Justia Government & Administrative Law Opinion Summaries

The H-2B visa program allows U.S. employers to seek admission of foreign workers to perform temporary unskilled non-agricultural work by demonstrating that the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II). The employer must obtain certification from the Department of Labor (DOL) that: qualified workers are not available at the “prevailing wage” in the U.S. to perform the employment in question, and the aliens’ employment will not adversely affect wages and working conditions of similarly employed U.S. workers. DOL has often changed its method for calculating prevailing wages without giving notice or an opportunity to comment and without explanation. Opponents challenged 20 C.F.R. 655.10(f) and the 2009 Wage Guidance, which authorized use of privately-funded surveys to set the prevailing wage for certain occupations. A district court ruled in favor of the opponents. Following notice and comment, DOL announced the 2011 Wage Rule, but has continued to use the 2009 Guidance, having postponed the 2011 Rule’s effective date because it was subject to congressional appropriations riders precluding its implementation. The district court dismissed a challenge. The Third Circuit reversed, holding that the case was ripe and that the 2009 Guidance was arbitrary and violated the APA.View "Comite de Apoyo a los Trabajad v. Perez" on Justia Law

Petitioner, an Indonesian citizen, submitted an application for asylum, alleging that she experienced persecution as an Indonesian Christian. An Immigration Judge (IJ) denied Petitioner’s application for asylum and granted her request for voluntary departure, concluding that Petitioner’s account did not rise to the level of past persecution, nor did Petitioner demonstrate that she would be persecuted if she returned to Indonesia. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision and dismissed Petitioner’s appeal. The First Circuit granted Petitioner’s petition for review and vacated the order of removal, holding that the IJ’s and BIA’s legal conclusions were not supported by substantial evidence in the record. Remanded to the BIA to make a well-reasoned determination as to Petitioner’s eligibility for asylum.View "Panoto v. Holder" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, married a United States citizen and obtained permanent resident status on a conditional basis. After Petitioner and his wife divorced, Petitioner applied for a waiver of the joint petition requirement under section 216(c) of the Immigration and Nationality Act. The Immigration Judge (IJ) reviewed and denied the application, concluding that Petitioner’s marriage was not entered into in good faith, as required for the waiver. The IJ granted Petitioner thirty days for voluntary departure. The Board of Immigration Appeals (BIA) dismissed the appeal and extended the time within which Petitioner could voluntarily depart. Petitioner subsequently filed a motion to reopen based on a pending I-130 visa petition filed by his daughter, who was a United States citizen. The BIA denied the motion, finding that Petitioner was not eligible to adjust his status because he failed to voluntarily depart within the time frame established by the IJ and the BIA. The First Circuit denied Petitioner’s petition for review, holding (1) Petitioner was statutorily ineligible for the relief he sought in the motion to reopen; and (2) the BIA did not abuse its discretion in denying Petitioner’s ineffective assistance of counsel claim. View "Taveras-Duran v. Holder" on Justia Law

Rais, born in Pakistan in 1975, entered the U.S. in 2002 to attend school, married a citizen, and applied for adjustment of status to lawful permanent residency. He was convicted of domestic violence against his wife, in 2002, and was granted advance parole, allowing him to leave the U.S. without abandoning his application for adjustment of status. He was paroled back into this country in 2003. In 2004, his application for adjustment of status was denied. Rais married another U.S. citizen in 2005, and again applied for adjustment of status. That application was denied in 2009 because of the domestic violence conviction. An IJ ordered his removal, determining that she lacked jurisdiction to grant adjustment of status under 8 U.S.C. 1255. The BIA affirmed. Rais twice moved to reopen removal proceedings, requesting that proceedings be suspended while the U.S. Citizenship and Immigration Services adjudicates his application for adjustment of status. The BIA denied the first motion on the merits and refused to exercise its sua sponte authority to grant the second, which was untimely and number-barred. Rais sought review of the second denial. The Sixth Circuit dismissed the petition for want of jurisdiction to review the BIA’s decision to refrain from exercising its authority.View "Rais v. Holder" on Justia Law

Petitioner, a native and citizen of the Dominican Republic, was physically removed from the United States to the Dominican Republic in 2002 after he received two state convictions with immigration consequences. In 2006, Petitioner entered the United States without inspection or admission. Petitioner subsequently filed an untimely motion with the Board of Immigration Appeals (BIA) to reopen his proceedings. The BIA denied the motion to reopen. In 2008, Petitioner filed an untimely motion to reconsider the BIA’s decision. The BIA decided to sua sponte reopen the proceedings in 2008 and remanded the record back to the Immigration Judge (IJ). The IJ denied relief and ordered Petitioner’s deportation. Petitioner appealed. In 2012, the BIA determined that its 2008 order sua sponte reopening proceedings was issued in error and ultimately denied Petitioner’s 2008 motion to reconsider. Petitioner petitioned for review of the BIA’s 1012 order effectively denying sua sponte reopening proceedings. The First Circuit dismissed the petition for judicial review, holding that it lacked jurisdiction to review the BIA’s decision to deny reopening removal proceedings sua sponte. View "Guerrero v. Holder" on Justia Law

Khan is a Mohajir: his parents were immigrants into Pakistan when it was partitioned from the British Indian Empire in 1947. Some Mohajirs formed a political party—the Mohajir Qaumi Movement—in response to perceived repression by nonimmigrant locals. Khan joined in 1992 when he was 14 or 15 years old. He distributed flyers, attended meetings, and recruited people to the cause. The group became increasingly violent, however, and many Mohajirs, including Khan, left to join a new, supposedly more peaceful group, MQM-Haqiqi. But this party too resorted to violence, so Khan eventually left. Khan became a target and was repeatedly attacked, kidnapped, and tortured by members of the first party. He fled to the U.S. on a visitor visa, and when it expired, sought asylum and other forms of relief from removal. While his case was pending, he married a U.S. citizen, making him eligible for permanent residency through his marriage. An immigration judge accepted the government’s position, rejecting Khan under the “terrorism bar,” 8 U.S.C. 1182(a)(3)(B)(i)(I); the BIA affirmed. The Seventh Circuit denied review, declining to interpret the “knowledge exception” to the terrorism bar because Khan did not raise it before the BIA. View "Khan v. Holder" on Justia Law

Petitioner, a Somalian national, was charged with removability as an alien present without having been admitted or paroled after inspection. Petitioner filed a second application, the first of which was deemed abandoned, requesting asylum, withholding of removal, and protection under the United Nations Convention Against Torture. An immigration judge denied relief and ordered Petitioner removed to Somalia, premising his decision on an adverse credibility determination stemming from Petitioner’s “pernicious pattern of prevarication.” The Board of Immigration Appeals (BIA) affirmed in all respects. The First Circuit denied Petitioner’s petition for judicial review, holding that BIA articulated specific and cogent reasons in support of its adverse credibility determination. View "Ahmed v. Holder" on Justia Law

Yongguo Lai, a native and citizen of China, appealed a Board of Immigration Appeals (BIA) decision dismissing Lai's appeal of an immigration judge's (IJ) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT). The BIA relied on the IJ's finding that Lai's claim of persecution and torture on account of his Christian religion was not credible. The IJ based her ruling, in relevant part, on Lai's testimony during cross-examination that contained information the IJ found to be missing from and inconsistent with Lai's initial written application and direct testimony, and uncorroborated in one respect. Upon review, the Ninth Circuit concluded the BIA's adverse credibility determination was not supported by substantial evidence. Accordingly, the Court reversed and remanded the case to the BIA for further proceedings. View "Lai v. Holder" on Justia Law

Husband and wife Alberto Martinez Molina and Cristina Ramirez Rivera were Mexican citizens subject to final orders of removal from the United States. After an immigration judge declined to cancel their removal orders, the couple filed a motion to reopen based on ineffective representation of counsel. With the motion, they submitted evidence that they had resided in the United States since 1998. The Board of Immigration Appeals denied the motion, reasoning that the couple had not shown prejudice because the evidence that they submitted: (1) could not overcome discrepancies in their testimony, and (2) was the same or substantially similar to the evidence considered by the immigration judge. The spouses then filed a petition for review, arguing that: (1) the Board abused its discretion in rejecting their claim for ineffective representation, and (2) the immigration judge failed to consider the entire record. As to Ms. Ramirez, the Tenth Circuit affirmed: the Board acted within its discretion in rejecting her ineffective-representation claim, and Ms. Ramirez did not exhaust her claim involving failure of the immigration judge to consider the entire record. As to Mr. Martinez, the Court remanded to the Board: Mr. Martinez did not exhaust his claim involving failure to consider the entire record, but he did exhaust his ineffective-representation claim, and the Board abused its discretion when it mistakenly concluded that the newly submitted evidence was the same or substantially similar to the evidence considered by the immigration judge. View "Molina v. Holder" on Justia Law

Petitioner, a native and citizen of El Salvador, submitted an application for “temporary protected status,” which affords aliens protection from removal from the United States upon a determination that conditions in the alien’s home country prevent the alien’s safe return. The Attorney General designated El Salvador as a country whose nationals may qualify for temporary protected status after two large earthquakes struck the country. The Department of Homeland Security denied Petitioner’s application. Petitioner was later served with a notice to appear for removal proceedings. Petitioner subsequently filed a renewed application for temporary protected status. An Immigration Judge (IJ) denied the application after finding that Petitioner failed to provide “reliable” information that he was in the country soon enough to be eligible for temporary protected status. The Board of Immigration Appeals (BIA) affirmed. The First Circuit vacated the decision of the BIA, holding that the reasons the BIA gave for its decision were not adequate in this instance. Remanded. View "Shul-Navarro v. Holder" on Justia Law