Justia U.S. 11th Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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An Immigration Judge determined that Petitioner was ineligible for asylum and withholding of removal because she was convicted of a particularly serious crime and denied her application for protection under the Convention Against Torture (“CAT”), and the Board affirmed her decision without opinion. Petitioner raised three challenges to these proceedings: (1) that the Immigration Judge did not give reasoned consideration to all of the relevant evidence in determining that Petitioner had not met her burden of showing that she would more likely than not be tortured by, or with the acquiescence of, the Guyanese government if returned to Guyana, or that her conclusion was not supported by substantial evidence; (2) that the Immigration Judge erred in not making a separate determination that Petitioner posed a danger to the community, in addition to finding that she had committed a particularly serious crime; and (3) that the Immigration Judge erred in finding that Petitioner committed a particularly serious crime.   The Eleventh Circuit denied the Petitioner’s petition in part and dismissed in part. The court explained that while it agrees that the evidence Petitioner presented demonstrated pervasive and disturbing discrimination and harassment against the LGBT community in Guyana, the Immigration Judge’s determination that Petitioner had not established that it was more likely than not that she would be tortured by or with the acquiescence of the government if she returned to Guyana was supported by substantial evidence. Further, the court held that the INA “does not abate our power to review the decision that Petitioner was convicted of a particularly serious crime.” View "K.Y. v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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Appellant, a citizen of the Dominican Republic, was a lawful resident of the United States when, in 1996, he was convicted for the attempted sale of cocaine under New York Penal Law Sec. 220.39(1). He was sentenced to five years' probation. In 2018, Appellant applied for naturalization with the United States Citizenship and Immigration Service ("USCIS"). However, USCIS determined that Appellant's 1996 conviction qualified as an aggravated felony under 8 U.S.C. Sec. 1101(a)(43).Appellant unsuccessfully sought an administrative appeal of the USCIS decision and then brought this action in the district court. The district court affirmed and Appellant appealed to the Eleventh Circuit.On appeal, the Eleventh Circuit affirmed, finding that Appellant's 1996 conviction under Sec. 220.39(1) qualifies as an aggravated felony within the plain meaning of the Immigration and Nationality Act. View "Elvis Leonel Morfa Diaz v. Acting Secretary, Department of Homeland Security, et al." on Justia Law

Posted in: Immigration Law
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Petitioner appealed the Board of Immigration Appeals’ judgment that he is removable on the ground that he was convicted of a “crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. Section 1227(a)(2)(E)(i). The parties agree that the least culpable conduct criminalized by the Florida statute under which Petitioner was convicted—culpably negligent child neglect—fits within the BIA’s expansive interpretation of Section 1227(a)(2)(E)(i). The question, then, is whether the BIA’s reading of that provision is permissible inasmuch as it covers Petitioner’s offense.   The Eleventh Circuit affirmed. The court explained that the offense of which all now agree Petitioner was convicted fits within the BIA’s interpretation of Section 1227(a)(1)(E)(i)’s key statutory phrase, “crime of child abuse, child neglect, or child abandonment,” which the Board reads to encompass “child endangerment-type offense[s]” that require a “likelihood or reasonable probability that a child will be harmed.”   Further, the court concluded that the BIA’s interpretation of Fla. Stat. Section 827.03(2)(d) is permissible insofar as it reaches “culpably negligent” child neglect. Thus, because it’s reasonable to interpret “crime of . . . child neglect” as including the Florida offense of culpably negligent child neglect, the court deferred to the BIA’s conclusion that Petitioner’s conviction under Fla. Stat. Section 827.03(2) renders him removable. View "Ariel Marcelo Bastias v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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Petitioner along with his mother, little sister, and two young cousins—crawled under a border fence that separated Mexico from Arizona. The United States Border Patrol agents soon apprehended them walking north along a highway and subsequently handed Petitioner a notice to appear. The notice ordered him to appear for removal proceedings before the Phoenix Immigration Court at a date and time “to be set.”   The Atlanta Immigration Court sent that notice to Petitioner at the most recent address they had on file for him—his aunt’s home in Rock Springs. It was returned, undelivered, to the immigration court. He remained in the United States for nearly a decade and a half before reappearing in the immigration system in July 2019, when he moved to reopen his removal proceedings. An immigration judge denied Petitioner’s motion to reopen. The Board of Immigration Appeals affirmed that judgment and Petitioner argued that under Pereira he could not be removed.   The Eleventh Circuit denied Petitioner’s petition. The court explained an alien is eligible for a second chance at removal proceedings if he never received the notice telling him to attend the hearing he missed. But Petitioner cannot benefit from dodging a hearing or failing to keep the government informed of his current address. Petitioner did not tell the government when he moved, and he let his removal proceedings lie dormant for nearly fifteen years. A flaw in the initial notice handed to him does not entitle him, years later, to another chance at avoiding removal. View "Samuel Dacostagomez-Aguilar v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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Immigration Petitioner petitioned for review of the Board of Immigration Appeals’ (“BIA”) decision that concluded that Petitioner was removable based on (1) his two state convictions for felony transporting into Virginia controlled substances with the intent to distribute and (2) his third state conviction for felony conspiracy to transport marijuana into Virginia.   On appeal to the BIA, Petitioner argued his Virginia offenses were not categorically CIMTs. The government did not cross-appeal to the BIA the IJ’s divisibility ruling, but it did “maintain” in a motion for summary affirmance that Va. Code Ann. Section 18.2- 248.01 was divisible and the modified categorical approach should apply. The BIA affirmed the IJ’s decision that Petitioner was removable on CIMT grounds under both INA Section 237(a)(2)(A)(i) and (ii), 8 U.S.C. Section 1227(a)(2)(A)(i) and (ii). Stressing that it had long held that “participation in illicit drug trafficking is a CIMT,” the BIA agreed with the IJ that a violation of Va. Code Ann. Section 18.2-248.01 was categorically a CIMT.   The Eleventh Circuit denied the petition, holding that the BIA did not err in concluding that Petitioner was removable because his state drug trafficking convictions categorically constitute crimes involving moral turpitude (“CIMT”) within the meaning of Immigration and Nationality Act (“INA”) Section 237(a)(2)(A)(i)-(ii), 8 U.S.C. Section 1227(a)(2)(A)(i)-(ii). Further, the Supreme Court’s decision in Jordan v. De George forecloses Petitioner’s claim that the phrase “crime involving moral turpitude” in the INA is unconstitutionally vague. View "Everton Daye v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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After being stopped for driving without a license, removal proceedings were initiated against Petitioner. In response, Petitioner applied for cancellation of removal under 8 U.S.C. Section 1229b which the Immigration Judge denied. Petitioner appealed to the Board of Immigration Appeals (“BIA”), which “affirm[ed] the Immigration Judge’s decision on the ground that the respondent ha[d] not established that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives.”   Petitioner appealed on two separate but interrelated grounds: 1) that the BIA committed legal error in applying the exceptional and extremely unusual hardship standard and 2) that the BIA failed to render a reasoned decision. The Eleventh Circuit dismissed Petitioner’s petition seeking cancellation of removal under 8 U.S.C. Section 1229b. The court held there was no legal or constitutional error in the decision of the BIA.   The court explained that because it cannot disturb factual findings, it is left to see if Petitioner identified any legal error with respect to the application of the law to those facts established in the BIA’s decision. The court found that Petitioner has not identified one. Turning to the second argument after reviewing the BIA’s opinion and Petitioner’s argument, the court did not see a legal argument for which it would have jurisdiction to review. As long as the BIA cites and proceeds to apply the proper legal standard, as it did in this case, the court cannot make legal error out of an inherently subjective determination of whether an applicant’s relatives will experience exceptional and extremely unusual hardship. View "Esteban Flores-Alonso v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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Petitioner petitioned the Eleventh Circuit for review of his Final Administrative Removal Order and adverse reasonable fear determination, which were issued during his expedited removal proceedings as an alien convicted of an aggravated felony under the Immigration and Nationality Act.   Petitioner contended that he was substantially prejudiced by his lack of counsel at the hearing before the immigration judge in his reasonable fear proceedings. He also argued that he was denied a “full and fair hearing” before the immigration judge because the judge failed to provide an adequate explanation of the procedures.   The Eleventh Circuit denied Petitioner’s petition for review and held that Petitioner’s due process rights were not violated during his expedited removal proceedings. The court concluded that the immigration judge reasonably found that Petitioner’s assertions failed to establish his torture claim and the record does not compel a contrary finding. The court further concluded that substantial evidence supports the asylum officer’s and immigration judge’s negative reasonable fear determination on Petitioner’s claim for CAT relief.   The court reasoned that under the substantial prejudice standard, the petitioner “must demonstrate that, in the absence of the alleged violations, the outcome of the proceeding would have been different.”  Petitioner failed to identify how he would have presented his case differently before the immigration judge.  Further, while Petitioner testified that some individuals threatening him were Haitian public officials, he did not offer any examples to show that those officials were threatening him in their official capacities or under the color of law. View "Emmanuel Priva v. U.S. Attorney General" on Justia Law

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Petitioner sought review of the Board of Immigration Appeals (BIA) final order affirming the Immigration Judge’s (IJ) denial of his application for asylum on account of racial persecution. Petitioner had applied for asylum under the Immigration and Nationality Act (INA) Section 208(b)(1), 8 U.S.C. Section 1158(b)(1), withholding of removal under INA Section 241(b)(3), 8 U.S.C. Section 1231(b)(3), and protection under the Convention Against Torture (CAT), 8 C.F.R. Section 208.16(c). On appeal, Petitioner argued that (1) the BIA failed to provide reasoned consideration on his request for asylum relief based on racial persecution, having adopted in large part the IJ’s determination making the same mistake, and (2) the IJ should have permitted him advance notice of the need for specific corroborating evidence to meet his burden of proof and an automatic continuance to provide that evidence after determining that his testimony was credible because 8 U.S.C. Section 1158(b)(1)(B)(ii) requires it.   The Eleventh Circuit denied Petitioner’s request to review the BIA's final order. The court held that the BIA’s decision makes clear that it provided reasoned consideration to Petitioner’s racial claim. The court reasoned that a review of the decision shows that the BIA did not misstate the contents of the record, fail to adequately explain its rejection of logical conclusions, or provide an unreasonable justification for its decision, which, when present, would tend to suggest a failure to provide reasoned consideration. The court dismissed the rest of the petition finding that Petitioner failed to exhaust his second claim. View "Sergio Elias Lopez Morales v. U.S. Attorney General" on Justia Law

Posted in: Immigration Law
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Petitioner a native and citizen of North Macedonia, appealed the dismissal or, alternatively, the denial of his 28 U.S.C. Sec. 2241 habeas petition seeking release from an alleged “unlawful and indefinite” detention by Immigration and Customs Enforcement (“ICE”). Petitioner claimed that his detention by ICE officials violated the Due Process Clause of the Fifth Amendment, because it exceeded the “presumptively reasonable” 180-day period established in Zadvydas v. Davis, 533 U.S. 678 (2001). The district court denied Petitioner relief, concluding, among other things, that the delay in his removal did not violate Zadvydas because Petitioner had sought and obtained an administrative stay of his removal proceedings.   The Eleventh Circuit held that it lacked jurisdiction to consider the merits of Petitioner’s habeas petition seeking release and dismissed the case as moot. The court reasoned that it need not decide whether the voluntary cessation doctrine applies in the habeas immigration context because even if it did, it has not been satisfied. Further, the government has described Petitioner’s detention as having “ceased,” and, as of now, more than fifteen months have passed since Petitioner was released. Thus, the court found that there is no reasonable basis for it to believe that Peitioner will be re-detained unlawfully upon the termination of his suit. View "Goga Djadju v. Juan A. Lopez Vega, et al." on Justia Law

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The Eleventh Circuit granted a petition for review of the BIA's order affirming the IJ's denial of petitioner's application for cancellation of removal. The court agreed with petitioner that he satisfied his burden of demonstrating his eligibility for cancellation of removal for certain lawful permanent residents because his violation of Fla. Stat. 893.13(6)(a) did not relate to a controlled substance, as defined in 21 U.S.C. 802, and thus did not prevent him from accruing the necessary seven-year period of continuous residence.The court explained that, because a violation of section 893.13(6)(a) did not relate to a controlled substance as defined under federal law, petitioner's conviction under this statute in 2017 did not affect his ability to accrue the required seven years of continuous eligibility necessary for cancellation of removal. Rather, petitioner's residence "clock" stopped in 2019 when he was arrested for fleeing and eluding while lights and sirens were activated. The court explained that, at this point in time, petitioner had lived in the United States continuously for eight years, thereby meeting the residency requirement under INA 240A. View "Fuad Fares Fuad Said v. U.S. Attorney General" on Justia Law