GUZMAN CHAVEZ v. HOTT
Holding that immigrants with reinstated removal orders pending withholding-only proceedings are detained pursuant to 8 U.S.C. § 1226, not 8 U.S.C. § 1231, and as such, are entitled to individual bond hearings.
Holding that immigrants with reinstated removal orders pending withholding-only proceedings are detained pursuant to 8 U.S.C. § 1226, not 8 U.S.C. § 1231, and as such, are entitled to individual bond hearings.
Holding that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) confer on Immigration Judges and the Board of Immigration Appeals the general authority to administratively close cases, and thus the Attorney General's interpretation of those statutory provisions in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018) was in error.
Permitting Petitioner to allege membership in a particular social group not raised in her opening brief due to her attorney's "poor performance" and holding that the Board committed reversible error by (1) failing to explain why Petitioner's purported particular social group did not pass muster; (2) erroneously requiring that Petitioner establish that she could not reasonably relocate in evaluating the existence of past persecution; and (3) failing to address Petitioner's testimony that she sought the help of police but was turned away in determining government acquiesence.
Holding that (1) the BIA's determination that Petitioner was ineligible for asylum and withholding because he failed to show nexus between his past harm and membership in the proposed PSGs of "witnesses of crimes committed by the Zetas" and family of his brother was not supported by substantial evidence; (2) the BIA erred when it found that Petitioner could safely relocate within Guatemala; and (3) the BIA must reconsider the government acquiescence element of Petitioner's CAT claim in light of recent Fourth Circuit precedent.
Holding that (1) when expedited removal is alleged to be an element in a criminal prosecution under 8 U.S.C. § 1326, the defendant must, as a matter of due process, be able to challenge the element if he did not have a prior opportunity to do so, and thus the jurisdiction-stripping provision in 8 U.S.C. § 1225(b)(1)(D) is unconstitutional, but (2) the Defendant in the instant case failed to establish that the expedited removal procedure was fundamentally unfair because he did not demonstrate prejudice.
Holding that (1) Petitioner exhausted his administrative remedies because the BIA had ruled definitively on the sole issue raised in the petition for review, and (2) the Virginia offense of participating in criminal street gang activity, in violation of Va. Code § 18.2-46.2(A), is not categorically a crime involving moral turpitude.
Holding that (1) the fact that Notice to Appear did not provide time and date of hearing did not deprive the immigration court of jurisdiction over Petitioner's proceedings and (2) Board did not abuse its discretion in denying Petitioner's motion to reopen based on eligibility for VAWA relief because Petitioner failed to establish that alleged battery was a central reason for his failure to comply with terms of voluntary departure.
Holding that (1) non-citizen could not collaterally attack his prior removal order in subsequent illegal reentry criminal proceedings because the conditions prescribed by 8 U.S.C. § 1326(d) were not met; (2) the lack of date and time in the notice to appear (NTA) did not implicate immigration court’s adjudicatory authority; and (3) the date and time for subsequent removal hearing need not be included in NTA to initiate removal proceedings.
Holding that the record compelled the conclusion that Petitioner's membership in his family, a particular social group, was at least one central reason that gang members who were trying to extort Petitioner's family attacked and threatened him.
Holding that counsel's alleged deficiency in failing to inform defendant, a legal permanent resident, that he would be automatically deported if he pled guilty to possession with intent to distribute cocaine was prejudicial under Strickland analysis, and thus supported defendant's ineffective assistance of counsel claim.
Holding that (1) BIA failed to consider relevant evidence in determining that Petitioner failed to show nexus, (2) Petitioner's membership in proposed PSG of "unmarried mothers living under control of gangs" and imputed anti-gang political opinion were one central reason for her harm, (3) IJ erred in finding that Petitioner's proposed PSG did not satisfy particularity and social distinction requirements and that she did not establish an imputed political opinion, and (4) IJ and BIA failed to meaningfully engage with evidence regarding likelihood of torture and acquiescence for CAT relief.
Holding that, for Petitioner's applications for asylum, withholding of removal, and CAT protection, the agency disregarded and distorted important aspects of Petitioner’s testimony in concluding that Salvadoran government was willing and able to protect her from her abuser.
Holding that taking custodial indecent liberties with a child under Va. Code § 18.2-370.1(A) constitutes a "sexual abuse of a minor" aggravated felony.
Holding that a Bivens remedy was not available in the context of the Fourth and Fifth Amendment claims of nine Latino men against ICE agents for stops, detentions, and home invasions.
Holding that, following remand, the agency properly denied Petitioner's application for an INA § 216a(c)(4)(B) good faith marriage waiver because (1) the Court lacked jurisdiction to consider the agency's adverse credibility determination and weighing of evidence, (2) Petitioner failed to submit sufficient evidence to satisfy the statutory standard for a good faith marriage, and (3) the Immigration Judge did not violate Petitioner's due process rights at the merits hearing.
Holding that district courts have jurisdiction to review immigration determinations when they constitute a collateral challenge in a criminal proceeding and declining to reach whether a collateral challenge to a Temporary Protected Status (TPS) determination in a criminal proceeding is permissible because the Petitioner failed to assert a due process violation that would render the 2002 adjudication of his TPS application fundamentally unfair.
Ruling that Board’s failure to fully consider Petitioner’s testimony regarding government acquiescence warranted remand of CAT claim.
Holding that the questions of (1) whether the government would acquiesce in torture for the purpose of CAT relief and (2) whether the Petitioner was in the "physical custody" of his father for purpose of derivation of citizenship under the Child Citizenship Act of 2000 are mixed questions of fact and law subject to de novo review by the Board of Immigration Appeals.
Holding that, although there was no IJ removal order in the record, there was ample other evidence in the record to support a finding that the Petitioner had been ordered removed to Honduras in 2009, including fingerprint data that DHS proffered but did not enter into evidence.
Holding that because Petitioner's record of conviction was inconclusive as to whether his 1985 conviction for “sell[ing]/furnish[ing]/etc. marijuana, hash” in violation of Cal. Health & Safety Code § 11360(a) (West 1975) constituted an aggravated felony, he failed to establish eligibility for special rule cancellation of removal under NACARA.
Holding that the agency legally erred in denying Petitioner CAT relief because it (1) failed to aggregate Petitioner's risk of torture from all three of the entities that Petitioner feared and determine whether that sum exceeded 50% and (2) did not meaningfully engage with or consider country conditions evidence as a whole.
Holding that (1) because the Petitioner was removable based on his commission of an aggravated felony or specific firearm offense, whether Petitioner established, for CAT relief, that the government would acquiesce in his torture is a mixed question of law and fact that falls outside of the Fourth Circuit's jurisdiction and (2) the Immigration Judge’s determination that Petitioner failed to establish government acquiescence is subject to de novo review by the BIA.
Pursuant to Administrative Procedure Act (APA) review, upholding USCIS's determination that Plaintiff's temporary ex parte emergency state court custody order did not qualify as a predicate state court custody order for special immigrant juvenile status (SIJS).
*The en banc Fourth Circuit reheard oral argument for this case on September 19, 2019, and will be issuing a new decision*
Holding that a non-citizen's conviction under 8 U.S.C. § 1325(a) constitutes clear and convincing evidence that he engaged in alien smuggling, thus rendering him removable because he was inadmissible at the time of his adjustment to LPR status, and ineligible for an INA § 237(a)(1)(H) waiver of inadmissibility.
Upholding the Board of Immigration Appeals’ finding that Maryland second-degree child abuse pursuant to Md. Code Ann., Crim. Law § 3-601(a)(2), (d) is categorically a crime of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i).
Holding that Petitioner failed to show nexus because he presented no evidence that gangs harassed him in El Salvador on account of his father’s disability.
Ruling that the BIA correctly denied Petitioner's motion to reopen on the basis of reinvigorating her previous claim of past persecution and asserting an individualized fear of future persecution, but that the BIA abused its discretion by failing to address Petitioner's new "pattern or practice" argument and new Cameroonian country conditions evidence indicating increased violence against Anglophones.
Holding that, although the BIA failed to consider materially changed country conditions, namely the worsening oppression of Chinese Christians, the BIA did not err when it denied Petitioners' second motion to reopen because Petitioners did not establish prima facie eligibility for asylum, withholding, or protection under CAT.
Holding that the IJ and the BIA erred when they found that a lack of physical harm indicated that a Honduran asylum-seeker who had received multiple death threats had not suffered past persecution.
Holding that, in proving Petitioner's removability based on his commission of a crime involving moral turpitude within five years of his admission to the United States, the Department of Homeland Security (DHS) had the burden of affirmatively establishing date of Petitioner's admission by clear and convincing evidence, and DHS failed to establish that Petitioner committed crime within five years of his admission.
Holding that the Board of Immigration Appeals abused its discretion in finding that Petitioner was not subjected to past persecution where binding precedent explicitly holds that a threat of death constitutes persecution and recognizing "homosexuals in Benin" as a particular social group.
Holding that, where the Immigration Judge made an explicit finding that the persecutor's motive was not on account of a protected ground, the issue of persecutor’s motive is a factual finding that the BIA reviews for clear error that does not authorize de novo review at the circuit court. Declining to reach whether Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) (extending the “one central reason” standard for asylum to withholding of removal) is legally flawed because the argument was foreclosed by the Immigration Judge's factual finding on the persecutor's motive. Upholding denial of relief under the Convention against Torture because the BIA applied the correct clear error standard of review to the likelihood of torture, a fact-based determination, and the BIA's determination was supported by substantial evidence.
Holding that the Immigration Judge's adverse credibility determination was supported by substantial evidence; the Immigration Judge did not err by improperly discounting the Petitioner's corroborating evidence when denying his application for asylum; the Immigration Judge did not err, on remand, by conducting an additional hearing and taking oral testimony before denying Petitioner's application for asylum; and the Immigration Judge's determination that the Petitioner did not demonstrate a likelihood that he would be tortured if returned to Bangladesh was supported by substantial evidence.
Holding that Maryland conviction for a fourth-degree sexual offense, specifically, “sexual contact with another without the consent of the other” under Md. Code Ann., Crim. Law § 3-308(b)(1), is not categorically a crime involving moral turpitude (CIMT).
Holding that the BIA did not err when it reversed the IJ's grant of protection under the Convention Against Torture, because Petitioner did not show that she would more likely than not be tortured if returned to El Salvador.
Holding that (1) Petitioner's conviction for conspiracy to possess marijuana with intent to distribute, in violation of New Jersey's general conspiracy statute, N.J. Stat. Ann. § 2C:5-2, constituted a federal controlled substance offense, which rendered Petitioner inadmissible, (2) the Board was permitted to consider Petitioner's indictment as evidence of his conviction, and (3) Court lacked jurisdiction to consider Petitioner's unexhausted argument that DHS did not carry its burden of establishing removability because the indictment considered by the Board was not the indictment to which he pled guilty.
Holding that (1) an IJ requiring an asylum-seeker to produce corroboration of of her religion-based claim in the form of an affidavit from her husband was not an abuse of discretion, (2) a Muslim militiaman yelling at the Christian asylum-seeker to stop praying did not constitute past persecution, and (3) the asylum-seeker had demonstrated no well-founded fear of future persecution largely because the Central African Republic is majority Christian. The dissent in this case argues that the agency abused its discretion for several reasons, including failing to consider important country conditions information supporting the asylum-seeker's well-founded fear.
Holding that substantial evidence did not support the Board of Immigration Appeals' determination that the government had established a fundamental change in circumstances to rebut the Petitioner's well-founded fear of persecution for asylum and withholding of removal, and that the agency erred in placing the burden on Petitioner to prove that he could not avoid future persecution through internal relocation, rather than the government to show that he could avoid future persecution by relocating.
Holding that the imposition of $100 in court costs, assessed attendant to a prayer for judgment continued under North Carolina law, does not qualify as a penalty or punishment to constitute a “conviction” within the meaning of the Immigration and Naturalization Act under 8 U.S.C. § 1101(a)(48)(A) and thus, Petitioner was not statutorily barred from cancellation of removal for nonpermanent residents.
Holding that Maryland consolidated theft, Md. Code Ann., Crim. Law § 7-104, is not a crime involving moral turpitude (CIMT) because it punishes de minimis, or minor, takings and is indivisible.
Holding that the BIA did not err in concluding that Petitioner's felony failure to appear conviction under Virginia Code § 19.2-128(B) constitutes an aggravated felony, which rendered him deportable.
Holding that (1) Petitioner's Tennessee conviction for unlawful possession of marijuana with intent to distribute, in violation of Tenn. Code § 39-17-417, constitutes both an aggravated felony and a crime involving moral turpitude (CIMT) and Court thus lacked jurisdiction to review BIA's denial of Petitioner's motion to reopen, (2) Petitioner was ineligible for § 212(c) waiver because one of the CIMT convictions that rendered him removable occurred after the repeal of § 212(c), and (3) Petitioner was ineligible for cancellation of removal for LPRs due to aggravated felony conviction.
Holding that the Maryland offense of conspiracy to distribute a controlled dangerous substance is divisible; as such, the IJ and the BIA properly utilized the modified categorical approach to find that a noncitizen's conviction constituted a controlled substance offense that rendered him removable under 8 U.S.C. § 1227.
Holding that a Salvadoran non-citizen was not a member of the particular social group, "nuclear family of his ex-girlfriend's daughter," even though he financially provided for the daughter for all of her life, because (1) he is not the biological father of the child and (2) it was widely known in his community that he was not the biological father of the child, thus failing to satisfy the social visibility prong.
Holding that, pursuant to Mejia v. Sessions, 866 F.3d 573, 584 (4th Cir. 2017) and 8 U.S.C. § 1231(a)(5), Petitioner, who was subjected to a reinstated order of removal, could not apply for asylum, even though the factual basis for his asylum claim did not exist prior to his removal.
Holding that the Board of Immigration Appeals did not abuse its discretion in denying (1) Petitioner's motion to reconsider the conclusion that Petitioner had abandoned her status as a lawful permanent resident based on her extended trips to her home country and (2) Petitioner's motion to reopen because the evidence Petitioner sought to present could have been previously presented and would not have changed the outcome of the case.
Holding that (1) Petitioner administratively exhausted issue of whether offense was a crime involving moral turpitude (CIMT) despite making more nuanced points and citing new cases for the first time on petition for review and (2) Virginia obstruction of justice pursuant to Va. Code Ann. § 18.2- 460(A) does not constitute a CIMT because it does not categorically involve turpitudinous conduct, and (3) ordering Government to facilitate Petitioner's return to the United States to restore him to his pre-removal status and effectuate judicial review.
Holding that, for purposes of CAT relief, generalized expert and country conditions evidence is insufficient to establish probability of torture and government acquiescence to torture by Salvadoran gangs.
Holding that USCIS did not abuse its discretion when it denied a Special Immigrant Juvenile Status (SIJS) application because the applicant provided a temporary rather than a permanent custody order that did not reflect the state court's factual findings, even though the applicant later submitted a second permanent custody order that complied with USCIS requirements.
Holding that Petitioner's South Carolina domestic violence conviction constitutes a crime of violence under 8 U.S.C. § 16(a) and thus rendered him ineligible for cancellation of removal.
Declining to apply full exclusionary rule to immigration proceedings and upholding agency's denial of Petitioner's motion to suppress statements he made to police officers and ICE agents admitting that he was without status because Petitioner failed to establish an egregious Fourth Amendment or due process violation.
Holding that the Immigration Judge did not abuse his discretion or violate due process in denying a continuance after Petitioner retained new counsel, and upholding the Immigration Judge's denial of Petitioner's application for an 8 U.S.C. § 1186a(c)(4)(B) good faith marriage waiver because (1) the Court lacked jurisdiction to review the agency’s weighing of evidence, (2) the Board applied the correct standard of review, and (3) Petitioner’s evidence failed to satisfy the statutory standard for a good faith marriage.
Ruling that Board erred in concluding that Maryland sexual solicitation of a minor, Md. Code Ann., Crim. Law § 3-324, is a crime involving moral turpitude (CIMT), where, after Petitioner pled guilty to the offense, the Board reversed its prior precedent to hold that offense was a CIMT without acknowledging or explaining its change in position.
Ruling that substantial evidence supports the IJ and BIA finding that a Salvadoran non-citizen had failed to establish the requisite nexus for withholding of removal because he did not show that extortion letters from gang members were on account of his status as a former police officer.
Ruling that the proposed particular social group "Honduran women evading rape and extortion" is not legally cognizable because it does not meet the particularity and social visibility requirements.
Holding that the agency abused its discretion when it failed to consider all of the In re Hashmi factors in denying a non-citizen's motion for a continuance due to DHS's delay in adjudicating an I-130 petition filed by the non-citizen's husband.
Ruling that (1) For withholding of removal, Petitioner’s family relationship was a central reason for Petitioner's persecution, which resulted from Petitioner's stepfather’s actions to protect family from gang, (2) Remand was required to consider whether, pursuant to Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), Petitioner demonstrated changed circumstances in the form of the intensification of a preexisting threat of persecution to excuse the untimeliness of his asylum application, and (3) Substantial evidence supported the agency's denial of CAT relief.
Holding that the agency did not adequately explain its factual determinations in denying asylum to an LGBTQ Mexican asylum-seeker because it failed to 1) consider whether there is a pattern or practice of harm against LGBTQ individuals in Mexico rising to the level of persecution and 2) give reasons for discounting record evidence that contradicted its conclusion that the asylum-seeker did not have an objectively reasonable fear of return to Mexico.
Holding that, in denying asylum and withholding of removal, agency erred in concluding that Petitioner had failed to show that gang's extortion and threats were on account of her relationship to her father.