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

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

The Eighth Circuit affirmed the BIA's final order of removal, rejecting petitioner's claim under the Convention Against Torture (CAT) for deferral of his removal to Somalia. In this case, the BIA concluded that the IJ's ultimate finding that petitioner would more likely than not be tortured if returned to Somalia depended on testimony that was unsupported by adequate foundation, relied on country reports that discussed human rights violations at too high a level of generality, and cited treatment of persons with HIV that either fell short of torture or was not sufficiently widespread to show that petitioner likely would suffer torture.The court held that petitioner's claim -- that the agency never had subject matter jurisdiction to order him removed because the Notice to Appear issued by the Department did not specify a time and place of his removal proceedings -- is foreclosed by Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019). The court also held that the BIA's reasoning addressed the relevant evidence and provided sufficient justification for concluding that the IJ's finding was clearly erroneous. The court stated that it was satisfied that the BIA's decision accounted for all of the asserted risks in concluding that the IJ clearly erred. View "Abdi Omar v. Barr" on Justia Law

The Eighth Circuit affirmed defendant's conviction for illegal reentry after removal. Defendant makes a collateral attack on his 2008 removal, arguing that failure to provide him a Spanish interpretation of his Notice of Intent deprived him of the ability to challenge the government's decision to classify him as an aggravated felon, and thus depriving him of the opportunity to seek voluntary departure.The court held that, assuming that defendant was not an aggravated felon, he was not reasonably likely to have received preconclusion voluntary departure at the time of his removal in 2008. Therefore, defendant cannot show prejudice as required by 8 U.S.C. 1326(d)(3), and the district court properly denied his motion to dismiss the indictment. In this case, defendant failed to present compelling positive equities, like close relatives who are United States citizens or legal permanent residents, and defendant failed to reference a single case where an alien convicted of a felony sexual offense has received pre-conclusion voluntary departure. In light of defendant's serious and recent felony convictions and the lack of a sufficiently compelling counter-balancing factor at the time of his removal, the court concluded that it is not reasonably likely that he would have received pre-conclusion voluntary departure. View "United States v. Ramirez" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's decision affirming the IJ's finding that petitioner is removable under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having been convicted of a crime involving moral turpitude.The court held that petitioner's conviction for obstruction of legal process in violation of Minn. Stat. Ann. 609.50, subdiv. 2(2) does not categorically constitute a crime involving moral turpitude. The court stated that there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude. Furthermore, the level of harm required to complete the offense is also insufficient to constitute a crime involving moral turpitude. Therefore, the BIA erred in finding otherwise and the court vacated the order of removal. View "Ortiz v. Barr" on Justia Law

The Eighth Circuit affirmed the BIA's dismissal of petitioner's appeal of the IJ's finding that his asylum application was time-barred and denial of withholding of removal and relief under the Convention Against Torture (CAT). The court held that substantial evidence supported the IJ's finding that petitioner does not face persecution based on membership in a particular social group or political opinion in El Salvado and that the El Salvadoran government is not unwilling or unable to protect him. In this case, although the record supports a finding that Mara 18 gang members targeted petitioner for his access to the cooperative's boats, it does not support a finding of persecution based on his membership in the fishing cooperative; petitioner was not and will not be targeted due to this family membership; nor does the tragic death of his wife demonstrate that he faces persecution by Mara 18 gang members when he returns to El Salvador; petitioner had not been targeted by Mara 18 gang members as a political enemy; and the record does not show that the government was unwilling or unable to protect him if he returned.The court also held that petitioner has not established that the harm he fears qualifies as persecution and the BIA did not err in finding that he is ineligible for asylum; the BIA did not need to analyze petitioner's claim that he established changed or extraordinary circumstances bypassing the one year bar; and even if the BIA engaged in prohibited fact-finding in determining that petitioner failed to establish government acquiescence, the error was harmless. View "Prieto-Pineda v. Barr" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's decision affirming petitioners' orders of removal, holding that petitioners' arguments are foreclosed by circuit precedent. Petitioners, lawful permanent residents, pleaded guilty to fifth-degree possession of a controlled substance in Minnesota state court. The court applied the modified categorical approach and held that fifth degree possession of a controlled substance under Minnesota law qualifies as a removable offense under INA 237(a)(2)(B)(i). View "Bannister v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's determination that defendant committed two crimes involving moral turpitude. The court held that the BIA did not err in determining that petitioner's conviction for the Minnesota crimes of Criminal Sexual Conduct in the Fifth Degree and knowing failure to comply with Minnesota's sex offender registration statute were crimes involving moral turpitude. The court also held that petitioner failed to exhaust his remaining arguments and therefore declined to consider them. View "Bakor v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order affirming the IJ's denial of petitioner's applications for asylum, withholding of removal under the Immigration and Nationality Act, and protection under the Convention Against Torture (CAT). While not diminishing petitioner's tragic experience of being threatened at gunpoint while helplessly watching her son be beaten and abducted, the court held that the record does not compel a finding that such an experience constitutes persecution. In this case, petitioner was never physically harmed and the kidnappers' threat was non-specific and lacking in immediacy.The court rejected petitioner's argument that the harm suffered by her son constitutes direct persecution of her; petitioner failed to present any evidence to suggest that this alleged persecution of her son was on account of his family relationship, rather than an extortionate demand; petitioner failed to meet the rigorous burden of showing a well-founded fear of future persecution; and thus substantial evidence supported the BIA's denials of petitioner's requests for asylum and withholding of removal. Finally, the court held that substantial evidence in the record likewise supports the BIA's denial of petitioner's request for relief under the CAT. View "Cano v. Barr" on Justia Law