Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

Mendoza-Garcia, then 16, came to the U.S. from Guatemala in 2004. In 2011 removal proceedings, he sought asylum and withholding of removal, stating that he was afraid to return to Guatemala because his hometown had been torn apart by violence after a mayoral election won through fraud. His merits hearing was scheduled for November 2017. One week before that hearing, his attorney moved to withdraw, stating that he told Mendoza-Garcia six week earlier about an outstanding obligation related to their 2011 representation agreement. Mendoza-Garcia was unable to pay and requested more time. The IJ informed him that financial difficulty would not justify a continuance. When asked a third time if he objected to his attorney’s withdrawal, Mendoza-Garcia said no. The IJ granted the motion; the attorney left. The hearing proceeded, with interpreters translating from English to Spanish and from Spanish to Aguacateco, Mendoza-Garcia’s indigenous language. Mendoza-Garcia stated, “I don’t fear any person in particular or a group, per se,” but “they made us" "get involved with a group to protect the village,” giving him a gun. He stated that he had been expelled from the village and had “no idea what might happen.” The IJ again refused a continuance. The BIA and Sixth Circuit upheld the denial of relief. Denying a continuance was not irrational, discriminatory, or a departure from established policies. This type of procedural due process claim requires a showing of prejudice; Mendoza-Garcia could not show that his “claims could have supported a different outcome.” View "Mendoza-Garcia v. Barr" on Justia Law

Santos-Santos, a citizen of Mexico, entered the U.S. without inspection in 1999. In 2000, he and his wife attempted to enter Canada but were denied admission and directed back to Port Huron, where they were questioned. Both admitted to entering the U.S. illegally. The Immigration and Naturalization Service personally served Santos-Santos with a notice to appear (NTA), charging him with inadmissibility and ordering him to appear for a hearing in Detroit. The NTA listed his Chicago address and indicated that the hearing date and time were “to be determined.” On May 24, the Detroit immigration court mailed a Notice of Hearing for October 20, to the Chicago address. Santos-Santos failed to appear and was ordered removed in absentia. The order was mailed to the same address. Santos-Santos claims he did not receive that order. In 2018, Santos-Santos moved to reopen the in absentia order, stating he did not receive any notices after the NTA. The BIA upheld the denial of the motion, finding no evidence that the mailings were returned to the immigration court; Santos-Santos did not argue that the notice was addressed incorrectly or that he was having mail delivery problems or report any efforts to determine the status of his proceedings during 17 years before his motion. The Sixth Circuit denied a petition for review. Santos-Santos failed to rebut the presumption of delivery. View "Santos-Santos v. Barr" on Justia Law

Molina, born in El Salvador, grew up in an area where the “18th Street” gang was active. The gang attempted to recruit Molina. Molina claims that his uncle was murdered in 2008 for refusing to join the gang. Molina moved to San Vicente, which was in MS-13 gang territory. MS-13 pressured Molina to join and beat him up several times when he refused. In 2012, at age 15, Molina illegally entered the United States. He was granted permanent resident status in 2014 as a Special Immigrant Juvenile, 8 U.S.C. 1101(a)(27)(J), 1255(h). In March 2016, Molina pled guilty to assault with intent to rob, unarmed. Removal proceedings (8 U.S.C. 1227(a)(2)(A)(i)) were initiated, alleging that Molina had been convicted of a crime involving moral turpitude (CIMT) within five years of his admission for which a sentence of at least one year could be imposed. Molina’s conviction was vacated because he did not receive the constitutionally-required advice about the immigration consequences of his plea. He then pled guilty to felonious assault. The IJ denied Molina’s application for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA sustained the CIMT removal charge. The Sixth Circuit reversed. Molina reasonably relied on Sixth Circuit precedent holding that the Michigan felonious assault statute is not categorically a CIMT. Molina’s applications for asylum, withholding of removal, and protection under the CAT are moot. View "Hernandez v. Whitaker" on Justia Law

Petitioners, Iraqi nationals, were ordered removed years ago because of criminal offenses they committed in the U.S. Iraq refused to repatriate them, so Petitioners remained under orders of supervision by U.S. Immigration and Customs Enforcement. In 2017, Iraq began to cooperate and removal of Iraqi nationals resumed. In April 2017 ICE conducted a removal by charter flight to Iraq, scheduling a second charter for June and arresting more than 200 Iraqi nationals. Iraq declined to issue requisite travel documents and would accept only Iraqi nationals who had unexpired passports and were returning on commercial flights. Petitioners filed a putative class action habeas petition on behalf of all Iraqi nationals with final orders of removal, who have been, or will be, arrested and detained as a result of Iraq’s recent decision,” seeking a TRO or stay of removal, pending arguments on allegedly changed country conditions. Under 8 U.S.C. 1252(g), immigration courts hold exclusive jurisdiction over removal proceedings. The district court stayed the final removal orders and concluded that it had jurisdiction to hear Petitioners’ claims as an as-applied constitutional violation of the Suspension Clause. The Sixth Circuit vacated. The district court lacked the jurisdiction. Rejecting Petitioners’ argument the petition-for-review process is constitutionally inadequate as an alternative to habeas review, the court noted that Petitioners had years to file motions to reopen and the administrative scheme provides multiple avenues to stay removal while pursuing relief. The court was not merely interpreting a statute: it “created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new standards that the government must meet.” View "Hamama v. Adducci" on Justia Law

Hosseini fled Iran and obtained asylum in the U.S. in 1999. He later unsuccessfully applied to adjust his legal status to become a lawful permanent resident. The government concluded that Hosseini provided material support to Iranian terrorist organizations, rendering him inadmissible under 8 U.S.C. 1182(a)(3)(B)(iv)(VI)(dd), by copying and distribution of flyers from organizations, including Mujahadin-e Khalq (MeK) and Fadain-e Khalq (FeK). Hosseini insists that the flyers alerted Iranians to the new regime’s human rights abuses, including its crackdown on women, students, workers, and civil dissidents. The Sixth Circuit affirmed that determination. Hosseini did not demonstrate by clear and convincing evidence that he “did not know, and should not reasonably have known, that the organization was a terrorist organization.” The government described a 1981 terrorist attack, during which MeK detonated bombs in the Islamic Republic party’s head office that killed “some seventy high-ranking Iranian officials. Given Hosseini’s acknowledgment that he “eagerly sought out information about various political viewpoints” after the 1979 revolution, it seems implausible that he was unaware of this attack and the organization that perpetrated it. While Hosseini left MeK voluntarily and did not engage in violent terrorism, Hosseini was not a minor during his six-year involvement with the groups; he admitted hearing rumors that MeK was engaged in terrorist activity. His support was relevant in introducing Iranians to the organizations and significant: the nonviolent flyers gave legitimacy to MeK and FeK although they were engaged in terrorism. View "Hosseini v. Nielsen" on Justia Law

Gafurova, a citizen of Uzbekistan, entered the U.S. in June 2003, as a visitor. She remained in the U.S. without authorization and applied for Asylum in June 2004. An IJ ordered her removal, characterizing Gafurova’s asylum application as frivolous. The BIA denied Gafurova’s appeal but reversed the frivolity determination. The Second Circuit denied her petition for review. Gafurova moved to reopen because of a pending visa petition filed on her behalf by her husband. On remand, the IJ denied Gafurova’s application for adjustment of status because she had previously filed a frivolous asylum application. The BIA again remanded. DHS then submitted evidence that Gafurova’s 2011 visa petition was revoked; she was not eligible to seek adjustment of status. Gafurova moved to change venue to New York for a second asylum application, arguing that she converted to Christianity and that she would be viewed as a traitor in Uzbekistan because information is publicly available that she sought asylum. An IJ denied Gafurova’s motion, found her barred from filing a second application, and ordered her removal. The BIA dismissed her appeal. While Gafurova’s Sixth Circuit petition was pending, she again moved to reopen, citing “changed circumstances” in Uzbekistan and new Sixth CIrcuit law pertaining to asylum applications based solely upon well-founded fear of future persecution. The BIA denied her motion, stating that the public disclosure of the Second Circuit decision did not violate asylum confidentiality. The Sixth Circuit denied her petition for review, finding that the BIA applied the correct standards and that its decision was supported by substantial evidence. View "Gafurova v. Whitaker" on Justia Law

In 2003, Jasso obtained lawful U.S. permanent resident status. More than a decade later, he pled guilty to first-degree home invasion in Michigan. DHS began removal proceedings, arguing that Jasso’s home-invasion conviction was a “crime of violence” under 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(A)(iii), which then defined a “crime of violence” with both an elements clause and a residual clause, 18 U.S.C. 16. The IJ found that Jasso’s home-invasion conviction was a crime of violence under the residual clause. Before the Board of Immigration Appeals acted, the Sixth Circuit found the residual clause unconstitutionally vague. The BIA remanded for a new removability determination. The IJ terminated the proceeding, warning Jasso that DHS could “recharge under a different theory.” Two days later DHS initiated a second removal proceeding, arguing that Jasso’s home-invasion conviction was a “burglary offense” rather than a “crime of violence,” 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(iii). The IJ agreed and rejected Jasso’s argument that res judicata barred the second proceeding. The BIA affirmed, concluding that res judicata does not apply in removal proceedings involving aggravated felons. The Sixth Circuit vacated and remanded for determination of whether claim preclusion applies, which depends on whether the first removal proceeding was dismissed with or without prejudice—an issue never addressed by the Board. View "Jasso-Arangure v. Whitaker" on Justia Law

Petitioner, a citizen of the United Kingdom and a lawful U.S. permanent resident, was convicted of two counts of rape in 2011 under Ohio law. He was charged as removable for being convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), which lists rape as an aggravated felony, but it does not define the term. An IJ found held that Petitioner was removable without eligibility for relief. Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated felony because Ohio’s definition of rape includes digital penetration, whereas the federal law does not. The BIA disagreed. The Sixth Circuit reversed, noting that the Fifth Circuit and the BIA previously considered this question. The BIA reversed course in Petitioner’s case. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the Immigration and Nationality Act cannot; the Ohio conviction does not categorically fit within the federal definition, and Petitioner’s conviction is not an aggravated felony. View "Keeley v. Whitaker" on Justia Law

Hernandez-Perez, a Mexican citizen, has lived in the U.S. since 2000. His daughter, L., is a 17-year-old U.S. citizen. Hernandez-Perez has some criminal history, mostly “misdemeanor traffic offenses” but has maintained steady employment despite a handicap. In 2011, Hernandez-Perez was placed in removal proceedings and sought cancellation of removal under 8 U.S.C. 1229b(b)(1)(D), arguing that, if he were removed, L. would face “permanent family separation.” After that application was denied, Hernandez-Perez, alleged his family circumstances changed because he learned that an eight-year-old U.S. citizen, A.W., whose mother is not his wife, might be his son. A.W.’s mother was incarcerated and his grandfather, who had custody, was seriously ill. Hernandez-Perez had a DNA test performed, which confirmed the relationship. He filed a motion to reopen based on hardship to A.W. The BIA denied the motion because Hernandez-Perez had not established that the new evidence was previously unavailable, and the evidence did not establish prima facie eligibility for cancellation of removal. The Sixth Circuit granted a petition for review and remanded, first holding that it had jurisdiction because the motion “raised a new hardship ground not decided in the original decision.” Because the BIA must accept as true Hernandez-Perez’s allegations, there is no reasonable basis to conclude that the genetic evidence could have been obtained in 2015. The BIA erred in determining that the newly submitted evidence was previously available and did not consider all of the facts. View "Hernandez-Perez v. Whitaker" on Justia Law

Veloz-Alonso, a citizen of Mexico, entered the U.S. illegally in the 1990s. He was removed in 1997, 1999, and 2008. In 2018, Veloz-Alonso was discovered again and was indicted for illegal reentry. He pleaded guilty and sought release on bail pending sentencing. Under the Bail Reform Act (BRA), a defendant pleading guilty must be detained unless the court finds by clear and convincing evidence that he is not a flight risk or a danger to the community, 18 U.S.C. 3143(a)(1). The government argued that Veloz-Alonso was subject to an order of removal and an ICE detainer, so that, if released, he would be taken into custody, removed, and unable to attend a sentencing hearing. The court granted the motion subject to electronic monitoring and a property lien on his house. The court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.” The Sixth Circuit reversed. While deportable aliens are not per se ineligible for bail, the district court incorrectly inferred that an alien released on bail is ineligible for ICE detention. Reading the BRA’s permissive use of release to supersede the Immigration and Naturalization Act’s mandatory detention would be incongruent with canons of statutory interpretation. To the extent that ICE may fulfill its statutory mandates without impairing the purpose of the BRA, there is no statutory conflict. View "United States v. Veloz-Alonso" on Justia Law