Articles Posted in Immigration Law

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The Fourth Circuit granted the petition for review of the BIA's decision ordering petitioner removed to her native El Salvador. The court held that petitioner credibly testified by affidavit that MS-13 threatened and extorted her after her father left El Salvador; MS-13 threatened to kill her children if she did not meet the gang's demands; and she felt terrorized by the threats and fears for her safety and the safety of her children. The court also held that petitioner was persecuted on account of her family membership. Because the BIA did not reach the issue of whether the Salvadoran government was either unwilling or unable to control the gang members who threatened the family, the court remanded for the BIA to consider this factual issue in the first instance. The court vacated the BIA's order denying withholding of removal and remanded. View "Zavaleta-Policiano v. Sessions" on Justia Law

Posted in: Immigration Law

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Petitioner sought review of the BIA's order finding him both removable and inadmissible on the basis of his North Carolina deferred prosecution agreement for soliciting a child by computer to commit a sex act. The Fourth Circuit denied the petition for review, holding that the BIA properly found petitioner removable and inadmissible for being convicted of a crime involving moral turpitude. In this case, petitioner's deferred prosecution agreement was a "conviction" under the Immigration and Nationality Act; the phrase "crime involving moral turpitude" was not void for vagueness in the removability and admissibility contexts; and, even if petitioner's crime was not considered "violent or dangerous," his application would still be denied. View "Boggala v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fourth Circuit affirmed the denial of petitioner's application for asylum after an IJ granted her application for withholding of removal. The court held that the interplay between 8 U.S.C. 1231(a)(5) and 1158 was unambiguous: Congress intended that aliens subject to reinstated orders of removal be precluded from applying for asylum. Furthermore, barring illegal reentrants from applying for asylum did not violate international law. The court also held that, because the petition was not timely filed as to the underlying order of removal, the court lacked jurisdiction to address petitioner's objections to the June 2015 hearing. View "Calla Mejia v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fourth Circuit denied the petition for review of the denial of petitioner's application for asylum and withholding of removal. The court held that substantial evidence in the record supported the IJ's factual conclusion that petitioner's case was solely one of personal conflict among family members. In this case, petitioner and her son had fled Honduras based on threats from her mother-in-law. Therefore, petitioner did not meet her burden of showing persecution "on account of" a protected ground. View "Velasquez v. Sessions" on Justia Law

Posted in: Immigration Law

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Petitioner, a citizen and native of Mexico, petitioned for review of the BIA's order affirming the IJ's decision finding him ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1)(C). The Fourth Circuit denied the petition for review, holding that petitioner's 2005 criminal proceedings under Virginia Code 18.2-251 for possession of cocaine constituted a "conviction" as defined within the plain text of 8 U.S.C. 1101(a)(48)(A). In this case, both statutory elements of a conviction were satisfied and thus the BIA did not err in upholding the IJ's decision. View "Payan Jaquez v. Sessions" on Justia Law

Posted in: Immigration Law

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The Fourth Circuit affirmed in substantial part the district court's issuance of a nationwide injunction as to Section 2(c) of the challenged Second Executive Order (EO-2), holding that the reasonable observer would likely conclude EO-2's primary purpose was to exclude persons from the United States on the basis of their religious beliefs. Section 2(c) reinstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen. Determining that the case was justiciable, the Fourth Circuit held that plaintiffs have more than plausibly alleged that EO-2's stated national security interest was provided in bad faith, as a pretext for its religious purpose. Because the facially legitimate reason offered by the government was not bona fide, the court no longer deferred to that reason and instead may look behind the challenged action. Applying the test in Lemon v. Kurtzman, the court held that the evidence in the record, viewed from the standpoint of the reasonable observer, created a compelling case that EO-2's primary purpose was religious. Then-candidate Trump's campaign statements revealed that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States. President Trump and his aides have made statements that suggest EO-2's purpose was to effectuate the promised Muslim ban, and that its changes from the first executive order reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States. These statements, taken together, provide direct, specific evidence of what motivated both executive orders: President Trump's desire to exclude Muslims from the United States and his intent to effectuate the ban by targeting majority-Muslim nations instead of Muslims explicitly. Because EO-2 likely fails Lemon's purpose prong in violation of the Establishment Clause, the district court did not err in concluding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The court also held that plaintiffs will likely suffer irreparable harm; the Government's asserted national security interests do not outweigh the harm to plaintiffs; and the public interest counsels in favor of upholding the preliminary injunction. Finally, the district court did not abuse its discretion in concluding that a nationwide injunction was necessary to provide complete relief, but erred in issuing an injunction against the President himself. View "International Refugee Assistance Project v. Trump" on Justia Law

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The Fourth Circuit denied a petition for review of a final order of removal, concluding that Maryland third degree burglary qualifies as a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii). The Fourth Circuit explained that Maryland's third degree burglary statute, breaking and entering a dwelling of another, with the intent to commit a crime, implicates moral values beyond the duty to obey the law and inherently is base, vile, or depraved. The act of breaking and entering a dwelling, with the intent to commit any crime, necessarily involves conduct that violates an individual's reasonable expectation that her personal living and sleeping space will remain private and secure. The Fourth Circuit reasoned that an individual's expectation that her dwelling will remain private, secure, and free from intruders intending to commit a crime is violated regardless whether the dwelling is occupied at the time of the burglary. View "Uribe v. Sessions" on Justia Law

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Petitioner, a native of Panama and admitted to the United States on a B-2 visitor visa, was subjected to expedited removal proceedings because he was not lawfully admitted for permanent residence and his burglary offense was an aggravated felony for purposes of immigration law. Petitioner unsuccessfully sought review in the immigration court, petitioned for review, and was then removed. Following the DHS's subsequent cancellation of petitioner's removal order, the Attorney General moved in this Court to dismiss petitioner's petition for review. The court denied the Attorney General's renewed motion to dismiss, concluding that the court was not stripped of jurisdiction in a pending case simply by writing "cancelled" on a removal order the DHS has sued to remove an alien, and the court declined to dismiss the petition on mootness grounds. The court found that the Attorney General waived his remaining arguments. On the merits, the court concluded that the offense of statutory burglary in Virginia does not constitute an aggravated felony for purposes of immigration law. The court concluded that the Virginia burglary statute is indivisible, and application of the modified categorical approach is inappropriate. Using the categorical approach, the court concluded that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. Therefore, the DHS erred in classifying petitioner's conviction as an aggravated felony. The court granted the petition for review, vacated, and remanded. View "Castendet-Lewis v. Sessions III" on Justia Law

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Defendant, a citizen of Jamaica, asserted a Sixth Amendment ineffective assistance of counsel challenge to his conviction under the criminal counterfeiting statute. The district court determined that, although counsel provided deficient performance, defendant was not prejudice because the district court corrected counsel's deficiencies. In this case, defendant unknowingly pleaded to an aggravated felony that rendered him automatically deportable. Counsel had consulted with an immigration attorney regarding repercussions of defendant's plea to his immigration status, but the immigration attorney gave advice based upon an amended version of the statute that did not apply to defendant's case. Therefore, neither counsel nor the district court informed defendant that he was pleading to a crime that rendered him automatically deportable. The court issued a certificate of appealability and addressed defendant's claim on the merits. The court concluded that defendant received deficient performance under the Sixth Amendment, and that it prejudiced defendant because the district court's warnings, which were general and referenced only a vague "risk" or possibility of deportation, did not cure counsel's deficient performance. The court explained that defendant could demonstrate prejudice by showing a reasonable likelihood that, absent his counsel's error, he could have negotiated a different plea agreement or would have gone to trial instead. Accordingly, the court reversed, vacated, and remanded for further proceedings. View "United States v. Swaby" on Justia Law

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Petitioner, a citizen of Honduras, sought review of the BIA's order affirming the IJ's conclusion that she was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Petitioner argued that she feared persecution on account of her nuclear family ties to her husband Johnny Martinez, whom she suspected had been murdered by his employer. The court granted the petition and remanded, concluding that petitioner's familial relationship with Martinez necessarily was one central reason for the persecution and fear of future persecution established by her, thereby meeting the statutory "nexus requirement" for asylum provided in the Immigration and Nationality Act (INA) in 8 U.S.C. 1158(b)(1)(B)(i). View "Cantillano Cruz v. Sessions" on Justia Law

Posted in: Immigration Law