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

Mowlana, a native of Somalia, was admitted to the United States as a refugee in 2000 and became a lawful permanent resident in 2002. He was ordered removed from the U.S. after the Board of Immigration Appeals concluded that he had been convicted of an aggravated felony. The Board cited Mowlana’s prior conviction under 7 U.S.C. 2024(b), which forbids the knowing use, transfer, acquisition, alteration, or possession of benefits in a manner contrary to the statutes and regulations of the Supplemental Nutrition Assistance Program (food stamps). The Eighth Circuit dismissed his petition for review, agreeing that his offense was an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii). View "Mowlana v. Holder" on Justia Law

Shoyombo, a native of Nigeria, entered the U.S. illegally in 1993 and filed two fraudulent asylum applications. The second, in his own name, was denied and he was ordered deported in absentia in 1995. Shoyombo married a U.S. citizen. His second motion to reopen, filed while he applied for adjustment of status, was granted in 2002. After DHS discovered Shoyombo had filed another asylum application, the proceedings were reopened on the Immigration Court’s own motion. An IJ denied adjustment of status but granted voluntary departure. The BIA affirmed. He did not depart, but married a second U.S. citizen in 2010. His attorney filed a new I-130 Visa Petition, but failed to file a third motion to reopen removal proceedings and apply for adjustment of status. ICE arrested Shoyombo in 2012. He hired a new attorney. In 2013, a new I-130 application was approved. In 2014, Shoyombo filed a third motion to reopen his removal proceedings to request adjustment of status based on the I-130 approval, asserting that the delay was due to the previous attorney abandoning his case. The BIA denied the motion. The Eighth Circuit dismissed a petition for review: because the decision to reopen sua sponte is explicitly left to the BIA’s discretion, with “no meaningful standard” against which to judge the exercise of that discretion, courts lack jurisdiction to review the denial of a such motion. View "Shoyombo v. Lynch" on Justia Law

Etenyi, a citizen of Kenya, came to the U.S. on a student visa in 2006. After he graduated in 2011, he remained and married a U.S. citizen. Etenyi’s wife sought an immediate-relative visa on Etenyi’s behalf. Etenyi concurrently applied to adjust his status to that of a lawful permanent resident, 8 U.S.C. 1255(a). DHS denied Etenyi’s application on grounds that he had falsely claimed that he was a U.S. citizen on a Form I-9 when he applied for a job in 2009. At a removal hearing, Etenyi admitted that he did not comply with the student visa, but denied that he had falsely claimed citizenship. Etenyi contended that the form had been pre-populated with his personal information and that he did not notice the checked box asserting, under penalty of perjury, that he was a citizen. The IJ considered the signed Form I-9, Etenyi’s testimony, Etenyi’s social security card that stated DHS authorization was required before Etenyi could work, and evidence of Etenyi’s efforts to ensure that his social security card was accurate, and concluded that Etenyi’s testimony was not credible. The BIA affirmed. The Eighth Circuit denied a petition for review, holding that substantial evidence supported a finding that Etenyi falsely claimed citizenship on a Form I-9, View "Etenyi v. Lynch" on Justia Law

Romero was arrested in Kansas City for multiple traffic offenses. Officers identified Romero as a citizen of Mexico who had not been admitted or paroled for entry into the U.S. The immigration judge found that Romero was not eligible for cancellation of removal because he had been convicted in 1993 of violating California Penal Code 472, which criminalizes forgery and related conduct. The BIA agreed that section 472 is categorically a crime involving moral turpitude that carries a potential sentence of one year or more in prison, so that Romero was ineligible for cancellation of removal, 8 U.S.C. 1229b(b)(1)(C), 1227(a)(2). The Eighth Circuit denied a petition for review, rejecting Romero’s argument that section 472 criminalizes both acts requiring a specific intent to defraud and acts without this mens rea. The court held that that conviction under section 472 always includes the element of a specific intent to defraud. View "Miranda-Romero v. Lynch" on Justia Law

Ortiz, a native of Mexico, became a lawfully-admitted permanent resident of the U.S. in 2002. In 2006, Ortiz pled guilty to obstruction of legal process—a crime committed when he was 18 years old. Ortiz was sentenced to 1 year in a workhouse—with a 2-year stay on 320 days of the sentence—and a $50.00 fine. More than seven years later, DHS charged Ortiz as removable under 8 U.S.C. 1227(a)(2)(A)(iii) for committing an “aggravated felony” and under 8 U.S.C. 1227(a)(2)(A)(i) for committing a crime involving “moral turpitude.” The IJ found Ortiz’s conviction was an “aggravated felony” because it was a “crime of violence.” The BIA upheld the IJ’s determination. The Eighth Circuit vacated. Minnesota precedent plainly shows the words “force or violence,” in the statute under which Ortiz was convicted, encompass a broader scope of conduct than the “physical force” required to be a categorical “crime of violence” under 18 U.S.C. 16. View "Ortiz v. Lynch" on Justia Law

Figueroa-Alvarez, a citizen of Mexico, pleaded guilty to illegally reentering the U.S. following removal, 8 U.S.C. 1326(a), a violation punishable by “not more than 2 years” imprisonment. Section 1326(b) authorizes imprisonment “not more than 10 years” if the prior removal “was subsequent to a conviction for commission of . . . a felony,” and “not more than 20 years” if removal was subsequent “to a conviction for commission of an aggravated felony.” Figueroa-Alvarez admitted a pre-removal Iowa conviction for committing third-degree attempted burglary, an “aggravated misdemeanor” punishable by up to two years in prison. He did not admit he committed a “felony.” The court determined that his advisory guidelines sentencing range was 46-57 months in prison, applying an increase in U.S.S.G. 2L1.2(b)(1) for removal following a “felony” conviction because the Guidelines define “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” The court granted a downward departure and variance, and sentenced Figueroa-Alvarez to 36 months in prison. The Eighth Circuit affirmed. Though Iowa classified third-degree attempted burglary as an aggravated misdemeanor, it was punishable by up to two years in prison, and was a felony, as that term is used in 8 U.S.C. 1326(b). View "United States v. Figueroa-Alvarez" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

Petitioner traveled from Ethiopia, and entered the U.S. in 2002. He carried a valid Ethiopian passport and non-immigrant visitor’s visa issued under the name Hiko. Shortly thereafter, he sought asylum. Petitioner asserted that the Ethiopian government persecuted him on account of his political opinion, and that he had a well-founded fear of persecution if he were returned. Petitioner claimed that he was detained and beaten because of his membership in the Oromo ethnic group and in retaliation for his support of an organization called the Oromo Liberation Front. Petitioner admitted that he traveled under a false name and the IJ expressed concern about petitioner’s testimony that he was allowed to leave jail to take a school finishing exam during a period of alleged persecution, but granted petitioner’s application for asylum. In July 2006, however, the Department of Homeland Security moved to reopen the case based on newly discovered evidence relating to petitioner’s identity. The IJ granted the motion. Ultimately, the Board of Immigration Appeals denied his application for asylum, withholding of removal, and protection under the Convention Against Torture. The Eighth Circuit affirmed the denials as supported by substantial evidence, but remanded for consideration of a request for voluntary departure. View "Ademo v. Lynch" on Justia Law

Nanic, a citizen of Bosnia-Herzegovina and Croatia, is a practicing Muslim, but he rejects the “Bosniak” label used by governments in the region to describe Muslims in Bosnia. Nanic advocates a unified Bosnia and identifies himself as Bosnian. Nanic entered the U.S. as a nonimmigrant visitor, authorized to stay until June 8, 2007. On June 13, Nanic applied for asylum and withholding of removal, 8 U.S.C. 1158(b)(1)(A), 1101(a)(42)(A). An IJ denied relief. The B IA affirmed, finding that Nanic did not demonstrate that he suffered past persecution in Bosnia-Herzegovina or Croatia, nor did he establish a well-founded fear of persecution if returned. The BIA also rejected Nanic’s contention that the IJ deprived Nanic of due process by receiving testimony of an expert witness about country conditions and considering a document prepared by an asylum officer who interviewed Nanic. The Eighth Circuit upheld the decision as supported by substantial evidence. Nanic’s testimony about warnings from unidentified friends was too vague to compel a finding that he had a well-founded fear that is objectively reasonable, especially when members of his family continue to live in Bosnia-Herzegovina without harm, and Nanic himself returned to the country several times since 2000 without experiencing persecution. View "Nanic v. Lynch" on Justia Law