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

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

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

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

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

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

After an IJ found that petitioner was a removable alien, petitioner sought to have his removal cancelled. The IJ denied the petition, determining that petitioner could not be considered for discretionary relief because he had not shown his removal would result in "exceptional and extremely unusual hardship" to his U.S.-citizen children. The BIA affirmed the IJ's assessment.The Fifth Circuit concluded that it has jurisdiction to review the IJ and BIA's determination. The court explained that, although 8 U.S.C. 1252(a)(2)(B) deprives it of jurisdiction to review the discretionary decision of whether to actually grant cancellation of removal, recent Supreme Court precedent makes clear that applying a legal standard to established facts in order to determine whether an alien is eligible for discretionary relief is a question of law, not a discretionary decision. Therefore, the court may review the IJ's determination that the events that would befall petitioner's children if he were removed would not amount to "exceptional and extremely unusual hardship" as Congress intended the phrase. On the merits, the court concluded that petitioner has not shown that the events that the agency found would befall his children if he were removed amount to suffering substantially beyond the hardship usually associated with a parent's removal. In this case, the children's mothers care for them, petitioner's brother lives with the youngest two, the children will not move to Mexico with petitioner, and petitioner has family in Mexico in any event. Accordingly, the court denied the petition for review. View "Guerrero Trejo v. Garland" on Justia Law

The Fifth Circuit denied a petition for review an order of removal based on defendant's conviction of online solicitation of a minor. In this case, an IJ terminated petitioner's removal proceedings, but the BIA partially vacated the IJ's decision and remanded for further proceedings. On remand, the IJ ordered petitioner removed.After determining that the court has jurisdiction to consider the petition for review, the court concluded that the BIA did not err in finding petitioner removable under 8 U.S.C. 1227(a)(2)(E)(i) for a crime of child abuse. The court explained that Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020), foreclosed petitioner's argument that the court should not give deference to the BIA's broad interpretation of a "crime of child abuse" under section 1227(a)(2)(E)(i). The court agreed with the BIA that petitioner's conviction for online solicitation of a minor in violation of section 33.021(c) of the Texas Penal Code falls within the BIA's definition of a crime of child abuse. View "Adeeko v. Garland" on Justia Law

The government sought to revoke defendant's citizenship based on his role as a former Salvadorian military officer in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador. The district court conducted a three-day bench trial and declined to cancel defendant's American citizenship.The Fifth Circuit found that, although defendant may have refused to actually shoot civilians, he "assisted" and "participated in the commission of" extrajudicial killings during the Salvadorian Civil War, rendering him statutorily ineligible to assume the "high privilege" of American citizenship. In this case, defendant captured the innocent civilians who were killed; he detained them knowing that their unlawful deaths were imminent; and he thoroughly helped with the coverup and coached others to do the same. The court concluded that these actions—undisputed by the parties—show that defendant assisted and participated in the extrajudicial killing of ten Salvadorians at San Sebastian. Therefore, he was not a person of good moral character, was not eligible to become a citizen, and illegally procured his citizenship. Accordingly, the district court erred in concluding otherwise, the court reversed the district court's judgment, and remanded. View "United States v. Vasquez" on Justia Law

The Fifth Circuit held that petitioner's conviction for conspiracy to commit money laundering plainly constitutes an aggravated felony under 8 U.S.C. 1101(a)(43)(D). Section 1101(a)(43)(D) defines "aggravated felony" to include those offenses that are "described in section 1956 of Title 18 (relating to laundering of monetary instruments) . . . if the amount of funds exceeded $10,000." The court concluded that this provision applies here because petitioner pleaded guilty to conspiracy to commit money laundering in violation of 18 U.S.C. 1956(h), and the funds involved well exceeded $10,000. The court need not decide petitioner's contention that section 1101(a)(43)(U) requires proof of an overt act in furtherance of the conspiracy. The court found petitioner's remaining contentions were either meritless or unexhausted. Accordingly, the court denied in part and dismissed in part his petition for review. View "Maniar v. Garland" on Justia Law

The Fifth Circuit denied a petition for review challenging petitioner's order of removal after he threatened to commit a religiously motivated act of terrorism. Petitioner, who suffers from schizophrenia, was reported by his brother after petitioner made threats of killing kuffars (non-believers).The court concluded that the Attorney General interpreted 8 U.S.C. 1158(b)(2)(A)(iv) correctly as a matter of law. The Attorney General first determined that the plain meaning of "reasonable grounds" comports with the well-established standard for "probable cause." The Attorney General then determined that "a danger to the security of the United States" means "[a]ny level of danger to national security . . . ; it need not be a 'serious,' 'significant,' or 'grave' danger." Therefore, petitioner is ineligible for asylum under section 1158(b)(2)(A)(iv). The court also held that the BIA's determination that petitioner was a threat to national security was supported by substantial evidence as a matter of fact. View "Mirza v. Garland" on Justia Law