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

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

The Eighth Circuit denied a petition challenging the BIA's denial of petitioner's motion to reopen. The Board denied petitioner's motion as untimely because it was filed more than 90 days after the Board had issued a final administrative decision. The court concluded that petitioner's claims for discretionary relief fail because petitioner does not have a constitutionally protected interest in receiving a second try at a cancellation-of-removal proceeding. Furthermore, because petitioner had no protected interest in a second proceeding, her Fifth Amendment due process challenge to the BIA's decision to deny her motion to reopen failed. Finally, the court concluded that the BIA did not abuse its discretion in denying the motion based on its determination that the new evidence petitioner submitted was not new or material. View "White v. Wilkinson" on Justia Law

The Eighth Circuit granted in part a petition for review of the the BIA's order upholding the IJ's decision to terminate petitioner's withholding of removal status, deny his application for protection under the Convention Against Torture (CAT), and deny his motion to remand based on new evidence. The court explained that once an alien is found to have committed a particularly serious crime, the agency no longer needs to engage in a separate determination to address whether the alien is a danger to the community. Therefore, the IJ and the BIA did not err in failing to consider petitioner's likelihood of future misconduct.The court found that the BIA's categorical ban on evidence concerning mental health issues is arbitrary and capricious. The court reaffirmed its position that all reliable information pertaining to the nature of the crime, including evidence of mental health conditions, may be considered in a particularly serious crime analysis. The court lacks jurisdiction to review petitioner's claim that the IJ and BIA erred in finding his testimony not credible because the claim relates to the termination of petitioner's statutory withholding of removal. To the extent that such adverse credibility determination impacted petitioner's claim for relief under CAT, the court concluded that the IJ supported her determination with specific, cogent reasons for her disbelief. The court upheld the finding that petitioner had not established that he was more likely than not to be tortured upon his return to Iraq. Accordingly, the court granted the petition for review for further consideration of petitioner's mental health evidence in determining whether he is barred from withholding of removal based on a particularly serious crime. The court otherwise denied the petition. View "Shazi v. Wilkinson" on Justia Law

Petitioner sought review of the BIA's decision upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States.The Eighth Circuit held that the "serious reasons for believing" standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. 1158(b)(2)(A)(iii), 8 U.S.C. 1231(b)(3)(B)(iii), and 8 C.F.R. 1208.16(d)(2). Because no such finding was made in this case, the court reversed and remanded for further proceedings. View "Rubio Barahona v. Wilkinson" on Justia Law

The Eighth Circuit denied a petition for review of the IJ's and BIA's decisions denying petitioner's request to defer his removal to Somalia under the Convention Against Torture (CAT). Petitioner had entered the United States in 2001 under a false passport and was previously ordered removed. Petitioner then moved to reopen his case, which the BIA granted, remanding the case to the IJ where petitioner's request was denied.The court affirmed the IJ's and BIA's judgments, holding that substantial evidence supported the conclusions that petitioner was unlikely to be tortured for minority-clan membership. The court rejected petitioner's challenge to the IJ's and BIA's conclusions that any torture by Al-Shabaab does not qualify for CAT relief because the Somali government would not acquiesce in such torture. Rather, the court concluded that substantial evidence supported the IJ's and BIA's conclusions that the Somali government was unlikely to acquiesce in any torture by Al-Shabaab. Finally, the court concluded that the IJ and BIA properly considered the risk of torture in the aggregate. View "Hassan v. Rosen" on Justia Law

Herrera's husband fraudulently used the identity of a lawful permanent U.S. resident (LPR) to become a citizen. Herrera obtained LPR status as the wife of a citizen and became a citizen. Herrera's four children are U.S. citizens. In 2011, Herrera was convicted of second-degree theft. The government discovered Herrera’s false statement. She pleaded guilty to naturalization fraud, 18 U.S.C. 1425(a). The district court revoked her citizenship and restored her to LPR status, 8 U.S.C. 1451(e).If an alien commits fraud or misrepresents a material fact to gain a benefit under the immigration laws, she may be deported, 8 U.S.C. 1182(a)(6)(C)(i); 1227(a)(1)(A). Herrera sought a waiver available to aliens who committed immigration fraud but are the parent of a citizen and separately sought cancellation of removal as an LPR. DHS added a charge of removability for convictions of crimes involving moral turpitude based on Herrera's theft conviction, then withdrew the charge of removability for immigration fraud. The BIA affirmed that she was ineligible for a fraud waiver because she was no longer charged under the fraud provision and was ineligible for cancellation of removal because she had obtained her LPR status by fraud.The Eighth Circuit denied relief, rejecting Herrera’s argument that DHS could not withdraw the fraud charge because it had already been sustained by the IJ. The government is permitted to adjust the charges against an alien during the immigration court case. View "Gonzalez v. Rosen" on Justia Law

Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's denial of petitioner's motion to reopen proceedings based on changed country conditions. The court did not find that "any reasonable adjudicator would be compelled to conclude" that al-Shabaab's presence in Somalia is materially different than existed in 2011 based on petitioner's evidence. Furthermore, the IJ did account for the emergence and growth of ISIS-Somalia in its determination, but ultimately determined that the "isolated references" in the record were insufficient to establish petitioner's claims. Finally, the IJ did consider petitioner's personal circumstances when determining whether the alleged changed country conditions were material. In this case, the IJ concluded that Westernized Somalis face no greater threat of harm than existed at the time of petitioner's prior proceedings in 2011, and petitioner failed to sufficiently show how his presence on the 2017 repatriation flight thrust him into "particular notoriety" thereby creating a greater risk of persecution. View "Mohamed v. Barr" on Justia Law