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

Petitioner, a citizen of El Salvador, entered the United States in 2013 without authorization. The next year, Petition was arrested and ultimately found removable. Petitioner sought relief under the Convention Against Torture, claiming he would be tortured by the MS-13 gang, the police, or anti-gang vigilante groups if he was deported to El Salvador.The Immigration Judge denied relief, finding Petitioner's testimony was not credible and that there was "less than a fifty percent chance of torture both separately and in the aggregate" that Petitioner would be tortured by any party. The Board of Immigration Appeals ("BIA") affirmed.On appeal, the Fourth Circuit affirmed. The Immigration Judge properly considered the aggregate chance that Petitioner would be tortured by any party. Neither the Immigration Judge nor the BIA ignored relevant evidence that Petitioner would be tortured. Further, the BIA used the proper standard when assessing Petitioner's claims. View "Miguel Ibarra Chevez v. Merrick Garland" on Justia Law

Plaintiff entered the United States in 2014 when he was apprehended by border patrol agents before eventually being released to his older brother (a resident of North Carolina).On or shortly before his eighteenth birthday, Plaintiff filed an application for special immigrant juvenile (SIJ) status with the United States Citizenship and Immigration Services (USCIS). SIJ status provides certain protections against removal under 8 U.S.C. Sec. 1255 and can lead to lawful permanent residency and citizenship. USCIS issued Plaintiff a Notice of Intent to Deny his SIJ application and Plaintiff appealed to the Administrative Appeals Office (AAO), which upheld the denial. Plaintiff then filed a complaint in district court seeking review of the agency’s denial of his SIJ applicationOn rehearing en banc, the court reversed the judgment of the district court and remanded with instructions to grant Plaintiff’s motion to set aside USCIS’s denial of SIJ status. Following his victory before the en banc court, Plaintiff sought to recover attorney’s fees and expenses under the Equal Access to Justice Act (EAJA). The district court denied Plaintiff’s EAJA application, finding the government’s position was “substantially justified.” The Fourth Circuit reasoned that "this was a tough case" involving reasonable arguments on both sides. Thus, the court affirmed the district court’s ruling finding the government’s position was substantially justified. View "Felipe Perez v. Ur Jaddou" on Justia Law

The Fourth Circuit granted the petition for review of the BIA's decision concluding that petitioner is categorically ineligible under 8 U.S.C. 1227(a)(1)(H)(i)(I), because his U.S. citizen father is no longer living. Pursuant to section 1227(a)(1)(H)(i)(I), the Attorney General has discretion to grant waiver of removal to a person who is the son or daughter of a citizen of the United States.The court concluded that the statutory text includes no living-parent requirement. In this case, the issue is not whether petitioner should be granted a waiver as a matter of executive discretion—it is whether Congress has forbidden one via legislative command. Because the answer is no, the court granted the petition for review, vacated the Board's decision, and remanded for further proceedings. View "Julmice v. Garland" on Justia Law

The Fourth Circuit granted the petition for review challenging the BIA's dismissal of petitioner's appeal of the IJ's denial of petitioner's motion to reopen removal proceedings. The court concluded that petitioner's motion to reopen should have been considered under 8 C.F.R. 1003.23(b)(3), not section 1003.23(b)(4). Therefore, petitioner filed his motion within 90 days of the final hearing, in which case section 1003.23(b)(3) applies instead of section 1003.23(b)(4). In this case, the BIA abused its discretion by failing to evaluate whether petitioner offered, in the proper form and with the appropriate contents, evidence that was material and not previously available at the initial hearing. The court also concluded that Zambrano v. Sessions', 878 F.3d 84 (4th Cir. 2017). A.R. 47, 64, framework in examining changed circumstances should have been applied to petitioner's asylum application. The court vacated and remanded for the BIA to consider petitioner's motion to reopen under the appropriate standard. The BIA should also address petitioner's asylum application under the framework of Zambrano and conduct any further proceedings consistent with the opinion. View "Garcia Hernandez v. Garland" on Justia Law

The Fourth Circuit denied a petition for review challenging the BIA's denial of petitioner's application for asylum based on its finding that she had not shown she was persecuted on account of her membership in her alleged particular social group, "family members of Guisela Toledo-Vasquez." The court concluded that, despite the tragic circumstances that caused petitioner to flee Mexico, substantial evidence supports the Board's conclusion that she was not persecuted on account of her family relationship with Guisela. Rather, petitioner's family membership to Guisela is merely an incidental, tangential, superficial and subordinate reason for her persecution. In this case, the record suggests that had petitioner been someone else other than Guisela's sister, she would have been targeted just the same. View "Toledo-Vasquez v. Garland" on Justia Law

After Mejia-Velasquez entered the United States without inspection, she sought asylum, withholding of removal, and protection under CAT, claiming that she and other members of her family had been the victims of physical harm due to their membership in a particular Honduran political party, and their affiliation with a family member who was elected mayor of the family’s hometown as a member of that same party. Because Mejia-Velasquez failed to produce biometrics (such as her photograph, fingerprints, and signature) in support of her application, after having been warned of the consequences of failing to do so, the immigration judge deemed her application abandoned pursuant to 8 C.F.R.1003.47(c) and 1208.10 and ordered her removed.The BIA and Fourth Circuit affirmed. Section 1003.47(d) is unambiguous as to the three requirements specified — oral notification, a biometrics notice, and instructions. Mejia-Velasquez actually received a biometrics notice from the IJ at her master calendar hearing. That document, entitled “Fingerprint Warning,” contained all the information that could reasonably be contemplated by the regulation’s requirement of “a biometrics notice.” It warned of the consequences for failing to submit the required information (abandonment) and set a deadline. View "Mejia-Velasquez v. Garland" on Justia Law

Tomas-Ramos, a citizen of Guatemala, reentered the U.S. illegally in 2018. A removal order previously entered against him was reinstated. Tomas-Ramos expressed a fear of returning to Guatemala because gang members had threatened to kill him for resisting their recruitment of his son. An asylum officer conducted a screening interview and determined that Tomas-Ramos failed to establish a reasonable fear of harm and was not entitled to relief from his reinstated removal order. The asylum officer recognized that Tomas-Ramos might have been threatened because of his relationship to his son but held that immediate family is not a qualifying “particular social group” under 8 U.S.C. 1231(b)(3)(A) because it “lacks social distinction.” An IJ agreed.The Fourth Circuit vacated and remanded. The primary ground for the IJ’s decision was an erroneous conclusion that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. The record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. The IJ’s finding that “[Tomas-Ramos] can relocate” is not an independent ground for affirmance, because that finding is called into question by the determination that Tomas-Ramos has established past persecution. View "Tomas-Ramos v. Garland" on Justia Law

Cabrera, a citizen of Mexico, legally entered the U.S. on a B-2 visa and overstayed. In 2015, her boyfriend physically assaulted her in front of her child. The responding officer noted her physical injuries. Cabrera’s child stated that the man had grabbed Cabrera and choked her. Cabrera’s boyfriend was charged with criminal domestic violence, Cabrera aided the police in prosecuting him, rendering her eligible to seek a U visa, available to noncitizens who have been a victim of criminal activity and who help authorities investigating or prosecuting that crime, 8 U.S.C. 1101(a)(15)(U). Cabrera obtained the required certification, attesting to her help, from law enforcement in December 2017. In February 2018, before Cabrera filed her U visa application, DHS issued her notice to appear. A month later, Cabrera filed her U visa application. She moved to continue the deportation proceedings.The IJ denied the motion, acknowledging there was a “significant probability” that USCIS would grant the U visa. The BIA dismissed Cabrera's appeal, finding that she failed to show good cause for a continuance. The Fourth Circuit vacated. The BIA and IJ abused their discretion. The BIA has held that there is a “rebuttable presumption” that a movant who has filed a prima facie approvable application for a U visa warrants a favorable exercise of discretion for a continuance. The BIA failed to explain why it departed from established policies. View "Cabrera v. Garland" on Justia Law

Herrera-Martinez owned a restaurant and a bar in Honduras with a business partner. In 2002, narco-traffickers began to pressure him to sell drugs; they allegedly beat him and threatened his life after he reported them to police. Herrera-Martinez fled to the United States and hired a lawyer, but skipped his last immigration hearing. Herrera-Martinez was later deported but returned after five days. Herrera-Martinez pled guilty to burglary of a habitation with intent to commit theft and was, again, deported. During his third stay in the U.S. Herrera-Martinez was detained for illegal reentry. He sought withholding of removal and protection under the Convention Against Torture, testifying that the narco-traffickers killed his former business partner after he left Honduras and murdered his brother-in-law.An IJ held that Herrera-Martinez experienced “at best a severe level of harassment,” did not establish a well-founded fear of future persecution, did not show persecution on account of any recognized social groups, and did not establish that Honduran officials would acquiesce in any torture. On remand, the IJ additionally found Herrera-Martinez not credible. The BIA affirmed. The Fourth Circuit denied a petition for review. Herrera-Martinez’s withholding claim failed because the particular social group he advanced, prosecution witnesses, was not particular. Herrera-Martinez’s testimony was not credible; he failed to show that it is more likely than not he would be tortured if he returned to Honduras and that the Honduran government would acquiesce to such torture. View "Herrera-Martinez v. Garland" on Justia Law

Ge, then a citizen of China, entered the U.S. on a student visa. After pursuing his education for four years, he enlisted in the Army through the Military Accessions Vital to the National Interest (MAVNI) program, which allows foreign nationals to enlist in the armed forces and thereafter apply for naturalization under 8 U.S.C. 1440(a). Ge filed his application in May 2016. After completing interviews and tests administered by USCIS, he received notice in July 2017, that his naturalization oath ceremony had been scheduled for later that month. Days later, he was informed that the ceremony had been canceled. USCIS had a new policy, requiring that enhanced Department of Defense background checks for all MAVNI applicants before their naturalization applications could be granted.Ge filed suit in December 2018, under 8 U.S.C. 1447(b). The district court directed USCIS to adjudicate Ge’s naturalization application within 45 days. Shortly after the court’s remand order, Ge reported that he had been sworn in as a citizen. The court dismissed Ge’s action. Ge then sought attorneys fees under the Equal Access to Justice Act, 28 U.S.C. 2412, alleging that he was the “prevailing party” and that USCIS’s position was not “justified in law and fact at all stages.” The district court denied his motion, ruling that Ge did not qualify as a prevailing party because its remand was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.” The Fourth Circuit affirmed. After the remand order, Ge was still the applicant; USCIS was still the agency that could grant or deny the application. The legal relationship had not changed. View "Ge v. United States Citizenship & Immigration Services" on Justia Law