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

Articles Posted in Immigration Law
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Mutua, a citizen of Kenya, was admitted into the U.S. as a non-immigrant temporary visitor for business. He did not depart as his visa required but married a U.S. citizen. Several years later, Mutua applied for adjustment of status. DHS denied Mutua’s application because he had criminal charges pending, arising from an alleged sexual assault of a child (his niece). Matua's trial resulted in a hung jury. The state dismissed the charge because the victim did not want another trial. Mutua was charged as removable, 8 U.S.C. 1227(a)(1)(B). The IJ recognized that Mutua was statutorily eligible for adjustment of status but denied his application because Mutua did not merit a favorable exercise of discretion. The BIA affirmed, rejecting an argument that the IJ required Mutua to prove his lack of criminal activity by a “clear and convincing” standard. The BIA declined to take administrative notice of Mutua’s criminal trial transcript.The Eleventh Circuit denied a petition for review, rejecting arguments that the IJ held Mutua to an improperly high burden of proof when considering whether he was entitled to a favorable exercise of discretion, that the BIA applied the wrong standard of review to the IJ’s determination and misinterpreted its own regulations on administrative notice, and that the BIA should have referred his appeal to a three-member panel because his case involved complex, novel, or unusual issues of law. View "Mutua v. United States Attorney General" on Justia Law

Posted in: Immigration Law
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The Eleventh Circuit concluded that the conditions of petitioner's supervision program render her "in custody" within the meaning of 28 U.S.C. 2241, such that the district court had jurisdiction to consider her habeas petition. The court also concluded that petitioner did not validly self-execute the 1995 deportation order when, shortly before it was entered, she voluntarily left the United States. Whether the court resolved 8 U.S.C. 1101(g)'s ambiguity through the principle of lenity or through Chevron deference, the court reached the same conclusion: Section 1101(g)'s two conditions operate successively. In this case, petitioner left the Untied States before she was ordered removed and thus she was not "deported or removed" within the meaning of Section 1101(g). Accordingly, the government may lawfully deport her under the still-operative 1995 order. View "Argueta Romero v. Secretary, U.S. Department of Homeland Security" on Justia Law

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Jathursan, a citizen of Sri Lanka, entered the U.S. without inspection in 2018. He was apprehended and expressed a fear of returning to Sri Lanka. After a credible fear interview, DHS determined that Jathursan had a credible fear of persecution in Sri Lanka. Jathursan applied for asylum, withholding of removal, and Convention Against Torture (CAT) protection. Jathursan cited his Tamil race and/or ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his imputed membership in the LTTE through his brother, and his status as a Tamil failed asylum seeker.The BIA upheld the immigration judge’s findings that Jathursan failed to establish past persecution on account of a protected ground, a well-founded fear of future persecution on account of a protected ground, or that he would more likely than not be tortured if he returned to Sri Lanka. The Eleventh Circuit vacated and remanded for further consideration of his asylum and withholding-of-removal claims based on his fear of future persecution as a Tamil failed asylum seeker and the denial of relief under CAT. The court rejected his claims for asylum and withholding of removal based on past persecution; substantial evidence supported the BIA’s denial of relief on that ground. View "Jathursan v. United States Attorney General" on Justia Law

Posted in: Immigration Law
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A family-based immigrant is presumptively likely to become a public charge, ineligible for admission, but that presumption can be overcome if a sponsoring relative executes an “affidavit of support.” 8 U.S.C. 1182(a)(4)(C)(ii), (a)(4)(D). Kuznitsnyna and her daughter, Thomas, co-sponsored the immigration of Kuznitsnyna’s husband, Belevich, and signed Form I-864 affidavits, which that their obligation to support Belevich would terminate if he became a citizen, worked 40 quarters, no longer had lawful permanent resident status and departed the U.S., attained a new support affidavit, or died; “divorce does not terminate your obligations.” DHS granted Belevich a visa.Years later, while Belevich was visiting his mother in Russia, Kuznitsnyna sought a divorce. When Belevich returned to the U.S., Kuznitsnyna would not allow him into their home. She obtained an order of protection against him. Neither Thomas nor Kuznitsnyna subsequently provided Belevich with any financial support. Later, Belevich was charged with abusing Thomas’s six-year-old daughter and possessing child pornography. Belevich sued for breach of the support affidavits. The women raised the affirmative defenses of unclean hands, anticipatory breach, and equitable estoppel. The district court rejected those arguments, held that Belevich’s conduct relating to the pending criminal charges had “no relevance to the statute,” and granted Belevich summary judgment. The Eleventh Circuit affirmed. The sponsors’ equitable defenses are foreclosed by the statute and regulation and by the text of the affidavit. View "Belevich v. Thomas" on Justia Law

Posted in: Immigration Law
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VHV, a wholesale jewelry importer and the domestic counterpart of Khushi in India, filed a new-office petition and obtained L-1 nonimmigrant status for Vaidya, a citizen of India, to work as VHV’s CEO. VHV later sought to extend Vaidya’s L-1 classification for two years. After allowing VHV to submit additional information, USCIS concluded that the record was insufficient to prove that Vaidya was employed in an executive capacity in his foreign position and insufficient regarding his domestic position. USCIS found that Vaidya’s subordinates did not hold positions in a managerial capacity, Vaidya’s duties did “not make sense given the overall nature and organizational complexity of the foreign organization,” Vaidya apparently performed many non-qualifying duties, and the descriptions of his duties were overly generic.The Eleventh Circuit affirmed summary judgment in favor of the government. USCIS’s decision was not arbitrary and capricious. For an employee to qualify for L-1 status as an executive, 8 U.S.C. 1361 requires that the employee bear a certain set of high-level responsibilities and that the employee primarily engages in those specified duties. New-office petitions additionally require evidence that the transferee was employed abroad “for one continuous year in the three-year period preceding the filing of the petition in an executive or managerial capacity.” Neither Vaidya’s employment abroad nor his domestic position met these requirements. View "VHV Jewelers, LLC v. Wolf" on Justia Law

Posted in: Immigration Law
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Through a Form I-130, a U.S. citizen can seek to establish that an alien relative is eligible for an immigrant visa, 8 U.S.C. 1151(b)(2)(A)(i) & 1154(a)(1)(A)(i). Relatives residing outside the U.S. must apply for the visa at a U.S. Embassy or Consulate in their country of residence. Angela, a U.S. citizen married to Carlos, a Mexican citizen, filed a Form I-130. Carlos had resided in the U.S. without status for over a year; upon returning to Mexico to apply for a visa he would have been inadmissible for 10 years, 8 U.S.C. 1182(a)(9)(B)(i)(II). Carlos obtained a provisional unlawful presence waiver to return to Mexico. Following an interview, a consular official denied his visa application, alleging that Carlos had sought to obtain an immigration benefit by falsely misrepresenting a material fact, had falsely represented himself to be a U.S. citizen, and had unlawfully resided in the U.S. for over a year. The notice did not cite facts supporting those findings.Angela claimed mistaken identity. The Eleventh Circuit affirmed the dismissal of her suit for failure to state a claim. Consular officials are not required to identify facts underlying a visa denial when the statutory provision of inadmissibility sets out factual predicates. The doctrine of consular non-reviewability bars judicial review of a consular official’s decision regarding a visa application if the reason given is “facially legitimate and bona fide” but does not strip federal courts of their subject matter jurisdiction. View "Del Valle v. Secretary of State, United States Department of State" on Justia Law

Posted in: Immigration Law
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Americans and co-conspirators based in China schemed to obtain EB-1C work visas fraudulently for Chinese nationals. Their clients each deposited about $300,000 into a client-owned American bank account. The government did not prosecute the Chinese clients but sought forfeiture of the funds. The Chinese nationals filed claims for the funds.The State Department denied visa requests to allow certain Chinese nationals to attend the forfeiture trial. The U.S. Attorney unsuccessfully worked with their attorney and DHS to obtain parole letters granting them entry without a visa. The Chinese argued that their inability to attend violated the Due Process Clause by preventing them from presenting an “innocent owner” defense, 18 U.S.C. 983(d)(1). The district court denied the motion, noting other means to present their testimony, such as by video conference, and that counsel could present their defenses. All the Chinese were represented by counsel at trial; four attended and testified. The court instructed the jury that the government bore the burden of proving that the “funds made the . . . visa fraud scheme easy or less difficult or ensured that the scheme would be more or less free from obstruction or hindrance.”The jury found that the government had satisfied its burden of proof as to all the funds, that five Chinese nationals—four of whom had testified—had proved that they were innocent owners, and rejected the remaining innocent-owner defenses. The Eleventh Circuit affirmed, finding no due process violation. View "United States v. Approximately $281,110.00 Seized from an East-West Bank Account, ending in the number 2471" on Justia Law

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The Eleventh Circuit denied a petition for review challenging the BIA's dismissal of petitioner's appeal from the IJ's removal order. The court concluded that each of petitioner's two Georgia convictions for simple battery was a crime of violence for which the term of imprisonment was at least one year, within the meaning of 8 U.S.C. 1101(a)(43)(F). Therefore, petitioner was convicted of two "aggravated felonies," as that term is defined in the Immigration and Naturalization Act, and is ineligible for cancellation of removal. View "Talamantes-Enriquez v. U.S. Attorney General" on Justia Law

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Petitioner, a criminal alien facing deportation to Somalia, petitions for review of the order of the BIA confirming his removability and denying his applications for withholding of removal, protection under the Convention Against Torture (CAT), and a refugee inadmissibility waiver. Petitioner also challenges the denial of his petition for a writ of habeas corpus.The Eleventh Circuit concluded that petitioner failed to preserve whether his defective notice to appear violated the agency's claim-processing rules; petitioner is removable for his controlled substance conviction; and, in the alternative, petitioner is removable for his second-degree assault conviction. The court also concluded that the Board denied the refugee inadmissibility waiver under the correct legal standard; the Board did not err in denying petitioner's applications for withholding of removal and for protection under the CAT; and petitioner's habeas petition is moot as to detention under 8 U.S.C. 1226(c), and is not ripe as to detention under section 1231(a). Accordingly, the court dismissed in part, denied in part, dissolving the stay of removal and remanded with instructions to dismiss the habeas petition. The court denied the government's motion to dismiss the appeal. View "Farah v. U.S. Attorney General" on Justia Law

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Murugan, a member of Sri Lanka’s Tamil minority, claims that he left Sri Lanka and entered the U.S. without authorization because of incidents involving the Sri Lankan Army. One incident involved overnight detention and questioning. Another incident, involving four days of detention and interrogation while tied to a chair included kicking and slapping. After his release, Murugan was hospitalized and attended mental health counseling. Murugan did not report his arrest to the police or any other government authority. Finally, soldiers came to Murugan’s home, arrested him, and threatened to take him to an army torture camp. After six hours of detention, Murugan was released. Murugan’s parents told him that his life was in danger and that people who had been previously arrested with him had been re-arrested and sent to the torture camp.In removal proceedings, Murugan applied for asylum, withholding of removal, and Convention Against Torture relief. He alleged past persecution and well-founded fear of future persecution based on an imputed political opinion and membership in the particular social groups of Tamils and returned asylum seekers. He testified that he feared he would be arrested at the airport, tortured, and killed. The IJ and BIA rejected his claims. The Eleventh Circuit denied a petition for relief, noting that Murugan had not exhausted some of his arguments before the BIA and that the agency applied the correct legal standards. The factual findings are supported by substantial evidence. View "Murugan v. United States Attorney General" on Justia Law

Posted in: Immigration Law