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

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

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

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

Robert S. Roland and his wife filed suit against USCIS and related government officials after Roland's Form I-130 Petition for Alien Relative, filed on behalf of his wife, was denied. The USCIS concluded that Roland posed a risk to his wife based on his prior convictions for criminal offenses, including sexual offenses against minors. The district court granted summary judgment to USCIS, concluding that it lacked subject matter jurisdiction under 8 U.S.C. 1252(a)(2)(B)(ii). Based on the plain language of section 1252(a)(2)(B)(ii) and its application of the same in Lee v. U.S. Citizenship & Immigration Servs., the court agreed that the district court lacked subject matter of certain discretionary agency decisions, including the denial of an application for adjustment of status. Accordingly, the court affirmed the judgment. View "Roland v. USCIS" on Justia Law

Petitioner, a citizen of Thailand, appealed the BIA's decision affirming the IJ's determination that petitioner failed to demonstrate that she entered into her marriage in good faith, as required by 8 U.S.C. 1186a(c)(4)(B). In this case, petitioner sought a hardship waiver that would allow her to stay in the country despite the fact that her marriage to a United States citizen had ended in divorce. The court held that the BIA applied the wrong standard of review because the issue of whether petitioner established that her marriage was entered into in good faith under section 1186a(c)(4)(B) is a mixed question of fact and law, and thus the IJ's ultimate conclusion that the credited evidence did not meet the good faith standard is a legal judgment subject to de novo review. Accordingly, the court granted the petition and remanded for the BIA to review the IJ's determination under the proper standard. View "Upatcha v. Sessions" on Justia Law

Petitioner, a native and citizen of Pakistan who was granted asylum in 1997, appealed the BIA's decision affirming the IJ's order of removal. The IJ found that petitioner deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status. The court affirmed the BIA's holding that because petitioner adjusted his status from an alien granted asylum to a lawful permanent resident, he no longer had protections based on his original asylum status. In this case, the court concluded that the BIA's interpretation of 8 U.S.C. 1159(b) was the best interpretation of the statute and that, in any event, it deserved Chevron deference. Accordingly, the court denied the petition for review. View "Mahmood v. Sessions" on Justia Law

Petitioner, a native and citizen of Nepal, challenges the BIA's finding of removeability under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i). Section 237(a)(2)(A)(i) authorizes the removal of any alien who "is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission." Petitioner was considered removeable based on the determination that his 2007 embezzlement conviction constituted a crime involving moral turpitude. The court accorded Chevron deference to the BIA's decision in Matter of Alyazji, to determine that petitioner's relevant "date of admission" was January 18, 2003: the date he was most recently admitted to the United States after taking a brief vacation abroad. Accordingly, the court denied the petition for review. View "Sijapati v. Boente" on Justia Law

Petitioner, a native of Belarus, seeks review of the BIA's final order of removal based on petitioner's Virginia involuntary manslaughter offense, which the agency deemed a categorical crime involving moral turpitude. The court explained that an involuntary manslaughter conviction can be secured in Virginia without proving a conscious disregard of risks attendant to the offender’s conduct; such a conviction can be predicated on proof that the offender failed to appreciate or be aware of the risks emanating from his conduct. Therefore, the court concluded that Virginia’s involuntary manslaughter offense is not categorically a crime involving moral turpitude. Accordingly, the court granted the petition for review and vacated, remanding for further proceedings. View "Sotnikau v. Lynch" on Justia Law

Petitioner, a native and citizen of El Salvador, seeks review of the BIA's decision finding him removable based on his conviction for “Third Degree Sex Offense” under Maryland Criminal Law Article 3-307. The court concluded that the BIA erred as a matter of law, and held that petitioner's conviction does not constitute the aggravated felony of “sexual abuse of a minor” under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(A), because Maryland Criminal Law Article 3-307 proscribes more conduct than does the generic federal offense. Accordingly, the court granted the petition for review, vacated the order of removal, and ordered his immediate release from DHS custody. View "Larios-Reyes v. Lynch" on Justia Law

Petitioner, a native and citizen of China, seeks review of the BIA's decision denying his requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). The court concluded that the accounts in the State Department reports, which document only isolated instances of harassment and disparate treatment of unregistered Catholic churches in different locations, substantially support the Board’s finding of a lack of widespread persecution. Therefore, the court affirmed the Board's conclusion that petitioner failed to establish a well-founded fear of persecution based on his Catholic religion. Because petitioner failed to meet his burden of proof for asylum, the court necessarily held that petitioner has not shown that he is entitled to withholding of removal. Finally, because plaintiff failed to exhaust his administrative remedies as to his CAT claim, the court lacked jurisdiction to review it. Accordingly, the court denied the petition for review. View "Tang v. Lynch" on Justia Law