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

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

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

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

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

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

Germain was admitted to the U.S. in 2007 as a lawful permanent resident. Roughly 10 years later, he was convicted of conspiracy to commit an offense to defraud the government, 18 U.S.C. 371, and three counts of making a false statement in an immigration application, 18 U.S.C. 1546(a). Charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony based on his section 1546(a) convictions, Germain argued that those convictions did not qualify as “aggravated felonies” under 1227(a)(2)(A)(iii). He sought cancellation of removal. under section 1229b(a). Germain argued that the parenthetical “(related to document fraud)” in 8 U.S.C. 1101(a)(43)(P) limited the qualifying 1546(a) convictions to those expressly involving document fraud.The IJ ordered Germain removed, reasoning that 1546(a) was divisible because it enumerated four distinct offenses in its four paragraphs. Applying the modified categorical approach, the IJ determined that Germain’s indictment showed that he had pleaded guilty to three counts of making a false statement of material fact on an immigration application, all of which qualified as aggravated felonies because they were offenses described in 1546(a). The BIA dismissed Germain’s appeal. The Eleventh Circuit dismissed his petition for review. All four paragraphs of section 1546(a) relate to document fraud and the plain text and structure of the Act demonstrate that the parenthetical “(relating to document fraud)” is merely descriptive of 1546(a), rather than limiting. View "Germain v. U.S. Attorney General" on Justia Law

A conviction under Fla. Stat. 790.23(1)(a)—which makes it unlawful for a convicted felon to "own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device"—does not constitute a "firearm offense" within the meaning of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(C), and its cross-reference to 18 U.S.C. 921(a)(3).The Eleventh Circuit granted the petition for review of the BIA's final order of removal and vacated the BIA's decision deeming petitioner removable under section 1227(a)(2)(C) of the INA, based on his conviction for a violation of Fla. Stat. 790.23(1)(a). Applying the categorical approach, the court explained that the prohibited items for the possession and concealed carrying offenses in section 790.23(1)(a) are means of committing those crimes, and not elements of separate crimes. View "Simpson v. U.S. Attorney General" on Justia Law

The Eleventh Circuit granted a petition for review of the BIA's order affirming an IJ's discretionary denial of petitioner's application for asylum and grant of withholding of removal. The court concluded that when an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R. 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification. And where the IJ has failed to do so, the BIA must remand for the IJ to conduct the required reconsideration.In this case, the IJ failed to consider petitioner's asylum claim under section 1208.16(e). Therefore, the BIA's failure to remand on this issue was manifestly contrary to law and an abuse of discretion. The court explained that it is clear that neither the IJ nor the BIA conducted the proper reconsideration because the record contained no information about petitioner's ability to reunite with his family, information that the agency must review under section 1208.16(e). Accordingly, the court vacated the BIA's order and remanded to the BIA with instructions to remand to the IJ for reconsideration of the discretionary denial of asylum. View "Thamotar v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that substantial evidence supported the BIA's finding that petitioner failed to establish a nexus between the identity of her nuclear family and her asserted persecution. The court explained that petitioner is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. Furthermore, petitioner is ineligible for CAT relief because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. View "Sanchez-Castro v. U.S. Attorney General" on Justia Law

The Eleventh Circuit affirmed the district court's grant of summary judgment in favor of the government in an action challenging USCIS's decision determining that plaintiff was ineligible for adjustment of status due to his membership in a Tier III terrorist organization—the Bangladesh Nationalist Party (BNP)—and his personal engagement in terrorist activity.The court concluded that the district court did not clearly err in determining that plaintiff's inadmissibility under the terrorism bar was not actually litigated during the asylum proceeding, and rejected the issue preclusion claim. The court held that an organization engages in terrorist activity for the purposes of 8 U.S.C. 1182(a)(3)(B)(vi)(III) when its members perpetrate terrorist activity and its leadership authorizes such conduct expressly or tacitly. In this case, as applied to plaintiff and the BNP, the statute is not unconstitutionally vague. The court also concluded that plaintiff's vagueness challenge to 8 U.S.C. 1182(a)(3)(B)(iii)(V)(b) & (VI) fails at the outset, because he intentionally relinquished any challenge to the definition of "terrorist activity" in the district court. Finally, the court applied the "exceedingly deferential" standard of review under section 706(2)(A) of the Administrative Procedure Act and held that the USCIS's conclusion that the BNP authorized its members' terrorist activity—and thus qualified as a Tier III terrorist organization—is not arbitrary and capricious. View "Islam v. Secretary, Department of Homeland Security" on Justia Law