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

Two brothers from Nigeria petition this court to overturn the Board of Immigration Appeals’ refusal to allow their removal proceedings to be reopened. They argue their counsel’s ineffectiveness caused their application for asylum and other relief to be incomplete and therefore denied, and that counsel’s failures constituted extraordinary circumstances justifying reopening of their removal proceedings.   The Fifth Circuit denied the petitions. The court explained that it need not decide f ineffective assistance of counsel would be an extraordinary circumstance justifying equitable tolling of the deadline for seeking reopening. The failure to move in timely fashion to reopen was an independent basis for the BIA to deny relief. The court wrote it need not consider the issue of ineffective counsel as to the biometrics information. The could concluded that Petitioners have not shown any basis for equitable tolling of the filing deadline for reopening. View "Eneugwu v. Garland" on Justia Law

Petitioner petitioned for review of a final order of removal issued by the Board of Immigration Appeals, dismissing his appeal from the decision of the immigration judge (“IJ”) to deny his motion to reopen. Defendant principally contended that the IJ lacked authority to conduct the removal proceedings because the NTA was defective. Petitioner submitted an affidavit in which he stated that he received the NTA but that it did not contain the date and time of his removal proceedings. Now he contends that the court should remand the matter to the Board for reconsideration of his NTA challenge in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).   The Fifth Circuit denied the petition. The court explained that here, Petitioner received the NTA and does not dispute that he also received the subsequent NOH. The fact that Petitioner received the NOH (or does not dispute receiving the NOH) makes Rodriguez distinguishable. View "Campos-Chaves v. Garland" on Justia Law

In 2015, Petitioner, a native and citizen of Venezuela was indicted for aiding and abetting and making false, fictitious, or fraudulent claims to the IRS alongside her co-defendant husband in violation of 18 U.S.C. Sec. 287. She was ordered to pay restitution jointly and severally with her husband in the amount of $45,365 and was sentenced to 48 months in prison.Following these convictions, Petitioner was placed in removal proceedings for the commission of a “crime involving moral turpitude” and seeking to procure a visa by fraud or misrepresentation. The Immigration Judge (“IJ”) sustained both charges of removability. In turn, Petitioner sought withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture.The IJ denied the application, concluding that Hammerschmidt’s testimony regarding alleged persecution and torture was not credible. Even assuming her testimony was credible, the IJ held that her withholding claim would nevertheless fail because her conviction under Sec. 287 constituted an aggravated felony and a particularly serious crime, rendering her ineligible for both asylum and withholding of removal. The IJ also denied CAT relief. The BIA adopted and affirmed.The Fifth Circuit denied in part and dismissed in part Petitioner's petition for withholding of removal under the INA and protection under the CAT. The court noted a conviction need not meet the five-year sentence threshold to constitute a “particularly serious crime” for withholding purposes. The court also noted that the restitution order, which Petitioner conceded held her “joint and severally liable,” indicated that her conduct contributed to a total loss of more than $45,000. View "Hammerschmidt v. Garland" on Justia Law

Defendant was indicted for illegally reentering the United States, a violation of 8 U.S.C. Section 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months imprisonment and three years supervised release. On appeal, Defendant argues that Section 1326 violates the Fifth Amendment’s equal protection principles. As for his sentence, he asserts that the district court (1) failed to consider sentencing disparities, (2) improperly considered the timing of an appeal in sentencing him to three years of supervised release, and (3) failed to consider the Sentencing Guidelines’ policy on supervised release for deportable defendants.   The Fifth Circuit agreed that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release. Accordingly, the court vacated that part of Defendant’s sentence and remanded for reconsideration of the supervised-release term. The court otherwise affirmed Defendant’s conviction and sentence. The court found that the district court imposed three years of supervised release solely out of fear that a lower sentence would moot an appeal. The timing of an appeal is not a factor that courts are tasked with considering in imposing supervised release. Such a consideration is also irrelevant because Defendant could appeal his conviction even after his sentence ends. The district court abused its discretion by basing the term of supervised release on the irrelevant timing for an appeal. View "USA v. Barcenas-Rumualdo" on Justia Law

EGF and GVG (Petitioners), each a native and citizen of El Salvador, petition for review of a decision by the Board of Immigration Appeals. That decision, in turn, affirmed an Immigration Judge’s order denying asylum to EGF and GVG, and denying withholding of their removal. GVG is EGF’s daughter and is a rider on her application.   The Fifth Circuit denied the petition for review. The court explained that the record does not compel any contrary finding. Instead, there is substantial evidence that EGF was the target of an extortion scheme, that she was safe so long as she paid, and that the extortionists targeted her because she owned a profitable business. Nor does the record compel a finding that EGF has a well-founded fear of future persecution. EGF has failed to establish that she is eligible for asylum, she has “also fail[ed] to establish eligibility for withholding of removal.” View "Guevara-Fabian v. Garland" on Justia Law

In 2012 the Secretary of the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program. Eight states and the Governors of two states, led by Texas, have challenged DACA’s validity. In ruling on competing motions for summary judgment, the district court held that the DACA Memorandum violates procedural and substantive requirements of the Administrative Procedure Act (APA). The district court vacated the DACA Memorandum and remanded to DHS for further consideration but temporarily stayed that vacatur as it applies to current DACA recipients. The district court further ruled that DHS may continue to accept new and renewal DACA applications but enjoined DHS from approving any new DACA applications.   The Fifth Circuit affirmed the district court’s judgment in part but remanded to the district court rather than DHS in light of a final rule promulgated by DHS in August 2022. The court explained that it affirmed the district court’s judgment with regard to the procedural and substantive provisions of the DACA memorandum.   There is evidence that if DACA were no longer in effect, at least some recipients would leave, and their departure would reduce the State’s Medicaid, social services and education costs for those individuals and their families who depart with them. Especially with the benefit of special solicitude, Texas has established that rescinding DACA would redress its harm. Accordingly, Texas has demonstrated standing based on its direct injury. Further, the court held that because DACA did not undergo notice and comment, it violates the procedural requirements of the APA. View "State of Texas v. USA" on Justia Law

Petitioner a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his claim for protection under the Convention Against Torture (“CAT”). Petitioner claimed the BIA failed to consider country conditions evidence when separately analyzing his CAT claim.
The Fifth Circuit agreed with Petitioner and granted the petition for review and remanded for further consideration of the CAT claim. The court concluded that the BIA’s statement in this case “raises too great a concern that the BIA did not adequately consider the evidence before it.” Petitioner plainly pointed to other evidence to support his CAT claim, i.e. the country conditions evidence determination is not necessarily dispositive of a CAT claim. Because the BIA incorrectly found no record evidence about relevant country conditions, Petitioner did not receive “meaningful consideration of the relevant substantial evidence supporting” his claims. View "Ndifon v. Garland" on Justia Law

Petitioner petitions for review of the dismissal of her application for asylum and withholding of removal. She claimed abuse by a former boyfriend and gang member, but the immigration judge (“IJ”) denied her application because she did not find Petitioner credible. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s credibility finding and also concluded Petitioner did not raise a claim under the Convention Against Torture (“CAT”) before the IJ.   The Fifth Circuit denied the petition. The court explained that the IJ acted squarely within her authority in finding Petitioner’s account not credible and denying her claims accordingly. Because nothing in the record supports a conclusion “that no reasonable factfinder could disbelieve” Petitioner, the court wrote that it cannot disturb the IJ’s credibility determination on appeal. Next, the court wrote that Petitioner twice chose, through counsel, not to check boxes expressly asking whether she sought CAT relief. By not checking that box, Petitioner plainly conveyed she did not “want to apply for withholding of removal under the Convention Against Torture.” Accordingly, the BIA did not err in concluding Petitioner failed to raise a CAT claim. View "Cordero-Chavez v. Garland" on Justia Law

Petitioner petitioned for review of a decision that she is ineligible to have her removal order canceled. The Fifth Circuit denied Petitioner’s petition. The court explained that Petitioner is ineligible for any relief because her removal order was reinstated after she illegally reentered the country following a prior removal.   The court concluded that the BIA correctly determined that Petitioner is ineligible to be considered for cancelation of removal. She has never challenged the order reinstating her removal. The reinstatement statute prevents her from getting any immigration “relief.” And cancelation of removal is a form of relief. Accordingly, the court denied her petition. View "Ruiz-Perez v. Garland" on Justia Law

Petitioner petitioned for review of an order of the Board of Immigration Appeals (BIA). The order dismissed his appeal of an Immigration Judge’s denials of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. He presented several procedural and substantive challenges on appeal.   The Fifth Circuit dismissed the petition for review in part for lack of jurisdiction  and denied in part. The court explained that the BIA did not specifically discuss the IJ’s interpretation of the evidence, but it did reference the particular testimony on the severity of his attacks, the police involvement, and the affidavits that Petitioner alleged the IJ misconstrued. Even if the BIA did not agree with Petitioner’s contention about mischaracterizations, the BIA did mention the evidence that Petitioner alleges it failed to consider meaningfully. This is sufficient.    Finally, the court concluded, that it was reasonable for the BIA to conclude that the new evidence Petitioner presented would not change the outcome of his case. The medical evaluation Petitioner sought to submit would not have altered his case because the evaluation did not discuss symptoms and injuries related to the BJP attacks. Further, it was reasonable for the BIA to conclude Petitioner’s new declaration or affidavits would not have influenced his case, considering he already supplied a declaration and his testimony describing his injuries as minor could not be remedied with his additional evidence. View "Kumar v. Garland" on Justia Law