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

Petitioner, a native and citizen of Ecuador, entered the United States without inspection on or about July 17, 1999. He was 25 years old. Soon after his entry, he was apprehended with others who had entered the country near Brownsville, Texas. On July 23, 1999, he was given a Notice to Appear (“NTA”), charging him as subject to removal because he was present in the United States without having been admitted or paroled. The NTA did not provide a hearing date or time. Petitioner’s then-current address was correctly listed on the NTA as the address of the processing center in Los Fresnos, Texas, where he was then detained. Petitioner challenged the BIA’s denial of his motion to reopen removal proceedings and rescind his in-absentia removal order.   The Fifth Circuit denied his petition. The court held: (1) Rodriguez does not apply here; (2) Spagnol Bastos, Gudiel, and Platero-Rosales govern this case; (3) the applicable rule from those cases is that an alien who fails to provide a viable mailing address/to correct an erroneous address forfeits his right to notice under Section 1229a(b)(5)(B); and (4) Petitioner forfeited his right to notice by failing to correct the erroneous address listed in his “Notification Requirement for Change of Address” and Form I-830. View "Nivelo Cardenas v. Garland" on Justia Law

Petitioner, a native and citizen of Cambodia, was admitted to the United States as a refugee in 1983. In 1999, he pleaded guilty to receiving stolen property in violation of 18 Pa. Cons. Stat. Section 3925(a) in Pennsylvania state court and was sentenced to 3 to 24 months imprisonment. Based on that conviction, Petitioner was charged as removable for having been convicted of an aggravated felony as defined in 8 U.S.C. Section 1101(a)(43)(G). Petitioner filed a motion to terminate his removal proceedings. Petitioner argued that his conviction did not categorically qualify as an aggravated felony. An IJ denied the motion, holding that Section 3925(a) “on its face” requires proof of “a defendant’s knowledge or belief, and that belief is not objective” and that the statute thus satisfied the generic mens rea requirement. Petitioner sought relief from an order of the Board of Immigration Appeals (“BIA”) affirming a decision by an Immigration Judge (“IJ”) finding that he is removable.   The Fifth Circuit denied the petition. The court found that Petitioner’s conviction under 18 Pa. Cons. Stat. Section 3925(a) constitutes receipt of stolen property and thus is an aggravated felony for purposes of the Immigration and Nationality Act (“INA”). The court explained that the Third Circuit has held that Pennsylvania’s receipt of stolen property offense does not have an objective element and is “purely subjective.” The Third Circuit has considered variations on Petitioner’s argument and has rejected them. The court, therefore, concluded that 18 Pa. Cons. Stat. Section 3925(a) is a categorical theft offense and thus qualifies as an “aggravated felony.” View "Khan v. Garland" on Justia Law

Petitioner has been ordered removed from the United States to Mexico. Petitioner concedes that he is removable but seeks cancellation of removal based on the hardship his removal would cause his family. An Immigration Judge and the Board of Immigration Appeals denied Petitioner’s application for cancellation, and Petitioner petitioned the court for review. Petitioner’s challenge is twofold. First, he contends that the IJ and the BIA failed to use the proper legal standard to assess his eligibility for discretionary relief. Second, he argued that the BIA erred by failing to remand his case to the IJ for consideration of new evidence as well as a potential grant of voluntary departure.   The Fifth Circuit dismissed the petition for lack of jurisdiction. The court explained that contrary to Petitioner’s assertions, the IJ and BIA thoroughly considered each of Petitioner’s hardship arguments and applied the appropriate legal standard. The BIA also considered the new evidence presented by Petitioner but concluded that this evidence was unlikely to change the IJ’s decision. The record supports the conclusion that Petitioner failed to show that the consequences of his removal are “substantially beyond the ordinary hardship that would be expected when a close family member leaves his country.” Further, Petitioner did not present this argument to the BIA, and a petitioner “must fairly present an issue to the BIA to satisfy Section 1252(d)’s exhaustion requirement.” View "Rangel Perez v. Garland" on Justia Law

A federal jury convicted Petitioners of visa fraud, and the government charged them with removability based on that conviction. Petitioners contend that the Board of Immigration Appeals (“BIA”) erred in holding that the visa fraud waiver could not overcome the grounds for their removal. Petitioners also raised a due process claim and issues the BIA did not address.   The Fifth Circuit dismissed the petition for review in part for lack of jurisdiction and denied it in part. The court held that Section 1227(a)(1)(H) does not function to waive a charge under Section 1227(a)(3)(B)(iii). The BIA’s treatment of Petitioners, in this case, is dissimilar and far from arbitrary—the government charged them with removability for fraud convictions under a provision intended to make aliens removable for committing specifically that crime. The government simply applied the law as Congress wrote it. Further, the court wrote that the IJ and the BIA found no need to consider Petitioners’ other arguments. Petitioners submitted significant evidence to the agency and were afforded multiple oral hearings to present their case, where the IJ reviewed their evidence. Petitioners were also afforded the opportunity to argue their theory of the law. Thus, Petitioners have not shown a violation of their due process rights. View "Reese v. Garland" on Justia Law

Appellants are both citizens of Venezuela. They were both admitted to the United States as nonimmigrant visitors and remained in the United States beyond the expiration of their authorization to remain. Appellants filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. Section 2241 following their criminal convictions. The district courts granted both Petitions. However, Appellants challenged the denial of attorney’s fees under the Equal Access to Justice Act (“EAJA”).   The Fifth Circuit affirmed. The court explained that since “a habeas corpus proceeding is neither a wholly criminal nor a wholly civil action, but rather a hybrid action that is unique, a category unto itself,” it is not purely a civil action, and the EAJA does not authorize attorney’s fees for successful 28 U.S.C. Section 2241 motions. Accordingly, the court wrote that it does not need to reach the issue of whether the Government was substantially justified in its actions. View "Castro Balza v. Garland" on Justia Law

Appellants are both citizens of Venezuela. They were both admitted to the United States as nonimmigrant visitors and remained in the United States beyond the expiration of their authorization to remain. Appellants filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. Section 2241 following their criminal convictions. The district courts granted both Petitions. However, Appellants challenged the denial of attorney’s fees under the Equal Access to Justice Act (“EAJA”).   The Fifth Circuit affirmed. The court explained that since “a habeas corpus proceeding is neither a wholly criminal nor a wholly civil action, but rather a hybrid action that is unique, a category unto itself,” it is not purely a civil action, and the EAJA does not authorize attorney’s fees for successful 28 U.S.C. Section 2241 motions. Accordingly, the court wrote that it does not need to reach the issue of whether the Government was substantially justified in its actions. View "Gomez Barco v. Witte" on Justia Law

Plaintiffs are six citizens of El Salvador and Honduras who entered the United States illegally over twenty years ago, and all have final orders of deportation and removal. After receiving those orders, all Plaintiffs successfully achieved temporary protected status (“TPS”) and traveled out of the United States with an advance parole document. Plaintiffs sued, alleging that USCIS’s failure to accept jurisdiction and adjudicate the claims violated the Administrative Procedure Act. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleging that the district court did not have subject matter jurisdiction. The district court granted the motion to dismiss under Rule 12(b)(6).   The Fifth Circuit affirmed. Citing Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022), the court explained that Duarte dealt with TPS beneficiaries with final removal or deportation orders who traveled abroad, returned, and challenged USCIS’s administrative closure of their status-adjustment applications for want of jurisdiction. The court explained that Plaintiffs provided no relevant reasons for how their case functionally differs from Duarte's. Instead, they openly asked the court to revisit and re-analyze Duarte. Thus, the court reasoned that even if it disagreed with Duarte’s interpretation of the law, the court still would have to follow it. View "Hernandez v. Jaddou" on Justia Law

Petitioner is a native and citizen of El Salvador who entered the United States in 1997. Later that year she was detained and subsequently ordered removed in absentia. Petitioner applied for Temporary Protected Status ("TPS"), but under a different name. Petitioner was granted TPS in 2003 under that different name and continued to renew her TPS using that information.Since obtaining TPS, Petitioner has departed the United States only on one occasion, but she was out of the country for 111 days. At the time, she had considered seeking permission from immigration officials to leave the United States but decided not to do so because her TPS was not in her own name. Upon her return, Petitioner was apprehended by Border Patrol Agents. The Department of Homeland Security initiated formal removal proceedings against her. At her hearing before the IJ, Petitioner conceded to being removable as charged but sought TPS relief.The IJ determined that she was ineligible for TPS because her 111-day absence disrupted her continuous physical presence in the United States. The IJ and BIA denied relief. On appeal, the Fifth Circuit affirmed the BIA's denial of Petitioner's petition, finding that her 111-day absence was not “brief, casual, and innocent” under 8 U.S.C. 1254a(c)(4). View "Tobar v. Garland" on Justia Law

Plaintiff, his wife, and his three children are Libyan citizens who have resided lawfully in the United States for over a decade. Plaintiff filed an I-140 petition seeking a waiver of the labor-certification requirement of his visa because he is a “professional holding an advanced degree whose work is in the national interest of the United States.” While the petition was pending, Plaintiff and his family filed I-485 applications for status adjustment to legal permanent residents (“LPRs”) under 8 U.S.C. Section 1255(a). Section 1255 grants the Attorney General the discretion to adjust the status of certain aliens to LPR status if they have met certain statutorily specified conditions. The USCIS granted the family’s I-485 petitions prematurely. The district court found that it had no subject matter jurisdiction to review the original denial of the I-140 because Plaintiffs had not exhausted their administrative remedies.   The Fifth Circuit affirmed the order of dismissal. The court held that it does not have subject matter jurisdiction to review a status-adjustment decision by the USCIS under either the APA or the INA because the alien retains the right to de novo review of that decision in his final removal proceedings. Thus, the court found that Plaintiffs have not yet exhausted administrative remedies and the court may not exercise jurisdiction. View "Elldakli v. Garland" on Justia Law

Defendant, a criminal noncitizen with a burglary conviction and two subsequent illegal-reentry convictions, was convicted of illegal reentry for a third time. The district court characterized his burglary conviction as an aggravated felony. The district court also characterized his two prior illegal-reentry convictions as aggravated felonies under a statutory provision stating that illegal reentry is itself an aggravated felony when committed by someone previously deported following an aggravated felony conviction. The designation “aggravated felony” is significant because it subjects the alien to a maximum prison sentence of 20 years. On appeal, Defendant argued that the district court mischaracterized his past offenses because, under an intervening Supreme Court case, his predicate burglary conviction no longer qualifies as an aggravated felony. He insists the district court erred in sentencing him under Section 1326(b)(2).   The Fifth Circuit reformed the judgment to reflect that Defendant was convicted and sentenced under Section 1326(b)(2) and affirmed the judgment as reformed. The court explained that Defendant was correctly sentenced under Section 1326(b)(2) because he was previously removed “subsequent to a conviction for commission of an aggravated felony.” Defendant’s first illegal reentry, for which he was sentenced under Section 1326(b)(2), was an aggravated felony under Section 1101(a)(43)(O). View "USA v. Huerta-Rodriguez" on Justia Law