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

Avitso, a citizen of Togo, entered the U.S. as a student in 2004 and married a U.S. citizen. In 2011, USCIS denied a Petition for Alien Relative filed by Avitso’s wife and an application for adjustment of status filed by Avitso, concluding they had entered into a fraudulent marriage to procure immigration benefits, which made Avitso removable, 8 U.S.C. 1182(a)(6)(C)(i), 1227(a)(1)(A). Notice of removal proceedings was mailed to Avitso at the address where USCIS investigators had been told he resided. In 2012, DHS mailed notice to a different address. The immigration court also mailed notice; it was returned, marked “moved left no address.” Avitso failed to appear. The IJ entered a removal order.In 2019, remarried and represented by new counsel, Avitso moved to reopen, alleging that he “did not personally receive" notice but a copy was forwarded to him by his then-attorney. The motion cited ineffective assistance of counsel. The IJ denied the motion, concluding Avitso failed to meet case law requirements to establish ineffective assistance and even if those requirements were satisfied, the outcome would not have been different. The BIA dismissed Avitso’s appeal. The Eighth Circuit denied a petition for review. Avitso’s motion to reopen included no evidence that he notified former counsel of his ineffective assistance claims, provided her an opportunity to respond, or filed a complaint with disciplinary authorities. The BIA enforces those requirements to discourage baseless allegations and deter meritless claims. View "Avitso v. Barr" on Justia Law

The Eighth Circuit denied the petitions for review of the BIA's decision affirming the IJ's denial of petitioner's request for deferral and the BIA's denial of petitioner's motion to reopen his immigration case. The court rejected petitioner's due process claim that the agency failed to consider all relevant evidence. The court also held that the BIA did not err in determining that petitioner had failed to show he was more likely than not to be tortured based on his Christian faith if removed to Bangladesh. In this case, substantial evidence supports the Board's determination that petitioner failed to show that the Bangladeshi government acquiesces in torture, and substantial evidence supports the Board's determination that petitioner's evidence of forcible land evictions does not demonstrate the government's acquiescence in torture.The court also held that the Board did not abuse its discretion by denying the motion to reopen where plaintiff offers nothing, beyond conclusory statements, to support his claim that the newly-offered evidence was not available at the time of his hearing in 2018. Furthermore, the new evidence was unlikely to alter the IJ's decision. View "Ahmed v. Barr" on Justia Law

In Al-Saadoon I, the Eighth Circuit affirmed the denial of petitioners' (husband and wife) petitions for naturalization because husband engaged in unlawful employment and thus the couple never lawfully adjusted to permanent resident status. Petitioners then filed a Supplement A to Form I-485 with USCIS to adjust their status to lawful permanent residents nunc pro tunc.The court affirmed the district court's denial of petitioners' requests for nunc pro tunc adjustment to lawful permanent resident status, holding that the district court did not have jurisdiction to review a discretionary denial of an adjustment of status application. The court explained that, because petitioners failed to adjust their status to lawful permanent residents, they cannot meet the requirements for naturalization. To the extent that petitioners attempt to relitigate the determination that they were unlawfully admitted to permanent resident status in 2002, they are barred by res judicata. The court also held that the district court correctly dismissed petitioner's Controlled Application Review and Resolution Program claim. Finally, petitioners' Religious Freedom Restoration Act of 1993 (RFRA) claim fails because they did not assert a claim for relief under RFRA in their petition. View "Al-Saadoon v. Barr" on Justia Law

After the district court granted petitioner's application for naturalization, petitioner then moved for attorney's fees and costs under the Equal Access to Justice Act (EAJA). The district court denied the motion. The government concedes that petitioner is entitled to costs in the amount he requests because he is the prevailing party and, unlike for attorney's fees, there is no "substantially justified" requirement for costs under the EAJA.The Eighth Circuit affirmed the district court's order with modifications that petitioner is awarded costs. The court held that the district court did not abuse its discretion by determining that the government's position was substantially justified and did not err in denying the requested attorneys' fees under the EAJA. In this case, the government's position that petitioner lacked good moral character because he had given false testimony for the purpose of obtaining immigration or naturalization benefits was substantially justified. Finally, the court denied petitioner's motion to supplement the record. View "Garcia v. Barr" on Justia Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging defendant with illegal reentry in the United States. The court held that an alien may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair.In this case, defendant failed to meet his burden on any of the elements. Furthermore, even if defendant could collaterally attack the deportation order under Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018), his attack fails. Therefore, the immigration court had jurisdiction over defendant's deportation proceedings and the district court did not err in denying his motion to dismiss the indictment. View "United States v. Aquilar Escobar" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's final order affirming the IJ's order of removal. Petitioner and her son, natives and citizens of El Salvador, filed an application for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT), claiming that she was persecuted because of her family membership.The court held that petitioner's financial resources, rather than her family membership, was the central reason for the persecution; the Board did not err in concluding that petitioner's first group -- membership in the Fuentes family -- is not cognizable; petitioner failed to prove past persecution on account of her membership in two other particular social groups -- Salvadoran female heads of households and vulnerable Salvadorean females; and, having failed to establish past persecution, petitioner is not entitled to a presumption of a well-founded fear of future persecution. Consequently, petitioner cannot meet the higher standard of proof for withholding of removal. View "Rodriguez Fuentes v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal from an IJ's decision denying deferral of removal under the Convention Against Torture (CAT). As a preliminary matter, the court held that it need not determine whether the BIA applied an incorrect legal standard of review, because petitioner did not raise the aggregate risk argument before the BIA.The court held that the BIA correctly found that res judicata did not bar consideration of past torture petitioner suffered in the 1980s and any error by the IJ in concluding otherwise was harmless both because the IJ nevertheless considered that evidence and because the BIA also considered the evidence and applied the correct legal standard. The court also held that substantial evidence in the record supports the BIA's conclusion that petitioner's argument that he would likely be tortured upon return to Iraq was based on a chain of assumptions and speculation. View "Alzawed v. Barr" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's final order of removal denying petitioner's application for deferral of removal under the Convention Against Torture (CAT). As a preliminary matter, the court held that it was precluded from reviewing the issue of whether the BIA incorrectly applied the clear error standard of review and engaged in improper factfinding, because petitioner had not exhausted his administrative remedies as to these issues when he filed his initial petition, and because, after exhausting, he never properly petitioned this court to review them.The court also held that the BIA did not err in finding that petitioner had failed to meet his burden of persuasion that he is more likely than not to be tortured if returned to South Sudan. In this case, the BIA's decision is supported by substantial evidence because the BIA correctly concluded that petitioner must show more than a pattern of general ethnic violence in South Sudan to meet the CAT's likelihood requirement. Therefore, a reasonable adjudicator could have found the evidence insufficient to establish a likelihood of torture. View "Lasu v. Barr" on Justia Law

In 2001, Shire, a citizen of Somalia, was lawfully admitted to the U.S. as a refugee; in 2004, he obtained lawful permanent resident status. In 2006, Shire pled guilty to two drug offenses and was sentenced to 170 days' imprisonment. In 2008, an IJ ordered him removed under 8 U.S.C. 1227(a)(2)(B)(i). In 2018, Shire, still in the U.S., moved to reopen his removal proceedings to apply for asylum, citing changed country conditions.The IJ denied relief, noting that al-Shabaab came into prominence in 2006 and was using the same tactics in 2018 that it had been using in 2008. The IJ also determined that Shire failed to demonstrate a substantial likelihood of a different outcome, noting that Shire’s conviction for an aggravated felony rendered him ineligible for asylum and withholding of removal. Shire did not establish entitlement to relief from removal under the Convention Against Torture; the Somali government, while weak, was resisting al-Shabaab and would not acquiesce to the torture of its citizens; the number of deaths from al-Shabaab was low compared to the total population of Somalia; and Shire’s personal circumstances did not subject him to particular notoriety in Somalia. The BIA affirmed. In 2019, Shire was removed to Somalia. The Eighth Circuit denied a petition for review, finding those conclusions supported by substantial evidence. View "Shire v. Barr" on Justia Law

Petitioner sought review of the BIA's decision affirming the IJ's denial of his motion to reopen removal proceedings and to deny his motion to remand. The court held that it lacked jurisdiction to review the vast majority of petitioner's arguments concerning his motion to reopen his asylum and withholding of removal claims because they merely constitute a brief in opposition to the BIA's factual findings.In regard to the CAT claim, the court held that the BIA did not abuse its discretion in determining that he had not shown facts that would likely change the result in the case on account of a material change in country conditions. In regard to the motion for remand, the court lacked jurisdiction to review petitioner's arguments to the extent they concern his asylum and withholding of removal claims; petitioner's claims that the BIA committed legal error lacked merit; and the court cannot say the BIA abused its discretion in determining that further proceedings on his motion to reopen his CAT claim were not warranted by the newly presented evidence attached to his motion to remand. Finally, the court rejected petitioner's Fifth Amendment due process claim. View "Sharif v. Barr" on Justia Law