Justia U.S. 8th Circuit Court of Appeals Opinion Summaries

The Eighth Circuit denied the petition for review challenging the BIA's decision affirming the IJ's denial of petitioner's application for asylum and withholding of removal. The court concluded that the BIA's decision to review the factual issue for clear error was correct.The court also concluded that, even if the court assumed that petitioner suffered harm that amounted to past persecution, the court would still conclude that it was not motivated by her membership in a particular social group. In this case, the record shows that petitioner was targeted because the individual that threatened her father assumed that she owned the land that once belonged to her father—not because she was related to him. Finally, petitioner failed to establish a well-founded fear of future persecution because she failed to carry her burden of demonstrating that she could not relocate in Honduras. View "Padilla-Franco v. Garland" on Justia Law

The Eighth Circuit dismissed the petition for review of the BIA's order finding petitioner inadmissible under 8 U.S.C. 1182(a)(2)(C) based on lack of jurisdiction. Under section 1182(a)(2)(C)(i), a non citizen is inadmissible to the United States if "the Attorney General knows or has reason to believe" that the noncitizen is or has been either "an illicit trafficker in any controlled substance," or "a knowing aider, abettor, assister, conspirator, or colluder with others" in such trafficking.The court agreed with the BIA that section 1182(a)(2)(C)'s "reason to believe" language requires a finding of probable cause. In this case, the court concluded that there is substantial evidence in the record to support the BIA's conclusion that there was probable cause to believe petitioner was involved in illicit drug trafficking. Therefore, petitioner is inadmissible under section 1182(a)(2)(C) and thus the court lacked jurisdiction over the petition for review. View "Rojas v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's request for cancellation of removal. The court concluded that petitioner's grant of Temporary Protected Status (TPS) did not obviate the need for him to demonstrate that he was "admitted" in order to be eligible for cancellation of removal. In this case, 8 U.S.C. 1254a(e) does not excuse section 1229b(a)'s admission requirement for TPS recipients.The court also concluded that petitioner's grant of TPS is not an "admission" for purposes of cancellation of removal. The court explained that its holding in Velasquez v. Barr, 979 F.3d 572, 578 (8th Cir. 2020), is thus limited to adjustment of status and does not bear on whether TPS is an admission for cancellation-of-removal purposes. Furthermore, the fact that section 1254a(f)(4) expressly provides that TPS time counts for these specific purposes indicates it does not apply for other purposes—like cancellation of removal. View "Artola v. Garland" on Justia Law

The Eighth Circuit affirmed the Board's determination that petitioner's 2011 Iowa conviction for possession of a controlled substance disqualifies him from relief in the form of cancellation of removal. The court concluded that the Board correctly found Iowa Code Section 124.401(5) divisible as between marijuana and other controlled substances, and the Board did not err in finding petitioner ineligible for cancellation of removal. The court also concluded that the Board did not abuse its discretion in denying petitioner's motion for reconsideration when it interpreted petitioner's arguments in his motion as new and as clearly distinct from what he had raised in his appeal. View "Aquino Arroyo v. Garland" on Justia Law

The Eighth Circuit denied a petition for review challenging petitioner's removability and seeking asylum. Petitioner, a Somali native who is part of a minority Islamic sect called Sufism, fled Somalia to escape the country's civil war. He came to the United States in 2000 and his entire family resides in the United States, including his nine children.The court concluded that petitioner's conviction for possession of khat relates to a federal controlled substance under 8 U.S.C.  1227(a)(2)(B)(i). In this case, khat contains at least one of two substances listed on the federal drug schedules and thus petitioner is removable. In regard to asylum, the court applied de novo review and concluded that petitioner's evidence was insufficient to establish the social distinctiveness of his proposed social group: those suffering from mental health illnesses, specifically post traumatic stress disorder. Furthermore, the Board did not err in concluding that the IJ's factual finding that the Somali government was helpless against al-Shabaab was clearly erroneous. View "Ahmed v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's request for asylum. Petitioner feared religious persecution by gangs if she returned to her home country of El Salvador. Because petitioner has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, the court explained that she bears the burden to show that relocation would not be reasonable. The court concluded that substantial evidence supports the BIA's determination that petitioner could relocate to another part of El Salvador if forced to return. In this case, petitioner worked for months in San Salvador without trouble from gangs. View "Guatemala-Pineda v. Wilkinson" on Justia Law

The Eighth Circuit granted a petition for review of the denial of petitioner's application for cancellation of removal. The court held that petitioner's 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. 1101(a)(43)(B), and thus the 2006 conviction for illegal reentry under 8 U.S.C. 1326 does not qualify as an aggravated felony under 8 U.S.C. 1101(a)(43)(O). Therefore, petitioner is not statutorily ineligible for cancellation of removal and the court remanded for further proceedings. View "Lopez-Chavez v. Garland" on Justia Law

The Eighth Circuit denied petitions for review of the reinstatement of a 1998 removal order by the DHS and the denial of a motion to reopen the 1998 removal proceedings by the BIA. The court rejected petitioner's contention that his reinstated 1998 removal order was obtained in violation of his constitutional rights, because his counsel was ineffective. The court concluded that petitioner's contention is untimely because it was not raised within thirty days of the underlying removal order, as required by 8 U.S.C. 1252(b)(1). The court also concluded that there is substantial evidence supporting the existence of a prior removal order, and petitioner's reentry was unlawful because he reentered within ten years of his removal without the Attorney General's permission to reapply for admission.The court concluded that the Board correctly determined that the immigration court lacked jurisdiction to reopen the 1998 proceedings. The court explained that an alien ordinarily has a right to file one motion to reopen within ninety days of a final removal order, but an alien forfeits that right by illegally reentering the country. Petitioner's motion also came well after the expiration of the ninety-day time limit for an alien’s motion. Finally, the court agreed with the Board that current law does not allow for a miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order. View "Gutierrez-Gutierrez v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's decision to deport and remove petitioner to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The court concluded that the BIA did not err in determining that petitioner's second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal. The court also concluded that the IJ and the BIA did not err in finding that the particularly serious crime bar foreclosed petitioner's relief for withholding of removal under the CAT. Finally, the court need not address the likelihood that petitioner will be tortured because substantial evidence supports the IJ and the BIA's finding that his torture would not be directed by or acquiesced to by the Somali government. View "Jama v. Wilkinson" on Justia Law

The Eighth Circuit held that the categorical approach does not require a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. Rather, the categorical approach requires a petitioner seeking cancellation of removal to demonstrate that the state offense he was convicted of is broader than the federal offense.In this case, the BIA erred in finding that petitioner was ineligible for cancellation of removal on the basis of his Florida conviction for possession of marijuana. The court explained that the Florida statute is unambiguously broader than the federal law referenced in 8 U.S.C. 1229b(b)(C), and this was all that petitioner was required to show under the categorical approach. Furthermore, because the BIA did not properly consider the IJ's alternative grounds for denying relief, those issues are not properly before the court. The court granted the petition for review, vacated, and remanded for further proceedings. View "Gonzalez v. Wilkinson" on Justia Law