Justia U.S. 4th Circuit Court of Appeals Opinion Summaries

The temporary, ex parte emergency order presented by plaintiff did not qualify as a predicate state court custody order for the special immigrant juvenile application. The Fourth Circuit affirmed the district court's judgment and held that it properly concluded that the USCIS did not impose an ultra vires requirement for permanent custody orders within the SIJ application process. Therefore, the agency did not act arbitrarily, capriciously or contrary to law, or abuse its discretion in determining that plaintiff failed to present a qualifying predicate order in support of his SIJ petition. Finally, the court held that the Full Faith and Credit Act was inapplicable under the facts presented in this case. View "Perez v. Cissna" on Justia Law

Petitioner, a citizen and native of El Salvador, challenged the BIA's dismissal of his appeal of the IJ's denial of his application for withholding of removal and protection under the Convention Against Torture (CAT). The court assumed, without deciding, that petitioner was a member of a particular social group comprised of his disabled father's immediate family members and that he suffered past persecution in El Salvador. Even with that assumption, the court held that petitioner failed to establish the requisite nexus between any persecution he suffered and his relation to his disabled father. Accordingly, the court denied the petition for review. View "Cortez-Mendez v. Whitaker" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's determination that petitioner was removable under the Immigration and Nationality Act (INA) based on his commission of a crime involving moral turpitude within five years of his admission to the United States. The court explained that it was DHS's burden to affirmatively prove (by clear and convincing evidence) that petitioner last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determined whether his 2012 felony abduction offense fell within the five-year window for removability. The court held that DHS failed to prove that petitioner was admitted in 2008. In this case, the record contained essentially unrebutted evidence showing that petitioner was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise). View "Mauricio-Vasquez v. Whitaker" on Justia Law

Tairou was born in Benin in 1977. Although Tairou married a woman, he testified that in 2007, he “figured out [he] was a homosexual” and entered into a relationship with a man. Despite the general secrecy surrounding their relationship, the men were openly affectionate in front of Tairou’s cousin, who took pictures. Tairou was subsequently confronted by a group of approximately 40 men, including his uncles, cousins, ministers from the mosque, and other villagers. The crowd threatened and harassed him for five hours. In Tairou’s declaration attached to his asylum application, he asserted that several people said that he “should die,” and some "outright threatened to kill [him].” A week later, Tairou’s cousins forced their way into his home and beat him, threatening to “kill [him], to shame [him] publicly again,” and to harm his wife and children. Tairou’s son sustained head and arm injuries trying to protect his father. The Fourth Circuit remanded a removal order. The BIA erred in finding that Tairou was not subjected to past persecution. Binding precedent explicitly holds that a threat of death constitutes persecution. Tairou established that he was subjected to past persecution; the BIA must consider whether, in light of Tairou’s demonstrated past persecution, he has a well-founded fear of future persecution. View "Tairou v. Whitaker" on Justia Law

The Fourth Circuit denied a petition for review of the BIA's decision and held that the Board correctly determined that petitioner was convicted of a conspiracy related to the distribution of a controlled substance; the conviction rendered him inadmissible under the Controlled Substance Provision; and he was subject to removal under 8 U.S.C. 1227(a)(1)(A). The court also held that section 1229a(c)(3)(B) did not prohibit the Board from considering petitioner's indictment. Finally, the court was without jurisdiction to address a new argument to challenge the sufficiency of the evidence because petitioner did not raise it before oral argument. View "Shaw v. Sessions" on Justia Law

The imposition of $100 in court costs, assessed attendant to a prayer for judgment continued under North Carolina law, does not qualify as a "conviction" within the meaning of the Immigration and Naturalization Act. The Fourth Circuit granted a petition for review of the BIA's decision in a case where petitioner pleaded guilty in North Carolina state court to misdemeanor possession of a small amount of marijuana. The state court withheld adjudication of guilt, instead entering a verdict of prayer for judgment continued and assessing petitioner $100 in court costs. View "Guzman Gonzalez v. Sessions" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal based on petitioner's prior convictions for theft. The court held that the Maryland theft statute was not divisible and the modified categorical approach was inapplicable in this case, and not all of the offenses encompassed under the relevant Maryland statute qualified as crimes involving moral turpitude. Accordingly, the court vacated the BIA's decision and remanded for consideration of petitioner's application for cancellation of removal. View "Leyva Martinez v. Sessions" on Justia Law

Petitioner challenged the Board's determination that he was subject to removal as an alien who has been convicted of two crimes involving moral turpitude (CIMT) pursuant to 8 U.S.C. 1227(a)(2)(A)(ii), and that he was ineligible for a waiver of removal under former INA 212(c). The Fourth Circuit held that petitioner's 1995 conviction for unlawful possession of marijuana with intent to manufacture, deliver, or sell constitutes a conviction of both an aggravated felony and a CIMT. Therefore, the court did not have jurisdiction to review petitioner's challenges to the BIA's decision, except to the extent they raised constitutional or legal issues. The court also held that petitioner was ineligible for relief under former INA 212(c) because his convictions in 2000 for felony larceny and felony breaking and entering constitute convictions of CIMTs that were not waivable under section 212(c), which was repealed in 1996. Furthermore, petitioner was ineligible for cancellation of removal under INA 240A(a) because such relief was not available to any alien who has been convicted of an aggravated felony. Accordingly, the court dismissed petition number 17-1833, and dismissed in part and denied in part petition number 16-2434. View "Guevara-Solorzano v. Sessions" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for asylum. In Mejia v. Sessions, 866 F.3d 573, 584 (4th Cir. 2017), the court recently held that an alien subject to a reinstated order of removal may not apply for asylum. Mejia's fact pattern was substantially similar to petitioner's where the alien had grounds to apply for asylum prior to her initial removal. The court held that petitioner's arguments were inconsistent with the plain terms of 8 U.S.C. 1158(a)(2)(D) and were contrary to Mejia's holding that section 1231(a)(5) attached a categorical prohibition against applying for asylum to aliens subject to reinstated orders of removal. View "Lara-Aguilar v. Sessions" on Justia Law

Ramirez, a citizen of El Salvador, first entered the U.S. in 1996 at age 17. Nearly 20 years later, Ramirez was placed in removal proceedings, charged with being present without being admitted or paroled under 8 U.S.C. 1182(a)(6)(A)(i). Ramirez applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), 111 Stat. 2160, 2196–2199 (1997), which allows certain nationals from designated countries to apply for suspension of deportation or special rule cancellation of removal and adjust their status to permanent residency. To qualify under NACARA, an alien ordinarily must establish at least seven years of continuous presence in the U.S. but an applicant who is inadmissible or removable for having committed a crime involving moral turpitude (CIMT) must establish at least 10 years of continuous presence after becoming inadmissible or removable. In 2012, Ramirez was convicted of petit larceny and obstruction of justice. The Board of Immigration Appeals found him ineligible for NACARA relief. The Fourth Circuit vacated the order of removal, holding that obstruction of justice under Virginia law is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. The court directed the government to facilitate Ramirez’s return to the United States to participate in further proceedings. View "Ramirez v. Sessions" on Justia Law