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

Petitioner petitioned for review of the BIA's decision that he be removed based on having committed an aggravated felony. Petitioner was charged and convicted of felonious sexual intercourse without consent. Petitioner did not "necessarily" commit the aggravated felony of rape, rather than a lesser crime. Because the court was not convinced that petitioner pled guilty to a crime that can be categorized as rape under 18 U.S.C. 1101(a)(43)(A), the court granted the petition for review and reversed the BIA's decision, remanding to the BIA.

Petitioner, a citizen of El Salvador, appealed both the BIA's dismissal of his initial appeal of the denial of his motion to reopen his deportation proceedings because of ineffective assistance of counsel and its denial of his motion for reconsideration. The court affirmed the denial of petitioner's first motion to reopen his deportation proceedings because he failed to comply with Matter of Lozada. The court held, however, that the BIA abused its discretion by denying petitioner's motion for reconsideration where the BIA imposed a due diligence requirement that was not part of Lozada's three-part test. Moreover, in doing so, the BIA directly contravened its own precedent and its earlier conclusion in this proceeding relying on that precedent in support of its conclusion that his motion was in fact timely filed. Accordingly, the court reversed the BIA's denial of petitioner's motion for reconsideration and remanded for further proceedings.

Petitioner, a citizen of China, petitioned for review of the BIA's order affirming the IJ's denial of his petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed that he feared persecution if he returned to China because his family practiced Falun Gong. The court held that the BIA need not make a credibility determination when it determined that corroborating evidence was reasonably available to petitioner but was not submitted. The court also held that it could not conclude that petitioner exhausted his administrative remedies and the court did not have jurisdiction to consider his argument. Because petitioner failed to seek voluntary departure before the IJ, petitioner failed to exhaust his administrative remedies. Because the court denied petitioner's petition for review with respect to his application for asylum, it followed that the court also denied his petition for review with respect to his application for withholding of removal.

Plaintiff sued the Louisiana State Board of Practical Nurse Examiners, claiming its status requirement violated the Constitution when the Board denied her a license solely on account of her immigration status. Plaintiff was an alien who had applied for permanent residence. The district court granted the Board summary judgment on all grounds. The court held that because applicants for permanent resident status did not constitute a suspect class under the Equal Protection Clause, and a rational basis supported the immigration-status requirement, the judgment was affirmed.

The Qureshis were originally granted asylum from Pakistan because of Mr. Qureshi's support for the Jammu Kashmir Liberation Front (JKLF), but the USCIS later decided to terminate the Qureshis' asylum based on that same support, applying the "persecutor bar" to Mr. Qureshi. The Qureshis sued USCIS to challenge its application of the bar and the district court granted USCIS's motion to dismiss for lack of subject matter jurisdiction on the ground that the termination was not a final agency action. The court affirmed because it agreed that termination of asylum did not consummate agency action and thus was not final.

This appeal involved a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. Plaintiffs alleged that defendants maintained a hiring scheme to employ foreign workers on the Outer Continental Shelf in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, and the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331 et seq. The district court disposed of all plaintiffs' claims and then entered final judgment dismissing all claims. The court held that the Service Defendants did not violate RICO because the law that would make their conduct racketeering activity did not apply in the place where that conduct occurred, namely vessels floating on the waters of the Outer Continental Shelf. The court rejected plaintiffs' contention that the exemptions the Service Defendants possessed to the OCSLA manning requirements did not shield them from RICO liability because those exemptions were fraudulently obtained. The court also held that plaintiffs could not state a claim for a private right of action for damages under the OCSLA and the district court's dismissal was proper. The court further held that the district court did not err in disposing plaintiffs' OCSLA enforcement claim. Accordingly, the judgment of the district court was affirmed.

Petitioner, a native of Jamaica, petitioned for review of a removal order of the BIA. After he pled guilty of possessing marijuana with intent to distribute in Georgia, DHS charged petitioner with being removable for this crime, which it contended should be considered a felony under the Controlled Substances Act (CSA), 8 U.S.C. 1227(a)(2)(A)(iii), and an "aggravated felony" under immigration law. The IJ agreed, and on appeal, the BIA endorsed the felony classification and dismissed petitioner's appeal. The court adopted the First and Sixth Circuits' approach that the default punishment under 21 U.S.C. 841 was a felony. Consequently, as was true for federal defendants charged under section 841, petitioner's crime was equivalent to a federal felony where petitioner failed to meet his burden of proving that he was convicted of only misdemeanor conduct. Petitioner's other arguments were without merit. Therefore, the petition for review was denied.

Defendant appealed his sentence of 27 months imprisonment and three years of supervised release for illegal reentry after deportation. The court affirmed the judgment of the district court and held that the staleness of a prior conviction in the proper calculation of a guidelines-range sentence did not render a sentence substantively unreasonable and did not destroy the presumption of reasonableness that attached to such sentences. The court also rejected defendant's contention that the district court erred in failing to accord proper weight to his cultural assimilation.

Petitioner, a citizen of Pakistan, petitioned the court for review of the BIA's decision dismissing his appeal of an IJ's decision ordering him removed from the United States. Petitioner maintained that he was eligible to adjust status under the new second-preference petition his mother had filed for him because he could retain the January 1996 priority date of the original fourth-preference petition filed by his aunt. Using that priority date, a visa was immediately available. The court held that, contrary to the BIA's interpretation in Matter of Wang, the benefits of 8 U.S.C. 1153(h)(3) unambiguously applied to all petitions described in 1153(h)(2), including the fourth-preference visa petition of which petitioner was a derivative beneficiary. Therefore, the court granted the petition for review and remanded for further proceedings.

Petitioner, a citizen of Pakistan, pleaded guilty to unlawful possession of less than two ounces of marihuana. At issue was whether a waiver was available where an applicant had been convicted of two separate offenses of possessing 30 grams or less of marihuana but had already received an 8 U.S.C. 1182(h) waiver relating to the first offense. The court held that based on the plain language of section 1182(h), the implausibility of petitioner's reading, and prior BIA and Fifth Circuit precedent, an alien who had been convicted of two or more offenses of simple possession of 30 grams or less of marihuana was ineligible for a 1182(h) waiver, regardless of whether he previously received a 1182(h) waiver related to one of his offenses. Therefore, the petition for review of the BIA's decision was denied.