Justia Civil Procedure Opinion Summaries

The Ninth Circuit denied a petition for panel rehearing, and denied a petition for rehearing en banc, in a case in which the panel: (1) reversed a judgment of the district court granting Petitioner's habeas petition challenging his continued immigration detention after an initial bond hearing; and (2) held that due process does not require a second bond hearing.Judge Paez issued a statement regarding the court's denial. Judge Paez joined by Judges Murguia, Wardlaw, Gould, Berzon, Koh, Sung, Sanchez, H.A. Thomas, Mendoza, and Desai, wrote that the panel opinion conflicts with Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). View "AROLDO RODRIGUEZ DIAZ V. MERRICK GARLAND, ET AL" on Justia Law

Petitioner, a native and citizen of Mexico, reentered the United States without inspection in 2003. The Department of Homeland Security (“DHS”) ordered him removed to Mexico after reinstating an earlier removal order that had been entered against him in 1994. Petitioner expressed a fear of returning to Mexico. The asylum officer determined that Petitioner did not have a reasonable fear of such harm, and an immigration judge (“IJ”) affirmed that determination. Thirty days after the IJ’s decision—but more than thirty days after the date his removal order was reinstated—Petitioner petitioned for review on several grounds, including that the reasonable fear screening procedures established by federal regulation are inconsistent with the statutory provisions governing withholding of removal. Petitioner agreed that the thirty-day filing deadline is no longer jurisdictional, but still disagrees that his petition was untimely. Petitioner continues to maintain that Ortiz-Alfaro’s holding that petitions for review become ripe upon the conclusion of reasonable fear proceedings remains good law.   The Ninth Circuit denied Petitioner’s petition. The panel held that: (1) the thirty-day deadline for filing a petition for review set forth in 8 U.S.C. Section 1252(b)(1) is a nonjurisdictional rule; (2) Petitioner’s petition for review, which was filed within thirty days of the conclusion of his reasonable fear proceedings, but not within thirty days of the reinstatement of his removal order, was timely; and (3) the reasonable fear screening procedures established by regulation are consistent with the statutory provisions governing withholding of removal. The panel concluded that Petitioner’s petition was timely, however denied the petition on the merits. View "JOSE ALONSO-JUAREZ V. MERRICK GARLAND" on Justia Law

Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application. Petitioner appealed to the Board of Immigration Appeals (BIA), which affirmed the IJ’s credibility decision. In addition to challenging the adverse credibility finding, Petitioner claimed for the first time that the border interview record was improperly admitted into evidence at the IJ hearing. The BIA rejected that argument as waived and also rejected it on the merits. Petitioner petitioned the Second Circuit for review.   The Second Circuit granted in part, denied in part, and vacated the BIA’s decision. The court explained that the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claimed that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. The court explained that in Ramsameachire v. Ashcroft, it cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, the court wrote that immigration judges are required to take such precautions. View "Pomavilla-Zaruma v. Garland" on Justia Law

Petitioner challenged the constitutionality of the appointment and removal process for Immigration Judges and members of the Board of Immigration Appeals (BIA). These officials exercise significant authority within our immigration system, making them officers under the Appointments Clause.   The Ninth Circuit denied the petition. The panel rejected Petitioner’s suggestion that Immigration Judges and BIA members are principal officers who, under the Appointments Clause of Article II, must be nominated by the President and confirmed by the Senate. Rather, the panel concluded that they are inferior officers (whose appointment may be vested in the head of a department) because the Attorney General ultimately directs and supervises their work. Thus, the panel held that the Appointments Clause allows Congress to vest their appointment in the Attorney General. The panel next held that the removal process for Immigration Judges and BIA members satisfies Article II, which requires that officers remain accountable to the President by limiting restrictions on the removal of the President’s subordinates. The panel explained that Attorney General has the power to remove Immigration Judges and BIA members, and that nothing restricts the Attorney General’s ability to remove them. Thus, these officers remain dependent on the Attorney General for their positions—and by extension, on the President. View "FORTUNATO AMADOR DUENAS V. MERRICK GARLAND" on Justia Law

Petitioner and her son entered the United States illegally after fleeing alleged gang violence in Honduras. They sought asylum and related relief but were denied; their appeal to the Board of Immigration Appeals (“BIA”) was likewise dismissed. Petitioner then moved the BIA to reopen her and her son’s removal proceedings. The BIA denied her motion. Petitioner petitioned for a review of that denial.   The Fifth Circuit dismissed the petition in part and denied it in part, explaining that the court lacked jurisdiction over the BIA’s refusal to reopen Petitioner, and it otherwise rejects her claims on the merits. The court explained that there is no per se rule that every family-based PSG is cognizable. Congress did not make persecution based on “family” a statutorily enumerated ground for asylum or withholding of removal. The court wrote that Petitioner was required to put forward at least some evidence of the social distinction of her son’s nuclear family in Honduran society. Because she did not, she failed to make out a prima facie case of eligibility for withholding of removal or asylum. The consequence is that she failed to demonstrate any prejudice caused by allegedly ineffective counsel. The BIA did not err in denying her motion to reopen proceedings on her withholding-of-removal and asylum claims. Moreover, the court explained that attempting to raise a due process claim through an argument about the BIA’s failure to reopen sua sponte does not bring the claim within the court’s jurisdiction. View "Garcia-Gonzalez v. Garland" on Justia Law

Petitioner, a native and citizen of Albania, entered the United States in 2001. He remained in the country until 2008 when he was ordered removed. In 2015, Petitioner was charged with federal bank fraud and aggravated identity theft. In 2016, he was convicted of those charges after pleading guilty and sentenced to 44 months in prison. Based on Petitioner’s convictions, in August 2019, the Department of Homeland Security (“DHS”) began removal proceedings against Petitioner. And also, because of those convictions, in September 2019, DHS moved to terminate his asylum status. Petitioner conceded he was removable based on the bank fraud and identity theft proceedings but requested the IJ waive those grounds for his removal. Petitioner also applied to adjust his status to lawful permanent resident. And he separately sought withholding of removal and protection under the Convention Against Torture (“CAT”). The IJ denied Petitioner’s request for a waiver. Petitioner asked the Fourth Circuit to grant his petition for review and vacate the BIA’s decision determining that the termination of his asylum status renders him ineligible to seek an adjustment of status to a lawful permanent resident under Section 1159(b).   The Fourth Circuit denied the petition. The court concluded that Section 1159(b) unambiguously precludes an alien whose asylum status has been terminated from adjusting to lawful permanent resident status. On that basis, Petitioner’s argument fails at step one of the Chevron test. Since Petitioner’s asylum status had been terminated at the time he sought to adjust to lawful permanent resident status, he was not eligible for that adjustment. View "Tiger Cela v. Merrick Garland" on Justia Law

Plaintiff filed a petition to have her husband classified as her immediate relative so that he would be eligible to adjust his immigration status. The Secretary of the Department of Homeland Security approved the petition but later revoked that approval because Plaintiff’s husband had entered a previous marriage for the purpose of evading immigration laws. Plaintiff sought judicial review of the Secretary’s marriage-fraud determination. The district court dismissed her complaint for lack of subject-matter jurisdiction because it determined that Plaintiff’s complaint challenged a discretionary decision.   The Eleventh Circuit affirmed the judgment in favor of the Secretary and Director. The court explained that Plaintiff asserted that the Secretary reached the wrong outcome when he determined that there was good and sufficient cause to revoke the approval of her petition. The court wrote that the agency has articulated a standard to guide its evaluation of whether good and sufficient cause exists. But the court explained it cannot review Plaintiff’s complaint that the Secretary reached the wrong conclusion in her case. The sole statutory predicate for revocation is that the Secretary deem that there is good and sufficient cause. That the Secretary has, in his discretion, created additional standards to explain what constitutes good and sufficient cause and linked that determination in Plaintiff’s case to the marriage-fraud provision does not alter the bar on judicial review of the Secretary’s discretionary decision. View "Amina Bouarfa v. Secretary, Department of Homeland Security, et al" on Justia Law

Petitioner is a native of El Salvador. He first entered the United States around 2003 and was ordered removed in 2007. He then returned three more times—in 2010, 2018, and 2019. This appeal concerns his 2019 visit. In September 2019, the federal government reinstated Petitioner’s 2007 removal order. Petitioner sought withholding of removal and CAT relief. An immigration judge denied his application and, on April 27, 2022, the BIA dismissed his appeal. Petitioner petitioned for review on May 26, 2022.   The Fifth Circuit dismissed Petitioner’s petition for lack of jurisdiction. The court explained that Congress has limited the court’s jurisdiction to final orders “concluding that the alien is deportable or ordering deportation.  And it imposed another condition: the petition must be filed within 30 days of that order. The BIA’s denial of Petitioner’s application for withholding of removal and CAT relief is not a final order of removal. And his petition is untimely because it was filed over 30 days after his reinstatement order became final. View "Argueta-Hernandez v. Garland" on Justia Law

The Ninth Circuit denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration in a case in which the panel held that: (1) subject only to a very limited form of habeas corpus review that is inapplicable in this case, Section 242 of the Immigration and Nationality Act (“INA”), “clearly and unambiguously” precludes judicial review of expedited removal orders, even with regard to constitutional challenges to such orders; and (2) as applied in this case—which involved an arriving alien with no previous ties to the United States—that denial of all judicial review was constitutional. View "HEVER MENDOZA LINARES V. MERRICK GARLAND" on Justia Law

In 2019, Appellant filed a Form I-140 petition for a work visa under 8 USC Sec. 1153(b)(2) and Form I-485 applications for himself and his spouse to adjust their immigration statuses. Appellant's I-140 petition asserted that he satisfied the requirements to obtain a national-interest waiver under Sec. 1153(b)(2)(B)(i). USCIS declined to grant Appellant's request and denied his request for reconsideration.Appellant sued the US government, challenging the denials of his I-140 petition, his motion for reopening or reconsideration, and his I-485 applications. The Government moved to dismiss Appellant's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the jurisdictional bar in 8 USC § 1252(a)(2)(B)(ii) applies to national-interest waiver denials. The district court dismissed Appellant's case, citing a lack of subject-matter jurisdiction.On appeal to the Fifth Circuit, Appellant claimed the district court erred in concluding that Sec. 1252(a)(2)(B)(ii) bars jurisdiction over the denial of an I140 petition. Joining the Ninth, Eleventh, Third and D.C. Circuits, the court affirmed, finding Sec. 1153(b)(2)(B)(i) “expressly and specifically vest discretion in the Attorney General” to deny national-interest waivers. Thus, the jurisdiction bar in Sec. 1252(a)(2)(B) applies. View "Flores v. Garland" on Justia Law