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

The Fifth Circuit granted the petition for panel rehearing. The court withdrew its prior opinion on May 6, 2020 and substituted the following opinion.Since the prior opinion issued, the Supreme Court decided Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory term "final order of removal." Without expressing an opinion as to whether Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), the court applied Melendez v. McAleenan, 928 F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019), to this case.Plaintiff filed suit seeking review of USCIS's legal determination declaring him ineligible for adjustment to permanent status. Although plaintiff had been granted Temporary Protected Status (TPS), he had entered the United States illegally, which would ordinarily bar the adjustment of status. The court dismissed plaintiff's complaint with prejudice; reversed the district court's holding that it lacked jurisdiction; and asserted the court's own jurisdiction over plaintiff's claim. The court followed Melendez in holding that plaintiff sought review of the government's legal interpretation of statutory provisions that govern TPS and adjustment of status. The court explained that, because this is a "pure legal task," it is a nondiscretionary decision that is not barred by the jurisdiction-stripping statute, and thus the district court erred in concluding that it did not have jurisdiction to hear plaintiff's claims. The court also held that plaintiff has failed to state a legally cognizable claim under Melendez. The court explained that those with TPS who first entered the United States unlawfully are foreclosed from applying for adjustment of status as a matter of law. View "Nolasco v. Crockett" on Justia Law

The Fifth Circuit affirmed the district court's dismissal of plaintiffs' 8 U.S.C. 1503 claim and motion to reinstate or refile the Administrative Procedure Act (APA) claims.The court held that plaintiffs forfeited their claim that the time bar in Gonzalez v. Limon, 926 F.3d 186 (5th Cir. 2019), should not apply and that the APA claims should be restored because section 1503 is not an adequate remedy for the denial of their visas. The court has previously held that section 1503 supplied "an adequate alternative remedy" for challenges to failed passport applications, and the fact that plaintiffs allowed the limitations period to run does not make section 1503 inadequate. Therefore, plaintiffs' section 1503 claim is time-barred under Gonzalez and the district court properly dismissed it; the time bar did not make plaintiffs' section 1503 remedy inadequate and hence did not require the district court to reinstate the APA claims; and because the APA claims would not have survived a renewed motion to dismiss, any amendment to the complaint would have been futile. View "Martinez v. Pompeo" on Justia Law

The Fifth Circuit denied petitions for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of asylum. The court held that the evidence does not compel a reasonable factfinder to conclude that petitioner has demonstrated he was persecuted in the People's Republic of China because of his political opinion.The court held that it has no authority to review the Board's decision declining to address the IJ's determinations of a lack of credibility and of corroborative evidence. The court also held that a reasonable factfinder would not be compelled to conclude that petitioner was persecuted for political rather than personal reasons, and thus he has not met his burden for his asylum petition. View "Changsheng Du v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's denial of petitioner's motion to reopen removal proceedings. The court held that the BIA did not abuse its discretion in determining that petitioner's seven-years-late motion was untimely and not entitled to equitable tolling.In this case, petitioner argued that the 90-day deadline should be equitably tolled because he exercised due diligence in the face of extraordinary circumstances stemming from the erroneous advice he received from his attorneys. After determining that it had jurisdiction to review the BIA's determination, the court held that the BIA did not misapply the equitable tolling standard and rejected petitioner's claim that the BIA required him to demonstrate a "maximum feasible diligence." Furthermore, the BIA did not abuse its discretion by ignoring petitioner's gross miscarriage of justice claim. View "Flores-Moreno v. Barr" on Justia Law

The Fifth Circuit denied the petition for review, holding that petitioner's conviction for sexual assault of a child was a "crime of child abuse," making him removable under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act. In this case, defendant raped and impregnated his fourteen-year-old stepdaughter. Defendant was arrested for the rape seventeen years later and charged with sexual assault of a child in violation of Texas Penal Code section 22.011(a)(2). He was convicted and sentenced to ten years probation.The court held that the Board's interpretation of a "crime of child abuse, child neglect, or child abandonment" is a reasonable reading of a statutory ambiguity, and joined the Second, Third, Ninth, and Eleventh Circuits in holding that the Board's interpretation is entitled to Chevron deference. Reviewing de novo, the court held that defendant's conviction under Texas Penal Code section 22.011(a)(2) falls within the Board's definition of a crime of child abuse. View "Garcia v. Barr" on Justia Law

The Fifth Circuit denied in part and dismissed in part a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). As a preliminary matter, the court lacked jurisdiction to consider two of petitioner's claims based on his failure to exhaust administrative remedies.The court held that petitioner failed to show that the IJ and BIA erred in denying his request for asylum. In this case, the BIA did not err in finding that the attack and death threats against petitioner did not amount to past persecution. Furthermore, the IJ and BIA reasonably concluded that petitioner failed to show that his subjective fear of persecution on his return to Albania was objectively reasonable. Because petitioner did not qualify for asylum, he necessarily did not meet the higher threshold for establishing eligibility for withholding of removal.The court noted that its decision does not diminish the injury that petitioner and many other foreign nationals too often suffer in their home countries simply for holding unpopular political beliefs. The court stated that how our Nation deals with refugees is a political decision for the political branches to make. View "Gjetani v. Barr" on Justia Law

The Fifth Circuit denied a petition for review to reopen petitioner's removal proceedings for the second time. After petitioner failed to appear for his removal proceeding, the IJ ordered him removed in absentia. The court agreed with the BIA that petitioner failed to establish the materially changed country conditions necessary to succeed on a successive motion to reopen.In this case, the BIA did not abuse its discretion in determining that petitioner has not shown that there has been a material change, as opposed to a continuation, of overall violent conditions experienced by lower caste members in India since the date of his removal order; the BIA did not abuse its discretion in concluding that incremental worsening of an existing condition does not constitute a changed country condition for the purpose of reopening a removal order; and petitioner's assertion that the IJ and the BIA did not consider his evidence because they did not specifically cite certain articles he submitted cannot overcome the presumption of regularity. View "Deep v. Barr" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that the BIA's adverse credibility determinations is supported by substantial evidence. The court also held that, even assuming petitioner's due process rights were violated when the IJ excluded petitioner's psychologist and country conditions expert, petitioner cannot establish prejudice. View "Santos-Alvarado v. Barr" on Justia Law

Petitioner sought review of the BIA's decision denying his applications for adjustment of immigration status and for a waiver of inadmissibility. Regardless of whether or not the Fifth Circuit applied Chevron deference, the disposition of this case would be the same. The court held that petitioner failed to meet the requirements for derivative citizenship because he admitted in the immigration proceedings that he was only conditionally, not permanently, admitted as a refugee. The court rejected petitioner's claims to the contrary and denied the first petition for review.To the extent that petitioner makes a reviewable challenge to the denial of the waiver of inadmissibility, the court held that it lacks merit. In this case, the BIA did not apply a heightened standard to petitioner and his argument that the BIA should have weighed the equities more in his favor does not establish that the BIA applied a heightened standard to his waiver application and thereby acted ultra vires. To the extent the petition presents the issue of whether the BIA should have weighed the equities of his case more favorably to petitioner, the court is without jurisdiction to consider it. Whether or not the BIA considered each of the facts petitioner alleged, the court is without jurisdiction to review its discretionary decision. Accordingly, as to the second petition, the court denied in part and dismissed in part for lack of jurisdiction. View "Nastase v. Barr" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's decision finding petitioner removable under Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, and denying petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The Fifth Circuit held that petitioner failed to show a realistic probability that his conviction for possession of cocaine under the Texas statute criminalizes a broader range of conduct than the federal generic definition for cocaine. The court also held that petitioner failed to demonstrate error in the BIA's denial of his applications for asylum, withholding of removal, and protection under the CAT. Accordingly, the court denied the petition for review of the final order of removal and dismissed for lack of jurisdiction the petition for review of his eligibility for relief and protection. View "Alexis v. Barr" on Justia Law