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

Petitioner, a citizen of Mexico, entered the United States in 1990 with a border-crossing card. On August 21, 2014, the DHS initiated a case by issuing Petitioner a notice to appear (“NTA”). The NTA did not state a specific date or time for Petitioner's hearing, noting only that he was to appear before an immigration judge “on a date to be set at a time to be set.” However, the notice provided that Petitioner was given oral notice of the specific date he was supposed to appear. Petitioner appeared, conceded he was removable, and indicated he would seek cancelation of removal on the basis that his children “[would] suffer extreme, unusual and exceptional hardship if [he was] deported.”After the hearing, an immigration judge found that Petitioner did not qualify for cancellation of removal because 1.) he had not proven by a preponderance of the evidence that he had been a person of good moral character for the previous ten years and 2.) he had not met his burden of proving that his children would suffer exceptional and extremely unusual hardship if he were removed to Mexico. The Board of Immigration Appeals affirmed and Petitioner appealed to the Fifth Circuit.The Fifth Circuit concluded that Petitioner's challenge to the NTA in that it was defective for failing to list the place and time of his removal hearing were unexhausted. Further, the court found that Petitioner's extreme-hardship claim fell outside its jurisdiction. View "Castillo-Gutierrez 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. Petitioner illegally entered the United States, at Laredo, Texas. The Government filed a Notice to Appear (“NTA”) in immigration court and charged Petitioner as removable under 8 U.S.C. Section 1182(a)(6)(A)(i). Petitioner did not appear and was ordered removed in absentia.   Petitioner contends the Fifth Circuit 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 for review. The court explained that here, in contrast to Rodriguez, Petitioner received the NTA and does not dispute that he also received the subsequent notice of hearing (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

Petitioner was ordered to be removed from the United States in absentia on June 23, 2006. On August 26, 2019, Petitioner, represented by counsel, filed a motion to reopen the removal proceedings and rescind the in-absentia removal order. The immigration judge (“IJ”) denied that motion, and the Board of Immigration Appeals (“BIA”) affirmed. Petitioner petitioned the court to review that affirmance, arguing that the BIA erred in determining that she was not entitled to equitable tolling of the statutory deadline for filing a motion to reopen because, although she had shown exceptional circumstances, she had not shown that she had pursued her rights diligently.   The Fifth Circuit denied Petitioner’s petition to reopen. The court explained that it has authority to review only the final decision of the BIA unless the underlying decision of the IJ influenced the BIA’s decision. Here, the court explained that even accepting arguendo that Petitioner was prevented from participating in the 2006 proceedings or seeking that they are reopened by her abusive partner and that she was traumatized and unable to seek legal help for some time after escaping the abuse, Petitioner admits that she obtained legal representation—from the very same lawyer representing her here—more than two years before filing her motion to reopen the removal proceedings. Thus, the court cannot conclude that the BIA abused its discretion in finding that Petitioner failed to act with reasonable diligence in pursuing her rights. View "Masin-Ventura v. Garland" on Justia Law

Petitioner alleged that the Angolan government identified her as a supporter of the independence movement after she attended a church-organized, pro-independence rally in 2016. Soon thereafter, three armed men in government uniforms broke into her home and, in front of her children, beat and raped her, leading to a three-day hospital stay. Petitioner claimed, in her asylum application and in sworn testimony before an IJ, that she was never formally a member of FLEC, but rather has only supported independence through peaceful protest and organizing, which is a family tradition of sorts for many Cabindans. However, the IJ interpreted unsworn, nonverbatim statements from Petitioner’s credible fear interview (CFI) as indicating that Petitioner was a member of FLEC. The BIA found this adverse credibility finding reasonable, and affirmed.   The primary issue before the Fifth Circuit was whether the BIA erred in upholding the IJ’s adverse credibility finding. The Fifth Circuit granted Petitioner’s petition for review, vacated the decisions of the BIA and IJ denying Petitioner’s application for asylum and CAT relief, and remanded. The court explained that the BIA and IJ relied heavily on an unsupported conclusion that Petitioner is not a credible witness. At the same time, there appears to be little dispute that, if Petitioner’s claims are true, she would be entitled to asylum under 8 U.S.C. Section 1158(b)(1)(A). As such, the court concluded that the adverse credibility finding is not supported by specific and cogent reasons derived from the record. View "Ndudzi v. Garland" on Justia Law

Petitioner, a Guatemalan citizen, entered the United States through Texas on May 10, 2005. He was detained the next day, but subsequently released on his own recognizance. Petitioner then moved to Connecticut without notifying the court or providing a new address. The court proceeded in absentia and ultimately ordered Petitioner to be removed. Fourteen years later, Petitioner sought to reopen the proceedings and rescind the in absentia order, claiming he did not receive adequate notice of the removal proceedings.The Board of Immigration Appeals ("BIA") denied relief, and Petitioner filed a petition for review with the Fifth Circuit.The Fifth Circuit denied the Petitioner's petition for review. The court noted that Petitioner did not provide any address, so he may not reopen proceedings on the ground that the date and time of his removal proceeding were not included in his notice to appear. The court also held that the BIA did not err in failing to consider Petitioner's own affidavit because the BIA adequately considered all the evidence presented. View "Gudiel-Villatoro v. Garland" on Justia Law

The Department of Homeland Security (“DHS”) requested to stay the district court’s vacatur of a new immigration rule that radically reduces the federal government’s detention of those who are statutorily required to be removed post-haste. The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious and that its promulgation was procedurally invalid.   The Fifth Circuit denied the motion for a stay, concluding that DHS failed to make a strong showing of the likelihood of success on appeal. The court distinguished the case-at-hand from a  recent decision by the Sixth Circuit, authorizing a stay pending appeal, based on differing precedent and the benefit of a complete trial record.   DHS contended that the States lack standing to challenge the Final Memo because any purported injury is speculative, unsupported by the evidence, not fairly traceable to the Final Memo, and not redressable in federal court. The court wrote that the data show that the Final Memo “increases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,” and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so. Further, while DHS that the guidance in no way binds enforcement agents and their superiors, but “simply ensures that discretion is exercised in an informed way.” The court explained that as the district court stated, the record plainly belies that assertion. View "State of Texas v. USA" on Justia Law

Petitioners overstayed their permission to visit the United States 20 years ago, and they’ve been here ever since. For the second time after they were ordered removed, they asked the Board of Immigration Appeals (“BIA”) to reopen their removal proceedings. For the second time, the Board refused.On appeal, Petitioners focused on the BIA’s failure to consider certain evidence of changed country conditions. They argue that amounted to an abuse of discretion. (They also argue the BIA committed various other errors.)The Fifth Circuit denied their petition, holding that (A) Petitioners’ claims are number-barred. Then the court wrote that it (B) rejected Petitioners’ resort to federal regulations and instead apply the statute as written. Finally, the court (C) denied the petition without remanding it to the BIA. The court explained that the number bar is a separate impediment to relief. The INA first lays out the number bar: Petitioners generally get one and only one motion to reopen. Section 1229a(c)(7)(A). Then the statute creates one and only one exception. In the same sentence as the number bar itself, Congress said: “[T]his limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).” And everyone agrees that petitioners do not qualify for the single statutory exception to the number bar in (C)(iv). Thus, Petitioners'’ motion to reopen is number-barred. View "Djie v. Garland" on Justia Law

Yogi Metals Group, Inc. applied for an EB-1C visa for one of its employees. The United States Customs and Immigration Services (USCIS) denied the application. Yogi Metals and the employee filed suit in federal district court, arguing that USCIS acted arbitrarily and capriciously in denying the application. The district court granted summary judgment to USCIS.   The Fifth Circuit affirmed. The court explained that Appellants argued that USCIS acted arbitrarily and capriciously in denying the EB-1C visa petition having granted the employee a temporary L-1A visa, with similar requirements. But Appellants did not present this argument to the district court and the court does not consider arguments first raised on appeal. Further, regardless, the deference here due the agency decision has not been overcome, discretion informed by its announced rule that the previous grant of a temporary visa does not bind USCIS to later grant a permanent visa. View "Yogi Metals Group v. Garland" on Justia Law

Petitioner was born to unmarried parents in Mexico. Both of his parents are now deceased. His father was a Mexican national and his mother a U.S. citizen. Petitioner entered the United States in 2000, at which point he was unaware of any claim to U.S. citizenship. Thus, when he was convicted of burglary, he admitted that he was deportable and ineligible for relief. He was removed in 2003. However, in 2014, he applied for a Certificate of Citizenship, claiming that he had acquired U.S. citizenship at birth through his father. USCIS denied Petitioner's application and he subsequently filed a petition under 8 U.S.C. Sec. 1252(b)(1), along with an opposed motion to transfer his case to the U.S. District Court for the Southern District of Texas for a de novo determination of his citizenship claim under 8 U.S.C. Sec. 1252(b)(5)(B).The Ninth Circuit determined that Petitioner presented sufficient evidence to create a genuine issue of material fact concerning his claim of U.S. citizenship. Thus, the court transferred Petitioner's case to the U.S. District Court for the Southern District of Texas for a de novo review of his citizenship claim. View "Garza-Flores v. Mayorkas" on Justia Law

In a previous opinion dated September 21, 2021, the Fifth Circuit issued an opinion in this immigration case agreeing with Petitioner that the Board of Immigration Appeals ("BIA") "abused its discretion by entirely failing to address his CAT claim." In that opinion the court noted that a claim seeking CAT relief "is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Thus, the court remanded the case to the BIA to address Petitioner's claim for relief under the Convention Against Torture ("CAT").On remand, the BIA determined that Petitioner failed to meet his burden to establish a prima facie case for CAT relief because Petitioner did not provide sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality, which bears on whether Petitioner has a clear probability of being tortured if he returns to Libya.Finding no error, the Fifth Circuit affirmed the denial of Petitioner's petition for review. View "Abushagif v. Garland" on Justia Law