injury is speculative, unsupported by the evidence, not fairly traceable to the Final Memo, and not redressable in federal court. The court wrote that the data show that the Final Memo “increases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,” and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so. Further, while DHS that the guidance in no way binds enforcement agents and their superiors, but “simply ensures that discretion is exercised in an informed way.” The court explained that as the district court stated, the record plainly belies that assertion. View "State of Texas v. USA" on Justia Law

Petitioners overstayed their permission to visit the United States 20 years ago, and they’ve been here ever since. For the second time after they were ordered removed, they asked the Board of Immigration Appeals (“BIA”) to reopen their removal proceedings. For the second time, the Board refused.On appeal, Petitioners focused on the BIA’s failure to consider certain evidence of changed country conditions. They argue that amounted to an abuse of discretion. (They also argue the BIA committed various other errors.)The Fifth Circuit denied their petition, holding that (A) Petitioners’ claims are number-barred. Then the court wrote that it (B) rejected Petitioners’ resort to federal regulations and instead apply the statute as written. Finally, the court (C) denied the petition without remanding it to the BIA. The court explained that the number bar is a separate impediment to relief. The INA first lays out the number bar: Petitioners generally get one and only one motion to reopen. Section 1229a(c)(7)(A). Then the statute creates one and only one exception. In the same sentence as the number bar itself, Congress said: “[T]his limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).” And everyone agrees that petitioners do not qualify for the single statutory exception to the number bar in (C)(iv). Thus, Petitioners'’ motion to reopen is number-barred. View "Djie v. Garland" on Justia Law

Yogi Metals Group, Inc. applied for an EB-1C visa for one of its employees. The United States Customs and Immigration Services (USCIS) denied the application. Yogi Metals and the employee filed suit in federal district court, arguing that USCIS acted arbitrarily and capriciously in denying the application. The district court granted summary judgment to USCIS.   The Fifth Circuit affirmed. The court explained that Appellants argued that USCIS acted arbitrarily and capriciously in denying the EB-1C visa petition having granted the employee a temporary L-1A visa, with similar requirements. But Appellants did not present this argument to the district court and the court does not consider arguments first raised on appeal. Further, regardless, the deference here due the agency decision has not been overcome, discretion informed by its announced rule that the previous grant of a temporary visa does not bind USCIS to later grant a permanent visa. View "Yogi Metals Group v. Garland" on Justia Law

Petitioner was born to unmarried parents in Mexico. Both of his parents are now deceased. His father was a Mexican national and his mother a U.S. citizen. Petitioner entered the United States in 2000, at which point he was unaware of any claim to U.S. citizenship. Thus, when he was convicted of burglary, he admitted that he was deportable and ineligible for relief. He was removed in 2003. However, in 2014, he applied for a Certificate of Citizenship, claiming that he had acquired U.S. citizenship at birth through his father. USCIS denied Petitioner's application and he subsequently filed a petition under 8 U.S.C. Sec. 1252(b)(1), along with an opposed motion to transfer his case to the U.S. District Court for the Southern District of Texas for a de novo determination of his citizenship claim under 8 U.S.C. Sec. 1252(b)(5)(B).The Ninth Circuit determined that Petitioner presented sufficient evidence to create a genuine issue of material fact concerning his claim of U.S. citizenship. Thus, the court transferred Petitioner's case to the U.S. District Court for the Southern District of Texas for a de novo review of his citizenship claim. View "Garza-Flores v. Mayorkas" on Justia Law

In a previous opinion dated September 21, 2021, the Fifth Circuit issued an opinion in this immigration case agreeing with Petitioner that the Board of Immigration Appeals ("BIA") "abused its discretion by entirely failing to address his CAT claim." In that opinion the court noted that a claim seeking CAT relief "is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Thus, the court remanded the case to the BIA to address Petitioner's claim for relief under the Convention Against Torture ("CAT").On remand, the BIA determined that Petitioner failed to meet his burden to establish a prima facie case for CAT relief because Petitioner did not provide sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality, which bears on whether Petitioner has a clear probability of being tortured if he returns to Libya.Finding no error, the Fifth Circuit affirmed the denial of Petitioner's petition for review. View "Abushagif v. Garland" on Justia Law

Defendant was sentenced to 36 months in prison to be followed by five years of supervised release after pleading guilty to illegal reentry. As a special condition of release, the district court required that Defendant be turned over to immigration authorities upon his release and that he be deported to Mexico. If immigration authorities were unwilling to take Defendant, the court required he self-deport.Defendant challenged the special condition of release requiring he self-deport. The government conceded that the district court committed plain error. The Fifth Circuit remanded for entry of a new written judgment without the special condition requiring Defendant to depart the United States. View "USA v. Badillo" on Justia Law

Petitioner was convicted in Texas state court of the felony offense of injury to a child, in violation of Texas Penal Code Section 22.04(a)(3). The Department of Homeland Security (DHS) served Petitioner with a Notice to Appear (NTA), charging him with removability under 8 U.S.C. Section 1227(a)(2)(E)(i), as an alien who, at any time after admission, was convicted of a crime of child abuse. After a hearing, the IJ denied Petitioner’s request for cancellation of removal, ordered him removed, and denied his request for voluntary departure. The BIA dismissed Petitioner’s appeal, denied his requests for cancellation of removal or voluntary departure, and ordered his removal. Petitioner then submitted a petition for review to the Fifth Circuit.   The Fifth Circuit denied in part Petitioner’s petition. Petitioner’s motion to terminate “squarely presented” the issue of the statute’s divisibility. Thus, the court held that the BIA did not err in rejecting Petitioner’s claim that the IJ impermissibly ruled on the divisibility issue. Further, based on Section 22.04(a)’s text, relevant state court cases, Texas’ pattern jury instructions, and the record of prior conviction itself, the court held that Section 22.04(a) is divisible as to victim class. Because the statute is divisible, the court applied the modified categorical approach to see which offense, under Section 22.04(a), is the crime of conviction. In so doing, the court looked to Petitioner’s indictment and the judicial confession entered on his guilty plea. Reviewing those documents, it is apparent that Petitioner was charged with, and pleaded guilty to, causing bodily injury to a child. View "Monsonyem v. Garland" on Justia Law

Petitioner was convicted of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. Section 1349. He was sentenced to one year and one day of imprisonment and ordered to pay $229,717.30 in restitution.   The government served Petitioner with a notice to appear, charging him with removability pursuant to 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Specifically, the government invoked Section 1101(a)(43)(M) & (U), alleging that Petitioner was convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and “an attempt or conspiracy to commit an offense described in section 101(a)(43)(M) of the Act.” Petitioner applied for withholding of removal and protection under the Convention Against Torture (CAT).   Petitioner appealed to the Board of Immigration Appeals (BIA). The BIA found no error in the IJ’s decision and dismissed the appeal. The Fifth Circuit denied Petitioner’s petition in part and dismissed in part.   The court explained Pursuant to Section 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Section 1101(a)(43)(M) defines an “aggravated felony” as “an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” and § 1101(a)(43)(U) extends the definition of “aggravated felony” to “an attempt or conspiracy to commit an offense described in this paragraph.” Here, Petitioner’s order of restitution for $229,717.30—which reflects the amount owed within the judgment for his fraud conspiracy conviction— provides clear and convincing evidence of the losses to his victims. View "Osei Fosu v. Garland" on Justia Law

Petitioner, a native and citizen of Haiti, experienced targeted violence while in Haiti. He fled to the United States, where he was detained and transferred to a detention center in Texas. He sought asylum, withholding of removal, and for protection under the Convention Against Torture (CAT). The Immigration Judge denied relief. The Board of Immigration Appeals (BIA) affirmed and dismissed Petitioner's appeal.Petitioner then sought relief in the Fifth Circuit but failed to address the denial of his CAT claim and withholding of removal claim. Thus, the court only considered the BIA's finding that Petitioner failed to show that the Haitian government was unable or unwilling to protect him.The Fifth Circuit denied Petitioner's petition, citing the efforts of the Haitian government following the attacks against Petitioner. Based on the government's response, Petitioner could not show that the Haitian government was unable or unwilling to protect him. View "Bertrand v. Garland" on Justia Law