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

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

The Eleventh Circuit affirmed the district court's grant of defendants' motion to dismiss his complaint, seeking judicial review of the USCIS's denial of a national interest waiver pursuant to 8 U.S.C. 1153(b)(2)(B)(i), based on lack of subject matter jurisdiction. The court held that section 1153(b)(2)(B)(i) specifies that a national interest waiver is within the discretion of the Attorney General, and therefore section 1252(a)(2)(B)(ii) precludes judicial review. Accordingly, the district court did not err by dismissing the complaint for lack of subject matter jurisdiction. View "Brasil v. Secretary, Department of Homeland Security" on Justia Law

The Eleventh Circuit granted the petition for review of the BIA's decision affirming the IJ's determination that petitioner was removeable. The IJ concluded that petitioner's conviction for burglary of an unoccupied dwelling, Fla. Stat. 810.02(3)(b), is a crime involving moral turpitude (CIMT).The court explained that Florida has applied section 810.02(3)(b) to a dwelling which was not occupied prior to or after the entry, State v. Bennett, 565 So. 2d 803, 805 (Fla. 2d DCA 1990), and that application impacts whether a violation of section 810.02(3)(b) is a CIMT. However, neither the IJ nor the BIA address petitioner's impact of Bennett here. Accordingly, the court vacated and remanded for the BIA to address Bennett under the realistic probability component of the categorical approach. View "Lauture v. U.S. Attorney General" on Justia Law

Zarate, a citizen of Mexico, was convicted of violating 42 U.S.C. 408(a)(7)(B) for using a social security card that was not his. An IJ ruled that Zarate was statutorily ineligible for cancellation of removal because his conviction under section 408(a)(7)(B) was for a “crime involving moral turpitude” (CIMT), 8 U.S.C. 1182(a)(2); 1229b(b)(1)(c) but otherwise would have granted him that relief. The BIA dismissed his appeal, reasoning that section 408(a)(7)(B) requires intent to deceive.The Eleventh Circuit vacated and remanded, noting that the circuits are divided on the issue. While a conviction for a violation of section 408(a)(7)(B) may be a CIMT, the BIA must apply its two-pronged moral turpitude standard and decide whether the statute, under the categorical approach, involves conduct that is “reprehensible,” i.e., conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Previous BIA decisions indicate that making a false statement or engaging in general deception is not necessarily the same thing as fraud; non-fraud offenses involving deception are not automatically CIMTs. View "Zarate v. U.S. Attorney General" on Justia Law

Chamu, born in Mexico, entered the U.S. without inspection in 1990. In 2003, he was pleaded guilty to cocaine possession under Florida law; 14 years later, in removal proceedings, 8 U.S.C. 1182(a)(6)(A)(I), Chamu applied for cancellation of removal, alleging that his mother and children would suffer exceptional hardship.Cancellation is unavailable for those who have been convicted of a state offense “relating to a controlled substance (as defined in section 802 of title 21)” of the U.S. Code, 8 U.S.C. 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). Section 802 defines “controlled substance” as any substance included in federal controlled substance schedules. Chamu unsuccessfully sought to have his Florida cocaine possession conviction vacated, then argued that the Florida statute was too broad to bar his cancellation request. The IJ and BIA rejected his argument, reasoning that Chamu had not shown a realistic probability that the Florida statute would be enforced more broadly than the federal statutes. The Eleventh Circuit agreed. Florida’s definition of cocaine may not be completely consistent with the federal definition but Chamu failed to prove that it covers more substances. No illicit-nature mens rea is necessary to trigger removal consequences for offenses listed under 8 U.S.C. 1182(a)(2)(A)(i)(II) and 1227(a)(2)(B)(i). View "Chamu v. U.S. Attorney General" on Justia Law

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

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

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

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

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