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

Galvan, a citizen of Mexico, entered the U.S. in 2003 on a six-month nonimmigrant visa but remained in this country with his wife, a citizen of Mexico without legal immigration status, and their four U.S.-citizen children. Galvan, twice convicted of DUI, applied for cancellation of removal, 8 U.S.C. 1229b, arguing that his removal would result in “exceptional and extremely unusual hardship” for his children. His wife testified that Galvan had been the family’s main source of income, his absence during his detention had required her to work longer hours, which had impacted her ability to take care of the children. One child had been diagnosed with ADHD and suffers from anxiety; his wife was concerned that the children would not be able to participate in their established activities.While the IJ found all the witnesses credible, he denied Galvan’s application; Galvan met the temporal and good moral character criteria for cancellation and had not been convicted of any disqualifying offenses but failed as a matter of law to prove that his removal would cause “exceptional and extremely unusual hardship.” The BIA affirmed. The Fourth Circuit denied a petition for review. While the statutory standard of “exceptional and extremely unusual hardship” presents a mixed question of law and fact, giving the court jurisdiction, the IJ did not err in determining that Galvan failed to prove eligibility for cancellation of removal. View "Galvan v. Garland" on Justia Law

Petitioner and her minor daughter petitioned for review of the BIA's final order affirming the denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). At issue on appeal is whether the IJ and the BIA erred in concluding that petitioner failed to demonstrate that she was persecuted on account of her membership in her proposed particular social group, namely her nuclear family.Under well-established precedent in this circuit, and based on the unrebutted, substantial evidence in the record, the Fourth Circuit held that any reasonable adjudicator would be compelled to conclude that petitioner's membership in her nuclear family was at least one central reason for her persecution. Petitioner has established a nexus between her membership in her proposed particular social group and the persecution she suffered. In this case, the court agreed with petitioner's contention that she has established that she was persecuted in Honduras on account of her membership in her proposed social group where gang members extorted money from her each month because her husband worked in the United States. Furthermore, the IJ and the BIA erred by applying a legally incorrect and "excessively narrow" approach to analyzing whether petitioner satisfied the statutory nexus requirement. Accordingly, the court reversed the agency's determination as to nexus, vacated the final order of removal and the denial of petitioner's application for asylum and withholding, and remanded for further proceedings. Finally, the court concluded that it lacked jurisdiction to consider petitioner's CAT claim because she failed to exhaust all available administrative remedies. View "Perez Vasquez v. Garland" on Justia Law

On rehearing en banc, the court granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and order of removal.The court concluded that the BIA erred at every step of the asylum analysis. The court explained that both the IJ and BIA legally erred in relying solely on the notion that petitioner's injuries did not require medical attention as grounds to reject petitioner's persecution argument. On remand, the court instructed that the BIA should bear in mind that the harm need not be physical. Where physical harm has occurred, as here, the main question is whether petitioner's mistreatment was of "sufficient severity," keeping in mind that a key difference between persecution and less-severe mistreatment is that the former is systematic while the latter consists of isolated incidents. Furthermore, the agency should also recognize that death threats need not be made directly to the petitioner. The court recognized the commonsense rule and instructed the BIA to apply on remand: Where a petitioner is a child at the time of the alleged persecution, the immigration court must take the child’s age into account in analyzing past persecution and fear of future persecution for purposes of asylum. Therefore, even if petitioner's beatings and the threats made against him would not rise to the level of past persecution for an adult, they may satisfy past persecution for a child. In determining whether petitioner had a well-founded fear of future persecution, the court concluded that the district court erred by conflating the persecution analysis with the nexus analysis. The court further concluded that there is no support whatsoever for the IJ or BIA's conclusion that petitioner has not sufficiently alleged a cognizable protected social group. Reviewing this claim under a substantial evidence standard, the court concluded that a reasonable adjudicator would be compelled to conclude that petitioner's membership in his nuclear family was at least one central reason for the alleged persecution committed on behalf of the gang. Finally, the court concluded that petitioner sufficiently exhausted his governmental control challenge. On the merits, the court concluded that the BIA's cursory analysis was erroneous for two reasons: (1) the agency essentially imposed a per se reporting requirement; and (2) it ignored vital evidence favorable to petitioner.Because the BIA rested its conclusion as to withholding of removal on its flawed asylum determination, the court vacated the BIA's withholding conclusion as well. Likewise, the IJ and BIA's CAT analyses did not adequately address petitioner's evidence regarding police consent and/or acquiescence. The court vacated the immigration court decisions and remanded for further proceedings. View "Portillo-Flores v. Garland" on Justia Law

Moreno-Osorio arrived in the U.S. in 2009 and in 2016 returned to Honduras pursuant to a grant of voluntary departure. Upon arriving in Honduras, Moreno-Osorio and his cousins were confronted by street gang members, some of whom were armed, who told Moreno-Osorio that “people who come back from the United States come back with money,” and ordered that he give them money or join their gang: “They told me my life was on the line.” Moreno-Osorio decided to immediately return to the U.S. without filing a police report; “the police do nothing in these cases.”In January 2017, he was apprehended and was charged with inadmissibility under 8 U.S.C. 1182(a)(7)(A)(i)(I). He received a credible finding of fear during his asylum interview. According to the Department of State Overseas Security Advisory Council’s Honduras 2018 Crime and Safety Report, the Honduran Government “lacks resources to investigate and prosecute cases … criminals operate with a high degree of impunity.” Other evidence indicated that the Honduran Government has undertaken efforts to root out public corruption and gang violence. After being released on bond from DHS custody, Moreno-Osorio was arrested and pled guilty to unlawful wounding in violation of Virginia law.The Fourth Circuit affirmed that Moreno-Osorio was ineligible for asylum based upon his conviction of a crime of violence; that he was ineligible for withholding of removal; and that he did not qualify for protection from removal under the Convention Against Torture. View "Moreno-Osorio v. Garland" on Justia Law

After petitioner prevailed on an application for a writ of habeas corpus seeking release from federal immigration detention, he sought to recover attorney's fees under the Equal Access to Justice Act. The Fourth Circuit has previously held, pursuant to O'Brien v. Moore, 395 F.3d 499, 508 (4th Cir. 2005), that the Act does not apply to a habeas proceeding seeking release from criminal detention. The court held that the same is true for habeas proceedings seeking release from civil detention. Therefore, the court affirmed the district court's denial of attorney's fees because the Act does not provide a basis for petitioner to recover attorney's fees. View "Obando-Segura v. Garland" on Justia Law

The Fourth Circuit granted the petition for review of the BIA's final order affirming the denial of petitioner's application for asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner alleged that the IJ and the BIA made several legal errors in their consideration of his claims for withholding of removal and for relief under the Convention Against Torture (CAT).The court held that IJs have a legal duty to develop the record, which takes on particular importance in pro se cases, and that the IJ in this case erred in failing to discharge that duty. The court also concluded that the BIA erred in refusing to consider petitioner's particular social groups based on Matter of W-Y-C- and in mischaracterizing his claim. In regard to the CAT claim, and pursuant to Rodriguez-Arias v. Whitaker, 915 F.3d 968 (4th Cir. 2019), the court agreed with petitioner that the BIA erred in failing to consider and aggregate the risk of torture from different sources. Furthermore, neither the IJ nor the BIA duly considered all of the record evidence relevant to whether the Salvadoran government would consent to or acquiescence in torture. Accordingly, the court vacated petitioner's final order of removal and remanded to the BIA with instructions to remand the case to the IJ for further fact-finding and reconsideration. View "Arevalo Quintero v. Garland" on Justia Law

Defendant was found in the United States after having previously been removed under the expedited removal procedure of 8 U.S.C. 1225(b)(1). Defendant was charged with reentry without permission after having been removed, in violation of 8 U.S.C. 1326(a).The Fourth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment, rejecting defendant's claim that his 2016 expedited removal order was "fundamentally unfair" for lack of representation by counsel during the removal proceeding, as guaranteed by the Due Process Clause and afforded by the Administrative Procedure Act (APA), and therefore was invalid. The court concluded that the Due Process Clause did not entitle defendant to counsel when apprehended at the border and promptly removed. Furthermore, the court rejected defendant's contention that the APA requires — as an additional procedural right in removal proceedings — that the alien have the opportunity to obtain counsel in expedited removal proceedings under section 1225(b)(1)(A)(i). View "United States v. Guzman" on Justia Law

DHS Agent Swivel saw someone whom he thought he recognized from a prior case. It was Santos-Portillo, a Honduran national who was in the U.S. illegally, having been deported in 2011. Agents staked out Santos-Portillo’s house, arrested Santos-Portillo. and took him to an ICE office, where he was fingerprinted. Agent Swivel then gave Santos-Portillo Miranda warnings and interrogated him. Santos-Portillo admitted he was from Honduras, that he had previously been deported, and that he had not obtained permission to return to the U.S. Santos-Portillo was charged with violating 8 U.S.C. 1326(a). At Santos-Portillo’s detention hearing Swivel testified that he neither sought nor secured an administrative arrest warrant to detain Santos-Portillo. Santos-Portillo unsuccessfully moved to suppress all post-arrest evidence, citing 8 U.S.C. 1357(a), which permits warrantless arrests only if agents have probable cause and have a “reason to believe . . . there is [a] likelihood of the person escaping before a warrant can be obtained.”Santos-Portillo was convicted and deported again. The Fourth Circuit affirmed. Section 1357(a) does not authorize courts to suppress evidence for violations of the provision. Based on a “proper respect for Congress’s role in determining the consequences of statutory violations,” the court rejected a request to exercise its discretion to create a suppression remedy. View "United States v. Santos-Portillo" on Justia Law

After being placed in removal proceedings, petitioner sought a U visa. However, petitioner could not acquire the visa without a waiver of inadmissibility. Petitioner requested that waiver from USCIS, but USCIS denied the request.The Fourth Circuit granted the petition for review of the BIA's decision affirming the IJ's order of removal, concluding that the DOJ's regulations empower the IJ to consider petitioner's application for an inadmissibility waiver under 8 U.S.C. 1182(d)(3)(A)(ii). The court explained that an IJ's ability to grant a section 1182(d)(3)(A)(ii) waiver is consistent with the statutory and regulatory scheme, which entrusts IJs with the responsibility to determine a petitioner's admissibility in removal proceedings, as well as the forms of relief available. The court remanded for the IJ to determine what relief, if any, to which petitioner is entitled, including whether an inadmissibility waiver is appropriate. View "Jimenez-Rodriguez v. Garland" on Justia Law

After petitioner was convicted of drug and firearm offenses in Georgia, the state pardoned him. However, DHS sought to remove petitioner based on his convictions before the pardon. The IJ ordered petitioner's removal and the BIA dismissed the appeal.The Fourth Circuit dismissed in part and denied in part the petition for review, concluding that petitioner failed to exhaust his argument that pardoned offenses do not qualify as convictions under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. The court also concluded that a pardon waives only the removal grounds specifically enumerated in the Act, and petitioner's pardon does not waive all of the removal grounds proven by the government. View "Tetteh v. Garland" on Justia Law