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

\Petitioner, a native and citizen of Mexico, petition for review of a final order of removal entered by the Board of Immigration Appeals. The Board determined that Petitioner was ineligible for cancellation of removal because his prior conviction for receipt of stolen property was a crime involving moral turpitude. The Board also held that the immigration judge (IJ) provided Petitioner with legally adequate notice of the conditions applicable to his voluntary departure.   The Fourth Circuit affirmed the Board’s holding that Petitioner’s conviction for receipt of stolen property rendered him ineligible for cancellation of removal. However, the Board erred in concluding that the IJ was not required to advise Petitioner of the bond requirement before granting voluntary departure. Accordingly, the court denied the petition with respect to the cancellation of removal but remanded for the Board to consider Petitioner’s request for voluntary departure. The court explained that the Board did not address whether an alien must show he was prejudiced by the IJ’s delay in providing the required advisals or whether Petitioner had made such a showing. The court therefore granted the petition in part and remanded for the Board to consider Petitioner’s request for remand to the IJ for a new period of voluntary departure with the required advisal. View "Cesar Solis-Flores v. Merrick Garland" on Justia Law

Petitioner, a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (Board) upholding the immigration judge’s (IJ’s) denial of his application for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and ordering him removed to Honduras. As a former member of the MS-13 gang, Petitioner fears torture by gangs and police in Honduras. The IJ concluded that Ponce-Flores’s risk of torture was substantial, but he had not shown that a government official would more likely than not inflict or acquiesce in it.   The Fourth Circuit denied the petition. The court explained that Petitioner has failed to show that the IJ arbitrarily ignored relevant evidence or otherwise abused her discretion. The court explained that it requires agency adjudicators to demonstrate that they “reviewed all [the applicant’s] evidence, understood it, and had a cogent, articulable basis for [their] determination that [his] evidence was insufficient.” Here, the court concluded that the IJ surpassed that standard. View "Jesus Ponce-Flores v. Merrick Garland" on Justia Law

Petitioner, a native and citizen of Albania, entered the United States in 2001. He remained in the country until 2008 when he was ordered removed. In 2015, Petitioner was charged with federal bank fraud and aggravated identity theft. In 2016, he was convicted of those charges after pleading guilty and sentenced to 44 months in prison. Based on Petitioner’s convictions, in August 2019, the Department of Homeland Security (“DHS”) began removal proceedings against Petitioner. And also, because of those convictions, in September 2019, DHS moved to terminate his asylum status. Petitioner conceded he was removable based on the bank fraud and identity theft proceedings but requested the IJ waive those grounds for his removal. Petitioner also applied to adjust his status to lawful permanent resident. And he separately sought withholding of removal and protection under the Convention Against Torture (“CAT”). The IJ denied Petitioner’s request for a waiver. Petitioner asked the Fourth Circuit to grant his petition for review and vacate the BIA’s decision determining that the termination of his asylum status renders him ineligible to seek an adjustment of status to a lawful permanent resident under Section 1159(b).   The Fourth Circuit denied the petition. The court concluded that Section 1159(b) unambiguously precludes an alien whose asylum status has been terminated from adjusting to lawful permanent resident status. On that basis, Petitioner’s argument fails at step one of the Chevron test. Since Petitioner’s asylum status had been terminated at the time he sought to adjust to lawful permanent resident status, he was not eligible for that adjustment. View "Tiger Cela v. Merrick Garland" on Justia Law

An Immigration Judge (IJ) denied Petitioner asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed, and Petitioner petitioned for review.
The Fourth Circuit granted in part, denied in part, and remanded. The BIA properly held that Petitioner was not eligible for CAT protection, and so the court denied the petition for review as to the CAT claim. But the BIA erred in not recognizing the nexus that Petitioner established between the persecution she suffered and her religion. As a result of that error, the BIA erred in determining that Petitioner was not a refugee eligible for asylum. The court explained that when Petitioner left the country 12 days after her initial police report, Petitioner had not been harmed, and she did not offer any evidence that the police colluded with MS-13 or otherwise acquiesced in the gang’s activity. With no such evidence, a reasonable adjudicator could find that there was no government acquiescence in her persecution. View "Odalis Chicas-Machado v. Merrick Garland" on Justia Law

Petitioner and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings, and the Board of Immigration Appeals (BIA) dismissed their appeal. The BIA concluded that Petitioner had “not rebutted the slight presumption of delivery and receipt of the hearing notice at the address she provided.” Petitioner petitioned for review.   The Fourth Circuit granted the petition and vacated the dismissal by the BIA. The court explained that the statutory scheme contemplates a notice to appear that fully complies with the requirements of Section 1229(a)(1). The Supreme Court has emphasized that this notice must be a “single statutorily compliant document.” That is because the original notice to appear, by itself and regardless of any future need for a change in hearing, is a critical document, “the basis for commencing a grave legal proceeding” with profound implications for people like Petitioner and her son. If the government holds the original removal hearing as envisioned by the satisfactory notice to appear, there is no need for further notices. Of course, “if logistics require a change,” the government has statutory flexibility to send a change of hearing notice. But that flexibility does not excuse the government from its obligations to provide a valid notice to appear in the first instance. That did not happen here. Nor did Petitioner receive proper notice under Section 1229(a)(2). The court concluded that because she did not receive the “written notice required under paragraph (1) or (2) of section 1229(a),” Petitioner is entitled to the reopening of her proceedings and the rescission of her removal order. View "Azucena Lazo-Gavidia v. Merrick Garland" on Justia Law

Petitioner, a native and citizen of El Salvador, has twice traveled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Petitioner fled threats to his life, and attacks were carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Petitioner was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Petitioner, for his part, was removed to El Salvador in May 2022 and has awaited further developments in these proceedings from his home country. In this appeal, Petitioner challenged and sought reversal of three rulings made by the BIA.   The Fourth Circuit granted Petitioner’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. The court otherwise remanded to the BIA for such further proceedings. The court explained that the BIA declined to “interact seriously” with the record before it in reviewing Petitioner’s claim for CAT protection, and its failure in that regard requires a remand. Petitioner’s evidence, to be certain, is strongly supportive of his CAT claim — he has, after all, already been subjected to “cruel and inhuman treatment” after being initially removed to El Salvador. But the court declined to resolve whether Petitioner is entitled to CAT protection. Instead, the court vacated the BIA’s 2021 Reversal Order with respect to its CAT ruling and remanded for the BIA to fully and properly assess Petitioner’s CAT claim in the first instance. View "Christian Santos Garcia v. Merrick Garland" on Justia Law

Petitioner applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The immigration judge (“IJ”) denied his application, explaining that while he had left El Salvador because of a genuine fear of gangs, neither he nor his family had had any encounters with gang members. Because the basis for his fear was simply a “generalized” fear of criminal gang members and violence in El Salvador, the IJ found that he was ineligible for relief.On appeal to the Board of Immigration Appeals (“BIA”), Petitioner argued that he had proceeded pro se before the IJ and that the IJ had failed to develop the record, as required by Quintero v. Garland, 998 F.3d 612, 622 (4th Cir. 2021). The BIA concluded, however, that the IJ had fulfilled the requirements of Quintero and affirmed.The Fourth Circuit affirmed, finding that the BIA's conclusions were not legally erroneous or lacked evidentiary support. View "Jose Trejo Tepas v. Merrick Garland" on Justia Law

The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Petitioner, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Petitioner under threat of death. Petitioner repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Petitioner fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Petitioner suffered past persecution, entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Petitioner lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal.   The Fourth Circuit granted Petitioner’s petition for review, reversed the Board’s denial of Petitioner’s preserved claims, and remanded with instructions that the agency grant relief. The court explained that Petitioner’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. The court granted relief since the record would compel any reasonable adjudicator to conclude Petitioner faces a well-founded threat of future persecution. View "Shaker Ullah v. Merrick Garland" on Justia Law

Petitioner is a native of China admitted to the United States on a student visa in 2009. Petitioner sought review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Petitioner fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices.   The Fourth Circuit vacated the Board’s decision and remanded for further explanation. In denying relief on Petitioner’s withholding claim, both the IJ and the BIA relied at least in part on Petitioner’s failure to provide affidavits from his minister or fellow church members from China, attesting to his “activities as a Christian” and his arrest during home church services. But Petitioner repeatedly explained during his hearing why such evidence was not available: his minister and co-religionists feared reprisal from Chinese authorities if they came forward on his behalf. And neither the IJ nor the BIA made any finding as to the sufficiency of that explanation or the reasonable availability of the affidavits hypothesized by the IJ, or even noted Petitioner’s explanation in their opinions. The court left it to the agency on remand to evaluate Petitioner’s explanation and determine whether evidence from his co-religionists in China was “reasonably obtainable.” View "Zuowei Chen v. Merrick Garland" on Justia Law

Petitioner sought review of the Board of Immigration Appeals (Board) order denying his motion to reconsider the dismissal of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In its order denying reconsideration, the Board affirmed the Immigration Judge’s (IJ) finding that Petitioner, a Salvadoran national whose entire family had fled to the United States, had not established a nexus between his family membership and the threat of persecution as required for his asylum and withholding of removal claims. The Board also affirmed the IJ’s finding that Petitioner had not shown acquiescence by public officials as required for his CAT claim.   The Fourth Circuit granted in part and denied in part the petition for review, vacated in part the Board’s order denying reconsideration, and remanded for further proceedings. The court explained that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the Petitioner’s asylum and withholding of removal claims. The court also held with regard to these two claims that the Board abused its discretion by arbitrarily disregarding Petitioner’s testimony about the threat of future persecution. However, the court rejected Petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the Petitioner’s testimony insufficient to meet his burden of proof and appropriately evaluated the evidence under the futility exception. View "Marvin A.G. v. Merrick Garland" on Justia Law