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

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

The Fourth Circuit affirmed the district court's dismissal of an action brought by former ICE civil detainees, seeking wages owed under the Fair Labor Standards Act (FLSA) for work performed while detained. The district court dismissed based on the grounds that this circuit and others have declined to extend the FLSA to custodial settings.The court concluded that appellants' claims are foreclosed by this circuit's precedent and the well-established principles governing the interpretation of the FLSA. The court explained that the FLSA was enacted to protect workers who operate within "the traditional employment paradigm," and persons in custodial detention—such as appellants—are not in an employer-employee relationship but in a detainer-detainee relationship that falls outside that paradigm. The court noted that the FLSA was a congressional creation, and its expansion is a matter for Congress as well. The court explained that what appellants propose is a fundamental alteration of what it means to be an "employee," and if Congress wishes to apply the FLSA to custodial detentions, it is certainly free to do so. View "Ndambi v. CoreCivic, Inc." on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The court concluded that the Board erred in adopting the IJ's rationale regarding the corroborating evidence in this case; the Board committed legal error in concluding that petitioner had not established past persecution; and the Board committed legal error in concluding that petitioner had not established a nexus between her persecution and her particular social group. The court explained that the evidence established that petitioner's relationship with her husband's nuclear family was at least one central reason for her persecution and, likely, was the dominant reason. The court remanded for the Board to further consider petitioner's asylum claim so that she may receive the benefit of the presumption that she has a well-founded fear of future persecution if she returns to Honduras. View "Arita-Deras v. Wilkinson" on Justia Law

The Fourth Circuit granted a petition for review of the BIA's decision dismissing petitioner's appeal of the denial of her requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang's extortion and other demands.The court rejected the Board's "excessively narrow" view of the nexus requirement, and concluded that petitioner established that her familial ties were one central reason for her persecution. In this case, the record conclusively establishes a nexus between the death threats made against petitioner and her ties to her nuclear family. The court also concluded that the record conclusively establishes that the Guatemalan government was unable or unwilling to control petitioner's persecutors. Accordingly, the court remanded to the Board to reconsider petitioner's claims. View "Diaz De Gomez v. Wilkinson" on Justia Law

An alien may seek to avoid deportation by showing a clear probability that, if deported, he will be persecuted because of his race, religion, nationality, political opinion or membership in a particular social group. If an alien claims he will be persecuted because of his membership in a political social group, that political social group must be "particular."The Fourth Circuit granted the petition for review in part and remanded the BIA's final order of removal, concluding that the BIA's determination that "Salvadoran MS-13 members" lacks particularity is unreasonable. In this case, the BIA's description of the particularity requirement in Matter of W-G-R-, 26 I&N Dec. 208, 221–22 (BIA 2014), impermissibly conflates it with the social distinction requirement; the BIA's flawed particularity articulation informed its rejection of the political social group in W-G-R-; and the BIA unreasonably grounded its rejection of the political social group in W-G-R- in part on the fact that it could further subdivide the group in any number of ways. Therefore, the court remanded petitioner's withholding claim for the BIA to consider the IJ's other holdings with respect to that claim. However, because the record does not compel a different understanding of the evidence, the court denied the petition for review of petitioner's claim under the Convention Against Torture. View "Amaya v. Rosen" on Justia Law

Plaintiffs, aliens unlawfully in the United States seeking U-Visas, filed suit alleging that DHS unlawfully withheld or unreasonably delayed adjudication of their U-Visa petitions and their applications for work authorization pending U-Visa approval.The Fourth Circuit held that it lacked the power to review plaintiffs' work-authorization claims here because the agency is not required to adjudicate plaintiffs' requests. The court explained that, under the Administrative Procedure Act and All Writs Act, it can only compel faster agency action if the agency is required to act. In this case, neither congressional statutes nor agency regulations compel the agency to adjudicate these requested pre-waiting-list work authorizations. However, the court may review plaintiffs' claim that DHS unreasonably delayed adjudicating their U-Visa petitions. Furthermore, plaintiffs have pleaded sufficient facts to avoid dismissal of their claim for unreasonable delay in placing them on the waiting list. Accordingly, the court dismissed plaintiffs' claims relating to their requests for pre-waiting-list work authorization and remanded plaintiffs' claim relating to U-Visa adjudications. View "Fernandez Gonzalez v. Cuccinelli" on Justia Law

Resettlement agencies filed suit challenging President Trump's Executive Order 13,888, which drastically alters the system by which the federal government resettles refugees across the United States. The order creates an "opt-in" system requiring that both a state and a locality provide their affirmative consent before refugees will be resettled there. Plaintiffs challenge the Order and notice implementing the order, asserting that they violate the Refugee Act, principles of federalism, and the Administrative Procedure Act.The Fourth Circuit held that the district court did not abuse its discretion in granting a preliminary injunction prohibiting enforcement of the Order and Notice. The court concluded that plaintiffs have demonstrated that they are likely to succeed on their claim that the Order and Notice violate the carefully crafted scheme for resettling refugees that Congress established in the Refugee Act. The court explained that, at bottom, the consent requirement in the Order and Notice is "incompatible with the overall statutory scheme governing" the refugee resettlement program. Furthermore, the court's conclusion regarding the many infirmities of the consent requirement is not altered by the government's reliance on the so-called "savings clause" of the Order. The court also concluded that the record supports the district court’s award of preliminary injunctive relief under the remaining factors of Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). The court affirmed the district court's judgment, concluding that the district court did not abuse its discretion in issuing a nationwide injunction. View "HIAS, Inc. v. Trump" on Justia Law

Plaintiff, a United States citizen, and his daughter, a citizen and resident of Sierra Leone, filed suit challenging the denial of their visa to the daughter. The Fourth Circuit affirmed the district court's dismissal of the complaint, holding that the doctrine of consular nonrevieawability plainly prohibits the court from questioning the consular officer's visa determination. The court explained that the Supreme Court has unambiguously instructed that absent some clear directive from Congress or an affirmative showing of bad faith, the government must simply provide a valid ineligibility provision as the basis for the visa denial. In this case, the government met this obligation by providing 8 U.S.C. 1201(g) and 1182(a)(6)(C)(i) (an anti-fraud and misrepresentation provision) as the statutory bases for denial of the visa application. Furthermore, not only did the consular officer provide the applicable statutory provisions as the bases for the visa denial, but the officer went further than necessary by explaining her decisionmaking—she found the daughter had proffered a falsified passport and lied about her age. View "Sesay v. United States" on Justia Law

In 2008, Homeland Security passed rules requiring that employers receive a favorable labor certification from Labor before obtaining a visa. Homeland Security and Labor jointly issued a new series of rules in 2015. Plaintiffs, a group of employers and associations whose members rely on H-2B visas, filed suit challenging Homeland Security's 2008 Rules and the joint 2015 Rules as exceeding the agencies' statutory authority.The Fourth Circuit held that there is standing to challenge the 2008 Rules but the challenge is time-barred; there is standing to challenge the 2015 Program and Wage Rules; and the 2015 Program and Wage Rules are valid exercises of Labor's implied delegation to rulemake as part of its duty as Homeland Security's chosen consulting agency. The court explained that this implied delegation is evident from the statutory circumstances in the Immigration and Nationality Act, including the requirement that Homeland Security engage in "consultation with appropriate agencies," the definition of H-2B, and Labor's rulemaking powers for similar visas. The court concluded that, while there are limits on which agencies Homeland Security can choose and on those agencies' ability to rulemake, Labor's 2015 Program and Wage Rules fall within both boundaries. View "Outdoor Amusement Business Association, Inc. v. Department of Homeland Security" on Justia Law