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

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

Plaintiffs, Honduran immigrants, filed suit challenging USCIS's decision to administratively close appellants' cases based on lack of jurisdiction as arbitrary and capricious under the Administrative Procedures Act. The Fifth Circuit held that appellants' claims are not indirect challenges to their deportation orders, and therefore reversed the district courts that dismissed their cases for lack of subject matter jurisdiction.However, the court concluded that USCIS correctly determined that appellants are not "arriving aliens" within the meaning of the relevant regulation. The court determined that USCIS erred by characterizing appellants' travel and reentry as advance parole because Congress has statutorily provided that Temporary Protected Status beneficiaries returning from authorized travel abroad must be admitted into the country in the same immigration status they held prior to departure. The court explained that appellants were not parolees waiting for their applications to be processed prior to departing the country, and thus their statuses could not be converted to those of paroled aliens upon their return. Rather, the court concluded that appellants were fully admitted into the country upon their return and thus were not arriving aliens when they submitted their applications for adjustment of status. Accordingly, the court affirmed the district court's grant of summary judgment to the Government. View "Duarte v. Mayorkas" on Justia Law

The Fifth Circuit denied a petition for review challenging the BIA's decision affirming petitioner's removal. Petitioner claims that worsened conditions in her home country, El Salvador, entitle her to remain in the United States. After determining that it has jurisdiction over the petition for review, the court concluded that the BIA did not err in denying petitioner relief on the merits. In this case, the BIA did not need specifically to refute the two Salvadoran officials' belief that the violence at issue arose from a coordinated gang campaign. Nor did the BIA err in applying Singh v. Lynch, 840 F.3d 220 (5th Cir. 2016). Based on petitioner's scattered anecdotal evidence, the court concluded that the BIA's conclusion that she did not meet the heavy burden of showing changed circumstances was neither irrational nor unsupported by the evidence. View "Martinez-Guevara v. Garland" on Justia Law

In 2019, the Fifth Circuit affirmed Fuentes-Rodriguez’s sentence imposed after he pleaded guilty to illegal reentry into the U.S. following deportation and having been previously convicted of an aggravated felony. The court held that his prior Texas conviction qualified as a crime of violence under 18 U.S.C. 16. While his petition was pending, the Supreme Court decided in "Borden" 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), the Armed Career Criminal Act (ACCA).On remand from the Supreme Court, the Fifth Circuit vacated. Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a), which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision at issue in Borden. 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. 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 the case for entry of an amended judgment, reflecting 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,” will reduce the risk of future confusion. View "United States v. Fuentes-Rodriguez" on Justia Law

The Fifth Circuit concluded that the USCIS did not act arbitrarily when it determined that plaintiff was not eligible for an extraordinary ability visa and affirmed the district court's judgment in favor of the government. The court first determined that it had jurisdiction despite plaintiff's failure to exhaust administrative remedies. In regard to plaintiff's challenges to the framework the USCIS used to evaluate his application, the court concluded that the regulation does not say that meeting the regulatory criteria presumptively qualifies an applicant for a visa. Furthermore, the Policy Memo is valid without notice and comment where the Policy Memo does not create legal rights or obligations.In regard to plaintiff's substantive challenge, the court concluded that the USCIS did not act arbitrarily at both steps of its analysis because the agency considered plaintiff's evidence and explained why it does not meet the regulatory standard. In this case, the USCIS considered plaintiff's evidence and credited his accomplishments but determined that he did not meet his burden of proving that his designs were of "major significance" to his field. Finally, the agency properly considered plaintiff's accomplishments but found them insufficient. The court stated that its determination reflects the reasoned consideration the Administrative Procedure Act requires. View "Amin v. Mayorkas" on Justia Law

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

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