Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

The Board of Immigration Appeals found that Uddin, a citizen of Bangladesh, was ineligible for withholding of removal because he was a member of the Bangladesh National Party (BNP). The Board found that the BNP qualified as a Tier III terrorist organization under the “terrorism bar,” 8 U.S.C. 1182(a)(3)(B)(vi)(III). The Third Circuit denied relief with respect to the Board’s ruling dismissing Uddin’s Convention Against Torture claim but remanded his withholding of removal claim. The Board pointed to terrorist acts by BNP members but it did not find that BNP leadership authorized any of the terrorist acts committed by party members. The court joined the reasoning of the Seventh Circuit and the Board in many of its own opinions by holding that unless the agency finds that party leaders authorized terrorist acts committed by its members, an entity such as the BNP cannot be deemed a Tier III terrorist organization. View "Uddin v. Attorney General United States" on Justia Law

Misternovo and his sons (Petitioners) are citizens of Guatemala who first entered the U.S. in 1990, 1998, and 2004, respectively. In 1999, Misternovo filed an application for suspension of deportation or special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) that listed his sons as derivatives. USCIS denied the NACARA application. In 2008, the Department of Homeland Security initiated removal proceedings under 8 U.S.C. 1182(a)(6)(A)(i). The Immigration Judge ruled that Petitioners were removable as charged. Later, in January 2012, Misternovo’s NACARA application received a full merits hearing. An Immigration Judge denied that application, holding that Misternovo had failed to establish that he had timely registered for benefits pursuant to the American Baptist Churches v. Thornburgh settlement agreement; an appeal was dismissed by the BIA. More than two years later, Petitioners filed a motion to reopen based on changed country conditions in Guatemala. The BIA denied the motion. The Third Circuit denied a petition for review. The time bar contained in 8 C.F.R. 1003.2(c) applies to motions to reopen based on a request for withholding of removal under the Convention Against Torture. View "Bamaca-Cifuentes v. Attorney General United States" on Justia Law

Mendoza was born in Honduras in 1989. Mendoza’s father (Martinez) was politically active in the Liberal Party. He routinely spoke out against the National Party. In 2000, a National Party activist assassinated Martinez and wounded Martinez’s wife. In 2002, Mendoza’s uncle was assassinated by a National Party activist. Mendoza was president of the local Liberal Party’s youth division, gave speeches supporting the Party, and worked for the Party during the 2013 national election. He received a message that threatened him with the same fate as his father. Mendoza reported this incident. He was denied a visa to enter the U.S., crossed the border without inspection, and was returned to Honduras. When he was detained after his second entry Mendoza requested asylum or withholding of removal because he feared for his life if returned to Honduras. He was placed into a “withholding only” proceeding. An IJ ordered his removal. The Third Circuit reversed, noting evidence of the politically motivated death threats, inaction on Mendoza’s complaints, a perpetrator and judge who shared a political affiliation in opposition to that of Mendoza, and evidence of a politically corrupt system that failed to reign in politically motivated violence. The Honduran government was unwilling or unable to protect Mendoza; he could not safely return. View "Mendoza-Ordonez v. Attorney General United States" on Justia Law

Ildefonso-Candelario, a citizen of Mexico, entered the U.S. unlawfully, allegedly in 1996. In 2015, he pled guilty in Pennsylvania state court to a misdemeanor count of obstructing the administration of law or other governmental function. Immigration and Customs Enforcement took Ildefonso-Candelario into custody, charging him with being removable as an alien present without admission or parole, 8 U.S.C. 1182(a)(6)(A)(i). At his first hearing, Ildefonso-Candelario stated his intention to seek cancellation of removal. Counsel for ICE suggested that Ildefonso-Candelario’s prior conviction might qualify as a crime involving moral turpitude, which would render him statutorily ineligible for cancellation of removal, 8 U.S.C. 1229b(b)(1)(C). The Immigration Judge issued an initial holding that the offense was “categorically” a crime involving moral turpitude. ICE added a charge of removability for committing a crime involving moral turpitude. The Immigration Judge then ordered Ildefonso-Candelario removed to Mexico. A single member of the BIA upheld the ruling “[f]or the reasons given by the Immigration Judge.” The Third Circuit remanded to the BIA, holding hold that 18 Pa. Cons. Stat. 5101 is not categorically a crime involving moral turpitude. The offense encompasses non-fraudulent as well as fraudulent conduct, such as obstruction by “physical interference or obstacle.” View "Ildefonso-Candelario v. Attorney General United States" on Justia Law

Azcona-Polanco, a citizen of the Dominican Republic, was admitted to the U.S. as a lawful permanent resident in 1972. In 1994, he was ordered removed based upon a conviction for heroin distribution but never left the country. In 1997, Azcona-Polanco was convicted of conspiracy to violate federal narcotics laws and sentenced to 168 months’ incarceration. He was deported in 2009, after his incarceration, but re-entered illegally and assumed an alias, having purchased a citizen’s birth certificate and Social Security card. Azcona-Polanco was arrested and pled guilty to illegal reentry, 8 U.S.C. 1326(a); (b)(2). His sentencing range was 41-51 months. The Guideline range for a term of supervised release was one to three years, with a maximum of three years, 18 U.S.C. 3583(b)(2). Azcona-Polanco was presumptively exempt from supervised release as a deportable immigrant, U.S.S.G. 5D1.1(c). The Presentence Investigation Report and sentencing memorandum noted that presumption. The court sentenced Azcona-Polanco to 41 months’ imprisonment and three years’ supervised release, stating, “in case he does illegally reenter the United States he must report in person to Probation.” Azcona-Polanco did not object to the imposition of supervised release. The Third Circuit affirmed. A district court is permitted to impose a term of supervised release on a deportable immigrant “if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” View "United States v. Azcona-Polanco" on Justia Law

Members of the notorious Salvadoran gang, MS13, shot Serrano-Alberto's brother, leaving him paralyzed; extorted Serrano-Alberto , an acclaimed professional soccer player; and, when he ceased to pay, shot Serrano-Alberto, his nephew, and a neighbor, killing the neighbor and leaving the others in serious condition. Police refused to take a report because Serrano-Alberto did not know the names of the shooters. Fearing reprisal, Serrano-Alberto twice attempted to flee but was returned by Mexican authorities. In 2009-2012, Serrano-Alberto was imprisoned in El Salvador on extortion charges; he was ultimately absolved. Gang members continued to search for him. They shot another his brothers for refusing to divulge Serrano-Alberto’s whereabouts. In 2012, Serrano-Alberto escaped harm in a drive-by shooting by diving under a car. Serrano-Alberto moved multiple times. His mother warned that gang members were continuing to pursue him. In 2014, Serrano-Alberto observed apparent gang members in his new neighborhood and fled to the U.S.He was apprehended and applied for asylum, withholding of removal, and protection under the Convention Against Torture. At his hearing, the IJ was “confrontational, dismissive, and hostile, interrupting and belittling Serrano-Alberto’s testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies.” She ordered removal. The BIA denied relief. The Third Circuit vacated and urged reassignment on remand. The Fifth Amendment protects the liberty of all persons within U.S. borders, including aliens in immigration proceedings who are entitled to a meaningful opportunity to be heard. View "Serrano-Alberto v. Attorney General United States" on Justia Law

Conviction for failing to report murder does not preclude eligibility for withholding of removal. Flores, a Guatemalan native, entered the U.S. illegally. In 2007, she began and ended a relationship Sibrian. Flores returned to South Carolina with a new boyfriend, Perez, in 2008; Sibrian killed Perez. Flores claims she did not report the murder because Sibrian threatened to kill her and her three-year-old daughter. Flores eventually pleaded guilty to accessory after the fact for failing to report the murder. There was no evidence that Flores covered up the homicide, lied to law enforcement, or assisted Sibrian. After serving her prison term, Flores was removed. She re-entered illegally, was arrested for prostitution, and was detained. She stated that she feared returning to Guatemala because: her father wanted to kill her; she had been raped by local gang member following her previous removal; and she feared persecution as a lesbian. The asylum officer determined that Flores had a reasonable fear of persecution. An IJ found that Flores’s accessory conviction rendered her ineligible for withholding of removal and that Flores failed to adequately establish that she would be subjected to torture in Guatemala, as required by the Convention Against Torture. The BIA affirmed. The Third Circuit remanded. Flores’s accessory-after-the-fact conviction is not an offense “relating to obstruction of justice,” nor is it an “aggravated felony” or a “particularly serious crime” under the statute; Flores is eligible for withholding of removal. View "Flores v. Attorney General United States" on Justia Law

Aliens subject to reinstated removal orders are ineligible to apply for asylum. Cazun was detained at the border and expressed fear of returning to Guatemala. An asylum officer made a negative credible fear determination. An IJ affirmed. An expedited order of removal was issued. Upon Cazun’s return to Guatemala, a drug trafficking gang threatened, tortured, and sexually assaulted her. Cazun fled with her two-year-old son. On her attempted re-entry, Cazun was detained. DHS reinstated her previously-entered removal order rather than initiating a new removal process. An IJ again affirmed a negative credible fear determination. Cazun consulted counsel and, claiming psychological trauma, obtained a new interview, Cazun described sexual assault, torture, and threats against her life and her son's life. The officer concluded that Cazun’s testimony was credible and established a reasonable fear of persecution. An IJ granted Cazun withholding of removal and protection under the Convention Against Torture, but would not consider Cazun’s asylum request. The BIA agreed that she was ineligible under 8 U.S.C. 1231(a)(5), which states that aliens who are subject to a reinstated removal order are “may not apply for any relief under [8 U.S.C. Ch. 12].” The Third Circuit upheld the decision, deferring to the BIA’s “reasonable” interpretation of a statute in which Congress did not speak clearly. View "Cazun v. Attorney General, United States" on Justia Law

The Third Circuit remanded a determination that Dutton-Myrie, a citizen of Panama, was ineligible for deferral of removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Board of Immigration Appeals must determine, de novo, whether factual findings that the Panamanian government actively engages against criminal gangs and that Dutton-Myrie did not provide the police notice that the gang attacked him in the past, were sufficient to establish acquiescence. Dutton-Myrie arrived in the U.S. on a visitor’s visa in 1991 and later pled guilty to cocaine-related charges. He escaped during an initial attempt to deport him, but was apprehended in 2005 and deported to Panama. A few days after he returned, a group of men stabbed him in the neck. He fled the country and re-entered the U.S. The government apprehended Dutton-Myrie a second time in 2007; he claimed that the government of Panama was unwilling or unable to protect him from gang attacks. View "Dutton-Myrie v. Attorney General United States" on Justia Law

Chavez-Alvarez, a citizen of Mexico, became a lawful permanent resident in 1989, then served in the U.S. Army. In 2000, Chavez-Alvarez penetrated the vagina of an intoxicated platoon member with his fingers and performed oral sex without consent. He initially denied the allegations, but later admitted the assault and was convicted under the Code of Military Justice: 10 U.S.C. 907, 925, and 934 for making false official statements; sodomy; and adultery and indecent assault. He was discharged and confined for 18 months. Chavez-Alvarez was charged as removable under 8 U.S.C. 1227, having been convicted of an aggravated felony with a term of imprisonment of at least one year and of two or more crimes involving moral turpitude not arising out of a single scheme. An IJ determined he was ineligible for a waiver of inadmissibility. Following a remand, the BIA concluded that Chavez-Alvarez was removable under the moral-turpitude provision, rejecting his argument that he was only convicted of sodomy, a constitutionally protected activity under Supreme Court precedent. The BIA disagreed, reasoning that Chavez-Alvarez’s crime was subject to a sentence enhancement, having been committed forcibly, which was the “functional equivalent” of a conviction for forcible sodomy, a crime involving moral turpitude, and that his two false-statements convictions were separate crimes of moral turpitude. The Third Circuit reversed, rejecting the BIA’s reasoning that “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense.” View "Chavez-Alvarez v. Attorney General , United States" on Justia Law