Justia Government & Administrative Law Opinion Summaries

This case required the First Circuit Court of Appeals to decide, for the first time, whether section 1101(a)(42)(B), a statute enacted to pave the way for asylum for victims of China's coercive population control policies, extends automatically to a spouse of a person forced to undergo an abortion. Petitioner, a Chinese national, petitioned for asylum, seeking to remain in the United States because of, among other things, his wife's forced abortion. Petitioner argued he was entitled to per se refugee status under 8 U.S.C. 1101(a)(42)(B) "as a person who has been forced to abort a pregnancy." The immigration judge rejected this argument, and the board of immigration appeals affirmed. The First Circuit Court denied Petitioner's petition for judicial review after joining several of its sister circuits in holding that, given the language of the relevant statute and the Attorney General's reasonable interpretation of it, the agency did not err in refusing to grant Petitioner's per se refugee status on the basis that the Chinese government had compelled his wife to undergo a forced abortion. View "Dong v. Holder" on Justia Law

Petitioner, a native and citizen of Venezuela, sought review of a final order of the Board of Immigration Appeals (BIA). The order upheld both an immigration judge's (IJ) determination that Petitioner's asylum application was time-barred and the IJ's denial of his application for withholding of removal on the merits. The First Circuit Court of Appeals (1) dismissed as to the asylum claim, holding that it lacked jurisdiction to review that decision, as the Court is without jurisdiction to review agency findings regarding timeliness of an asylum application unless the petitioner challenges the decision on constitutional or legal grounds; and (2) denied as to the claim for withholding of removal, as substantial evidence supported the BIA's determination. View "Cabas v. Holder" on Justia Law

On January 4, 2010, an immigration judge (IJ) denied Petitioner's application for asylum, withholding of removal, and withholding under the Convention Against Torture. The board of immigration appeals (BIA) affirmed this denial on September 8, 2011. Petitioner petitioned for review of the BIA's decision. The First Circuit Court of Appeals denied the petition, holding that the IJ and BIA did not err by (1) concluding that Petitioner's past treatment on Ukraine did not rise to the level of persecution; and (2) concluding that Petitioner had failed to establish the requisite objective basis that a reasonable person in her circumstances would fear persecution. View "Rebenko v. Holder" on Justia Law

Petitioner Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three, and became a lawful permanent resident in 1992. In 1994, when he was sixteen, he shot and seriously injured a gang member. He pled guilty to attempted murder in the second degree and to unlawful possession of a firearm by a juvenile. After a successful post-conviction ineffectiveness of counsel petition, the state district court amended Petitioner's guilty plea to first degree assault and crime of violence with a deadly weapon. In 1996, while Petitioner was in juvenile detention, the Immigration and Naturalization Service issued a show cause order, charging Petitioner as deportable because of his criminal conviction. The immigration proceedings were then delayed for several years, while Petitioner was released and successfully completed his parole. Petitioner conceded deportability but requested a section 212 waiver which was then available as a form of discretionary relief under federal law and an adjustment of status. Both forms of relief were granted by the IJ and then denied by the BIA. Petitioner appealed the BIA's decision and order of deportation on three grounds: (1) the procedural regularity of the BIA decision as a collateral attack on the IJ's waiver decision; (2) the merits of the BIA's decision to reverse the IJ's waiver, arguing that it conflicted with the Supreme Court's decision in "Judulang v. Holder," (132 S. Ct. 476 (2011)); and (3) the BIA abused its discretion in denying him an adjustment of status based on his marriage to an American citizen. Upon review, the Tenth Circuit found the BIA was not precluded from reviewing the IJ's waiver decision, but we must remand to the BIA so that it may evaluate its decision in light of the Supreme Court's ruling in "Judulang." The Court affirmed the BIA's discretionary denial of adjustment of status. View "Sosa-Valenzuela v. Holder, Jr." on Justia Law

Defendant Armando Ramos attacked the legal validity of his sentence for receipt of child pornography. Defendant was indicted by a federal grand jury in Kansas on two counts relating to the receipt and possession of child pornography. The charges arose out of an investigation that began with a tip from German authorities who were "policing the [e]Donkey peer-to-peer file sharing network and observed a known child pornography file available for download" at an IP address that was later traced by Immigrations and Customs Enforcement (ICE) to Defendant. ICE executed a search warrant at Defendant's home, seizing multiple computers, hard drives, DVDs, and CDs containing thousands of images and videos of child pornography. During the search, an investigator interviewed Defendant who then admitted to being the sole user of the computers in his home, and to using eMule, the "specific program that . . . access[es] the [e]Donkey network," as a vehicle for obtaining child pornography. On appeal, Defendant raised multiple objections to his presentencing report (PSR). He also raised an issue that the mandatory-minimum provision of 18 USC 2252(b)(1) was unconstitutional. Upon review, the Tenth Circuit rejected Defendant's challenge to the sentence he received, and concluded that that he could not establish that his sentence was affected by application of the mandatory minimum of 18 USC 2252(b)(1). View "United States v. Ramos" on Justia Law

Petitioner Shahid Iqbal appealed a district court's denial of his motion for attorney fees under the Equal Access to Justice Act (EAJA). Petitioner is a native and citizen of Pakistan who acquired lawful permanent residency in the United States in 2002. On July 11, 2008, he filed an application for naturalization with the United States Citizenship and Immigration Services (USCIS). On August 17, 2009, he successfully passed a naturalization examination, but the USCIS did not adjudicate his application due to an ongoing background check by the FBI. On June 18, 2010, still having received no decision on his application, Petitioner filed this action. On September 13, 2010, the USCIS denied Petitioner's naturalization application on the ground that he had not met the physical presence requirements for naturalization. Based on the denial, Defendants filed a motion to dismiss Petitioner's petition as moot. In the alternative, Defendants asked the district court to decline jurisdiction in deference to the agency’s expertise in adjudicating naturalization applications. The district court denied the motion to dismiss, concluding that once Petitioner filed his petition, the USCIS no longer had jurisdiction to adjudicate the naturalization application. On April 5, 2011, Petitioner filed his motion for an award of attorney fees and expenses under EAJA, arguing that he was a prevailing party because the district court denied the government’s motion to dismiss for lack of jurisdiction and remanded the case to the USCIS for a determination of the merits of his naturalization application. He also argued that the government’s delay on his application and its position on its motion to dismiss for lack of jurisdiction were not substantially justified. The district court denied the fee motion, concluding that Petitioner was not a prevailing party because he had obtained no judicial determination on the merits of his claims, the court had not ordered the USCIS or the FBI to act within a certain period of time, and the court had not retained jurisdiction after remanding the matter to the agency. Upon review, the Tenth Circuit affirmed the district court's decision to deny attorney's fees. View "Iqbal v. Holder, et al" on Justia Law

Petitioner Odulene Dormescar, a native and citizen of Haiti, appealed a removal order issued by an immigration judge because he had been convicted of an aggravated felony. The Board of Immigration Appeals dismissed his appeal of that order. He has petitioned the Eleventh Circuit for review. His petition presented three issues: (1) whether the Eleventh Circuit had subject matter jurisdiction; if it did, then the second (2) issue was whether res judicata barred the Department of Homeland Security’s proceedings against Petitioner based on the aggravated felony conviction. If it did not, the third (3) issue was whether the Department had the authority to amend the notice to appear to charge Petitioner as "admitted to the United States, but . . . removable" when he was originally charged as an inadmissible "arriving alien." Upon review, the Eleventh Circuit concluded that it had jurisdiction over this case, res judicata did not apply, and that the Department had the authority to amend the notice to appear to charge Petitioner as admitted but removable. View "Dormescar v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Mexico, entered in the United States in 1999. She had authorization to remain for a temporary period, not to exceed six months, but she remained beyond that period without authorization. In 2007 Petitioner was convicted of unlawful possession of fraudulent identifying information. The Department of Homeland Security then charged Petitioner with removability as an alien who remained in the United States for a time longer than permitted. Petitioner filed an application for cancellation of removal for nonpermanent residents, which an immigration judge denied. The Board of Immigration Appeals dismissed Petitioner's appeal. The Fifth Circuit Court of Appeals denied Petitioner's petition for review, holding (1) Petitioner's ineligibility for cancellation of removal depended solely on whether her prior state-court conviction was for a crime involving moral turpitude; and (2) Petitioner's offense was one of moral turpitude, and therefore, Petitioner was ineligible for cancellation of removal. View "Nino v. Holder" on Justia Law

Petitioner John Waldron, a native and citizen of the United Kingdom, had his permanent resident status in the United States terminated because of his conviction for second degree assault. Petitioner sought an adjustment of status and a waiver of inadmissibility. An immigration judge (IJ) concluded that Petitioner was eligible for relief, granting both Petitioner's adjust of status and the waiver. The Board of Immigration Appeals (BIA) reversed and ordered Petitioner removed to the United Kingdom. The Eighth Circuit Court of Appeals reversed, holding that the BIA erred by failing to review the IJ's factual findings for clear error. Remanded.

Petitioner, a native and citizen of Israel, entered the United States in September 2005. On September 21, 2006, the government commenced removal proceedings against Petitioner. In response, Petitioner submitted an application for asylum, claiming he feared persecution if he were to return to Israel. Because Petitioner submitted this application after removal proceedings were commenced, his application was also considered a request for withholding of removal. An immigration judge (IJ) found against Petitioner. The board of immigration appeals (BIA) affirmed. The Eighth Circuit Court of Appeals affirmed, holding that the BIA did not err in (1) accepting the IJ's conclusion that Petitioner did not meet his burden of proof for establishing his claim of asylum and withholding of removal; and (2) denying Petitioner's motion to reopen and remand.