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

Petitioner, a native and citizen of India, seeks review of the BIA's decision denying his motion to reopen. Petitioner, charged with entering the United States without inspection, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his membership in a rival political party in India, the Akali Dal (Badal) party. The court concluded that the BIA's findings are supported by the record. In this case, the State Department’s 2012 Country Report for India did not describe a change in country conditions that are materially different than when petitioner was ordered removed, and the Report does not indicate whether conditions have substantially deteriorated since petitioner's order of removal. Accordingly, the court denied the petition for review. View "Singh v. Lynch" on Justia Law

Plaintiffs, Hispanic employees of Koch, a poultry processor, filed suit alleging harassment and abuse on the job. Koch claims that plaintiffs made up the allegations in order to benefit from the U-visa program. The U-visa program has offered temporary nonimmigrant status to victims of “substantial physical or mental abuse” resulting from certain offenses, including sexual assault, abusive sexual contact, extortion, and felonious assault. This appeal concerns Koch’s attempt to obtain concrete evidence of this malfeasance – namely, any and all records relating to plaintiffs' speculated U visa applications – through discovery. Confirming that it has jurisdiction, the court rejected Koch's waiver claim regarding plaintiffs' section 1367 claims. The court found the D.C. Circuit’s decision in In re England to be persuasive, where the D.C. Circuit construed a provision barring disclosure of certain military promotion records to any person not a member of the promotion board to forbid civil discovery of the records. In regard to section 1367's application to the EEOC, the court concluded that section 1367’s similar text and analogous purpose counsel the same result here as in England. However, section 1367 does not bar discovery of the records from the individual claimants. Their protection, if any, lies in the basic constraints of the discovery process. The court could not conclude that the district court abused its discretion in finding U visa discovery relevant and potentially probative of fraud. However, the court concluded that the discovery the district court approved would impose an undue burden and must be redefined. Accordingly, the court remanded for the district court to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake. View "Cazorla v. Koch Foods of Mississippi, LLC" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's affirmance of the IJ's denial of petitioner's applications for adjustment of status and cancellation of removal. Petitioner asserts that he is eligible for adjustment of status because he falls into the exception to 8 U.S.C. 212(a)(9)(C)(i)(I). The court deferred to the BIA's interpretation of section 212(a)(9)(C)(i)(I). Though ten years have elapsed since petitioner's last departure from the United States, he failed to remain outside the United States for ten years before returning to the United States. Therefore, petitioner does not meet section 212(a)(9)(C)(ii)’s exception to inadmissibility. Likewise, petitioner has failed to establish that he was ineligible for cancellation of removal where he has failed to establish ten years' continuous physical presence in the relevant time period. The court denied the petition for review. View "Zermeno v. Lynch" on Justia Law

Respondent seeks dismissal of petitioner's petition for lack of jurisdiction, arguing that the decision of the BIA is not a final reviewable order. Alternatively, respondent argues that the petition should be dismissed for prudential reasons. The court found cases from its sister circuits persuasive and concluded that a BIA decision which resolves the merits of an appeal but remands for further proceedings as to voluntary departure is a final order of removal for purposes of judicial review. The court also concluded that the question of whether petitioner has a colorable due process claim is sufficient to allow her petition for review to go forward. Accordingly, the court denied respondent's opposed motion to dismiss the petition for lack of jurisdiction. View "Holguin-Mendoza v. Lynch" on Justia Law

Petitioner, a native and citizen of Brazil, seeks review of the BIA's order of removal. The court held that the documentation requirements of 8 U.S.C. 1182(a)(7) do not apply to an alien who was previously validly admitted as a nonimmigrant, who is residing in the United States, and who applies for an adjustment of status. In this case, the BIA found that petitioner adjusted his status on the basis of a fraudulent marriage. It appears the Government had other alternatives to remove petitioner due to his fraudulent marriage. Therefore, the petition for review is granted and the BIA's judgment is vacated. The petition for review of the BIA's decision denying a motion to reopen is denied as moot. View "Marques v. Lynch" on Justia Law

Petitioner, a native and citizen of Bolivia, seeks review of the BIA's dismissal of her appeal of the IJ's denial of her asylum application based on her ineligibility under the firm-resettlement bar. The court held that it must review the BIA’s factual determinations about firm resettlement and its exceptions for substantial evidence; the court declined to decide on the validity of the BIA's burden-shifting framework for determining whether firm resettlement has occurred because the framework is irrelevant in this case; and substantial evidence supports the BIA's finding that petitioner was not in Mexico only as long as was necessary to arrange onward travel. In this case, after petitioner was removed to Mexico, she renewed her work visa, lived, and worked in Mexico for five years and thus established significant ties to Mexico. She had also previously entered the United States in 2007 for the birth of one of her children; afterwards, she returned to Mexico. Although her children did not go to school in Mexico, they lived with her there. Her husband often commuted between the United States and Mexico in order to live with petitioner and their children. Accordingly, the court denied the petition. View "Lara v. Lynch" on Justia Law

ESSG petitions for review of an order imposing a fine for its alleged failure to properly complete the employment verification forms for 242 employees. ESSG used one person in Texas to examine original documents presented by employees and another person in Minnesota to examine photocopies of the same documents and then sign the verification form. An ALJ found that ESSG's procedure violated the Immigration and Nationality Act (INA), 8 U.S.C. 1324(a)(1)(B), and ordered ESSG to pay fines. The court found no clear bar to corporate or entity attestation in the regulations and prior adjudications interpreting the INA. Despite the degree of deference potentially owed to the I-9 Form and the ALJ’s decision, the court concluded that ESSG lacked fair notice that corporate attestation was prohibited. The court held that even if it is proper for DHS to prohibit corporate attestation, neither the applicable I-9 Form nor any other authoritative source clearly so stated prior to the ALJ’s decision in this case. Accordingly, the court granted the petition for review and vacated all portions of the ALJ's order. View "Employer Solutions Staffing v. OCAHO" on Justia Law

Petitioner, a citizen of Mexico, seeks review of the BIA's affirmance of the IJ's denial of petitioner's motion to reopen his removal proceedings. The court concluded that the BIA abused its discretion by ignoring petitioner's equitable tolling argument and the court declined to determine whether the deadline should be equitably tolled in the instant case. Accordingly, the court granted the petition for review and remanded with instructions for the BIA to apply the same equitable tolling standard that this court uses in other contexts. Under this standard, “a litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’” View "Lugo-Resendez v. Lynch" on Justia Law

Petitioner seeks review of the BIA's order dismissing his appeal of the IJ's order of removal. At issue is whether petitioner became a lawful permanent resident in 2000, when the INS officer signed the I-89 Form certifying that he was eligible for a permanent resident card, or in 2004, when USCIS formally approved his application and actually issued the card. The court agreed with the BIA that petitioner became a permanent resident in 2004, after his eighteenth birthday, when USCIS formally approved his application pursuant to 8 U.S.C. 1255(b). Therefore, petitioner is not entitled to citizenship under the Child Citizenship Act of 2009 (CCA), 8 U.S.C. 1431. In the alternative, the court concluded that, pursuant to Robertson-Dewar v. Holder, there is no evidence that the United States purposefully delayed ruling on petitioner's application with the intent of not acting therein until he had aged out of the statute, so there is no evidence of affirmative misconduct. Therefore, the court rejected petitioner's equitable estoppel argument. The court denied the petition. View "Gutierrez v. Lynch" on Justia Law

Petitioner, a native and citizen of Ethiopia, seeks review of the BIA's decision upholding the IJ's denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (INA), 8 U.S.C. 1158 and 1231(b)(3). Petitioner testified that he had been tortured by the Ethiopian government because it suspected he and his family members supported a terrorist organization called the Ogaden National Liberation Front (ONLF). The court concluded that the IJ and the BIA failed to consider several factors essential to determining whether one central reason for the Ethiopian government’s maltreatment of petitioner was persecution on account of a protected ground. Accordingly, the court remanded for consideration. View "Sealed Petitioner v. Sealed Respondent" on Justia Law