Immigration Appellate Review

Purple Winter Mountain Landscape

THIRD CIRCUIT

February 2021:
Sunuwar v. Att’y Gen. United States, No. 20-2091 (3d Cir. Feb. 25, 2021)

Headnotes:

Asylum, CAT, “particularly serious offense,” substantial evidence, credibility

Summary:

The Petitioner challenged the decision of the BIA denying his applications for asylum, withholding of removal, and the Convention Against Torture (CAT). He came to the United States in 2017, and in 2018, he was convicted of beating and strangling his wife as well as contempt for violating a protection-from-abuse order. The Department of Homeland Security (DHS) then initiated removal proceedings. The Petitioner alleged in his asylum application that, if he were deported, he would be “kidnapped, tortured, or killed” by the Maoist party if he did not join them, but he alleged no past harm.


The Immigration Judge (IJ) denied the Petitioner’s application, finding that the Petitioner’s “conviction for strangulation was a particularly serious crime, rendering him ineligible for all forms of relief” except for CAT. The IJ also found that the Petitioner was deportable for violating the protection-from-abuse order. Finally, the IJ found that neither the Petitioner nor his wife testified credibly in the hearing, based on three inconsistencies. Thus, the IJ reasoned that the lack of credibility undermined the Petitioner’s CAT claim. The Petitioner challenged the IJ’s findings that he was deportable, that he committed a particularly serious crime, and that his testimony was not credible.


The Third Circuit held, first, that there was no error in the IJ’s deportability finding because the Petitioner admitted before the IJ that he had violated the no-contact provision of the order, and such order qualified as a “protection order.” Second, it held that “[s]trangulation is, of course, a violent crime, and we see no reason to doubt the agency’s determination that its elements potentially make [the Petitioner’s] offense a particularly serious crime.” It held that, even though the Petitioner’s sentence for the strangulation offense was “relatively minor compared to the maximum sentence authorized,” that did not prevent his offense from being a particularly serious crime. Thus, it held that the IJ’s decision was not erroneous. As for the IJ’s credibility determination, the Court held that it was reasonable and supported by substantial evidence and thus, the Court would not disturb it. It therefore denied the petition for review.

Takeaway:

If your client has a conviction for strangulation or another crime that could be considered a particularly serious crime, the length of time the client spent in jail/prison does not carry weight if the crime of conviction itself was particularly serious. And any form of relief, including CAT, can be denied on the basis of an adverse credibility finding.

January 2021:
Nkomo v. Att’y Gen. of United States, 986 F.3d 268 (3d Cir. 2021)

Headnotes:

Motion to Reopen; Equitable Tolling; I-130 Petition for Alien Relative

Summary:

On petition for review of an order from the Board of Immigration Appeals (“BIA”) denying as untimely Petitioner’s motion to reopen removal proceedings. The Petitioner, after receiving an approved I-130 petition, moved to reopen her removal proceedings so that she could apply for relief under INA Section 212(h). She argued that changed circumstances warranted reopening her case because, although she made multiple requests, the relief she sought had not been available earlier due to “the refusal of USCIS to conduct and interview and adjudicate the petition.” The BIA denied the motion as untimely, noting that no exceptional circumstances or other “certain exceptions” warranted reopening, and that it did “not have the authority to grant relief solely on equitable or humanitarian grounds.”

The Petitioner argued before the Fourth Circuit that the BIA erred in failing to consider whether her motion was entitled to equitable tolling. The government argued that the Court lacked jurisdiction to consider the issue of equitable tolling because Nkomo failed to raise it before the BIA and thus, it was unexhausted.

The Third Circuit stated that the Petitioner was “not required to state precisely the alleged error” or any “magic words” to sufficiently raise an issue, holding that the Petitioner “did enough to raise the equitable tolling issue before the BIA.” The Court further held that, even if she hadn’t, the BIA considered the issue sua sponte and, thus, the claim was exhausted. The Court further held that the BIA “has authority to equitably toll the deadline for motions to reopen,” noting that it was “perplex[ed]” by the BIA’s statement that it did not have such authority. The Court accordingly held that the BIA erred in failing to consider the Petitioner’s request for equitable tolling. It therefore vacated the BIA’s order and remanded for further proceedings.
Takeaway:

If you find that you either haven’t expressly raised an issue that you wanted to preserve for appeal or you have done very little to raise that issue, this case presents great law for you to argue that you still sufficiently raised it. Further, if you have clearly not raised an issue, but the lower court considered it anyway sua sponte, this case states that the issue is sufficiently exhausted. This case would be particularly helpful in the context of a motion to reopen, on the issue of equitable tolling.

FOURTH CIRCUIT


February 2021:
Diaz de Gomez v. Wilkinson, 987 F.3d 359 (4th Cir. 2021)

Headnotes:

Asylum; nexus; unwilling or unable to protect; familial ties

Summary:

Rejecting the BIA’s “‘excessively narrow’ view of the nexus requirement,” the Court concluded that the Petitioner sufficiently “established that her familial ties were one central reason for her persecution.” The Court noted that, as it has previously held, there can be multiple central reasons for persecution.

The Court also concluded that the evidence presented (specifically, Petitioner’s credible testimony about her attempts to seek police help from two different authorities combined with country condition information about the extent of gang corruption in government) “conclusively show[ed]” that the Guatemalan government was unable or unwilling to control the Petitioner’s persecutors.

Takeaway:

This case reiterates the “one central reason” nexus standard and demonstrates that, even where there are two central reasons for persecution — here, familial ties and gang extortion — so long as the protected ground (familial ties) is one of them, that is sufficient to show nexus for an asylum case. It also stands for the proposition that, where: (1) the petitioner has reported an incident to the police and they fail to take action, (2) the petitioner is afraid to further report to police for fear of being killed, and (3) the country condition evidence demonstrates that police are corrupt and legitimizes the petitioners’ fear, the petitioner has shown the country unwilling and unable to protect her from the persecution she suffered.

January 2021:

Sesay v. United States, 984 F.3d 312 (4th Cir. 2021)

Headnotes:

Consular nonreviewability; visa denial

Summary:

The Fourth Circuit affirmed the district court’s dismissal of appellants’ complaint under the doctrine of consular nonreviewability. Appellants were a United States citizen and his daughter, a citizen and resident of Sierra Leone, who challenged the denial of a visa for the daughter.

This Court held that the doctrine of consular nonreviewability “plainly prohibit[ed]” it “from questioning the consular officer’s visa determination.” It held that, unless there is a “clear directive from Congress or an affirmative showing of bad faith,” the government need only “provide a valid ineligibility provision as the basis for the visa denial,” which the government did in this case. Specifically, the Court explained that, when the government, in denying a visa application, provides notice of the statutory provision under which the visa was denied, such provided provision is considered a “facially legitimate and bona fide reason” for the denial.

Accordingly, the Court declined to “peer behind the decisional curtain and assess the wisdom of the consular determination.” It held that the government’s cited provisions were “facially legitimate” and that the “appellant’s attempts to establish bad faith” were “nothing more than conclusory allegations.”

Takeaway:

To show bad faith in the government’s decision to deny a visa application, you must show more than conclusory allegations. Otherwise, so long as the government provides the statutory provision under which it denied the visa, it has met its burden of explaining why the visa was denied.

2. Hias, Inc. v. Trump, No. 20-1160, 2021 WL 69994 (4th Cir. Jan. 8, 2021).

Headnotes:

Executive Order 13,888; Refugee Act; refugee resettlement

Summary:

The government appealed from a district court’s issuance of a preliminary injunction enjoining nationwide a 2019 executive order (Executive Order 13,888) that required both state and local governments to give affirmative consent before refugees could be resettled within their jurisdictions. The district court found that the consent requirement was contrary to the Refugee Act’s language, purpose, and history. It also found that plaintiffs would suffer irreparable harm without an injunction because of the “extreme difficulties that the resettlement agencies would face” without one.

The Fourth Circuit upheld the injunction, holding that the district court did not abuse its discretion. It held that the plaintiffs established the likelihood of success of their claim – that the EO violated the Refugee Act – and that they met the remaining requirements for a preliminary injunction.

Takeaway:

The enforcement of EO 13,888 continues to be prohibited. Thus, state and local governments do not need to give consent in order for refugees to be resettled there.

3. Doe 4 by & through Lopez v. Shenandoah Valley Juv. Ctr. Comm’n, No. 19-1910, 2021 WL 129864 (4th Cir. Jan. 12, 2021)

Headnotes:

Unaccompanied alien children (UAC); mental health care; deliberate indifference standard; professional judgment standard

Summary:

The Fourth Circuit reversed and remanded the district court’s grant of summary judgment to Defendant juvenile center on the Plaintiff’s unaccompanied immigrant children’s claim that the Defendant failed to provide adequate mental healthcare.

The Court held that “the district court incorrectly applied a standard of deliberate indifference when it should have determined whether the Commission substantially departed from accepted standards of professional judgment.” Although the government argued that children were placed in SVJC primarily for security reasons, rather than for treatment, the Court held that “the aims of treatment and safety [were] intertwined in this case.” It further held that “the nature of the facility is not dispositive,” but rather, it comes “secondary to the reason a person is confined in it.”

The Court noted that “neither the Commission nor the district court grapple with the fact that this case is about children,” who have “unique psychological needs.” It therefore held that “a facility caring for an unaccompanied child fails to provide a constitutionally adequate level of mental health care if it substantially departs from accepted professional standards.” This standard, the Court explained, requires more culpability than negligence but less than the standard for deliberate indifference.

Additionally, the Court held that the plaintiffs established standing, even if ORR was not named a Defendant. Although the government argued that the plaintiffs’ failure to name ORR as a Defendant caused their claim to lack redressability, the Court held that the requirements of redressability were “not onerous” and that the appellants did not have to show that a decision in their favor would “relieve [their] every injury.” The Court held that, instead they need only show that they would “personally benefit in a tangible way from the court’s intervention.”

The Court reversed the grant of summary judgment and remanded to allow the district court to apply the correct standard and consider evidence relevant to it. Judge Wilkinson dissented, asserting that the deliberate indifference standard was the correct standard to be applied but that, regardless of standard, summary judgment was proper.

Takeaway:

This case can be used to bolster any argument that children should be treated differently than adults regarding duty of care. Further, with regard to redressability, it can be used to argue that a defendant named in a case is sufficient to establish standing where an appellant would tangibly benefit from court intervention.

4. Gonzalez v. Cuccinelli, 985 F.3d 357 (4th Cir. 2021)

Headnotes:

Jurisdiction; work authorization; U Visa petition adjudication

Summary:

Noncitizens unlawfully present in the U.S. argued that DHS unlawfully withheld or unreasonably delayed adjudication of their U-visa petitions and their applications for work authorization pending U-visa approval. The district court dismissed the complaint, and the noncitizens appealed.

The Court held that it lacked jurisdiction to review work authorization claims because USCIS was not obligated to adjudicate work authorization requests. Instead, the statute provides that USCIS “may grant work authorization to any alien who has a pending, bona fide application for a U-Visa.” The Court held that, in enacting this provision, “Congress authorized, but did not require, the agency to grant work authorizations.”

The Court also held that the noncitizens’ claim regarding delayed adjudication of U-visa petitions was subject to judicial review and “must be remanded” because they pled a plausible claim of unreasonable delay. The Court accordingly vacated the dismissal of that claim and remanded to the district court for further proceedings.

Takeaway:

The following alleges a plausible claim: Under the Administrative Procedure Act, the adjudication of a U-Visa petition to determine whether a noncitizen should be placed on the waiting list has been unreasonably delayed after such petition has been pending for over three years. This type of claim “is necessarily fact dependant” and usually should not be resolved at the motion to dismiss stage. Plaintiffs should also plead facts showing that “their interests are weighty, implicate health and welfare, and are harmed by the long wait.” Further, the federal courts do not have jurisdiction to review work authorization claims.

5. Amaya v. Rosen, 986 F.3d 424 (4th Cir. 2021)

Headnotes:

Chevron deference; withholding of removal; particular social group; prior gang membership

Summary:

The applicant, a native and citizen of El Salvador, filed a petition for review of a BIA decision affirming the IJ’s decision denying his petition for withholding of removal and protection under CAT.

The BIA dismissed the applicant’s appeal, deciding that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement.

The Fourth Circuit, assuming the BIA’s decision was entitled to Chevron deference without deciding that issue, held that the BIA’s interpretation of the particularity requirement was unreasonable. It held that the PSG “former Salvadoran MS-13 members” was sufficiently particular and that the BIA’s interpretation of the particularity requirement in Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (holding that former gang membership must be more defined regarding the duration or strength of participation to qualify as a PSG) was erroneous.

Specifically, the Court held that (1) the BIA’s description of the particularity requirement “impermissibly conflates it with the social distinction requirement,” (2) a PSG is sufficiently particular if it is “evident from the group’s description who is in and who is not” in the group and does “not depend on ‘evidence’ or society’s perceptions,” and (3) it does not matter “whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries.” The Court emphasized that the particularity requirement is a legal question rather than an evidentiary question.

Thus, the Court granted in part the petition and remanded the BIA’s final order of removal for the BIA to consider the IJ’s other holdings regarding the PSG claim. However, the Court upheld the denial of CAT relief.

Judge Richardson dissented, determining that Chevron deference applied and the BIA’s finding of no particularity was reasonable.

Takeaway:

This is a great case for going in depth on the particularity requirement for PSG’s. If an IJ has denied your case on the basis of a lack of particularity, check to see if the IJ was impermissibly requiring certain evidence or conflating the particularity requirement with the social distinction requirement. This case also provides a good discussion of Chevron deference. Although the Court didn’t decide the issue, parts of the opinion would bolster an argument that BIA action did not deserve Chevron deference.

ELEVENTH CIRCUIT

February 2021:
Camarena v. Dir., Immigr. & Customs Enf’t, No. 19-13446 (11th Cir. Feb. 18, 2021)

Headnotes:

Regulatory rights; habeas corpus; unlawful presence waiver; 8 U.S.C. § 1252(g); jurisdiction

Summary:

The Petitioners admitted to being subject to valid removal orders but sued when the government moved to execute those orders. Both Petitioners had applied for unlawful presence waivers, which they argued gave them “regulatory rights” to remain in the U.S. while the applications for those waivers were pending. Both Petitioners filed habeas corpus petitions and emergency motions to stay the removal orders in the district court. In both cases, the district court dismissed the petitions for lack of jurisdiction. The Petitioners appealed to the Eleventh Circuit.

The Eleventh Circuit held that the Petitioners’ claims arose “from the government’s decision or action to execute their removal orders.” Id. at *3 (quotation marks omitted). It held that, thus, the Petitioners’ claims “fell squarely within § 1252(g)’s jurisdictional bar.” Id. The Petitioners argued that the Court retained jurisdiction because they were “challenging the government’s underlying authority to execute those orders, rather than the discretion to do so,” and that the waiver process contained a “regulatory right” to stay in the U.S. until the process is resolved. Id. However, the Court held that, because of the clear language in § 1252(g) — that it bars “‘any’ challenge to the execution of a removal order” — no matter how the Petitioners characterized their claims, “they amounted to an attack on the government’s execution of their removal orders.” Id. at *3-4. The Court thus affirmed the district court’s dismissals.

Application:

The federal courts do not have jurisdiction to hear claims that challenge the execution of a removal order. No matter what specific language you use in attempting to do so if the challenge is functional to the execution of a removal order, it will likely be dismissed on jurisdictional grounds.

Categories: 
Related Posts
  • What do I do if I lose my immigration court case? Read More
  • What Can I Do If I Receive a Deportation Order? Read More
  • If You’re Married to a U.S. Citizen You Can Get Your Green Card! Read More
/